-
International Journal on Minority and Group Rights 10: 111130,
2004. 111 Koninklijke Brill NV. Printed in the Netherlands.
The Crimea Conundrum: The Tug of War Between Russia andUkraine
on the Questions of Autonomy and Self-Determination
DORIS WYDRA*
Since Ukraine became a sovereign State in 1991 it has had to ght
serious eco-nomic, social and legal problems. The borderland
Ukraine had to nd its way outof the shadow of big brother Russia
and develop its own national identity. Butalso for Russia it was
hard to accept an independent Ukrainian State. The penin-sula of
Crimea stands as a symbol for the dif cult situation Ukraine faces
betweenthe East and the West, for the economic troubles, for the
dif culties of transfor-mation and for a variety of homemade
problems, such as corruption and the accep-tance of its own
statehood. But it is also a symbol for the con icts between
differentethnic groups and their quest for self-determination.
Since 1991 the history of Crimea has been that of a ght by the
Russian popu-lation of the peninsula for self-determination. It was
also a ght of the CrimeanTatars to return to the land they see as
their homeland, which they were forced toleave in 1944.
The rst part of this article will therefore start out with a
summary of the Crimeanhistory, which will give an impression of how
the situation on Crimea could developinto such a deep crisis such
as emerged especially between 19911995. It will alsotake a closer
look into the relationship between Russia and Ukraine after the
dis-solution of the Soviet Union and its impact on the Crimean con
ict. The secondpart draws upon international concepts of
self-determination, including internal self-determination and
autonomy and the design of Crimean autonomy in the
Ukrainianconstitution and legislation. This will be summed up
through a critical approachtowards Crimean autonomy within
Ukraine.
Although the relation between Russia and Ukraine will be a main
aspect of thispaper, it will not go into detail of the partition of
the Black Sea Fleet. It is impor-tant to note, that Russia clearly
connected the question of the status of Crimea andSevastopol to the
arrangements on the eet.1
* The author studied law, political science and Russian at the
University of Salzburg and Vienna.From 1998 to 1999 she worked as
legal expert for the Ukrainian-European Policy and Legal
AdviceCentre (UEPLAC) in Kiev/Ukraine. At the moment she
contributes to the European Union funded pro-ject for the
Elimination of discrimination and the promotion of tolerance in
Moscow as a legal expert.
1 See for details on the Black Sea Fleet: Lieven Anatol,
Restraining NATO: Ukraine, Russia, and theWest, in The Washington
Quarterly, Vol. 20, No. 4, 1997, pp. 5577; Bukkvoll Tor, Ukraine
and NATO.The Politics of Soft-Cooperation, in Security Dialogue,
Vol. 28 (3), 1997, pp. 363374; Olynyk StephenD., Ukraine as a
Military Power, in Wolchik Sharon L., Zviglyanich Volodymyr (eds),
Ukraine. TheSearch for National Identity, Rowman & Little eld
Publishers Inc. Lanham, 2000, pp. 6974.
-
1. Crimea between Russia and Ukraine
1.1. The History of Crimea until Ukrainian Independence
For the most part, the history of Crimea is not Ukrainian
history. The peninsulahas always been a homeland for numerous
peoples, such as the Scythians, the Greeksand the Tatars. The name
krym is of Tatar origin, and means rock fortress. And itwas the
Tatars, who dominated the history of Crimea for centuries. During
the 13thcentury the Golden Horde established the khanate of Crimea,
which was indepen-dent until 1475. It then came under the dominance
of the Ottoman Empire, but stillheld a lot of privileges and
freedoms.2 But Crimea was also always of interest tothe Russian
Empire, because of its strategic position at the Black Sea coast.
In 1775Catherine the Great was able to conquer the Ottomans on
Crimea and the contractof Kainarji was set up, securing Russia the
full power over the peninsula.3 Twoconcepts began to emerge in the
region: on the one hand Crimea was the homelandof the Crimean
Tatars and on the other hand it became a symbol of the power ofthe
Russian Empire.4
The 20th century was characterized by changing governments and
armed clashesbetween rivalling political and ethnic groups. In 1917
the Bolsheviks gained in uenceon the peninsula. They regarded the
election of the Kurultaj, the Parliament of theCrimean Tatars, as a
sign that the Tatars were ready to take over power on Crimea,while
the Tatars refused to accept a Soviet government. When the
Bolsheviks senttroops against the Rada in Kiev, armed con icts
arose. But Simferopol was not ableto hold against the Red Army and
as a consequence the Kurultaj was dissolvedagain. But the communist
regime did not last for a long time. In 1918 sailors of theBlack
Sea Fleet began to join the white troops and in the same year the
Germanarmy arrived on Crimea. The Republic of Tauria was
proclaimed, as there was hopethat the Germans would respect a
sovereign State. But this was not the case. As inKiev, the Germans
set up a marionette government under Sulkevich. When theGermans had
to leave Crimea in November 1918 a new Russian government
underSolomon S. Krym came into of ce. But already in May 1919 a
communist gov-ernment was set up, this time including Crimean
Tatars. Again this lasted only fora few weeks. This government had
to ee from the white troops of General Denikin.Denikin then
established a government that was directed against the political
orga-nizations of the Tatars, forcing them to work from
underground. Because of this theCrimean Tatars started to
co-operate with the communists. However, in October1920, when the
communists were successful in regaining power on Crimea,
theirgovernment did not include Tatars.
112 DORIS WYDRA
2 Sasse Gwendolyn, Die Krim-regionale Autonomie in der Ukraine,
Berichte des BIOst 311998;S. 7; see also Zajcev, Istorija Ukrany,
Svit, Lviv 1996, pp. 9193.
3 Svetova Svetlana, Solchanyk Roman, Chronology of the Events in
Crimea, in RFE/RL Reports,Vol. 3, No. 19, 13 May 1994, p. 27.
4 Sasse Gwendolyn, supra note 2, at p. 7.
-
In 1921 the communist government in Moscow sent Sultan-Galiev to
the Crimeanpeninsula to report on the situation of the Tatars. His
recommendations were deci-sive for the creation of the Autonomous
Socialist Soviet Republic of Crimea as partof the RSFSR.5
But the af liation to the Russian Federation proved to be quite
a problem forCrimea. The civil war resulted in a famine; the
interest of the Moscow governmentin the situation of the Crimean
Tatars was low. Although within the concept ofkorenisacija the
Tatars were represented in all political of ces, another wave
ofRussians migrated to the peninsula,6 thus further diminishing the
political power ofthe Tatars. When Stalin came into of ce,
repressions on Crimea started which wereespecially directed against
the Tatar population, as they were accused of collabo-ration with
the German troops.7 This climaxed in the mass deportations of
May1944. This persecution included not only the Tatar population
itself, but also allsigns of Tatar culture which had to be
removed.8 Crimea lost its autonomy andbecame an oblast within the
RSFSR. In 1949 Sevastopol received special nancialrights and was
directly subordinated to Moscow.9
In 1954, on the occasion of the 300th anniversary of the
contract of Perejaslav,the peninsula was taken out of the territory
of the RSFSR and became part ofUkraine. At this time already 90 per
cent of the Crimean population were Russians.10
On 26 April 1954, in the Ukaz of the Supreme Soviet the decision
to donate thepeninsula to the Ukrainian SSR was rati ed and the law
On the transition of theCrimean Oblast from the RSFSR to the
Ukrainian SSR was issued. There was atale about Khrushchev
initiating this transfer, but it was rather that the 300yearjubilee
was a welcome reason for soviet self-portrayal. Ukraine received a
territorythat was mainly inhabited by Russians and a population
which massively resistedthe moving in of Ukrainian
population.11
Already in September 1990, only two months after the declaration
of sovereigntyof Ukraine, the Supreme Soviet of Crimea asked its
Russian and Ukrainian coun-terparts to reinstall the status of
autonomy on Crimea. On 20 January 1991 a ref-erendum took place on
the peninsula; 93.2 per cent of the voters favoured the
CRIMEAN AUTHORITY AND SELF-DETERMINATION 113
5 Pipes Richard, The formation of the Soviet Union, Communism
and Nationalism 19171923, HarvardUniversity Press, 1954, pp.
