The Political Statues of Crimea according to International Law (ancien devoir de droit international)

 The question of the political belonging of Crimea is a very complex one and an especially polemical one, being at the heart of the major international dispute of our time between Russia and Ukraine. 

In 2014, in the context of massive protest against Russia relation to Ukraine, to which Crimea was de facto and de jure reattached at the time, Russia officially to protect minority rights of Russian speaking population in this historically Russian region annexed Crimea via referendum independently of international law and irrespectively of Ukraine given borders.

By this Russia now claims that Crimea, which had previously declared its independence unilaterally, to be rightfully part of the Russian Federation. On its side, which is backed by most of the International Community, Ukraine claims that Russia has violated the integrity of its territory and that Crimea, despite its linguistic and historic link to Russia, is undoubtedly Ukrainian.

The ethnohistorical aspect of this immensely important question has been widely discussed: Crimea has been part of a Russian state since the XVIII Century, having been taken by the Russian Empire from Ottoman Domination. Since this time the majority population has been Russian, with Ukrainians being the most numerous minoritie in the peninsula along with the famous Crimean's Tatar. 

During the Soviet Revolution an autonomous republic had been established and had then joined the Russian Soviet Republic as an oblast, a territorial subdivision, which was part of the Soviet Union as was the Ukrainian Soviet Republic. After the Second World War (or the Great Patriotic War as it is known in ex-USSR) in 1954 Nikita Khrushchev by decree give to the Ukrainian Soviet Republic the peninsula to celebrate its accomplishment in the war, for the first time Crimea was reattached not to Russia but to Ukraine but was still on the same supra political entity, the USSR, as was Russia. 

When the Soviet Union had fallen in 1991 and the diverse Republic part of the Union had taken their independence Crimea was still within the border of Ukraine and was for the first time politically detached from Moscow until the 2014 annexation. 

During the time during which Crimea was part of Ukraine, multiple elections and referendum had take place regarding autonomy statues and the position of Crimea inside of Ukraine was at multiple time protest by locals. Culturally and historically it is clear that Crimea is linked more closely to Russia and Russian culture, despite being itself a cultural divers place and being reattached to the continent via Ukraine. 

The importance of Crimea for Russia and its international projection was such that until 2014 Russia had a legal access to the Crimean port given by Ukraine. Crimea had always been important to Russia and its relation to Ukraine was not the most easy going. 

But beyond these well known historical and cultural considerations the legal status of Crimea is much less clear and doesn’t stir totally to the Russian argument.

According to Russia the annexation was just and lawful because prior to that Crimea was an independent via its referendum of 2014. According to Ukraine, backed by the international community, this annexation is a pure violation of its territorial integrity and of international law and the referendum under which it is founded is far from being legitimate in regard to international law.

First of all we will examine argument given by Russia for the concordance of the annexation of Ukraine (and most importantly the independence referendum that permitted it in the first place) : 

-The two 1991 referendums and the desire for autonomy and independence. During the time of the fall of USSR many referendums about independence and political statues took place all across the old territory of the union. First of All during the referendum concerning the New Treaty Union during which Crimea voted to be an independent republic inside a new Union akin to the Soviet Union. By this choice Crimea as shown in an internationally recognised referendum its desire to not be part of Ukraine. Then during the referendum of independence of Ukraine Crimea voted against leaving the Soviet Union and was the only region of Ukraine to have such a rejection of the independence process. 

If Crimea stayed in Ukraine, it is because of heavy intervention of the Ukrainian government in the elaboration of the Crimean constitution. In 1994 Crimea voted for three referendums on autonomy and on the access of Russian double citizenship for its inhabitant but Ukraine declared these referendums illegal and made move to unroll it and remove the president of Crimea, if at the time Russia deemed these actions as being internal affair of Ukraine it can also sustain the idea of Crimea having shown legal means of separating itself from Ukraine. The sudden fall of the Ukrainian government, that was not according to Russia in accordance with international law, has permitted Crimea to regain its long-awaited freedom from Ukraine and since there wasn’t a government standing in Ukraine the referendum was legal according to Russia.

-According to Russia the Right of Minority of the Russian speaking community of Ukraine was in danger. The unconstitutionalisation of the Ukrainian 2012 language policy that was inspired to protect Russian language and give it a more official position was one of the main causes of the hostility of Russia against Ukraine that led to the declaration of independence of Crimea and it’s then annexation but also to the rise of separatists in the east of Ukraine particularly in Donbas where most of the Russian speaking population lived. The existence of Russian culture in this region to the point of view of Russia had been threatened by Ukraine and its policies of hostility against the officiality of Russian language justifying their separation with the rest of Ukraine to defend their identity as a distinct linguistic and cultural entities. The fall of the government in Ukraine had worsened such a threat especially because it was accompanied by protests that were explicitly anti-Russian and very hostile to minority rights of Russian speaking people.

