The Role of Referendums in the Russia-Ukraine Crisis
By: Joseph Charney, Staff Member
This article discusses recent events in the Ukrainian-Russian War and analyzes whether Russia's sham referendums will produce a different outcome than those orchestrated in 2014.
Russia’s current operation in Ukraine, like its 2014 invasion, employs sham referendums in occupied territory to afford legitimacy to its annexation efforts. Though these referendums are illegal–just as they were in 2014–geopolitical realities will prevent them from obtaining de facto effect as they did in 2014.
Paradoxically, it is the brutality of war and the democratic nature of referendums that together have shaped modern-day Central and Eastern Europe. Timothy Snyder’s The Bloodlands: Europe Between Hitler and Stalin, for example, theorizes that the Nazi and Soviet regimes together claimed the lives of 14 million noncombatants between 1933 and 1945, which set the stage for the rise of Soviet influence in the latter half of the century. While the rise of Soviet power in Eastern Europe came through violence, the dissolution largely took place by referendum, where one former soviet republic after another voted in favor of sovereignty from Moscow (Soviet Ukraine, for instance, became an independent Ukraine in 1994 by virtue of a 92% majority vote).
These referendums were possible as under international law–Article 1(1) of the ICESCR and Article 1(1) of the ICCPR– all peoples have the right to self-determination, understood as the right to “freely determine their political status and freely pursue their economic, social and cultural development.” However, there are limitations: referendums that “dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples” are not permitted under international law. Accordingly, internationally-recognized, robust democracies generally need not honor separatist or dissenting movements calling for referendums. The problem with this, of course, is that adjudicating “compliance” with self-determination principles is rather subjective and difficult to determine. As such, international law places a heightened emphasis on the referendum’s process, which must be free from “external” interference. Preemptive public debate, high levels of participation, and total absence of force all point toward an adequate referendum process under international law.
In Europe, the specter of war and referendum are once again clashing in the region in familiar ways. In 2014, after the Ukrainian people ousted then-president Viktor Yanukovych, in large part due to his Russia-friendly policies, Russian special forces stormed Crimea. Shortly thereafter, Russian forces held a sovereignty referendum in which 97 percent of voters “elected” to join the Russian Federation. Subsequently, Russia formally annexed Crimea into the Russian Federation. Although the international community decried the referendum and rejected its legitimacy, the United Nations Security Council, where Russia has a veto, failed to adopt text condemning the referendum.
Additionally, following Russia's 2014 invasion of the Eastern part of Ukraine known as Donbas, referendums in Donetsk and Luhansk, as in Crimea, also purportedly expressed these regions’ overwhelming desire to pledge its allegiance to Russia, and despite wide international condemnation of the circumstances surrounding the vote. While Russia did not formally annex Donetsk and Luhansk, Russian-backed separatists established “republics” that functionally acted as puppet governments for Russia. Since 2014, intermittent warfare in Donbas between Ukraine and the separatists has continued to plague the region. Even ignoring Article 73 of the Ukrainian Constitution, which requires all referendums concerning territorial alterations to be conducted by a nationwide vote, the presence of Russian forces and the meager turnout rendered these 2014 referendums as shams in the eyes of Ukraine and the international community. Nonetheless, despite the clear external influence that Russia imposed on these referendums in violation of international law, its efforts were de facto effective: Ukraine ceded control of Crimea and portions of the Donbas to Russia, and the international community—save for the imposition of paltry sanctions—let it happen.
Russia’s operation in 2022 has been deeper and deadlier than its 2014 undertaking. In this iteration of this conflict, Putin escalated Russia’s invasion of Ukraine by waging total warfare and denying Ukraine’s right to exist as a sovereign nation: Putin has partially conscripted Russia’s army reserves, leveled several nuclear threats, shelled Kyiv, Ukraine’s capital, and held sham referendums in occupied Ukrainian territory in the Donetsk, Luhansk, Kherson, and Zaporizhzhia regions. Notwithstanding these realities, the underlying illegality of the 2022 referendums is not altogether different from those that took place in 2014. However, due to the different geopolitical climate, the 2022 referendums will be both de jure and de facto rejected by the international community. Accordingly, international funding and coordination, Ukrainian military preparation, and deteriorating separatism all point toward different functional results in Russia’s 2022 referendums, even if the literal results of the referendums themselves are similar to those that occurred in 2014.
Countries across the world have pledged billions in humanitarian, financial, and military aid to support Ukraine, many of which allocated significant portions of their 2022 GDP to support the Ukrainian military. The Ukrainian Military had already spent the years since Russia’s 2014 invasion benefiting from increased military training, but the influx of international support for the military has paved the way for successful Ukrainian counter-offensives.
Whether the international community continues to devote tremendous resources to Ukraine remains to be seen—some recent polling show that support for Ukraine has waned—but the regions in which the Kremlin have held referendums have not been afforded even a semblance of legitimacy as Russia has been unable to maintain a consistent military presence in these regions, unlike the referendums which took place in 2014. Furthermore, any purported separatist fervor in Ukraine has deteriorated due to Russia’s consistent aggression; pro-Russia parties amassed significantly less of the vote share in 2019 elections compared to 2012.
Finally, the international community has imposed lasting and more devasting sanctions than those imposed in 2014, which will likely hamper Russia’s ability to continue operating in the occupied territory in the long term as they were able to in 2014. Multilateral sanctions effectively seized $640 billion in Russian foreign exchange reserves, which swiftly led to the Ruble’s crash. Though the Ruble has since recovered above and beyond pre-invasion levels, a continued effort by the global community to rachet up sanctions and fill in gaps will hamper Russian efforts despite the nation’s short-term economic resilience. Additionally, fourteen percent of the Russian population lives below the poverty line, and continued Russian expenditure on the military will likely erode morale as the economic consequences of the war continue to mount. Of course, Russian natural gas exports continue to buoy the Russian economy, and China and India remain steadfast in continuing trade relations with Russia. Therefore, it remains to be seen whether the west’s coordinated sanctions against Russia are robust enough to force Russia to alter its behavior, but at the very least it will continue adding pressure to the Russian economy.
In sum, Russia’s 2014 referendums were—from Russia’s perspective—wildly successful in making inroads into Ukraine, despite their illegality. However, despite having a similar level of legality, the geopolitical realities on the ground will likely inhibit Russia’s attempts at mimicking its 2014 referendums and effectuating de facto annexation.
Joseph Charney is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Northwestern University in 2020.