Lawyer Ilya Remeslo examines the most common misconceptions about the Crimean referendum on March 16, 2014, and assesses its compliance with the Constitution of Ukraine and norms international law
On Monday, Russia marked the anniversary of the referendum on the status of Crimea. To this day, controversy surrounding this event continues about whether the vote of the residents of the peninsula was legal. Let's look at the most common misconceptions associated with this referendum.
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Misconception #1. The referendum is illegal because it contradicted the Constitution of Ukraine
According to Article 73 of the Constitution of Ukraine, issues regarding the territory of Ukraine can only be resolved through an all-Ukrainian referendum. However, this norm must be assessed in conjunction with the other norms of the Basic Law, as well as the norms of international law, which are part of Ukrainian legislation.
Article 5 of the Constitution of Ukraine establishes that only the people are the source of power, and no one can usurp it. As is known, during the referendum in Crimea there was no legally elected government in Ukraine. A coup was carried out, President Yanukovych and the legitimate government of Ukraine were overthrown without following any impeachment procedures.
Ukrainian authorities say that the legitimate Verkhovna Rada appointed a new government because it was necessary to govern the state. However, in Ukraine, power is divided into legislative, executive and judicial branches, which provides a system of checks and balances. Each branch of government has strictly defined functions.
It turns out that the parliament of Ukraine illegally took over the functions of the executive branch, which makes the government as a whole illegitimate. What would the “opposition” say if Yanukovych ordered the arrest of all members of parliament (despite their immunity), forced them to flee Ukraine, and then single-handedly began to approve laws without the consent of parliament? That's right - I would call him a usurper. But the Verkhovna Rada did the same thing.
In such a situation when state institutions destroyed and do not function, what should have guided the people of Crimea? By its own will and generally recognized norms of international law.
The UN Charter and the International Covenant on Economic, Social and Cultural Rights state that all peoples have the right to self-determination. By virtue of this right they freely establish their political status and freely pursue their economic, social and cultural development. All States Parties to this Covenant shall, in accordance with the provisions of the UN Charter, promote the exercise of the right to self-determination and respect this right.
In a situation of legal vacuum, when the central authorities are formed and act contrary to the Constitution and the will of the people, in a democratic state the people have the right to directly express their will, including self-determination up to and including secession.
Misconception No. 2. International law is based on the principle of territorial integrity and inviolability of borders. The Crimean precedent undermines the foundations of international law
Those who say this ignore the subordination of the principle of territorial integrity to the right to self-determination. The Declaration of Principles of International Law states that “nothing in the actions of States shall be construed as authorizing or encouraging any action which would tend to dismember or impair, in whole or in part, the territorial integrity or political unity of sovereign and independent States, observing in their actions the principle of equality of rights.” and self-determination of peoples."
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It is absolutely clear that the principle of territorial integrity applies only to sovereign states that respect the equality and self-determination of peoples. Was Ukraine a “sovereign” state, where a coup took place, and the linguistic and cultural interests of the Russian-speaking population were not considered at all?
Misconception #3. To hold a referendum, it was necessary to obtain the consent of Kyiv
As already noted, the Ukrainian authorities lost their legitimacy in February 2014. Let us assume that they agreed to hold an all-Ukrainian referendum. Would Crimea be able to secede from Ukraine then?
According to Article 157 of the Constitution of Ukraine, it cannot be changed if the changes are aimed at violating the territorial integrity of Ukraine. But without changing the Constitution, the right to self-determination cannot be realized in principle. It is Article 133 of the Basic Law that determines the territorial composition of the constituent entities of Ukraine. It turns out that the realization of the right to self-determination according to the Ukrainian constitution is impossible in principle. How then should this be, since the generally recognized right to self-determination must somehow be realized?
Here the very norms of international law come into force, which, according to Article 9 of the Constitution, form part of the legislation of Ukraine.
Thus, the holding of the Crimean referendum was actually based on the direct implementation by the people of the norms of international law recognized by Ukraine. The right to self-determination implies that the self-determining part does not ask permission from the whole.
