• Harvard College Law Review Facebook

© 2019 by Harvard College Law Review.

All rights reserved.

Russo-Lithuanian Relations in the Wake of the Ukrainian Crisis: A Legal and Historical Lens

by Nataliya Palinchak | Summer 2017

Russia has been charged with illegal activity in its aggression toward Crimea concerning the nation’s annexation of the area. This article evaluates the legality of those actions, in addition to the operations that allowed for Crimea to join the nation of Ukraine in the first place. Following an assessment of this successful Russian annexation, this article will gauge the situation in Lithuania and analyze the legality of a possible encroachment there.

2. 1936 USSR Const. art. XVIII.

3. Kramer, “Why Did Russia Give Away Crimea?”

6. Viktor Lyashchenko, “CRIMEAN AUTONOMY OF 23 YEARS LATER: How they saved the world and did not let the war in,” Kia News,

http://www.kianews.com.ua/page/krymskaya-avtonomiya-23-goda-spustya-kak-sberegli-mir-i-ne-pustili-v-dom-voynu

7. Adam Taylor, “To Understand Crimea, take a look back at its complicated history,” The Washington Post, February 27, 2014, https://www.washingtonpost.com/news/worldviews/wp/2014/02/27/to-understand-crimea-take-a-look-back-at-its-complicated-history/?utm_term=.994106170d8e.

8. Tyler Felgenhauer, “Ukraine, Russia, and the Black Sea Fleet Accords,” Woodrow Wilson School of Public Affairs, Princeton University, NJ, 1999.

17. The Act of the Re-Establishment of the State of Lithuania, March 11, 1990.

19. Andrius Sytas, “Lithuania says Russia suspends mutual military inspection deal,” Reuters, May 5, 2014, http://www.reuters.com/article/us-ukraine-crisis-lithuania-russia-idUSBREA440I020140505

20. Damien Sharkov, “Lithuania accuses Russia of ‘simulating attack’ on NATO with drill,” Newsweek, May, 15, 2017, http://www.newsweek.com/lithuania-accuses-russia-simulating-attack-nato-drill-609333.

22. Europe Staff, “Lithuania plans fence on Russian Kaliningrad border,” BBC, January 17, 2017, http://www.bbc.com/news/world-europe-38635737.

25. Darko Janjevic, “What are Russia’s Zapad war games?” Deutsche Welle, July 14, 2017, http://www.dw.com/en/what-are-russias-zapad-war-games/a-39702331.

Russia has been deemed the hegemonic mastermind attempting to upend the entire fabric of independent East European states. These tactics are creating, or rather re-creating, a Cold War in the 21st century. But putting politics aside, what are the legal leniencies allowable to Russia in Lithuania, and how do they compare to the legality of the annexation of Crimea? With Russia rapidly expanding its military presence along its Kaliningrad border with Lithuania, this article will be an exploration of legal proceedings and history behind relationships with Russia, Ukraine, and Lithuania. Through such comparison, we can explore whether the Russian Federation’s legal claims about Crimea hold true and whether there any legal claims made for endangering Lithuania’s security can be preempted and countered. These goals are vital for uncovering the truth behind actions that Russia has been attempting to mask as legal and well-intentioned if we want to prevent the creation of another all-consuming empire that creates volatile conditions in Eastern Europe in a time when other parts of the world are expanding nuclear armaments.

CRIMEA - RUSSIA'S LEGAL AGREEMENT WITH UKRAINE

When Joseph Stalin’s reign ended, and Nikita Khrushchev’s began, the UkSSR was given the peninsula of Crimea. This was done in accordance with the Soviet Constitution of 1936.[1] Article 18 of the Constitution reads, “The territory of a Union Republic may not be altered without its consent.”[2] Although this transfer has been questioned, especially in recent years with the recent transfer of Crimea to Russia, it was completely legal according to this Soviet law because both the Russian Soviet Republic and the Ukrainian Republic consented to the transfer.[3] Moreover, the transfer did not have any direct effect on the daily lives of those living on the peninsula, since they continued to live under the larger cloak of the Soviet Union.