184192.
6 Sasse Gwendolyn, supra note 2, at p. 8. 7 Within two days
180,000 people were deported, 150,000 of them to Uzbekistan.8
Deportacija krymskych tatar v 1944 godu, Krymskye tatary 19441994,
Minsk 1994; Chongar
Umerov, Vse eto ja videl sobstvenymi glazami, Krymskye tatary
19441994, Minsk 1994, pp. 8693.9 Svetova Svetlana, Solchanyk Roman,
supra note 2, at p. 27; Wendland Veronika, Die ukrainischen
Lnder von 19451993, in Golczewsky (ed.), Geschichte der Ukraine,
Vandenhoeck & Ruprecht,Gttingen, 1993, p. 277.
10 Hans-Heinrich Nolte, Eschment Beate, Vogt Jens,
Nationenbildung stlich des Bug, Hannover, 1994,Niederschsische
Landeszentrale fr politische Bildung, 132; The contract of
Perejaslav was closed in1654 between the Kozaks and the Russian
Tsar. After the rights and autonomies of the Kozaks had
beenrestricted by Poland-Lithuania, they turned to the Russian Tsar
for protection. While the Kozaks sawthis treaty as kind of a
military convention, for Russia this was the rst step of
subordinating the wholeUkrainian region.
11 Sasse Gwendolyn, supra note 2, at p. 8.
-
resurrection of the Autonomous Republic of Crimea as a member of
the USSR andas a member of the Union Treaty. In accordance with
this result the AutonomousRepublic of Crimea was established within
the territory of Ukraine.12 It is impor-tant to point out that
unlike in 1921, the Autonomous Republic was not establishedwithin
the framework of the Russian Federation, but within the USSR.13
Pikhovshekstresses that the autonomy of Crimea never before existed
on the territory of Ukraine,it was established and liquidated
within the borders of the Russian Federation, there-fore, no legal
connection between the USSR within the Russian Federation and
theAutonomous Republic of Crimea in Ukraine can be drawn.14
Already in Autumn 1991 centrist positions dominated within the
Parliament ofCrimea and with the decline of the economic situation
of Ukraine, the position ofradical separatists was even more
strengthened.15 This resulted in the declaration of independence of
the Republic of Crimea on 4 September 1991.
1.2. The Con ict over Crimea since 1991
Since 1991 Ukraine has once more tried to go its own way apart
from Russia.16 Butthe common history as well as the common source
of identity still remain. Ukraine nds itself today in a kind of
discrepancy concerning its relations with the RussianFederation. On
the one hand it is seen as a brother State, sharing the same
prob-lems and being, therefore, a possible partner in nding
solutions. On the other handRussia is regarded as former oppressor
still trying to deter Ukraine from becominga self-con dent,
European State.
On 1 December 1991 the referendum on the independence of Ukraine
took placeon Crimea. Only 54 per cent of the voters were in favour
of independence. Additionally,support for Kravchuk, the rst
president of independent Ukraine, was below theUkrainian
average.17
Already in 1992 a struggle about the division of powers between
the Crimeanand Ukrainian authorities began. The situation became
even more serious, when
114 DORIS WYDRA
12 Svetova Svetlana, Solchanyk Roman, supra note 3, at p. 27.
Zakon ukrainskoj radjanskoj social-isticnoj respubliki pro
vidnovlennja krimskoj avtonomnoj radjanskoj socialisticnoj
respubliki, 12.2.1991,N 712XII.
13 Sasse Gwendolyn , supra note 2, at p. 12.14 Pikhovshek
Viacheslav, Will the Crimean Crisis explode? in Drohobycky Maria
(ed.), Crimea:
Dynamics, Challenges and Prospects, Rowman & Little eld
Publishers Inc. 1995, pp. 4041.15 Umbach Frank, Russia and the
problems of Ukraines Cohesion: Results of a Fact-Finding
Mission,
Berichte des Bundesinstituts fr internationale Studien, 131994,
pp. 2829; Zakon Ukrainskoj SocialisticnojRespubliki pro
vidnovlennja krimskoj avtonomnojradjanskoj sozialisticnoj
respubliky, 12.2.1991, N 712XII, (BBP 1991, N 9, S. 84).
16 In 1917 a parliament was set up in Kiev and in 1918 the
Russian Soviet Republic had to recog-nize the independence of
Ukraine in the Peace Treaty of Brest-Litovsk. A month later the
parliamentwas dissolved by the Germans and the Ukrainian State was
fully depending on Germany. After theGermans left at the end of
World War I, a time of complete anarchism began on the territory of
Ukraine.Until 1921 Kiev saw nine different governments, until in
1922 the bolshevik power was consolidated inUkraine (Pipes Richard,
supra note 5, at p. 148). For a short time a Ukrainian State also
existed in 1941.
17 Svetova Svetlana, Solchanyk Roman, supra note 3, at p.
27.
-
Russia immediately interfered in the relations between
Simferopol and Kiev. Alreadyin January 1992 the question about the
legitimacy of the donation of the peninsulato Ukraine in 1954 was
on the agenda of the Russian Duma.18 The UkrainianParliament
regarded this as an infringement of the November 1990 treaty
betweenUkraine and the Russian Federation and the CIS Agreement.19
Kiev also issued awarning to separatist movements in Crimea.20 But
again in April Alexander Ruzkoj,the Vice-President of the Russian
Federation openly favoured the secession ofCrimea. Still it seemed
hard for the Russian self-conception to accept Ukraine as aseparate
State. Russian history and identity always regarded Ukraine as part
of theRussian Empire.
Quite often Ukraines declaration of independence was seen as the
nal triggerfor the dissolution of the Soviet Union. Even more of a
problem was that Ukrainesubordinated the Soviet troops on its
territory, including parts of the Black Sea Fleetto the Kiev
authorities.21 For some Russian politicians the independence and
theloss of Crimea was hard to accept. In 1992 Zhirinovsky compared
the situationof Crimea with Kuwait: both should be returned to
their legal owners.22 In Spring1993 Sergej Stankevich (the
political advisor of president Yeltsin) advised Westerndiplomats
not to set up embassies in Kiev, as they would soon be degraded to
mereconsulates.23 For quite some time the Russian borders with
Ukraine were not regardedas State borders and the division of the
Black Sea Fleet, the question of doublecitizenship, the division of
international property and obligations of the USSRremained further
controversial subjects. These were additional reasons why it
tooktwo years to ratify the big friendship-treaty between Ukraine
and Russia. Russiaespecially regarded this treaty as treason
towards Russian interests.24
One of the most important aspects, for the situation on Crimea,
was the foreignpolicy of Russia, especially concerning the near
abroad and the protection of Russians in the newly independent
countries.25 Ukrainian policy also proved
CRIMEAN AUTHORITY AND SELF-DETERMINATION 115
18 Kozyrev (Foreign Minister) stated: The donation in 1954 was
illegal, as it was only a decision bythe communist elite; Sobchak:
Ukraine has no moral or legal claims on Crimea (Solchanyk
Roman,Crimea: Between Ukraine and Russia, in Drohobycky Maria
(ed.), Crimea: Dynamics, Challenges andProspects, Rowman &
Little eld Publishers Inc. 1995, p. 5).
19 Zajava Verchovnoj Rady Ukrainy, 6.2.1992, N2102XII.20
Zajava-zvernennja prezidij Verchovnoj Rady Ukrainy do Narodu i
Verchovnoj Rady Krimu, 28.2.1992,
N 2151XII. Taras Kuzio, Russia-Crimea-Ukraine: Triangle of con
ict, Con ict Studies 267, London1994, p. 21.