Was there a national referendum on the secession of Kosovo in Serbia? Or, when they held a referendum on Scottish independence, were all English people asked for their opinions on the status of their neighbors?
Misconception #4. Crimea did not have the right to secede from Ukraine, since it was recognized as part of it when it seceded from the USSR
Here it would be appropriate to recall the facts indicating that Ukraine violated the sovereignty of Crimea back in the 90s. In January 1991, a referendum was held in Crimea, in which more than 83% of Crimean residents took part. In accordance with the results of the referendum, the Autonomous Soviet Socialist Republic was formed within the USSR. On May 5, 1992, the Supreme Council of Crimea adopted a declaration of state sovereignty. But in 1995, the Verkhovna Rada of Ukraine abolished all regulations of Crimea, including the Constitution.
De facto last decades Crimea was a territory illegally occupied by Ukraine.
Misconception #5. Russia, by supporting the referendum, violated the Budapest Memorandum, which guaranteed territorial integrity Ukraine
For some reason, we are very afraid of a repeat referendum in Crimea. It’s clear why: the Presidential Administration does not trust own people, and even in a situation where mass beliefs completely coincide with what she is doing, she prefers to model the popular will, rather than simply implement what is objectively there. Completely in vain!
What would happen if Russia proposed a repeat Crimean referendum today? Never mind! Crimea would have voted for Russia. Let’s say Ukraine would not agree with such a formulation of the question: their public figures declare that the whole of Ukraine should vote. Great! However, since Crimea is going to join Russia, it would not be amiss for Russians to vote. A wonderful, completely new “geopolitical” (we love this empty word) reality is emerging: for the first time in 25 years, the peoples of the collapsed USSR are jointly resolving some issues.
What is interesting here is not only the referendum itself, but the consequences that will arise during its preparation and conduct. Russia will have an excellent absolutely legal opportunity to directly address the citizens of Ukraine, bypassing all intermediaries represented by the Ukrainian authorities. The resources senselessly wasted on 3 Armata tanks and 2 Su aircraft could be used in this direction - and achieve what the smart guys with machine guns and beeches could not achieve. For example, the first thing that comes to mind is Gazprom’s direct sale of gas to the population of Ukraine, taking advantage of the same rules on independence of transportation and sales that Gazprom is oppressed by in Europe. Just offering it will be more than enough! You can promise some kind of indirect compensation, but anything is possible! There is room for creativity, in contrast to the situation when all creativity is limited to how to quietly carry equipment across the border.
Of course, Ukraine will also have the opportunity to operate on Russian territory. And to your health! Let their Shusters, Kiselyovs, Ganapolskys come to us - do we not know them, or what? Yes, they left us there! Let Lyashko, Tymoshenko, Klitschko, and even Saakashvili bring their own. The Ukrainian vector of independence is built on isolation from Russia, an attempt to “outgrow” Russia: there are objective reasons for this. Let them come to us and tell us why they need to be independent from us! And we will tell them why we should be together! Only, of course, without spiritual bonds, since quite practical aspects of economics are sufficient.
The next argument that Ukraine could make is - why only Crimea? Let's, then, raise the question of the Krasnodar Territory and the Voronezh Region (they have some justification for their claims to these regions). Come on! Only - in accordance with how referendums are usually held: let them go and collect signatures in these regions to initiate such a referendum. Just let us, then, be given the opportunity to collect such signatures in Kharkov, Kherson, Odessa, and Dnepropetrovsk. Yes, in the same Donetsk and Lugansk! There is no doubt that in Crimea there is a significant group of citizens in favor of unification with Russia. Whether there are citizens with similar sentiments in Kherson and Voronezh - we must first find out. However, Russia wins in any case: the more regions are involved in the need to re-evaluate relations between the two peoples, the better.
