The Crisis In Crimea in Terms of International Law and the Ukrainian Constitution


International Law Matters is pleased to welcome this guest post from Professor Süleyman Sırrı Terzioğlu, international law lecturer at Izmir Kâtip Çelebi Üniversitesi. He studies minority rights, international organizations, and Central Asia.  You can follow him on twitter @ssterzioglu or email him at ssterzioglu@yahoo.com.

The Crimean conflict, which has turned into a power struggle between the Western world and Russia, and that has led to the implementation of various sanctions against Russia, triggered a number of legal red flags.  While Russia tries to justify the annexation, it does not seem legally justifiable under international law nor under the Constitution of Ukraine.

Historical Background

The Ottoman Empire was the Sovereign state over Crimea until the Treaty of Küçük Kaynarca (1774)—a peace treaty between the Ottoman Empire and the Russian Empire—ended. In 1921, after the Bolshevik Revolution took place in Russia, Crimea became an autonomous state under the USSR named: the ‘Crimean Autonomous Soviet Socialist Republic’(“Crimean Republic”). Many Russian civilians were placed in the Crimean Republic during the Stalin era in the 1930s, and the demographic structure of the region has changed greatly. On June 30, 1945, the Crimean Republic was abolished, and Crimea became a part of the Soviet Federalist Socialist Republic. Towards the end of World War II, and while Crimea was occupied by Germany, Stalin exiled 400,000 Crimean Tatars from Crimea to Central Asia and Siberia on the grounds that they cooperated with the Germans.

On February 19, 1954, Crimea was alienated to the Ukraine during the Khrushchev period by the Supreme Soviet Presidium of the USSR. During the collapse of the USSR, Ukraine proclaimed its independence after a referendum held in 1991. In this process, Crimea remained a part of the Ukraine as an ‘Autonomous State’. The Autonomous Republic of Crimea (“Autonomous Crimea”) is an integral part of the Ukraine according to Article 134, Section X of the 1996 Ukraine Constitution.[1]

The Crimean conflict started in November of 2013 within the political crisis in Ukraine when the pro-Moscow Ukrainian President Yanukovych cancelled the cooperation agreement with the EU.  Subsequently, crisis began to spread within the Crimean peninsula.  Russian soldiers under the name ‘local forces’ moved into Crimea and sieged the Crimean parliament. Under this pressure, on February 27, 2014, the Supreme Assembly of the Autonomous Crimea decided to hold a referendum that questions the option to annexation to the Russian Federation to be effective on March 16, 2014.[2] However, before the revelation of the result of the referendum, On March 6, 2014, the Supreme Assembly decided to be a part of the Russian Federation. Then the Supreme Assembly and the special status of Sevastopol City Council proclaimed the independence of Crimea by a decision taken on March 11, 2014.  The consultation was conducted on the basis of the UN Charter, various international texts, and the advisory opinion of the International Court of Justice on July 22, 2010. It was announced in the referendum that if Crimea becomes a part of the Russian Federation, the Autonomous Crimea, including the city of Sevastopol, will be announced as an independent and sovereign state. It has also been stated in the declaration of independence that it will be offered to the Russian Federation to accept Crimea as a part of the Russian Federation.

The referendum was held on March 16, 2014, and the results showed that nearly 97 percent of the Crimean citizenry favoured the decision. Crimean Tatars boycotted the referendum. On March 17, 2014, the Supreme Assembly of the Autonomous Crimea passed a resolution declaring their independence from the Ukraine and has requested to be a part of Russia.[3] On March 18, 2014, the Agreement between the Russian Federation and the Republic of Crimea on the Accession of the Republic of Crimea in the Russian Federation and on Forming New Constituent Entities within the Russian Federation was signed.[4]

The Current Situation According to the Constitution of Ukraine

The first issue to be considered is the legitimacy of the referendum decision by the High Council of the Autonomous Crimea according to the Constitution of Ukraine. The Referendum changed the borders of Ukraine and separated Crimea from the Ukraine. According to the Ukrainian Constitution, Ukrainian land is unitary (Art. 2,[5] 17,[6] 132[7]). Additionally, the Autonomous Crimea is an integral part of Ukraine (Art. 134[8]). So, the decision of the High Council of the Autonomous Crimea regarding the separation is against the territorial integrity of Ukraine. The territory of a state cannot be changed without its consent in international law. Borders can only be changed with the consent of the state. This consent can only be determined in the constitutional system of the government. In this case, changing the boundaries of the state may only be decided by a referendum to be held in all of Ukraine according to the Constitution of Ukraine (Art. 73).

