Legality of the Crimean Referendum: Legal Analysis

The Venice Commission, Council of Europe ^

[annalex]

Legality of the Crimean Referendum: Legal Analysis

Venice, 21 March 2014

Opinion no. 762 / 2014

EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW (VENICE COMMISSION)

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)

[See full text]

[...]

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.

[FredZarguna]

Then stop being a Russkie tool and FSB agent provocateur.

You're showing a map with a hysterical Uncle Sam screaming at a bear for staying on his own side of the border, and you think this is terribly clever.

But Crimea was not on the Russian side of that line. Neither either Estonia, Eastern Ukraine, or Moldova. Furthermore, you yourself have applauded Putin's "changing the borders."

So which is it? Russia is within her borders, or is changing her borders? Or is this just the usual Soviet lies: historical truth starts with whenever is convenient today, and tomorrow it will start on a different day. Geographical truth starts with assuming that Russia owns everything she wants, and anyone who doesn't like that will be slimed as a Nazi.

[caww]

I don’t know the history of what nor who first “turned the tap on” in Crimea...I suppose since for eons Ukraine has had so many other contractual agreements with Russia just made sense to whoever was Governing at the time strike a deal with the Russians.

Actually the Major Oil Company’s do this throughout the World....but how they operate business with Government Officials is something I know little about.

At any rate...the US snatched away Ukraines gold away early on( for safe keeping of course) far quicker than Putin took Crimea,( to keep the Russian people safe) So the US snatched the gold and Putin Crimea’s oil.

High stakes being played...and as usual who gets to rape the country first and most. As I said before...there are no good guys in this.

[varmintman]

Show me a Russian and I'll show you a lying, murdering son of a bitch.

Have you considereed psychiatric help??

[annalex]

Why put the people of Crimea through months and maybe years of suspense, if the outcome is going to be the same?

The benefit of legality is legality itself, that is why. This is the same benefit as in earning the money to buy a bicycle instead of stealing it.

Besides, that the outcome would be the same is itself a proposition in need of a proof. A legal referendum in a calm atmosphere when all the sides have time to campaign and debate, and there is no foreign occupation is the only possible proof that indeed a majority of Crimeans want to secede.

Which, by the way, would not automatically give them that right. Generally speaking a part of national sovereignty, by definition, is territorial integrity.

The longer this issue drags out, the greater the probability of bloodshed.

The longer the RF occupation lasts, the greater is the probability of bloodshed. Remove the war criminals without insignia, wherever they came from, and voila -- no possibility of bloodshed.

Isolate and encircle Russia? Are you mad?

That is what you do with rogue nations. I am not mad. It worked fine in the first Cold War, which we won. We'll win the second one as well: Putin's regime will go down.

[annalex]

The Crimean peninsula does have oil and gas resources, all connected to Ukrainian pipeline system: Crimea: Energy. That should not be surprising since Crimea has no overland connection to the Russian Federation.

Currently, Crimea imports 2/3 of its power:

Energy is another vital import. According to some estimates, Crimea could just about be self sufficient in natural gas – extracted from the Black Sea – though currently two thirds of its power needs come through the rest of Ukraine.

Major economic consequences as Crimea splits from Ukraine.

[quadrant]

You're making legality an end in itself, rather than a means to and a sanctification of an acceptable political solution.
Legality, constitutional process, can only succeed when there is a political consensus; the only political consensus that exists in Crimea today is the refusal of the vast majority of people to remain part of Ukraine.
You're asking for calm in a situation where the old status quo - that is, remaining part of Ukraine - only works to inflame the situation.
You're asking for reasoned debate in an atmosphere where passions have been inflamed to the point that the longer the situation continues the less chance there exists of reason prevailing.
You're arguing idealized concepts such as national sovereignty and territorial integrity in a situation where the terms no longer have meaning.
Your conclusion is faulty. Now that the RF is in control of Crimea, all future bloodshed can be laid directly at its feet. If the situation remained unsettled (as you seem to wish) then the RF could always escape responsibility for bloodshed by claiming lack of control.
Attempts to isolate and encircle Russia have been attempted before. They've always failed. What makes you think they would succeed now? Read history.

[annalex]

Legality is an end in itself. An illegal political act cannot lead to a stable result. The only way to resolve this difficult question is though a democratic process that would include a freely conducted referendum and an amendment to the Ukrainian Constitution.

Till then you don't know if "vast majority of people" want to secede from Ukraine.

You're arguing idealized concepts such as national sovereignty and territorial integrity in a situation where the terms no longer have meaning.

RF occupation and annexation of Crimea did not deprive these notions of meaning. Because a robber robbed someone and got away with it, we do not conclude that laws against robbery have no meaning.

