Published: 27 August 2021 Authors: Stefan Talmon and Hannah Janknecht
In February 2014, in the wake of the Ukrainian revolution, Russian troops stationed in Crimea under an agreement between Russia and Ukraine left their military bases and took control of the peninsula. A pro-Russian government was installed which held a status referendum in which the majority ethnic Russian population voted overwhelmingly for the independence of Crimea and the accession to Russia. On 18 March 2014, Russia’s President Vladimir Putin and Crimean leaders signed a treaty of accession making Crimea and the port city of Sevastopol the 84th and 85th federal entities of the Russian Federation.
On 27 March 2014, the UN General Assembly adopted resolution 68/262 on the “Territorial integrity of Ukraine”, calling upon “all States, international organizations and specialized agencies not to recognize an alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status.” In subsequent resolutions, the General Assembly condemned “the temporary occupation of part of the territory of Ukraine – the Autonomous Republic of Crimea and the city of Sevastopol […] – by the Russian Federation” and reaffirmed “the non-recognition of its annexation”.
Germany made it clear on numerous occasions that it does not and will not recognise Russia’s illegal annexation of Crimea. Germany considers Crimea to be under Russian “occupation”. It considered the referendum to be “a breach of international law” and did “not recognize the results”. The Federal Foreign Office declared:
“The so-called ‘referendum’, in which the preservation of the status quo was not a choice, was not monitored or recognised by any of the world’s independent international organisations. For Germany, it is clear that an unlawful act cannot create a new, legally valid situation. The Federal Government is firmly committed to the territorial integrity of Ukraine.”
The Federal Government identified several reasons for the illegality of Russia’s annexation of Crimea. First, it considered the annexation a “breach of the Charter of the United Nations” which states that the territory of a State cannot be acquired by another State as a result of the threat or use of force. In response to a parliamentary question, the Federal Government stated on 19 February 2015:
“The illegal Russian intervention constitutes a violation of the prohibition of the threat or use of force in international relations according to Article 2, paragraph 4 of the UN Charter and violates the sovereignty and territorial integrity of Ukraine. Because of the illegal use of force, the secession of Crimea from Ukraine made possible by it and its subsequent annexation to Russia are also illegal under international law. The Federal Government is therefore adhering to its non-recognition of the annexation of Crimea.”
On 31 March 2015, the Federal Government explained further:
“The term annexation is used to describe any forcible acquisition of territory by a State at the expense of another State. In any case, since the prohibition of the use of force has been recognized as part of peremptory international law (jus cogens) (cf. Article 2, para. 4 of the UN Charter), any annexation is contrary to international law.”
“According to the Federal Government, the so-called independence referendum in Crimea was preceded by a forcible military operation.”
In July 2018, Germany’s Federal President restated the German position as follows:
“This principle [that “internationally recognised borders cannot be changed unilaterally or forcibly”] was violated by the annexation of Crimea. We will not recognise this – and nor can we recognise it as long as the rule of law is supposed to mean something.”
For the Federal Government, non-recognition of the annexation was a matter of principle, but it also wanted to avoid a negative precedent. On 19 August 2018, Federal Foreign Minister Maas stated: “If we recognise Crimea as Russian territory, this could be an invitation for others to break international law.”
Second, the incorporation of Crimea was considered to be contrary to the Budapest Memorandum. In 1994, Ukraine gave up its nuclear weapons in exchange for security guarantees. In the Memorandum, the Russian Federation, inter alia, reaffirmed its commitment to Ukraine “to respect the independence and sovereignty and the existing borders of Ukraine.” On 20 February 2019, during the UN General Assembly debate on the situation in the temporarily occupied territories of Ukraine, Germany’s Permanent Representative to the United Nations, Ambassador Christoph Heusgen, stated:
“Through Russia’s aggression against Ukraine, including the invasion both in Crimea and the Donbas, Russia breached international law and the Budapest Memorandum. Such violations constituted a severe setback for international law, as well as the international disarmament agenda, because what will other countries that are ready to give up their nuclear weapons think if they look at what happened to those commitments?
Germany condemns the illegal annexation of the Crimean peninsula and supports Ukraine’s independence, sovereignty and territorial integrity, in line with the Budapest Memorandum, signed by Russia. We call on Russia to cease its occupation of Ukrainian territories and end its financial and military support to separatists. Here, I turn to the Russian delegation. The Russian Ambassador said this morning that this chapter is closed and that Crimea is part of Russia (see A/73/PV.67). All of us must say that this is not the case — one cannot just breach international law and get away with it.”
