The Chinese ambassador to France, Lu Shaye, in a long and wide-ranging interview with a journalist on the French television news channel LCI, about world and Chinese affairs, stated, in response to a question as to whether or not Crimea was a part of Ukraine, that ‘it depended on how one looks at the history of the situation,” and that Crimea was Russian for a long time and only given to Ukraine during the Soviet era.”

He then added,

“Even these ex-Soviet countries don’t have an effective status in international law because there was no international agreement to materialize their status as sovereign countries.”

Both these statements caused an angry reaction in the West, especially the Baltic countries and Ukraine, and drew statements condemning what he said and calls for his removal from his post.

But among all this furore no one in the western media or halls of power bothered to ask the question, are his statements correct? The answer is yes and the anger in the West is due to their recognition that he is correct, that the entire post-Soviet order in Europe is built on a foundation of sand.

To understand this and its consequences we have to examine the events during the counter-revolution in, and during the dissolution of, the USSR in 1991.

The history of the counter-revolution in the USSR and the break up of the Soviet state is a long and complex one which is difficult to summarise n a short essay such as this. However, we can penetrate through the web of complexity to get to the heart of the issue raised by Ambassador Lu by examining the 1977 Constitution of the USSR for it was, or is, the controlling law governing the situation.

Article 1 of the Constitution states that,

“The Union of Soviet Socialist Republics is a socialist state of the whole people, expressing the will and interests of the workers, peasants, and intelligentsia, the working people of all the nations and nationalities of the country.”

Article 72 states

“Each Union Republic shall retain the right freely to secede from the USSR.”

But, in this regard it is important be aware of Articles 74 and 75, which confirm the supremacy of the Supreme Soviet and that, where there existed discrepancies between the laws of a constituent republic and the Supreme Soviet the laws of the Supreme Soviet prevailed.

Article 74 states,

“Article 74. The laws of the USSR shall have the same force in all Union Republics. In the event of a discrepancy between a Union Republic law and an All-Union law, the law of the USSR shall prevail.”

Article 75 states,

“Article 75. The territory of the Union of Soviet Socialist Republics is a single entity and comprises the territories of the Union Republics. The sovereignty of the USSR extends throughout its territory”

Article 72 did not set out a process by which a republic could secede but on April 3 1990, the Supreme Soviet filled that gap by adopting a law regulating the process by which a republic could secede.

In essence, the secession law adopted by the Supreme Soviet in 1990 required a referendum be held in the republic desiring to secede and required a positive vote of two-thirds of republic’s voting residents to be valid. The result of the referendum was then required to be submitted to the Supreme Soviet for approval after which various mechanisms would be implemented to resolve all the issues that would flow from secession and how to handle them.

Once the result was approved by the Supreme Soviet then it also had to be approved by the Congress of People’s Deputies, the nation’s top parliamentary body.

The secession law also required a five-year transition period for settling property and other questions to be approval by the Congress of People’s Deputies in Moscow and payment by the seceding republic of resettlement expenses for those who oppose independence and wanted to leave.

One of the major issues that was to be determined in the event of secession were the rights of those who voted to remain in the USSR and belonged to an ethnic minority, and their right to in turn secede from the seceding republic in order themselves to remain within the USSR, or to leave with compensation.

This is a major point because in the Baltic States there lived significant, and in the case of Ukraine, large Russian populations. In the east of Ukraine, a majority of the citizens were and are Russians.

The 1990 Amendment is long and I will not include it in the text here, but it is well worth-examining in detail especially in view of the events in Ukraine sine 1990 and the reader can find it here.

In this regard attention must be paid to Article 3, which states,

Article 3.

“In a Union republic which includes within its structure autonomous republics, autonomous oblasts, or autonomous okrugs, the referendum is held separately for each autonomous formation. The people of autonomous republics and autonomous formations retain the right to decide independently the question of remaining within the USSR or within the seceding Union republic, and also to raise the question of their own state-legal status.”

This is an important factor in determining whether Crimea is a part of Ukraine or not since Crimea was an autonomous oblast and therefore the people of Crimea had the right to vote, independently, in a separate referendum to decide whether they wanted to join a seceding Ukraine or to remain with the USSR.  But no such referendum was ever permitted the citizens of the oblast of Crimea. We can understand why Kiev would not permit it, since the majority of Crimeans would have voted to stay within the USSR, not Ukraine, as the 2014 referendum proved.

