International Interna tional Journal on Minority Minori ty and Group Rights Ri ghts 10: 111–130, 2004. © Koninklijke Brill NV. Printed in the Netherlands.
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The Crimea Conundrum: The Tug Tug of War War Between Between Russia and Ukraine on the Questi Q uestions ons of Autonomy and SelfS elf-Determi Determination nation DORIS WYDRA*
Since Ukraine became a sovereign State in 1991 it has had to ght serious economic, social and legal problems. problems. The ‘borderland’ ‘borderland’ Ukraine Ukraine had to nd its way out of the shadow of ‘big brother’ Russia and develop its own national identity. identity. But also for Russia it was hard to accept an independent Ukrainian State. The peninsula of Crimea stands stand s as a symbol for the difcult difcult situation Ukraine Ukraine faces between the ‘East’ and the ‘West’, ‘West’, for the economic troubles, for the difculties difculties of transformation and for a variety of homemade problems, such as corruption and the accepaccep tance of its own o wn statehood. But it is also a symbol symbo l for the conicts between different different ethnic groups and their quest for self-determination. Since 1991 the history of Crimea has been that of a ght by the Russian population of the peninsula for self-determination. It was also a ght of the Crimean Tatars to return to the land they see as their homeland, which they were forced to leave in 1944. The rst part of this article will therefore start start out with a summary of the Crimean history, history, which will give an impression impression of how h ow the situation on Crimea could develop into such a deep d eep crisis such as emerged especially especial ly between 1991– 1991 –1995. It will also take a closer look into the relationship between Russia and Ukraine after the dissolution of the Soviet Union and its impact on the Crimean conict. The second part draws upon international concepts of self-determination, including including internal selfdetermination and autonomy and the design of Crimean autonomy auton omy in the Ukrainian constitution and legislation. This will be summed up through a critical approach towards Crimean autonomy within Ukraine. Although the relation between Russia and Ukraine will be a main aspect of this paper, it will not go into detail of the partition of the Black Sea Fleet. It is important to note, that Russia clearly connected con nected the question of the status of Crimea C rimea and Sevastopol to the arrangements on the eet.1
* The author studied law law, political science science and Russian Russian at the University of Salzburg and Vienna. Vienna.
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1. Crimea between Russia and Ukraine
1.1. The History of Crimea until Ukrainian Independence For the most part, the history history of Crimea Crimea is not ‘Ukrainian’ history. The peninsula has always been a homeland for numerous peoples, such as the Scythians, the Greeks and the Tatars. Tatars. The name krym is of o f Tatar Tatar origin, and means me ans ‘rock fortress’. And it was the Tatars, Tatars, who dominated d ominated the history of Crimea for centuries. During the 13th century the Golden Horde established the khanate of Crimea, which was independent until 1475. It then came under the dominance domina nce of the Ottoman Empire, but still held a lot of privileges and freedoms.2 But Crimea was also always of interest to the Russian Empire, because of its strategic position at the Black Sea co ast. In 1775 Catherine the Great was able to conquer the Ottomans on Crimea and the contract of Kainarji was set up, securing Russia the full power over the peninsula.3 Two concepts began to emerge in the region: on the one hand Crimea was the homeland of the Crimean Tatars and on the other hand it became a symbol of the power of the Russian Empire.4 The 20th century was characterized by changing governments and armed clashes between rivalling political and ethnic eth nic groups. In 1917 the Bolsheviks gained inuence on the peninsula. They regarded the election of the Kurultaj, the Parliament of the Crimean Tatars, Tatars, as a sign that the Tatars Tatars were ready to take ta ke over power on Crimea, C rimea, while the Tatars refused to accept a Soviet government. When the Bolsheviks sent troops against the Rada in Kiev, Kiev, armed conicts c onicts arose. But Simferopol was not able abl e to hold against the Red Army and as a consequence the Kurultaj was dissolved again. But the communist communi st regime regime did not no t last for a long time. In 1918 sailors of the Black Sea Fleet began to join the white troops and in the same year the German army arrived on Crimea. The Republic of Tauria Tauria was proclaimed, proclai med, as there was hope hop e that the Germans would woul d respect a sovereign sove reign State. But this was not the case. case . As As in Kiev, the Germans set up a marionette government under Sulkevich. When the Germans had to leave leav e Crimea in November 1918 a new Russian R ussian government under Solomon S. Krym came into ofce. But already in May 1919 a communist government was set se t up, this time including includ ing Crimean Crimean Tatars. Tatars. Again this lasted only for a few weeks. week s. This government had to ee from the white troops of General Denikin. Denikin then established a government gove rnment that was directed against the political orgaorganizations of the Tatars, Tatars, forcing them to work from underground. Because of this the Crimean Tatars started to co-operate with the communists. However, in October 1920, when the communists were successful in regaining power on Crimea, their government did not include in clude Tatars. Tatars.