The funny thing here is that you most likely won’t have to do anything. It is unlikely that our Ukrainian, European and American partners will agree: because they understand no less than we do how such a referendum will end. But we will have a powerful argument in international politics! We will speak their language, the one imposed by the international community: the language of democracy! Churkin, instead of swearing and trying to get out of it, will only have to “push through” this referendum with all his ardor - and he will have nothing to answer. Russia will finally get an idea, beyond the spirits of our ancestors: we are saving democracy from those who patented it and use it for their own interests. It will immediately become easier for our intelligence officers, lobbyists, and agents of influence to work. If now they justify their claims only with money, in the future it will be possible to put the idea first - any intelligence officer knows that in the delicate matter of recruitment this is the most important factor!
If it comes to a referendum, let them send their observers. As many as they want, wherever they want! Only we will send our own to Ukraine. And here we have an advantage: it is almost impossible to cover all of Russia with observers, but we, on the contrary, have enough young “activists” who are being scammed by almost every governor.
In the worst case scenario, we will lose Crimea. This is definitely a stupid way to pose the question! It’s not “we will lose,” but the citizens will express their will. In principle, Crimea today only burdens the budget, and given the uncertainty of its “geopolitical” position, this situation cannot be changed. However, I can’t imagine what needs to happen for people to vote for the return of Crimea to Ukraine. If anything, today's ambiguity poses a greater threat than repeat referendum. Or, what is very important: than clearly expressed the idea of a second referendum.
On March 16, 2014, a referendum was held in Crimea and Sevastopol, according to the results of which about 96.77% of voters in the republic and 95.6% of voters in the city voted for the reunification of the peninsula with Russia. The turnout was 83.01% and 89.5%, respectively.
Based on the results of the referendum and the declaration of independence adopted on March 11, on the 17th the Crimean parliament proclaimed the independence of the republic. Simferopol appeals to Moscow with a request to include the peninsula into Russia as a new entity. Vladimir Putin signs a decree recognizing the independence of the Republic of Crimea, and then approves a draft agreement on the reunification of Crimea with Russia.
Further, on March 18, in the St. George Hall of the Kremlin, an agreement was signed on the reunification of Crimea with Russia, according to which new entities appear within the Russian Federation - the Republic of Crimea and the city federal significance Sevastopol. The document is signed by the President of Russia Vladimir Putin, Chairman of the State Council of Crimea Vladimir Konstantinov, Chairman of the Council of Ministers of Crimea Sergey Aksyonov and the head of Sevastopol Alexey Chaly.
20th of March The State Duma The Russian Federation passes a law on the reunification of Crimea with Russia; on March 21, the president signs this document and approves the ratification of the relevant treaty. Putin also signs a decree on the creation of the Crimean Federal District.
It is worth recalling the background to the plebiscite. The authorities of the Autonomous Republic of Crimea, against the backdrop of a systemic political crisis and mass unrest in Ukraine, decided on February 27, 2014 to hold a referendum, scheduling it for May 25, 2014. By the way, the original referendum question did not include a decision to secede from Ukraine, but only proposed a return to the provisions of the 1992 Constitution, which provided Crimea and its population with broader rights. The basis for this decision was the refusal to recognize the legitimacy new government, as well as reasonable fears for the fate of the population of the peninsula.
The further deepening of the crisis and threats from Kyiv led to the fact that in early March the date of the referendum was postponed to March 30, and on March 6 this date was again postponed to the 16th. On the same day and on the same date, a similar referendum was scheduled in Sevastopol.
Now the question was different. Residents of the two regions were asked to make a choice: either become part of Russia, or return to the 1992 Constitution and remain part of Ukraine. Later, the European Union, the United States and other states refused to consider the decision of the authorities of Crimea and Sevastopol legal. The OSCE also refused to send its observers to monitor the referendum, citing the fact that such a request had not been received from the official authorities of Ukraine. Actually, this predetermined the fact that the West still does not de jure recognize the peninsula as part of Russian Federation.
The referendum in Crimea has passed. Photo from the site ru.tsn.ua
The Crimean referendum, which the world and Ukraine did not recognize, but which Russia recognized, took place.
Its results are more than eloquent: according to official data, 96.6% of voters voted in favor of joining Russia. But will this referendum affect anything? Of course yes, he will give his beloved “brother” another argument with which to put pressure on Ukraine.
