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How valid are the referendums in eastern Ukraine used to justify Russia's annexation?

When the Soviet Union splitted in 1991, Ukraine found itself harboring hundreds of nuclear weapons that the Kremlin had placed there during the Cold War. After intense negotiations, Ukraine signed in 1994 an agreement with Russia, United States and United Kingdom, known as the Budapest Memorandum, by which Kiev would give up all its nuclear weapons in exchange of security assurances on its territorial integrity. Specifically, the agreement prohibited any of those countries threatening or using military force, or economic coercion against Ukraine, "except in self-defense or otherwise in accordance with the Charter of the United Nations".

In early 2014, when Russia annexed Crimea and gave lethal weapons to pro-Russian separatists fighting the civil war in eastern Ukraine, several international laws were broken, including the Budapest Memorandum. To defend these actions, Russia says that its "military operation" did not violate the agreement of 1994 in Budapest because this document was just a political statement that had no legal force. 

Also, the Kremlin defends that the annexations of Crimea, Luhansk, Donetsk, Kherson and Zaporizhia, made after staged referendums there, follow the UN principle of "the right of the peoples of self-determination", in this case, the will of those regions to join Russia. Moreover, the eastern regions of Ukraine have always voted for pro-Russian candidates in national elections by a big majority (Yanukovich in 2010 and Boyko in 2019, the last two regular elections held in the country).

Nonetheless, the UN's "right of self-determination" does not state how the decision is to be made, nor what constitutes a "people". There are also conflicting definitions and legal criteria for determining which groups may legitimately claim the right to self-determination. Sometimes, it seems that national self-determination challenges the principle of territorial integrity of states as it implies a "people'' should be free to choose their own state and its territorial boundaries, without foreign interference. However, there is no legal process to redraw state boundaries according to the will of these peoples.

In the last decades, the legitimization of the principle of national self-determination has led to an increase in the number of conflicts within states, and the international reaction to these new movements has been uneven and dictated more by politics than principles. Currently, the only consensus among UN members is that "the right to self-determination of peoples applies to those who remain under colonial domination and foreign occupation".

Russia uses the case of US support for Kosovo's declaration of independence from Serbia, a Russian ally, to point out "the double morality of the Western world", but many scholars dispute the legal validity of comparing both cases. As for the five regions of Ukraine that Russia annexed (Crimea, Luhansk, Donetsk, Kherson and Zaporizhia), the referendums that were held there are not considered legitimated due to several reasons: 

• According to the articles of the Constitution of Ukraine on referendums and territorial changes, they can only be approved if all citizens of the country are allowed to vote, including those that do not reside in the area.

• There were many fraud allegations: 

1) The Security Service of Ukraine (SBU) released on 5 May 2014 the audio of a phone call between a Donetsk separatist leader, named Dima Boitsov, and the leader of the far-right paramilitary Russian National Unity group, Alexander Barkashov. In the recording, Boitsov said he wanted to postpone the referendum due to their inability to control all of Donetsk region. Barkashov said that he had communicated with Putin, and insisted Boitsov to hold the referendum regardless of these problems and tabulate the results as 89% in favor of autonomy. Separatists stated that the recording was fake. However, the 89% mentioned in the phone call matched exactly the result of the referendum, which took place on 11 May 2014, six days after the recording had been published. 

2) Main Western media outlets (BBC, CNN and Bild) reported that voters were able to vote many times, and that for example, just 32 percent of voters registered in the Donetsk region participated in the voting.

3) The referendums of 2014 were organized in a campaign of intimidation with guns by the pro-Russian side, which forced many pro-Ukrainian opponents of secession to flee the regions, leaving the referendum to take place without any real dissent. In the case of the referendums organized in 2022 before the official Russian annexation of Luhansk, Donetsk, Kherson and Zaporishshia, conditions were even less democratical and just a tiny percentage of the 2014 registered population remained in the regions following the full-scale invasion.

The response from the Western world was unanimous in condemning the referendums as "fake, illegal, illegitimate, unserious and a farce". So far, only Cuba, Belarus, Nicaragua, Venezuela, North Korea and Sudan have de facto recognized those five regions as part of Russia. India and China, which have their own territorial conflicts (Kashmir, Xinjiang, Tibet, Hong Kong and Taiwan), continue to defend that the regions are part of Ukraine but that Russia's concerns should be addressed by the UN.

Finally, it is possible to state that the referendum and independence of Crimea from Ukraine in March 2014 has some more validity than the other four eastern regions:

• Around 80% of the population in Crimea is Russian and speaks this language natively. The region belonged to Russia from the 18th century until 1954, when the Ukrainian Soviet leader Nikita Kruschev transferred it to Ukraine as a 'gift' to facilitate the administration of water supplies into this peninsula.

• Despite many fraud and intimidation allegations that yielded an official result of 96% of the voters choosing to join Russia with 85% of turnout, polls conducted by US agencies in April 2014 showed that the official results published by pro-Russian forces matched with their surveys:

1) The U.S. government Broadcasting Board of Governors concluded that 83% of Crimeans felt that the results of the March 16 referendum on Crimea's status likely reflected the views of most people there. 

2) Gallup's survey showed that 82.8% of Crimean people considered the referendum results reflecting most Crimeans' views and 73.9% of Crimeans said Crimea becoming part of Russia will make life better for themselves and their families, while 5.5% disagreed. 

3) According to the US based Pew Research Center, 91% of Crimean residents said they believed the referendum was free and fair, and 88% that the government in Kiev ought to recognize the results of the vote.

In addition to the war crimes that Russia is committing in Ukraine and violations on international laws about territorial integrity, all these considerations should be taken into account in order to define which course of the war the world wants to shape in the following months.


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