Guest Blog by Anna K. Duszczyk.
In the last week Russian military forces have occupied Crimea, the Ukrainian Black Sea peninsula where the majority of the population is ethnic Russian and the Russian Black Sea Fleet is deployed in the city of Sevastopol. This happened just after the new Ukrainian leadership dismissed President Yanukovych. The new Ukrainian Prime Minister Arseny Yatseniuk has claimed that the occupation of Crimea is a declaration of war to Ukraine, and appealed to the international community for support. Both German Chancellor Angela Merkel and US President Barack Obama have openly spoken out against Russia’s actions and called them a violation of Ukrainian sovereignty causing a breach of international law. Russia does not recognize the new Ukrainian leadership and supports President Viktor Yanukovych as the only legitimate leader of Ukraine. Russia also insists that its move is not a declaration of war and claims it has made its move into Crimea, which was backed by the Russian Parliament the Duma, in order to protect the Russian Black Sea Fleet and the Russian citizens of Crimea from ‘right wing extremist’ that occupied Kiev and might spread into Eastern Ukraine. In the Russian constitution a few articles describe circumstances where a primacy of Russian constitutional law above international law may occur. How does Russia legally justify its intervention?
Primacy of Russian Constitutional Law above International Law
By speaking out against Russia’s actions German Chancellor Angela Merkel and US President Barack Obama are referring to Article 2 of the Charter of the United Nations:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state.”
Looking at this principle Russia offers the following explanation. It does not see its presence in Crimea as unlawful. According to Russia the movements of the Russian Black Sea Fleet’s armored vehicles and troops on the Crimean peninsula are in full compliance with Russian-Ukrainian agreements concerning the presence of the Black Sea Fleet. Although it is clear that surrounding Ukrainian military outposts and demanding the Ukrainian troops to disarm on their own territory could be seen as a serious breach of Article 2 of the Charter of the United Nations. Putin denied that the Russian-speaking soldiers occupying key Crimean outposts were Russian Special Forces, describing them as ‘pro-Russian local self-defense forces’.
There are different opinions about the primacy of international law and some international law scholars are questioning the primacy of international law over domestic constitutional law, especially when domestic core values are at stake. Anne Peters states in her article Supremacy Lost: International Law Meets Domestic Constitutional Law that Thomas Cottier and Daniel Wüger were one of the first to argue that international norms which disregard fundamental rights and suffer from democratic deficiencies should be unenforceable in the domestic legal order. Russia has been referring to the principle of fundamental human rights in its official statements about their presence in Crimea.
In 2003 already the Russian Supreme Court confirmed that international law has priority over the laws of the Russian Federation but not over the Russian Constitution, except maybe for the generally recognized principles of international law. Looking at the Russian Constitution some articles allow defiance of international laws in a some situations:
Article 79 of the Russian Constitution of 1993 holds: “The Russian Federation may participate in interstate associations and transfer some of its powers to those associations in accordance with international treaties provided this does not entail restrictions on human and civil rights and freedoms and does not conflict with the basic principles of the constitutional order of the Russian Federation.”
Furthermore Article 61, section 2, of the Russian Constitution of 1993 holds: “The Russian Federation shall guarantee its citizens defense and patronage abroad.”
This constitutional requirement is further developed in the provisions of the Russian Federal Law on State Policy in Respect of Compatriots Abroad. For example paragraph 5 of Article 14 states: “If a foreign country fails to comply with generally recognized principles and norms of international law in the field of fundamental rights and freedoms of man and citizen in respect of compatriots, it is sufficient for the authorities of the Russian Federation to invoke measures, provided by international law, in order to protect the compatriots interests.”
Russia’s Foreign Minister Sergey Lavrov says that this is exactly what Russia has been doing by its presence in the Crimean peninsula. In a press conference he stated: “We are talking here about protection of our citizens and compatriots, about protection of the most fundamental of the human rights - the right to live, and nothing more.”
Russia is justifying its move by saying that the basic human right to live of its citizens in Crimea is under threat, and that Russia is protecting them by their presence in Crimea supported by their constitution. Western voices, however, say that there is little or no evidence that there is a real intention from ‘right wing extremists’ to breach the basic human right to live of the Russian population in Crimea. Russia’s presence could therefore be labeled as disproportional. By supporting the Russian speaking population in Crimea, Russia is only worsening ethnic tensions that have arisen since the political dispute over Yanukovych’ refusal to sign the Association Agreement (AA) and the Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU last November. The international community does not support Russia’s move and almost all UN Security Council members have urged Russia to order its troops out of Crimea immediately. The Foreign affairs ministers of the European Union are considering economic sanctions against Russia. China’s stance on the current situation in Ukraine is objective.
A selection of relevant publications from the Peace Palace Library collection
- Constitution of the Russian Federation, Moskva, Juridičeskaja literatura, 2005.
- Kuzio, T., Ukraine-Crimea-Russia: Triangle of Conflict, Stuttgart, 2007.
- Peters, A., "Supremacy Lost: International Law Meets Domestic Constitutional Law", Vienna Online Journal on International Constitutional Law, (2009), No. 3, pp. 170-198.
- Sasse, G., The Crimea Question: Identity, Transition, Conflict, Cambridge, Harvard Ukrainian Research Institute, 2007.
- Waters, T.W., "Plucky Little Russia: Misreading the Georgian War Through the Distorting Lens of Aggression", Stanford Journal of International Law, (2013), No. 1, pp. 176-238.