Finally, the annexation was seen as “a blatant breach of the Helsinki Final Act”. The Helsinki Final Act, as well as the Paris Charter, clearly states the fundamental principles of respect for the territorial integrity of any State and the prohibition of any use of force to change borders. By its use of force against the territorial integrity of Ukraine, Russia clearly contravened these principles.
The non-recognition of the annexation produces numerous legal consequences and affects all kinds of relations between Germany and Crimea.
Elections in Crimea
On 8 September 2019, local and regional elections were held in Crimea. In line with its non-recognition policy, Germany did not recognise the results of these elections. The Director for Eastern Europe, Caucasus and Central Asia at the Federal Foreign Office wrote on Twitter:
“The local elections organized by Russia in Crimea and Sevastopol have no validity. The areas were annexed by Russia in violation of international law. Elections on Ukrainian territory have to be organized by Ukraine.”
Visits to Crimea
Germany does not prohibit visits to Crimea. On the contrary, the Federal Government adopted the position that interpersonal contacts with people in Crimea “should be facilitated as far as possible and legally permissible.” When, on 3 February 2018, nine German parliamentarians visited Crimea, entering the peninsula via Moscow, the Ukrainian ambassador in Berlin called the visit a “criminal offense with serious consequences”, and the Ukrainian Public Prosecutor opened criminal proceedings against the German deputies for illegally entering the temporarily occupied territory of Ukraine. Asked to comment on the visit, the cabinet spokesperson stated:
“We are critical of such visits on principle, but private travel is not subject to sanctions. We regularly point out that the international community of States is pursuing a policy of non-recognition because of the illegal annexation of Crimea by Russia. We absolutely stand by this policy. We warn of the legal consequences that those undertaking such trips may face in Ukraine.”
The Federal Foreign Office’s travel and safety information on Ukraine stated with regard to Crimea:
“We strongly advise against traveling to the Crimean Peninsula. Under international law, Crimea is still part of Ukraine, but is currently under Russia’s de facto control. Since June 2015, travel to Crimea from the Ukrainian mainland requires an entry permit from the responsible Ukrainian authority, which is only issued under certain conditions, but never for tourist purposes. Entering Crimea via Russian territory, including by air or sea, constitutes a violation of Ukrainian laws (illegal entry) and may result in a ban on entry into Ukraine and, under certain circumstances, criminal prosecution. Ports and airports in Crimea are closed. Consular protection cannot currently be accorded in Crimea.”
When, in April 2019, the Ukrainian Embassy in Berlin notified the Federal Foreign Office that twenty-two individuals, including seven lawmakers, planned to attend an economic forum in Yalta without permission form the Ukrainian authorities, a spokesperson for the Federal Foreign Office declared:
“The Federal Government follows a policy of actively not recognizing the illegal annexation of Crimea by the Russian Federation. The Foreign Office made known to lawmakers the position of the Federal Government and the reaction of the Ukrainian side to possible travel plans.”
While the Federal Government did not prohibit private travel to Crimea, it considered itself bound by the entry restrictions imposed by the Ukrainian Government. It therefore funded the provision of humanitarian aid in Crimea only if it complied with the Ukrainian entry laws.
Germany’s policy of non-recognition of the illegal annexation of Crimea does not prevent private individuals from travelling to the peninsula. However, such visits may not receive any government funding or other support, and consular assistance to visitors is limited. The German Embassy in Moscow cannot assist because Germany does not recognise Crimea as part of the Russian Federation, and the German Embassy in Kiev cannot because members of the mission are not able to travel to Crimea, and Germany does not deal with the so-called “government agencies” in occupied Crimea.
Town twinning
Three German cities had twin towns in Crimea. The Federal Government was asked whether it had any objections to the continuation of the twinning arrangements. On 29 September 2017, the Federal Government stated that it had no objections to civil society contacts and contacts promoting international understanding between people and organisations in Germany and Crimea, provided that these were in accordance with EU sanctions regulations. With regard to town twinning, in particular, the Government stated:
“From the point of view of the Federal Government, there are no objections to the continuation of town twinning, as long as this is in accordance with EU sanctions and the Federal Republic of Germany’s obligation under international law not to recognise the illegal annexation of Crimea.”
