UK-Russian Symposium on Jurisprudence and SovereigntyManchester, UK 16th & 17th March 2016

Russia’s annexation of Crimea: sovereignty, legal justifications, the Constitutional Court, and Pandora’s

box

Bill Bowring, Birkbeck College, University of London

The Crimean Khanate in 1600

Crimea

• Crimea was a capital of the Golden Horde in the 13th century.

• From time to time under the protection of the Ottoman Empire, the Crimean Khanate ruled the area for more than 300 years

• Catherine the Great annexed the peninsula in 1783

• A vassal state of the Ottoman Empire since 1478, Crimea evolved into several political entities after the Russo-Turkish Treaty in 1774.

Crimea

• As a consequence of the Russian Revolution, Crimea changed hands and officially took on several new names over this three-year period.

Crimea

• After the reassertion of Soviet control in late 1920, Crimea became an autonomous Soviet Socialist Republic

• The territory was annexed by Nazi Germany in 1941, returning to Russian control in 1945..

Deportation of the Crimean Tatars 18-22 May 1944• The forcible deportation of the Crimean Tatars from

Crimea was ordered by Stalin as a form of collective punishment for alleged collaboration with the Nazis during 1942-1943. Known as the Sürgünlik in Crimean Tatar.

A total of more than 230,000 people were deported, mostly to the Uzbek SSR, the entire Crimean Tatar population, about a fifth of the total population of Crimea, as well as smaller numbers of ethnic Greeks and Bulgarians. More than 100,000 died from starvation or disease as a direct result of deportation.

• On November 12, 2015 the parliament of Ukraine adopted a resolution recognizing the event as a genocide and declared 18 May as a Day of Remembrance for the victims of Crimean Tatar genocide.

Crimea• On February 5, 1954 The

Council of Ministers of the Russian Federation adopted a resolution "On the transfer of the Crimean region from the RSFSR to the UkSSR."

• The reason was their territorial proximity, community of economy and close economic and cultural ties between Ukraine and the Crimea.

• The transfer was described as a gift to commemorate the 300th anniversary of the Treaty of Pereyaslav in 1654 when the Cossack Rada decided to unify with Muscovy, putting in place the eventual acquisition of Ukraine by Russia

• Crimea’s administrative status was upgraded on the eve of the dissolution of the U.S.S.R.

Crimea

• With the breakup of the Soviet Union in 1991, Crimea became part of an independent Ukraine.

• Crimea's communist authorities proclaimed self-government in 1992, which ultimately led to the territory being granted expanded autonomous rights by Kiev, under the Ukrainian Constitution of 1996.

Second annexation by Russia

• Crimea was annexed by the Russian Federation on 18 March 2014.• On 23 February pro-Russian demonstrations were held in the

Crimean city of Sevastopol. On 27 February masked Russian troops without insignias took over the Supreme Council of Crimea, and captured strategic sites across Crimea. A pro-Russian government led by Aksyonov was installed in Crimea

• A referendum was held on March 16, 2014, by the legislature of the Autonomous Republic of Crimea as well as by the local government of Sevastopol, both subdivisions of Ukraine at the time.

• The referendum asked the people of Crimea whether they wanted to join Russia as a federal subject, or if they wanted to restore the 1992 Crimean constitution and Crimea's status as a part of Ukraine.

• The available choices did not include keeping the status quo of Crimea and Sevastopol as they were at the time the referendum was held.

"Little green men" in Simferopol, 2 March 2014

Second annexation by Russia• Ukraine considers the annexation to be a blatant violation of

international law and agreements by Russia, including • The Agreement on Establishing the Commonwealth of

Independent States in 1991, • Helsinki Accords, • The Treaty on the Non-Proliferation of Nuclear Weapons of 1994

and • Treaty on friendship, cooperation and partnership between the

Russian Federation and Ukraine. • It has been condemned as an illegal annexation of Ukrainian territory,

in violation of the 1994 Budapest Memorandum on sovereignty and territorial integrity of Ukraine, signed by Russia.

• The other members of the then G8 suspended Russia from the group, and introduced the first round of sanctions.

Second annexation by Russia

• On 27 March 2014 the UNGA also rejected the vote and annexation, adopting a non-binding resolution affirming the "territorial integrity of Ukraine within its internationally recognised borders".

