To Perfect the Imperfect Title: How Referenda were Historically Manipulated to Justify Territorial Conquest by Nations

Since the 23rd September 2022, Russia organized referenda in the occupied Ukrainian regions of Luhansk, Donetsk, Zaporizhzhia, and Kherson. On 30 September 2022, after declaring that the results were predominantly ‘in favor’ of joining Russia, Russia officially annexed the four Ukrainian regions. This was another attempt by Russia to justify the annexation of Ukrainian territories since the controversial 2014 referendum in Crimea. The latter had been widely criticized as an abuse of the institutional process of popular consultation, for its failure to meet the procedural and material prerequisites according to the relevant international standard. In the current referenda, there were similar reports and allegations that the populations in the four areas were coerced by the Russian military into voting. Currently, some states (see the EU, the US, Switzerland, and Serbia) have already denounced and rejected the validity of Russian referenda. While it is clear that the 2014 Crimean referendum was a ‘prelude’ to the referenda in 2022, this blog post demonstrates that both referenda and the use of popular consultation could be traced back to the time of the French Revolution, when ‘self-determination’ was invoked to legitimize the acquisition of territories by conquest. A common theme that could be observed from the listed historical precedents is the invocation of national irredentist sentiment. In Putin speech on 30 September 2022, the Russian president spoke of the ‘dismemberment of the Russian Nation’ in 1991, in which he also justified his conquest of Ukraine from February 2022 as the battle for ‘great historical Russia’. I argue that the utilization of referenda by Russia was the newest episode of selective and opportunistic application of ‘national’ self-determination by different states to pursue territorial irredentism. My article wishes to highlight the destructive potential of the ethnographical approach to self-determination through historical precedents and warns the readers of ‘Wilsonian optimism’ for the use of referenda as a universal cure for peace.

Popular sovereignty as the shared theoretical basis of self-determination and nationalism

Unlike the contemporary discussion on self-determination centering upon secession (see for example the Advisory Opinion on Kosovo), the earliest scholarly discussion which connected self-determination with international law almost exclusively dealt with the issue of territorial cession. The embryonic idea of self-determination emerged originally as a political concept, which connected good governance with the consent of the governed (see Erasmus’ Against War, p 50). Given the close interlinkage between natural law and the early development of international law, the embryonic idea of popular sovereignty influenced classical international legal scholars in arguing for the need for popular consent as a condition for valid territorial transfer (see Hugo Grotius’ De iure belli ac pacis in pp.215-216; Emer de Vattel, Le Droit des Gens in §69). Here, it is important to notice that both authors were discussing popular consent in the context of cession, which is the territorial transfer between two consenting sovereigns, instead of military conquest. Nonetheless, the holding of referenda was rare at the time when people and land were treated as subjects and private properties of their sovereigns. One rare example was the holding of a plebiscite by King Francis I of France in Burgundy in 1527 when the people in Burgundy rejected the transfer of their territories to the Spanish King.

To perfect the imperfect titles

The French Revolution signified the final triumph of popular sovereignty. In the word of Sieyes, the Third Estate which represented all ‘the French people’ is the ‘nation’ in and of itself. Since the ‘people’ became the ultimate sovereign, the right to self-determination necessitated not only a right for them to determine the internal structure but also for their belonging. This idea was translated into the draft French constitution of 1793, which prohibited the Republic from expanding its territory unless the people themselves requested, through a plebiscite, such an integration (art.2, titre XIII). In practice, this idea was twisted the other way round to legitimize the expansion of the French Nation with the use of plebiscites demonstrating the popular support for integration. According to Mendez & Germann, there were 13 national and regional referendums in France and French-occupied Europe from 1791-1804 (151 in Table A). Grewe pointed out that the plebiscites in the Austrian Netherlands and Rhineland were deliberately manipulated by the French to obtain a result in favor of annexation (p. 421). With the fall of the Congress of Vienna, romantic nationalists in Germany and Italy adopted the same strategies as the revolutionary French Republic, in which territorial plebiscites were used to publicly manifest the existence of ‘one nation’ amongst fragmented territories. A typical example was the Risorgimento, in which a series of referenda were held in different parts of Italy to legitimize their annexation by the Kingdom of Sardinia. In this regard, the French Revolution was the first of many examples in which the lack of definition of a self-determination unit was being exploited to justify the unrestrained ‘nation-building’ across established state boundaries.  