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In 1921 the communist government in Moscow sent Sultan-Galiev to the Crimean peninsula to report on the situation of the Tatars. His recommendations were decisive for the creation of the Autonomous Socialist Soviet Republic of Crimea as part of the RSFSR. 5 But the afliation to the Russian Federation proved to be quite a problem for Crimea. The civil war resulted in a famine; the interest of the Moscow government in the situation of the Crimean Tatars was low. Although within the concept of korenisacija the Tatars were represented in all political ofces, another wave of Russians migrated to the peninsula,6 thus further diminishing the political power of the Tatars. When Stalin came into ofce, repressions on Crimea started which were especially directed against the Tatar population, as they were accused of collaboration with the German troops.7 This climaxed in the mass deportations of May 1944. This persecution included not only the Tatar population itself, but also all signs of Tatar culture which had to be removed. 8 Crimea lost its autonomy and became an oblast within the RSFSR. In 1949 Sevastopol received special nancial rights 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 of Ukraine. 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 the peninsula to the Ukrainian SSR was ratied and the law ‘On the transition of the Crimean Oblast from the RSFSR to the Ukrainian SSR’ was issued. There was a tale about Khrushchev initiating this transfer, but it was rather that the 300–year jubilee was a welcome reason for soviet self-portrayal. Ukraine received a territory that was mainly inhabited by Russians and a population which massively resisted the moving in of Ukrainian population.11 Already in September 1990, only two months after the declaration of sovereignty of Ukraine, the Supreme Soviet of Crimea asked its Russian and Ukrainian counterparts to reinstall the status of autonomy on Crimea. On 20 January 1991 a referendum took place on the peninsula; 93.2 per cent of the voters favoured the
5
Pipes Richard, The formation of the Soviet Union, Communism and Nationalism 1917–1923, Harvard University Press, 1954, pp. 184–192. 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 1944–1994 , Minsk 1994; Chongar Umerov, ‘Vse eto ja videl sobstvenymi glazami’, Krymskye tatary 1944–1994, Minsk 1994, pp. 86–93. 9 Svetova Svetlana, Solchanyk Roman, supra note 2, at p. 27; Wendland Veronika, ‘Die ukrainischen Länder von 1945–1993’, in Golczewsky (ed.), Geschichte der Ukraine , Vandenhoeck & Ruprecht,
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resurrection of the Autonomous Republic of Crimea as a member of the USSR and as a member of the Union Treaty. In accordance with this result the Autonomous Republic of Crimea was established within the territory of Ukraine. 12 It is important to point out that unlike in 1921, the Autonomous Republic was not established within the framework of the Russian Federation, but within the USSR. 13 Pikhovshek stresses 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, therefore, no legal connection between the USSR within the Russian Federation and the Autonomous Republic of Crimea in Ukraine can be drawn. 14 Already in Autumn 1991 centrist positions dominated within the Parliament of Crimea and with the decline of the economic situation of Ukraine, the position of radical 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 Conict over Crimea since 1991 Since 1991 Ukraine has once more tried to go its own way apa rt from Russia. 16 But the 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 Russian Federation. On the one hand it is seen as a ‘brother State’, sharing the same problems and being, therefore, a possible partner in nding solutions. On the other hand Russia is regarded as former oppressor still trying to deter Ukraine from becoming a self-condent, European State. On 1 December 1991 the referendum on the independence of Ukraine took place on 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 the Ukrainian average.17 Already in 1992 a struggle about the division of powers between the Crimean and Ukrainian authorities began. The situation became even more serious, when
12
Svetova Svetlana, Solchanyk Roman, supra note 3, at p. 27. Zakon ukrainskoj radjanskoj socialisticnoj respubliki pro vidnovlennja krimskoj avtonomnoj radjanskoj socialisti cnoj respubliki, 12.2.1991, N 712–XII. 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 & Littleeld Publishers Inc. 1995, pp. 40–41. 15 Umbach Frank, ‘Russia and the problems of Ukraine’s Cohesion: Results of a Fact-Finding Mission,’ Berichte des Bundesinstituts für internationale Studien, 13–1994, pp. 28–29; Zakon Ukrainskoj Socialisticnoj Respubliki pro vidnovlennja krimskoj avtonomnojradjanskoj sozialisti cnoj respubliky, 12.2.1991, N 712– †
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Russia immediately interfered in the relations between Simferopol and Kiev. Already in January 1992 the question about the legitimacy of the donation of the peninsula to Ukraine in 1954 was on the agenda of the Russian Duma. 18 The Ukrainian Parliament regarded this as an infringement of the November 1990 treaty between Ukraine and the Russian Federation and the CIS Agreement. 19 Kiev also issued a warning to separatist movements in Crimea. 20 But again in April Alexander Ruzkoj, the Vice-President of the Russian Federation openly favoured the secession of Crimea. Still it seemed hard for the Russian self-conception to accept Ukraine as a separate State. Russian history and identity always regarded Ukraine as part of the Russian Empire. Quite often Ukraine’s declaration of independence was seen as the nal trigger for the dissolution of the Soviet Union. Even more of a problem was that Ukraine subordinated the Soviet troops on its territory, including parts of the Black Sea Fleet to the Kiev authorities.21 For some Russian politicians the independence and the ‘loss’ of Crimea was hard to accept. In 1992 Zhirinovsky compared the situation of Crimea with Kuwait: both should be returned to their ‘legal owners’. 22 In Spring 1993 Sergej Stankevich (the political advisor of president Yeltsin) advised Western diplomats not to set up embassies in Kiev, as they would soon be degraded to mere consulates.23 For quite some time the Russian borders with Ukraine were not regarded as ‘State’ borders and the division of the Black Sea Fleet, the question of double citizenship, the division of international property and obligations of the USSR remained further controversial subjects. These were additional reasons why it took two years to ratify the ‘big friendship-treaty’ between Ukraine and Russia. Russia especially regarded this treaty as treason towards Russian interests. 24 One of the most important aspects, for the situation on Crimea, was the foreign policy of Russia, especially concerning the ‘near abroad’ and the protection of Russians in the newly independent countries. 25 Ukrainian policy also proved
