Russian referendums on the occupied territories: Why are they null?

Introduction

Throughout the civilized world, a referendum is an important tool of popular government, because by voting citizens can directly make important decisions for the entire country. A true democratic referendum expresses the interests of citizens since it ensures that the society takes part in state-legal processes and allows taking into account the opinion of the majority.

However, autocracies and tyrannies under the guise of a referendum have a completely different goal: to usurp power, annex territories, discriminate against certain population groups, or otherwise violate state sovereignty or human rights. It is important for these regimes to create a parallel reality of an illusory democracy, the function of which is the fictitious "legitimization" of illegal decisions. Such referendums are fake (sham referendums). They take place under the circumstances of deprivation of liberty, in an environment strictly controlled by the authorities, including territories seized by force. They are also characterized by gross violations of generally recognized standards in the field of human rights, and established principles of organizing and holding a referendum.

For decades, Russia has been using this tool with impunity to violate the sovereignty and territorial integrity not only of Ukraine but also of other states, such as Moldova and Georgia. Such sham referendums allowed the Russian Federation to occupy Transnistria and South Ossetia, and to establish unrecognized quasi-republics on their territories, which are controlled by Russia and are its satellites.

In this material, OPORA's lawyers will explain why such votes cannot be considered referendums, what are the international standards for holding referendums, how the democratic community reacted to the annexation of Ukrainian territory, what is the procedure for changing the territory provided for by the legislation of Ukraine, and will answer other related questions.

Russia's recognition of the independence of Ukraine within its state borders

On August 24, 1991, the Verkhovna Rada of Ukraine adopted the Act of Proclamation of Independence of Ukraine, confirmed by 90.32% of votes "for" in the republican all-Ukrainian referendum on December 1, 1991. Ukraine is recognized as an independent sovereign state by 174 countries of the world, including Russia.

In addition, the Russian Federation confirmed its obligations under the principles of the Final Act of the CSCE to respect the independence, sovereignty, and existing borders of Ukraine, as well as to refrain from the threat of force or its use against the territorial integrity or political independence of Ukraine, and that no weapon of the Russian Federation will ever be used against Ukraine, except for the purpose of self-defense, or in any other way in accordance with the Charter of the United Nations in the Memorandum on Security Guarantees in Connection with the Accession of Ukraine to the Treaty on the Non-Proliferation of Nuclear Weapons (known as the Budapest Memorandum) of February 5, 1994.

One of the key documents that resolved interstate disputes after the collapse of the Soviet Union was the Treaty on Friendship, Cooperation and Partnership between Ukraine and the Russian Federation dated May 31, 1997. The parties agreed to develop relations between the states on the basis of respect for the territorial integrity of each other and the inviolability of existing borders between them (Article 2), as well as the principles of mutual respect for sovereign equality, territorial integrity, inviolability of borders, peaceful settlement of disputes, non-use of force or threats of force, including economic and other methods of pressure, the right of peoples to freely manage their own destiny, non-interference in internal affairs, observance of human rights and fundamental freedoms, cooperation between states, conscientious fulfillment of international obligations, as well as other generally recognized norms of international law (art. 3).

In 2003, the Agreement between Ukraine and the Russian Federation on the Ukrainian-Russian state border and the Agreement between Ukraine and the Russian Federation on cooperation in the use of the Sea of Azov and the Kerch Strait were signed simultaneously. Although Russia prevented the demarcation of the Ukrainian-Russian state border in every possible way, even without defining it, it is possible to claim that Russia has violated these treaties. They assume that the Sea of Azov and the Kerch Strait are historically internal waters of Ukraine and the Russian Federation, and as of today access to both of them is blocked for Ukraine due to Russian occupation.

Therefore, Russia recognized the independence of Ukraine and the inviolability of its borders as of 1991at the international level, including by signing bilateral agreements. By occupying the Autonomous Republic of Crimea and certain areas of Donetsk and Luhansk regions in 2014, as well as a total of about 20% of the territory of Ukraine after a full-scale invasion in 2022, Russia violated its obligations.

Guaranties of political independence and territorial integrity in international law

UN 1945 Charter, according to which political independence and territorial integrity are are components of state sovereignty and norms of international law, obliges states to refrain in their international relations from violating them by force or the threat thereof (paragraph 4, article 2).

