John Quigley: Finding a Way Forward for Crimea

This is an updated version of yesterday’s post in the same matter, taking into account today’s vote of the Crimean Parliament to separate from Ukraine.

The current situation in Crimea can of course be analyzed from the standpoint of use of force under international law, but other aspects merit attention as well. In particular, if one approaches the situation from the dispute settlement angle, one can ask what the appropriate status of Crimea should be.

Crimea occupies a strange posture because of its history. It is territory that originally was populated by the Tatars, who were then overtaken by migrating Russians starting in the eighteenth century as the Russian Empire extended its reach southward. The Tatars regard the Russians much as the indigenous peoples of North America regard the Europeans who came to their territory and took it over. That relationship suffered even more during World War II. Because the Tatars harbored resentment against the Russians, the German invasion seemed to many Tatars a favorable development, but the response of the Soviet Government was to exile the Tatars en masse to Kazakhstan.

Nonetheless, Crimea was part of Russia through the nineteenth century. Because of its position on the Black Sea, it provided an ideal location for harboring Russia’s Navy. When the Soviet Union was formed in 1922 it was within what became the Russian republic of the USSR. Then in 1954 it was transferred into the Ukrainian republic, which may have been thought to make sense geographically. The population remained, and would remain, predominantly Russian, however.

When the USSR broke up, Crimea’s status became a hot button issue. The population feared losing its connection to Russia. If they were now foreigners as far as the new Russian Federation was concerned, what would happen to their pensions? Would their children be able to attend Russian universities? At that period the Ukrainian government welcomed back the Tatars. Grateful to the Ukraine, the returning Tatars provided a reason for Crimea to continue to be affiliated with Ukraine.

The parliament of Crimea declared Crimea to be independent, but then a status of autonomy was created for Crimea within Ukraine.

The Conference on Security and Cooperation in Europe became concerned that the fears of the Russians of Crimea over what they regarded as the anomalous presence of Crimea within an independent Ukraine might lead to hostilities between Ukraine and the Russian Federation. The High Commissioner of the OSCE for national minorities undertook consultations by way of preventive diplomacy. Focusing on the possibility of a special status for Crimea within Ukraine, the CSCE appointed a three-person group – two lawyers and one economist – to facilitate dialogue between the authorities of Ukraine on the one side and Crimea on the other. I was one of the lawyers.

In my exchanges with officials of the Crimean parliament, I was constantly pressed to know why self-determination did not apply to Crimea. The sentiment of the population was rather clearly against a continued affiliation of any kind with Ukraine. Yet at the time, the Russian Federation did not seem prepared to engender the hostility with Ukraine that would ensue if the Russian Federation were to encourage Crimea to separate from Ukraine and become a part of the Russian Federation.

The recent changes in Kiev seem to be bringing into greater prominence a Rightist element organized around the Svoboda party. This element is not well disposed to Russians, instead insisting on strong Ukrainian nationalism. It was doubtless this element that prompted the Ukrainian parliament to nullify a 2012 Ukraine law that had given minority languages official status in regions of Ukraine where they are spoken. Under the 2012 law, Russian had been designated an official language in sectors of eastern Ukraine, and in Crimea. The nullification of the 2012 law came just after the parliament voted Victor Yanukovych out of office as president and seemed that it might poise Ukraine on a trajectory that would result in discrimination against the Russians of Ukraine. That move frightened the Russian speakers in Crimea. It was also a challenge to President Vladimir Putin, to whom the Crimeans look for protection.

The language issue, moreover, had implications for Russia-Ukraine legal relations. Russia and Ukraine have a Treaty on Friendship, Cooperation, and Partnership, dating from 31 May 1997. In Article 12, “The High Contracting Parties guarantee the ethnic, cultural, linguistic, and religious identity of national minorities on their territories and shall create the conditions for the encouragement of this identity.” That clause was inserted at Russia’s insistence, precisely to protect Ukraine’s Russian speakers. The 2012 law was later restored when Ukraine’s new president vetoed the parliament’s action, but the veto came too late to allay the fears of Russian speakers as to the direction of Ukraine’s new government.

The existence of this treaty clause makes Ukraine’s treatment of its Russia minority an issue that implicates the treaty rights of the Russian Federation.

The Russians of Crimea see themselves as being in a posture not unlike that of the Albanians of Kosovo, as that group perceived itself, in 1999. That situation led to military intervention that secured separation. While differences may to be sure be found between the two situations, the Russians of Crimea do, in the main, fear for their future within Ukraine.

The Crimea parliament voted on March 6 to separate from Ukraine and to join Russia. It in fact indicated that the separation is effectively immediately. Nonetheless, it has scheduled a referendum vote for the population of Crimea for March 16. The ballot will ask voters to choose whether to join Russia, or to remain in the autonomy status in Ukraine under the Ukraine constitution. The vote may well go strongly in favor of affiliation with Russia. The Government of the Russian Federation has not indicated whether it would accept Crimea, but in the Russian Duma, parliamentarians are indicating they will address the issue.

The majlis – the legislative body representing the Tatars of Crimea – has indicated it does not recognize the recent actions of the Crimea parliament as legitimate. The Tatars may boycott the referendum. They oppose affiliation with Russia. If Crimea does affiliate with Russia, the Government of Russia will need to move proactively to assure the Tatars that their status will be protected.

Affiliation with Russia, if it comes about, is likely to be regarded by the Western powers as a product of Russian aggression. They might deem the affiliation invalid, an outcome that could result in uncertainty as to Crimea’s status and potential difficulties for its inhabitants.

Self-determination is a concept whose implementation in the international community has been inconsistent. Given the history of the territory, the population of Crimea has a plausible claim to self-determination. If Crimea remains within Ukraine, it may be an irritant between Russia and Ukraine for a long time to come. It could well be to the interest of Ukraine that Crimea affiliate with Russia. The Government of Ukraine does not see the matter that way, to be sure. It regards the action of the Crimea parliament and the scheduled referendum as unlawful under the Ukraine constitution. It will also point out that Russia has agreed to respect the territorial integrity of Ukraine.

Whatever the outcome, it is important that the Western powers, Ukraine, and Russia all refrain from regarding the Crimea question through the lens of geopolitics at the world level. The issue should not be whether President Putin or President Obama emerges a winner. The focus should be on the welfare of the population of Crimea.