The early enthusiasm toward self-determination could also be seen in Woodrow Wilson’s famous Fourteen Points declaration in 1918. Nonetheless, the realistic interests of victorious powers eventually defeated Wilson’s idealism in the final peace settlement by denying self-determination to the German-speaking regions of South Tirol and Sudetenland for instance. At the same time, the League of Nations accepted the validity of plebiscites in the German-speaking Eupen-Malmedy, which were held without a secret ballot and in favor of annexation by Belgium. The hypocrisy of the victorious powers was being exploited by Hitler and the Nazis, who used an ethnic-oriented language of self-determination to support the reincorporation of the Germanophone into one German Nation, such as in the notorious Anschluss referendum of 1938.

The new consensus of self-determination in the UN era

Notwithstanding the promise to respect self-determination in the Atlantic Charter of 1941,  the Allied powers were more cautious toward the invocation of self-determination to settle territorial disputes in the post-war arrangements. There were only three referenda in post-WWII Europe that concerned territorial cession. The most notable example would be the Saar Statute Referendum in 1955 resulting in the reunion of Saarland with West Germany. Another example was the plebiscites of Tenda-Briga from Italy to France, held pursuant to Article 27 of the French Constitution. The only case resembling the previous use of referendum as a tool of legitimization of conquered territory was the Polish People Referendum in 1946 to confirm the new Oder-Neiße frontier. However, this plebiscite was widely considered manipulated and the fact that it only occurred after the German population fled or was collectively expelled also casted doubt on its legitimacy. In the Two-Plus-Four-Agreement of 1990, no further referendum had been called for. The post-war settlement in Asia and Africa similarly did not involve any use of popular consultation, including the federation of Eritrea with Ethiopia pursuant to UN Resolution 390 (A). Compared to that of the First World War, the settlement of the Second World War prioritized the finality and stability of the international border as agreed between states over the right to self-determination. This coincided with the central role of article 2(4) UN Charter in the postwar international order, by prohibiting the threat or use of force against any state and rendering any territorial conquest illegal and non-recognizable.

In the UN era, the invocation of external self-determination was largely restricted to former trust or non-self-governing territories. Compared to the ethnic-based application of self-determination in the Paris Peace Conference, it is argued that in the UN-era a new understanding of self-determination arose during decolonization. It now requires the right to be exercised within the communities of pre-established boundaries regardless of race, creed, or colour. During decolonization, self-determination units were decolonized according to the principle of uti possidetis with a few exceptions. Favoring independence as the outcome of self-determination, UNGA Resolution 1541 further required any option of integration and free association to be the result of the free and genuine wish of the people expressed through an informed and democratic process (principles VI-VIII). Nonetheless, the application of self-determination rules was still far from consistent, especially regarding the treatment of small colonial territories claimed by non-European states. For example, the annexation of Goa in 1962 was generally acquiesced by the international society. Similarly, the UNGA ‘took note’ of the results of the 1969 poll in Western New Guinea, in which the Indonesian military hand-picked 1,022 people from a population of 800,000 to vote unanimously in favor of ‘integration’ with Indonesia. Hence, while decolonization was often hailed as a successful application of self-determination, inconsistency in the application still existed in practice. This inconsistency effectively allows some newly decolonized states to sidestep the wish of the inhabitants and forcefully conquer small colonial territories during their nation-buildings.

Conclusion

From Putin’s speech which treated the Russians and Ukrainians as ‘one people’ to the annexation of Ukrainian territories following manipulated referenda, perhaps it is the best time to recall from the history of self-determination and referenda the bitter lessons we learned. It is important to see that the opportunistic use of self-determination did not start with Crimea but rather went further back to the very origin of the practice of self-determination, and the subsequent selective application by states throughout modern history. In the absence of any concrete legal definition of ‘the peoplehood’, an ‘ethos’ interpretation of people could well turn the popular consent into a tool legitimizing territorial conquest by irredentist nations and undermined the protection offered by other regimes of international law, such as the law of occupation. Having these historical lessons in mind, a UN-era understanding of ‘people’ as ‘demos’ within established boundaries must be reaffirmed. Borrowing the words from the Kenyan ambassador to the UN, Mr. Kimani, ‘[w]e must complete our recovery from the embers of dead empires in a way that does not plunge us back into new forms of domination and oppression.’