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Murky law in Crimea land grab


Ukraine and Crimea street signs against ominous cloudy skyWhile pro-Russian and pro-Western media have been spinning the Crimea crisis as either a heroic exercise in righting a past wrong or a land grab by a new Hitler, the legal position is far from straightforward.

Crimea was once an independent Tatar khanate, captured by Russia in the 18th century. The Tatars were deported by Stalin as punishment for alleged collaboration with the Nazis — although some fought on either side in World War II. In 1954, Nikita Khruschev (then Soviet leader), gifted the territory to Ukraine. The decision was of no practical consequence at the time since both Russia and Ukraine were simply states within the USSR. There was, however, no public (or even parliamentary) consultation.

In the Gorbachev era, many Tatars returned. They now form about 12 per cent of the population (about 60 per cent are Russian, the remainder Ukrainians, Bulgarians etc.). Strategically, Crimea is important for its natural resources and its ice-free, deepwater port of Sevastopol, a major base of Russia's powerful Black Sea Fleet.

The international law claims are as complex as the history.

The US and its allies are right to note that, since the Kellogg-Briand Pact of 1928 (later embodied in the UN Charter), borders may no longer be changed by force.

The Russian answer (equally true) is that it is not clear that Ukraine ever validly acquired title to Crimea — it seems the peninsula's status was papered over after the USSR's dissolution. A number of declarations of autonomy, clashes and de facto compromises in the following five years left Ukraine holding the territory and most naval facilities, but gave Russia the bulk of the fleet anchored there, a lease of the port of Sevastopol and the right to station up to 25,000 troops in Crimea.

In addition, Russia claims to be defending its nationals by intervening in the dispute. This, too, is murky. While defence of nationals is a kind of self-defence (and a traditional justification for use of force), it is not clear that Russians in Crimea were endangered. Certainly, no direct threats had been made against them. On the other hand, a pro-Russian Ukranian government had just been ousted by force, and the new government's first act (later vetoed by the new president) was to strip Russian of its status as regional language.

All of this seems to have created a great deal of mistrust among ethnic Russians as to the new government's intentions, doubtless inflamed by Russia for its own ends.

NATO correctly says Crimea's defection runs counter to Ukraine's constitution. Pro-Russian Crimeans retort that the current Ukrainian government is unconstitutional, as it came to power in an unconstitutional coup. The last president (incompetent and corrupt though he may have been) was democratically elected and was only impeached by a rump of the Verkhovnaya Rada (Ukranian parliament) operating without the necessary quorum. Both an autonomous Crimea and the new Ukrainian government therefore seem equally unconstitutional.

The next difficulty is posed by that very slippery concept: self-determination. While, in general, international lawyers agree that peoples have the right to self-determination, it is not clear what that means. Does everyone have the right to their own state? Probably not: national sovereignty is fundamental to international law.

Nevertheless, the rights to cultural life and language do enjoy broad protection. Thus it was that in 1999, NATO forces cited the Kosovar Albanians' right to self-determination and their persecution by Serbia as the reason for bombing Serbia. In 2008 (in violation of UN Security Council Resolution 1244 which recognised an autonomous Kosovo within Serbia), most NATO countries recognised Kosovo's declaration of independence.

While NATO claims Kosovo was a special case due to the violence of the breakup of the former Yugoslavia, Russia sees it as a precedent in favour of intervention. If Crimea's referendum was invalidated by the presence of thinly-disguised Russian troops, the Kosovar declaration of independence (accepted by the West) seems equally tainted: after all, it took place without a referendum, following a sustained NATO bombing campaign (with only retrospective UN authority) and during Kosovo's subsequent occupation by a NATO-led force.

In the final analysis, the international law position is debatable and there is more than enough hypocrisy to go around. The Crimean issue is perhaps best analysed not through the prism of international law but rather that of age-old great power politics.

Justin Glyn headshotJustin Glyn SJ is a student of philosophy and theology in Melbourne who holds a PhD in international and administrative law.

Crimea street sign image from Shutterstock 

Topic tags: Justin Glyn, Crimea, Russia, Ukraine



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Existing comments

The best sanction against Russia is economic isolation -- and the market will take care of that on its own. Anachronistic fools. Just when it seemed we could do business, they hurried up and scared everybody away again.

kafantaris | 19 March 2014  

Justin's article is a neat summary of the challenges for the West, in Russia's annexation of Crimea. He correctly reminds us of how NATO not only fully supported the wishes of the people of Kosovo to be fully independent of Serbia, but actually participated militarily in ensuring that independence, in breach of the Security Council Resolution 1244. Without accepting the claimed 96% approval in the Crimean referendum to request re-incorporation into the Russian Federation, it is easy to believe the referendum does reflect the wishes of the majority in Crimea. However, for the West to not respond to that incorporation would be interpreted by Russia as meek acceptance. Meek acceptance by the West would put all of eastern Ukraine, the Baltic States and Moldova at risk of similar incorporation. Indeed, in a parallel situation, the speaker of a separatist parliament in Moldova has already asked President Putin to similarly 're-incorporate' that region of Moldova. Like the conclusion of Justin's article, I find it difficult to formulate a justifiable firm stance on this question.

Ian Fraser | 20 March 2014  

Congratulations Eureka Street on publishing an analytic and non partisan article

Peter | 21 March 2014  

Justin--Thoughtful and clear analysis .Crimea is soaked with Russian blood.The battle with the nazi forces lasted nearly twelve months.Putin is not going to back down.

Peter Clare M | 21 March 2014  

I believe in freedom for oppressed and colonised peoples, and I pray regularly that the West Papuans, the Tibetans, the Uighurs, the Kashmiris and the Kurds can have freedom in their own countries. (And I could add others, of course.) But not when self-determination means more plower to Putin. Maybe I should add the Tatars to my list.

Gavan | 21 March 2014  

In any discussion of the complex legal and political history of Crimea, we should not forget Yuri Meshkov. In February 1994 Meshkov, standing on a ticket of re-unification with Russia, was elected President of the (Ukrainian) autonomous republic of Crimea. He received 73% of the vote. His attempts to obtain Yeltsin's support for Russian annexation of Crimea were rejected but Meshkov, with popular support, persisted in attempts to Russify the administration of Crimea. In early 1995 the Ukrainian Rada in Kiev sought to cut the impasse by scrapped the 1992 Crimean Constitution, and on 17 March 1995 the Ukrainian president, Leonid Kuchma, signed a decree abolishing the post of Crimean president. Meshkov went into exile, working as an academic at Moscow University. In July 2011 Meshkov returned to Crimea, advocating a referendum on restoring the 1992 Constitution, which would have effectively made Crimea a sovereign state. He was promptly deported by the Ukrainian authorities and banned from re-entering the country for five years. We should note that the recent re-unification referendum in Crimea was conducted a day before the anniversary of Kuchma’s 1995 decree. The significance of that date would not have been lost on the voters.

H.A. Willis | 26 March 2014  

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