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An estimated 8-minute read

THIS BIRD NEEDS UNCUT WINGS TO FLY (with reference to Crimean crisis)

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March 16, 2014 has been circled as the most important day in the calendar of Crimea. So as to remind, the popular Referendum was conducted on this very day. Crimean population comprise of most of Russian ethnics who felt suppressed under the sway of Ukrainian government. Otherwise, why a region would take as big as a step like secession!

In the name of governance Ukraine actually did not head Crimea but in turn made it experience like a bird that has wings but absolutely tattered and battered one. They in name of protection and shelter have been deprived of entitlement and this entrapment has now come out in the form of exercise of presiding of referendum by Crimea.

As truly said by Jean Jacques Rousseau,

We may acquire liberty, but it is never recovered once it is lost

The situation of Crimea exactly fits into the same pitfall. The conducting of the Referendum by Crimean population in 1991 after regaining its autonomy was clear indication of their sentiments purging high to get the sense of freedom that they have always craved for. But subsequently, it was dismantled by the Ukrainian parliament providing Crimea with a gift of new Constitution that would now have less or so as to say no powers and also any legislation that is to be made by the Crimean parliament can be vetoed against by Ukrainian Parliament.[i]

The recent uprising of March 2014 clearly signifies the retaliation of the suppressed notions of freedom that existed in the hearts of Crimean population. The conducting of the Referendum by the regions of Sevastopol and followed by Crimea supplements this reprisal further. Hence, Russia accepted the Referendum and declared Crimea as an independent nation state. Now, Ukraine argues as to how could a territory like Crimea which was under its absolute control since 1995 or precisely since 1998 could suddenly secede from its purview. They further argue that Referendum is absolutely illegal and non maintainable. This argument of Ukraine is further backed by USA. The question that arises here is as to what has made USA intervene in an issue which does not interest it. Actually, it does interest USA!

This world has ample of instances where its has witnessed some grotesque fights and morbid armaments. In this ensuing struggle of keeping Crimea at one or the other’s dispense a second cold war would certainly follow. The most rational and logical solution could be leaving the decision at the people’s discretion whether they want to join Russia or secession was just an impulsive measure. And once their decisions are out USA should not intrude any more on this road!

USA had since past decades eyed on Ukraine for combining it with the popular NATO forces and make Ukraine its ally. Just in case Crimea backs out of the umbrella of Ukraine it would lead to its disintegration and also will to lead to internal and external disruptions which would take away Ukraine’s attention from joining the NATO forces. But doesn’t that raise question on the concept of Territorial Sovereignty popular with international law??

The state territory and its appurtenances (airspace and territorial sea), together with the government and population within its frontiers, comprise the physical and social manifestations of the primary type of international legal person, the state. The legal competence of states and the rules for their protection depend on and assume the existence of a stable, physically delimited, homeland[ii].

In case of Crimea a complete state hood should be granted to it not because it fulfils all the prerequisites for constituting itself as a State but on the ground that every territory has sovereignty in relation to how its people want themselves to be governed, natural resources utilised and country raised. The claim of Ukraine that Crimea cannot secede from the Ukraine is based on its personal grounds and advantages or rather to articulate its annexation by the Ukrainian government which dates back to 1992 was more or less based upon the demand of the time but now when the nation and territory in itself has grown further, its populi has maturedthere lies no reason of clinging on to the region which does not anymore succumb to your pressure[iii].

The analogy between sovereignty and ownership is evident and,with certain reservations, useful. For the moment it is sufficient to establish certain distinctions. The legal competence of a state includes considerable liberties in respect of internal organization and the disposal of territory. This general power of government, administration, and disposition is imperium, a capacity recognized and delineated by international law. Imperium is thus distinct from dominium either in the form of public ownership of property within the state or in the form of private ownership recognized as such by law.

