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Dr Gaetano Pentassuglia is a Reader in International Law and Human Rights at the University of Liverpool’s School of Law
“As widely reported by the media, the key justification for Russian intervention in Crimea has been the need to protect ethnic Russians. Indeed, President Putin obtained the backing from Russia’s upper house of parliament on that basis. The argument, built around a vaguely construed notion of humanitarian intervention or protection of nationals abroad has proved wholly unpersuasive.
“Assuming it has or retains any basis whatsoever in international law, Russia has failed to provide convincing evidence to back it up. In this sense, Russia’s argument is a repeat of its 2008 position on South Ossetia and Abkhazia – the two separatists regions of Georgia which are still under Moscow’s control. If anything, the move in Crimea has exposed an aggressive attempt by Russia to reassert its influence and Soviet-style of governance in the region – a spectacular move that, according to some analysts – might even backfire at home.
“While there is plenty of commentary on Russia’s breach of various international obligations, particularly the ones on Ukraine’s territorial integrity and those undertaken under the 1997 agreement on the stationing of Russian troops in Crimea, surprisingly little is being said about the ramifications of the ‘minority card’ that President Putin appears so keen to use.
Ukraine’s framework: self-determination, minority identities, and language
“Ukraine has an important track record of legislation on the protection of national minorities. Over the course of its brief existence, the Ukrainian National Republic, proclaimed in 1917, guaranteed robust language rights for ‘national minorities’ and even degrees of ‘national-personal’ autonomy for all such groups, particularly Russian, Jewish and Polish minorities. Despite formal protection in the Constitution of the Ukrainian Soviet Socialist Republic, the day-to-day practice of the Communist regime meant the progressive erosion of this protection, culminating in various forms of persecutions and pogroms against minority groups over time.
“In 1992, one year after Ukraine declared its independence from the Soviet Union, the Verkhovna Rada (Parliament) passed a Law on National Minorities which largely reaffirmed the positive approach to minority issues from pre-Soviet times, combining general cultural and religious rights with language and education rights, and some unspecified degree of cultural autonomy.
“The Constitution of 1996, as amended in 2004, channels this precedent into a new ambitious legal and policy framework. For one, it recognises the state’s process of civic state-building linked to the self-determination of the ‘Ukrainian nation’, understood as the whole people comprising of all ethnicities. At the same time, it provides protection for both the Ukrainian nation as a whole and the ethnocultural identity of all ‘national minorities’ and ‘indigenous peoples’ of Ukraine, and reaffirms language and education rights for Russian and other minority languages. Moreover, Chapter X provides for an ‘Autonomous Republic of Crimea’, where ethnic Russians account for approximately 60% of the population, as a politic unit to which a range of powers is devolved from Kiev, and which is thus an integral part of the state.
“The Constitution clearly embeds the general self-determination process for all Ukrainians into multiple layers of protection that accommodate diversity within the country, ranging from fundamental human rights to rights of certain minority groups to even forms of autonomy within the framework of the state. This is entirely consistent with international standards on internal self-determination, which are centred upon the wide notion of ‘representative government’ without distinction of ethnicity, religion or otherwise, and various modalities of securing individual and group protection within such a framework (be it regional, federal, unitary or otherwise).
“In this sense, the repeal of the 2012 Law on the Principles of State Language Policy by the Verkhovna Rada in late February, which was subsequently vetoed by the Interim President, would have led to serious questions about the inclusiveness of the new government that sworn in once Mr Yanukovych had fled the country. But the key point is that the 2012 law itself is thought not to be sufficiently attentive to claims and proposals from smaller language minorities, being as it is aimed at accommodating primarily the position of Russian-speakers. This continues to be a cause for concern within the Council of Europe and the OSCE, against the backdrop of international obligations and commitments assumed by Ukraine following independence.
The question of Crimea
“In the mid-1990s the OSCE, particularly the Office of the High Commissioner for National Minorities, became actively involved in talks with Kiev and Simferopol about the substance of territorial autonomy for Crimea to be ultimately recognised in the Constitution. The Treaty of Friendship, Co-operation and Partnership’ signed by Kiev and Moscow in 1997, extended for another 25 years in 2010, addresses the issue of the Black Sea Fleet in Crimean ports and recognises Crimea, and indeed Sevastopol, to be under Ukrainian sovereignty, but includes neither arrangements for Russian-speakers nor the scope of autonomy in Crimea. Unsurprisingly, Kiev has traditionally treated both of these matters as reserved to Ukraine’s own decision-making process.