The Federal Government explained that the participation of German towns and their Crimean counterparts in German-Russian town twinning conferences would violate Germany’s policy of non-recognition and was therefore not supported by the Federal Government. The activities of private partnership associations, on the other hand, were not affected by the non-recognition policy.
Cooperation with Russia
Non-recognition of the annexation of Crimea also affected German cooperation with Russia. As Germany did not recognise Crimea as part of the Russian Federation, residents, cities, institutions, and organizations in Crimea could not take part in German-Russian projects. Guidelines on German-Russian measures funded by German government agencies, published in May 2019, provided:
“The Federal Government does not recognise the illegal annexation of Crimea by Russia. The Federal Government is bound by this legal position. Its actions must not deviate from this position and must not be perceived as such a deviation.
This legal position must also be taken into account when implementing measures or projects that are funded by the Federal Government or are otherwise attributable to the Federal Government. The Federal Government points out that for that reason neither cities, institutions or organizations based in Crimea, nor persons who have their habitual abode or permanent residence in Crimea, may be listed as participants or partner organizations of activities which are funded or supported by German government entities. The Federal Government calls on project executing organisations to take this into account when planning and implementing their projects.
If, during the preparations for a measure, Russian cooperation partners insist on the participation of residents/cities/institutions/organizations in Crimea, the measure in question must be called off. If, after the beginning or during the measure or afterwards it becomes known that residents/cities/institutions/organizations in Crimea are participating or have participated, the funding authority must be informed immediately, which then will decide on the further steps to be taken.”
Passports and visa
Under Russian law, all residents of Crimea automatically became Russian citizens unless they applied within one month of the incorporation to refuse Russian citizenship. Only some 3,427 such applications were made. By mid-September 98% of the residents of Crimea had been issued Russian passports. Germany does not recognise Russian passports issued to the residents of Crimea and does not issue visas to people holding such passports. In response to a parliamentary question on the issuing of Russian passports to Ukrainians in Crimea, the State Secretary of the Federal Foreign Office, Andreas Michaelis, stated:
“Regarding Russian citizens residing in Crimea, who hold Russian passports issued by a Russian authority after 16 March 2014, there are uniform EU guidelines which preclude the recognition of these passports and that visas are affixed to them. A blanket conferral of Russian citizenship is not in line with international law, if the only connection between the persons concerned and the Russian Federation is residence in an area whose incorporation into the Russian State is not recognised by the international community of States.”
The relevant EU guidelines recommended the non-recognition of two types of documents. First, Russian ordinary international passports which were issued by the Russian administrative authorities established in Crimea and Sevastopol after the illegal annexation of these territories. Second, Russian ordinary passports issued by Russian administrative authorities in the Russian Federation to residents of Crimea and Sevastopol after the illegal annexation of these territories, provided that these persons did not hold Russian citizenship before the annexation.
Persons with a Ukrainian biometric passport who live in Crimea are allowed to enter Germany for a short-term stay without a visa. If they do not have such a passport, they can apply for a Schengen visa through the embassy in Kiev or German consulates located in Ukraine. On the website of the German Embassy in Kiev, it said:
“The German Embassy in Kiev is responsible for visa applications from residents of Crimea. This applies regardless of whether the applicants present a Ukrainian passport or whether they possess a passport that has been validly issued by a third country, provided that the applicant’s place of residence is in Crimea.”
A policy of non-recognition would, however, allow Germany to accept Russian passports issued to residents of Crimea as proof of identity.
Treaty relations
Germany considered its bilateral agreements with the Russian Federation to be applicable only to the internationally recognised territory of Russia. Thus, Russian-German agreements on double taxation or the promotion and protection of bilateral investments were not applicable to the territory of Crimea. Germany adopted the same position with regard to multilateral treaties. On 16 October 2015, Ukraine submitted to the Dutch Government as depositary of several multilateral treaties on private international law declarations stating that from 20 February 2014 and for the period of temporary occupation by the Russian Federation of the Autonomous Republic of Crimea and the city of Sevastopol, “the application and implementation by Ukraine of the obligations under the above Conventions, as applied to the aforementioned occupied and uncontrolled territory of Ukraine, is limited and is not guaranteed.” Documents or requests made or issued by the occupying authorities of the Russian Federation were considered null and void and without any legal effect regardless of whether they were presented directly or indirectly through the authorities of the Russian Federation. The provisions of the conventions regarding the possibility of direct communication or interaction did not apply to the territorial organs of Ukraine in Crimea.
