“Referendums” in Ukrainian Territories: The Sham Referendums and International Law


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Status: 09/28/2022 07:02 a.m

In the “referendums” in eastern Ukraine, Russia argued with the “right of self-determination of peoples” – a recognized principle of international law. Why does international law still not allow secession?

By Kolja Schwartz, ARD legal department

The background to the people’s right to self-determination was the path taken by many colonial states to independence in the 1960s. Since then, this right has been recognized under international law. In the Charter of the United Nations, the right to self-determination features prominently in the goals and principles in Article 1. However, what exactly this right encompasses is not defined. However, science and case law have specified the term and worked out certain standards. “It’s about dealing appropriately with the tension between the interest of the states in the inviolability of their sovereign territory on the one hand and democratic legitimacy on the other hand,” explains Professor Bernd Grzeszick, international law expert from the University of Heidelberg.

No General Right to Sewer

There is therefore no general right to secede from certain population groups. Rather, international law is based on continuity. That means: First of all, it is about being able to exercise the right of self-determination with cultural, economic and political autonomy rights within the state itself. International law experts therefore only see a right to secession in absolutely exceptional cases.

Human rights violations are a prerequisite

Only when autonomy within the country is impossible, the right to self-determination cannot be exercised and there are serious human rights violations against a part of the population, does international law exceptionally recognize secession. “These conditions are by no means given in eastern Ukraine,” emphasizes Grzeszick. When Kosovo seceded from Serbia in 2008, international law recognized this as a response to years of persecution and oppression of the Albanian minority. “But even this split is still partly controversial today, since not all UNO states accept it and the International Court of Justice only indirectly recognized the legitimacy of the split. This shows that the hurdle is enormously high.”

Acts of foreign determination

Apart from the fact that the conditions for secession are not in place: the sham referendums in the Russian-occupied areas in eastern Ukraine have absolutely nothing to do with the people’s right to self-determination, explains international law expert Grzeszick: “We have a completely different basic constellation here ‘People’ that decides about themselves, but Russia, which forces citizens in the occupied territories to vote. These are acts of heteronomy, not self-determination. It’s a perversion of the legitimate instrument.”

consequence of the war of aggression

In addition, by attacking Ukraine, Russia violated the prohibition of aggression under international law. This disregarded a mandatory norm of international law from which deviations are not permitted. International law experts agree that all other acts resulting from this are also contrary to international law and should not be recognized by other states.

Minimum standards are also not met

Finally, any referendum must meet minimum standards. Before the vote, the population would have to have a certain amount of time in which to conduct a social and political discourse on the issue. And, of course, voting must be universal, equal and without coercion. According to the prevailing opinion of international law experts, a referendum during a war is therefore fundamentally not permitted. In addition, there were only a few days between the announcement and the implementation of the referendum in eastern Ukraine, and there are repeated reports of pressure and threats of violence.

The referendums change nothing

For all these reasons, the “referendums” in eastern Ukraine clearly violate international law and are therefore void. Because they are based on aggressive war, other states should not even recognize them. “However, there is no point in taking legal action against the sham referendums. The International Court of Justice (ICJ) would only find illegality, as was the case with the annexation of Crimea,” explains international law expert Grzeszick. In addition, it is questionable whether the court would be competent at all in this question, i.e. whether it would be allowed to judge.

But even a ruling by the ICJ would not prevent Putin from declaring the areas in eastern Ukraine to be Russian state territory and invoking the sham referendums and thus apparent legitimacy.

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