By the way, if one of the constituent entities of the Russian Federation wanted to express their opinion in exactly the same way, then in Russia it would be called separatism. And in Ukraine, the Kremlin calls this referendum “the will of the people.”
A referendum is beyond any legal norms
The Supreme Council of Crimea does not have the authority to resolve territorial issues. This is according to the law of Ukraine.
According to international norms, the question of separating one part of the state from another is carried out when peaceful coexistence becomes impossible. Not a single fact of threat to the population of Crimea from “nationalist radicals” was provided.
How it should have been
The issue of the borders of the state can only be resolved in an all-Ukrainian referendum and in no other way. The Supreme Council of Crimea had to appeal to the Verkhovna Rada of Ukraine with a request to hold an all-Ukrainian referendum. Instead, the deputies of the Crimean parliament organized a referendum for themselves, not obeying the demands of Kyiv. By the way, back in early March, the Kiev authorities, unrecognized by Crimea, allocated 400 million hryvnia to stabilize the banking sector on the peninsula. They took the money there, but the new government was still not recognized.
There were no polling stations in other Ukrainian cities
Precisely because the referendum was illegal - there were no polling stations either in Kyiv or in any other place in Ukraine except Crimea. And what would polling stations look like in the capital of Ukraine, which does not recognize the referendum? It turns out that it is illegal, but if you want, vote?
Technical inconsistencies
Initially, March 30 was announced as the date for the referendum, but a new date was set on March 6 – March 16. That is, there were only 10 days to prepare for the most important event. During this time, it was necessary to check the voter lists, send out invitations to vote, prepare polling stations, and recruit commissions. After all, international observers must be present at civilized elections or referendums. But they were not there. Regarding the lists, we generally need to speak separately; the Central Election Commission blocked access to this information for the new authorities of Crimea, but they were not bothered by this. The lists were “sketched” approximate; those who were not on them were added separately, by hand.
The fate of Ukraine was not decided by Ukrainian citizens
A very indicative case is that of a journalist from Russia who, in the Crimean referendum, having only a temporary residence permit in Sevastopol, voted using a Russian passport. Nobody asked any special questions there; if you want to vote, vote. If you don't want to, vote too. Right on the street, "polite people" will help.
According to official data, voter turnout in Crimea as of 20:00 was 81.36%, said Mikhail Malyshev, Chairman of the Commission of the Supreme Council of Crimea for organizing and conducting the referendum. Here's exactly what he said:
But what if you count it? 1,724,563 people, let’s subtract 1,250,426 from them, then 474,137 people from Sevastopol voted in the referendum. At the same time, the website of the statistics department in the city of Sevastopol indicates that according to the latest data (end of 2013), 359,702 people lived in the city (according to the demographic passport of the city of Sevastopol). This includes minors who are not allowed to vote. Attention to the question: where did the other 114 thousand people who voted in Sevastopol come from? This is almost a third of the city’s population. And this is only in Sevastopol.
A referendum on the status of autonomy was held in Crimea; more than 90% of those who came to the polling stations were in favor of the republic joining Russia.
On February 22, a change of power took place in Ukraine, which had signs of a coup d'etat. The Verkhovna Rada removed President Viktor Yanukovych from power, changed the constitution and appointed presidential elections on May 25th. On February 23, by a resolution of the Verkhovna Rada, Rada Speaker Alexander Turchynov was appointed acting president of Ukraine.
The Sevastopol City Council for the creation of an executive committee in the city, headed by Alexey Chaly. Since February 24, Sevastopol residents began to constantly hold rallies in the city center in support of the people's mayor. Pickets were also held near Ukrainian military units with calls not to turn weapons against people.
Pro-Russian residents of Crimea began an open-ended protest near the building of the Supreme Council, demanding that deputies not recognize the new leadership of the country, which came to power after unrest and clashes in Kyiv. Participants in the Crimea action as amended in 1992, according to which the republic had its own president and independent foreign policy. In addition, those gathered demanded to hold a referendum in which the residents of Crimea could choose the path for further development of the region: in the current status of an autonomous republic within Ukraine, as an independent state or as part of Russia.