However, the referendum on March 16, 2014 was only decided by the Autonomous Republic of Crimea. Therefore, the changing of the borders in a local referendum is not possible, and it is unconstitutional.[9] Although the Autonomous Republic of Crimea has the  power to organize and manage local referendums (Art. 138/2), the Constitution of Ukraine does not give any authority to Autonomous Crimea to secede. Therefore, the High Council of Autonomous Republic of Crimea has no authority to hold a referendum decision to secede. Indeed, the Ukrainian Supreme Council decision has taken a decision on February 28, 2014, referred to Ukraine’s independence and sovereignty, and territorial integrity. The Decision made a reference to the 05 December 1994 Budapest Memorandum,[10] which determines the current borders.

Another issue to consider is the legitimacy of the decisions by the High Council of the Autonomous Republic of Crimea. According to Article 135 of the Constitution of Ukraine, the decisions and regulations of the High Council of the Autonomous Crimea and the decisions of the Council of Ministers of Autonomous Republic of Crimea cannot be contrary to the Constitution and laws of the Ukraine. The outcome of the referendum, including the March 6, 2014, decision to be a part of the Russian Federation, as well as the independence proclamation dated March 11, 2014 are clearly invalid.

Indeed, the Ukrainian Supreme Council requested from the High Council of the Crimean Autonomous Republic to modify the decision taken on March 11, 2014 is contrary to Articles 1, 2, 20, 73, 133, 134, 137, and 138 of  the Ukrainian Constitution. The Ukrainian Supreme Council stated that the decision is related to foreign policy and, therefore, it is outside of jurisdiction of the High Council of the Autonomous Republic of Crimea, and has requested to review the decision in question. Ukraine stated that the failure to modify the decision to compile with Ukraine’s domestic law would be the termination of the authority of the High Council of Autonomous Republic of Crimea. On March 15, 2014, the Supreme Council of the Ukraine made a decision to terminate the powers of the High Council of the Autonomous Republic of Crimea.[11]

The Ukrainian Constitutional Court has found both the decision dated March 6, 2014 and the independence declaration of Sevastopol on March 11, 2014, contrary to the Constitution of Ukraine.

The Current Situation According to International Law

The first problem that comes to mind in terms of international law is whether  people living in Crimea has any right to self-determination. Under international law, the right of self-determination is granted to people living under colonial rule.[12] International law prohibits the unilateral declaration of independence. The right of self-determination cannot violate the integrity of a state. The declaration of independence on March 11, 2014 of the High Council of Autonomous Republic of Crimea and Sevastopol City Council is based on the advisory opinion of the International Court of Justice regarding Kosovo’s declaration of independence on July 22, 2010.[13] However, the advisory opinion cannot be a basis for the independence declaration. Because the International Court of Justice has only interpret the declaration of independence of Kosovo. It has not examined the reasons for the declaration of independence, and did not express an opinion on issues such as the right to self-determination and secession. It has only evaluated the legal legitimacy of the independence proclamation. International Court of Justice has focused on whether there are any rules that prohibit the proclamation of the declaration of independence in terms of international law.

In addition, each issue has different political and historical backgrounds. In Kosovo, ethnic cleansing against Albanians makes the case completely different. There is not even the slightest doubt that Russians has been exposed to discrimination in Crimea.[14] Therefore, the advisory opinion on Kosovo certainly cannot be an example for the Crimea. Moreover, it should not be forgotten that Russia does not recognize the Kosovo’s independence declaration.[15] For this reason, the declaration of independence by the Supreme Assembly of the Autonomous Republic of Crimea and Sevastopol City Council does not have any legal qualifications.

