Posted on 03/23/2014 11:43:14 AM PDT by annalex
Venice, 21 March 2014
Opinion no. 762 / 2014
OPINION
ON “WHETHER THE DECISION TAKEN
BY THE SUPREME COUNCIL
OF THE AUTONOMOUS REPUBLIC OF CRIMEA IN UKRAINE
TO ORGANISE A REFERENDUM
ON BECOMING A CONSTITUENT TERRITORY
OF THE RUSSIAN FEDERATION
OR RESTORING CRIMEA’S 1992 CONSTITUTION IS COMPATIBLE
WITH CONSTITUTIONAL PRINCIPLES”
adopted by the Venice Commission
at its 98th
Plenary Session
(Venice, 21-22 March 2014)
on the basis of comments by
Mr Peter PACZOLAY (Honorary President, Hungary)
Ms Hanna SUCHOCKA (Member, Poland)
Mr Evgeni TANCHEV (Member, Bulgaria)
Mr Kaarlo TUORI (Member, Finland)
[...]
V. Conclusions
27. The Constitution of Ukraine like other constitutions of Council of Europe member states, provides for the indivisibility of the country and does not allow the holding of any local referendum on secession from Ukraine. This results in particular from Articles 1, 2, 73 and 157 of the Constitution. These provisions in conjunction with Chapter X of the Constitution show that this prohibition also applies to the Autonomous Republic of Crimea and the Constitution of Crimea does not allow the Supreme Soviet of Crimea to call such a referendum. Only a consultative referendum on increased autonomy could be permissible under the Ukrainian Constitution.
28. Moreover, circumstances in Crimea did not allow the holding of a referendum in line with European democratic standards. Any referendum on the status of a territory should have been preceded by serious negotiations among all stakeholders. Such negotiations did not take place.
Yes, rather an anti-Soviet revolution prevailed in Ukraine. The government in Ukraine is the Supreme Rada, that was not "overturned" and in fact the Rada confirmed the victory of the revolution. This does not cancel the existing constitution, and surely is not a legal ground for any province to secede.
Indeed, the referendum was illegal also per the Crimean constitution::
An act by an authority of the Autonomous Republic of Crimea which is contrary to the Constitution of Ukraine is therefore also contrary to the Constitution of Crimea.
Besides, the referendum in itself was not conducted in accordance with recognized international standards: it took place hastily, under military occupation, was not worded in a neutral way, was not preceded by consultation with all stakeholders.
No, he won't care, but it does not negate the fact that the referendum is illegal.
I am not sure if they are, but Ukraine surely is since it's its own territory being carved up.
I seriously doubt you can find a loophole in the Ukrainian Constitution that would permit the referendum
From the Report:
15. It is therefore clear that the Ukrainian Constitution prohibits any local referendum which would alter the territory of Ukraine and that the decision to call a local referendum in Crimea is not covered by the authority devolved to the authorities of the Autonomous Republic of Crimea by virtue of Article 138 of the Ukrainian Constitution.[...]
18. This does not mean that the notion of self-determination would be alien to European constitutional law. However, in its Report on “Self-determination and secession in constitutional law” quoted above, the Venice Commission concludes that self-determination is understood primarily as internal self-determination within the framework of the existing borders and not as external self-determination through secession.
So you are correct, there is no way for Crimea to secede legally under the present constitution. Which is, kind of the point.
It's a case of theory vs. "Facts on the Ground"
Yes it is. We have a war. soon there will be a larger war. With this post I simply wanted to establish what the legal facts are.
You’re right, the Sov....err Russians are Nazis or worse.
Right, but the same can be said of any violation of law: somebody got away with it, at least, for the time being, because he could do so with raw force.
Might Makes Right, always has, always will.
Don’t they have any standards about a tire-burning violent mob instigating a coup?
I generally agree that Crimea is Ukrainian by historical chance. Although it is then as much Russian as it is Turkish, or Greek.
The legal system of Europe does not apply retroactively to the historical processes that had shaped the modern borders. The idea is, however, that the present borders should be kept inviolate regardless how they got that way.
Excellent post, thank you.
The topic is the occupation, the referendum, and the annexation of Crimea. Think what you will about the Great Ukrainian anti-Communist Revolution, it did not give anyone the right to carve the country up.
The more we hide behind phony “international law” concepts, the more it will come back to haunt us.
What do you find objectionable in the Report from the standpoint of universal justice? And what makes you think someone is “hiding”? It is the side that worships raw military power that would rather hide the fact that the putinist referendum is a farce.
I do not accept a concept of "universal justice".
The Russians don’t care.
As for legality, the vox populi have spoken and as far as Moscow is concerned, the subject is closed.
If Europe wants to sue, it can go ahead.
That is your problem.
Lawyers vs tanks... I could go grab some popcorn and let that run for a while...
Which Ukrainian Constitution - the one of 2009 or the one of 2006?
If the Venice Commission means the later - no one voted to have it restored and the Crimean Supreme Council considered it illegitimate.
Which by the way, is nowhere adressed in the report.
Of course not. The whole country is drunk with joy on their recent conquest.
Europe doesn’t care about Russia’s interests so its a mutual view.
The West like it or not has a double standard on democracy and self-determination.
Its trying to justify it through flawed legal reasoning.
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