It is widely assumed, and it will probably be the case, that the Crimean referendum will provide Russia with the formal vote for the peninsula to join Russia as a subject of the Russian Federation. Yet there is also the distinct possibility that the Russian-controlled referendum might have Crimeans "opting" for the second question, which calls for the "restoration of the 1992 Crimean Constitution (and) Crimea’s status as part of Ukraine." Though choosing the latter option might generate sighs of relief in Western capitals under the belief that annexation has been avoided, in fact such an outcome may turn out to be just as deleterious and dangerous not only for Ukraine but also for the international community and for international law.
Why would Russia possibly settle for Question 2? In light of Vladimir Putin’s brazen actions in Crimea and blatant threats against Ukraine, it is easy to miss the Russian leader’s desire to nonetheless seek a Soviet-style legal justification for his 19th-century Russian imperialist goals.
Attempting to camouflage a process of ongoing annexation at gunpoint, the Kremlin has claimed inter alia that President Viktor Yanukovych had requested an armed intervention, that Russia was protecting Russian citizens, that it was safeguarding ethnic Russians in Crimea, and that it was essentially relying on the doctrine of humanitarian intervention.
None of these legal justifications proved to have any traction. Yanukovych could not authorize intervention after he lost effective control and fled ignominiously. The rescue doctrine cannot apply here when Russia would declare Ukrainian citizens in Crimea as Russian nationals primarily in order to rescue them through the use of force. Protecting ethnic minorities abroad, (Russians in Crimea), is the duty of Kiev and not Moscow. In terms of humanitarian intervention, the requisite exceptional circumstances that involve a great humanitarian emergency do not apply to Crimea, but for the artificial crisis created by the Kremlin.
How could Putin then "cure" this legal problem when the democratic West rejects Russian’s actions and plans? Approval of Question 2 could well be the solution, particularly if it could be massaged politically where the West might be induced to accept the restoration of the1992 Crimean Constitution as a compromise that avoids violent military action and seemingly forestalls annexation.
Yet the history of the 1992 Constitution is disturbing. It was approved in May 1992 during a time of tremendous turmoil and manipulation. As a "sovereign state," Crimea would be entering into relations with Ukraine on a voluntary basis and would define its relations through mutually coordinated acts and agreements. In short, the 1992 Constitution provided a very easily traversed antechamber to full independence and a primary reason it was soon replaced. Moreover, that territorial integrity was powerfully reinforced in international law through the Budapest memorandum of 1994 that gave security guarantees to Ukraine over its entire territory in part in exchange for Kiev’s willingness to have nuclear weapons removed, and through the 1997 agreement on the stationing of Russia’s Black Sea Fleet in Crimean ports.
Moscow though, should it succeed in restoring the discredited 1992 Constitution, might not opt for quick annexation. Instead, it could press for a similar status for eastern and southern Ukraine, which have large numbers of Russian speakers and continue to use the threat of annexation to cause such instability in Ukraine as to paralyze the ability of any government in Kiev to bring in the necessary economic and political reforms that would make the country into a modern democratic state and integrate it into the European and international economy. Putin, it seems, has no intention of allowing Europe to come to Ukraine and for the Maidan revolution to come to Russia.
The referendum’s Question 2 would only work if the democratic West compromises on its firm promises to Ukraine, and here Putin may be counting on Western fecklessness. It is true that the democratic world would need to make painful economic sacrifices if it is to implement effective political and economic sanctions against Russia. Such sanctions are very doable, however, because Russia is truly vulnerable.
Such sanctions may well have a salutary effect. They would impress on Putin the need for a reality check, the foolishness of his imperial pretensions and the necessity to focus on the Russian Federation and build that vast country into a modern state that respects the dignity of its own citizens. That would be the best outcome not only for Ukraine and the international community but also for Russia itself.
Aurel Braun is a visiting professor in the Department of Government at Harvard University. He is also professor of International Relations and Political Science at the University of Toronto. His latest book is NATO-Russia Relations in the Twenty-First Century. He wrote this for McClatchy-Tribune.
— McClatchy-Tribune News Services.