Why non-recognition matters in Crimea

It’s been two years since Moscow sent unmarked Spetsnaz to Crimea to orchestrate the peninsula’s annexation into the Russian Federation. These infamous “little green men” started appearing in the streets of Simferopol on 27 February. They took over government buildings and military bases, paving the way for a Russian administration to be installed.

Less than three weeks later, on 16 March, the pro-Russian authorities organised a referendum in Crimea on whether the entity should become part of Russia. The official, but much disputed result, was 96.77 percent in favour of annexation. Turnout was supposedly 83.1 percent. The next day, Russia recognised Crimea’s independence, and on 18 March Russia annexed the peninsula.

Few anticipated that Moscow would make such a brazen move after President Yanukovych had fled Ukraine. One of the lessons Russia had taken from its war with Georgia in 2008 was that the West was reluctant to take any serious measures to counter Russian military action in the neighbourhood. In Georgia, Moscow had managed to sow enough doubt and discord within the EU to hamper any attempts at a meaningful reaction.

This time, however, European leaders came out in unison to support Ukraine and condemn Russia’s illegal annexation of Crimea. A military response was never on the table because no European leader was willing to risk a war with Russia over Crimea. Instead the EU fell back on legal and economic statecraft.   

The EU adopted a non-recognition policy that consists of formally rejecting the annexation of Crimea as illegal and supporting Ukraine’s territorial integrity. This policy has taken a prominent place in the EU’s overall strategy on Russia. In stating the first of the guiding principles for policy towards Russia, the high representative reiterated the non-recognition policy and referred to the annexation of Crimea as an illegal act.

The policy was given teeth by the sanctions. The sanctions ban the import of goods, any investments, and the provision of tourism services. The ban also covers the export of key goods in the transport, telecoms, and energy sectors, as well as goods for the exploration and production of oil, gas, and mineral resources. The sanctions include visa bans and asset freezes on key characters responsible for actions against Ukraine’s territorial integrity, as well as entities in Crimea that benefited from illegal transfer of ownership. These are some of the most far-reaching sanctions that the EU has ever imposed.

Two years later, the EU’s non-recognition policy and sanctions are still in place but Crimea is no closer to being returned to Ukraine. In fact, Crimea has become further integrated into the Russian Federation, with links to mainland Ukraine largely severed. While only a handful of countries, such as Afghanistan, North Korea, and Syria, have come out in support of the annexation^[1], the prospects for Moscow returning Crimea to Ukraine any time soon are slim to say the least.

Even in the event of a change in the Kremlin, a new leader would find it politically difficult to give up what is widely seen by Russians as belonging to Russia, and having only been lost by historical accident in the administrative transfer of the oblast from the Russian SFSR to Ukraine SSR in 1954. Opinion polls have shown that among the Russian public support for the annexation is as high as 80 or 90 percent.

So why does the EU continue with a policy that is highly unlikely to achieve its primary objective – returning Crimea to Ukraine?

It is worth recalling that the EU’s policy is not just about Crimea but also about upholding international order. The non-recognition policy represents the EU’s commitment to international law as the normative framework underpinning international order. The sanctions are intended to show that breaching that order comes at a cost. Not taking a stance would imply that using force to annex territory was acceptable international behaviour. This would erode the integrity of the international system and set a dangerous precedent.

The policy is a way to defend the European security order, as set out in the Helsinki Accords. This order is built on the principles of the inviolability of international borders, the right of states to determine their political orientation, and the rejection of spheres of influence – all of which are principles that Russia challenged through the annexation.

In this sense, the policy pushes back against Russia’s revisionism and claim that it has the right to a sphere of influence over its neighbours. For Russia, the annexation of Crimea was not only about taking territory, but also about imposing a sphere of influence by destabilising and punishing Kyiv for choosing the EU over Russia.

For the EU’s non-recognition and sanctions policy to be credible, it will have to commit for the long term. It took half a century for Estonia, Latvia, and Lithuania to regain their independence from the Soviet Union. Throughout this period, the United States and a number of European states maintained non-recognition policies, which were instrumental in ensuring the independence of the Baltic States in 1991.

So far, the EU has remained firm on the non-recognition policy and sanctions. The policy has withstood calls from some quarters to accept the “new reality” and normalise relations with Russia. The EU has also avoided falling into the trap of trading Crimea for imagined concessions from Russia in other theatres, notably Syria. And rightly so: it is a mistake to believe that Russia would become more conciliatory in one conflict because of concessions offered in another. And although the refugee crisis has strained solidarity and unity within the EU, it has not diluted the EU’s policy towards Russia or the non-recognition policy.

The EU will have to do regular maintenance on the sanctions to keep them relevant and credible, as the current regime was based on the situation in March 2014. There are also certain loopholes in the sanctions regime that can be plugged. For instance, there is a humanitarian exception to the export of goods to Crimea that has been abused. Moreover, not all ports in Crimea are explicitly mentioned in the sanctions regime, making it possible for European vessels to dock at the unnamed ports. There is also a black market in fake Ukrainian certificates of origin for goods produced in Crimea and then sold to European markets.

Looking ahead, the EU has largely locked in the non-recognition policy and made it an inherent part of EU policy towards Russia. The challenge will be to keep the policy on the agenda and maintain the energy to actively push it in the long term. As other priorities take precedence for the EU, the cost of constantly reminding the world that it does not recognise Crimea increases, as does the temptation to make a trade-off. How this policy will relate to overall policy on Russia over time remains to be seen.

But the inherent weakness of the EU’s approach to Crimea is that the non-recognition policy is static, with no dynamic process to resolve the impasse. The Normandy Format deals with the situation in the Donbas but not Crimea. There is no format or forum where Crimea is discussed between the EU and Russia. Moscow has refused all suggestions that Crimea should be a topic for discussion.

The focus on the Donbas is justified and correct since the situation there is more pressing and destabilising as Russia and its proxies continue to ferment war. But even if Russia implements the Minsk agreement and there is a move towards better relations with Russia, Crimea is likely to remain a point of contention between the EU and Russia for some time to come.