21 Krmer Holger, Russland und die Ukraine. Die Politik Moskaus
gegenber Kiew seit dem Endeder Sowjetunion, SH Verlag, 1996, p.
22.
22 The party of Zhirinovsky, the LPD got a lot of votes from the
Russian members of the Black SeaFleet.
23 Kuzio Taras, supra note 20, at p. 5. The Russian Academy of
Sciences set up a document in 1992, that provided for the future
course of co-operation with Ukraine. According to this, the
Russianpolicy should be directed towards isolation of Ukraine, to
deter economic growth and by this hinderindependence.
24 The treaty was nally rati ed in 1999.25 Today 29 per cent of
the Ukrainian population are ethnic Russian, and the majority of
them were
born in Ukraine.
-
critical for the relations with Russia. Russia criticized
Ukrainian foreign policy fordistancing itself from core CIS
structures. Dif culties were also compounded by adifferent
understanding of the term strategic partnership. The Russian de
nitionof this partnership as an obligation to coordinate foreign
and security policy wastoo far-reaching for Ukrainian authorities.
On the one hand, the Ukrainian sideregarded the CIS-structures as
temporary, being set up by States that had a com-mon past, but no
common future. Russia, on the other hand, accused Ukraine ofsacri
cing the friendship with Moscow for closer relations with Western
Europe.26
With regard to Russian security policy, Crimeas importance
stemmed from itsstrategic position as the main naval port of the
Black Sea Fleet. When Ukrainebecame independent the partition of
the Black Sea Fleet was therefore of crucialimportance for both
States as was the status of the city of Sevastopol.27 The
deci-sions of the commandership of the Russian part of the Black
Sea Fleet also fuelledthe con ict on the status of the
peninsula.28
In 1992 it seemed as if Crimea would split up completely when
northern partsof Crimea also threatened to hold a referendum to
unite with southern oblasts ofUkraine. Igor Kasatonov, the
commandant of the Black Sea Fleet, wanted to dis-lodge all
Ukrainian military units from Sevastopol. The struggle over
competenciesbetween Kiev and Simferopol was to be ended by an
agreement. But this law wasnever issued, as Simferopol and Kiev
could not agree on formalities. The Crimeanside was convinced that
because the Crimean Parliament had already accepted thelaw, it was
not up to Ukraine to decide whether to ratify it or not. Kiev
argued, thatthis would have meant that the Crimean Parliament was
on the same level with theUkrainian Rada, which was not the case.
The Verchovna Rada of Ukraine changedsome articles of the law and
named it On the Status of the Autonomous Republicof Crimea. The aim
to resolve the ongoing con icts could not be reached; on
thecontrary, it even strengthened the secessionist tendencies.29 On
5 May 1992 theParliament of Ukraine declared the independence of
the peninsula and issued the Constitution of Crimea. This
declaration was to be approved by a referendumin August. The
Parliament of Ukraine answered with an ultimatum to take back the
declaration of independence before 20 May.30 The situation calmed
down as
116 DORIS WYDRA
26 Kuzio Taras, supra note 20, at p. 7.27 Ramazan Abdulatipov,
Russia, Minorities, The Political Dimension, in Vladimir
Shlapentokh,
Munir Sendick (eds.), The New Russian Diaspora: Russian
Minorities in the Former Soviet Republics,Library of Congress,
1994, pp. 3744.
28 For example, the denial of the sailors to take the oath on
Ukraine or the ag dispute in 1993.29 The Crimea: The Cronicle of
Separatism (19911995), Ukrainian Center for Independent
Political
Research (UCIPR), Series: Center and Regions, 1996, pp. 814.
Postanova Verchovnoj rady Ukrainypro porjadok vvedennja v diju
zakonu Ukrainy Pro status avtonomnoj Respubliky Krim, 29 April
1992,N 2300XII. The Ukrainian MP Holovaty stressed this point, as
the division of competencies was onlypossible between authorities
on the same level. The authorities of Crimea were subordinated to
theauthorities of Ukraine, so they had only competencies assigned
to them.
30 Postanova Verchovnoj Radi pro politicnoj situcija, jaka
zklalzaj u z vjazku z risennjamy, prijnjatymyVerchovnuju Raduju
Respubliky Krim 5 travnja 1992 roku, 13 May 1992, N 2333XII.
-
the chair of the Supreme Rada of Crimea decided to withdraw the
declaration ofnational sovereignty since this sovereignty was
already realized through the Constitutionof Crimea. The question on
the national independence of Crimea envisaged for thereferendum was
to be replaced by the question for the approval of the
CrimeanConstitution. The Ukrainian Parliament was asked to
reconsider the law On theStatus of the Autonomous Republic of
Crimea and the Law on the representativeof the Ukrainian President
on Crimea.31 In May 1992 the referendum on Crimeawas suspended
until 10 June. Again the Russian position had a critical impact
onthe tensions as the Russian Parliament came to the conclusion
that the donation ofCrimea was not in accordance with the
Constitution and the legislation of the USSR.On 30 June the
Ukrainian Parliament approved far-reaching autonomous rights
toCrimea and on 9 July Crimea issued a moratorium on the
referendum.
In September 1992 the Crimean Parliament issued the law On the
ag of theAutonomous Republic of Crimea. The colours of the ag
matched the colours ofthe Russian ag and once again discussion
started on double citizenship in the penin-sula. The Crimean
Parliament took the position that Ukrainian citizenship shouldnot
be obligatory for citizens of Crimea, and the Russian language was
to becomethe State language of the Autonomous Republic of Crimea.32
As the Ukrainian author-ities turned against these decisions of the
Crimean Parliament the Russian Dumastarted discussions on the
status of the city of Sevastopol. It drew on the decree ofthe
Supreme Soviet of the Russian Federation from the year 1948 to
prove thatSevastopol had a special economic and administrative
status within the RSFSR andhad, therefore, not become part of
Ukraine when Crimea was donated to Ukraine.33
In April 1993 the Crimean Parliament again dealt with a proposal
of the RussianParliament, which stated that Russia could possibly
support a referendum on Crimeaand was also ready to integrate
Crimea as an independent member into the CISstructures. This
proposal was later withdrawn by Russia.34 But already in July
theRussian Parliament stated that Sevastopol would always be part
of the territory ofthe Russian Federation. While Ukraine assessed
this as aggression against theUkrainian State, this declaration was
received with delight on Crimea.35
The con ict between Kiev and Simferopol was at its height when
in 1994 Crimeaset up the of ce of President of Crimea. The
presidential elections took place on 16and 30 January 1994. But it
was not the of ce itself that heightened tensions with
CRIMEAN AUTHORITY AND SELF-DETERMINATION 117
31 The Crimea: the Chronicle of Separatism (19911995), supra
note 29, at pp. 3031. 32 Svetova Svetlana, Solchanyk Roman, supra
note 2, at p. 28; The Chronicle of separatism (19911995),
supra note 29, at pp. 4357. 33 Solchanyk Roman, supra note 18,
at p. 9.34 The Crimea: The Chronicle of Separatism (19911995),
supra note 29, at pp. 5961.35 The Russian Statement was also
protested abroad. On Crimea it was regarded as support to
seces-
sionist trends. Meshkov, the later president of the Republic of
Crimea stated that now as Sevastopol isagain united with Russia,
the rest of Ukraine is soon to follow. Although also the Security
Council ofthe United Nations advised Russia to keep to the
principles of the UN-Charta and the November-agreement between
Russia and Ukraine, Russia declined to take back the resolution
(Svetova Svetlana,Solchanyk Roman, supra note 3, at p. 25.
