Position of the Russian Federation
MARCH 18, 2014 saw the signing of an international agreement between the Russian Federation and the Republic of Crimea on admission of the Republic of Crimea to the RF and on creation of new subjects within the Russian Federation. Under the agreement, applicable from the date of signature and in force since its ratification on March 21, 2014, Crimea is considered admitted to the Russian Federation, within which new subjects, the Republic of Crimea and the federal city of Sevastopol, are created. Persons residing as of that date on the territory of the new subjects of the Federation are recognized as Russian citizens but are entitled within a month to declare their wish to retain the citizenship they have. The legislative acts of the Russian Federation are already in operation in Crimea. Crimea’s land border with Ukraine is declared a border of the Russian Federation; and the maritime areas in the Black and Azov seas are subject to delimitation based on the principles of international law.
The treaty decision rested on the outcome of a free and voluntary referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on March 16, 2014. It showed that the peoples of Crimea voted in favor of “the reunification of Crimea with Russia as a part of the Russian Federation” and against “restoring the 1992 Constitution and the status of Crimea as a part of Ukraine.”
Actually, the legal act to the conclusion of which Russia gave its sovereign consent on March 18, 2014, concerned a proposal from another independent state, the Republic of Crimea, to conclude an international agreement on its admission to the Russian Federation. Earlier, on March 17, 2014, the President of Russia by his decree, also proceeding from the sovereign right of any state, had recognized the Republic of Crimea as a sovereign and independent state and a subject of international law, taking into account the expression of the will of the peoples of Crimea at the referendum of March 16, 2014.
This agreement complies with the provisions of Russia’s Constitution, which states: “The admission to the Russian Federation and the creation in it of a new subject shall be carried out according to the rules established by the federal constitutional law” (Art. 65.2). As per Article 4.2 of this law,1 the admission to the Russian Federation “of a foreign state or a part of it” may take place by mutual consent between Russia and that state in accordance with an international agreement. In this case, moreover, “the initiator of a proposal concerning the admission to the Russian Federation of a foreign state in the capacity of a new subject…. shall be the foreign state” (Art. 6.1). It happened that way with the Republic of Crimea.
The Crimea referendum took place with the observance of modern democratic and legal requirements, but in the context of the illegal and criminal nature of the regime in power in Kiev.
In other words, the Russian Federation, in accordance with international law, availed itself of its inalienable rights to recognize a state and conclude an international agreement, resulting by mutual consent of the parties in the appearance within it of two new subjects of the Federation, “the Republic of Crimea and the federal city of Sevastopol” (Art. 2 of the treaty).
Under international law, any state has the right to conclude an international treaty because this is beneficial to it. In addition, Russia’s signing of an international agreement with the Republic of Crimea on reunification has significant historical reasons and also stems from its concern about the safety of its compatriots in Ukraine and Crimea, as stated, in particular, in the Russian President’s address to the Federal Assembly deputies, Russian regional leaders and civil society representatives on March 18, 2014.
Legality of the Referendum in Crimea
THE ARC SUPREME COUNCIL and the Sevastopol City Council adopted a Declaration of Independence of the Autonomous Republic of Crimea and the City of Sevastopol on March 11, 2014. It references “the right of peoples to self-determination,” as well as “the confirmation by the International Court of Justice with regard to Kosovo (July 22, 2010) of the fact that unilateral declaration of independence of a part of a state does not violate international law.” The ICJ ruled that international law does not prohibit such declarations. “There is no general prohibition on the unilateral declaration of independence, arising from the practices of the Security Council. The general international law contains no applicable prohibition of declarations of independence.” The Russian President’s address voiced the same idea on March 18, 2014.
Emphasis is due on the fact that the population of Crimea has realized the right to self-determination via having, under Chapter 10 of Ukraine’s Constitution, an autonomous legal status, juridically pertaining to the rights of peoples.
The Crimea referendum took place on March 16, 2014, with the observance of modern democratic and legal requirements, but in the context of the illegal and criminal nature of the regime in power in Kiev, established after a coup amid the rampage of ultra-nationalists, extremists, and the like. References by the so-called new order – which has seized and usurped state functions in an extremist way, grossly violating the norms of the Ukrainian constitution – to the violation of the Constitution in respect of the Crimea referendum ring hollow, to say the least.
