Understanding the Constitutional Situation in Crimea

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As the eyes of the world turn today (Sunday) to the Crimean referendum regarding separation from Ukraine and reunification with Russia, it is worth remembering that there have been a number of previous referendums on Crimea’s status, and almost all of them have produced highly ambiguous results.

Crimea, currently an “Autonomous Republic” under the Ukrainian Constitution, had been part of the Russian Empire from 1784 until the empire’s collapse in 1917. In the early Soviet period, it was part of the Russian Federation Soviet Socialist Republic and not the Ukrainian Soviet Socialist Republic. During the 1940’s, much of the region’s indigenous Tatar population was forcibly relocated to other parts of the Soviet Union, a move that allowed ethnic Russians to become a majority in the region.

The first referendum was one that did not occur. Under the Constitution of the Soviet Union, no territory could be transferred from any of the 15 constituent S.S.R.’s without the approval of the affected people. In 1954, for reasons that are still not clear, Soviet Premier Nikita Khrushchev, an ethic Russian who had previously been appointed by Josef Stalin to head the Ukrainian S.S.R.’s government, secured the approval of the transfer of Crimea to the Ukrainian S.S.R., even though only about 20% of the Crimean population at that time were of Ukrainian ancestry.

The required referendum was never held. At the time, no one imagined that the Soviet Union would collapse someday and given that all important decisions in the U.S.S.R. would be made in the Kremlin, the transfer did not seem of great consequence. Crimea was simply incorporated into the Ukrainian S.S.R. after 1954.

However, at the very end of the Soviet period, the status of Crimea under the Constitution of the Ukrainian S.S.R. was changed. Since 1954, Crimea had been treated simply as one of twenty-some oblasts (which were the principal subdivisions of Ukraine). However, shortly before the end of the Soviet period, the status of Crimea was changed to that of “Autonomous Republic” within Ukraine as the result of a state-sanctioned referendum held on January 20, 1991.

As an “Autonomous Republic” (a category used in the Russian Soviet Federation), Crimea was granted powers not possessed by the oblasts, including the right to have its own written constitution, legislature, and budget. The Ukrainian government’s consent to the referendum was essentially an acknowledgement of the fact that Crimea had not been thoroughly integrated into the rest of Ukraine.

The next referendum came in December 1991, and confirmed the collapse of the Soviet Union.

In July 1990, the Ukrainian Verkhovna Rada (parliament) had adopted a Declaration of State Sovereignty which asserted the superiority of Ukrainian law over Soviet law, but left Ukraine still part of the Soviet Union. However, the following year, after an unsuccessful military coup directed against Mikhail Gorbachev, the progressive head of the Soviet Union, the Verkhavna Rada declared Ukraine’s independence from the U.S.S.R. on August 24, 1991.

The independence declaration was, however, subject to approval in a national referendum scheduled for December 1 of that year. Voting on the proposition, “Чи підтримуєте ви Акт про незалежність України?” (Do you support the Act of Independence of Ukraine?”), over 84% of the electorate turned out, and over 92% of those who voted supported the independence resolution. Polling data at the time also suggested that more than 55% of ethnic Russians in Ukraine supported the decision to leave the Soviet Union.

While the vote on independence passed by an overwhelming majority, support was not uniform, and nowhere was the population more divided than in Crimea. At the time of the vote, Ukraine was divided into 27 administrative units: 24 oblasts, one autonomous republic (Crimea), and two independent cities, Kiev (Kyiv) and Sevastopol (which was on the Crimean peninsula, but technically separate from the Crimean Autonomous Republic).

In 20 of the 27 districts, over 90% of those who voted, voted for independence. In 5 or the remaining 7 districts, “yes” votes exceeded 83% of the total votes cast. In contrast, the “yes” vote in Crimea was only 54%, and in Sevastopol, it was only slightly higher at just 57%.

Moreover, one might assume, as some commentators have, that most of the 16% of the eligible voters who failed to vote in the referendum were supporters of remaining in the Soviet Union and considered the secession referendum illegitimate. Even if this was true, independence was still supported by a substantial majority (more than 64%) of eligible voters in 25 of the 27 electoral districts.

However, in Crimea, the percentage of “yes” votes was only 37% of total voters, and in Sevastopol, it was just 40%. Moreover, it has been argued that many of the Russian-speaking Ukrainians who voted for independence believed that they were voting to abolish the Soviet Union, which would be followed by some sort of reunification with a non-Communist Russia.

After 1991, the status of Crimea in the now independent Ukraine was a major political issue from the beginning and the politics of the 1990’s featured a continuous struggle between the central government in Kiev and the local authorities in Crimea, before the matter was finally resolved in 1998.

