Perspectives on Crimean Referendum

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Prabhat Singh's picture

Whether or not the parallels1 with Herr Hitler are justified, Mr. Putin has pulled off in 2014, like Hitler did in 1938, what few could’ve imagined - bloodless annexation of foreign territory, and on very similar grounds. Though unrecognized by most nations and even by UNGA2, Crimea is now part of Russia. While the future consequences are most worthy of analysis, the grounds on which the annexation proceeded promise to be a strategic analyst’s as well as an International Law practitioner’s delight.

Why is Russia interested?

Russia’s interest in Crimea seems to come from a combination of geopolitical and domestic factors. On the geopolitical front, Crimea hosts Russia’s Black Sea naval fleet in Sevastopol,which is still the backbone of Russian operations in Black Sea. The base puts Russian Navy within a day’s sailing to Mediterranean Sea, as opposed to the weeks it would take for Northern Fleet to get there. Russia has held this port since the past 230 years. However, post-1991, it has had to frequently blackmail Ukraine on oil and gas supplies for continuation of the port’s license. Notwithstanding its importance,it must be noted that this fleet is Russia’s tiniest second only to its Caspian Sea flotilla. Besides, Russia has been building up another base at Novorossiysk on its own territory as a backup for its Black Sea fleet. Thus, the significance of Sevastopol in persuading Russia to take Crimea must not be overestimated.

 Other geopolitical factors, chiefly amongst them NATO’s eastward expansion and Putin’s hangover from the glory days of USSR,have also contributed to Russia’s stance. Post collapse of Berlin Wall, at the Two-Plus-Four Conference, Soviets were deeply concerned at the assimilation of unified Germany into NATO. In an article3, Der Spiegel concluded that NATO - to allay Soviet concerns - gave firm reassurance to Kremlin of its intentions not to move eastward. Of course, the claim is disputed by NATO, and the “alleged” promise didn’t hold. Poland, Hungary and Czechoslovakia joined NATO in 1999 and the rest followed. Putin - a fierce nationalist - is understandably aggrieved at such loss of face and concerned about the ramifications of having NATO knocking on its doors. As a countermeasure, Putin has been astutely trying to regain influence on Central Asian and Eastern European states. The Georgian war in 2008, tactical victory over Syria and formation of Eurasian Economic Commission4 are all indicative of Putin’s efforts to resurrect a front against NATO. Annexing Crimea is a logical step in that direction.

The domestic reasons seem to have been a clinching factor in Putin’s annexation of Crimea. The entire revolution at the ‘Maidan’ was borne out of anger against a thoroughly corrupt and inefficient regime, which refused to align with the EU and instead sided with an equally dirty regime led by Putin. Putin has had to deal with similar uprisings at home. Though successful in putting down each one of them so far, he’s wary of when the events in Ukraine might be replicated in Russia, and has stressed on a “strong, stable” state to ensure peace and continuity in Russia and surrounding region. By shaking Ukraine to the core, he’s sent a strong signal to people back home that any shenanigans would be crushed with an iron fist.

Perspectives from International Law

At the heart of the crisis so far and the referendum on March 16 are four key questions:

1.  Does Crimea’s right to self-determination supercede Ukraine’s sovereignty?

2.  Was the referendum legal?

3.  Was the coup that led to Viktor Yanukowych’s removal from presidency legal?

4.  Is Russia in violation of the 1994 Treaty which guarantees territorial integrity of Ukraine?

It’s hard to find decisive answers to these questions. Below I have made a humble attempt at laying down the premises within which answers could be sought.

Self-Determination vs. Sovereignty

The two principles, i.e., those of “right to self-determination of peoples5” and “territorial integrity of nations6” are enshrined in holy letters in International Law. Unfortunately, their connotations are obfuscated at best and contradictory at worst. While the former gives Crimeans the right to secede from Ukraine, the latter clearly upholds Ukraine as one country. A glance at past conflicts which have touched upon this issue shows that world powers have adopted an inconsistent stance on which of the two principles to favour, depending upon circumstances.