1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations provides that the territory of the State shall not be the object of acquisition by another State resulting from the threat or use of force, and no territorial acquisition resulting from the threat or use of force shall be recognized as legal.

The 1975 Final Act of the Conference on Security and Co-operation in Europe (Helsinki Final Act) provides that participating States shall will respect each other's sovereign equality and individuality as well as all the rights inherent in and encompassed by its sovereignty, including in particular the right of every State to juridical equality, to territorial integrity and to freedom and political independence. They consider that their frontiers can be changed, in accordance with international law, by peaceful means and by agreement (Article 1). The participating States will also refrain from any demand for, or act of, seizure and usurpation of part or all of the territory of any participating State (Article 3), and refrain from making each other's territory the object of military occupation or other direct or indirect measures of force in contravention of international law, or the object of acquisition by means of such measures or the threat of them. No such occupation or acquisition will be recognized as legal (Article 4).

Simultaneously, international law guarantees the right to national self-determination. However, it cannot be implemented contrary to the norms of international law and must take place through the conclusion of agreements (cession) or be provided for by national legislation (secession). The unitary nature of the state, the absence of political autonomies and the absence of any nation other than Ukrainian as the bearer of the right to self-determination make it impossible for any sovereign entities to appear on the territory of Ukraine. Likewise, the Constitution of Ukraine does not provide for the right of a part of the citizens of Ukraine (including national minorities) to unilateral self-determination, which will result in a change in the territory of Ukraine as a unitary state.

Therefore, Russian, being the UN and OSCE member (СSCE right successor) violated the norms of the international law established by these organizations after the occupation of the territory of Ukraine in 2014 and 2022.

Russia's holding of pseudo-referendums in 2014 in the occupied territories of Ukraine

It was the pseudo-referendums that were used to fictitiously "legitimize" the annexation of part of the territory of Ukraine in 2014.

Part 2 of Art. 1 of the Law of Ukraine "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine" defines February 19, 2014, as the date of the beginning of the temporary occupation of certain territories of Ukraine by the Russian Federation. It also provides that the Autonomous Republic of Crimea and the city of Sevastopol are temporarily occupied by the Russian Federation since February 20, 2014. By the decision of December 16, 2020 (Applications nos. 20958/14 and 38334/18), the ECtHR found that on February 27, 2014, the legitimate civilian authorities in Crimea had already been removed by force and replaced by agents of the Russian Federation, and by the end of that day, Russia had occupied Crimea and established a de facto control over its territory (paragraphs 50 and 51).

Therefore, it was the occupation administration that decided to hold a sham referendum, the date of which was postponed twice - first it was planned to be held on May 25, and then on March 30, 2014. Finally, on March 6, 2014, the Verkhovna Rada of the Autonomous Republic of Crimea "adopted" resolution No. 1702-6/14 "On holding a Crimean referendum", which was held on March 16, 2014. Two questions were submitted for this pseudo-referendum:

Are you for the reunification of Crimea with Russia as a subject of the Russian Federation?
Are you in favor of restoring the 1992 Constitution of the Republic of Crimea and the status of Crimea as part of Ukraine?

Voting took place without the participation of international observers, in violation of Ukrainian legislation and international standards, and under the strict control of the occupation authorities.

The Constitutional Court of the Russian Federation considered "the case regarding the review of the constitutionality of the international treaty, which has not entered into force, between the Russian Federation and the Republic of Crimea on the acceptance of the Republic of Crimea into the Russian Federation and the formation of new entities within the Russian Federation" and adopted a resolution dated March 19, 2014, No. 6-P, which recognized this agreement as being in accordance with the constitution of the Russian Federation, recognizing the "international legal personality" of the administrative-territorial unit of Ukraine.

Similar events took place in the occupied territories of Donetsk and Luhansk regions, which were recognized as such by the Statement of the Verkhovna Rada of Ukraine "On recognition of districts, cities, towns, and villages of Donetsk and Luhansk regions as temporarily occupied territories". The only difference was that instead of the direct occupation and subsequent annexation, in these cases Russia used illegal armed formations controlled and led by it (as confirmed, in particular, by the Decision of the International Court of Justice of the United Nations of March 16, 2022) to seize power.