At the fall of the Soviet Union in 1991, the Crimean question became relevant once more. Crimea had served as an access point to a warm water port for Russia’s since its annexation into the Russian Empire under the reign of enlightened ruler Catherine the Great.[4] Even though it was technically part of the UkSSR during the Soviet Union, to many it still felt particularly Russian. Its Soviet nature was exasperated as a result of its desirability as a tourist and vacation destination for the Soviet public. Further, that feeling was only solidified by the fact that the Crimean Tatar, a native ethnic group, was deported during the Stalinist regime and had been only partially brought back after the era of Stalin had passed. In the wake of the crash of the Soviet Union, the legal transfer of the peninsula to Ukraine had come into question, but in the end, a referendum was held on the peninsula, giving the population a chance to vote on the autonomous status of Crimea.[5] An overwhelming majority, nearly ninety-five percent of voters, voted in the affirmative for the autonomous status of the Crimean region.[6] Thus, Crimea was not simply a province within the UkSSR, but it was its own republic within the UkSSR. However, when a referendum was held throughout the UkSSR to declare independence from the Soviet Union, most of the Ukrainian provinces voted over eighty percent in the affirmative, while Crimea clocked in at fifty-four percent.[7] This is of course a majority, but a slim one at that, especially in comparison to the overwhelming numbers in the rest of Ukraine. This affinity with Russia was further solidified through agreements between Ukraine and Russia in regards to the leasing of the Black Sea Fleet. In 1997 agreements, Ukraine granted Russia access to the port of Sevastopol for twenty years,[8] which was extended in 2010 to last until 2042.[9] Thus, Russia’s presence in Crimea was not a surprise to Ukraine, nor was it illegal. However, legality of the referendum held in Crimea was in question.

CRIMEA - THE LEGALITY OF THE REFERENDUM

Despite the legal agreement between the Russian and Ukrainian governments, Russia   overstepped the legal boundary by very blatantly attempting to co-opt Ukraine’s possession of the territory. The allowance of the Russian part of the Black Sea Fleet to be stationed in Crimea, also known as the “Agreement Between the Russian Federation and Ukraine on the Status and Conditions of the Russian Federation Black Sea Fleet’s Stay on Ukrainian Territory,” was under the assumption that the Black Sea Fleet would stay in the designated territory and honor Crimea’s autonomous status.[10] However, there was much evidence in the tumult of the Crimean referendum that Russian forces took over the Crimean parliament and began to patrol the streets of Crimea.[11] Although Russia denied that it had anything to do with this growing presence on the peninsula, this denial was half hearted and there was evidence supporting the suspicions of the rest of the world.[12] Moreover, the blocking of journalists, as well as pro-Ukrainian voting parties,[13] created the very real possibility that the voting that happened in the parliament was illegal and did not adhere to the standards of the Crimean parliament. In regards to responses against these actions, the United Nations General Assembly voted to denounce the Russian annexation of Crimea,[14] following the legally questionable actions on the peninsula in 2014. Moreover, Ukraine has filed a court case against Russia in the United Nations’ highest court against Russia for both the annexation and the war in Donbass,[15] claiming violation of the UN Charter. Russia, as a veto member of the UN Security Council, should be upholding the UN Charter to the highest degree, but according to Ukraine, it has failed at this task. Part 4 of Article 2 of the UN Charter, which signatory nations are meant to adhere to, reads:

 

“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”[16]

 

However, as long as Russia continues to deny any direct involvement in the military takeover of the Crimean parliament and the deployment of troops into Eastern Ukraine, and as long as there is no thorough investigation into the issue, there is no definitive proof that Russia has broken the Charter. Factor in the fact that not many nations will be willing to act against Russia in anything besides sanctions, which have not proven to end any aggression or fighting in Ukraine.

The Russian incursion and legal standing in relation to Ukraine and Crimea seems to be quite clear. However, as Russia’s hegemonic ambitions become more salient, it is prudent to evaluate the legal positions in what seems to be the next target: Lithuania.

