Sunday, November 23, 2014


Ukraine

Crimea: Annexation And Recognition -- The Legal Battles Ahead

Members of a local electoral commission empty a ballot box for counting at a polling station in Sevastopol, in Crimea, Ukraine, on March 16.
Members of a local electoral commission empty a ballot box for counting at a polling station in Sevastopol, in Crimea, Ukraine, on March 16.

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On the eve of a referendum in which Crimean voters are all but certain to choose to separate the Black Sea peninsula from Ukraine and bring it back under Russian control, a number of protests were held in both Moscow and Ukraine.
By Ron Synovitz
As Crimea was preparing for just-completed voting in its regional referendum on whether to secede from Ukraine and join the Russian Federation, lawmakers in Kyiv scrambled to strengthen legal hurdles bolstering their argument that the referendum was illegal.

The Ukrainian parliament in Kyiv voted on March 15 to dissolve the Crimean Supreme Council, the regional parliament on the peninsula.

So how could Kyiv's move to dissolve the Crimean parliament affect the legality of a possible annexation of Crimea by Russia?

The move appears to be aimed at strengthening Kyiv’s argument under international law.

"Under international law, for any part of a country to secede, it has to go through whatever constitutional processes are set up in that country to enable it to secede," Barry Kellman, a professor of international law at DePaul University in Chicago and director of the school's International Weapons Control Center, explains. "The Kyiv action is relevant to that. It speaks to whether or not the Crimean referendum is constitutional under Ukrainian law."

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Dissolving the regional parliament in Crimea could strengthen Kyiv’s argument that Crimean secession violates international law because it violates Ukraine’s constitution.

At the same time, the dissolution of Crimea’s regional parliament could be seen as an attempt by Kyiv to counter proposed legislation in Russia’s Duma that would be required for the Kremlin to annex Crimea.

Currently, there are legal barriers under Russian constitutional law that must be removed before the Kremlin can take the step of annexation.

Duma lawmakers addressed those hurdles in a draft bill that is expected to have its first reading by March 17. That legislation would allow Moscow to accept "a part of a foreign country" into the Russian Federation "if the decision was approved or in accordance with a request from the organs of state power of that part of the foreign country."

The draft bill also says any request to join Russia must be approved by "a referendum conducted in accordance with the laws of the foreign state in the territory of that part of the foreign state."

That means Crimea's regional authorities must approve the results of the March 16 referendum for Russia to agree to annexation.

Early exit polling showed overwhelming support for Crimea to join the Russian Federation. Crimea's parliament said it planned to approve the vote as soon as possible after official results were announced.

From Kyiv’s perspective, dissolving Crimea’s parliament before the March 16 referendum allows Ukrainian authorities to argue that a Crimean annexation request fails to meet the requirements of the Duma’s draft bill because it was not carried out by "regional organs of state power."

Duma lawmakers said they would consider the draft bill after the results of Crimea's referendum were announced and after Russian President Vladimir Putin gave his recommendation on the issue.

Kellman concludes that the Duma's draft legislation and any arguments emerging from Moscow about Russian law in the days ahead are irrelevant under international law.

"The Russian legislation -- the Duma legislation – is of no legal significance outside of Russia," Kellman says. "If it clears a Russian constitutional hurdle, from an international perspective, it's just irrelevant. Their constitutionality has no bearing on the legality of the annexation as a matter [of law] outside of Russia."

But Kellman also says there is no practical way to enforce international law if Russia choses to annex Crimea following the referendum.

"That's extremely difficult because the typical answer would be through UN Security Council action. But, of course, Russia holds a veto on the Security Council. So that's a nonstarter," Kellman says. "So, in truth, there is no way to enforce that. The problem, from Russia's standpoint, is with recognition. Will anyone other than Russia recognize Crimea as a part of Russia? The reality is that they can take it over and, after a while, yes, it does become a fait accompli. Take a look at China's takeover of Tibet. This is not a legal process. This is a process of exerting military power."

On March 16, Putin told German Chancellor Angela Merkel by telephone that Moscow would "respect" the choice of Crimean voters. The Kremlin says Putin told Merkel that Russia believes the referendum in Crimea does comply with international law.

The United States and the European Union have condemned the referendum as illegal and have threatened economic and political consequences for Russia if Moscow takes further action to seize control of Crimea.

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