But Western agents were very active in the Baltic states and Ukraine during this period as they are now and the counter-revolutionary elements among the Lithuanians, Estonians and Latvians maintained that the new Soviet law on secession did not apply to them since, they claimed, their republics did not voluntarily join the Soviet Union but were forcibly annexed by the USSR in June 1940.

However, it must be noted that Estonia was a part of Russia for three hundred years, from 1721 until 1920, when the Bolsheviks granted it independence after a two-year conflict during which Estonia tried to use the events of WWI and the Russian Revolution to leave the Russian empire. This proved to be a short-lived independence since the USSR, in order to defend itself against the new German threat, reoccupied the country in 1940, and a pro-communist government took power in Estonia and asked to join the USSR. From 1940 Estonia was a part of the USSR and as a constituent republic was subject to the laws of the USSR.

Lithuania took the same position as Estonia but, at the time, Gorbachev’s press secretary, Arkady A. Maslennikov, indicated that no exceptions would be made for the Baltic republics when asked about the current legal status of Lithuania.

“Lithuania is part of the U.S.S.R., and all questions pertaining to the state structure of the republic and the problem of being in or out of the Soviet federation can be solved exclusively on a constitutional basis, even if that basis is not to somebody’s liking,”

The history of Latvia is similar, with it falling under Polish, German, Swedish and Russian rule at various points of history.  But from 1795 it was a part of the Russian Empire.  During the events of WWI and the Russian Revolution, Latvia also gained a tenuous independence, which ended when Germany invaded Poland, and Latvia, at the request of the new people’s assembly that took power on August 5, 1940 asked for admission to the USSR, which was also granted.

In the period 1988-90, pushed and supported by the West and its intelligence services, all three Baltic states began to refuse to adhere to the Constitution of the USSR by which they were bound and, after a series of illegal steps declared independence from the USSR in 1991, after the coup by communist forces and elements against the counter-revolutionary forces in Moscow failed.

But their actions were not just illegal under the Constitution by which they were governed and subject to.  They were against the will of the majority of the citizens of the USSR for it must also be noted that another important development took place in 1991. In that year a national referendum took place across the USSR, except for a few republics that boycotted it, in which the question posed was whether to approve a new Union Treaty between the republics, to replace the 1922 treaty that created the USSR. The question put to most voters was:

“Do you consider necessary the preservation of the Union of Soviet Socialist Republics as a renewed federation of equal sovereign republics in which the rights and freedom of an individual of any ethnicity will be fully guaranteed?”

Voter turnout was 80 per cent and 80 per cent of those voted for keeping the union together.

Among the governments who boycotted the referendum on national unity were the Baltic States, among a few others, such as Georgia, who would not allow their citizens to vote on the matter.  In fact, to counter the USSR referendum they conducted their own a few days before with the result supporting independence. But these referenda were illegal under the 1977 Constitution since any referendum on secession had to be approved by the Supreme Soviet and, due to overt pressure from western independence forces and those in power, the validity of the vote can be questioned. The Baltic states knew that if they acted legally, they would be bound by the referendum held across the USSR which voted to maintain the USSR and to gain independence would then have to have another referendum on secession as required.  This they did not want to risk.

With respect to Ukraine, the vote was over 71 per cent in favour of remaining within the USSR.  We must assume with confidence that in Crimean and the Donbass it was much higher but figures are unavailable.

In Ukraine citizens were asked a second question which was,

“Do you agree that Ukraine should be part of a Union of Soviet Sovereign States?

The vote was 88.7 per cent in favour.

The situation is further complicated because, in tandem with the referendum on national unity, a new treaty was drawn up replacing the USSR with a new Commonwealth of Independent States to which all the republics would belong.  But the signing ceremony for the Russian republic set for August 20, 1990 never took place because of the coup of in Moscow a day earlier by those trying to preserve the USSR as it was. That left the USSR intact.