RUSSIA'S HISTORY WITH LITHUANIA

Lithuania’s history is perhaps not tied to Russia’s by a national origin myth like Ukraine’s, but it is linked to the Russian Empire and the Soviet Union. Unlike Ukraine, Lithuania’s formidable history as a part of the Polish-Lithuanian Commonwealth, which verged on democratic ideals, presented the possibility for a degree of independence from the Russian older brother. Lithuania was not a subservient region within the Russian Empire, following the Partitions of Poland, rather it was a hotbed of nationalist activity with attempts to establish self-rule, with a clear separation from the Russian identity. Even as a part of the Soviet Union, Lithuania was at the forefront of the dissolution of the Eastern Bloc, declaring its independence from the Soviet Union on March 11, 1990. Its “re-establishment” of independence implies that the Soviet takeover was an illegal incursion into the territory, and:

 

“The Act of Independence of February 16, 1918 of the Council of Lithuania and the Constituent Assembly decree of May 15, 1920 on the re-established democratic State of Lithuania never lost their legal effect and compromise the constitutional foundation of the State of Lithuania.”[17]

 

Lithuania has been decidedly pro-Western and anti-Russia since its inception, reflected in its decision to join NATO and the EU as soon as allowable. Although Lithuania is separated from mainland Russia, it shares borders with Kaliningrad, a portion of the nation removed from the mainland. This region’s location on the Baltic Sea gives Russia a strategic advantage, with more access to ports. However, Kaliningrad may be the location at which fighting with Russia for federalism may begin.[18] This is something that places like Kaliningrad were promised and have been continually denied, as a result of Putin’s modifications to the constitution and the creation of a centralist government.             

WHAT ARE THE CHANCES OF RUSSIA ENTERING INTO LITHUANIA?

Unlike Crimea, Russia and Lithuania’s history is not rife with legal agreements and Russia does not have ports in Lithuania. However, in 2014, a few months after the annexation of Crimea, Russia ended an agreement with Lithuania whereby there was mutual inspection of the two militaries.[19] This unprecedented suspension of an agreement, although not illegal, was undoubtedly influenced by Russia’s ambitions and subsequent increase of military force in Eastern Europe.[20] This hidden, and verging on prevarication, military activity continues with Russia sporting up to ten times more troops than it had originally promised.[21] In recent months, Lithuania has been increasing its border protection along the boundary with Kaliningrad by building a fence in order to create a concrete border, solidifying the abstract one that currently exists.[22] Such an action does not stem from unfounded fears. Along with the impending military tests to be held in Kaliningrad,[23] the possibility of Russia manipulating and shifting borders has become a very real and tangible course of action for the nation. In fact, Russia recently shifted its border with South Ossetia,[24] the separatist region in Georgia. Russia’s pushing of the boundaries and observing the relative inactivity of the world community demonstrates the plausibility of Russia entering into Lithuania with minimal to no consequences from international actors. Now, Russia is preparing for Zapad, military drills in Kaliningrad in September, which the Baltic states fear are meant to be practice for a future attack on NATO.[25] While these drills do not break any laws, as many other nations perform military drills, they are suspect when considered with the lack of transparency that accompanies them. It seems that these displays of power and trainings could potentially develop into a larger issue.

Serhii Plokhii, Director of the Ukrainian Research Institute and Mykhailo S. Hrushevsky Professor of Ukrainian History at Harvard University, questions the likelihood of Russian incursion into Lithuania. In an email correspondence, he issued the following statement on Lithuania:

 

“Although Lithuania is of great strategic importance and interest for Russia because of the country's common border with the Kaliningrad enclave, I do not think, Vilnius is under direct threat of Russian invasion. If Russia's actions in the immediate past can be viewed [as] an indication of its actions in the future, the most vulnerable are the countries bordering on the mainland Russia and having large Russian or Russian-speaking minorities. Lithuania does not fit the bill in either of those cases. It can be attacked though as part of a larger Russian operation against the Baltic states, in case of the all-out conflict with NATO.”

