The Legality of the Referendum in Crimea

I take an interest in international law, which is a mysterious branch of law, because so much of it seems to be made up by economic winners or military victors in order to oppress their competitors or the defeated. Nevertheless there is a large body of international law these days, but much of it is uncertain.

When various politicians and commentators claimed that the referendum that is being held in the Crimea today was illegal under international law, I could not understand the rationale of such claim. It may be that the referendum was called too hastily to enable a proper consideration of the issues or that there are fears that the referendum will be manipulated, corrupted or no more than a propaganda exercise.  I was at a loss to discover how the holding of a referendum can be illegal.

I think the answer is obvious: it is not illegal for part of a state to hold a referendum about independence or cessation. If it were then the forthcoming referendum in Scotland would be illegal and the referendum which decided the split of the Slovakia from Czechoslovakia would have been illegal but patently they were not.

Whether if following the results of a referendum the Crimea declared independence or Union with the Russian federation such moves would be illegal under international law is another question. In such matters international law usually takes a pragmatic view; those who control an area are recognised as the lawful government of it, usually but not always.

I suppose that what those who describe the referendum in Crimea fear is this: if it is shown that there was a free and fair referendum held according to ordinarily accepted principles of democracy and that referendum proved that the majority of Crimeans want to leave the Ukraine, then such a result would be inconvenient to those who oppose this happening. It is inconvenient for the western democracies to find that the Crimeans prefer Russia to the Ukraine, but inconvenience is not illegality.

Some argue that the illegality of the referendum is determined by Article 73 of the Ukrainian Constitution which states that alterations to the territory of Ukraine shall be resolved exclusively by the All-Ukrainian referendum. However, that provision does not, as far as I can see prohibit the counting of votes, and what is illegal under the Ukrainian Constitution is not necessarily illegal under international law.

The referendum being held today is not a choice between all the options available to the people of the Crimea; they are only being allowed to vote on whether the Crimea should secede or be absorbed into the Russian Federation and there is no choice being given to remain part of the Ukraine. That certainly seems to me to designate the referendum as being undemocratic, but it is not against international law to hold undemocratic elections and if it were very few elections would be legal.

On that point one could argue that the forthcoming Scottish referendum is undemocratic because it allows only a choice of two options – the choice of a third option of more autonomy within the United Kingdom will not be available to the Scots.

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