The Crimea Conundrum: The Tug of War Between Russia and Ukraine on the Questions of Autonomy and Self-Determination

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 andUkraine 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 outof the shadow of big brother Russia and develop its own national identity. Butalso for Russia it was hard to accept an independent Ukrainian State. The penin-sula of Crimea stands as a symbol for the dif cult situation Ukraine faces betweenthe East and the West, for the economic troubles, for the dif culties 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 con icts between differentethnic 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 CrimeanTatars to return to the land they see as their homeland, which they were forced toleave in 1944.

The rst part of this article will therefore start out with a summary of the Crimeanhistory, which will give an impression of how the situation on Crimea could developinto such a deep crisis such as emerged especially between 19911995. It will alsotake a closer look into the relationship between Russia and Ukraine after the dis-solution of the Soviet Union and its impact on the Crimean con ict. The secondpart draws upon international concepts of self-determination, including internal self-determination and autonomy and the design of Crimean autonomy in the Ukrainianconstitution and legislation. This will be summed up through a critical approachtowards Crimean autonomy within Ukraine.

Although the relation between Russia and Ukraine will be a main aspect of thispaper, 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 andSevastopol 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 AdviceCentre (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 theWest, 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 StephenD., Ukraine as a Military Power, in Wolchik Sharon L., Zviglyanich Volodymyr (eds), Ukraine. TheSearch for National Identity, Rowman & Little eld 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 peninsulahas always been a homeland for numerous peoples, such as the Scythians, the Greeksand the Tatars. The name krym is of Tatar origin, and means rock fortress. And itwas the Tatars, who dominated the history of Crimea for centuries. During the 13thcentury 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 stillheld a lot of privileges and freedoms.2 But Crimea was also always of interest tothe Russian Empire, because of its strategic position at the Black Sea coast. In 1775Catherine the Great was able to conquer the Ottomans on Crimea and the contractof Kainarji was set up, securing Russia the full power over the peninsula.3 Twoconcepts began to emerge in the region: on the one hand Crimea was the homelandof the Crimean Tatars and on the other hand it became a symbol of the power ofthe Russian Empire.4

The 20th century was characterized by changing governments and armed clashesbetween rivalling political and ethnic groups. In 1917 the Bolsheviks gained in uenceon the peninsula. They regarded the election of the Kurultaj, the Parliament of theCrimean 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 senttroops against the Rada in Kiev, armed con icts arose. But Simferopol was not ableto hold against the Red Army and as a consequence the Kurultaj was dissolvedagain. But the communist regime did not last for a long time. In 1918 sailors of theBlack Sea Fleet began to join the white troops and in the same year the Germanarmy arrived on Crimea. The Republic of Tauria was proclaimed, as there was hopethat the Germans would respect a sovereign State. But this was not the case. As inKiev, the Germans set up a marionette government under Sulkevich. When theGermans had to leave Crimea in November 1918 a new Russian government underSolomon S. Krym came into of ce. But already in May 1919 a communist gov-ernment was set up, this time including Crimean Tatars. Again this lasted only fora 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 theCrimean Tatars started to co-operate with the communists. However, in October1920, when the communists were successful in regaining power on Crimea, theirgovernment 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 Crimeanpeninsula 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 partof the RSFSR.5

But the af liation to the Russian Federation proved to be quite a problem forCrimea. The civil war resulted in a famine; the interest of the Moscow governmentin the situation of the Crimean Tatars was low. Although within the concept ofkorenisacija the Tatars were represented in all political of ces, another wave ofRussians migrated to the peninsula,6 thus further diminishing the political power ofthe Tatars. When Stalin came into of ce, repressions on Crimea started which wereespecially directed against the Tatar population, as they were accused of collabo-ration with the German troops.7 This climaxed in the mass deportations of May1944. This persecution included not only the Tatar population itself, but also allsigns of Tatar culture which had to be removed.8 Crimea lost its autonomy andbecame an oblast within the RSFSR. In 1949 Sevastopol received special nancialrights 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 ofUkraine. 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 thepeninsula to the Ukrainian SSR was rati ed and the law On the transition of theCrimean Oblast from the RSFSR to the Ukrainian SSR was issued. There was atale about Khrushchev initiating this transfer, but it was rather that the 300yearjubilee was a welcome reason for soviet self-portrayal. Ukraine received a territorythat was mainly inhabited by Russians and a population which massively resistedthe moving in of Ukrainian population.11

Already in September 1990, only two months after the declaration of sovereigntyof 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, HarvardUniversity 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 in1654 between the Kozaks and the Russian Tsar. After the rights and autonomies of the Kozaks had beenrestricted by Poland-Lithuania, they turned to the Russian Tsar for protection. While the Kozaks sawthis treaty as kind of a military convention, for Russia this was the rst step of subordinating the wholeUkrainian region.