 

While Plokhii’s statements may quell some fears of direct attack on the Vilnius government, pundits have not ruled out the possibility of an even larger attack on the entirety of the Baltic region, which seems plausible given tension of the situation in the region. However, Article 5 of NATO reads, “an armed attack against one or more of them in Europe or North America shall be considered an attack against them all and … will assist the Party or Parties so attacked by taking forthwith… such action as it deems necessary....”[26] This would mean that in the case of a possible attack on Lithuania, other NATO nations would be incited to act against Lithuania’s attacker, possibly through armed violence or other methods. Thus, Lithuania could act as a portal for Russia to incite larger violence. It seems most likely that Russia could commit an “accidental” overstep, since it has become customary for Russia to play the unknowing and uninvolved aggressor.

CONCLUSION

From this close observation of historical and current roots of the situation in Ukraine, we can conclude that not only are Russia’s actions verging on illegal, but that they have taken advantage of the world’s relative apathy in regards to the issue and make heavy use of specious proclamations, which crumble at the touch of inspection into the suspicious activity. However, Russia has not broken any laws in regards to relations with Lithuania, but the possibility of overstepping boundaries lies not far below the surface, although so does international inactivity.

REFERENCES

[1] Mark Kramer, “Why Did Russia Give Away Crimea Sixty Years Ago?” Wilson Center, March 19, 2014, https://www.wilsoncenter.org/publication/why-did-russia-give-away-crimea-sixty-years-ago.

[2] 1936 USSR Const. art. XVIII.

[3] Kramer, “Why Did Russia Give Away Crimea?”

[4] Douglas, Smith, Love and Conquest, (DeKalb: Northern Illinois University Press, 2005.)

[5] On the restoration of the Crimean Autonomous Soviet Socialist Republic, Bulletin of the Verkhovna Rada of the Ukrainian SSR (VVR),  No. 9, Article 84, 1991.

[6] Viktor Lyashchenko, “CRIMEAN AUTONOMY OF 23 YEARS LATER: How they saved the world and did not let the war in,” Kia News,

http://www.kianews.com.ua/page/krymskaya-avtonomiya-23-goda-spustya-kak-sberegli-mir-i-ne-pustili-v-dom-voynu

[7] Adam Taylor, “To Understand Crimea, take a look back at its complicated history,” The Washington Post, February 27, 2014, https://www.washingtonpost.com/news/worldviews/wp/2014/02/27/to-understand-crimea-take-a-look-back-at-its-complicated-history/?utm_term=.994106170d8e.

[8] Tyler Felgenhauer, “Ukraine, Russia, and the Black Sea Fleet Accords,” Woodrow Wilson School of Public Affairs, Princeton University, NJ, 1999.

[9] Spencer Kimball, “Bound by treaty: Russia, Ukraine and Crimea,” Deutsche Welle, November 3, 2014, http://www.dw.com/en/bound-by-treaty-russia-ukraine-and-crimea/a-17487632.

[10] Ibid.

[11] Vitaly Shevchenko, “’Little green men’ or ‘Russian invaders’?” BBC, March 11, 2014, http://www.bbc.com/news/world-europe-26532154.

[12] Michael Weiss “Russia Stages a Coup in Crimea,” Daily Beast, March 1, 2014, http://www.thedailybeast.com/russia-stages-a-coup-in-crimea

[13] Alissa de Carbonnel, “How the separatists delivered Crimea to Moscow,” Reuters, March 13, 2014, http://in.reuters.com/article/ukraine-crisis-russia-aksyonov-idINL6N0M93AH20140313.

[14] Associated Press, “UN General Assembly approves referendum calling Russia annexation of Crimea illegal,” Fox News, March 27, 2014, http://www.foxnews.com/world/2014/03/27/un-general-assembly-votes-yes-on-ukraine-unity.html.

[15] Associated Press, “Ukraine sues Russia over Crimea annexation and on-going war,” The Telegraph, January 17, 2017, http://www.telegraph.co.uk/news/2017/01/17/ukraine-sues-russia-crimea-annexation-on-going-war/.

[16] U.N. Charter art. 2

[17] The Act of the Re-Establishment of the State of Lithuania, March 11, 1990.

[18] Paul Goble, “From Siberia to Kaliningrad: the fledgling independence movements gaining traction in Russia,” The Guardian, August 15, 2014, https://www.theguardian.com/world/2014/aug/15/russia-fledgling-independence-movements.