Attempts to isolate and encircle Russia have been attempted before. They've always failed

History teaches that during the Cold War The Soviet Union and its allies was indeed successfully isolated from the Western high technology, and eventually that lead to the demise of the Soviet Union and its Warsaw Pact system. That is what will happen to RF, unless the annexation of Crimea is reversed.

[CodeToad]

Might is Right. Lawyers don’t carry guns. Always has been, always will be.

[CodeToad]

“An illegal political act cannot lead to a stable result. “

Our own Declaration of Independence was seen as an illegal act in its day. We’re still here.

[dforest]

"History teaches that during the Cold War The Soviet Union and its allies was indeed successfully isolated from the Western high technology, and eventually that lead to the demise of the Soviet Union and its Warsaw Pact system. That is what will happen to RF, unless the annexation of Crimea is reversed."

See, you solved the problem with your own words. Why reverse a good thing when it hurts the bad guys in the end?

[HiTech RedNeck]

Ultimately God will always have the last say. Snatching a country away by dishonesty will reap a nemesis, no matter who does it. God says ok, if you want the devil, here’s some more devil. Take the devil until you either go to hell or get good and tired of him.

[HiTech RedNeck]

Sometimes it is all we can do to stand back and watch God act, while praying.

One thing Russia will be expected to do, if it really thinks it can take better care of Crimea than Ukraine can, is not to rape it like the USSR raped other countries. If Crimea is a sweetheart, treat it like that and keep doing so.

This could prove a challenge in unforeseen ways.

[CodeToad]

I don’t think God cares about countries or borders.

[HiTech RedNeck]

Well there is something in the bible about cursed is he who moves boundary stones, or something like that.

I know that when Russia went in, they tried to make it look as “good guy” as they could muster their grumpy bear selves to be. That they were saving that poor Crimea from that dastardly Ukraine and look it was cram full of Russians anyhow so who should complain about it?

Some kind of purchase might make sense. This, less so.

[CodeToad]

Crimea was stolen from Russia 50 years ago and given to the Ukraine. Would you want your State to be given to Canada? Would you like to vote later to return to the US only to see Mexico bitching that you did?

[HiTech RedNeck]

The USSR “stole” (gave) Crimea to Ukraine. Everyone knew the USSR was Russia-driven. So your analogy isn’t quite right. How far back do you go?

What bugs me is that if Crimea was truly clamoring to become part of Russia, nobody was paying attention to it. Those who smell rats could be excused.

[quadrant]

Legality is an end in itself when political consensus exists that either compels or encourages people to seek ends through legal means. Remember, it isn't the judge who enforces the law, but the sheriff; the judge makes the sheriff’s actions legal.
No such situation exists with regard to the RF’s annexation of Ukraine.
I don't need to wait. The people of Crimea have spoken. Do you dispute the results of the election?
Once, I read a book about the German annexation of Austria during the 1930’s. The author was quite anti-German; but he was honest enough to admit that even if the election had been entirely fair and conducted according to Austrian law, about 80% (and perhaps more) of Austrians would have voted to join Germany.
You have a similar but not identical situation here. The vast majority of the residents of Crimea do not wish to remain as part of Ukraine. How they exercise that desire may have been irregular but was not outside the realm of decent human conduct. It was not violent nor coercive. Therefore, in my opinion, their choice should be honored. Who knows, one day they may regret it.
Who was robbed? Ukraine or Crimea? Does Ukraine own Crimea? Does it have the right to possess Crimea against the will of the residents? Do Ukrainians who live outside Crimea have the right to compel the residents of Crimea to remain within a country and a political system against their will?
Do Crimeans have the right to choose?
Its true that many parts of Western technology were “withheld” from the old Soviet Union. Yet none of this withholding caused the Soviets any great hardship. The lack of technology did not cause the downfall of the Soviet Union. The Soviet Union fell because its political system was steady but not stable, and when the props that supported that steadiness were removed, the system collapsed.
If history teaches anything its the almost absolute impossibility of thwarting the spread of technology.

[FredZarguna]

It’s the same story, from the same source, over and over again. And it’s been demolished for weeks as well.

[annalex]

Might is might. You get it from a gun.

Right is right. You get it from God. I’d rather be right.

If you can compare the American Revolution and the Russian Federation’s invasion and annexation of Crimea, you don’t have a clue about either history or justice.

[annalex]

Why reverse a good thing when it hurts the bad guys in the end?

Matter of fact, I come across this view often as I read the Russian Internet. A lot of people are hopeful that this will be the stake through the heart of the Putin's regime. This is how God turns everything bad into good. Let's not forget though that every injustice has its victims, and this time innocent people will be losing their lives if Putin succeeds in fomenting a civil war in Ukraine, or invades more territory; and the Russian people lost all hope for a life in a free and peaceful country for a while.