Arguably, under the illegal regime, the constitutional norms are inapplicable, because they do not have the necessary “hypothesis” – i.e. circumstances in which a norm is enforceable and acquires the meaning of a legal fact. On the contrary, the actions of the Crimean authorities under prevailing conditions in Ukraine were legitimate and democratic. The convincing results of the referendum led to declaring an independent and sovereign Republic of Crimea, in which the city of Sevastopol has received a special status.
Leaving aside the geopolitical interests and strategies of certain Western states, it is still astonishing that they assumed the position of non-recognition of the self-evident results of the Crimea referendum, which they allege was illegal and unconstitutional. On the contrary, even according to Article 138.2 of the Constitution of Ukraine, “the organizing and conducting of local referendums is within the competence of the Autonomous Republic of Crimea.” Moreover, the Constitution does not limit the possible thematic of such referendums. It should be clear to all that the legitimacy of the referendum cannot depend on the United States or European Union’s opinion, but only on the free and voluntary expression of the will of the people.
Objections from the Ukrainian Side
ON MARCH 11, 2014, the Ukrainian foreign ministry protested, stating the illegality of the Declaration of Independence adopted by the parliament of the Autonomous Republic of Crimea, which it said was “an unconstitutional, illegal and legally void decision” that “violates both Ukrainian legislation and the clauses of the international instruments supported, inter alia, by the Russian Federation.” On March 14, 2014, Alexander Turchinov, the so-called acting Ukrainian president appointed by the Supreme Rada, signed a decree suspending the declaration as not satisfying the Constitution and laws of Ukraine.
Back on March 1, 2014, the Ukrainian side at a meeting of the UN Security Council accused Russia of aggression against Ukraine. According to Ukraine’s representative to the UN, “The Russian Federation has brutally violated the basic principles of the Charter of the United Nations, obliging all Member States, inter alia, to refrain from the threat or use of force against the territorial integrity or political independence of any State.”2
On March 3, 2014, Russian Permanent Representative Vitaly Churkin showed the UNSC members the text of a letter from President of Ukraine Viktor Yanukovich to Russian President Vladimir Putin asking for military involvement. It said: “As the legitimately elected President of Ukraine, I wish to inform you that the events on the Maidan and the illegal seizure of power in Kiev have placed Ukraine on the brink of civil war. Chaos and anarchy reign throughout the country. The lives, security and rights of the people, particularly in the southeast and Crimea, are under threat. Open acts of terror and violence are being committed under the influence of Western countries. People are persecuted on political and linguistic grounds. I therefore call on President Vladimir Vladimirovich Putin of Russia to use the Russian Armed Forces to restore law and order, peace and stability and to protect the people of Ukraine. Viktor Yanukovich, March 1, 2014.”
Putin confirmed Russia’s position in his address on March 18. He noted, “Russia did not send troops into Crimea, but only strengthened its existing forces without exceeding the limit set by international agreements.”3 It did so in order to protect “the lives of Russian Federation citizens, our compatriots and the personnel of the Russian Armed Forces contingent deployed on the territory of Ukraine in accordance with the international agreement” in the face of lawlessness and threats from ultra-nationalistic extremists.
The Russian President did not directly use Russian troops abroad, although he confirmed this right pursuant to the relevant decision of the national parliament and the provisions of the Constitution of Russia.4 The charges that Russia directly used its forces before, during and after the Crimea referendum are not legally confirmed and are only unjustified attempts to prove the Russian Federation guilty of aggression or annexation – attempts expressing wishful thinking.
The Main Problem in Ukraine
THE UKRAINIAN POLITICAL CRISIS broke out in November 2013, when the Cabinet announced the suspension of the state’s EU integration. On February 22, 2014, there was a violent coup. Ukraine’s parliament, violating the agreements reached between President Viktor Yanukovich and opposition leaders, illegally changed the constitution, unlawfully removed the President, replaced the leadership of the Supreme Rada itself, as well as of the Interior and Defense Ministries, and the Security Service, and on February 27, 2014, approved a “government of national trust.”
Article 111 of the Constitution of Ukraine describes four methods of terminating a president’s term in office: resignation, poor health, death, or removal by impeachment. None of these, obviously, fits the situation with Ukrainian President Viktor Yanukovich, who, under the threat of physical liquidation from Maidan ultranationalists, had to leave the country.