[19] Andrius Sytas, “Lithuania says Russia suspends mutual military inspection deal,” Reuters, May 5, 2014, http://www.reuters.com/article/us-ukraine-crisis-lithuania-russia-idUSBREA440I020140505

[20] Damien Sharkov, “Lithuania accuses Russia of ‘simulating attack’ on NATO with drill,” Newsweek, May, 15, 2017, http://www.newsweek.com/lithuania-accuses-russia-simulating-attack-nato-drill-609333.

[21] Ibid.

[22] Europe Staff, “Lithuania plans fence on Russian Kaliningrad border,” BBC, January 17, 2017, http://www.bbc.com/news/world-europe-38635737.

[23] Andrius Sytas, “Bracing for Russian military exercise, Lithuania puts up a border fence,” Reuters, June 5, 2017, http://www.reuters.com/article/us-lithuania-russia-fence-idUSKBN18W237.

[24] Lucy Pasha-Robinson, “Russia quietly moves border hundreds of yards into occupied Georgia,” Independent. July 11, 2017, http://www.independent.co.uk/news/world/politics/russia-georgia-border-south-ossetia-move-hundreds-yards-occupied-nato-putin-west-ukraine-a7835756.html.

[25] Darko Janjevic, “What are Russia’s Zapad war games?” Deutsche Welle, July 14, 2017, http://www.dw.com/en/what-are-russias-zapad-war-games/a-39702331.

[26] The North Atlantic Treaty, Article V, April 4, 1949.

1. Mark Kramer, “Why Did Russia Give Away Crimea Sixty Years Ago?” Wilson Center, March 19, 2014, https://www.wilsoncenter.org/publication/why-did-russia-give-away-crimea-sixty-years-ago.

4. Douglas, Smith, Love and Conquest, (DeKalb: Northern Illinois University Press, 2005.)

5. On the restoration of the Crimean Autonomous Soviet Socialist Republic, Bulletin of the Verkhovna Rada of the Ukrainian SSR (VVR),  No. 9, Article 84, 1991.

9. Spencer Kimball, “Bound by treaty: Russia, Ukraine and Crimea,” Deutsche Welle, November 3, 2014, http://www.dw.com/en/bound-by-treaty-russia-ukraine-and-crimea/a-17487632.

10. Ibid.

11. Vitaly Shevchenko, “’Little green men’ or ‘Russian invaders’?” BBC, March 11, 2014, http://www.bbc.com/news/world-europe-26532154.

12. Michael Weiss “Russia Stages a Coup in Crimea,” Daily Beast, March 1, 2014, http://www.thedailybeast.com/russia-stages-a-coup-in-crimea

13. Alissa de Carbonnel, “How the separatists delivered Crimea to Moscow,” Reuters, March 13, 2014, http://in.reuters.com/article/ukraine-crisis-russia-aksyonov-idINL6N0M93AH20140313.

14. Associated Press, “UN General Assembly approves referendum calling Russia annexation of Crimea illegal,” Fox News, March 27, 2014, http://www.foxnews.com/world/2014/03/27/un-general-assembly-votes-yes-on-ukraine-unity.html.

16. U.N. Charter art. 2

18. Paul Goble, “From Siberia to Kaliningrad: the fledgling independence movements gaining traction in Russia,” The Guardian, August 15, 2014, https://www.theguardian.com/world/2014/aug/15/russia-fledgling-independence-movements.

21. Ibid.

23. Andrius Sytas, “Bracing for Russian military exercise, Lithuania puts up a border fence,” Reuters, June 5, 2017, http://www.reuters.com/article/us-lithuania-russia-fence-idUSKBN18W237.

24. Lucy Pasha-Robinson, “Russia quietly moves border hundreds of yards into occupied Georgia,” Independent. July 11, 2017, http://www.independent.co.uk/news/world/politics/russia-georgia-border-south-ossetia-move-hundreds-yards-occupied-nato-putin-west-ukraine-a7835756.html.

26. The North Atlantic Treaty, Article V, April 4, 1949.