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The Russian Constitutional Path To The Annexation Of Crimea

JURIST Guest Columnist Jason Samuel, Penn State Dickinson School of Law Class of 2014, explores the constitutional framework surrounding the annexation of Crimea by Russia...

When the Alma-Ata Declaration was signed on December 21, 1991, 10 nations separated from the former Union of Soviet Socialist Republics (Soviet Union) and became independent states. In 2001, a new section in the Federal Constitutional Law of the Russian Federation charted a path for the reclamation and annexation of former soviet territories. This year, the constitutional provisions were utilized, and the first former territory was reunited to the Russian Federation: The Republic of Crimea.

Because of economic turmoil, the EU and Ukraine agreed to an economic partnership in 2012. However, in November of 2013, the Ukrainian government canceled their plans to join the economic partnership with the EU. The Russian Federation was strongly opposed to this agreement, and the Ukraine's Pro-Russian President Viktor Yanukovych refused to join the partnership with the EU arguing that joining the EU would have resulted in a sacrifice of trade with Russia. The decision by Yanukovych to cancel plans to join the EU sparked months of protests by the Ukrainian citizens. This crisis reached a breaking point when the Russian Federation provided a financial bailout of Ukraine in effort to keep them from reconsidering joining the EU. Eventually, the protests reached a boiling point and President Yakunovych fled the capital city of Kiev and a provisional government took over. On March 1, the Prime Minister of the Autonomous Republic of Crimea (Crimea), Sergey Aksenov, appealed to Russian President Vladimir Putin for assistance. This set the stage for arguably the boldest foreign policy move of this new century: annexing the Crimean peninsula into the Russian Federation.

Although the Soviet Union gave Crimea to Ukraine in 1954, the region still maintained strong ties to Russia. After President Yanukovych fled, President Putin sent Russian troops to the Crimean borders in preparation for the eventual invasion of Crimea. The Russians declared that these actions were necessary to protect the rights of the ethnic Russians who made up a substantial part of Crimea.

On March 16, the Crimean regional government announced that it would hold a referendum on whether the region should officially join Russia. International observers were not permitted into Crimea to monitor the referendum if they did not recognize the new Crimean government as separate and autonomous from the Ukrainian government. The results of the referendum alleged that 96.7 percent of voters were in favor of Crimea's accession to the Russian Federation. In May it was discovered that actual voter turnout was around 30 percent, and only half of those voters voted for annexation.

Immediately following the Crimean annexation referendum, Russia's Duma moved to formally accept Crimea into the Russian Federation on March 20. They accepted Crimea into the Russian Federation by a vote of 445-1. Then they voted 443-1 in favor of approving the treaty that admitted Crimea to the Russian Federation. In just 20 days, the Russian Federation had annexed Crimean. This swiftness was not an accident. It was the work of careful planning that was realized in 2001 when the procedures for accepting territories into the Russian Federation were spelled out in the Federal Constitutional Law On The Procedure Of Acceptance Into The Russian Federation And Formation Within Its Composition Of A New Subject Of The Russian Federation (Federal Constitutional Law).

The Federal Constitutional Law [in Russian. Note: online English translations of Russian law are often inaccurate and incomplete. The analysis in this piece was based off of William E. Butler's Russian Public Law: The Foundations of a Rule-of-Law State—Legislation and Documents (Wildy, Simmonds & Hill, 2005)] section was first codified in 2001 and was amended in 2005. In total, the section contains four different chapters and fourteen separate articles. All of the necessary requirements for admitting a new territory into the Russian Federation are spelled out in this section. A brief review of a few articles in this Federal Constitutional Law section will help illuminate the nature of the accession process.

In Chapter 1, Article 4(2), for any state to be accepted into the Russian Federation, there must be mutual consent of Russia and the other state. This article was satisfied by the Treaty Between The Russian Federation And The Republic Crimea On The Admission Of The Republic Crimea To The Russian Federation And The Formation Of New Subjects Within The Russian Federation (Admission Treaty). Article 6(1) of the Federal Constitutional Law requires that the foreign state be the "initiator of a proposal concerning acceptance in the Russian Federation as a new subject of a foreign State or part thereof" in accordance with Article 4(2) of the Federal Constitutional Law. On the same day as the Crimean referendum, the Crimean Parliament voted to break with Ukraine and join the Russian Federation. This is how the initiation requirement was satisfied.

While many consider the effort to hold the Crimean Referendum farcical, according to the Federal Constitutional Law, Russia was required to hold a referendum. According to Article 11(1) of the Federal Constitutional Law, "[t]he question concerning the formation of a new subject within the composition of the Russian Federation shall be subject to submission at referendums of interested subjects of the Russian Federation after holding consultations with the President of the Russian Federation." The 2005 Amendments to Article 11 of the Federal Constitutional specify that the "initiative" for holding a referendum belongs to the highest officials of the "interested subjects," who "have the right to take part in agitation" with regard to the question of the referendum. If the referendum fails to pass in Russia's favor the first time, a re-vote that occurs no more than 45 days later will legally suffice as legitimate, in accordance with the amendment.

On March 18, pursuant to Article 6(2), Russian President Vladimir Putin presented the Admission Treaty to the State Duma for ratification. The only hurdle that remained after ratification was clearance by the Constitutional Court in accordance with Article 7(4) which states, "[a]fter signature of the international treaty the President of the Russian Federation shall apply to the Constitutional Court of the Russian Federation with a query concerning verification of the conformity of the particular international treaty to the Constitution of Russian Federation." Unanimously, the Accession Treaty was validated by the Constitutional Court. Chairman of the Constitutional Court of the Russian Federation Valery Zorkin said, "The Constitutional Court recognized that this treaty complies with the Russian Constitution."

All signs point to the fact that this Crimean Referendum was controlled chaos on the part of the Kremlin and President Putin. Every step of the process was orchestrated in complete synchronization with the Federal Constitutional Law of the Russian Federation. The constitutional provisions used to annex Crimea had been carefully drafted and added to the Russian Federal Constitutional Law with the obvious goal of using them to reclaim former soviet states. All that is needed to reclaim more former territories is the triggering of pro-Russian sentiment among that territories' populace and government leadership. Because Article 11(12) of the Federal Constitutional Law permits foreign State leaders to "agitate" for the pro-Russian cause, it is highly unlikely that these foreign leaders "agitate" without the express "help" of the Kremlin.

The Crimean crisis should send a message to international community. Russia has just taken its constitutional provisions for the reclamation of former soviet states out for a test drive. The result was a smashing success. In what territory will the next Russian reclamation effort be tried? Transnistria?

Jason Samuel earned his AA from John Tyler Community College and BS in Paralegal Studies from Kaplan University. He served as President of the Student Bar Association at Penn State Dickinson School of Law. He is a 1st Lieutenant and Student Judge Advocate in the United States Marine Corps Reserves.

Suggested citation: Jason Samuel, The Russian Constitutional Path To The Annexation Of Crimea, JURIST - Dateline, May 23, 2014, http://jurist.org/dateline/2014/03/jason-samuel-russia-crimea.php

This article was prepared for publication by Elizabeth Hand, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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