There is no need to once again dwell on the negative results of Yanukovich’s activity as president, but it is clear that peaceful Ukrainian citizens came out onto the Maidan not out of good life and that lawlessness and poverty in Ukraine did not arise overnight, a situation that the extremists took advantage of.
By itself, the Maidan phenomenon never had popular support and recognition in the country, as is also reflected in the subsequent tragic events in the south and east of Ukraine. Maidan can be qualified as a form of thousands-strong civil protest to put forward their demands to the Ukrainian authorities (to sign a Ukraine-EU association agreement, to make the government and the president resign, and so on). Maidan and its slogans do not create a legal basis either in relation to recognition of the legitimate status of the new order, or in relation to their decisions and actions. Even armed clashes between Maidan participants and law enforcement units cannot legally alter the situation.
If you move to Maidan rhetoric, there is no clarity either about the historical reasons for the sharp anti-Russian and anti-Soviet charges in circumstances where we well know that in post-war times the Soviet leadership was more pro-Ukrainian than pro-Russian.
Legally, Viktor Yanukovich is still a legitimate president until re-election or voluntary resignation, while the self-proclaimed “new representatives” of state power in Ukraine have no legitimacy. The same equally holds for the Supreme Rada’s unconstitutional decision of February 22, 2014 to remove him from office. Incidentally, according to European Commission spokesperson Olivier Bailly, the EU recognized it. Especially puzzling is the lack of consistency in the actions of EU countries and representatives of the opposition. On the eve of the ousting decision (February 21), they had signed an agreement to the effect that Viktor Yanukovich would remain the President of Ukraine until re-election.
The lack of state capacity stemming from the lack of legitimate and effective representatives of the Ukrainian state does not afford the Russian authorities a legal opportunity to recognize those who have styled themselves as the “new order” in Ukraine. Therefore, this rules out any official contacts with the Ukrainian side and (even “preliminary”) bilateral consultations in accordance with Article 7 of the 1997 Russia-Ukraine Treaty of Friendship, Cooperation and Partnership. Moreover, by recognizing the illegitimate government, Western countries embark on supporting the criminal coup d’état, abetting criminal actions and grossly violating the norms of international law.
The central question in the crisis of Ukraine, provoked by the anti-constitutional Kiev coup through the armed seizure of power by extremists, involves the legitimacy of the government itself. Those who have seized power in Ukraine by armed force have committed a criminal offense, and their actions cannot have legal force for the Russian Federation.
At present, the people who have seized power in Ukraine are committing gross violations of not only democratic principles, but also of national and international law. They started with infringing upon the Constitution of Ukraine, and grossly and massively violated the rights of Ukrainian citizens, including the illegal use of force against them and the threat of discrimination on the grounds of nationality and language, support for nationalists and the uncontrolled spread of arms among extremist groups. Now they have come to the point of discriminating on the grounds of nationality, age, and gender in questions related to border crossing and the like.
Of course, Ukraine by virtue of its sovereignty, of which its people is the source, has not disappeared as a subject of international law, but there is a basic question about state legal capacity – who legally represents the state power in Kiev?
The Situation of Compatriots
ANOTHER IMPORTANT ISSUE that requires immediate action of the international community concerns the protection of the rights of the Russian-speaking population, our compatriots who, as a minimum, according to international law, must have the rights inherent to national minorities. The 1992 Law on National Minorities in Ukraine says: “To national minorities belong groups of Ukrainian citizens who are not of Ukrainian nationality, but show feelings of national self-awareness and affinity” (Art. 3). Ukraine is violating their rights in the most flagrant manner. Among these rights are the use of and instruction in the mother tongue, development of national and cultural traditions, use of national symbols, celebration of national festivities, preservation of religion, satisfaction of their needs for literature, art and media, establishment of national, cultural and educational institutions, and any other activities that are not contrary to the laws in force (Art. 6). In addition to being terrorized, our compatriots are battling for survival.
In connection with this situation, ultranationalists and Western countries have ratcheted up the Russophobe rhetoric. They have unleashed torrents of distortion or negation of the obvious facts, including the unconstitutional change of power in Ukraine, the manifestations of racism and xenophobia, murders and human rights abuses, as well as directly insulting the Russian Federation and its people. On top of it came “the betrayal the principle of rule of law” on the part of the majority in the Parliamentary Assembly of the Council of Europe (PACE), which was emphasized in the statement of the Russian delegation to PACE.