11 Sasse Gwendolyn, supra note 2, at p. 8.

resurrection of the Autonomous Republic of Crimea as a member of the USSR andas a member of the Union Treaty. In accordance with this result the AutonomousRepublic 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 establishedwithin the framework of the Russian Federation, but within the USSR.13 Pikhovshekstresses 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 theAutonomous Republic of Crimea in Ukraine can be drawn.14

Already in Autumn 1991 centrist positions dominated within the Parliament ofCrimea and with the decline of the economic situation of Ukraine, the position ofradical 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 Con ict over Crimea since 1991

Since 1991 Ukraine has once more tried to go its own way apart from Russia.16 Butthe 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 RussianFederation. 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 handRussia is regarded as former oppressor still trying to deter Ukraine from becominga self-con dent, European State.

On 1 December 1991 the referendum on the independence of Ukraine took placeon 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 theUkrainian average.17

Already in 1992 a struggle about the division of powers between the Crimeanand 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-isticnoj respubliki pro vidnovlennja krimskoj avtonomnoj radjanskoj socialisticnoj 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 & Little eld 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 SocialisticnojRespubliki pro vidnovlennja krimskoj avtonomnojradjanskoj sozialisticnoj respubliky, 12.2.1991, N 712XII, (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 parliamentwas dissolved by the Germans and the Ukrainian State was fully depending on Germany. After theGermans 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 inUkraine (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. Alreadyin January 1992 the question about the legitimacy of the donation of the peninsulato Ukraine in 1954 was on the agenda of the Russian Duma.18 The UkrainianParliament regarded this as an infringement of the November 1990 treaty betweenUkraine and the Russian Federation and the CIS Agreement.19 Kiev also issued awarning to separatist movements in Crimea.20 But again in April Alexander Ruzkoj,the Vice-President of the Russian Federation openly favoured the secession ofCrimea. Still it seemed hard for the Russian self-conception to accept Ukraine as aseparate State. Russian history and identity always regarded Ukraine as part of theRussian Empire.

Quite often Ukraines declaration of independence was seen as the nal triggerfor the dissolution of the Soviet Union. Even more of a problem was that Ukrainesubordinated the Soviet troops on its territory, including parts of the Black Sea Fleetto the Kiev authorities.21 For some Russian politicians the independence and theloss of Crimea was hard to accept. In 1992 Zhirinovsky compared the situationof Crimea with Kuwait: both should be returned to their legal owners.22 In Spring1993 Sergej Stankevich (the political advisor of president Yeltsin) advised Westerndiplomats not to set up embassies in Kiev, as they would soon be degraded to mereconsulates.23 For quite some time the Russian borders with Ukraine were not regardedas State borders and the division of the Black Sea Fleet, the question of doublecitizenship, the division of international property and obligations of the USSRremained further controversial subjects. These were additional reasons why it tooktwo years to ratify the big friendship-treaty between Ukraine and Russia. Russiaespecially regarded this treaty as treason towards Russian interests.24

One of the most important aspects, for the situation on Crimea, was the foreignpolicy of Russia, especially concerning the near abroad and the protection of Russians in the newly independent countries.25 Ukrainian policy also proved


18 Kozyrev (Foreign Minister) stated: The donation in 1954 was illegal, as it was only a decision bythe 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 andProspects, Rowman & Little eld 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 con ict, Con ict Studies 267, London1994, p. 21.

21 Krmer Holger, Russland und die Ukraine. Die Politik Moskaus gegenber Kiew seit dem Endeder 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 SeaFleet.

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 Russianpolicy should be directed towards isolation of Ukraine, to deter economic growth and by this hinderindependence.

