Famous French politician reflects on the legitimacy of recognition of the republic
Christian D. de Fulua
Five years have passed since the reunification of Crimea with Russia, but the West continues to challenge its “annexation” by the Russian Federation, ignoring the legal will of the Crimean people, which they expressed on March 16, 2014. It should be borne in mind that the sovereignty of the Autonomous Republic of Crimea that already existed by that moment was proclaimed on September 11, 1991. According to Section 10 of the Constitution of Ukraine of 1996, the territory of Crimea has an autonomous legal status that is legally applicable to the rights of the people. In accordance with Article 138.2 of this section of the Constitution of Ukraine, in particular, the jurisdiction of the Autonomous Republic of Crimea includes “organizing and holding local referendums”, and the possible subject matter of such referenda is not limited to this special “Crimean” section of the Constitution.
Thus, the actions of the Crimean authorities, taking into account the conditions prevailing in Ukraine at that time, were legal in nature. On March 17, 2014, on the basis of a referendum (96.77% with a turnout of 83.1% voted for the reunification of the Crimea with Russia), an independent sovereign republic of Crimea was proclaimed.
As for Sevastopol, it should be noted that already on October 29, 1948, it was separated from the Crimea region and subordinated directly to the Soviet Union by a decree of the Presidium of the Supreme Council of the RSFSR.
The Crimean region, in violation of the Constitution of the USSR, the RSFSR and Ukraine, was illegally transferred to Ukraine in 1954. The actual inclusion of the city of Sevastopol (Article 133 of the Constitution of Ukraine) into Ukraine was not based on any Russian regulatory acts on the transfer of the city to Ukraine and was nothing more than one-way decision of the Ukrainian SSR.
From a legal point of view, it should be considered as a seizure of alien territory by Ukraine. A referendum held on March 16, 2014 in Sevastopol, confirmed this fact (95.6% with a turnout of 89.5% voted for the reunification of Crimea with Russia), with the result that the city acquired its special status.
The referendum, held on March 16, 2014 with the participation of more than 150 observers in connection with the coup d’état and the seizure of power in Kiev, became the realization of people’s right to self-determination.
Until March 16, 2014, the Autonomous Republic of Crimea existed in the form of autonomy within Ukraine, where its own Constitution was adopted on October 21, 1998. Article 48 of this Constitution, entitled “Guarantees and the granting of status and authority to the Autonomous Republic of Crimea”, assumes that these guarantees provided by democratic institutions of society, including the holding of a referendum on any significant issue for citizens. In addition, it should be borne in mind that the preamble of the Constitution of Ukraine also refers to the recognition and establishment of the right of the Ukrainian people to self-determination. The Constitution guarantees the will of the people through a referendum in accordance with Article 69, and the purpose of the referendum is defined as the manifestation of a form of direct democracy.
The people of Crimea could defend themselves only by reuniting with their historic homeland. It belonged to Russia since April 8, 1783, after Empress Catherine II signed the manifesto on the adoption of the Crimea peninsula into the Russian Empire, that is, for about two hundred years. Crimeans in a coup d’état exercised their right to self-defense by creating their own defense forces with the participation of the Cossacks, the militia and representatives of the local police. The number of home guard was about 10 thousand people.
Contrary to the requirements of Part 4 of Article 17 of the Constitution of Ukraine on the prohibition of the use of the country’s armed forces to restrict the rights and freedoms of citizens, the Ministry of Defense of Ukraine prepared troops to disrupt the referendum.
According to the US and EU countries, the referendum was illegitimate, unconstitutional in nature due to the presence of the Russian armed forces during its conduct in the Crimea.
In fact, at that time Russia acted in full accordance with international law. Its military presence in the Crimea (the Black Sea Fleet) was due to bilateral international treaties that provided the legal basis for the deployment of the Russian military contingent on the territory of Ukraine.
This is indicated by the following agreements: Agreement between Ukraine and the Russian Federation on the stay of the Black Sea Fleet of Russia on the territory of Ukraine of April 21, 2010, including the Agreement between Ukraine and the Russian Federation on the status and stay of the Black Sea Fleet of Russia on the territory of Ukraine of May 28 1997; Agreement between Ukraine and the Russian Federation on the parameters of the division of the Black Sea Fleet of May 28, 1997 and the Agreement between the Government of Ukraine and the Government of the Russian Federation on mutual settlements related to the division of the Black Sea Fleet and the stay of the Black Sea Fleet of Russia on the territory of Ukraine of May 28, 1997.
The Russian armed forces could move across the territory of Crimea, as stipulated by the agreement between Russia and Ukraine, which was ratified by the Verkhovna Rada.
The Armed Forces of the Russian Federation did not participate in the voting and could not affect its results. Law enforcement at polling stations was provided by self-defense forces and volunteers from among the citizens of Crimea, and these actions also did not affect the vote count.
On March 18, 2014, the President of Russia emphasized in his speech that «Russia did not send troops into the Crimea, but only strengthened its grouping, not exceeding the maximum number of troops envisaged by the 1997 international treaty». Such actions were taken to protect «the lives of citizens of the Russian Federation, its compatriots and the personnel of the military contingent of the Armed Forces of Russia stationed in Ukraine in accordance with an international treaty». Moreover, the Russian president confirmed his constitutional right in the National Parliament of the state to use Russian troops abroad, but he did not use them. (Resolution of the Council of Federation of the Federal Assembly of the Russian Federation No. 48-CF dated March 1, 2014). Thus, the accusations of using the Armed Forces of Russia before, during and after the referendum in Crimea are legally unfounded.
