The following is a guest post by Peter Roudik, Director of the Global Legal Research Center at the Law Library of Congress and a foreign law specialist covering Russia and former Soviet Union jurisdictions. He has written several guest posts for In Custodia Legis, including “Regulating the Winter Olympics in Russia,” “Soviet Law and the Assassination of JFK,” and “Treaty on the Creation of the Soviet Union.”
During the last few weeks, the region officially called the Autonomous Republic of Crimea has been all over the news. Previously, when people heard about this peninsula they may well have thought only of the ancient Greek colonies, the Yalta conference, and classic Russian literature. Perhaps less well-known is the long history of Russian interests and influence in this part of Ukraine.
The first independent state formation was established in the Crimea region in the 15th century. This was the Crimean Khanate, a splinter of the vast Mongol Empire known as the Golden Horde. Because of geographic proximity, common religion, and political interests, the Ottoman Empire immediately imposed its control over the peninsula and made the local Khan its vassal. For many years, a strong Crimea caused issues for its northern neighbor by plundering Russian lands and taking captives. Under Peter the Great, Russia expanded its possessions along the Black Sea coast and weakened the power of the Khan, leading to a direct Russian invasion of Crimea in 1735. Following this period, Catherine the Great maintained a heavy Russian presence in the region and substituted diplomats with the military depending on the political situation.
In 1771, an independent Crimean state was established. According to historian Alan Fisher, no one in Western Europe “believed that independence for Crimea was anything more than a disguise for Russian annexation of the Khanate.” However, such annexation did not occur immediately. For several years, Catherine the Great tried to keep a pro-Russian government in Crimea, but when these attempts failed and Istanbul was ready to reestablish its power, the Russian government started an ideological campaign claiming to be the protector of Christians living in the Ottoman Empire. This was followed by Russian troops entering Crimea, with the European powers considering Russian presence in the region a major threat to their interests. On April 8, 1783, Catherine ordered that there be placed “posters in important locations” to announce to the Crimeans that they are received as Russian subjects. After that, the Crimean state was reorganized into a province and continued to be a part of the Russian Empire and then the Soviet Union.
When the Soviet Union broke up and Ukraine became an independent nation, Crimea was one of the twenty-four administrative regions into which the nation was divided. In 1992, being at odds with national powers, Crimean leaders declared the independence of the peninsula and passed a constitution that proclaimed Crimea to be a republic within Ukraine, provided that Crimean laws would have priority over Ukrainian laws, established Russian as the official language of the territory, and allowed Crimea to conduct its own foreign policy. Following a series of compromises with national Ukrainian authorities, this constitution was repealed, and the Verkhovna Rada (parliament) of Ukraine granted Crimea the status of an autonomous republic within Ukraine and adopted a separate law which defines the jurisdiction of the Crimean authorities. The law allows Crimea to pass its own normative acts provided they do not contradict the laws of Ukraine; adopt a budget and impose local taxes in accordance with the Ukrainian national tax system; implement its own policies in the fields of environmental regulation, social protection, culture, and humanities; and conduct local referendums on questions included in the republic’s jurisdiction.
The jurisdiction of the Crimean authorities is defined by article 137 of the Ukrainian Constitution, which lists all areas where the Autonomous Republic of Crimea can exercise its independence. These spheres are: agriculture, forestry, and irrigation; public works, crafts, and charity; urban planning; tourism; museums, libraries, theaters, historic sights, and other cultural institutions; hunting and fishing; public transportation and road maintenance; and sanitary services and public health. The Crimean Constitution of 1998, which is currently in force, applies all provisions of the national Ukrainian legislation and confirms that Crimean affairs, including referendums, shall be conducted in accordance with the Constitution of Ukraine.
While the Ukrainian Constitution allows Crimea to have its own parliament, which has the same name (Verkhovna Rada) as the national legislature, this is more a representative body than a legislative body. This is because Ukraine is a unitary state and the national legislature is the only authority that passes laws which are binding throughout the country. Since national defense, border protection, and territorial integrity are questions of national importance, any issue related to a change of national territory shall be resolved by an international treaty between Ukraine and another interested state, and the ratification of such a treaty must be confirmed by an all-Ukrainian referendum.
No legal provisions foresee a possibility for the secession of a Ukrainian territory and its transfer to another state, or for the discussion or determination of this issue through a local referendum. Also, I could not find any Ukrainian or Crimean statute that would allow regional authorities to include in a local referendum a question of whether a Ukrainian territory can reinstate laws that contradict national legislation. The reinstatement of the 1992 Crimean Constitution is the second question on the ballot for the Crimean referendum that will be conducted this weekend on March 16.
On March 11, 2014, Crimean authorities passed the Declaration of Crimean Independence, which cited the example of Kosovo in stating that if voters in Sunday’s referendum say that they want to secede from Ukraine and be admitted to Russia, then Crimea will declare itself an independent country and as a sovereign state will apply for acceptance into Russia.
In Russia, the issues of admission into the Russian Federation and the creation of new constituent components are regulated by the Federal Constitutional Law No. 6 of December 17, 2001. According to this Law, a foreign state or its part can be accepted into the Russian Federation according to a mutual agreement between Russia and that state. The conclusion of a bilateral treaty that regulates the admission of a transferred territory into Russia is a requirement. This treaty is subject to review by the Constitutional Court of the Russian Federation and ratification by the legislature. A federal law on acceptance of a foreign state or territory must be passed by both houses of the Russian legislature and may enter into force no earlier than the treaty enters into force in both countries.
Considering the position of the Ukrainian government, which insists on following the principle of stability of European borders, it is difficult to suggest that such a treaty would be concluded between Ukraine and Russia. Another option for Russia is to recognize the independence of Crimea and treat this administrative region of Ukraine as a subject of international law.
It is interesting to note that, in 1783, Catherine the Great viewed the annexation of the Crimea region as an opportunity to extend Russian influence. In addition, soon after subordinating Crimea, she initiated the creation of a Christian empire in the Balkans. This was a short-lived project and more Crimean wars followed. Those with knowledge of the events that occurred in Crimea about 300 years ago may well be reminded of these by the current Russian rhetoric about the need to protect Russian-speaking populations abroad and by the activities of pro-Moscow Crimean leaders.