FacebookTwitterGoogle+RedditEmail

Referenda, Recognition and Crimea

Referenda tend to be the devices used to seal the kiss of secession. It is an instrument of the ballot box, an expression of popular will. Its first formal use, according to Eugène Solière’s Le Plébiscite dans l’annexion (1901) came in the referendum held by Lyonnais in the 13th century when citizens sought to escape Church rule, with its citizens claiming “themselves subjects of the King of France” and requesting that he “take them under his special care.”

One would think that such action immediately promises it a degree of high status from democratic powers: after all, the ballot box should be gospel, an indicator of “sovereign will” of the people. In practice, responses have been uneven, disingenuous and strategic. International law, for instance, takes an ordered, even glacial view of it. To be recognised, the seceding group must be denied “international self-determination” by the central government. It must also be subject to grave human rights abuses.

In assessing the Crimean situation, the views of former legal adviser to the US State Department, John B. Bellinger III, provide a useful aside. International law takes the conservative line: territorial integrity first, and “minority secession movements” a distant second. To give secessionist movements a run would “not reflect the views of the majority in a state and could lead to the breakdown of the international system” (Council on Foreign Relations, Mar 16). Pity, then, that instability in the international system would arise precisely because the first object was not respected. Either you respect such integrity, or you don’t, and raising it over Ukraine’s plight has become the running joke.

The Crimean referendum result on its independence from Ukraine was never going to sail smoothly through international law, however overwhelming the vote. But it has been forgotten how the very same Ukrainian territorial integrity being promoted is the same integrity that was violated by open interference from Washington to Warsaw. All had a stake in the confrontation, and it didn’t involve preserving the Yanukovych regime.

US Secretary of State John Kerry has called the referendum a form of “back door annexation”. In contrast, his Russian counterpart, Sergei Lavrov, has argued that the “will” of the Crimean people will be “respected”. Naturally, such will is not always coherent, the referendum having been boycotted by many Tartars, Russians and Ukrainians not necessarily sympathetic to moving into the Russian Federation. A majoritarian point has, however, been made, even if there were anomalies in the 97 per cent “yes” vote.

The referendum on secession in history follows a general pattern. The central power tends to repudiate the result, citing its illegality for violating territorial integrity. The separatist grouping will tend to be in the majority (that is, within the district), and find recognition elsewhere, often from some external power. Matters of self-interest can well accompany such moves. As the German author Herman Hesse posed in his Lektüre für Minuten, “Why it is that you are only in favour of national self-determination when you can profit from it?”

The way states deal with a referendum on secession provides fascinating, if not unsurprising instruction. States of such political systems as the now defunct Soviet Union and Yugoslavia did not grant much time to measures that effectively saw the dissolution of a political compact. Doing so was tantamount to recognising acts of amputation and acknowledging it. The reality of ethno-national referenda, as pointed out by Matt Qvortrup, is complex, involving the rhetoric of democratic legitimacy and idealism mixed with a good dose of political calculations. These can either involve the elimination of difference – those aimed at homogenisation, or those aimed at managing differences within the state (the devolutions in Wales, Northern Ireland and Scotland).

Virtually all political systems insist on legality of secession only through means of the constitution. In other words, the exercise of a citizen’s vote should not sway the cold logic of the law. The Royal Supreme Court of Canada in Reference re Secession of Quebec [1998] held that “any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else [would] violate the Canadian legal order.”

The United States position on secession can be gleamed from some notable cases which brought the issue to the courts. Kohlhaas v Alaska (2006) saw the Supreme Court of Alaska finding that a referendum on secession would be unconstitutional, and for that reason, a petition seeking it would not be circulated. This was despite the court’s admission that “secession is not explicitly addressed in the United States or Alaska Constitutions”. The reasoning of such cases is simple: you cannot break up the Union – to do so, as illustrated by the American Civil War, will see blood and much gore.

In the decision of White v Texas (1869), dealing with the sale of bonds by the Confederate legislature during the Civil War, the US Supreme Court found that Texas had always been a state on joining the Union. The anathema of secession and the fetish of Unionism made holy by Abraham Lincoln, was affirmed. “The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”

Variations of such arguments are being used by the European Union and the United States – any such measure must arise in accordance with the Ukrainian constitution, even if that document has been treated as something of a dead letter by all sides. Interestingly enough, few from that side of the fence are arguing that the Crimean measure began in response to the unconstitutional act of overthrowing an elected government.

Unionist harmony can become the great double standard of international law. It tends to be cast aside in situations where the rights of ethnic self-determination take place. It is also interesting to note that the very basis of self-determination in international law was driven by the United States via the offices of President Woodrow Wilson. The US may well have been a Union kept together by bayonet and steel; but entities such as the multi-ethnic Austro-Hungarian Empire could not be allowed to exist after the First World War. The paradox of it was invariably that countries comprising ethnic groups could seek their self-determination from colonial and imperial rule by various means – the referendum, or war, being two such courses.