After the seizure of power in some occupied territories of Donetsk and Luhansk oblasts in spring 2014 and the establishment of occupation administrations, the latter simultaneously organized sham referendums on May 11, 2014. Similar questions about "supporting the acts of state independence" of the respective self-proclaimed illegal republics were submitted for the votings. It is obvious that, as in the case of the "Crimean" sha, referendum, the voting took place in conditions of non-freedom under the strict control of the occupation authorities and in gross violation of the norms of international and Ukrainian law. On February 21, 2022, the Russian president signed illegal decrees recognizing the "independence" of the self-proclaimed republics on the territory of the Donetsk and Luhansk regions, thereby additionally confirming the already recognized status of Russian occupation administrations under them. This became an artificial pretext for a full-scale invasion of Ukraine on February 24, 2022.

The official reaction of the international community to the 2014 sham referendums in the occupied territories of Ukraine

UN General Assembly in its Resolution "Territorial Integrity of Ukraine" A/RES/68/262 as of March 27, 2014, stated that the referendum held in the Autonomous Republic of Crimea and the city of Sevastopol on 16 March 2014, had no validity, cannot
form the basis for any alteration of the status of the Autonomous Republic of Crimea or of the city of Sevastopol (paragraph 5).

On April 9, 2014, the Parliamentary Assembly of the Council of Europe adopted the Resolution "Recent developments in Ukraine: threats to the functioning of democratic institutions" 1988 (2014), which stated that this referendum was unconstitutional, and the illegal annexation of Crimea by the Russian Federation, therefore have no legal effect and are not recognized by the Council of Europe (paragraph 16).

Venice Commission in its Opinion CDL-AD(2014)002-e, adopted at its 98th plenary session (Venice, March 21-22, 2014), emphasized that the Constitution of Ukraine, like other constitutions of the member states of the Council of Europe, provides for the integrity of the country and does not allow any local referendum on secession from Ukraine. In addition, the circumstances in Crimea did not allow holding a referendum in accordance with European democratic standards. Any referendum on the status of any territory must be preceded by serious negotiations by all interested parties. There were no such negotiations.

In general, international organizations have adopted the following decisions:

UN General Assembly
- Resolution on Territorial Integrity of Ukraine 68/262 of March 27, 2014—recognized the illegal nature of the 2014 referendum in the Autonomous Republic of Crimea.
- Resolutions 71/205 of December 19, 2016, 72/190 of December 19, 2017, 73/263 of December 22, 2018, 74/168 of December 18, 2019, 74/17 of December 9, 2019—declared respect to the sovereignty of Ukraine, non-recognition of annexation and condemnation of obtaining territories or special benefits as a result of aggression.
Parliamentary Assembly of the Council of Europe
- Resolution No. 1288 (2014)—recognized the illegal nature of the 2014 referendum in the Autonomous Republic of Crimea.
- Resolutions 2133 (2016), 2132 (2016), 2112 (2016), 2063 (2015), 2034 (2015), 1990 (2014), 1988 (2014)—stated the position that the annexation of the Autonomous Republic of Crimea by the Russian Federation and the intervention of its troops in the east of Ukraine violate international law and principles supported by the Council of Europe.
Venice Commission
- The conclusion "Does the decision taken by the Verkhovna Rada of the Autonomous Republic of Crimea in Ukraine to organize a referendum on whether to become a subject of the Russian Federation or restore the Constitution of Crimea of 1992 conform to constitutional principles", adopted at the 98th plenary session (Venice, March 21-22, 2014) No. 762/2014 CDL-AD (2014) 002.

In the Resolution of 17 April 2014 on Russian pressure on Eastern Partnership countries and in particular destabilisation of eastern Ukraine, the European Parliament expressed strong condemnation of escalation, destabilization, and provocation in the east and south of Ukraine; rejected any preparation for illegal referendums, "similar to the one in Crimea"; warned that the increasing destabilization and sabotage caused by pro-Russian armed, trained and well-coordinated separatists led by Russian special forces could be used as a false pretext for Russian military intervention, the prevention of presidential elections and forced federalization as a precursor to the division of Ukraine.

UN General Assembly by its Resolution "Aggression against Ukraine" A/RES/ES-11/1 of March 2, 2022,

recognized as aggression the actions of the Russian Federation against Ukraine in violation of Clause 4 of Art. 2 of the UN Charter;
demands that the Russian Federation immediately, completely, and unconditionally withdraw all its armed forces from the territory of Ukraine within its internationally recognized borders;
considers the decision of the Russian Federation on February 21, 2022, regarding certain districts of the Donetsk and Luhansk regions of Ukraine to violate the sovereignty and territorial integrity of Ukraine, and also demands their cancellation.