The Kosovo war in 1999 and the subsequent declaration by Kosovo in 2008 to secede7 from Serbia split the world in two. One side-led by Russia-cried foul over Kosovo’s unilateral decision, while the other-led by NATO-cherished a minority’s right to determine its own future. Clearly, those countries are sitting on opposite sides of the fence now. Similar questions continue to be raised over Palestine, South Sudan and several other nations/territories. It is interesting to note that ICJ, in its advisory opinion8 on the question of “Unilateral Declaration of Independence” by Kosovo, pronounced that a sub-nation such as Kosovo was not in violation of International Law in proclaiming its own independence. Regardless, the issue remains open to debate.

Legality of Referendum

Even if Crimea possesses the right to self-determination, is the process being followed to gain that right legal? Does Ukrainian law allow for such a referendum to be held at all? Even so, can a referendum held under shadow of guns ever be legal?

The questions on legality of the referendum are easily settled by Article 739 of Ukrainian Constitution, which says-“Alterations to the territory of Ukraine shall be resolved exclusively by an All-Ukrainian referendum.” Crimea didn’t allow the rest of Ukraine to participate in the referendum, which means it’s illegal under Ukrainian Constitution.

However, secessionist movements in the past have proceeded without consent from mother country. Even America’s independence in 1776 came without consent from British Crown. Russia draws parallels between Kosovo and Crimea, accusing the West of double standards, while the West accuses Russia of crushing self-determination movements in Chechnya,even as it champions the same in Crimea. Moreover,the referendum gave Crimeans only two options10: either independence or absorption by Russia.

The referendum is widely believed to have been monitored by Russian troops in plain clothes. Putin’s laughable claim that the armed men were local “freedom fighters” who could’ve “bought” weapons is exposed by their characteristic manoeuvres and the rare weapons-such as Vintorez Sniper Rifle and NRS2 Knives-wielded by them, which are characteristic of elite Russian forces ‘Spetsnaz11.’

Such murky circumstances, coupled with the fact that Crimea can hardly accuse Ukrainian government of discrimination (as opposed to exaggerated Russian claims), makes Crimea’s bid to unilaterally secede look very dodgy indeed.

Legality of presidential coup

Article 111 of Ukrainian Constitution provides for removal of President for following reasons: death, ill health, resignation and impeachment. The first two are void. Erstwhile President Yanukowych never resigned from office. The question then is: was he impeached?

Article 111 lays down an explicit, elaborate procedure for impeachment of President. It seems that the Ukrainian Parliament conveniently avoided this cumbersome procedure and removed Yanukowych by a majority vote. This could mean that the current government is illegal and Yanukowych is still the legitimate President, as he claims to be. Thus, Putin’s refusal to hold discussions with “thugs” could well have some substance. However,in the face of near unanimous public outcry against Yanukowych, such refuge seems only an excuse to use force.

1994 Treaty

In 1994, Russia signed Budapest Memorandum on Security Assurances12, which guarantees territorial integrity of Ukraine. Russia defends its actions by claiming that it’s not obliged to honour the Treaty since a “rogue” government controls Ukraine. Clearly, these claims don’t hold water and Russia has spat International Law in the face while annexing Crimea.

What Next?

NATO, for all its military superiority,can’t risk war with Russia. Economic sanctions-the only credible option-are already in place and being heightened by the minute. However, with EU being dependent on Russia for a third of its oil and gas supplies, and Russia-EU trade touching $600bn annually (as opposed to just $127bn for Russia-America trade), it’s unlikely that NATO will remain united in really tightening the noose. Moreover, Russia is still a massive power, militarily and economically. Already, India has voiced muffled support and China abstained from voting against Russia at UNSC.

Keeping its limitations in mind, the international community must endeavour to soothe Ukraine rather than hurt Russia. Already, IMF has pledged aid worth $18bn to Ukraine. In the long run, only a Europe less dependent on Russian oil and gas supplies would enable a fitting response to naked Russian aggression. Hopefully, such incidences would encourage American Shale exports to Europe and force a rethink in Europe over the ban on Fracking.

It‘s unclear what benefits Crimea will bring to Russia, and how the international community will respond, not just to this one but to possible future Russian aggressions. Putin seems to be in the driver’s seat for now,but it would be prudent to recall what Samuel Johnson said-“Patriotism is the last refuge of a scoundrel.” A failing domestic economy, impending Shale revolution and increasing discontent back home make Johnson’s words sound eerily correct for Russia under Putin.