24 The treaty was nally rati ed 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 fordistancing itself from core CIS structures. Dif culties were also compounded by adifferent understanding of the term strategic partnership. The Russian de nitionof this partnership as an obligation to coordinate foreign and security policy wastoo far-reaching for Ukrainian authorities. On the one hand, the Ukrainian sideregarded 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 ofsacri cing the friendship with Moscow for closer relations with Western Europe.26

With regard to Russian security policy, Crimeas importance stemmed from itsstrategic position as the main naval port of the Black Sea Fleet. When Ukrainebecame independent the partition of the Black Sea Fleet was therefore of crucialimportance 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 fuelledthe con ict on the status of the peninsula.28

In 1992 it seemed as if Crimea would split up completely when northern partsof Crimea also threatened to hold a referendum to unite with southern oblasts ofUkraine. Igor Kasatonov, the commandant of the Black Sea Fleet, wanted to dis-lodge all Ukrainian military units from Sevastopol. The struggle over competenciesbetween Kiev and Simferopol was to be ended by an agreement. But this law wasnever issued, as Simferopol and Kiev could not agree on formalities. The Crimeanside was convinced that because the Crimean Parliament had already accepted thelaw, it was not up to Ukraine to decide whether to ratify it or not. Kiev argued, thatthis would have meant that the Crimean Parliament was on the same level with theUkrainian Rada, which was not the case. The Verchovna Rada of Ukraine changedsome articles of the law and named it On the Status of the Autonomous Republicof Crimea. The aim to resolve the ongoing con icts could not be reached; on thecontrary, it even strengthened the secessionist tendencies.29 On 5 May 1992 theParliament of Ukraine declared the independence of the peninsula and issued the Constitution of Crimea. This declaration was to be approved by a referendumin 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 Ukrainypro 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 onlypossible between authorities on the same level. The authorities of Crimea were subordinated to theauthorities of Ukraine, so they had only competencies assigned to them.

30 Postanova Verchovnoj Radi pro politicnoj situcija, jaka zklalzaj u z vjazku z risennjamy, prijnjatymyVerchovnuju 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 ofnational sovereignty since this sovereignty was already realized through the Constitutionof Crimea. The question on the national independence of Crimea envisaged for thereferendum was to be replaced by the question for the approval of the CrimeanConstitution. The Ukrainian Parliament was asked to reconsider the law On theStatus of the Autonomous Republic of Crimea and the Law on the representativeof the Ukrainian President on Crimea.31 In May 1992 the referendum on Crimeawas suspended until 10 June. Again the Russian position had a critical impact onthe tensions as the Russian Parliament came to the conclusion that the donation ofCrimea was not in accordance with the Constitution and the legislation of the USSR.On 30 June the Ukrainian Parliament approved far-reaching autonomous rights toCrimea and on 9 July Crimea issued a moratorium on the referendum.

In September 1992 the Crimean Parliament issued the law On the ag of theAutonomous Republic of Crimea. The colours of the ag matched the colours ofthe Russian ag and once again discussion started on double citizenship in the penin-sula. The Crimean Parliament took the position that Ukrainian citizenship shouldnot be obligatory for citizens of Crimea, and the Russian language was to becomethe State language of the Autonomous Republic of Crimea.32 As the Ukrainian author-ities turned against these decisions of the Crimean Parliament the Russian Dumastarted discussions on the status of the city of Sevastopol. It drew on the decree ofthe Supreme Soviet of the Russian Federation from the year 1948 to prove thatSevastopol had a special economic and administrative status within the RSFSR andhad, 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 RussianParliament, which stated that Russia could possibly support a referendum on Crimeaand was also ready to integrate Crimea as an independent member into the CISstructures. This proposal was later withdrawn by Russia.34 But already in July theRussian Parliament stated that Sevastopol would always be part of the territory ofthe Russian Federation. While Ukraine assessed this as aggression against theUkrainian State, this declaration was received with delight on Crimea.35

The con ict between Kiev and Simferopol was at its height when in 1994 Crimeaset up the of ce of President of Crimea. The presidential elections took place on 16and 30 January 1994. But it was not the of ce itself that heightened tensions with


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 isagain united with Russia, the rest of Ukraine is soon to follow. Although also the Security Council ofthe 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 Kievdecided on an addendum to the Ukrainian Constitution, directed against arbitraryacts of the Crimean authorities.37 At this time Moscow changed its direction towardsCrimea as Yeltsin declined to meet with Meshkov and the Russian Prime MinisterChernomyrdin stated that Russia has no claims on Crimea.38 On 24 February 1994the Ukrainian Parliament issued a resolution, giving the authorities of Crimea amonth 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 CrimeanParliamentary elections. At the same time the referendum took place (but was calleda 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 theCrimean parliamentary elections and the referendum, and also from the Ukrainianparliamentary elections in April 1994, was that the Ukrainian population on Crimeadid not really oppose the Russian demands for secession.