On February 26, people also gathered at the parliament building Crimean Tatars, supporting a change of power in Ukraine. Clashes occurred between two groups of protesters, which resulted in... One man died in the stampede and another woman died in the hospital from injuries received in the crowd.
Self-defense forces of the Russian-speaking population occupied the buildings of the Supreme Council and the Council of Ministers of Crimea.
The Supreme Council of Crimea appointed the leader of the Russian Unity party Sergei Aksenov as head of the Council of Ministers (government).
(parliament) of Crimea scheduled a referendum on May 25 on expanding the powers of the autonomy with the question: “Do you support state self-determination of Crimea within Ukraine on the basis of international treaties and agreements?”
Supreme Council of Crimea, government of the autonomous republic. was formed new line-up Council of Ministers of the Autonomous Republic.
Unknown armed people tried to seize the buildings of the Council of Ministers and the Supreme Council of Crimea.
On March 1, the head of government, Sergei Aksenov, at the first meeting of the Council of Ministers of Crimea in the new composition said: “...Given difficult situation"in autonomy and understanding my responsibility for the life and peace of citizens who live on the territory of the republic, I decided to seek help from (Russian President) Vladimir Vladimirovich Putin in order to assist in establishing legal constitutional order on the territory of the Autonomous Republic of Crimea."
On the same day, Russian President Vladimir Putin addressed the Federation Council on the use of the Russian Armed Forces on the territory of Ukraine, in the Autonomous Republic of Crimea, until the socio-political situation in this country normalizes. The upper house of parliament unanimously supported the address of the head of state, and it came into force.
The Crimean parliament decided to integrate the autonomy into Russia. It was also decided to postpone the referendum to March 16. The following questions were put to the referendum:
“Are you for the reunification of Crimea with Russia as a subject of the Russian Federation?”
“Are you for restoring the 1992 Constitution of the Republic of Crimea and for the status of Crimea as a part of Ukraine?”
The Supreme Council of Crimea also Federal Assembly of the Russian Federation with a proposal to begin the procedure for joining the Russian Federation as a subject of the Russian Federation.
Sevastopol state council At an extraordinary session, he decided to join the city to the Russian Federation. In addition, the Sevastopol City Council supported the decision of the Supreme Council of Crimea to hold a Crimean referendum on March 16.
The Supreme Council of Crimea adopted a declaration in support of the region's independence from Ukraine and its intention to join the Russian Federation.
The Declaration noted that the Parliament of Crimea and the City Council of Sevastopol adopted this decision, “based on the provisions of the UN Charter and a number of other international documents establishing the right of the people to self-determination, and also taking into account the confirmation International Court of Justice UN regarding Kosovo of July 22, 2010, the fact that the unilateral declaration of independence of a part of the state does not violate any norms of international law."
A referendum was held on the peninsula on future fate region. Two questions were included in the ballot: “Are you for the reunification of Crimea with Russia as a subject of the Russian Federation?” and “Are you for restoring the 1992 Constitution of the Republic of Crimea and for the status of Crimea as a part of Ukraine?” The majority of voters (96.77%) were in favor of reunification with Russia. According to the head of the Crimean referendum commission Mikhail Malyshev, the turnout was 83.1%.
The Supreme Council of Crimea, based on the results of the referendum, adopted a resolution on independence from Ukraine. Parliament also made a proposal to admit Crimea to the Russian Federation as a subject.
The Supreme Council of Crimea in the official names of the authorities of the Republic of Crimea and other bodies instead of the words " Autonomous Republic Crimea" use the words "Republic of Crimea".
Russian President Vladimir Putin, the leadership of Crimea and the mayor of the city of Sevastopol signed an agreement on the entry of the Republic of Crimea and Sevastopol into Russia.
The agreement was subsequently approved by the State Duma and the Federation Council.
President Vladimir Putin signed the law on the ratification of the treaty on the annexation of Crimea and Sevastopol to Russia and the federal constitutional law on the procedure for their entry into Russia.
The material was prepared based on information from RIA Novosti and open sources