18
Kozyrev (Foreign Minister) stated: The donation in 1954 was illegal, as it was only a decision by the 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 and Prospects, Rowman & Littleeld Publishers Inc. 1995, p. 5). 19 Zajava Verchovnoj Rady Ukrainy , 6.2.1992, N2102–XII. 20 Zajava-zvernennja prezidij Verchovnoj Rady Ukrainy do Narodu i Verchovnoj Rady Krimu , 28.2.1992, N 2151–XII. Taras Kuzio, ‘Russia-Crimea-Ukraine: Triangle of conict’, Conict Studies 267, London 1994, p. 21. 21 Krämer Holger, Russland und die Ukraine. Die Politik Moskaus gegenüber Kiew seit dem Ende der 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 Sea
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critical for the relations with Russia. Russia criticized Ukrainian foreign policy for distancing itself from core CIS structures. Difculties were also compounded by a different understanding of the term ‘strategic partnership’. The Russian denition of this partnership as an obligation to coordinate foreign and security policy was too far-reaching for Ukrainian authorities. On the one hand, the Ukrainian side regarded the CIS-structures as temporary, being set up by States that had a common past, but no common future. Russia, on the other hand, accused Ukraine of sacricing the friendship with Moscow for closer relations with Western Europe. 26 With regard to Russian security policy, Crimea’s importance stemmed from its strategic position as the main naval port of the Black Sea Fleet. When Ukraine became independent the partition of the Black Sea Fleet was therefore of crucial importance for both States as was the status of the city of Sevastopol.27 The decisions of the commandership of the Russian part of the Black Sea Fleet also fuelled the conict on the status of the peninsula. 28 In 1992 it seemed as if Crimea would split up completely when northern parts of Crimea also threatened to hold a referendum to unite with southern oblasts of Ukraine. Igor Kasatonov, the commandant of the Black Sea Fleet, wanted to dislodge all Ukrainian military units from Sevastopol. The struggle over competencies between Kiev and Simferopol was to be ended by an agreement. But this law was never issued, as Simferopol and Kiev could not agree on formalities. The Crimean side was convinced that because the Crimean Parliament had already accepted the law, it was not up to Ukraine to decide whether to ratify it or not. Kiev argued, that this would have meant that the Crimean Parliament was on the same l evel with the Ukrainian Rada, which was not the case. The Verchovna Rada of Ukraine changed some articles of the law and named it ‘On the Status of the Autonomous Republic of Crimea’. The aim to resolve the ongoing conicts could not be reached; on the contrary, it even strengthened the secessionist tendencies.29 On 5 May 1992 the Parliament of Ukraine declared the independence of the peninsula and issued the Constitution of Crimea. This declaration was to be approved by a referendum in 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
26
Kuzio Taras, supra note 20, at p. 7. 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. 37–44. 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 (1991–1995) , Ukrainian Center for Independent Political 27
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the chair of the Supreme Rada of Crimea decided to withdraw the declaration of national sovereignty since this sovereignty was already realized through the Constitution of Crimea. The question on the national independence of Crimea envisaged for the referendum was to be replaced by the question for the approval of the Crimean Constitution. The Ukrainian Parliament was asked to reconsider the law ‘On the Status of the Autonomous Republic of Crimea’ and the ‘Law on the representative of the Ukrainian President on Crimea’. 31 In May 1992 the referendum on Crimea was suspended until 10 June. Again the Russian position had a critical impact on the tensions as the Russian Parliament came to the conclusion that the donation of Crimea was not in accordance with the Constitution and the legislation of the USSR. On 30 June the Ukrainian Parliament approved far-reaching autonomous rights to Crimea and on 9 July Crimea issued a moratorium on the referendum. In September 1992 the Crimean Parliament issued the law ‘On the ag of the Autonomous Republic of Crimea’. The colours of the ag matched the colours of the Russian ag and once again discussion started on double citizenship in the peninsula. The Crimean Parliament took the position that Ukrainian citizenship should not be obligatory for citizens of Crimea, and the Russian language was to become the State language of the Autonomous Republic of Crimea. 32 As the Ukrainian authorities turned against these decisions of the Crimean Parliament the Russian Duma started discussions on the status of the city of Sevastopol. It drew on the decree of the Supreme Soviet of the Russian Federation from the year 1948 to prove that Sevastopol had a special economic and administrative status within the RSFSR and had, 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 Russian Parliament, which stated that Russia could possibly support a referendum on Crimea and was also ready to integrate Crimea as an independent member into the CIS structures. This proposal was later withdrawn by Russia. 34 But already in July the Russian Parliament stated that Sevastopol would always be part of the territory of the Russian Federation. While Ukraine assessed this as aggression against the Ukrainian State, this declaration was received with delight on Crimea. 35 The conict between Kiev and Simferopol was at its height when in 1994 Crimea set up the ofce of President of Crimea. The presidential elections took place on 16 and 30 January 1994. But it was not the ofce itself that heightened tensions with
31
The Crimea: the Chronicle of Separatism (1991–1995), supra note 29, at pp. 30–31. 32 Svetova Svetlana, Solchanyk Roman, supra note 2, at p. 28; The Chronicle of separatism (1991–1995 ), supra note 29, at pp. 43–57. 33 Solchanyk Roman, supra note 18, at p. 9.
