Sunday, 16 March 2014

The Crimean Referendum - three points to consider

The referendum on the status of Crimea is now well underway. By tonight, the Crimean authorities plan to publish preliminary results with the final tally official in one or two days. The results seem certain to be clearly in favour of unifying Crimea with Russia. Yet despite the internationally high profile of the referendum, some analyses still fail to pick up some of the most noteworthy point in the matter.

This is not a referendum on Crimean sovereignty

The referendum taking place in Crimea today does not concern the sovereignty of the peninsula. This has nothing to do with its legitimacy or lack thereof (more of which will be mentioned below). It has to do with the two options provided on Crimean ballot papers (my translation provided below; the text taken from
  1. "Are you in favour of the reunion of Crimea with Russia with the rights of a subject of the Russian Federation?"
  2. "Are you in favour of the reinstatement of the Crimean Constitution of 1992 and for the status of Crimea as part of Ukraine?"
First, Crimea was never part of the Russian Federation, which was a legal entity that came into existence in 1992. Consequently, as a question of sovereignty Crimea cannot "reunite" with Russia in the context of the Russian Federation. Crimea was part of the Russian Soviet Federative Socialist Republic (RSFSR), but for less than 9 years, between 1945 and 1954. Before that, Crimea had been the Crimean Autonomous Soviet Socialist Republic since 1921, and earlier Crimea existed within the Russian Empire from 1783. In effect, therefore, Crimean potential inclusion in the Russian Federation will be based on 9 years of Soviet rule and 138 years of Russian Imperial rule. The Crimean leadership would probably expect inclusion in Russia as an autonomous republic, along the lines of the 21 existing republics in Russia, such as most of the North Caucasus.

Second, as has been pointed out by several observers, there is a clear discrepancy between the Ukrainian constitution of 1996 and the 1992 Crimean constitution, eventually confirmed in 1998. The Ukrainian constitution states - in section 1, article 2 - that "The territory of Ukraine within its present borders is indivisible and inviolable." (my translation, from The Crimean constitution, on the other hand, is a mess. While this document does state that Crimea belongs within the framework of the Ukrainian constitution (article 1, paragraph 1), Crimea reserves the exclusive right to change its constitution based on a popular referendum on the peninsula (article 48, paragraph 2). ( Crimean parliamentarians have already indicated that they would use, if necessary, such powers to transfer the peninsula to Russia no matter the voting results today. (

Most Crimeans do not favour incorporation into Russia

The problem is that we now very little right now about public opinion on Crimea.

Recently, monitors from the OSCE have been prevented from entering Crimea. Monitors' reports indicate that their lives might have been in danger from armed pro-Russian militias, who fired warning shots. ( UN special envoy to Crimea, Robert Serry, was forced to leave the region by similar militias. ( Ukrainian journalists entering Crimea have been kidnapped and robbed at gunpoint (,45977.html) (; a Bulgarian journalist had a gun pointed to his head by local "self-defence forces" as shown on CCTV footage ( And, last night, the hotel housing most Western journalists in Crimean capital Simferopol was stormed by dozens of armed, masked men, allegedly searching for an "armed criminal." ( At the same time, local opponents of Crimean secession from Ukraine are being threatened on the peninsula. A priest from the Greek Catholic Church, known for its pro-Ukraine stance, was kidnapped by armed men in Sevastopol ( as has been the case for numerous other local activists. (

On this background, the Crimean Tatars - one-eighth of the total population - are boycotting the referendum ( while Ukrainians on Crimea - one-fourth of the population - have constitently supported the position of Ukraine. As for Russians on Crimea their opinion is difficult to gauge. It is telling, though, that - ever since Crimea voted to be part of Ukraine in 1991 with 54% in favour on a 60% turnout - local calls for independence from Ukraine have been few and far between. In the 2010 elections for the Crimean parliament 80% of seats went to the Party of Regions, the party of now-deposed President Viktor Yanukovych. ( The Party of Regions did not and does not have a policy of handing Crimea over to Russia. While Yanukovych has recently accused the acting government in Kiev of losing Crimea, neither he nor his party - which remains in the Ukrainian parliament - support today's referendum, although they do share some local Russians' concerns. (

Conversely, in the 2010 elections the party Russian Unity, the leader of which Sergey Aksyonov has now taken control of the Crimean parliament and referendum, received a staggering 4% of votes! And precisely 3 seats. Not a big public mandate for Mr Aksyonov. And, by extension, not a big public mandate from Crimeans for independence from Ukraine and accession to Russia. (

Russian actions in this crisis are not based in international law

The Russian Minister of Foreign Affairs, Sergey Lavrov, has - time and time again - stated that Russian actions towards Ukraine and Crimea, and the Crimean referendum, exist in accordance with international law. (see e.g.

Well, no - that is simply not the case.

International law is a somewhat nebulous concept, but it has its modern foundation in the Charter of the United Nations from 1945. In the Charter, it states in article 2, paragraph 4: "All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state..." ( Supporters of the Russian position may claim, with some justification, that the US and its allies breached the Charter during the invasions of Iraq and Libya, which were both sovereign states ruled by regimes recognised by the UN. But that is not the point. Lavrov is not stating that it is OK to breach international law, because the Americans did it - he says Russia is not breaching international law, full stop. And, in the case of the Charter, Lavrov's claim is untrue.

Lavrov can with more hope look to the "Responsibility to Protect" as outlined in 2005 by the UN World Summit Outcome Document. This document highlights that all states have a "responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity." (articles 138-40). Article 138 underlines the responsibility of states to protect their own populations, while article 139 notes that the UN member states "are prepared to take collective action, in a timely and decisive manner, through the Security Council...on a case-by-case basis and in cooperation with relevant regional organisations as appropriate, should peaceful means be inadequate and national authorities are manifestly failing to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity." (

Nowhere in Ukraine - let alone in Crimea - have we witnessed genocide, war crimes or ethnic cleansing. Even so, should the Russian authorities believe such crimes to take place, the Kremlin is legally obliged to take up the matter in dialogue with Ukraine and with the UN Security Council. Russia has not done so, instead vetoing the draft Council resolution denouncing the Crimean referendum as illegitimate. China abstained from this vote; all thirteen other Council members, including democratic stalwart Chad, voted in favour. What Russia seeks to offer the UN instead of this draft resolution appears to be troops on the ground.

Just three points to consider as the Crimean referendum moves towards its foregone conclusion.

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