On 19 July 2016, Russia rejected these declarations, claiming that the Republic of Crimea and the city of Sevastopol were constituent entities of the Russian Federation. It reaffirmed that it fully complied with its international obligations under the conventions in relation to this part of its territory. In response to these declarations, on 6 June 2018 Germany made the following statement:
“The Federal Republic of Germany takes note of the Declarations submitted by Ukraine […]. In relation to the Declarations made by the Russian Federation, the Federal Republic of Germany declares, in line with the conclusions of the European Council of 20/21 March 2014, that it does not recognise the illegal referendum in Crimea and the illegal annexation of the Autonomous Republic of Crimea and the city of Sevastopol to the Russian Federation.
Regarding the territorial scope of the above Conventions, the Federal Republic of Germany therefore considers that the Conventions in principle continue to apply to the Autonomous Republic of Crimea and the city of Sevastopol as part of the territory of Ukraine.
The Federal Republic of Germany further notes the Declarations by Ukraine that the Autonomous Republic of Crimea and the city of Sevastopol are temporarily not under the control of Ukraine and that the application and implementation by Ukraine of its obligations under the Conventions is limited and not guaranteed in relation to this part of Ukraine’s territory, and that only the government of Ukraine will determine the procedure for relevant communication.
As a consequence of the above, the Federal Republic of Germany declares that it will only engage with the government of Ukraine for the purposes of the application and implementation of the conventions with regard to the Autonomous Republic of Crimea and the city of Sevastopol.”
Postal relations
In April 2014, Ukraine’s State Postal Enterprise Ukrposhta asked the Universal Postal Union (UPU) to inform all designated operators of UPU Member States that, owing to the current situation in Ukraine, and on the Crimean Peninsula in particular, there were difficulties delivering postal items of all kinds to addressees residing in Crimea and Sevastopol. Ukrposhta therefore asked the designated operators of UPU Member States to suspend the dispatching to Ukraine of any international postal items addressed to Crimea (postal codes in the range 95000–99999). As a consequence, the German postal operator Deutsche Post announced that it would no longer accept classic letters and parcels with addresses on the Black Sea peninsula occupied by Russia. On the website of Deutsche Post it said:
“Currently there is a delivery stop to the following regions/places in Ukraine: […] Crimea, postal codes […] 91000–99000.”
The UPU, which coordinates postal policies among Member State and the worldwide postal system, is a specialised agency of the United Nations that agreed to co-operate with and to give assistance to the United Nations. In line with the UN General Assembly’s call on specialised agencies not to recognise an alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol, the UPU does not recognise the annexation of Crimea. For designated operators of UPU Member States it is thus not possible to reroute Crimea-bound mail via the Russian postal service. However, non-recognition does not preclude all deliveries to Crimea. A spokesperson for Deutsche Post said that urgent documents and goods could continue to be shipped via the DHL express courier unit of Deutsche Post which was not affected because DHL had its own private logistics network in Ukraine and could therefore continue deliveries. In November 2017, a spokesperson for DHL declared:
“DPDHL Group’s (DPDHL) policy is to comply with applicable trade laws in our global network for mail and logistics. As an EU-headquartered company but with operating entities in over 220 countries and territories, DPDHL provides services in Crimea in compliance with EU, as well as relevant local laws and regulations. DHL Express complies with applicable laws in offering limited delivery services in Crimea.”
Kerch Bridge
The Kerch Strait between the Crimean Peninsula and Russia’s Krasnodar region connects the Sea of Azov with the Black Sea. With the annexation of Crimea, Russia considered both sides of the strait Russian territory. When after the annexation Ukraine blocked land access to the peninsula, the idea of building a road and rail bridge over the Kerch Strait was revived. On 15 May 2018, Russian President Vladimir Putin inaugurated the road bridge. The next day, the Federal Foreign Office wrote on Twitter:
“The construction of a bridge from Russia to Crimea is another violation of the sovereignty and territorial integrity of Ukraine.”
The Federal Foreign Office also endorsed the following statement made by a spokesperson for the European Union:
“The Russian Federation has constructed the Kerch Bridge to the Crimean Peninsula without Ukraine’s consent. This constitutes another violation of Ukraine’s sovereignty and territorial integrity by Russia. The construction of the bridge aims at the further forced integration of the illegally-annexed peninsula with Russia and its isolation from Ukraine of which it remains a part. The bridge limits the passage of vessels via the Kerch Strait to Ukrainian ports in the Azov Sea.”