-
Kiev, but rather the successful candidate, Meshkov.36 The
Verkhowna Rada in Kievdecided on an addendum to the Ukrainian
Constitution, directed against arbitraryacts of the Crimean
authorities.37 At this time Moscow changed its direction
towardsCrimea as Yeltsin declined to meet with Meshkov and the
Russian Prime MinisterChernomyrdin stated that Russia has no claims
on Crimea.38 On 24 February 1994the Ukrainian Parliament issued a
resolution, giving the authorities of Crimea amonth to harmonize
its legal acts with the Ukrainian Constitution and
legislation.39
After his election Meshkov again came up with plans for a
referendum on Crimea,which was opposed by Kravchuk. In April
Meshkovs party won the CrimeanParliamentary elections. At the same
time the referendum took place (but was calleda consultative
opinion poll). Ninety per cent of the voters agreed with the
expan-sion of the autonomous rights of Crimea. What was clear from
the results of theCrimean parliamentary elections and the
referendum, and also from the Ukrainianparliamentary elections in
April 1994, was that the Ukrainian population on Crimeadid not
really oppose the Russian demands for secession.
In May 1994 the Crimean Constitution of 1992 was reinstalled.
Kiev again setan ultimatum to suspend the Crimean Constitution and
other laws of Crimea andinformed the United Nations and the OSCE of
the developments on the peninsula.After the expiration of the
ultimatum Kiev suspended all legal acts of the AutonomousRepublic
of Crimea that contradicted the Constitution and the legislation of
Ukraine.40
New discussions started, but the Crimean Parliament did not
agree in giving awaypowers to Kiev. On 23 August 1994 Sevastopol
was declared a Russian city andsubordinate only to Russian
legislation. Later in 1994 Meshkov tried to assume allpolitical
power in Crimea. He dismissed the Parliament after it argued for
harmoniz-ing the Crimean law On the president with the Ukrainian
Constitution and wantedto revise the Crimean Constitution. Ukraine
stressed that the dismissal of the Crimean
118 DORIS WYDRA
36 Kiev rst did not worry about the of ce of the president as
there was the conviction that Bahrov,the communist chairman of the
Crimean Soviet, would be successful. (Sasse Gwendolyn, supra note
2,at p. 13).
37 Postanova Verchovnoj Rady pro status avtonomnoj respubliky
Krim vidpovidno do dijucoj Konstitucijta zakonodavstva Ukrainy, 28
February 1994, N 4006XII; Svetova Svetlana, Solchanyk Roman,
supranote 3, at p. 31.
38 This did not change the situation on Crimea, as separatist
movements on Crimea did still headtowards a reunion with Russia.
Alexandr Kruglow, deputy of the Ukrainian parliament, founded a
newparty named the Russian Sevastopol Crimea Party, which should
support the unity between Russia andCrimea.
39 Ukaz pro Ukaz Presidenta Respubliky Krim vid 10 bereznja 1994
roku Pro provedennja opituvannja gromadja Respubliky Krim 27
bereznja 1994 roku, 16 March 1994: It is stated that ques-tions
about the reintroduction of the Crimean Constitution of 1992 and
double citizenship contradictsthe Ukrainian Law on Referenda since
the population of Crimea is asked to decide upon subjects, thatfall
completely within the competence of the Ukrainian parliament.
40 Postanova verchovnoj Rady pro vikonannja Postanovy Verchovnoj
Rady Ukrainy vid 24 ljutovo1994 roku Pro status avtonomnoj
Respubliky Krim vidpovidno do dijucoj Konstitucij ta
zakonodavstvaUkrainy ta Postanovy Verchovnoj Ukrainy ta Postanovy
verchovnoj Rady Ukrainy vid 20 travnja 1994roku pro zupinennja dij
Zakony Respubliky krim Pro vidnovlennja konstitutcinach osnov
dezavnostiRespubliky Krim, 2 June 1994, N29/94VR.
-
Parliament was a right exclusively reserved to the Ukrainian
Parliament itself.41
Negotiations started between the Crimean Parliament, Meshkov and
Ukrainianauthorities, and on 22 September, Meshkov repealed the
dismissal of the VerkhovnaRada of Crimea. On 29 September, the
Crimean Parliament deprived Meshkov ofall his rights, and by
issuing the new law On the government of Crimea the PrimeMinister
became the head of the government of the Autonomous Republic of
Crimea.One week later Anatoly Franchuk, a friend of Kuchma (the
meanwhile elected newpresident of Ukraine), was appointed Prime
Minister. During this struggle for powerMeshkovs party, the Block
Rossija, broke apart. At the end of November the CrimeanParliament
decided to harmonize all of its legislation with Ukrainian federal
legis-lation. The Ukrainian National Bank was to stall all payments
to authorities thatwould not obey these new provisions.42 In March
1995 the Ukrainian Parliamentsuspended all legal acts of Crimea
that were in contradiction with the existingUkrainian
legislation.
New tensions arose in 1995 when the Crimean authorities decided
to insist on aconstitutional referendum. A round table conference
was organized by the OSCEin Locarno and once again a compromise was
found. No referendum would takeplace on Crimea and the Law on the
status of the Autonomous Republic of Crimeawas to be reconsidered
by the Verkhovna Rada of Ukraine. Again it was Russiathat
contributed to the problems. Already in March a Russian consulate
started toissue Russian passports in Simferopol. Again the question
of double citizenshipemerged. Although the consulate refrained from
issuing documents it was not readyto give any information on how
many persons had received Russian citizenship.43
Yeltsin stressed, that he would not sign a Treaty of Friendship
with Ukraine untilthe rights of the Russian minority were suf
ciently guaranteed.44
In November 1995 the Crimean Parliament was successful in
adopting a newConstitution. Crimea was to be a part of Ukraine and
Sevastopol part of Crimea.The Crimean Tatars opposed this
Constitution, as it contained no provisions guar-anteeing their
representation in Crimean administrative and legislative
bodies.45
This Constitution was not approved by the Ukrainian Parliament,
as there were stilldiscussions about the inclusion of the Crimean
autonomy within the UkrainianConstitution.
After 1996 the tensions eased and the Ukrainian Constitution of
June 1996 con-tributed to the clari cation of the legal situation.
But still there are con icts betweenthe minorities on Crimea. The
representatives of the Russian majority of Crimeastill give
declarations on the unity of the Russian people, but because the
new
CRIMEAN AUTHORITY AND SELF-DETERMINATION 119
41 Postanova Prezidij Verchovnoj Rady pro situaciju v. Krimu, 12
September 1994, N 119/94PV; TheCrimea: The Chronicle of Separatism
(19911995), supra note 29, at pp. 9899.
42 The Crimea: Chronicle of Separatism (19911995), supra note
29, at pp. 98106.43 Ibid., at pp. 129133.44 Kozyrev (Russian
minister on Foreign Affairs) added to this that Russia was also
willing to use
military force to protect Russian nationals abroad (The Crimea:
The Chronicle of Separatism (19911995),supra note 29, at p.
166).
45 Ibid., at p. 170.
-
Ukrainian legislation prohibits regional branches of political
parties, the Crimeancommunist party is now no longer an independent
organization and had to cut rela-tions with the Russian communist
party. In October 1998 the Parliament of Crimeaset up a
Constitution that was also accepted by the Verkhovna Rada in
Kiev.
But this did not solve all problems on Crimea. In particular the
Tatars face seri-ous legal, practical and economic problems when
returning to Crimea.
2. The Crimean Tatars and Their Return to Crimea
When talking about autonomy of the peninsula of Crimea and about
the possibili-ties of guaranteeing internal self-determination, one
has to look at the special situ-ation of the Crimean Tatars and
their position within this autonomy.46 Right at thebeginning it has
to be stated that the autonomy of Crimea is not an autonomy setup
to realize the rights of the Tatars, but rather of the Russians on
Crimea. It wasthe Russian population that demanded this autonomy
and it is structured by Russianinterests.
