On 27 March 2014, the General Assembly of the United Nations adopted a non-binding resolution entitled “Territorial Integrity of Ukraine”, calling on States, international organizations and specialized agencies not to recognize any change in the status of Crimea or the Black Sea port city of Sevastopol, and to refrain from actions or dealings that might be interpreted as such.

By a recorded vote of 100 in favor to 11 against, with 58 abstentions (24 UN members including Serbia and Bosnia and Herzegovina did not cast votes at all), the Assembly adopted Resolution 68/39 by which it said that it affirms its commitment to Ukraine’s sovereignty, political independence, unity and territorial integrity within its internationally recognized borders, underscoring the invalidity of the 16 March referendum held in autonomous Crimea.

Resolution 68/39 almost instantly caused an avalanche of comments and comparisons to the ‘Kosovo precedent’ case, both by the analysts propagating and opposing Crimea’s session. This fact alone leads us to conclude about the vagueness and elusiveness of the content of the international public law when it comes to ‘special cases,’ which lead to claims of territorial secession.

The ongoing debate between international lawyers, policy makers, and social media users alike, can best be subsumed under the question about the distinction of a people with a right to self-determination from an ethnic minority (regardless of autonomy right), but the re-drawing of territorial boundaries by the World’s super-powers.

I will try avoid this dilemma, and instead provide a brief comparison of both the Kosovo and Crimea cases along the line with two legal-dogmatic problems, which go hand-in-hand in practice: unilateral secession and its legal justification.

First, the principle of the self-determination of peoples, explicitly enshrined in the UN-Charter, became legally entrenched by the United Nations General Assembly Resolution 1514 in 1960 “Granting of Independence to Colonial Countries and Peoples” and the respective Articles 1 of the UN’s International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights of 1966.

With the 1990s’ violent breakup of Yugoslavia, the problem of self-determination, for the first time, entered the global legal arena outside of its original ‘colonial context’. At the time Lord Peter Carrington, Chairman of the European Commission Conference on Yugoslavia, appointed the EC Arbitration Commission, led by Robert Badinter the President of the Constitutional Court of France, to provide a definite answer on a number of legal questions. These included (1) whether the Serbian population in Croatia and Bosnia and Herzegovina, as one of the constituent peoples of Yugoslavia, had the right to self-determination; and (2) whether the internal boundaries between Croatia and Serbia, and between Bosnia and Herzegovina and Serbia (constituent Yugoslav Republics), could be regarded as frontiers in terms of public international law.

The meanwhile famous opinions, Nr. 2 and 3 of 11, in January 1992 argued that Serbs only have the right to minority protection in Croatia, thus effectively rooting the principle of international law, uti possidetis, meaning that newly established sovereign states should be recognized within the same borders that their preceding dependent area had before their independence. In the case of Kosovo, the Badinter Commission noted that it did not qualify to exercise the right to self-determination based on two grounds a) it was not a Republic, but only an autonomous province, and b) Kosovo Albanians were not recognized as constituent people, but nationalities.

Lawyers of public international law adhering to the methodology of strict legal positivism with former Serbian Prime Minister Vojislav Koštunica being one of them, were thus straightforwardly able to deny the legality of Kosovo’s declaration of independence. Similarly, the Security Council Resolution 1244, on the situation in Kosovo in 1999, initially did refer to the right of territorial integrity of the Federal Republic of Yugoslavia while at the same time promising only substantial autonomy to Kosovo until a “final settlement” of the conflict could be reached.

From this perspective alone, the unilateral declaration of independence by the Kosovo Assembly from February 2008, and subsequent recognition of Kosovo as a new state by 107 countries throughout the world, could not be justified.

Nevertheless, the answer to the initial question, what makes Kosovo a sui generis case in the public international law, is to be observed elsewhere. Namely, international public lawyers, coming from the position of functional interpretation, also deny the legality of unilateral session, except for certain exceptions as ‘ultima ratio’.  Needless to mention, it remains hotly disputed what should be recognized as ‘ultima ratio’. Moreover, it remains to be seen how the new doctrine of ‘remedial’ secession, used in Kosovo’s case, will be transferred into public international law.

So, what were the legal facts that called for the ‘ultima ratio’ approach in Kosovo, which are missing in Crimea’s case? As of recently, the concept of human rights as an element of democratic governance is observed by international public lawyers at the same level as the principle of state sovereignty when it comes to right to self-determination. Lawyers adhering to the logic of functional interpretation argue, therefore, that if a state is a perpetrator against its own citizens, the endangered population would be an ‘ultima ratio,’ granted the right to self-determination.

Picking up on the ‘human rights – state sovereignty – right to self-determination’ triadic structure, Kosovo’s precedent can legally be explained by the exclusion of Kosovo Albanians from the right to vote and participate in the referendum of the Serb constitution of 2006 organized by Koštunica’s Government.

Many Crimeans hope the union with Russia will bring better pay and make them citizens of a country capable of asserting itself on the world stage. However, not getting into the legality of Crimean secession according to the Ukrainian Constitution that reads “Alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum”, the province will have to justify its actions, in order to receive wider international recognition by proving systematic and grave violations of fundamental human rights by Kiev authorities. Until it is able to do so, Crimea cannot be compared to Kosovo’s precedent. Should it do so in the future, this analysis must change accordingly.

But international public law is a fluid category. At the end, the legitimacy of secession depends solely upon the question of political recognition by international community. Should Crimea gain enough international recognition of its status, some years from now students of public international law will compare the Crimean precedent to a new ‘special case’.