The situation appears to be worsening in the Ukraine. Since the fall of Viktor Yanukovich, Russian troops have flooded into the Crimea. On March 6, the Crimean regional parliament and Sevastopol’s City Council voted to join the Russian Federation. A popular referendum—of highly disputed legality—to review these votes has been called for March 16. This expedited referendum is seen as a major escalation of the conflict. Most assume Russian annexation is inevitable. For instance, the Guardian has speculated that this expedited referendum will soon “rubber stamp” the annexation of Crimea by Russia. Furthermore, Katya Gorchinskaya of the Kyiv Post has characterized the choice on the ballot as “yes” to Russian annexation now or “yes” to Russian annexation later.
But although annexation is clearly possible, it is not inevitable. In fact, in a highly misunderstood option in the referendum, Crimean voters can vote to stay in the Ukraine and negotiate for more autonomy from Kiev—an option that might offer a short-term solution to the crisis and preserve Ukraine’s territorial integrity in the long term.
The March 16 referendum gives Crimean voters two options.
1. Are you in favor of Crimea becoming a subject of the Russian Federation?
2. Are you in favor of restoring Crimea’s 1992 constitution and remaining part of Ukraine?
Two things become clear very quickly. First, the Crimean authorities are not going to allow the people of Crimea to vote to keep the status quo. The terms of the referendum vote simply do not provide that as an option. Second, formal annexation by Russia is not inevitable. The terms of the referendum offer a way for the people of Crimea to stay in Ukraine—by “restoring” the 1992 Constitution.
But what does a restoration of the 1992 Crimean Constitution mean? Under the 1992 Crimean Constitution, Crimea had its own president and constitutional court. Crimea also had broad fiscal control over its own tax revenues. Most importantly, however, the 1992 Crimean Constitution did not make Crimea formally independent from Ukraine. Instead, it declared Crimea a “sovereign state” that “enters into the state of Ukraine and defines its relations with Ukraine on the basis of contract and agreements.”
How can a state be sovereign within another state? This strange arrangement is typical of the “asymmetrical federalism” that existed throughout the former Soviet Union in the 1990s. For instance, in Russia itself, President Boris Yeltsin himself signed a number of bilateral agreements with “sovereign” states within the Russian Federation that gave them varying amounts of independence from Moscow. For instance, in 1994, Yeltsin signed a treaty with the President of Tatarstan that provided that Tatarstan was “united” with the Russian Federation and had the right to print it own currency, control its own finances, and have its own official language. Vladimir Putin renegotiated most of these bilateral relationships when he came to power in 2000 and recentralized power in Moscow.
Polling evidence shows that Crimeans might prefer increased autonomy within Ukraine to formal annexation by Russia. Thus, if Crimean voters on March 16 opt for a “restoration” of the 1992 Constitution, they will be voting for a return to asymmetrical federalism and the beginning of negotiations with the Ukrainian government in Kiev about increased autonomy.
But will the Kiev government recognize the vote as legitimate and bargain with a more autonomous Crimea? Ukrainian authorities have already declared the referendum to be unconstitutional. But keeping Crimea in Ukraine might seem more preferable to the authorities in Kiev than Russian annexation—leading them to accept negotiations with a more autonomous Crimea. Furthermore, although restoring the 1992 Constitution means far more autonomy for the Crimea now, Kiev likely will be able to gradually regain control over Crimea as the situation grows less volatile. Finally, the United States and the European Union would likely encourage the authorities in Kiev to negotiate with the Crimean authorities to deescalate the crisis.
A negotiated solution also enjoys strong academic support. Oxford political scientist Gwendolyn Sasse has described how the 1992 Crimean Constitution was a “key factor defusing conflict potential.” Negotiated decentralization under the 1992 Constitution also closely approximates a recent proposal for resolving the Crimea crisis supported by a number of prominent American social scientists. This initiative argues that greater decentralization could be an important way to promote “democracy and stabilization in Ukraine.”
This scenario might seem improbable, though, with Russian troops on the ground in Crimea. There are possible reasons, however, why Russia might accept a restoration of the 1992 Crimean Constitution and withdraw its troops. Ruslan Pukhov recently argued in the New York Times that Russian annexation of Crimea would be “legally problematic and disadvantageous to Moscow in terms of its future influence over Ukrainian politics.” In particular, if Crimea remains part of Ukraine, it would avoid setting a precedent of separatism—something that Russia has long resisted with its restive regions in the south.
Whether this asymmetric federalism scenario is likely will become clear in the next week. In particular, it will be critical to see how much “air time” the 1992 Constitution has in the debate leading up to the referendum. But if given a chance the possibility of restoring the 1992 Crimean Constitution might be a possible way out of the crisis—something that all sides should be looking for.
William Partlett is an associate-in-law at Columbia Law School and a nonresident fellow at the Brookings Institution.