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Kiev, but rather the successful candidate, Meshkov.36 The Verkhowna Rada in Kiev decided on an addendum to the Ukrainian Constitution, directed against arbitrary acts of the Crimean authorities.37 At this time Moscow changed its direction towards Crimea as Yeltsin declined to meet with Meshkov and the Russian Prime Minister Chernomyrdin stated that Russia has no claims on Crimea. 38 On 24 February 1994 the Ukrainian Parliament issued a resolution, giving the authorities of Crimea a month 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 Meshkov’s party won the Crimean Parliamentary elections. At the same time the referendum took place (but was called a consultative opinion poll). Ninety per cent of the voters agreed with the expansion of the autonomous rights of Crimea. What was clear from the results of the Crimean parliamentary elections and the referendum, and also from the Ukrainian parliamentary elections in April 1994, was that the Ukrainian population on Crimea did not really oppose the Russian demands for secession. In May 1994 the Crimean Constitution of 1992 was reinstalled. Kiev again set an ultimatum to suspend the Crimean Constitution and other laws of Crimea and informed 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 Autonomous Republic of Crimea that contradicted the Constitution and the legislation of Ukraine. 40 New discussions started, but the Crimean Parliament did not agree in giving away powers to Kiev. On 23 August 1994 Sevastopol was declared a Russian city and subordinate only to Russian legislation. Later in 1994 Meshkov tried to assume all political power in Crimea. He dismissed the Parliament after it argued for harmonizing the Crimean law ‘On the president’ with the Ukrainian Constitution and wanted to revise the Crimean Constitution. Ukraine stressed that the dismissal of the Crimean
36
Kiev rst did not worry about the ofce 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 Konstitucij ta zakonodavstva Ukrainy , 28 February 1994, N 4006–XII; Svetova Svetlana, Solchanyk Roman, supra note 3, at p. 31. 38 This did not change the situation on Crimea, as separatist movements on Crimea did still head towards a reunion with Russia. Alexandr Kruglow, deputy of the Ukrainian parliament, founded a new party named ‘the Russian Sevastopol Crimea Party’, which should support the unity between Russia and Crimea. 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-
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Parliament was a right exclusively reserved to the Ukrainian Parliament itself. 41 Negotiations started between the Crimean Parliament, Meshkov and Ukrainian authorities, and on 22 September, Meshkov repealed the dismissal of the Verkhovna Rada of Crimea. On 29 September, the Crimean Parliament deprived Meshkov of all his rights, and by issuing the new law ‘On the government of Crimea’ the Prime Minister became the head of the government of the Autonomous Republic of Crimea. One week later Anatoly Franchuk, a friend of Kuchma (the meanwhile elected new president of Ukraine), was appointed Prime Minister. During this struggle for power Meshkov’s party, the Block Rossija, broke apart. At the end of November the Crimean Parliament decided to harmonize all of its legislation with Ukrainian federal legislation. The Ukrainian National Bank was to stall all payments to authorities that would not obey these new provisions. 42 In March 1995 the Ukrainian Parliament suspended all legal acts of Crimea that were in contradiction with the existing Ukrainian legislation. New tensions arose in 1995 when the Crimean authorities decided to insist on a constitutional referendum. A round table conference was organized by the OSCE in Locarno and once again a compromise was found. No referendum would take place on Crimea and the ‘Law on the status of the Autonomous Republic of Crimea’ was to be reconsidered by the Verkhovna Rada of Ukraine. Again it was Russia that contributed to the problems. Already in March a Russian consulate started to issue Russian passports in Simferopol. Again the question of double citizenship emerged. Although the consulate refrained from issuing documents it was not ready to 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 until the rights of the Russian minority were sufciently guaranteed.44 In November 1995 the Crimean Parliament was successful in adopting a new Constitution. Crimea was to be a part of Ukraine and Sevastopol part of Crimea. The Crimean Tatars opposed this Constitution, as it contained no provisions guaranteeing their representation in Crimean administrative and legislative bodies. 45 This Constitution was not approved by the Ukrainian Parliament, as there were still discussions about the inclusion of the Crimean autonomy within the Ukrainian Constitution. After 1996 the tensions eased and the Ukrainian Constitution of June 1996 contributed to the clarication of the legal situation. But still there are conicts between the minorities on Crimea. The representatives of the Russian majority of Crimea still give declarations on the unity of the Russian people, but because the new
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Ukrainian legislation prohibits regional branches of political parties, the Crimean communist party is now no longer an independent organization and had to cut relations with the Russian communist party. In October 1998 the Parliament of Crimea set 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 serious 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 possibilities of guaranteeing internal self-determination, one has to look at the special situation of the Crimean Tatars and their position within this autonomy.46 Right at the beginning it has to be stated that the autonomy of Crimea is not an autonomy set up to realize the rights of the Tatars, but rather of the Russians on Crimea. It was the Russian population that demanded this autonomy and it is structured by Russian interests. The Crimean Tatars see themselves as the indigenous population of Crimea and the only people who have the right to call Crimea their homeland. When in 1475 the khanate of Crimea came under the dominance of the Ottoman Empire, the rst waves of emigration of the Tatars started. In the 18th century, when Crimea became part of Russia, 500,000 people were living on Crimea, of which 450,000 Crimean Tatars. Until the beginning of the 20th century the percentage of Tatars declined from 80 to 34 per cent. At the end of the 19th century a national movement of the Crimean Tatars emerged and political parties were founded, of which ‘Milla Firka’ (National Movement) was the most prominent. It supported Russian Federalism and was also relatively close to socialist movements. The Kurultaj, the Parliament of the Crimean Tatars also set up a Crimean Constitution.47 After the Tatars were deported (mainly to Uzbekistan) in 1944, it took them until 1989 to be allowed to return to Crimea. But already during the 1980s they started to move back to the peninsula, although illegally. The ofcial Ukrainian policy was always in favour of the returning of Tatars, but problems emerged since the Crimean Tatars had difculties integrating into Crimean society and this resulted in conicts with the resident population. They were not allowed to settle in their ancestral territories, it was difcult for them to nd employment and their economic situation was bad.