• The resolution also "[u]nderscores that the referendum [in Crimea], having no validity, cannot form the basis for any alteration of the status of [Crimea].“

• The resolution draws attention to the obligation of all States and international organizations not to recognize or to imply the recognition of Russia's annexation. 100 Votes in Favour, 11 against, 58 Abstentions

• Veto – Security Council Resolution

General Reshetnikov (SVR and RISI) on Ukraine, 3 February 2016 in Argumenty i Fakti

We are living through the fruits of the bomb, of which V. Putin spoke, which Lenin placed under our State. The Soviet authorities created on sacred Russian territory a geopolitical monster, Ukraine.This took place through the special services of the Kaiser’s Germany and the Bolsheviks.

• They created Ukraine, and cut away from Russia the Russian city of Kharkov (founded by Alexei Mikhailovich), Donetsk (founded by Tsar Aleksander II), Nikolaev, Dnepropetrovsk and Odessa (all three founded by the Empress Catherine II. And Khrushchev also gave away Crimea.

• What is Ukraine for? It was needed for one purpose – to become anti-Russian. And until our Little Russian brothers cease to be zombified monsters, their new owners the USA will be ready to fight to the last Ukrainian.

Text published on Russian embassy web-sites, UNESCO, etcSummary

• The declaration of independence by the Republic of Crimea and its accession to the Russian Federation was a lawful form of the realisation by the people of Crimea of self-determination, when a coup d’etat using force had taken place in Ukraine

• Such a form of the realisation of self-determination was the only possible means of defence of the vital living interests of the people of Crimea in the face of the orgy of radical nationalist elements, which have the most powerful effect on decision-taking in the country, which in its turn leads to the ignoring of the interests of the Ukrainian regions and the Russian-speaking population

• This position is based on international law and to the greatest extent complies with it

The Russian Legal Justification

• What is a “nation”?; What is a “people”?; Why is there no definition of a “people” in international law?

• Birth of the concept – as a political demand – 1914 Vladimir Lenin – The Right of Nations to Self-Determination

• “Consequently, if we want to grasp the meaning of self-determination of nations, not by juggling with legal definitions, or “inventing” abstract definitions, but by examining the historico-economic conditions of the national movements, we must inevitably reach the conclusion that the self-determination of nations means the political separation of these nations from alien national bodies, and the formation of an independent national state.”

• 1917 - Vladimir Lenin - Decree of Peace – following the Bolshevik Revolution

• “If any nation whatsoever is retained within the boundaries of a given state by coercion, and despite its expressed desire it is not granted the right by a free vote … with the complete withdrawal of the forces of the annexing or generally more powerful nation, to decide without the slightest coercion the question of the form of state existence of this nation, then it is an annexation…”

Self-Determination

• 1960 - UNGA Resolution 1514(XV) - the Declaration on the Granting of Independence to Colonial Countries and Peoples

1. The subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights, is contrary to the Charter of the United Nations and is an impediment to the promotion of world peace and cooperation.2. All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

• Adopted by 89 votes to 0, with 9 abstentions (Australia, Belgium, Dominican republic, France, Portugal, Spain, Union of South Africa, UK, US)

• 1966 – the two Covenants – ICCPR and ICESCR – Common Article 1• Triumph of Soviet diplomacy?

Self-Determination

• 1970 UNGA Resolution 2625(XXV) - the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations

• This Resolution was adopted without dissent on the 25th anniversary of the UN Charter – it recognises the rights of “all peoples” to SD

• but - Paragraph 7 - affirms territorial integrity of “… States conducting themselves in compliance with the principle of equal rights and self-determination of peoples … and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour..”

• What about the former USSR? Did all its components have the right to establish new states?

Self-Determination

• Russia throughout the document refer to “the people of Crimea” and “the Crimean people”

• No where do they explain what this might be• In my opinion, there are three competing and intersecting claims for self-

determination in Crimea – Russian, Ukrainian, and Crimean Tatar• Only the Crimean Tatar people have the right to self-determination – since

1991 they campaigned for Ukraine to ratify International Labour Organisation Convention 169 of 1989 Convention concerning Indigenous and Tribal Peoples in Independent Countries (Entry into force: 05 Sep 1991)

1. This Convention applies to:(b) peoples in independent countries who are regarded as indigenous on account of their descent from the populations which inhabited the country, or a geographical region to which the country belongs, at the time of conquest or colonisation or the establishment of present state boundaries and who, irrespective of their legal status, retain some or all of their own social, economic, cultural and political institutions.

Back to the Russian justification

• The situation in Crimea was such that the right to self-determination may be realised by way of secession, despite the close relationship of the principles of self-determination and territorial integrity.

• Usually a claim to self-determination is satisfied by way of autonomy. There are three exceptions.

• Colonies• Foreign occupation• “The most extreme situations”

• The present government in Ukraine is characterised as an “illegal power which does not represent the whole of the Ukrainian people”.