Almost immediately after independence, the Crimean parliament sought to assert its autonomy, going so far as to declare its independence on May 5, 1992, only to retract that declaration the following day. On May 6, the newly adopted (in Crimea) Crimean Constitution was amended to identify Crimea as part of Ukraine (albeit a highly autonomous part). In June of 1992, the Ukrainian parliament recognized Crimea’s status as an “Autonomous Republic” under the Ukrainian Constitution, but the controversy of the scope of the powers of the Crimean government was not resolved until December 23, 1998, when the Verkhovna Rada accepted a new, less ambitious constitution that had been adopted in Crimea two months earlier. (Article 135 of the Ukrainian Constitution provides that the Crimean Constitution must be approved by the Ukrainian parliament.)

Periodically over the past six decades, some Russians have claimed that the 1954 transfer was illegitimate. Nevertheless, in 1997, Russia and Ukraine entered into a treaty agreement that recognized Ukrainian sovereignty over the Crimean peninsula.

Like everything else in Ukraine, the situation in Crimea is incredibly complex and the product of a history that is largely unpleasant. However, under the existing constitutional arrangements in Ukraine, neither oblasts nor autonomous republics enjoy a right of secession. Moreover, Russian support of the secession effort appears to be in violation of the Russian Federation’s prior treaty commitments.

Professor Hylton served on the U.S.-Ukraine Foundation’s Advisory Commission for the Ukrainian Constitutional Court from 1977-1999. He was a Fulbright Scholar in Ukraine in 2000, and has returned to lecture in Ukraine on several occasions, including during the Orange Revolution of 2004. He currently serves on the advisory board of the Ukrainian political science journal Kyiv-Mohyla Law and Politics which is published by the National University of Kyiv-Mohyla Academy.

 

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3 Responses to “Understanding the Constitutional Situation in Crimea”

  1. Gordon Hylton Says:

    If the numbers reported by CNN this morning are accurate, it appears that about 80% of the eligible voters in Crimea yesterday voted to sever Crimea’s ties with Ukraine and join the Russian Federation.

    Since the ballot did not even include the option of staying as part of Ukraine–the alternative was for Crimea to become an independent country, a position supported by about 3% of voters–it is safe to assume that the 17% the population that did not vote are people who favor staying with Ukraine.

    Since the Crimean Tatars, who have historic grievances against Russia, have openly and defiantly opposed separation from Ukraine, it seems safe to say that the majority of those who did not vote were Tatars, who constitute somewhere in the neighborhood of 12% of the Crimean population.

    This would mean that only about 6% of the non-Tatar population opposed separation. While I have no doubt that a substantial majority of Crimeans favor reunification with Russia, this figure seems too low to reflect the real strength of the opposition.

    My hunch is that non-Tatar Crimeans were subjected to great personal pressure to vote for secession, and, knowing that the referendum was definitely going to pass, simply voted against their true views, so as not to antagonize their neighbors.

    Again, this is assuming that the initial reported figures are accurate.

  2. Brent DeBord Says:

    Enlightening.

    I wonder what the folks over in Trans-Dniester are going to do now?

    Also, and in no way am I defending Putin or Putinism, the Crimea situation reminds me a bit of Texas in the mid-19th century.

  3. Gordon Hylton Says:

    Transdniester, often called Transnistria, is even more complicated than Crimea.

    Transdneister is an eastern sliver of the country of Moldova, most of which is east of the Dnipro (Dniester) River. In Soviet times, it was part of the Moldovan S.S.R., but when the USSR dissolved and Moldova became an independent country, most of the residents of Transdniester preferred to remain affiliated with Russia (or at least not with the rest of Moldova) and declared their independence. A war broke in 1992, but it was quickly resolved with a truce after the invention of former USSR troops on behalf of the separatists. The revolt was apparently prompted by fears that an independent Moldova might voluntarily unite with Romania into a single, predominantly Romanian-speaking country.

    Since that time, Transdniester has existed in a kind of constitutional limbo with its own parliament and government, but one not recognized by any major country, including Russia.

    The only political entities that recognize Transdneister as a sovereign state are Nagorno-Karabakh, Abkhazia, and South Ossetia, all of which are breakaway areas of other countries that once were part of the Soviet Union. Nagorno-Karabakh is claimed by Azerbijan and the other two by Georgia.

    Moldova continues to claim sovereignty over the area, but has made few efforts to regain control.

    The ethnicity situation in Transdniester is quite complicated. Unlike Crimea, where are substantial majority of residents identify themselves as ethnically Russian, in Transdniester, there are three major ethnic groups, Moldovans (who speak Romanian), Ukrainians, and Russians, each of which accounts for approximately one third of the population.

    Ethnic Ukrainians and Russians are united in their desire not to be part of Moldova, but presumably their loyalties are divided between Ukraine and Russia. How Transdniester’s ethnic Moldovans feel about independence has long been a matter of disagreement.

    Earlier this week, Moldova’s West-leaning prime minister warned that Russia, which has approximately 1400 troops stationed in the breakaway country, was planning to incorporate Transdniester, just as it had Crimea.

    However, in spite of some similarities, as the above indicates the two situations are significantly different. If for no other reason, Russia does not share a common border with the splinter area and for the past 23 years has had to cross Ukraine to provide support for the area’s government.

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