Crimea and International Law
Paper kindly translated by Anne-Marie de Grazia
Events have tended to accelerate with the decision taken by the Assembly of the Autonomous Republic of Crimea to demand its reunion with Russia. The Russian authorities are clearly embarrassed by this proposal, which could put them at odds with the international community. On the other hand, it is clear that this proposal plays onto the emotional string of solidarity with the populations. A demonstration in support of “Russian” Crimea gathering more than 60,000 people was held on Friday, March 7th in Moscow. This is precisely the type of situation which should have been avoided. But we must fear today that the devil is already out of the bottle and that it might be very difficult to get him back inside. The position of the Western governments, despite the bluster of which some are fond of, is not very assured, either.
The imperative of coherence
Indeed, Russia had proposed to go back to the accords of February 21st which – it must be remembered – had been co-signed by some countries of the European Union. This was a reasonable proposal and it was in its context that I wrote one of my preceding notes,  stressing the conditions under which this return could be effected.  A return to these accords implied the dissolution of the provisory government, President Yanukovich being reinstated in his functions, and assessing the illegality of the behavior of the authorities of the Autonomous Republic of Crimea. Such would have been the best of all solutions still available in the morning of Thursday, March 6th. We realize that the return to Kiev of President Yanukovich would not have been easy, but if his adversaries had had in mind the superior interests of the country, they could, and should have accepted this solution, knowing that it would only be temporary and that new elections would soon be organized. Again, I am not saying that this would have been an easy thing, even without mentioning the extremists of « Pravy Sektory » and of « Svoboda », whose role in the incidents which had led to the accords of February 21, the sniper fire to which policemen as well as demonstrators fell victims , still remain to be investigated in an independent manner. There was a lot of mistrust on both sides. But the fact remains that this solution was possible.
However, President Yanukovich fled Kiev during the night, and a de facto power got into place. Whether he fled for fear of his life or, like Queen Anne of Austria and Mazarin during the Fronde uprising, because he believed that he would be stronger from outside Kiev than inside, is immaterial. The power was left to be taken and some people picked it up. The countries of the European Union consider this to be a “revolution.” The problem is that a revolution implies (and supposes) the interruption of constitutional legality. If one accepts this point of view, then this gives a legitimacy to the new government but also, it must be pointed out, to the decision of the authorities in Crimea to ask for reunion with Russia. To admit this revolutionary solution is tantamount to recognizing the failure of the Ukrainian state. But admitting this failure implies that the post-revolutionary state will not be necessarily identical to the one which existed during the pre-revolutionary period. Together with the failure of the state comes the failure, or the rupture, of the pact creating the nation and establishing Ukraine as a « res-publica,» that is, the common thing of a given population. Henceforth liberated from this pact, one part of the population can perfectly well chose not to renew it and to seal another pact, either in an independent manner, or in union with another country.
From the standpoint of principles, the position of the United States, but also of the European Union, does not hold. President Obama, the President of the Commission, and M. Barroso say that a referendum about independence is illegal. It is such only if one situates oneself in the context of a return to the accords of February 21st. From the moment when one situates oneself within the framework of a revolutionary process, when one considers that there has occurred a founding act through the constitution of the provisory government, it is implied that all the actors of Ukrainian society are equally liberated from the constitutional constraints of the old regime. In the same way, the decision of the new government to hurriedly sign the treaty with the European Union implies that this government has cut itself loose from the former rules; or else it would have to wait for new elections to be held. But, if one then considers that these old rules no longer exist, this is true also for the government of Crimea. At any rate, one cannot apply one principle of law in Kiev, and another in Simferopol!
Let’s take note, then, of the fact that this has far-reaching consequences. What is true for Crimea is true also for any other region of Ukraine. Already, the cities of Odessa and of Nikolaiev have asked to be joined with Crimea; tomorrow, it is to be expected that they will also ask to organize a referendum about union with Russia. Tomorrow, some cities or regions of the West might decide to join Poland. The countries of the European Union and the United States are going to discover at their own expense what a revolutionary logic is. They are already beginning to discover that some cooperation with Russia is essential if they want to preserve a united and independent Ukraine, and not only for economic reasons. These countries have decided to exclude Russia from the game from February 22 to March 2nd. They must now accept the result. Thenceforth, demonizing Russia and its President no longer make any sense, expect for saving the face of these leaders. Incidentally, Henry Kissinger has observed: « Demonising M. Putin is not a policy, but a way of hiding an absence of policy. »
But it must be feared that consequences will not stop there. M. Barroso has taken the liberty, a few weeks ago, to lecture Scottish independentists, saying that the adhesion of an independent Scotland to the European Union was in no way evident. Has he thought one moment about what his position will become if the EU engages in negotiations with a partitioned Ukraine? Has he thought one moment at the signal sent by the EU to Catalan and Basque independentists? Has he thought one moment what reading would be made in Belgium, by the Flemish as well as by the Walloons, of the events in Ukraine? The leaders of the EU and of the United States have opened Pandora’s box. The shock of these events onto the European Union will reveal itself devastating. This shock be accompanied by a second, even worse one, if it settles into a period of confrontation with Russia. The European Union is a zone of weak growth. It risks, under these circumstances, to remain so for a long time. Finally, the image which the European Union is sending out into the rest of the world, particularly to Africa and Asia, is a detestable one. It is the image of a neo-colonial power, using and abusing its strong points with the weaker peoples, taking decisions without measuring the consequences and in spite of the principles of law. President Obama has stated, a little bit fast, that “Russia is isolated.” In reality, the country has received a very clear support from China and India, as well as from numerous other countries in Asia. This is not so much out of sympathy with the Russian positions but because these countries understand the coherence of international law and the necessity to abide by it.
The logic of the events of the first week of March 2014 is far from exhausted. We can’t make out too well today which bad, and why not, which good surprises the future has in store. But it is clear that we will soon have, with the European elections, the means to sanction our governments for their roundabout incompetence, even hubris, which they have shown on the Ukrainian question.
 Many readers told me that, if they approved my remarks, they nevertheless found me all too optimistic. I want them to know that it was the optimism of the will, which in no way prevents the pessimism of intelligence.
 Mrs Merkel has recognized at the press conference which took place in Brussels in the afternoon of March 6th that the origin and the sponsors of the snipers of Maidan square deserved an investigation. But one may well ask oneself what will come of it, knowing that the Attorney General is a member of « Svoboda ».