The referendum that was held on the Crimea joining Russia, as well as the referenda on establishing Donetsk and Luhansk as “people’s republics,” raises the critical issue of the legitimacy of such separatist popular votes. Constitutional law expert and professor at the Higher School of Economics Juliana Demesheva explains the concept of a referendum and clarifies which referenda can be considered legitimate.
A referendum is one of the most common and popular forms of direct democracy and involves a direct expression of the citizens’ will on a given issue. It should be noted, however, that constitutional law does not define a referendum on independence as a separate concept from a referendum on any other issue. The closest thing to the former is a plebiscite, or a public opinion poll on the political status of the territory in which the polled citizens reside (Mishin 2013, 186).
Depending on the issue under consideration, referenda can be subdivided into the following types:
- Constitutional: concerning the draft constitution or amendments to the constitution
- Legislative: concerning draft laws, given that the constitutional system of the state provides for non‑parliamentary procedures for the adoption of laws
- International law: concerning international issues
- Administrative: concerning governance and management issues, such as the alteration of administrative or territorial boundaries or the boundaries of the subjects of the federation
Distinguished from these four categories are consultative referenda, which allow lawmakers more flexibility in formulating a question and give citizens several response options. Typically, these referenda are used in cases in which a significant decision requires wider approval, not limited to that of members of the legislature (Mishin 2013, 188).
Referenda on independence do not constitute a separate group, but depending on the constitutional law of the country, an “independence referendum” may be included in one of the previously defined groups. For example, if implementing decisions on matters of state sovereignty, national integrity, or modifications to the form of government requires amendment of the existing constitution or adoption of a new constitution, such a referendum would be constitutional. If no amendments to the constitution are required, such a referendum might fall in the administrative category.
Despite the fact that the referendum is a form of direct democracy, its absence from the constitutional system of a country does not constitute an infringement of citizens’ political rights or a threat to the democratic rule of law. Thus, in 2012, the Venice Commission, an advisory body on constitutional law established by the Council of Europe, considered a request by Belgium that would make a referendum a mandatory step in the process of amending the constitution and concluded that a purely parliamentary constitutional review procedure—provided that any decision is made by a qualified majority of parliamentarians—is typical of the constitutions of European countries. (Similar procedures are set out in paragraph 2, Article 79, of the German basic law; Article 89 of the French constitution; Article 138 of the Italian constitution; Article 167 of the Spanish constitution; and paragraph 2, Article 44, of the constitution of Austria.) More rigid procedures to amend the constitution that provide for mandatory consideration of the issues at hand in a referendum are not the general rule and cannot be regarded as a European standard.
Another example was the ratification procedure for the European Union Constitution. Despite the general rule of the European Union, according to which such issues have to be decided in a national referendum, a number of countries (including Germany, Finland, Belgium, and Cyprus) ratified their constitutions to accommodate the new EU constitution exclusively using the parliamentary procedure and without the involvement of the population, since their national constitutions do not provide for the referendum.
Depending on the legitimacy of a country’s constitution, a referendum (or, rather, referenda) on whether a certain part of the country’s territory wants to secede to become an independent state is initiated by either regional authorities or the public. Thus, the question of the legitimacy of such referenda and the legality of their consequences invariably arises.
In what cases does a referendum, as a form of direct expression of the people’s will, remain within the legal boundaries? For a referendum to be legitimate, two basic conditions must be met: it must be constitutional, and it must be lawful.
For a referendum to be constitutional, it must be recognized by the country’s constitutional system, the referendum initiative must originate from an individual or a body identified in the basic law, and both the decision to hold such a referendum and the content of the referendum must not contradict the state’s constitutional principles or provisions.
For a referendum to be lawful, it must be administered in strict adherence with the procedures laid down in a special, usually organic (i.e., directly provided by the constitution itself) law. It is also essential that a referendum meet the basic democratic standards on holding referenda established by the Venice Commission in the “Code of Good Practice on Referendums.” These standards include universal, equal, free, and secret suffrage; the provision of objective information by the authorities; neutrality of media coverage; and the inability of the authorities to influence the results of the popular vote.
It is the opinion of the Venice Commission that, according to the Ukrainian constitution, only a consultative referendum on greater autonomy would be acceptable in the Crimea.
