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 and
Ukraine 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 out
of the shadow of big brother Russia and develop its own national identity. But
also for Russia it was hard to accept an independent Ukrainian State. The penin-
sula of Crimea stands as a symbol for the difcult situation Ukraine faces between
the East and the West, for the economic troubles, for the difculties 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 conicts between different
ethnic 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 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 out with a summary of the Crimean
history, which will give an impression of how the situation on Crimea could develop
into such a deep crisis such as emerged especially between 19911995. It will also
take a closer look into the relationship between Russia and Ukraine after the dis-
solution of the Soviet Union and its impact on the Crimean conict. The second
part draws upon international concepts of self-determination, including internal self-
determination and autonomy and the design of Crimean autonomy 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 impor-
tant to note, that Russia clearly connected the question of the status of Crimea and
Sevastopol 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 Advice
Centre (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 the
West, 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 Stephen
D., Ukraine as a Military Power, in Wolchik Sharon L., Zviglyanich Volodymyr (eds), Ukraine. The
Search for National Identity, Rowman & Littleeld 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 peninsula
has always been a homeland for numerous peoples, such as the Scythians, the Greeks
and the Tatars. The name krym is of Tatar origin, and means rock fortress. And it
was the Tatars, who dominated the history of Crimea for centuries. During the 13th
century 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 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 coast. 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 groups. In 1917 the Bolsheviks gained inuence
on the peninsula. They regarded the election of the Kurultaj, the Parliament of the
Crimean 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 sent
troops against the Rada in Kiev, armed conicts arose. But Simferopol was not able
to hold against the Red Army and as a consequence the Kurultaj was dissolved
again. But the communist regime did not 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 was proclaimed, as there was hope
that the Germans would respect a sovereign State. But this was not the case. As in
Kiev, the Germans set up a marionette government under Sulkevich. When the
Germans had to leave Crimea in November 1918 a new Russian government under
Solomon S. Krym came into ofce. But already in May 1919 a communist gov-
ernment was set up, this time including Crimean Tatars. Again this lasted only for
a 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 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 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 Crimean
peninsula 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 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 collabo-
ration 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 300year
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 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, Harvard
University 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 in
1654 between the Kozaks and the Russian Tsar. After the rights and autonomies of the Kozaks had been
restricted by Poland-Lithuania, they turned to the Russian Tsar for protection. While the Kozaks saw
this treaty as kind of a military convention, for Russia this was the rst step of subordinating the whole
Ukrainian region.
11
Sasse Gwendolyn, supra note 2, at p. 8.
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 impor-
tant 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, there-
fore, 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 apart 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 prob-
lems 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
114 DORIS WYDRA
12
Svetova Svetlana, Solchanyk Roman, supra note 3, at p. 27. Zakon ukrainskoj radjanskoj social-
isti cnoj respubliki pro vidnovlennja krimskoj avtonomnoj radjanskoj socialisti cnoj 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 & Littleeld 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 Socialisti cnoj
Respubliki pro vidnovlennja krimskoj avtonomnojradjanskoj sozialisti cnoj respubliky, 12.2.1991, N 712
XII, (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 parliament
was dissolved by the Germans and the Ukrainian State was fully depending on Germany. After the
Germans 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 in
Ukraine (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. 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 Ukraines 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
CRIMEAN AUTHORITY AND SELF-DETERMINATION 115
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, 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 conict, Conict Studies 267, London
1994, p. 21.
21
Krmer Holger, Russland und die Ukraine. Die Politik Moskaus gegenber 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
Fleet.
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 Russian
policy should be directed towards isolation of Ukraine, to deter economic growth and by this hinder
independence.
24
The treaty was nally ratied 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 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 com-
mon 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, Crimeas 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 deci-
sions 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 dis-
lodge 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 level 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
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 Ukrainy
pro 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 only
possible between authorities on the same level. The authorities of Crimea were subordinated to the
authorities of Ukraine, so they had only competencies assigned to them.
30
Postanova Verchovnoj Radi pro politi cnoj situcija, jaka zklalzaj u z vjazku z risennjamy, prijnjatymy
Verchovnuju 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 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 penin-
sula. 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 author-
ities 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
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 is
again united with Russia, the rest of Ukraine is soon to follow. Although also the Security Council of
the 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 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 Meshkovs 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 expan-
sion 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 harmoniz-
ing 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
118 DORIS WYDRA
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 4006XII; 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-
tions about the reintroduction of the Crimean Constitution of 1992 and double citizenship contradicts
the Ukrainian Law on Referenda since the population of Crimea is asked to decide upon subjects, that
fall completely within the competence of the Ukrainian parliament.