In May 1994 the Crimean Constitution of 1992 was reinstalled. Kiev again setan ultimatum to suspend the Crimean Constitution and other laws of Crimea andinformed 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 AutonomousRepublic of Crimea that contradicted the Constitution and the legislation of Ukraine.40

New discussions started, but the Crimean Parliament did not agree in giving awaypowers to Kiev. On 23 August 1994 Sevastopol was declared a Russian city andsubordinate only to Russian legislation. Later in 1994 Meshkov tried to assume allpolitical power in Crimea. He dismissed the Parliament after it argued for harmoniz-ing the Crimean law On the president with the Ukrainian Constitution and wantedto revise the Crimean Constitution. Ukraine stressed that the dismissal of the Crimean

118 DORIS WYDRA

36 Kiev rst did not worry about the of ce 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 Konstitucijta zakonodavstva Ukrainy, 28 February 1994, N 4006XII; Svetova Svetlana, Solchanyk Roman, supranote 3, at p. 31.

38 This did not change the situation on Crimea, as separatist movements on Crimea did still headtowards a reunion with Russia. Alexandr Kruglow, deputy of the Ukrainian parliament, founded a newparty named the Russian Sevastopol Crimea Party, which should support the unity between Russia andCrimea.

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 contradictsthe Ukrainian Law on Referenda since the population of Crimea is asked to decide upon subjects, thatfall completely within the competence of the Ukrainian parliament.

40 Postanova verchovnoj Rady pro vikonannja Postanovy Verchovnoj Rady Ukrainy vid 24 ljutovo1994 roku Pro status avtonomnoj Respubliky Krim vidpovidno do dijucoj Konstitucij ta zakonodavstvaUkrainy ta Postanovy Verchovnoj Ukrainy ta Postanovy verchovnoj Rady Ukrainy vid 20 travnja 1994roku pro zupinennja dij Zakony Respubliky krim Pro vidnovlennja konstitutcinach osnov dezavnostiRespubliky 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 Ukrainianauthorities, and on 22 September, Meshkov repealed the dismissal of the VerkhovnaRada of Crimea. On 29 September, the Crimean Parliament deprived Meshkov ofall his rights, and by issuing the new law On the government of Crimea the PrimeMinister became the head of the government of the Autonomous Republic of Crimea.One week later Anatoly Franchuk, a friend of Kuchma (the meanwhile elected newpresident of Ukraine), was appointed Prime Minister. During this struggle for powerMeshkovs party, the Block Rossija, broke apart. At the end of November the CrimeanParliament decided to harmonize all of its legislation with Ukrainian federal legis-lation. The Ukrainian National Bank was to stall all payments to authorities thatwould not obey these new provisions.42 In March 1995 the Ukrainian Parliamentsuspended all legal acts of Crimea that were in contradiction with the existingUkrainian legislation.

New tensions arose in 1995 when the Crimean authorities decided to insist on aconstitutional referendum. A round table conference was organized by the OSCEin Locarno and once again a compromise was found. No referendum would takeplace on Crimea and the Law on the status of the Autonomous Republic of Crimeawas to be reconsidered by the Verkhovna Rada of Ukraine. Again it was Russiathat contributed to the problems. Already in March a Russian consulate started toissue Russian passports in Simferopol. Again the question of double citizenshipemerged. Although the consulate refrained from issuing documents it was not readyto 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 untilthe rights of the Russian minority were suf ciently guaranteed.44

In November 1995 the Crimean Parliament was successful in adopting a newConstitution. 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 stilldiscussions about the inclusion of the Crimean autonomy within the UkrainianConstitution.

After 1996 the tensions eased and the Ukrainian Constitution of June 1996 con-tributed to the clari cation of the legal situation. But still there are con icts betweenthe minorities on Crimea. The representatives of the Russian majority of Crimeastill give declarations on the unity of the Russian people, but because the new


41 Postanova Prezidij Verchovnoj Rady pro situaciju v. Krimu, 12 September 1994, N 119/94PV; TheCrimea: 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 Crimeancommunist 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 Crimeaset 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 thebeginning it has to be stated that the autonomy of Crimea is not an autonomy setup to realize the rights of the Tatars, but rather of the Russians on Crimea. It wasthe Russian population that demanded this autonomy and it is structured by Russianinterests.