International law in its light suggests and highlights many important issues which provide a redressal to the present matter. Existing cases spring chiefly from the renunciation of sovereignty by the former holder and the coming into being of an interregnum with disposition postponed until a certain condition is fulfilled or the states having power of disposition for various reasons omit to exercise a power or fail to exercise it validly. For example, in a peace treaty Japan renounced all right to Formosa. However, Formosa has not been the subject of any act of disposition; it has not been transferred to any state in the former view of the British Government.

Likewise, in the present matter the West has disregarded every initiative taken up by Moscow to have a new security regime implemented for European countries reason being, that it constantly suspects Russia’ s intention to implant a divide between USA and Europe. Going back to 2009, Dmitry Medvedev had even presented a draft for a treaty seeking redressal to territorial disputes between the two polars of the world, the price for which is now been paid, as it remain unsigned till date[iv].

The exercise of conducting the plebiscite by the Crimea does not amount to clear violation of international law, but something that cannot be out rightly rejected is the right to retain sovereignty. Though, according to article 73 of the 1996 Constitution of Ukraine and article 3 of the 2012 Ukrainian law "On all-Ukrainian Referendum", territorial changes can only be approved via a Referendum where all the citizens of Ukraine are allowed to vote, including those that do not reside in Crimea. The Central Election Commission of Ukraine also stated that there are no judicial possibilities, according to the legislation of Ukraine, to initiate such changes.

But it could not be forgotten that after the collapse of USSR , Crimea made its own constitution which was rejected in 1992 and Crimea was taken under its control by Ukraine. The conducting of the Referendum today in turn is the result of that suppression and the emerging of the notion of sovereignty is the comeuppance of that inhibition, to which every state is entitled. Even the United Nations has come under the influence of West so far so that even it went on rejecting the Referendum[v]. Hasn’t it been forgetting its own decision, its own Advisory Opinion on Kosovo Declaration of Independence which was further recognised by International Criminal Court of Justice? The influence that has been casted by the West on the United Nations is so much higher that it has disregarded it own decision. Some western scholars also call the Kosovo Declaration of Independence as a wrongly deduced analogy.

Renowned Russian poet Alexander Pushkin penned a response in a poem entitled "To the Slanderers of Russia." "What are you sounding off about, you orators of nations? Why do you threaten Russia with anathema? Leave off: It is a battle of Slavs amongst themselves, a domestic, ancient quarrel, already weighed by fate. A question you will not decide."

The question is whether the limiting of aspirations and needs of Crimean population by the Constitution of Ukraine is righteous on its conduct and its grounds? Is it not popularly alleged that a Constitution or any government is regarded best when it fulfils the reasonable needs of its people? Doesn’t it mean that the Constitutions are always made to enforce such aspirations?

Such colours of democracy, freedom and liberty cannot be limited by citing a Constitutional clause and even if it does, than that should be done while keeping in view the best of the people not merely a country’s governing provisions and that too when such a major portion of people are getting affected! Fulfilling hopes and desires of the people is the basic and underlying objective of the government while carrying out certain policies, rather in the present matter same has not been complied with, as the constant notion that is triggering in the mind is not the legality of Referendum but keeping away from losing control over a region that otherwise proved advantageous in terms of politia and economy.

International government and watch keepers like United Nations shouldn’t be influenced by the strong pressurized notion but should take up a stand that is more deliberate and taken up at its own discretion and volence. International legal scholars are not behind in admitting that there is not international law in case of secession until it is the matter of decolonisation[vi]. It should now absolutely be left at the prudence of its people that which part they want to join and which part to secede from!

Submitted by Deepriya Snehi

B.A.LL.B. (H), 3rd Semester

AMITY LAW SCHOOL

AMITY UNIVERSITY, RAJASTHAN



ENDNOTES

[i] History :  All you need to know about Crimea; http://www.blacksea-crimea.com/history1.html

[ii] An introduction to Public International Law by S.K. Verma , ‘Territorial Sovereignity’

[v] Backing Ukraine’s territorial integrity, UN Assembly declares Crimea referendum invalid; http://www.un.org/apps/news/story.asp?NewsID=47443#.VDD9HfmSx0w

[vi] Oxford Public International Law, Referendum; http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1088

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