But we could also easily see that the declaration of independence of Crimea and the then annexation isn’t in accord with international law: 

-Jus Cogens and the UN Charter. According to the UN Charter, a state couldn’t see change in its frontier and its territorial integrity must not be modified by force. The respect of a given frontier is one of the most solid international laws, it is considered jus cogens, according to the Vienna Convention, and by such it could not be frowned upon whichever the conditions or the reason behind such violation. By annexing part of a territory that was universally recognised as being Ukrainian, even by Russia itself, and by such by modifying with the help of force frontiers of Ukraine, one could claim that Russia had violated jus cogens. 

- The rights of auto determination and independence are strictly framed by international law in UN Charter article 55 and in the UN Resolution 1514 that gives specific conditions and even a special list of territories and peoples that give the condition under which a referendum of auto determination is possible. According to this resolution these conditions are that for a people or a territory to hold unilaterally a referendum for independence it must be a country under colonial occupation or subject to segregation or apartheid regime which was not the case of Crimea nor the Russian speaking community at large inside of Ukraine even if tension could had rose between community and a process of Ukrainization could have jeopardize the place of Russian language and culture inside of Ukraine, southing that the UN and International Law, even if that mean not respecting the rights of minority, is not synonymous with genocide or apartheid, albeit being cultural erasure in some way. A Territory could accede to independence via referendum even if not subjugated to segregation or part of the list of colonised country if the parent state of the country that desire independence agrees to holding such consultation, as for example the failed Scottish independence referendum, but regarding Crimea case it was certainly not agree and certainly not under this condition.

The 1994 Budapest Memorandum and 1999 Russo-Ukrainian Friendship Treaty. Until very recently Russia never contests the Ukrainian statues of Crimea. If in the wake of the dislocation of USSR, what was still at the time the Socialist Soviet Republic of Russia tried to contest the Crimean 1954 leg to the Soviet Supreme of Ukraine, but the validation of the fall of the communist regime abandon these claims for Russia. In fact, the new Federation of Russia signed numerous treaty that recognized the frontier of Ukraine, including Crimea. 

The first of these treaties was the 1994 Budapest Memorandum whose primary subject was of permitting the denuclearization of ex-soviet state that were now independent, including Ukraine, but beyond that this memorandum included a recognition of the frontiers of Ukraine and a promise to not threaten Ukraine (and the other countries) expect for self-defence as according to the UN Charter. The Second treaty passed by Russia that recognized the Ukrainian frontier including Crimea, and the also was a plea to repeat the claim of these frontiers was the 1999 friendship treaty that was terminated in 2019 unilaterally by Ukraine but after the annexation, so while Russia launched the annexation of Crimea this treaty was in vigour and by such Russia annexed a part of a territory of a country it have previously accepted the frontiers without question or revendication.

The participation of Crimea in the Ukrainian political system prior to the annexation. Crimea has participated in the political life of Ukraine as a legitimate province of the country. In fact, Crimea was given representation in Ukrainian parliament (sending their representatives with generally pro-Russian sensibility) and had even hold internal referendums on autonomy

The Statue of Autonomy of Crimea inside of Ukraine. Crimea was already a very autonomous region inside of Ukraine, if the Constitution stipulated that Crimea was part of Ukraine Crimea stayed a very peculiar region with large competency regarding its own administration and destiny, including rights to modify its constitution (that had to be accepted by the Ukrainian Rada nether less). 

The 1998 Constitution of Ukraine was not directly written by Crimean authority but was heavily amended by Ukraine to prevent independence. But it is nonetheless important to say that prior to 1992 the draft for a Crimean constitution did not include allegiance to Ukraine and that these mention were the result of Ukrainian influence, as exemplified by the tentative for Crimea to elect its own president in 1994, something that the Russian nonetheless at the time deemed an internal affair of Ukraine despite some opposition in the Russian parliament and political sphere that called to help the Russian there.

Condemnation by the international Community. The action of annexation of Crimea was widely criticised by the international community, in fact it was denounced with the resolution of the UN General Assembly 68/262. Frontier needs to be recognized by the international community and this resolution shows the lack of support to Russia for this frontier modification to the defence of Ukraine territorial integrity.