40
Postanova verchovnoj Rady pro vikonannja Postanovy Verchovnoj Rady Ukrainy vid 24 ljutovo
1994 roku Pro status avtonomnoj Respubliky Krim vidpovidno do dijucoj Konstitucij ta zakonodavstva
Ukrainy ta Postanovy Verchovnoj Ukrainy ta Postanovy verchovnoj Rady Ukrainy vid 20 travnja 1994
roku pro zupinennja dij Zakony Respubliky krim Pro vidnovlennja konstitutcinach osnov dezavnosti
Respubliky 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 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
Meshkovs party, the Block Rossija, broke apart. At the end of November the Crimean
Parliament decided to harmonize all of its legislation with Ukrainian federal legis-
lation. 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 guar-
anteeing 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 con-
tributed 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
CRIMEAN AUTHORITY AND SELF-DETERMINATION 119
41
Postanova Prezidij Verchovnoj Rady pro situaciju v. Krimu, 12 September 1994, N 119/94PV; The
Crimea: 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 Crimean
communist 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 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 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 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 ter-
ritories, it was difcult for them to nd employment and their economic situation
was 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 same
amount, as do the Tatars (Saburov Yevgenij, The Socio-economic situation in Crimea, in Drohobycky
Maria (ed.), Crimea: dynamics, Challenges and Pospects, Rowman & Littleeld 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 by
Ukrainian 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 Crimean
Tatar 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 disproportionate
representation 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 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 prob-
lem 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 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 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
After World War I there was hope that the newly created entities in Europe could
develop 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.
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 govern-
ment 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, democ-
ratic 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-determi-
nation 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 over-
ride 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,
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, Verlag
fr Geschichte und Politik, R. Oldenbourg Verlag Mnchen, 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 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 and
do 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 Nijhof
Publishers, 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 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, imple-
mentation and government.
58
Although international law does not prefer a certain
form 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 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-gov-
ernment 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
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 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 iden-
tity. 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. 4043.
61
Tibet also has an autonomous status within China, but regional characteristics are not protected in
this 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 Commission
does not refer to the general principles of international law but rather draws upon the nal document of
the 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. The
concept 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 Document
on 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 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 set-
ting 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 sta-
tus 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 author-
ities 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 120) 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 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 of
competencies is a combination of centralization and decentralization. The Autonomous
Republic 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 dened by a special
law (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 dened 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 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, min-
ing, city construction, tourism, museums, sanitary and hospital services (Article
137).
Apart from the competencies enumerated in Article 137 Crimea has some exec-
utive competencies in other areas, such as arranging elections of deputies to the
Verkhovna Rada of the Autonomous Republic of Crimea, organizing and conduct-
ing 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 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 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).
On 29 April 1992 the Verchovna Rada of Ukraine issued the Law on the Status
of the Autonomous Republic of Crimea. It differed from the original draft as Crimea
was not, as agreed previously, an independent subject of international law, but
received 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 presidential
elections 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 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 leg-
islation 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 pro-
visions 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 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 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 contra-
dictions 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
can 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 Ministers
of 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 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 2134), the Council
of Ministers (Chapter 7, Articles 3538) and the judiciary (Chapter 8, Articles 3941).
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 leg-
islation. 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 cer-
tain 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
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 fullled, 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 to
issue legal provisions above the normal legislation of the State. This national State should not have the
power 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 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 sin-
gle 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 men-
tioned 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 propor-
tional 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 repre-
sented 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-
128 DORIS WYDRA
councils should be set up do decide on conicts over competences between the federal and the regional
level, regional authorities had to be included in the national decisions process and local courts had to
be set up. The rights of a representative of the national government in the region should be clearly
restricted by law and could only be put into ofce 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 international
workshop held at the Akademie Graz, July 56, 1989, Bhlau Verlag Wien, Kln, Weimar, 1991; von
Egen 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 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 eco-
nomic 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 ques-
tion 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 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 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 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 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 Autonomous Soviet Socialist Republic
CIS Commonwealth of Independent States
CSCE Conference on Security and Co-operation in Europe
G.A.Res. General Assembly Resolution
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
RSFSR Russian Soviet Federated Socialist Republic
OSCE Organization for Security and Co-operation in Europe
UN United Nations
USSR Union of Soviet Socialist Republics
130 DORIS WYDRA
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