It is the principle of rule of law that serves to ensure the peaceful cooperation of states while maintaining the balance of their interests, as well as to guarantee the stability of the international community as a whole.
Possible Actions of the Russian Federation
THE RUSSIAN STATE systematically reiterates its adherence to international law, compliance with which meets its national interests, and acknowledges its desire and responsibility to be “a leader in protecting international law, seeking to promote respect for national sovereignty and the independence and identity of peoples.”5
The Russian Foreign Policy Concept of February 12, 2013 rests on the principles of international law* and aims at the consolidation of international legality. A state policy for asserting the rule of law in international relations and for complying in good faith with international legal obligations occupies a special place in the doctrine. International law has evolved in such a way that all its basic principles are applicable simultaneously and in any circumstances. In this way, we should also consider the situation now prevailing in Ukraine.
The Russian state cares for its citizens and compatriots living abroad and more specifically in Ukraine. However, based on the above principles of international law, despite the calls and accusations from different quarters, Russia’s leadership does not intend to unlawfully bring in and use its forces on the territory of the neighbor state. Significantly, the provision of the treaty between Russia and Ukraine that “members of the military units may wear clothes prescribed for them by Russian Armed Forces regulations outside where they are stationed”6 ceased to operate on March 28, 2014.
To maintain international peace and security, only the international community through the UN Security Council may take appropriate measures “for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace” (Art. 1.1 of the UN Charter). This is also applicable in situations of gross and/or massive human rights violations. We can state that the existing situation in Ukraine bears signs of both mentioned threats, but the UNSC has not yet reached a common understanding of its members regarding the causes and prospects for the current situation over there.
The Rebellious Southeast of Ukraine
THE MAIN CONFLICT in Ukraine is currently developing along the deep contradictions between the so-called “new Ukrainian order” and the southern and eastern regions of the state, which demand greater regional independence in the form of federation. Of course, the federation may lead to a reallocation of administrative, financial and other resources within the state, but it will help to save the state itself. Otherwise, in the view of many analysts, Ukraine faces a civil war and a possible collapse of the state.
It is important not to forget that the revolt of the population in the southeastern part of Ukraine against the illegal new order arose as a protest against, and as a consequence of, the forcible coup d’état in Kiev.
This occurred in conditions of a fierce confrontation between extremists and nationalists, on one side, and the legitimate authorities, on the other. Under the cover of Maidan slogans, the clashes resulted in hundreds of casualties.
Playing with causes and effects, and not noticing its unconstitutional status, the new order shifts responsibility for the evolving crisis onto the population of southeastern Ukraine, accusing them of terrorism, threats to the state’s territorial integrity, and the like. It ignores their demands, and even criminally uses regular armed forces against protesting civilians under the pretext of an “anti-terror operation.”
A continued standoff, with high probability, can lead to the international community raising the question of recognizing peaceful protesters in the southeastern part of Ukraine as an “insurgent party.” Under international law, the insurgent party is taken to mean resistance groups, rebels, civil or national liberation fighters that control a certain territory in their state, are engaged in an (armed) fight against dictatorial, unconstitutional and other undemocratic regimes or for self-determination of their people, and have gained ad hoc legal recognition from other subjects of international law. Importantly, despite the limited scope of rights compared to the state status of a subject of international law, the international legal status of insurgents gives them the legal right to negotiate as a party. They can thereby establish direct contacts with the states recognizing them in order to obtain help and support from abroad and, in case of defeat, to get political asylum and move to the territory of another state.
It seems that neither the parties to the burgeoning conflict within the state nor their Western sponsors, nor, especially, Russia are interested in a situation developing according to the above scenario. This conclusion finds confirmation in the results of the four-party crisis talks between Ukraine, the EU, the U.S., and Russia in Geneva on April 17, 2014. Russia had agreed to participate in the meeting without preconditions, though it said that the talks did not imply its recognition of the “new Ukrainian authorities” as legitimate.
Document of the Quadripartite Talks in Geneva
IT IS NOTEWORTHY that the negotiators in Geneva failed to work out a joint document addressing all the parties in conflict, especially the illegal armed groups of the new order, ultranationalists and extremists of all stripes, etc.