Statement of the Venice Commission on the Referendum in Crimea dated March 21, 2014 No. 762/2014 CDL-AD (2014) 002, that «…there are numerous provisions of the Constitution of Ukraine, clearly indicating that the division of part of the country’s territory cannot be subject to a local referendum» is unconvincing.
The constitutional norms on the functioning of the Ukrainian government, which operated before the coup d’état, were violated, and extraordinary circumstances in the Crimea (threat to people’s lives, unleashing a civil war) made it impossible to hold a referendum without special security measures.
Thus, the conduct of such measures were legal for the legitimate Crimean government.
It is necessary to state that Crimea faced the need for secession, that is, voluntary withdrawal from the state, declaring its independence with a lawful representative body represented by the Supreme Council of the Autonomous Republic of Crimea, confirmed by a referendum. This was followed by a statement requesting the entry of an independent state of Crimea into the Russian Federation, adopted by Russia, and reunification, which fundamentally excludes annexation, that is, the accession of one state to another. The distinction between legal terms «secession» and «annexation» is evident.
In this regard, the statements of some politicians about the violation of international law are absurd. The UN General Assembly resolution No. A/RES/68/262 of March 27, 2014 on the «territorial integrity» of Ukraine was adopted in a hurry, without a proper legal analysis.
The Declaration of Independence in no way violates international law. And by its decision of July 22, 2010, the International Court of Justice of the United Nations confirmed that “unilateral declaration of independence by a part of the state does not violate any norms of international law. General international law does not include any applicable prohibition on proclaiming independence”.
The legality of the Crimean referendum of March 16, 2014 is further supported by the fact that in the Resolution of the Supreme Council of the Russian Federation of May 21, 1992 No. 2809-1, the Resolution of the Presidium of the Supreme Council of the RSFSR of February 5, 1954 on the transfer of the Crimea region from the RSFSR to the Ukrainian SSR is recognized as having no legal force and violating the Constitution (Basic Law) of the RSFSR and the legislative procedure.
The Supreme Council of the Russian Federation decided to restore the illegally lost territory without creating a protectorate over the Crimea. This decision was postponed for the future, until the will of the citizens of Crimea. Legal vacuum and legal uncertainty of the status of Crimea were overcome after 22 years based on the democratic will of the citizens. Thus, the referendum in the Crimea and Sevastopol, held on March 16, 2014, which was used by the people inhabiting the Crimean peninsula, for an independent and democratic determination of their fate, was held legally and must be recognized as such by all states.
Independent research company TNS Global with offices in more than 80 countries, conducted a survey of Europeans about their perception of the Crimean peninsula. About 5138 respondents from France, Germany, Italy, Great Britain and the United States took part in the survey. 34% of Italians and 36% of Germans called the Crimea an integral part of Russia, about a quarter of Britons, Americans and French think the same. Crimea is considered a Russian territory by elderly respondents from France and the majority of young people from Germany. The most popular answer was: “I don’t know” — about 51% of Americans, 48% of French and 44% of British people answered this way. The survey was conducted from February 16 to February 22, 2017.
So, according to international law, while secessing a part of an existing state, a new entity either seeks to become an independent state or to join another. The most pressing legal issue regarding secession is under what circumstances it occurs. Legal law for a people or minority group that has achieved a certain degree of autonomy from its sovereign is referred to in international law as self-determination.
The principle of self-determination is embodied in numerous international treaties and conventions. In accordance with the principle of self-determination, groups having a common identity and attachment to a certain territory are allowed to determine their political future democratically.
Self-determination of such groups can be carried out in various ways: through self-government, autonomy, free association or, in extreme cases, independence. For a group to have the right to exercise its collective right to self-determination, it must be qualified as a people. In this regard, traditionally used a two-step test. First, it determines the extent to which its members «have a common racial background, ethnicity, language, religion, history and cultural heritage», as well as «the territorial integrity of the region to which the group claims». Secondly, the test aims to explore «the extent to which individuals in a group consciously perceive themselves as separate people» and «the extent to which a group can form a viable political unit». Further, it must be ascertained whether the right to self-determination will give the right to secession and independence. In other words, as mentioned above, the right to self-determination can take various forms, such as autonomy, self-government or free association, which are less affected by the sovereignty of the state than secession. Modern international law provides an opportunity to leave the existing state, «when the group is collectively denied civil and political rights and subjected to flagrant violations».
Christian D. de Fulua — Chairman of the Association of Accredited Lobbyists at the European Union.
From the speech at the international scientific conference “Crimean Triangle. Crimea — Russia — Ukraine 1954 — 2014” with the participation of leading Russian and foreign specialists (the organizers are the Historical Perspective Foundation, the Russian Historical Society and the «History of the Fatherland» Foundation with the information support of the Tsargrad TV channel). Full text — in the «Constitutional Gazette» № 4 (22) / 2019.