The Crimean Tatars see themselves as the indigenous population of Crimea andthe only people who have the right to call Crimea their homeland. When in 1475the khanate of Crimea came under the dominance of the Ottoman Empire, the rstwaves of emigration of the Tatars started. In the 18th century, when Crimea becamepart of Russia, 500,000 people were living on Crimea, of which 450,000 CrimeanTatars. Until the beginning of the 20th century the percentage of Tatars declinedfrom 80 to 34 per cent.

At the end of the 19th century a national movement of the Crimean Tatars emergedand political parties were founded, of which Milla Firka (National Movement) wasthe most prominent. It supported Russian Federalism and was also relatively closeto socialist movements. The Kurultaj, the Parliament of the Crimean Tatars also setup a Crimean Constitution.47

After the Tatars were deported (mainly to Uzbekistan) in 1944, it took them until1989 to be allowed to return to Crimea. But already during the 1980s they startedto move back to the peninsula, although illegally. The of cial Ukrainian policy wasalways in favour of the returning of Tatars, but problems emerged since the CrimeanTatars had dif culties integrating into Crimean society and this resulted in con ictswith the resident population. They were not allowed to settle in their ancestral ter-ritories, it was dif cult for them to nd employment and their economic situationwas 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 sameamount, as do the Tatars (Saburov Yevgenij, The Socio-economic situation in Crimea, in DrohobyckyMaria (ed.), Crimea: dynamics, Challenges and Pospects, Rowman & Little eld 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 byUkrainian 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 CrimeanTatar 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 disproportionaterepresentation 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 bornon Crimea before the deportation. Now a younger generation emerged, which ismore radical and demands more autonomous rights for the Tatars.48

Ukraine was also criticized by the Council of Europe for not guaranteeing theright 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 fromUzbekistan had to prove that they had renounced their foreign citizenship. As therenouncement of Uzbek citizenship was a dif cult 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 ofthem live under poor economic conditions. The still existing propiska system (althoughformally abolished, it is still drawn upon in administrative and police practice) alsoaffects the Tatar population of Crimea. Kiev did not acknowledge the Medjlis as alegal representative of the Tatar people and did not nance it, but did provide moneyto the Committee on the Return of Deported People.50 On the other hand, Kiev washeading for good relations with the Crimean Tatars and their organizations as theTatars were seen as allies that opposed secessionist movements.51 Still a lot of Tatarsrefrain from turning to of cial institutions to ameliorate their situation, as these mayprove to be extremely drudging. On the other hand they think that the Committeeon the Return of Deported People is not really effective and demand to set up anindependent government organization that is subordinated not only to the CrimeanParliament, 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 coulddevelop into stable, peaceful (though heterogeneous) States. This hope has not been


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.

ful lled and autonomy was therefore seen not only as a possibility to provide forthe protection of national minorities, but also as a concept to prevent the call forthe creation of new, small States. The right of self-determination developed togetherwith the concept of national States and was bolstered during the 20th century bythe idea that government was only possible with the consent of the governed.52

Many important documents, like the Charter of the United Nations, the Resolutionon the Granting of Independence to Colonial Countries and Republics (G.A. Res.1514 (XV)),53 the Declaration on Principles of International Law Concerning FriendlyRelations and Co-operation among States in Accordance with the Charter of theUnited Nations (G.A. Res. 2625 (XXV),54 the International Covenant on Civil andPolitical Rights (ICCPR) and the International Covenant on Economic, Social andCultural Rights (ICESCR) include provisions on self-determination. But while theself-determination of people is usually discussed with regard to the possibility ofsecession (and there is unanimity that the right to secession has to be interpretedvery strictly in relation to the right of uti possidetis) these documents point towardsa 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 Thisdemocratic aspect of self-determination can also be seen in the Helsinki process ofthe OSCE. The most important factor is the development of a pluralistic, democ-ratic society.56 When discussing autonomy and self-determination in Eastern Europeit is important to note that self-determination had a different meaning in the SovietUnion. Formally, self-determination was always granted to the subjects of the SovietUnion, 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, andLenin 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 anautonomous entity existed until 1944. It was set up to guarantee special rights andspecial protection for the Crimean Tatars. When in 1944 the Crimean Tatars weredeported the autonomy was overruled. At the same time, it was stressed that theautonomy for the Tatars was not justi ed because they amounted only to 40 percent 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, Verlagfr Geschichte und Politik, R. Oldenbourg Verlag Mnchen, 1996; Frowein Jochen A., Self-Determinationas a Limit to Obligations, in Tomuschat Christian (ed.), Modern Law of Self-Determination, KluwerAcademic 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 anddo 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 NijhofPublishers, 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 theywere not considered as a means to provide for internal self-determination. As awhole the concept of autonomy within the Soviet Union (Article 85, Constitutionof 1977) was merely a formal one, as there was no guarantee on the legislativepower of the autonomous entities. Each legislative act could be overruled by actsof higher ranking authorities.