The Constitutional Court of Ukraine, in its judgment of March 20, 2014 stated that the declaration of independence of the Autonomous Crimea is contrary to the Constitution of Ukraine, and does not have any legal basis on self-determination and international law.

Conclusion

An international law perspective does not seem to recognize the right to self-determination for colonial Autonomous Crimea. The right to self-determination can be based on a constitutional right or on an international treaty, as it has happened in the Scotland case. However, as seen above, the Constitution of Ukraine does not give any such right to Autonomous Crimea. In this case it might be considered a violation of the Ukrainian domestic law and international law for the Autonomous Crimea to hold such a referendum, followed by a declaration of independence and annexation to Russian Federation. Crimea is still a part of Ukraine, and thus, Russia cannot stake a claim to that territory. [16]Moreover there is no international treaty that allows for secession which Ukraine is a party. On the contrary, Ukraine is a party to Budapest Memorandum which guarantees the territorial integrity of Ukraine by other state parties including Russian Federation.

[1] Constitution of Ukraine  See. www.justice.gov/…/ukraine/constitution.pdf

[2] For more information in Turkish, See Bahadır Bumin Özarslan, ‘Soğuk Savaş Sonrasında Kırım’ın ve Kırım Tatar Türklerinin Statüsü’, Uluslararası Hukuk ve Politika Dergisi, Cilt 10, Sayı 9, 2014, ss. 97-135

[3] http://www.bbc.com/news/world-europe-26609667

[4] http://eng.kremlin.ru/news/6890

[5] Article 2. Sovereignty of Ukraine spreads on all its territory. Ukraine is the unitary state. Territory of Ukraine within the limits of existent border is integral and inviolable.

[6] Article 17. Defence of sovereignty and territorial integrity of Ukraine, providing of its economic and informative safety is the major functions of the state, matter of all Ukrainian people.

[7] Article 132. The territorial mode of Ukraine is based on bases of unity and integrity of state territory, combination of centralization and decentralization in realization of state authority, balanced and socio-economic development of regions, taking into account their historical, economic, ecological, geographical and demographic features, ethnic and cultural traditions.

[8] Article 134. The Autonomous Republic Crimea is inalienable component part of Ukraine and within the limits of plenary powers certain by Constitution of Ukraine, decides the questions attributed to its knowing.

[9] Indeed, the Constitutional Court of Ukraine has found the statements of High Council of the Autonomous Republic of Crimea and Sevastopol City Council contrary to the Ukrainian Constitution on March 20, 2014. Grounds for the decisions were that such a decision should be taken in a State level; not regional.

[10] Memorandum on Security Assurances in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons

[11] http://iportal.rada.gov.ua/en/news/page/news/News/News/89664.html

[12] Declaration on the Granting of Independence to Colonial Countries and Peoples, Adopted by General Assembly Resolution 1514 (XV) of 14 December 1960. Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, Adopted by General Assembly Resolution 2625 (XXV) of 24 October 1970.

[13] Accordance with International Law of the Unilateral Declaration of Independence in Respect of Kosova, Advisory Opinion, ICJ Reports 2010

[14] www.ohchr.org/…/Ukraine_Report_15April20… Especially See para. 7: “In eastern Ukraine, where a large ethnic Russian minority resides, the situation remains particularly tense with ethnic Russians fearing that the central Government does not represent their interests.  Although there were some attacks against the ethnic Russian community, these were neither systematic nor widespread. There are also numerous allegations that some participants in the protests and in the clashes of the politically opposing groups, which have already taken at least four lives, are not from the region and that some have come from the Russian Federation.”

[15] See Meeting Record, S/PV. 5839, Press Release: SC/9252, http://www. un.org/News/Press/docs/2008/sc9252.doc.htm

[16] Also See UNGA Resolution, Territorial integrity of Ukraine, A/Res/68262, 27 March 2014

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