• However…• Russia has more than 150 ethnicities, and the Tatars (who ruled Russia

for 300 years) are 5 ½ million strong, with their own highly autonomous republic of Tatarstan, President, additional state language. And the Buryats, Circassians, Bashkirs, Chuvash, Chechens…

Back to the Russian justification

• Accordance with international law of the unilateral declaration of independence in respect of Kosovo: International Court of Justice Advisory Opinion of 22 July 2010

• By ten votes to four, Is of the opinion that the declaration of independence of Kosovo adopted on 17 February 2008 did not violate international law.

• IN FAVOUR : President Owada; Judges Al-Khasawneh, Buergenthal, Simma, Abraham, Keith, Sepúlveda-Amor, CançadoTrindade, Yusuf, Greenwood;

• AGAINST : Vice-President Tomka; Judges Koroma, Bennouna, Skotnikov

• The Russian Memorial directly contradicts the Justifications now provided!

The Kosovo case

• Opredeleniye (Resolution) of the Constitutional Court of the Russian Federation of 19 March 2014, No.6-P,

• “On the case of checking the constitutionality of the not yet in force international treaty between the Russian Federation and the Republic of Crimea on accepting into the Russian Federation of the Republic of Crimea and the inclusion into the Russian Federation of new subjects.”

On 19 March 2015 Yelena Lukyanova, a redoubtable advocate and Professor of Constitutional Law at the National Research University – Higher School of Economics, published in Novaya Gazeta a 6,000 word critique of the Constitutional Court on the issue of the annexation of Crimea. This was entitled “O Prave Nalevo (About law ‘on the side’)”.

• She found eight serious violations by the Constitutional Court of its own legislation, procedure, case-law, and international obligations. In her view this was a civilizational problem.

The Russian Constitutional Court

• Zorkin replied, with a 5,000 word riposte in the official Rossiiskaya Gazetaon 23 March 2015, entitled “The law – and only the law”. He started with personal abuse. He accused “Mrs Lukyanova” of constantly trying to sit on two stools, pseudo-communist and pseudo-liberal, and constantly changing her position according to the conjuncture.

• His theme was the claim that the skrepy, clamps holding society together, were the legitimacy of the authorities and the law. He associated Lukyanova with “criminals” such as William Browder (whose lawyer, Sergei Magnitsky, was murdered in a Russian SIZO, pre-trial detention prison). He declared

Today we see on the side of the West and its Russian disciples falsifications, yet unseen in scale, of events in Ukraine and their context. We see that all official Western legal interpretations of these events persistently and unanimously identify Russia in the “circle of the guilty”… For me this means that today our Russia is living through the latest invasion by Western (and their internal pro-Westerners) “civilised barbarians”.

The Russian Constitutional Court

• In her measured reply in an interview in Novaya Gazeta on 15 June 2015, Lukyanova said “I have always tried to see things from his point of view, and to justify him…”.

• She responded to Zorkin’s use of the word “clamps” (skrepy), and while pointing out that according to the law Zorkin had no business making such personal attacks, said that Zorkin who served for a number of years on the Council of Europe’s Venice Commission for Democracy through Law must know better.

• She recalled that on the many occasions she had appeared before him at the Constitutional Court he had always treated her with courtesy and respect.

• She has now published a brochure #KRYMNASH. Spor o prave i o skrepkakh dvukhyuristov i ikh chitatelei (#OURCRIMEA . The dispute about law and about clamps of two lawyers and their readers). Joining her in this publication are the already published contributions of:

• the journalist Roman Polkov; Colonel Andrei Evdokimov, chief editor of “Defence and Security” journal; the Novaya Gazeta journalist and member of the President’s Human Rights Council, Leonid Nikitinsky; the communist Aleksandr Frolov; Nikolai Epplye and Boris Grozovskiy writing in Vedomosti; a comment from the Russian service of the BBC; the political analyst Tatiana Stanovaya; the opposition legal commentator Sergey Ozhich; the human rights activist Yevgeniy Ikhlov; the commentator Aleksandr Anikin; the scholar Yuriy Fogelson; the lawyer Khamzat Azabaev; the advocate Aleksey Mikhalchik; the lawyer and Radio Ekho Moskvyblogger Aleksey Yelaev; the blogger Artyom Syomin; the scholar Kirill Rogov; and the human rights activist Yuriy Dzhibladze.

The Russian Constitutional Court

Pandora’s Box

Legal greats!Nikolai Gagarin, Yelena Lukyanova, Sergei Pashin, Tamara

Morshchakova, Anton Ivanov, Vladimir Radchenko, Leonid Nikitinsky