The internal aspect of self-determination is not fully de ned. Rosas stresses thatthe right of internal self-determination is not concentrated on one point in historybut has to be realized continuously by involving the population in legislation, imple-mentation and government.58 Although international law does not prefer a certainform 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 ahomogenous principle generally acknowledged to solve minority con icts.60 Autonomyis quite often discussed as part of customary international law, because the conceptis often drawn on as a means for minority protection. But Heintze stresses, thatthere are too many different forms of autonomy to deduce a general principle ofautonomy. Therefore, the concept of autonomy is still to be de ned.61

In international treaties an of cial acknowledgement of the right of autonomy isalso 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 PersonsBelonging to National or Ethnic, Religious and Linguistic Minorities, but this wasdeclined by the States taking part.63 In Europe some concepts of autonomy were


58 Rosas Allan, Internal Self-Determination, in Tomuschat Christian (ed.), Modern Law of Self-Determination, Kluwer Academic Publishers, Dordrecht, Boston, London, 1993, p. 227. The most 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 gointo detail discussing the problem of the de ning the differences between a minority and a people. Thishas been done in quite a reasonable number of publications. Self-determination (and therefore also itsinternal 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 ofminorities needs certain aspects of self-determination and a de nition dividing between people andminorities should not lead to the creation of second-class people, when it comes to the enjoyment ofspecial rights (see Thornberry, Self-Determination, Minorities, Human Rights. A Review of InternationalInstruments (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 inthis 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 Commissiondoes not refer to the general principles of international law but rather draws upon the nal document ofthe 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. Theconcept 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 Documenton 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 protocolwas never realized and the Framework Convention on the Protection of NationalMinorities does not speak about autonomy concepts.

3.2. Provisions Concerning the Autonomous Republic of Crimea in the UkrainianConstitution of 1996

After the situation on Crimea started to calm down after 1995, further work on theestablishment 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 therelations between Kiev and Simferopol. Already at the beginning of 1996 a newCrimean Constitution was drafted, but was rejected by the Ukrainian Parliament.At this time the nal form of the autonomous status was not yet de ned. Only withChapter X of the new Ukrainian Constitution a legal status quo and framework wascreated for the Autonomous Republic of Crimea. The initial draft of the UkrainianConstitution included only restricted autonomy rights and left Crimea with the sta-tus of a rayon, leaving little to no competencies for economic legislation. Anotherimportant point was the enclosing of provisional regulation No. 14, which allowsthe temporal stationing of foreign military units (in contrast to Article 17 of theUkrainian Constitution). This was of special importance for Sevastopol as main portof the Russian part of the Black Sea Fleet. This Constitution includes provisions onthe 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, whichwas nally accepted by the Ukrainian Rada in December 1998.

The general principles (Chapter I, Articles 120) include important provisions forthe Autonomous Republic of Crimea. Article 2 stipulates that the sovereignty ofUkraine extends throughout its entire territory. This territory is indivisible. There isa single citizenship in Ukraine (Article 4). The State language is Ukrainian, but thefree development of Russian and languages of ethnic minorities is guaranteed (Article10). 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 ofcompetencies is a combination of centralization and decentralization. The AutonomousRepublic 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 de ned by a speciallaw (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 de ned 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 theParliament of Ukraine. Normative acts of Crimea and decisions of the Council ofMinisters shall not contradict the Constitution or the laws of Ukraine. Laws ofCrimea have to be adopted in accordance with the Constitution of Ukraine, the lawsof 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 issuesdecisions and resolutions that must be executed on the territory of Crimea. TheCouncil of Ministers forms the government of Crimea. The head of the governmentis appointed to of ce and dismissed from of ce by the Parliament of Crimea withthe consent of the president of Ukraine. The authority, the procedure for formationand operation of the Verkhovna Rada of the Autonomous Republic of Crimea andof the Council of Ministers of the Autonomous Republic of Crimea are determinedby the Constitution of Ukraine and the laws of Ukraine, and by legal acts of theVerkhovna Rada of the Autonomous Republic of Crimea on issues ascribed to itscompetence (Article 136).