On 26 November 2018, the cabinet spokesperson stated that the construction of the bridge over the Kerch Strait was “a violation of international law because Ukraine was not involved.”
Monitoring of the Kerch Strait
After a naval confrontation between Ukraine and Russia on 25 November 2018, when three Ukrainian naval vessels and their crew were detained by Russia as they tried to enter the Kerch Strait from the Black Sea, Chancellor Angela Merkel suggested a Franco-German monitoring mission which was to observe and report on any interference with the free passage of ships through the Kerch Strait. During a press conference with his German counterpart in Moscow, the Russian Foreign Minister stated on 18 January 2019:
“[M]ore than a month ago German Chancellor Angela Merkel asked Russian President Vladimir Putin to allow German specialists to come to the Kerch Strait area to see how the passage through this stretch of water takes place considering the need to comply with safety norms: there is the piloting service, etc. Vladimir Putin agreed at once. After a while Angela Merkel asked him to allow French specialists to accompany the German ones. He agreed to that as well. More than a month has passed, but we have yet to see any arrivals.”
At the joint press conference, Federal Foreign Minister Maas said that discussions would be continued in furtherance of the agreements reached by President Putin and Chancellor Merkel regarding the possibility of the documentation of the guarantee of free passage by Germany and France. The monitoring mission, however, never materialised because Germany wanted the mission to be based on the consent on both Russia and Ukraine, which it still considered the territorial sovereign over the Crimean side of the Kerch Strait. On 18 January 2019, Federal Foreign Minister Maas and his Ukrainian counterpart agreed on expert-level negotiations on the establishment of a monitoring mission in the Kerch Strait. Any Ukrainian involvement, however, was unacceptable to the Russian Government, which considered both sides of the Kerch Strait as well as the Strait itself to be Russian territory.
Human rights obligations
Germany repeatedly condemned Russia’s violations of human rights on the Crimean Peninsula and called on Russia to respect its international human rights obligations. In response to a parliamentary question, the Federal Government stated in April 2018:
“According to the Federal Government, the freedom of expression and the freedom of the press in Crimea were restricted in an alarming manner after Russia’s illegal annexation. Restrictive measures against citizens critical of Russia and representatives of the Crimean Tatar minority include arrests, house searches, criminal proceedings, and the closure of the Mejlis [the representative body of the Crimean Tatars] and the last Crimean Tatar television station.”
Russia’s human rights obligations in Crimea were independent of the question of territorial sovereignty over the peninsula and were based on its occupation of the territory. On 17 May 2014, the Minister of State at the Federal Foreign Office, Michael Roth, stated:
“Without prejudice to the Federal Republic of Germany’s […] non-recognition of the illegal Russian annexation of Crimea, Russian ‘authorities’ and the Russian military exercise effective control over the inhabitants of Crimea. Russia is thus obliged to guarantee the rights of the inhabitants of Crimea derived from the European Convention on Human Rights.”
Conclusion
The legal consequences of non-recognition of the annexation of Crimea, while not negligible, are in practice fairly limited. The policy of non-recognition only precludes acts that imply the recognition as lawful of the situation created by Russia’s serious breach of the prohibition of the use of force. In particular, non-recognition must not be confused with a policy of economic or political sanctions. While non-recognition is a duty under international law and operates automatically, the latter is optional and requires specific decisions on the part of the other States or group of States. Thus, Federal Foreign Minister Frank-Walter Steinmeier was mistaken when he stated in an interview published on 25 October 2017:
“We did not recognize the annexation of Crimea, performed in breach of the international law. This fact undoubtedly has certain consequences for the operation of German companies in Crimea. German companies will not be working there.”
Non-recognition as such does not entail any (negative) consequences for German companies operating in Crimea. Any restrictions on dealings by private companies with Crimea is a consequence of the European Union’s sanctions policy. For example, the EU imposed a general import ban on goods from Crimea without a Ukrainian certificate of origin, a prohibition on making investments in Crimea, restrictions on trade and services and a ban on providing tourism-related services in Crimea or Sevastopol. With these sanctions, the EU and with it the Federal Government were pursuing the goal of inducing the Russian Federation to end its occupation of Crimea.
Category: Territorial sovereignty
DOI: 10.17176/20220627-172749-0