The final illegality was the signing, on December 8, 1991, of what are known as the Belosvzha Accords, the name taken from the place where this event took place. The leaders of the republics of Russia, Ukraine and Belarus, that is Boris Yelstin, for Russia, Leonid Kravchuk for Ukraine and Stanislas Shushkevic for Belarus, decided, on their own, and in violation of the USSR Constitution, to issue a decree dissolving the USSR and establishing the Commonwealth of Independent States.  Their pretext for this act against the will of the majority of soviet citizens was the failed coup attempt by those trying to save the USSR.

In other words, they acted on their own, against the expressed will of the people, against the will of the majority of the Soviet republics, against the Constitution, and, it appears for no one’s benefit except that of the West and western assets inside the USSR.

Mikhail Gorbachev in his memoirs of 2000, stated,

“The fate of the multinational state cannot be determined by the will of the leaders of three republics. The question should be decided only by constitutional means with the participation of all sovereign states and taking into account the will of all their citizens. The statement that Union wide legal norms would cease to be in effect is also illegal and dangerous; it can only worsen the chaos and anarchy in society. The hastiness with which the document appeared is also of serious concern. It was not discussed by the populations, nor by the Supreme Soviets of the republics in whose name it was signed. Even worse, it appeared at the moment when the draft treaty for a Union of Sovereign States, drafted by the USSR State Council, was being discussed by the parliaments of the republics.”

But the fait accompli soon led the other republics to follow suit since their seemed no alternative to overcoming the illegal actions of Yeltsin, Kravchuk and Shushkevic which had taken place.

With regard to Crimea the argument can be made that Ukraine’s secession from the USSR was illegal, invalid and of no legal effect, and therefore its status as a nation state is questionable and therefore its claim to Crimea is also questionable. But this is not the end of the matter for Crimea has been part of Russia since the days of Catherine the Great, and the decision, by Premier Kruschev in 1954, to assign Crimea to the Ukrainian Soviet Socialist Republic was solely for administrative reasons and only on the condition that Ukraine would remain a Soviet republic within the USSR.

The decree of 1954 stated,

“Taking into account the integral character of the economy, the territorial proximity and the close economic and cultural ties between the Crimea Province and the Ukrainian SSR, the Presidium of the USSR Supreme Soviet decrees:

“To approve the joint presentation of the Presidium of the Russian SFSR Supreme Soviet and the Presidium of the Ukrainian SSR Supreme Soviet on the transfer of the Crimea Province from the Russian SFSR to the Ukrainian SSR.”

Some Russian jurists now take the position that this action was illegal under Soviet law at the time.  But in any case, the fact is that Crimea’s transfer to Ukraine was clearly conditional on it remaining with the USSR as a part of the Ukraine SSR and it was done mainly for ease of administration at the time. It was never meant to be a permanent gift to Ukraine if it chose to secede from the USSR.  Together with the refusal of Ukraine to conduct a referendum in Crimea on the question whether Crimeans wanted to remain with Ukraine or the USSR, the illegal secession of Ukraine from the USSR, and the fact that Crimea was not intended to remain under Ukrainian control if it left the USSR, it can be argued that Ukraine has no valid claim to Crimea whatsoever.

So, Ambassador Lu was perfectly correct to say what he did, to point out that the entire legal status of the ex-Soviet republics is in question and in fact, that the dissolution of the USSR itself was illegal under Soviet law and, in legal terms never took place, and therefore, according to the 1977 Constitution the USSR still exists.  It is often said in Russia that those who do not miss the USSR have no heart, but those who want to reconstitute it have no head.  But one could reply that the USSR was never properly dissolved.

But history has moved on and, de facto, these states now exist, are recognised, internally and externally and have consolidated their existence by building an edifice of laws, agreements, and treaties and established relations which solidify the status quo. But it is a status quo that can be regarded as built on a foundation of sand, for illegality always has consequences as we have witnessed in several of the ex –soviet republics since 1991.

The Western anger at Ambassador Lu’s remarks in Paris reflects the West’s own insecurity and weakness. They know he is right. Their anger and reactions are meant to try to push his remarks into the dark, so they cannot be examined and considered.  Ambassador Lu stated facts, and the facts made them tremble, for they are afraid the whole edifice they helped to build can come crashing down.

Author

Christopher Black is an international criminal lawyer based in Toronto. He is known for a number of high-profile war crimes cases and recently published his novel Beneath the Clouds. He writes essays on international law, politics and world events, especially for the online magazine “New Eastern Outlook”.