Annexation of Crimea.

Author:Grant, Thomas D.
 
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The Russian Federation, by a municipal law act dated March 21, 2014, annexed Crimea, an area of Ukraine. (1) This act followed armed intervention by forces of the Russian Federation, a referendum, and a declaration of independence in Crimea. Outside the context of decolonization, few claims of annexation following the use of force have been made during the United Nations era; this is the first by a permanent member of the Security Council against a United Nations member. The present article examines the annexation of Crimea in view of the legal arguments that the Russian Federation has articulated in defense of its actions. It then considers the international response and the possible consequences of nonrecognition.

  1. ACTS IN TWO MUNICIPAL LEGAL ORDERS

    Fora territory to separate from one state and join another entails, at a minimum, acts in two municipal legal orders. Russia characterized the separation of Crimea from Ukraine as the result of a referendum taking place in the Crimean area of Ukraine, and its annexation as the result of a treaty between an independent Crimea and Russia. While Russia thus treated these transactions as involving not two but three states (Ukraine, Russia, and Crimea), for purposes of analysis it is useful to begin with the legal acts of the two existing states involved (Ukraine and Russia).

    The Putative Emergence of a New State in Ukraine

    On March 6, 2014, the local legislative organ in Crimea adopted a decree On the All-Crimean Referendum. (2) The resolution presented two options: "(1) Do you support the reunification of the Crimea with Russia as a subject of the Russian Federation? (2) Do you support the restoration of the Constitution of the Republic of Crimea of 1992 and the status of the

    Crimea as a part of Ukraine?" (3) A declaration of independence of the Republic of Crimea was adopted on March 11, 2014. (4) The questions in the March 6 resolution were put to voters in Crimea in a referendum on March 16,2014. The Russian Federation Presidential Council for Civil Society and Human Rights briefly posted an analysis on its website indicating that not more than 60 percent of votes were in favor of annexation and possibly as few as 50 percent and that voter turnout was as low as 30 percent and not higher than 50 percent. (5) However, the result as finally reported was 96.77 percent for the first option, with 83.1 percent of eligible inhabitants, not including the city of Sevastopol, casting votes. (6) Section II below, considering Russia's position that a Crimean people separated from Ukraine under a right of self-determination, further addresses the circumstances in Crimea at the time of the referendum.

    On March 7,2014, the acting president of Ukraine suspended the Crimean decree that had called the referendum. (7) In addition, a question was submitted to the Constitutional Court of Ukraine as to the decree's accordance with the Ukrainian Constitution. On March 14,2014, the Constitutional Court indicated that only under an all-Ukrainian referendum could a proposed change to Ukraine's territory be lawfully addressed and that only the parliament of Ukraine has the authority to call such a referendum. (8) In consequence, the Constitutional Court mandated that the Crimean authorities repeal the referendum decree. (9) On March 21,2014, the Venice Commission of the Council of Europe (Venice Commission) agreed that the referendum was in contravention of the Ukrainian Constitution. (10) The chairman of the Organization for Security and Co-operation in Europe (OSCE) expressed a similar view. (11) The referendum in Crimea thus differed from plebiscitary exercises elsewhere (as in certain colonial settings) that were affirmed by international actors or that took place with the consent of the central authorities of the state. (12)

    The situations in which a state has emerged through unilateral acts against the opposition of an existing state almost necessarily entail breaches of municipal law. In some instances, they involve the whole disruption of the legal order of the state. (13) Thus, to say that Crimea's referendum and declaration of independence were unlawful as a matter of Ukrainian law does not in itself settle the question. States well may regard domestic illegality as relevant when they consider how to respond to an act of secession, (14) and how states respond almost inevitably affects whether the act succeeds or fails. Moreover, international law may be involved in the procedures by which self-determination is implemented in practice. These points are addressed further below. But international law does not categorically forbid the emergence of a new state against the legal order of an existing state. (15)

    Annexation in the Russian Legal Order

    On March 17, 2014, the day after the referendum, the president of the Russian Federation signed an executive order On Recognising Republic of Crimea. (16) He indicated to the Government of the Russian Federation, the State Duma, and the Federation Council on March 18, 2014, that local Crimean institutions had proposed joining the Russian Federation. (17) The same day, Russia and the local institutions signed an agreement on the admission of the Republic of Crimea into the Russian Federation. (18) As noted above, the annexation of Crimea to the Russian Federation was formalized for purposes of Russian law in the Federal Constitutional Law of March 21, 2014. Annexation was accompanied by a celebratory gun salute in Moscow, Simferopol, and Sevastopol. (19)

    On March 18,2014, three days before adoption of the Federal Constitutional Law, the Russian president transmitted the Request to Verify Compliance of Agreement on Accession of Republic of Crimea to the Russian Federation with the Constitution to the Constitutional Court of the Russian Federation. (20) On March 19 (the day following the request), the Constitutional Court adopted a judgment in which it concluded that the agreement "cannot be regarded as breaking the Constitution of the Russian Federation as to the procedure of signing, conclusion and entry into force." (21) The judgment referred to the agreement of March 18 as an "international treaty." (22) A treaty being an agreement between subjects of international law, (23) the Constitutional Court thus presumably understood both parties to have been subjects of international law. To say that Crimea entered into an "international treaty" is not in itself to say that Crimea was an independent state. An entity that does not possess general or plenary competence under international law may possess competence to make treaties for specific and limited purposes. (24) A treaty of cession or annexation, however, entails the transfer of full (or "plenary") competence in respect of the territory being ceded or annexed. For Crimea to have transferred such competence to the Russian Federation, Crimea would have had to have held such competence. Under Ukrainian law, it did not; under Russian law in places beyond Russia's borders, no such power existed to allocate it. Acts or judgments in one state's legal system, absent something more, do not change the law in the territory of another state.

    Annexation necessarily involves major issues of international law, so an account that considers only municipal law acts is necessarily incomplete. In section II below, the Russian Federation's main argument under modern international law is considered--namely, that the separation of Crimea was an act of external self-determination by a subject "people," who exercised an international law right. Section III examines the legality of, and the legal consequences of, the use of force by which Crimea's separation was established in fact. Section IV deals with responses of other states to the annexation and the legal consequences of nonrecognition. Section V concludes.

  2. SELF-DETERMINATION AND SECESSION

    If Crimea had a right under international law to separate unilaterally from Ukraine under the circumstances existing in March 2014, then Ukraine would not have avoided its correlative obligation by adopting national law acts denying the right. (22) But this consideration is relevant only if the putative international law right exists. The national law acts of Ukraine in 2014 assumed that no such right exists.

    International law undoubtedly contains a right to self-determination. Both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, for example, provide for it. (26) The difficulty is in identifying the precise meaning of the right and its scope of application. As noted above, it is widely understood that international law contains no prohibition against secession as such. More controversial is the question whether the right to self-determination entails a right to secession--and, if so, by whom and in what circumstances.

    In respect of non-self-governing territories, self-determination entails a right on the part of the people of the territory to choose independence as their final disposition, whether or not the administering power assents. Non-self-governing territories are colonial territories, understood as such under Chapter XI of the UN Charter. The application of self-determination to non-self-governing territories was developed through the practice of the UN General Assembly, (27) including its findings that certain territories are non-self-governing in the Chapter XI sense. (28) Crimea was never treated as a non-self-governing territory, and no state or international organization ever indicated that it ought to have been. So if Crimea had a right unilaterally to choose independence, then the right would have been on some other basis.

    Remedial Secession and Human Rights in Crimea

    It has been posited that the right to self-determination outside the colonial situation entails a right to secession, provided that certain conditions exist and procedural prerequisites are met...

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