“One might wonder whether there might be scope for revisiting Crimea’s autonomy in light of the 1990s’ legacy of open questions. If so, that process must be one conducted within a framework of dialogue between all the parties concerned. Indeed, as with language matters, this is not an all Russian-Ukrainian affair. Far from it. Crimea is the historic homeland of the Crimean Tatars, a Muslim Turkic community which inhabited Crimea before it was annexed to Russia in 1783 by Catherine the Great. Stalin deported Crimean Tatars to Central Asia in 1944 accusing them of collaboration with Nazi Germany. Their land was confiscated paving the way for Russians to settle in Crimea as a result. Tens of millions of them died. Other minority groups were deported and suffered at the hands of the regime. The Crimean Tatars who survived were legally allowed to return following a 1989 Declaration of the Supreme Soviet of the USSR. Some 300,000 have returned since then. They account for 12% of the entire population of Crimea. Despite the fact that a number of proposals have been put forward over time both in parliament and by the Crimean Tatars themselves, including ratification of International Labour Convention No. 169 on Indigenous and Tribal Peoples in Independent Countries, the status of formerly deported peoples or the restoration of their rights remains outstanding.
“Any future plan for Crimea should include a fair settlement of the returning deportees, including their rights to cultural identity, land and access to national resources as an indigenous community.
“The local referendum called for by the pro-Russian authority in Crimea for 16 March is thus doubly unacceptable: not only does it ignore the constitutional requirement of a national referendum for any alteration of the territory of Ukraine, but also constitutes an attempt to secede unilaterally from a sovereign state and effectively to bypass the rights of minority groups within Crimea itself. Both moves are clearly unsupported by general international law and run counter to specific human rights guarantees. In the late 1990s, for example, the Supreme Court of Canada was clear in linking Quebec’s referendum on secession to wider constitutional duties to engage with the federal government, the other provinces and the minority groups within Quebec, as well as the lack of any unilateral right to secession under international law.
Russia and its neighbours
“Ironically, Russia’s concern for Russian minorities in Ukraine has never been matched by any sustained interest in having this matter regulated through bilateral arrangements with Ukraine. The first agreement signed in 1990 by President Yeltsin with the Ukrainian Soviet Socialist Republic referenced international standards on minority protection only vaguely, and did not work out a special regime for ethnic Russians living in Ukraine. As noted, the 1997 agreement is wholly silent on this matter, despite an earlier Russian proposal for ‘dual citizenship’. This is hardly surprising, given Russia’s predominantly realpolitik (as opposed to ethnocultural) approach to its neighbours over the 1990s, and its close historical and cultural ties with the whole of Ukraine dating back as early as the High Middle Ages. Indeed, for many of those who live in Ukraine, bilingualism (Ukrainian-Russian) is anything but an isolated practice. President Putin’s declared intention of protecting ethnic Russians in Ukraine, while echoing the mantra of the early Russian approach to minorities in the former Soviet Union’s space, seems to reflect a more general miscalculation of the actual interplay of identities within Ukraine, the state’s track record of engagement with group issues, as well as the incompatibility of unilateral ‘kin-state’ involvement with basic tenets of international law. They include the minimum standards of respect for territorial integrity and non-interference, treaty obligations, and human rights, as earlier Council of Europe practice and other international practice suggest in no uncertain terms.
“Certainly, President Putin’s grossly inflated ‘minority concerns’ must be handled by responsible leadership in Kiev. Secessionist moves at the periphery and exclusivist policies at the centre are two sides of the same coin. Neither of them is sustainable. A clear majority of Crimean voters supported Ukraine’s independence in December 1991. Nationalist elements of the post-Yanukovych political landscape appear to be in a minority, though there are reports suggesting that they were heavily involved in the most violent clashes in Kiev. A mechanism that can secure the effective participation of all parties concerned within and outside parliament, including representatives from smaller minorities, should be put in place without delay. A fully-functioning and transparent, rule of law-based system for the protection of ethnocultural groups, including fair arrangements on language and education rights for all minority speakers, and a lasting solution to the problem of the Crimean Tatars, cannot but be a major part of the self-determination to which the Ukrainian people in their multiple components are fully entitled. The OSCE, Council of Europe and global institutions can and should assist in this delicate process.”
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