It was on the basis of these criteria that the Venice Commission determined the legitimacy of the Crimean referendum in its “Opinion of March 16, 2014.” In considering the question of whether the decision to hold a referendum was in compliance with the provisions of the Ukrainian constitution, the commission concluded that the constitution of Ukraine defines sovereignty and the territorial integrity of the country as fundamental principles of the constitutional system.
The Ukrainian constitution does recognize referenda as expressions of the will of the people. However, this does not automatically mean that any referendum is constitutional. In particular, Article 73 of the Ukrainian Constitution expressly states that questions concerning alterations to the territorial boundaries of Ukraine can be decided only by a nationwide referendum. Consequently, a decision to secede from the rest of the country cannot be made by a local referendum.
At present, any local referendum held in Ukraine would be considered unlawful. This legal gap is the result of a law entitled “On All-Ukrainian Referenda” that was adopted on November 28, 2012, whereby the legislature lost the right to organize local referenda that had previously been provided by a 1991 law entitled “On All-Ukrainian and Local Referenda.”
The ban on local referenda applies also to the Autonomous Republic of Crimea. It is the opinion of the Venice Commission that, according to the Ukrainian constitution, only a consultative referendum on greater autonomy would be acceptable in the Crimea. The commission emphasized that under the circumstances, it was not possible to hold a referendum in accordance with European democratic standards, which mandate that any referendum on the status of a territory should be preceded by serious negotiations involving all stakeholders.
The issue of the legitimacy of referenda on independence is closely related to the concepts of secession and self-determination. Those who support permitting a territory, which is an integral part of a state, to declare independence from the state tend to make their case by referring to the constitutional right to self-determination. In fact, they imply a right to secede. A report by the Venice Commission entitled “Self‑Determination and Secession in Constitutional Law” helps distinguish between these concepts at the level of international law. According to this report, the term “self-determination” should be understood primarily as internal self-determination within the state’s existing borders, and not as self-determination of individual territories through their secession, because such secession contradicts the constitutional principle of integrity. Exceptions to this rule are possible only to the extent that self-determination through secession is expressly provided for in the constitutional law of the state.
Membership in international associations is another important factor that determines the legitimacy of a referendum. Attempts by European Union member states to consider the secession of parts of their territories within the framework of European democratic standards could have some interesting consequences. Particularly revealing in this regard are the potential referenda on the independence of Scotland and on the Italian region of Veneto.
In the case of Scotland, the question of whether or not a secession referendum should be held was decided after years of negotiation involving all stakeholders. Despite the fact that the United Kingdom refuses to give up Scotland as part of its territory, on October 15, 2012, the British prime minister and the first minister of the Scottish government signed an agreement to hold a referendum on Scottish independence on September 18, 2014. In November 2013, the Scottish government presented a white paper outlining a draft structure of the state in the event of its separation from Britain. The main problems for the Scottish National Party, the body that initiated the referendum, are the desire to keep the British pound as the national currency of Scotland and the desire to confirm the country’s membership in the European Union.
However, it turned out that these issues could not be resolved unilaterally. Britain would not allow Scotland to continue to use its currency, and the European Union stressed the binding nature and invariability of the procedures governing the acceptance of new member states, explaining that in the event that a new country is established as the result of secession from an existing member state, such a country must submit a new application for membership in the EU. It should be noted that the issue of “inherited” membership in the European Union already came up in regard to Belgium, where in 2010 Flemish nationalists who wanted to separate the kingdom into the states of Flanders and Wallonia won the parliamentary elections. The country was on the verge of collapse, but the threat of the loss of EU membership proved the decisive factor in ensuring the preservation of the state’s territorial integrity.
As to the separation of the Veneto region from Italy, a different plebiscite model was used. Since the separation of a territory from the state contradicts the Italian constitution, the question of the region’s independence was put to a vote not in a constitutional and legal referendum, but in an informal vote that was conducted online as well as at polling stations set up by local administrations throughout the region. The outcome of the popular vote was not legally binding and was simply considered a guarantee of the population’s approval of the political agenda of those who supported the secession of Veneto.
In general, the ultimate goal of using different models of referenda depending on the requirements of the national constitutional law is to get voters to clearly express their opinions on the form of government under which they live and to make sure the legitimacy of the results is not questioned.
Sources:
Mishin, A. A. 2013. Constitutional (State) Law of Foreign Countries: Textbook for Universities. M. Stataut.