The Crimean Tatars see themselves as the indigenous population
of Crimea andthe only people who have the right to call Crimea
their homeland. When in 1475the khanate of Crimea came under the
dominance of the Ottoman Empire, the rstwaves of emigration of the
Tatars started. In the 18th century, when Crimea becamepart of
Russia, 500,000 people were living on Crimea, of which 450,000
CrimeanTatars. Until the beginning of the 20th century the
percentage of Tatars declinedfrom 80 to 34 per cent.
At the end of the 19th century a national movement of the
Crimean Tatars emergedand political parties were founded, of which
Milla Firka (National Movement) wasthe most prominent. It supported
Russian Federalism and was also relatively closeto socialist
movements. The Kurultaj, the Parliament of the Crimean Tatars also
setup a Crimean Constitution.47
After the Tatars were deported (mainly to Uzbekistan) in 1944,
it took them until1989 to be allowed to return to Crimea. But
already during the 1980s they startedto move back to the peninsula,
although illegally. The of cial Ukrainian policy wasalways in
favour of the returning of Tatars, but problems emerged since the
CrimeanTatars had dif culties integrating into Crimean society and
this resulted in con ictswith the resident population. They were
not allowed to settle in their ancestral ter-ritories, it was dif
cult for them to nd employment and their economic situationwas
bad.
120 DORIS WYDRA
46 By pointing out the Tatars again it is necessary to stress,
that the situation on Crimea is also remark-able, because not only
the Tatars were deported from Crimea during the Stalin era, but
also the Germans,Armenians and the Greeks, although their
population is smaller and they do not return to the sameamount, as
do the Tatars (Saburov Yevgenij, The Socio-economic situation in
Crimea, in DrohobyckyMaria (ed.), Crimea: dynamics, Challenges and
Pospects, Rowman & Little eld Publishers Inc. 1995,1995, p.
28).
47 Sasse Gwendolyn, Die Krimtataren, in Ethnos-Nation 4 (1996),
p. 24.
-
In 1991 they elected a Parliament (Kurultaj), which was not
recognized byUkrainian authorities. They boycotted the referendum
of 1991 and did not acknowl-edge the autonomous status of Crimea,
since it is seen as under Russian autonomy.The Tatars issued the
declaration of the National Independence of the CrimeanTatar people
and also set up a separate draft on the Crimean Constitution
guaran-teeing the representation of Crimean Tatars in Crimean State
bodies. Until the elec-tions of 1994 they held 14 seats in the
Crimean Parliament, but this disproportionaterepresentation is no
longer provided for. At the beginning of the 1990s the politi-cal
organizations of the Crimean Tatars were mainly led by persons that
were bornon Crimea before the deportation. Now a younger generation
emerged, which ismore radical and demands more autonomous rights
for the Tatars.48
Ukraine was also criticized by the Council of Europe for not
guaranteeing theright to vote to the returning people and
especially to the Tatars. The major prob-lem was that since Ukraine
did not allow dual citizenship, persons returning fromUzbekistan
had to prove that they had renounced their foreign citizenship. As
therenouncement of Uzbek citizenship was a dif cult and costly
process, many per-sons were excluded from Ukrainian citizenship and
from the rights connected to it.Since 2001 the new law on
citizenship now allows these people to apply for Ukrai-nian
citizenship through naturalization without renouncing foreign
citizenship beforehand.49
But still the Crimean Tatars face radical and armed attacks and
the majority ofthem live under poor economic conditions. The still
existing propiska system (althoughformally abolished, it is still
drawn upon in administrative and police practice) alsoaffects the
Tatar population of Crimea. Kiev did not acknowledge the Medjlis as
alegal representative of the Tatar people and did not nance it, but
did provide moneyto the Committee on the Return of Deported
People.50 On the other hand, Kiev washeading for good relations
with the Crimean Tatars and their organizations as theTatars were
seen as allies that opposed secessionist movements.51 Still a lot
of Tatarsrefrain from turning to of cial institutions to ameliorate
their situation, as these mayprove to be extremely drudging. On the
other hand they think that the Committeeon the Return of Deported
People is not really effective and demand to set up anindependent
government organization that is subordinated not only to the
CrimeanParliament, but also to the Medjlis.
3. The Legal Background of the Autonomy of Crimea
3.1. Concepts of Autonomy
After World War I there was hope that the newly created entities
in Europe coulddevelop into stable, peaceful (though heterogeneous)
States. This hope has not been
CRIMEAN AUTHORITY AND SELF-DETERMINATION 121
48 Stewart Susan, The Tatar Dimension, in RFE/RL Reports, Vol.
3, No. 19, 13 May 1994. 49 Law on citizenship, 18 January 2001, N
223514, Vidomosti VR 2001, N. 13, p. 65.50 Sasse Gwendolyn, supra
note 47, at p. 27. 51 Nezavizimaja Gazeta, 28 October 1998, S.
5.
-
ful lled and autonomy was therefore seen not only as a
possibility to provide forthe protection of national minorities,
but also as a concept to prevent the call forthe creation of new,
small States. The right of self-determination developed
togetherwith the concept of national States and was bolstered
during the 20th century bythe idea that government was only
possible with the consent of the governed.52
Many important documents, like the Charter of the United
Nations, the Resolutionon the Granting of Independence to Colonial
Countries and Republics (G.A. Res.1514 (XV)),53 the Declaration on
Principles of International Law Concerning FriendlyRelations and
Co-operation among States in Accordance with the Charter of
theUnited Nations (G.A. Res. 2625 (XXV),54 the International
Covenant on Civil andPolitical Rights (ICCPR) and the International
Covenant on Economic, Social andCultural Rights (ICESCR) include
provisions on self-determination. But while theself-determination
of people is usually discussed with regard to the possibility
ofsecession (and there is unanimity that the right to secession has
to be interpretedvery strictly in relation to the right of uti
possidetis) these documents point towardsa right of
self-determination, which means the free choice of the form of
govern-ment and the representation of all peoples of a country by
this government.55 Thisdemocratic aspect of self-determination can
also be seen in the Helsinki process ofthe OSCE. The most important
factor is the development of a pluralistic, democ-ratic society.56
When discussing autonomy and self-determination in Eastern Europeit
is important to note that self-determination had a different
meaning in the SovietUnion. Formally, self-determination was always
granted to the subjects of the SovietUnion, to stress the voluntary
character of the Soviet Union. But the self-determi-nation of
people was always connected to the realization of communist ideals,
andLenin pointed out, that no Marxist . . . can deny that the
interests of socialism over-ride the rights of nations to
self-determination.57 On the peninsula of Crimea anautonomous
entity existed until 1944. It was set up to guarantee special
rights andspecial protection for the Crimean Tatars. When in 1944
the Crimean Tatars weredeported the autonomy was overruled. At the
same time, it was stressed that theautonomy for the Tatars was not
justi ed because they amounted only to 40 percent of the population
of the peninsula. This shows that, within the Soviet Union,
122 DORIS WYDRA
52 Suppan Arnold, Nationalstaaten und nationale Minderheiten, in
Heuberger Valeria, Suppan Arnold,Vyslozil Elisabeth (Hrsg.),
Brennpunkt Osteuropa. Minderheiten im Kreuzfeuer des Nationalismus,
Verlagfr Geschichte und Politik, R. Oldenbourg Verlag Mnchen, 1996;
Frowein Jochen A., Self-Determinationas a Limit to Obligations, in
Tomuschat Christian (ed.), Modern Law of Self-Determination,
KluwerAcademic Publishers, Dorerecht, Boston London, 1993.
53 G.A. Res. 1514 (XV), 15 UN GAOR, Supp. (No. 16), UN Doc.
A/4684 (1960).54 G.A. Res. 2625 (XXV), Annex, 25 UN GAOR, Supp.