The Crimean move may well have been the result of that self-enrichment Hesse so keenly mocked. The voters can hardly be blamed for doing so. They have spoken about greater investment from Moscow, closer ties based along economic and cultural matters, and breaking away from the regulations of Kiev. While the Russian ethnic majority is enthusiastic to find themselves in an even closer orbit than Moscow, the formal absorption of Crimea will be another story. The recipient country may not be as enthusiastic as the aspiring new member. Vladimir Putin, who has been woefully misread and underestimated in this crisis, will be aware that referenda can have their own problems. Do not expect one in Chechnya any time too soon.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

More articles by:

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

January 17, 2019
Stan Cox
That Green Growth at the Heart of the Green New Deal? It’s Malignant
David Schultz
Trump vs the Constitution: Why He Cannot Invoke the Emergencies Act to Build a Wall
Paul Cochrane
Europe’s Strategic Humanitarian Aid: Yemen vs. Syria
Tom Clifford
China: An Ancient Country, Getting Older
Greg Grandin
How Not to Build a “Great, Great Wall”
Ted Rall
Our Pointless, Very American Culture of Shame
John G. Russell
Just Another Brick in the Wall of Lies
Patrick Walker
Referendum 2020: A Green New Deal vs. Racist, Classist Climate Genocide
Kevin Zeese - Margaret Flowers
Uniting for a Green New Deal
Matt Johnson
The Wall Already Exists — In Our Hearts and Minds
Jesse Jackson
Trump’s Flailing will get More Desperate and More Dangerous
Andrew Stewart
The Green New Deal Must be Centered on African American and Indigenous Workers to Differentiate Itself From the Democratic Party: Part Three
January 16, 2019
Patrick Bond
Jim Yong Kim’s Mixed Messages to the World Bank and the World
John Grant
Joe Biden, Crime Fighter from Hell
Alvaro Huerta
Brief History Notes on Mexican Immigration to the U.S.
Kenneth Surin
A Great Speaker of the UK’s House of Commons
Elizabeth Henderson
Why Sustainable Agriculture Should Support a Green New Deal
Binoy Kampmark
Trump, Bolton and the Syrian Confusion
Jeff Mackler
Trump’s Syria Exit Tweet Provokes Washington Panic
Barbara Nimri Aziz
How Long Can Nepal Blame Others for Its Woes?
Glenn Sacks
LA Teachers’ Strike: When Just One Man Says, “No”
Cesar Chelala
Violence Against Women: A Pandemic No Longer Hidden
Kim C. Domenico
To Make a Vineyard of the Curse: Fate, Fatalism and Freedom
Dave Lindorff
Criminalizing BDS Trashes Free Speech & Association
Thomas Knapp
Now More Than Ever, It’s Clear the FBI Must Go
Binoy Kampmark
Dances of Disinformation: The Partisan Politics of the Integrity Initiative
Andrew Stewart
The Green New Deal Must be Centered on African American and Indigenous Workers to Differentiate Itself From the Democratic Party: Part Two
Edward Curtin
A Gentrified Little Town Goes to Pot
January 15, 2019
Patrick Cockburn
Refugees Are in the English Channel Because of Western Interventions in the Middle East
Howard Lisnoff
The Faux Political System by the Numbers
Lawrence Davidson
Amos Oz and the Real Israel
John W. Whitehead
Beware the Emergency State
John Laforge
Loudmouths against Nuclear Lawlessness
Myles Hoenig
Labor in the Age of Trump
Jeff Cohen
Mainstream Media Bias on 2020 Democratic Race Already in High Gear
Dean Baker
Will Paying for Kidneys Reduce the Transplant Wait List?
George Ochenski
Trump’s Wall and the Montana Senate’s Theater of the Absurd
Binoy Kampmark
Dances of Disinformation: the Partisan Politics of the Integrity Initiative
Glenn Sacks
On the Picket Lines: Los Angeles Teachers Go On Strike for First Time in 30 Years
Jonah Raskin
Love in a Cold War Climate
Andrew Stewart
The Green New Deal Must be Centered on African American and Indigenous Workers to Differentiate Itself From the Democratic Party
January 14, 2019
Kenn Orphan
The Tears of Justin Trudeau
Julia Stein
California Needs a 10-Year Green New Deal
Dean Baker
Declining Birth Rates: Is the US in Danger of Running Out of People?
Robert Fisk
The US Media has Lost One of Its Sanest Voices on Military Matters
FacebookTwitterGoogle+RedditEmail