UN International Criminal Court in its decision of March 16, 2022, took into account UN General Assembly Resolution A/RES/ES-11/1 and obliged the Russian Federation to cease hostilities that began on 24 February 2022 and to ensure that any military or irregular armed formations it may command or support, as well as any organizations and persons that may be subject to its control or management (these are self-proclaimed bodies formed by Russia in the occupied territories of Donetsk and Luhansk regions of Ukraine), did not take any measures to support these military actions.

The number of decisions of international institutions that would directly relate to pseudo-referendums in the occupied territories of Donetsk and Luhansk regions is smaller, since they are similar in nature to the "Crimean one", do not have any legal force, and the occupation administrations controlled by Russia are not recognized from the point of view of international law. The attitude of the democratic world community towards them is clearly demonstrated by the statement of the British Foreign Minister William Hague after the meeting of the heads of the Foreign Ministries of the EU countries in 2014: "I think the votes in the Eurovision song contest are really more credible and carry a greater weight than the events on Sunday in Donetsk and Luhansk".

The official reaction of Ukraine to the sham referendums that took place in its territory in 2014

Acting President of Ukraine, the Chairman of the Verkhovna Rada of Ukraine adopted Decree No. 261/2014 dated March 7, 2014, by which he suspended the effect of Resolution of the Verkhovna Rada of the Autonomous Republic of Crimea No. 1702-6/14 dated March 6, 2014 "On holding a Crimean-wide referendum" as the one which does not comply with the Constitution and laws of Ukraine.

By the decision of the Constitutional Court of Ukraine dated March 14, 2014, No. 2-рп/2014, the resolution "On holding the all-Crimean referendum" was recognized as not in accordance with the Constitution of Ukraine (is unconstitutional).

The decision of the Constitutional Court of Ukraine "On Termination of the Memorandum on the Development of Cooperation between the Constitutional Court of Ukraine and the Constitutional Court of the Russian Federation" dated April 17, 2014, No. 10-r/2014 terminated the corresponding Memorandum due to the fact that the Constitutional Court of the Russian Federation, adopting Resolution No. 6-P dated March 19, 2014, in the case regarding the constitutionality of the treaty between the Russian Federation and the so-called "Republic of Crimea", disregarded the principles and provisions of the Memorandum regarding the further development of comprehensive mutually beneficial Ukrainian-Russian relations, ensuring the rule of law, fundamental rights and human freedoms, mutual respect, trust, and cooperation.

Ukraine tried to regulate the situation in the east by guaranteeing, in accordance with the Law "On the Special Procedure of Local Self-Government in Certain Districts of Donetsk and Luhansk Oblasts", the prevention of criminal prosecution, the bringing to criminal and administrative responsibility, and the punishment of persons participating in events in the territory of Donetsk and Luhansk Oblasts. However, after the full-scale aggression of the Russian Federation on February 24, 2022, it can be concluded that such efforts to find a compromise do not correspond to the true intentions of Russia.

Therefore, taking into account that the territory of the Autonomous Republic of Crimea, the cities of Sevastopol, Donetsk and Luhansk regions are temporarily occupied by the Russian Federation (in accordance with the mentioned Law of Ukraine "On ensuring the rights and freedoms of citizens and the legal regime in the temporarily occupied territory of Ukraine" and the Resolution of the Verkhovna Rada of Ukraine "On recognition of certain districts, cities, towns and villages of Donetsk and Luhansk regions as temporarily occupied territories"), obviously, no legal referendums can be held there.

Conclusions

Russia uses pseudo-referendums held on March 16, 2014, in Crimea and on May 11, 2014, in certain areas of Donetsk and Luhansk regions after their temporary occupation, exclusively as a means of pretending "legitimacy" of the annexation of Ukrainian territories. The occupation of a large part of Ukraine after February 24, 2022, showed the inability of international institutions to effectively respond to violations of the norms of international law and the protection of its key principles, such as political independence and territorial integrity. Moreover, the participation of the Russian Federation as a mandatory member of the UN Security Council contributes to the tolerance of such practices that distort democratic institutions and destroy the international world order that was formed after World War II.