-The mere fact that the referendum of independence of Crimea of 2014 took place with a heavy presence of foreign troops, with unmarked uniforms but whome we can easily guess as being Russian soldiers, invalided the referendum as being strictly independent and devoid of foreign influence. An international arbitrated Referendum could have been eventually deemed valid but the actual referendum took place with foreign troops that could have influenced the vote and by such is according to international law suspect. As we have already seen, a frontier couldn’t be modified by the means of force according to the UN Charter and so this military presence had ruined the case of the legitimacy of this referendum in the eyes of international law. 

Under both states Crimea as a statute of an autonomous Republic with large decentralised power and Sebastopol having also a special autonomous statue. Whether it legally belongs to Ukraine or Russia, Crimea de jure is under a constitution that accord to it large degree of liberty and protection of its cultural specificities. 

However, de facto, we can wonder to what extent these rights could be upheld by each of the two states, and by such respect the international obligation that goes with the claim of legitimacy on the control of the peninsula and the reattachment of this autonomous Republic. We already see how according to Russia the policy of Ukrainization was a threat to Russian identity in Ukraine and in Crimea and a violation of their minority right as exemplify by ban on Russian speaking media but also by the political ideology of the Euromaidan Protest that was the cause that Russia give to the annexation of Crimea. But one may wonder how in the context of the war between Russia and Ukraine and history of Russia how the Ukrainian and Crimean Tatar minority rights in Russian Crimea could be upheld.

In conclusion in regards to International Law it is safe to assume that the annexation of Crimea wasn’t legal and by such the lawful legal belonging of Crimean is to Ukraine justifying the recognition of it’s statue as an autonomous region in Ukraine by most of the international community despite the annexation and the long historical link share between the peninsula and Russia. The Chaos of the disintegration of the USSR has created a frontier that, despite being legal in regards to international law, can prove problematic in regard to the rights of people belonging to their state of choice, people that had been linked together had been in this new moment separated by new frontiers. Russia, being the former empire controlling all of the territory of all USSR had a population that had settled in all these territories. During the time of USSR, all the people being unified under an unit state so the right and place of minority russians were never in question, in fact being Russian could sometimes be an advantage compared to other nationality (in the soviet meaning of the term) despite the various affirmative action that taken place, since Russian was the language of the union and the majority of institution of power was in Russia. When these unions dislocated the Russian population stayed but didn’t have the same place in their newly independent country of nationality. In the context of tension between Russia and the West, these questions became more tense and had served as geopolitical justification to secure a strategic position. 

Crimea was an absolute strategic priority for Russia and these historical, ethnic and political justification could be above in the priorities of the russians compared to the much more difficult to justify international law that those not permitted to annex this strategic peninsula. It reveals an unfortunate truth about international law: it exists so long as its violation becomes strategic and easy. 

If the historical argument could back Russian claims for the annexation of Crimea, in regard to the respect of international law the legal status of this annexation is not at all legal and justified. According to international law, we can say that officially the status of Crimea is not one of an autonomous republic part of the Russian Federation but a Ukrainian territory under illegal occupation by the Russian state by the means of an unlawful referendum that cannot complete the requirement needed by international law, despite the historicity of Russian Crimean. An accord on the political status of Crimea could have been found if the war had not been waged in Donbas and must of all the 2022 invasion that had galvanised Ukraine to take Crimea back which will be lawful in regard to international law. 

If Russia lacks the legal justification to its control of Ukraine, the Russian statue is back by its military power, a confirmation that « political power grows out of the barrel of a gun » in disrespect of international law that tries to alleviate this fact. This Crimean question unfortunately for those who crave for peace and stability around the globe show that even today international law isn’t the alpha and omega of international conflict resolution.

Legal Sources :

Vienna Convention : 

https://treaties.un.org/doc/Publication/UNTS/Volume%201155/volume-1155-I-18232-French.pdf

UN Charter :

https://www.un.org/fr/about-us/un-charter/full-text

Budapest Memorandum :

https://treaties.un.org/doc/Publication/UNTS/Volume%203007/Part/volume-3007-I-52241.pdf

Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation. Kiev, 31 May 1997 :

https://treaties.un.org/doc/Publication/UNTS/Volume%203007/Part/volume-3007-I-52240.pdf

Constitution of Ukraine :

https://web.archive.org/web/20140312144006/http://www.rada.crimea.ua/en/bases-of-activity/konstituciya-ARK

United Nations General Assembly Resolution 1514:

https://www.ohchr.org/en/instruments-mechanisms/instruments/declaration-granting-independence-colonial-countries-and-peoples

United Nations General Assembly Resolution 68/262 :

https://documents-dds-ny.un.org/doc/UNDOC/GEN/N13/455/18/PDF/N1345518.pdf?OpenElement