As Russian Foreign Minister Sergey Lavrov emphasized, “illegal armed groups in all regions of the country have to disarm; all illegally seized buildings have to be returned to their legitimate owners; all illegally occupied squares and other public places in the cities of Ukraine have to be vacated. There has to be amnesty for all protesters, with the exception of those found guilty of capital crimes. The OSCE mission should play a leading role in helping the Ukrainians themselves – the authorities in Kiev and local communities in the regions – implement measures to de-escalate the situation. Russia, the U.S. and the EU are already involved in this process, and we will be facilitating the work of this mission to maintain dialogue between the parties.”
The minister pointed out the need for “immediate start of a broad national dialogue under the constitutional framework, which has to be inclusive, transparent and accountable,” as well as for “recognition on the part of those involved of the indisputable fact that the Ukrainians themselves must resolve this crisis.” At the same time, the Geneva document omits any mention of manifestations of terrorism, referring to which the new order was justifying its military actions against peaceful Ukrainian citizens in the southeast of the state.
RUSSIA cannot remain indifferent to the tragic events in the neighboring state, to the present and future of our compatriots in Ukraine, and is making all possible diplomatic and political efforts in this respect. Under international law, however, there is an obvious need for a UN mandate approving direct Russian involvement to influence the situation. If we think about the possibilities outside the international legal field, based on the historical experience of reconciliation of the conflicting parties, detachments of volunteers come to mind.
The events of the Ukrainian crisis generate concern among many states of the international community. In unconstitutional conditions, a solution to the crisis is arguably only possible within the framework of Ukraine itself by finding a mutually acceptable political and territorial arrangement between the opposing factions that represent different regions of the state, through a reconciling national plebiscite. A negative development of events will primarily be due to the suppression of one party in conflict by the other party, which will undoubtedly result in gross and massive human rights abuses as well as human casualties. In these circumstances, the world community as represented by the UNSC will have every reason to take decision to use measures provided by the United Nations Charter to stop intra-state bloodshed.
1 Federal’nyi konstitutsionnyi zakon Rossiyskoi Federatsiyi № 6-FKZ ot 17.12.2001 “O poryadke prinyatiya v Rossiyskuyu Federatsiyu i obrazovaniya v eyo sostave novogo sub-yekta Rossiyskoi Federatsiyi.”
2 Stenogramma zasedaniya SB OON № 7124 ot 1 marta 2014 g. // Dokument OON: S/PV 7124-http://daccess-dds-ny.un.org/doc/UNDOC/GEN/N14/250/32/PDF/N1425032.pdf? OpenElement
3 Soglasheniye mezhdu Ukrainoi i Rossiyskoi Federatsiyei po voprosam prebyvaniya Chernomorskogo flota Rossiyskoi Federatsiyi na territoriyi Ukrainy ot 21 apreliya 2010 g.; vklyuchaya Soglasheniye mezhdu Ukrainoi i Rossiyskoi Federatsiyei o statuse i usloviyakh prebyvaniya Chernomorskogo flota Rossiyskoi Federatsiyi na territoriyi Ukrainy ot 28 maya 1997 g.; Soglasheniye mezhdu Ukrainoi i Rossiyskoi Federatsiyei o parametrakh razdela Chernomorskogo flota ot 28 maya 1997 g. i Soglasheniye mezhdu Praviltel’stvom Ukrainy i Praviltel’stvom Rossiyskoi Federatsiyi o vzaimoraschetakh, svyazannykh s razdelom Chernomorskogo flota i prebyvaniyem Chernomorskogo flota Rossiyskoi Federatsiyi na territoriyi Ukrainy ot 28 maya 1997 g.
4 Postanovleniye Soveta Federatsiyi Federal’nogo Sobraniya Rossiyskoi FederatsiyiNe 48-SF ot 01.03.2014 “Ob ispol’zovaniyi Vooruzhennykh sil RF na territoriyi Ukrainy.”
5 Poslaniye Prezidenta Rossiyskoi Federatsiyi Federal’nomu Sobraniyu Rossiyskoi Federatsiyi ot 12.12.2013.
6 Statya 11 Soglasheniya mezhdu Ukrainoi i Rossiyskoi Federatsiyei o statuse i usloviyakh prebyvaniya Chernomorskogo flota Rossiyskoi Federatsiyi na territoriyi Ukrainy ot 28 maya 1997 g. FZ RF № 38-FZ ot 04.02.2014 “O prekrashcheniyi deistviya soglasheniy, kasayushchikhsya prebyvaniya Chernomorskogo flota Rossiyskoi Federatsiyi na territoriyi Ukrainy.