The Autonomous Republic of Crimea has legislative competencies in areas ofmainly local importance. This includes agriculture, forestry, land reclamation, min-ing, city construction, tourism, museums, sanitary and hospital services (Article137).

Apart from the competencies enumerated in Article 137 Crimea has some exec-utive competencies in other areas, such as arranging elections of deputies to theVerkhovna Rada of the Autonomous Republic of Crimea, organizing and conduct-ing local referendums, managing property that belongs to the Autonomous Republicof Crimea and ensuring the operation and development of State language. Furthercompetencies 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 accordancewith general Ukrainian programs. Crimea can also establish areas of ecologicalemergency. Other powers may be delegated to the Autonomous Republic of Crimeaby the laws of Ukraine (Article 138). A representative of the Ukrainian presidentis 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 bedetermined by special laws of Ukraine (Article 140).

On 29 April 1992 the Verchovna Rada of Ukraine issued the Law on the Statusof the Autonomous Republic of Crimea. It differed from the original draft as Crimeawas not, as agreed previously, an independent subject of international law, butreceived 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


Republic.64 When the situation on Crimea was again deteriorating after presidentialelections 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 intoforce again in May 1994) under further legal acts of Crimea. The relations betweenCrimea and Ukraine were then based mainly on the Law on the Status of theAutonomous Republic of Crimea, which was nally replaced by the Law on theAutonomous Republic of Crimea in 1995.65 This law remained until the newConstitution of Ukraine entered into force in 1996. According to this piece of leg-islation Crimean authorities are competent to decide upon those matters that areassigned 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 theConstitution of Ukraine and leave only a very tight frame for the design of a CrimeanConstitution.

3.3. The Constitution of the Autonomous Republic of Crimea

The rst constitution of Crimea after Ukrainian independence was issued in May1992. This was in part a reaction to the Ukrainian law On the status of the AutonomousRepublic 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 withsome States agreements can be negotiated to allow for a double citizenship (Article17). Of special importance for the relations with Ukraine was Article 121, whichregulated the presidency of Crimea. This was to be the highest of ce in Crimea.

The abolishment of the Crimean presidency was one of the most crucial aspectsto harmonize the situation between Kiev and Simferopol. The new Constitution in1996 was not accepted by the Parliament of Ukraine and so it took until 1999, whena new Crimean Constitution was put into force.

In Article 1 of the new Crimean Constitution the Autonomous Republic of Crimeaconstitutes an indivisible part of Ukraine and it ful ls its duties within the State ofUkraine according to Article 138 of the Ukrainian Constitution. In case of contra-dictions between Crimean and Ukrainian norms the Ukrainian legislation has to beobeyed (Article 2). Questions on the relation between normative acts of Crimea andUkraine are decided by the Constitutional Court of Ukraine. The president of Ukrainecan 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 Ministersof 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 Sevastopolis realized through normative acts of the Verkhovna Rada of Crimea on the basisof the Ukrainian legislation (Article 8). Russian is the of cial language of Crimea,but also the use of the languages of the Crimean Tatars and other minorities areguaranteed (Article 10). Documents may also be issued in other languages thanRussian (Article 11). Before the Courts the Russian and the Ukrainian languagemay be used (Article 12), and these two languages are also used for the documentsof the post and telegraph system in Crimea (Article 13).

The Constitution of Crimea also provides for the State organs of Crimea, theVerkhovna Rada of the Republic of Crimea (Chapter 6, Articles 2134), the Councilof Ministers (Chapter 7, Articles 3538) and the judiciary (Chapter 8, Articles 3941).They ful l their of ces within the framework of the Ukrainian Constitution, theUkrainian legislation, and according to the Constitution of the Autonomous Republicof Crimea. There are no special courts in Crimea, as there is only one court systemin 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 AutonomousRepublic 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 modi cation of the autonomous rights of Crimea can only begiven 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 nationalState.67 On the basis of differences between internal and external self-determinationthe concepts of autonomy and secession developed.68 In this connection Casesestresses, that self-determination is the right of the whole population of a State, whichmeans the accentuation of democratic principles within a State. But this again maylead to the oppression of a minority by the majority.69

Autonomy, when it aims at being a real concept of internal self-determination, isalways a limitation of the sovereignty of the national State.70 This leads us to one