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In 1991 they elected a Parliament ( Kurultaj), which was not recognized by Ukrainian authorities. They boycotted the referendum of 1991 and did not acknowledge the autonomous status of Crimea, since it is seen as under Russian autonomy. The Tatars issued the declaration of the ‘National Independence of the Crimean Tatar people’ and also set up a separate draft on the Crimean Constitution guaranteeing the representation of Crimean Tatars in Crimean State bodies. Until the elections of 1994 they held 14 seats in the Crimean Parliament, but this disproportionate representation is no longer provided for. At the beginning of the 1990s the political organizations of the Crimean Tatars were mainly led by persons that were born on Crimea before the deportation. Now a younger generation emerged, which is more radical and demands more autonomous rights for the Tatars.48 Ukraine was also criticized by the Council of Europe for not guaranteeing the right to vote to the returning people and especially to the Tatars. The major problem was that since Ukraine did not allow dual citizenship, persons returning from Uzbekistan had to prove that they had renounced their foreign citizenship. As the renouncement of Uzbek citizenship was a difcult and costly process, many persons 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 Ukrainian citizenship through naturalization without renouncing foreign citizenship beforehand.49 But still the Crimean Tatars face radical and armed attacks and the majority of them live under poor economic conditions. The still existing propiska system (although formally abolished, it is still drawn upon in administrative and police practice) also affects the Tatar population of Crimea. Kiev did not acknowledge the Medjlis as a legal representative of the Tatar people and did not nance it, but did provide money to the Committee on the Return of Deported People. 50 On the other hand, Kiev was heading for good relations with the Crimean Tatars and their organizations as the Tatars were seen as allies that opposed secessionist movements.51 Still a lot of Tatars refrain from turning to ofcial institutions to ameliorate their situation, as these may prove to be extremely drudging. On the other hand they think that the Committee on the Return of Deported People is not really effective and demand to set up an independent government organization that is subordinated not only to the Crimean Parliament, but also to the Medjlis.
3. The Legal Background of the Autonomy of Crimea
3.1 . Concepts of Autonomy
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fullled and autonomy was therefore seen not only as a possibility to provide for the protection of national minorities, but also as a concept to prevent the call for the creation of new, small States. The right of self-determination developed together with the concept of national States and was bolstered during the 20th century by the idea that government was only possible with the consent of the governed. 52 Many important documents, like the Charter of the United Nations, the Resolution on the Granting of Independence to Colonial Countries and Republics (G.A. Res. 1514 (XV)), 53 the Declaration on Principles of International Law Concerning Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations (G.A. Res. 2625 (XXV),54 the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) include provisions on self-determination. But while the self-determination of people is usually discussed with regard to the possibility of secession (and there is unanimity that the right to secession has to be interpreted very strictly in relation to the right of uti possidetis) these documents point towards a right of self-determination, which means the free choice of the form of government and the representation of all peoples of a country by this government. 55 This democratic aspect of self-determination can also be seen in the Helsinki process of the OSCE. The most important factor is the development of a pluralistic, democratic society.56 When discussing autonomy and self-determination in Eastern Europe it is important to note that self-determination had a different meaning in the Soviet Union. Formally, self-determination was always granted to the subjects of the Soviet Union, to stress the voluntary character of the Soviet Union. But the self-determination of people was always connected to the realization of communist ideals, and Lenin pointed out, that ‘no Marxist . . . can deny that the interests of socialism override the rights of nations to self-determination’. 57 On the peninsula of Crimea an autonomous entity existed until 1944. It was set up to guarantee special rights and special protection for the Crimean Tatars. When in 1944 the Crimean Tatars were deported the autonomy was overruled. At the same time, it was stressed that the autonomy for the Tatars was not justied because they amounted only to 40 per cent of the population of the peninsula. This shows that, within the Soviet Union,
52
Suppan Arnold, ‘Nationalstaaten und n ationale Minderheiten’, in Heuberger Valeria, Suppan Arnold, Vyslozil Elisabeth (Hrsg.), Brennpunkt Osteuropa. Minderheiten im Kreuzfeuer des Nationalismus, Verlag für Geschichte und Politik, R. Oldenbourg Verlag München, 1996; Frowein Jochen A., ‘Self-Determination as a Limit to Obligations’, in Tomuschat Christian (ed.), Modern Law of Self-Determination, Kluwer Academic 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 D oc. A/5217 (1970).