(No. 28), UN Doc. A/5217 (1970).55 Kimminich holds the position
that it does not make sense to split up the right to
self-determina-
tion. Notions like internal, external, offensive or defensive
right to self-determination are arbitrary anddo not solve the
problems connected to self-determination. (Kimminich Otto, A
Federal Right to Self-Determination, in Christian Tomuschat (ed.),
Modern Law of Self-Determination, Martinus NijhofPublishers,
Dordrecht, Boston, London, 1993, p. 86.
56 Cassese Antonio, Self-Determination of Peoples, A Legal
Reappraisal, 1995, p. 293.57 Hansen Kurt Nesby, Continuity within
Soviet Nationality Policy: Prospects for Russia and its
Periphery, Praeger Publishers, Westport, 1992, p. 12.
-
autonomous rights were often assigned through arithmetic
calculations and theywere not considered as a means to provide for
internal self-determination. As awhole the concept of autonomy
within the Soviet Union (Article 85, Constitutionof 1977) was
merely a formal one, as there was no guarantee on the
legislativepower of the autonomous entities. Each legislative act
could be overruled by actsof higher ranking authorities.
The internal aspect of self-determination is not fully de ned.
Rosas stresses thatthe right of internal self-determination is not
concentrated on one point in historybut has to be realized
continuously by involving the population in legislation,
imple-mentation and government.58 Although international law does
not prefer a certainform of government, especially in the European
context the internal aspect of self-determination is clearly
connected to democracy.59
Until now no collective State practice has developed and
autonomy is not ahomogenous principle generally acknowledged to
solve minority con icts.60 Autonomyis quite often discussed as part
of customary international law, because the conceptis often drawn
on as a means for minority protection. But Heintze stresses,
thatthere are too many different forms of autonomy to deduce a
general principle ofautonomy. Therefore, the concept of autonomy is
still to be de ned.61
In international treaties an of cial acknowledgement of the
right of autonomy isalso avoided.62 There were efforts to develop a
concept of autonomy and self-gov-ernment during the preparation
phase of the UN Declaration on the Rights of PersonsBelonging to
National or Ethnic, Religious and Linguistic Minorities, but this
wasdeclined by the States taking part.63 In Europe some concepts of
autonomy were
CRIMEAN AUTHORITY AND SELF-DETERMINATION 123
58 Rosas Allan, Internal Self-Determination, in Tomuschat
Christian (ed.), Modern Law of Self-Determination, Kluwer Academic
Publishers, Dordrecht, Boston, London, 1993, p. 227. The most
essen-tial right of a people is to set up a constitution and right
for a democratic government.
59 See CSCE Charter of Paris for a New Europe.60 Heintze Hans
Joachim, On the legal understanding of autonomy, in Suksi Markku
(ed.), Autonomy:
Applications and Implications, Kluwer Law International, The
Hague: 1998, 7. This paper will not gointo detail discussing the
problem of the de ning the differences between a minority and a
people. Thishas been done in quite a reasonable number of
publications. Self-determination (and therefore also itsinternal
aspect) is a right of a people, while minorities only have a right
for the protection of their iden-tity. This differentiation is
often criticized in literature, as it is stressed that an effective
protection ofminorities needs certain aspects of self-determination
and a de nition dividing between people andminorities should not
lead to the creation of second-class people, when it comes to the
enjoyment ofspecial rights (see Thornberry, Self-Determination,
Minorities, Human Rights. A Review of InternationalInstruments
(1989), 868; Duursma Jorri, Fragmentation and the International
Relations of Micro-States.Self-Determination and Statehood,
Cambridge University Press, Cambridge 1996, pp. 4043.
61 Tibet also has an autonomous status within China, but
regional characteristics are not protected inthis case.
62 Also in the Copenhagen Document of the CSCE (1990) autonomy
is mentioned only as one pos-sibility to provide for minority
rights. Also in its opinion on the international recognition of
Croatia(Opinion No. 2 of the Badinter Arbitration Committee, 3 EJIL
(1992), 184) the Badinter Commissiondoes not refer to the general
principles of international law but rather draws upon the nal
document ofthe Conference of Yugoslavia (4 January 1991); Heintze,
supra note 54, at pp. 1314.
63 Hannikainen Lauri, Self-Determination and Autonomy in
International Law, in Suksi Markku(ed.), Autonomy: Applications and
Implications, Kluwer Law International, The Hague 1998, 88.
Theconcept was developed a little further in relation to indigenous
peoples.
-
created during the elaboration of the European Charter on Local
Self-Government(1985). But it was mainly within the framework of
the CSCE/OSCE where con-cepts of autonomy for Europe developed,
starting out with the Copenhagen Documenton the Human Dimension in
1990. During its work on a possible additional proto-col to the
European Convention on Human Rights the Council of Europe
acknowl-edged autonomy rights in Recommendation 1201 (1993). This
additional protocolwas never realized and the Framework Convention
on the Protection of NationalMinorities does not speak about
autonomy concepts.
3.2. Provisions Concerning the Autonomous Republic of Crimea in
the UkrainianConstitution of 1996
After the situation on Crimea started to calm down after 1995,
further work on theestablishment of autonomy was possible,
especially after Ukraine succeeded in set-ting up a new Ukrainian
Constitution in June 1996.
The new Constitution of Ukraine in 1996 was of essential
importance for therelations between Kiev and Simferopol. Already at
the beginning of 1996 a newCrimean Constitution was drafted, but
was rejected by the Ukrainian Parliament.At this time the nal form
of the autonomous status was not yet de ned. Only withChapter X of
the new Ukrainian Constitution a legal status quo and framework
wascreated for the Autonomous Republic of Crimea. The initial draft
of the UkrainianConstitution included only restricted autonomy
rights and left Crimea with the sta-tus of a rayon, leaving little
to no competencies for economic legislation. Anotherimportant point
was the enclosing of provisional regulation No. 14, which allowsthe
temporal stationing of foreign military units (in contrast to
Article 17 of theUkrainian Constitution). This was of special
importance for Sevastopol as main portof the Russian part of the
Black Sea Fleet. This Constitution includes provisions onthe
territorial set-up of Ukraine as well as on the competencies of
Crimean author-ities within Ukraine. It was an essential basis for
the Crimean Constitution, whichwas nally accepted by the Ukrainian
Rada in December 1998.
The general principles (Chapter I, Articles 120) include
important provisions forthe Autonomous Republic of Crimea. Article
2 stipulates that the sovereignty ofUkraine extends throughout its
entire territory. This territory is indivisible. There isa single
citizenship in Ukraine (Article 4). The State language is
Ukrainian, but thefree development of Russian and languages of
ethnic minorities is guaranteed (Article10). The cultural and
religious identity of indigenous people and national minori-ties
will be promoted (Article 11).
Chapter IX of the Constitution of Ukraine deals in detail with
the territorial struc-ture of Ukraine. Again territorial unity is
stressed (Article 132). The division ofcompetencies is a
combination of centralization and decentralization. The
AutonomousRepublic of Crimea is part of the administrative and
territorial structure of Ukraine,besides oblasts, districts,
cities, city-districts, settlements and villages (Article
133).Sevastopol, like Kiev, is granted a special status that has to
be de ned by a speciallaw (Article 133(3)). While these provisions
are rather general, Chapter X explic-itly covers the relations
between Crimea and Ukraine. It delimits the competencies
124 DORIS WYDRA
-
between the regional authorities in Simferopol and the central
government in Kiev.Again the territorial unity of Ukraine is
stressed and Crimea is de ned as an insep-arable constituent part
of Ukraine. Crimea decides on the issues ascribed to its
com-petence within the limits of authority determined by the
Constitution of Ukraine.
