Yesterday, on 15 April 2014, Ukrainian interim president Turtschinov considered to hold, simultaneously with the presidential elections, a referendum on regional competences in Ukraine. On 8 April 2014, separatists in the Ukrainian region of Donetsk proclaimed that they would hold a referendum on the independence of that Eastern region of Ukraine. Some days before, representatives of the Crimean Tatars announced that they sought to hold a referendum on their political autonomy within Crimea.
On 16 March 2014, the population of Crimea had overwhelmingly voted in favour of joining the Russian Federation. The population was asked to choose between the following alternative: “1) Are you in favour of Crimea joining the Russian Federation as a subject of the Russian Federation?” or “2) Are you in favour of re-establishing the 1992 constitution of the Republic of Crimea and Crimea’s status as a part of Ukraine?” The maintenance of the territorial and status quo was not given as an option in that referendum, and no international observers were admitted. With a voter turnout of 83.1 %, 93 % answered with a “Yes” to the second question, and thus pronounced themselves in favour of joining the Russian Federation.
The spokespersons of the Tatars now declare that their ethnic group had boycotted the referendum of 16 March, and assert that the majority of Tatars would have preferred to stay within Ukraine. Tatars currently form about 10 percent of the Crimean population. Probably hundreds of thousands of Tatars were killed, starved, and were deported from the 1920s to the 1940s under Soviet policy. The new government of Crimea rejects the idea of a politically autonomous territory for the Crimean Tatars but holds that the Tatars can only claim “cultural autonomy”.
The 16 March referendum, and announced further territorial referendums in Ukraine, place in the limelight the problématique of this legal institution. Are not the outcomes of referendums in ethnically mixed units most often ethnically pre-determined? And does not the resort to a referendum lead to ever smaller subgroups which again seek to detach themselves from a larger one? After all, the Ukrainian people, including the Crimean population, had some 20 years ago voted in favour of independence from the Soviet Union. (See on the 1991 referendum in Ukraine Anne Peters, Das Gebietsreferendum im Völkerrecht (Baden-Baden: Nomos 1995), 184-88; specifically on previous Crimean referendums ibid., 190-91, 211-15). That Ukrainian referendum of 1 December 1991 had been at the time widely appreciated as having rung the death knell for the dissolution of the USSR one week later, when the Agreement Establishing the Commonwealth of Independent States of Minsk of 8 December 1991 declared that the Soviet Union had ceased to exist. But even before that date, and later, Crimean politicians had several times (in 1991, 1992, 1994, and so on) planned and sometimes held “polls” on a special status of Crimea.
This post postulates that, as a matter of international customary law, and as a matter of legal consistency and fairness, a free territorial referendum is emerging as a procedural conditio sine qua for any territorial re-apportionment. However, the 16 March referendum was not free and fair, and could not form a basis for the alteration of Crimea’s territorial status. Read the rest of this entry…