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autonomous rights were often assigned through arithmetic calculations and they were not considered as a means to provide for internal self-determination. As a whole the concept of autonomy within the Soviet Union (Article 85, Constitution of 1977) was merely a formal one, as there was no guarantee on the legislative power of the autonomous entities. Each legislative act could be overruled by acts of higher ranking authorities. The internal aspect of self-determination is not fully dened. Rosas stresses that the right of internal self-determination is not concentrated on one point in history but has to be realized continuously by involving the population in legislation, implementation and government.58 Although international law does not prefer a certain form of government, especially in the European context the internal aspect of selfdetermination is clearly connected to democracy.59 Until now no collective State practice has developed and autonomy is not a homogenous principle generally acknowledged to solve minority conicts.60 Autonomy is quite often discussed as part of customary international law, because the concept is often drawn on as a means for minority protection. But Heintze stresses, that there are too many different forms of autonomy to deduce a general principle of autonomy. Therefore, the concept of autonomy is still to be dened. 61 In international treaties an ofcial acknowledgement of the right of autonomy is also avoided.62 There were efforts to develop a concept of autonomy and self-government during the preparation phase of the UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities, but this was declined by the States taking part. 63 In Europe some concepts of autonomy were 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 essential 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 go into detail discussing the problem of the dening the differences between a minority and a people. This has been done in quite a reasonable number of publications. Self-determination (and therefore also its internal aspect) is a right of a people, while minorities only have a right for the protection of their identity. This differentiation is often criticized in literature, as it is stressed that an effective protection of minorities needs certain aspects of self-determination and a denition dividing between people and minorities should not lead to the creation of second-class people, when it comes to the enjoyment of special rights (see Thornberry, Self-Determination, Minorities, Human Rights. A Review of International Instruments (1989), 868; Duursma Jorri, Fragmentation and the International Relations of Micro-States. Self-Determination and Statehood , Cambridge University Press, Cambridge 1996, pp. 40–43. 61 Tibet also has an autonomous status within China, but regional characteristics are not protected in this case.
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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 concepts of autonomy for Europe developed, starting out with the Copenhagen Document on the Human Dimension in 1990. During its work on a possible additional protocol to the European Convention on Human Rights the Council of Europe acknowledged autonomy rights in Recommendation 1201 (1993). This additional protocol was never realized and the Framework Convention on the Protection of National Minorities does not speak about autonomy concepts. 3.2. Provisions Concerning the Autonomous Republic of Crimea in the Ukrainian Constitution of 1996 After the situation on Crimea started to calm down after 1995, further work on the establishment of autonomy was possible, especially after Ukraine succeeded in setting up a new Ukrainian Constitution in June 1996. The new Constitution of Ukraine in 1996 was of essential importance for the relations between Kiev and Simferopol. Already at the beginning of 1996 a new Crimean Constitution was drafted, but was rejected by the Ukrainian Parliament. At this time the nal form of the autonomous status was not yet dened. Only with Chapter X of the new Ukrainian Constitution a legal status quo and framework was created for the Autonomous Republic of Crimea. The initial draft of the Ukrainian Constitution included only restricted autonomy rights and left Crimea with the status of a rayon, leaving little to no competencies for economic legislation. Another important point was the enclosing of provisional regulation No. 14, which allows the temporal stationing of foreign military units (in contrast to Article 17 of the Ukrainian Constitution). This was of special importance for Sevastopol as main port of the Russian part of the Black Sea Fleet. This Constitution includes provisions on the territorial set-up of Ukraine as well as on the competencies of Crimean authorities within Ukraine. It was an essential basis for the Crimean Constitution, which was nally accepted by the Ukrainian Rada in December 1998. The general principles (Chapter I, Articles 1–20) include important provisions for the Autonomous Republic of Crimea. Article 2 stipulates that the sovereignty of Ukraine extends throughout its entire territory. This territory is indivisible. There is a single citizenship in Ukraine (Article 4). The State language is Ukrainian, but the free development of Russian and languages of ethnic minorities is guaranteed (Article 10). The cultural and religious identity of indigenous people and national minorities will be promoted (Article 11). Chapter IX of the Constitution of Ukraine deals in detail with the territorial structure of Ukraine. Again territorial unity is stressed (Article 132). The division of
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between the regional authorities in Simferopol and the central government in Kiev. Again the territorial unity of Ukraine is stressed and Crimea is dened as a n inseparable constituent part of Ukraine. Crimea decides on the issues ascribed to its competence 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 the Parliament of Ukraine. Normative acts of Crimea and decisions of the Council of Ministers shall not contradict the Constitution or the laws of Ukraine. Laws of Crimea have to be adopted in accordance with the Constitution of Ukraine, the laws of 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 issues decisions and resolutions that must be executed on the territory of Crimea. The Council of Ministers forms the government of Crimea. The head of the government is appointed to ofce and dismissed from ofce by the Parliament of Crimea with the consent of the president of Ukraine. The authority, the procedure for formation and operation of the Verkhovna Rada of the Autonomous Republic of Crimea and