The Autonomous Republic of Crimea is entitled to have its own
constitution,which is adopted by the Parliament of Crimea and has
to be approved by theParliament of Ukraine. Normative acts of
Crimea and decisions of the Council ofMinisters shall not
contradict the Constitution or the laws of Ukraine. Laws ofCrimea
have to be adopted in accordance with the Constitution of Ukraine,
the lawsof Ukraine, and the acts of the Ukrainian president and the
Cabinet of Ministers(Article 135).
The Parliament of Crimea is the representative authority of the
republic. It issuesdecisions and resolutions that must be executed
on the territory of Crimea. TheCouncil of Ministers forms the
government of Crimea. The head of the governmentis appointed to of
ce and dismissed from of ce by the Parliament of Crimea withthe
consent of the president of Ukraine. The authority, the procedure
for formationand operation of the Verkhovna Rada of the Autonomous
Republic of Crimea andof the Council of Ministers of the Autonomous
Republic of Crimea are determinedby the Constitution of Ukraine and
the laws of Ukraine, and by legal acts of theVerkhovna Rada of the
Autonomous Republic of Crimea on issues ascribed to itscompetence
(Article 136).
The Autonomous Republic of Crimea has legislative competencies
in areas ofmainly local importance. This includes agriculture,
forestry, land reclamation, min-ing, city construction, tourism,
museums, sanitary and hospital services (Article137).
Apart from the competencies enumerated in Article 137 Crimea has
some exec-utive competencies in other areas, such as arranging
elections of deputies to theVerkhovna Rada of the Autonomous
Republic of Crimea, organizing and conduct-ing local referendums,
managing property that belongs to the Autonomous Republicof Crimea
and ensuring the operation and development of State language.
Furthercompetencies are mainly within the socio-cultural area.
Examples include the prepa-ration of programs for socio-economic
development, the rational utilization of nat-ural resources and the
protection of the environment, which must be in accordancewith
general Ukrainian programs. Crimea can also establish areas of
ecologicalemergency. Other powers may be delegated to the
Autonomous Republic of Crimeaby the laws of Ukraine (Article 138).
A representative of the Ukrainian presidentis based in Crimea. His
status is determined by the laws of Ukraine (Article
139).Particular aspects of the exercise of local self-government in
Sevastopol are to bedetermined by special laws of Ukraine (Article
140).
On 29 April 1992 the Verchovna Rada of Ukraine issued the Law on
the Statusof the Autonomous Republic of Crimea. It differed from
the original draft as Crimeawas not, as agreed previously, an
independent subject of international law, butreceived only the
right to take part in international relations together with
Ukraine.Ukraine was also no longer the guarantor for the
sovereignty of Crimea. Instead,Ukraine only guaranteed the
realization of the sphere of action of the Crimean
CRIMEAN AUTHORITY AND SELF-DETERMINATION 125
-
Republic.64 When the situation on Crimea was again deteriorating
after presidentialelections in 1994 and Crimea was not following
the instructions of Kiev to har-monize its legislation with the
federal legislation of Ukraine, the Ukrainian author-ities reacted
by suspending the Constitution of Crimea (which has been put
intoforce again in May 1994) under further legal acts of Crimea.
The relations betweenCrimea and Ukraine were then based mainly on
the Law on the Status of theAutonomous Republic of Crimea, which
was nally replaced by the Law on theAutonomous Republic of Crimea
in 1995.65 This law remained until the newConstitution of Ukraine
entered into force in 1996. According to this piece of leg-islation
Crimean authorities are competent to decide upon those matters that
areassigned to them by the Constitution of Ukraine and other
federal laws.66 The pro-visions of the law on the Autonomous
Republic of Crimea are very similar to theConstitution of Ukraine
and leave only a very tight frame for the design of a
CrimeanConstitution.
3.3. The Constitution of the Autonomous Republic of Crimea
The rst constitution of Crimea after Ukrainian independence was
issued in May1992. This was in part a reaction to the Ukrainian law
On the status of the AutonomousRepublic of Crimea.
Article 1 of this Constitution stipulated that the republic of
Crimea was a con-stitutional State. Within its territory it has the
exclusive right to dispose of its nat-ural resources and develop
full sovereignty in its territory (Article 1). Chapter 3,Article 9
provides for relations with Ukraine. Crimea intended to leave the
terri-tory of Ukraine; the legal relations were to be regulated by
contracts and agree-ments. A separate Crimean citizenship was set
up and it was stipulated that withsome States agreements can be
negotiated to allow for a double citizenship (Article17). Of
special importance for the relations with Ukraine was Article 121,
whichregulated the presidency of Crimea. This was to be the highest
of ce in Crimea.
The abolishment of the Crimean presidency was one of the most
crucial aspectsto harmonize the situation between Kiev and
Simferopol. The new Constitution in1996 was not accepted by the
Parliament of Ukraine and so it took until 1999, whena new Crimean
Constitution was put into force.
In Article 1 of the new Crimean Constitution the Autonomous
Republic of Crimeaconstitutes an indivisible part of Ukraine and it
ful ls its duties within the State ofUkraine according to Article
138 of the Ukrainian Constitution. In case of contra-dictions
between Crimean and Ukrainian norms the Ukrainian legislation has
to beobeyed (Article 2). Questions on the relation between
normative acts of Crimea andUkraine are decided by the
Constitutional Court of Ukraine. The president of Ukrainecan
abolish acts of Crimea that are not in accordance with the
Constitution of
126 DORIS WYDRA
64 Scheu Harald, Die Rechte der russischen Minderheit in der
Ukraine, Braumller Verlag, Wien 1997,86 et seq.
65 Zakon Ukrany, Pro avtonomnu Respubliku Krym, VVR 1995, N11,
st. 69.66 Ibid., at p. 163 et seq.
-
Ukraine, the laws of Ukraine and acts of the president and the
Cabinet of Ministersof Ukraine (Article 4). The Autonomous Republic
of Crimea has its own State sym-bols, a ag and a hymn. The capital
is Simferopol. The special status of Sevastopolis realized through
normative acts of the Verkhovna Rada of Crimea on the basisof the
Ukrainian legislation (Article 8). Russian is the of cial language
of Crimea,but also the use of the languages of the Crimean Tatars
and other minorities areguaranteed (Article 10). Documents may also
be issued in other languages thanRussian (Article 11). Before the
Courts the Russian and the Ukrainian languagemay be used (Article
12), and these two languages are also used for the documentsof the
post and telegraph system in Crimea (Article 13).
The Constitution of Crimea also provides for the State organs of
Crimea, theVerkhovna Rada of the Republic of Crimea (Chapter 6,
Articles 2134), the Councilof Ministers (Chapter 7, Articles 3538)
and the judiciary (Chapter 8, Articles 3941).They ful l their of
ces within the framework of the Ukrainian Constitution,
theUkrainian legislation, and according to the Constitution of the
Autonomous Republicof Crimea. There are no special courts in
Crimea, as there is only one court systemin Ukraine. Judges at the
courts in Crimea have to speak Ukrainian and Russian,since Russians
form the majority on the peninsula (Article 40).
In its nal paragraph the Constitution stipulates that the status
of the AutonomousRepublic of Crimea is guaranteed by the
Constitution of Ukraine and Ukrainian leg-islation. It cannot be
changed without the consent of the Verkhovna Rada of Crimea.This
consent to a modi cation of the autonomous rights of Crimea can
only begiven after a referendum on this question has taken place
(Article 48(2)).
