The referendum in Crimea: why self-proclaimed plebiscites do not work

08/03/2014 at 12:45 · Filed under Blog and tagged: Crimea, international law, referendum, self-determination

The right to vote on national allegiance and sovereign borders has never been a simple matter in European inter-state relations, let alone in international law. Plebiscites are not respected unless they hold international backing, even if they are considered a domestic matter and a democratic right. And a referendum on sovereign international borders is usually the result of long and often protracted geo-political processes, including tediously negotiated settlements often after major bellicose conflicts. Moving borders is not something national minorities can unilaterally decide to undertake independently. This is at least one of the lessons that European history has taught us.

Most recently, we have seen history defeating a self-proclaimed plebiscite in Northern Kosovo in February 2012. While it was about national allegiance, since the referendum asked voters whether they accepted the authority of the institutions of the Republic of Kosovo, the underlying message was secessionist and irredentist. Approximately 50.000 Serbs live in Northern Kosovo, and they answered almost 100 percent in the negative thus providing an image of national self-determination for the territory of Northern Kosovo. However, the Serbs in Northern Kosovo are not going to see their territory transfer to Serbia any time soon. Why?

Because plebiscites about transferring territory and ethnic/national allegiance hold no moral value unless they have been through the ‘wringer’ of international relations/law and come out unwrinkled. To form a moral consensus in international law, numerous required ingredients must be present, and the many ingredients make the whole. In the case of Crimea, too many ingredients are missing. In newer times, very few territorial disputes have been resolved by ‘successful’ plebiscites involving all the ingredients.

A case in point is the plebiscite held in the Danish-German border region in 1920. It was on the international agenda for half a century (the process started in 1864); it involved intensive lobbying by the national minority (in this case the Danish minority in Prussia) at the international level as well as at the national levels (Paris, Berlin, Copenhagen), and most importantly, it involved an international mediator/negotiator with moral standing (Napoleon III – at the time, there was no League of Nations, let alone a United Nations). And the plebiscite only gained moral value when it was written into a peace treaty related to the territory (the Peace at Prague, 1866 negotiated by Napoleon III). Yet, it took many years, much lobbying by the minority, another peace treaty (the Treaty of Versailles, 1919) – as well as a world war – for the Danish minority to achieve the right to hold a referendum. However, during the negotiations in Paris in 1919, as well as the decades before, the motherland government, Denmark (which received a large part of its former territory back after the referendum), remained neutral and never really supported the plebiscite idea. The home government, Prussia, and later Germany (which would lose a part of its territory), only supported it under pressure, and only because the plebiscite held moral value through its inclusion in an international document. For more on this story, see Self-determination and national minorities: the difficulties of ‘making’ a referendum in Schleswig-Holstein and why to think twice in Kosovo

One might argue that motherland Denmark then was not what motherland Russia is today, and while Germany was on its knees politically in 1919; Ukraine 2014 is not – as yet. However, the lesson is that claims to national self-determination through plebiscites as a democratic right are only rights unless they are recognized by the international community and valid in international law. The dependent variable here is, of course, international law; it has not changed much on self-determination over the centuries. The situation in Timor Leste only changed when Indonesia acquiesced after years of pressure; Palestine and Western Sahara remain deadlocked. Some would argue that these examples are different than post-empire Russia flexing its muscles. True, but international law does not know the difference; hence, the paradox of international law. Expect Crimea to join the ever growing list of conundrums in international law.

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