of the Council of Ministers of the Autonomous Republic of Crimea are determined by the Constitution of Ukraine and the laws of Ukraine, and by legal acts of the Verkhovna Rada of the Autonomous Republic of Crimea on issues ascribed to its competence (Article 136). The Autonomous Republic of Crimea has legislative competencies in areas of mainly local importance. This includes agriculture, forestry, land reclamation, mining, city construction, tourism, museums, sanitary and hospital services (Article 137). Apart from the competencies enumerated in Article 137 Crimea has some executive competencies in other areas, such as arranging elections of deputies to the Verkhovna Rada of the Autonomous Republic of Crimea, organizing and conducting local referendums, managing property that belongs to the Autonomous Republic of Crimea and ensuring the operation and development of State language. Further competencies are mainly within the socio-cultural area. Examples include the preparation of programs for socio-economic development, the rational utilization of natural resources and the protection of the environment, which must be in accordance with general Ukrainian programs. Crimea can also establish areas of ecological emergency. Other powers may be delegated to the Autonomous Republic of Crimea by the laws of Ukraine (Article 138). A representative of the Ukrainian president is 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 be determined by special laws of Ukraine (Article 140).
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Republic.64 When the situation on Crimea was again deteriorating after presidential elections in 1994 and Crimea was not following the instructions of Kiev to harmonize its legislation with the federal legislation of Ukraine, the Ukrainian authorities reacted by suspending the Constitution of Crimea (which has been put into force again in May 1994) under further legal acts of Crimea. The relations between Crimea and Ukraine were then based mainly on the ‘Law on the Status of the Autonomous Republic of Crimea’, which was nally replaced by the ‘Law on the Autonomous Republic of Crimea’ in 1995.65 This law remained until the new Constitution of Ukraine entered into force in 1996. According to this piece of legislation Crimean authorities are competent to decide upon those matters that are assigned to them by the Constitution of Ukraine and other federal laws. 66 The provisions of the law on the Autonomous Republic of Crimea are very similar to the Constitution of Ukraine and leave only a very tight frame for the design of a Crimean Constitution. 3.3. The Constitution of the Autonomous Republic of Crimea The rst constitution of Crimea after Ukrainian independence was issued in May 1992. This was in part a reaction to the Ukrainian law ‘On the status of the Autonomous Republic of Crimea’. Article 1 of this Constitution stipulated that the republic of Crimea was a constitutional State. Within its territory it has the exclusive right to dispose of its natural resources and develop full sovereignty in its territory (Article 1). Chapter 3, Article 9 provides for relations with Ukraine. Crimea intended to leave the territory of Ukraine; the legal relations were to be regulated by contracts and agreements. A separate Crimean citizenship was set up and it was stipulated that with some States agreements can be negotiated to allow for a double citizenship (Article 17). Of special importance for the relations with Ukraine was Article 121, which regulated the presidency of Crimea. This was to be the highest ofce in Crimea. The abolishment of the Crimean presidency was one of the most crucial aspects to harmonize the situation between Kiev and Simferopol. The new Constitution in 1996 was not accepted by the Parliament of Ukraine and so it took until 1999, when a new Crimean Constitution was put into force. In Article 1 of the new Crimean Constitution the Autonomous Republic of Crimea constitutes an indivisible part of Ukraine and it fulls its duties within the State of Ukraine according to Article 138 of the Ukrainian Constitution. In case of contradictions between Crimean and Ukrainian norms the Ukrainian legislation has to be obeyed (Article 2). Questions on the relation between normative acts of Crimea and Ukraine are decided by the Constitutional Court of Ukraine. The president of Ukraine
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Ukraine, the laws of Ukraine and acts of the president and the Cabinet of Ministers of Ukraine (Article 4). The Autonomous Republic of Crimea has its own Sta te symbols, a ag and a hymn. The capital is Simferopol. The special status of Sevastopol is realized through normative acts of the Verkhovna Rada of Crimea on the basis of the Ukrainian legislation (Article 8). Russian is the ofcial language of Crimea, but also the use of the languages of the Crimean Tatars and other minorities are guaranteed (Article 10). Documents may also be issued in other languages than Russian (Article 11). Before the Courts the Russian and the Ukrainian language may be used (Article 12), and these two languages are also used for the documents of the post and telegraph system in Crimea (Article 13). The Constitution of Crimea also provides for the State organs of Crimea, the Verkhovna Rada of the Republic of Crimea (Chapter 6, Articles 21–34), the Council of Ministers (Chapter 7, Articles 35–38) and the judiciary (Chapter 8, Articles 39–41). They full their ofces within the framework of the Ukrainian Constitution, the Ukrainian legislation, and according to the Constitution of the Autonomous Republic of Crimea. There are no special courts in Crimea, as there is only one court system in 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 Autonomous Republic of Crimea is guaranteed by the Constitution of Ukraine and Ukrainian legislation. It cannot be changed without the consent of the Verkhovna Rada of Crimea. This consent to a modication of the autonomous rights of Crimea can only be given 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 certain group of people, differing from the majority of the population of the national State.67 On the basis of differences between internal and external self-determination the concepts of autonomy and secession developed.68 In this connection Casese stresses, that self-determination is the right of the whole population of a State, which means the accentuation of democratic principles within a State. But this again may lead to the oppression of a minority by the majority. 69 Autonomy, when it aims at being a real concept of internal self-determination, is always a limitation of the sovereignty of the national State. 70 This leads us to one
67
Bernardt in Heintze Hans-Joachim, supra note 60, at p. 9.