4. Assessment of the Autonomy on Crimea
One of the central elements of autonomy is the provision of
special rights for a cer-tain group of people, differing from the
majority of the population of the nationalState.67 On the basis of
differences between internal and external self-determinationthe
concepts of autonomy and secession developed.68 In this connection
Casesestresses, that self-determination is the right of the whole
population of a State, whichmeans the accentuation of democratic
principles within a State. But this again maylead to the oppression
of a minority by the majority.69
Autonomy, when it aims at being a real concept of internal
self-determination, isalways a limitation of the sovereignty of the
national State.70 This leads us to one
CRIMEAN AUTHORITY AND SELF-DETERMINATION 127
67 Bernardt in Heintze Hans-Joachim, supra note 60, at p. 9.68
Heintze, supra note 60, at p. 9. 69 Casese points towards the
importance of democratic concepts in relation to authority in the
European
and OSCE framwork. Cassese, supra note 56, at pp. 302304
Hannikainen Lauri, supra note 63, at p. 85.70 Hannikainen Lauri,
supra note 57: On the basis of the autonomy of the Aaland Isles he
develops
a catalogue of requirements that have to be ful lled, to be
called real autonomy. One of the most impor-tant points he makes,
is that the legislation of the autonomous subject has to have the
competence toissue legal provisions above the normal legislation of
the State. This national State should not have thepower to abolish
this legislation by unilateral decisions. He goes even further and
claims that special
-
of the central problems regarding Crimean autonomy. In many
areas a parallel canbe drawn between autonomy in South Tyrol and
Crimea. In both cases a nationalminority is the majority of the
region in question and in both cases a second Stateclaims to
protect this minority. But while South Tyrol has real autonomous
rights(although the concept of autonomy in Italy can be criticized
for various reasons)the autonomy of Crimea cannot be called a full
autonomy.71 However, it must beremembered that generally speaking
Italy leaves more competencies to its regionsin comparison to
Ukraine. In general the notion of federalism is still met with
uneasein Ukraine. There is apprehension that the creation of
stronger federal structurescould further encourage separatist
movements.72 The Autonomous Republic of Crimeahas its own
Constitution, which States that each normative act of Ukraine
ranksabove this Constitution. In practice the autonomy of Crimea
does not provide morerights to the peninsula than to any other
oblast of Ukraine. A major problem is thatalthough there is a
guarantee of an autonomous status of Crimea within Ukraine,this
guarantee draws on the whole concept of autonomy and does not
relate to sin-gle paragraphs of the Crimean Constitution or to its
legislation. In practice everysingle normative act can be nulli ed
by Ukrainian authorities and Crimea does nothave the right to
appeal before the Constitutional Court of Ukraine. Article 3 of
theCrimean Constitution does not protect Crimean legislation from
being overruled byUkrainian acts and the Constitution of Ukraine
holds a framework rather than adetailed concept of autonomy.
Another problem of the Crimean autonomy lies within the
protection of smallerminorities. Unlike the autonomy of 1921, the
autonomy of 1991 is not set up forthe protection of the Crimean
Tatars but instead for the Russian majority of thepeninsula. The
Constitution of Crimea assumes that there is a Crimean
Population,where ethnic belonging is of secondary importance.
Ukrainian is the State languageand Russian is the lingua franca,
while the language of the Crimean Tatars is men-tioned only in
relation to the cultural and educational aspects. The
representationof minorities is not provided for in the Constitution
(Articles 10, 11, 13 Constitutionof Crimea).
One question is how their rights can be protected and not only
their rights, butalso those of the numerous small ethnicities
living in Crimea. A simple propor-tional system like that in South
Tyrol cannot ful l this aim. On the one hand, whichthe example of
South Tyrol shows, the Ladins are not really proportionally
repre-sented and it would be even more dif cult to represent the
smaller minority groupsof Crimea. A system heading towards
including all groups in the political decision-
128 DORIS WYDRA
councils should be set up do decide on con icts over competences
between the federal and the regionallevel, regional authorities had
to be included in the national decisions process and local courts
had tobe set up. The rights of a representative of the national
government in the region should be clearlyrestricted by law and
could only be put into of ce with the consent of the regional
authorities.
71 See for South Tyrol Veiter Theodor, Self-Determination and
the protection of ethnic minorities the case of the
South-Tyroleans, in Konrad Ginther, Huber Isaak (eds), Proceedings
of an internationalworkshop held at the Akademie Graz, July 56,
1989, Bhlau Verlag Wien, Kln, Weimar, 1991; vonEgen Alexander, Die
Sdtirol-Frage vor den Vereinten Nationen, Verlag Athesi, Bozen,
1997.
72 Sasse, supra note 47, at p. 34. Interview with Sirenko,
September 1998.
-
making process, in the administration and jurisdiction cannot
get along withoutforms of positive discrimination. But the Crimean
self-conception is still mostly aRussian self-conception.
On the economic level the autonomy of Crimea is also restricted.
Although theUkrainian Constitution provides for economic privileges
of the Autonomous Republicof Crimea, this does not include any
obligations for the federal level (Articles 137,138). Most of the
key industries are still under the administration of Kiev.
Someeconomic development zones were set up, but not under the
administration ofSevastopol and most of them did not bring the
expected results. One project thatbrought some positive results was
the economic zone Sivash, which was set upupon suggestion of the
administration of Krasnoperekopsk.73 In Sevastopol morethan a
quarter of the industry has special status and is directly
subordinated to Kiev.The same is the case with the tourism industry
around the city of Yalta. In April2000 a new project on the
construction of a transport bridge across the Kerch Straitwas
launched together with the Moscow government. This shall bring new
eco-nomic impulses for the region.
5. Conclusion
First of all, one has to note, that after 12 years of
independence Ukraine now is arelatively stable State, with signi
cant economic growth in the last two years, whichrenders the rise
of secessionist movements more unlikely. During this period
Ukrainehas managed to avoid armed clashes similar to the ones that
took place in Moldovaand the Russian Federation. The competencies
between the Autonomous Republicof Crimea and the authorities in
Kiev are now delimited by the Ukrainian and theCrimean
Constitutions. But the autonomy of the Autonomous Republic of
Crimeawithin Ukraine must be considered critically. As there is no
universal concept ofautonomy, each single case has to be analyzed
in relation to its aims and principles.Ukraine as a centralist
State leaves little real autonomy to Crimea. But the ques-tion is,
what is Crimean autonomy aiming toward? On the one hand this
autonomygave a special status to a region that was only included in
the territory of Ukraine50 years ago, a development of which the
population of the peninsula was not con-sulted. In 1954 this was
not much of a problem, as it only required changing admin-istrative
borders within the Soviet Union. The Crimeans stayed citizens of
theUSSR, but a problem developed after Russia and Ukraine became
independent Statesand the border between them suddenly became an
international border. After thestruggles for power in the early
1990s, a status quo was reached that provided cer-tain special
rights to the Russian majority of the peninsula so as to prevent
seces-sionist movements.
It also has to be pointed out again, that it is a Russian
autonomy and not auton-omy for the peoples of Crimea. The Crimean
Tatars and various other smaller
CRIMEAN AUTHORITY AND SELF-DETERMINATION 129
73 Zerkalo nedeli, 31 May 1997.
-
peoples of Crimea do not pro t from this autonomous status, as
their rights are notequally protected. On the contrary, they oppose
the autonomy of Crimea as itpresently exists and see their
political partners in Kiev rather than Simferopol. Theydemand
political representation and the right to take part in the
government of theregion they call their homeland.
Abbreviations
ASSR Autonomous Soviet Socialist RepublicCIS Commonwealth of
Independent StatesCSCE Conference on Security and Co-operation in
EuropeG.A.Res. General Assembly ResolutionICCPR International
Covenant on Civil and Political Rights ICESCR International
Covenant on Economic, Social and Cultural Rights RSFSR Russian
Soviet Federated Socialist RepublicOSCE Organization for Security
and Co-operation in EuropeUN United NationsUSSR Union of Soviet
Socialist Republics
130 DORIS WYDRA
-
Copyright of International Journal on Minority & Group
Rights is the property of Martinus Nijhoff and itscontent may not
be copied or emailed to multiple sites or posted to a listserv
without the copyright holder'sexpress written permission. However,
users may print, download, or email articles for individual
use.