67 Bernardt in Heintze Hans-Joachim, supra note 60, at p. 9.68 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 ful lled, 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 toissue legal provisions above the normal legislation of the State. This national State should not have thepower 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 canbe drawn between autonomy in South Tyrol and Crimea. In both cases a nationalminority is the majority of the region in question and in both cases a second Stateclaims 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 beremembered that generally speaking Italy leaves more competencies to its regionsin comparison to Ukraine. In general the notion of federalism is still met with uneasein Ukraine. There is apprehension that the creation of stronger federal structurescould further encourage separatist movements.72 The Autonomous Republic of Crimeahas its own Constitution, which States that each normative act of Ukraine ranksabove this Constitution. In practice the autonomy of Crimea does not provide morerights to the peninsula than to any other oblast of Ukraine. A major problem is thatalthough 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 everysingle normative act can be nulli ed by Ukrainian authorities and Crimea does nothave the right to appeal before the Constitutional Court of Ukraine. Article 3 of theCrimean Constitution does not protect Crimean legislation from being overruled byUkrainian acts and the Constitution of Ukraine holds a framework rather than adetailed concept of autonomy.

Another problem of the Crimean autonomy lies within the protection of smallerminorities. Unlike the autonomy of 1921, the autonomy of 1991 is not set up forthe protection of the Crimean Tatars but instead for the Russian majority of thepeninsula. The Constitution of Crimea assumes that there is a Crimean Population,where ethnic belonging is of secondary importance. Ukrainian is the State languageand 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 representationof minorities is not provided for in the Constitution (Articles 10, 11, 13 Constitutionof Crimea).

One question is how their rights can be protected and not only their rights, butalso those of the numerous small ethnicities living in Crimea. A simple propor-tional system like that in South Tyrol cannot ful l this aim. On the one hand, whichthe example of South Tyrol shows, the Ladins are not really proportionally repre-sented and it would be even more dif cult to represent the smaller minority groupsof Crimea. A system heading towards including all groups in the political decision-

128 DORIS WYDRA

councils should be set up do decide on con icts over competences between the federal and the regionallevel, regional authorities had to be included in the national decisions process and local courts had tobe set up. The rights of a representative of the national government in the region should be clearlyrestricted by law and could only be put into of ce 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 internationalworkshop held at the Akademie Graz, July 56, 1989, Bhlau Verlag Wien, Kln, Weimar, 1991; vonEgen 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 withoutforms of positive discrimination. But the Crimean self-conception is still mostly aRussian self-conception.

On the economic level the autonomy of Crimea is also restricted. Although theUkrainian Constitution provides for economic privileges of the Autonomous Republicof 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. Someeconomic development zones were set up, but not under the administration ofSevastopol and most of them did not bring the expected results. One project thatbrought some positive results was the economic zone Sivash, which was set upupon suggestion of the administration of Krasnoperekopsk.73 In Sevastopol morethan 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 April2000 a new project on the construction of a transport bridge across the Kerch Straitwas 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 arelatively stable State, with signi cant economic growth in the last two years, whichrenders the rise of secessionist movements more unlikely. During this period Ukrainehas managed to avoid armed clashes similar to the ones that took place in Moldovaand the Russian Federation. The competencies between the Autonomous Republicof Crimea and the authorities in Kiev are now delimited by the Ukrainian and theCrimean Constitutions. But the autonomy of the Autonomous Republic of Crimeawithin Ukraine must be considered critically. As there is no universal concept ofautonomy, 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 autonomygave a special status to a region that was only included in the territory of Ukraine50 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 theUSSR, but a problem developed after Russia and Ukraine became independent Statesand the border between them suddenly became an international border. After thestruggles 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


73 Zerkalo nedeli, 31 May 1997.

peoples of Crimea do not pro t from this autonomous status, as their rights are notequally protected. On the contrary, they oppose the autonomy of Crimea as itpresently exists and see their political partners in Kiev rather than Simferopol. Theydemand political representation and the right to take part in the government of theregion they call their homeland.

Abbreviations

ASSR Autonomous Soviet Socialist RepublicCIS Commonwealth of Independent StatesCSCE Conference on Security and Co-operation in EuropeG.A.Res. General Assembly ResolutionICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights RSFSR Russian Soviet Federated Socialist RepublicOSCE Organization for Security and Co-operation in EuropeUN United NationsUSSR Union of Soviet Socialist Republics

130 DORIS WYDRA

Copyright of International Journal on Minority & Group Rights is the property of Martinus Nijhoff and itscontent may not be copied or emailed to multiple sites or posted to a listserv without the copyright holder'sexpress written permission. However, users may print, download, or email articles for individual use.