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of the central problems regarding Crimean autonomy. In many areas a parallel can be drawn between autonomy in South Tyrol and Crimea. In both cases a national minority is the majority of the region in question and in both cases a second State claims 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 be remembered that generally speaking Italy leaves more competencies to its regions in comparison to Ukraine. In general the notion of federalism is still met with unease in Ukraine. There is apprehension that the creation of stronger federal structures could further encourage separatist movements.72 The Autonomous Republic of Crimea has its own Constitution, which States that each normative act of Ukraine ranks above this Constitution. In practice the autonomy of Crimea does not provide more rights to the peninsula than to any other oblast of Ukraine. A major problem is that although 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 single paragraphs of the Crimean Constitution or to its legislation. In practice every single normative act can be nullied by Ukrainian authorities and Crimea does not have the right to appeal before the Constitutional Court of Ukraine. Article 3 of the Crimean Constitution does not protect Crimean legislation from being overruled by Ukrainian acts and the Constitution of Ukraine holds a framework rather than a detailed concept of autonomy. Another problem of the Crimean autonomy lies within the protection of smaller minorities. Unlike the autonomy of 1921, the autonomy of 1991 is not set up for the protection of the Crimean Tatars but instead for the Russian majority of the peninsula. The Constitution of Crimea assumes that there is a ‘Crimean Population’, where ethnic belonging is of secondary importance. Ukrainian is the State language and Russian is the lingua franca, while the language of the Crimean Tatars is mentioned only in relation to the cultural and educational aspects. The representation of minorities is not provided for in the Constitution (Articles 10, 11, 13 Constitution of Crimea). One question is how their rights can be protected and not only their rights, but also those of the numerous small ethnicities living in Crimea. A simple proportional system like that in South Tyrol cannot full this aim. On the one hand, which the example of South Tyrol shows, the Ladins are not really proportionally represented and it would be even more difcult to represent the smaller minority groups of Crimea. A system heading towards including all groups in the political decision-
councils should be set up do decide on conicts over competences between the federal and the regional
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making process, in the administration and jurisdiction cannot get along without forms of positive discrimination. But the Crimean self-conception is still mostly a Russian self-conception. On the economic level the autonomy of Crimea is also restricted. Although the Ukrainian Constitution provides for economic privileges of the Autonomous Republic of 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. Some economic development zones were set up, but not under the administration of Sevastopol and most of them did not bring the expected results. One project that brought some positive results was the economic zone ‘Sivash’, which was set up upon suggestion of the administration of Krasnoperekopsk. 73 In Sevastopol more than 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 April 2000 a new project on the construction of a transport bridge across the Kerch Strait was launched together with the Moscow government. This shall bring new economic impulses for the region.
5. Conclusion
First of all, one has to note, that after 12 years of independence Ukraine now is a relatively stable State, with signicant economic growth in the last two years, which renders the rise of secessionist movements more unlikely. During this period Ukraine has managed to avoid armed clashes similar to the ones that took place in Moldova and the Russian Federation. The competencies between the Autonomous Republic of Crimea and the authorities in Kiev are now delimited by the Ukrainian and the Crimean Constitutions. But the autonomy of the Autonomous Republic of Crimea within Ukraine must be considered critically. As there is no universal concept of autonomy, 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 question is, what is Crimean autonomy aiming toward? On the one hand this autonomy gave a special status to a region that was only included in the territory of Ukraine 50 years ago, a development of which the population of the peninsula was not consulted. In 1954 this was not much of a problem, as it only required changing administrative borders within the Soviet Union. The ‘Crimeans’ stayed citizens of the USSR, but a problem developed after Russia and Ukraine became independent States and the border between them suddenly became an international border. After the struggles for power in the early 1990s, a status quo was reached that provided certain special rights to the Russian majority of the peninsula so as to prevent seces-
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peoples of Crimea do not prot from this autonomous status, as their rights are not equally protected. On the contrary, they oppose the autonomy of Crimea as it presently exists and see their political partners in Kiev rather than Simferopol. They demand political representation and the right to take part in the government of the region they call their homeland.
Abbreviations
ASSR CIS CSCE G.A.Res. ICCPR ICESCR RSFSR OSCE UN USSR
Autonomous Soviet Socialist Republic Commonwealth of Independent States Conference on Security and Co-operation in Europe General Assembly Resolution International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights Russian Soviet Federated Socialist Republic Organization for Security and Co-operation in Europe United Nations Union of Soviet Socialist Republics
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