Why the Crimean Referendum Is Illegitimate

Why the Crimean Referendum Is Illegitimate

The vote by some Crimean citizens to join Russia violates Ukrainian and international law and could come back to haunt Moscow, its primary backer, says CFR’s John Bellinger.

March 16, 2014 2:53 pm (EST)

Interview
To help readers better understand the nuances of foreign policy, CFR staff writers and Consulting Editor Bernard Gwertzman conduct in-depth interviews with a wide range of international experts, as well as newsmakers.

Voters in Ukraine’s republic of Crimea opted to join Russia in a referendum Moscow called the starting point for determining the future of the peninsula. CFR Adjunct Senior Fellow John Bellinger, former legal adviser for the U.S. State Department, said the March 16 vote violates both the Ukrainian constitution and general principles of international law, which respect the territorial integrity of states. Despite concerns about the vote and Russia’s deployment of forces in Crimea, he said, the international community has limited options to overturn the result. But Bellinger added: "Russia may find that its support for Crimea’s independence might trigger referenda or secession movements that it opposes, such as in Chechnya."

A woman casts her ballot at a polling station in Simferopol on March 16, 2014A polling station in Simferopol on March 16, 2014. (Photo: Thomas Peter/Courtesy Reuters)

U.S. and EU officials have criticized the referendum as illegitimate. Why?

More From Our Experts

The Obama administration and most European governments argue that the referendum violates both the Ukrainian constitution and international law. The Ukrainian constitution requires that any changes to the territory of Ukraine be approved by a referendum of all of the Ukrainian people. The requirement is consistent with general principles of international law, which respects the territorial integrity of states and does not recognize a right of secession by a group or region in a country unless the group or region has been denied a right to "internal self determination" (i.e., its right to pursue its own political, economic, social, and cultural development) by the central government or has been subject to grave human rights violations by the central government. These factors, which could give rise to a right of remedial secession under international law, are not present in Crimea.

More on:

Russia

Ukraine

Political Movements

International Law

Referendums

International law prefers to preserve the territorial integrity of states and limit the right of popular self-determination because minority secession movements, if allowed to proceed without limits, do not reflect the views of the majority in a state and could lead to the breakdown of the international system.

What international legal options are available to challenge the vote and Russia’s moves in Crimea?

The international community has limited options to overturn the vote. On Saturday, Russia vetoed a [UN] Security Council resolution that would have declared the Crimea referendum invalid. The U.S. and other governments could seek a resolution of the UN General Assembly condemning the referendum, but this would not have any binding effect.

The General Assembly could also ask the International Court of Justice to render an "advisory opinion" that the referendum was illegal. After Kosovo declared independence from Serbia in 2008, the General Assembly, at the request of Serbia, asked the ICJ for an advisory opinion regarding Kosovo’s declaration of independence. In that case, the ICJ concluded that Kosovo’s declaration was not illegal. However, the Crimea situation is significantly different from Kosovo, and the ICJ might reach a different conclusion, especially if the question were framed differently.

More From Our Experts

What is different about the case of Kosovo, in which NATO aircraft bombed Serbian forces to create "facts on the ground" leading to independence of Kosovo Albanians?

NATO intervened in Kosovo only after Serbia committed terrible atrocities against the Kosovar Albanians. The Kosovo crisis led the UN Security Council in 1999 to adopt UN Security Council Resolution 1244, which placed Kosovo under international supervision. The United States and many (but not all) European countries supported Kosovo’s declaration of independence in 2008, but argued that the Kosovo situation was unique and did not set a precedent for any other territorial secessions. In particular, the U.S. government noted that the independence of Kosovo was the final stage of the dissolution of Yugoslavia, that Kosovar Albanians had been subject to gross human rights abuses, that Kosovo had been under international supervision that contemplated its independence, that other avenues for resolution had been explored, and that UN Special Envoy for Kosovo Martti Ahtisaari had recommended independence for Kosovo. None of these factors are present in the case of Crimea. And, as I have noted, international law respects the territorial integrity of states and does not provide for a general right of secession, except in limited circumstances.

Russia says the Kiev-led government itself is illegitimate because of its failure to respect the deal that provided for Yanukovich to remain in power. Valid point?

Ukraine’s parliament appears to have ousted Yanukovich in a lawful manner under Ukrainian law. However, even if the parliament’s action was questionable, this would not trigger any right under international law for Russia to intervene in the Ukraine or for Crimea to secede.

More on:

Russia

Ukraine

Political Movements

International Law

Referendums

What, if any, precedent will this vote set for other restive regions in Russia and beyond?

If Crimea actually secedes and agrees to be annexed by Russia, this could embolden other secessionist movements in Eastern Europe and elsewhere.

When the United States and other European governments supported the independence of Kosovo, they were aware that it could set a precedent for other secessions, despite their arguments that Kosovo was a unique situation. (This is why some European governments with separatist movements -- such as Spain and Turkey -- did not support secession by Kosovo.) Two regions of Georgia -- South Ossetia and Abkhazia -- had previously declared themselves independent from Georgia, and in 2008 Russia recognized them as separate states. In 2006, the region of Transdnistria held a referendum and declared itself independent from Moldova.

Just as the United States recognized the possible precedent set by Kosovo’s secession, Russia may find that its support for Crimea’s independence might trigger referenda or secession movements that it opposes, such as in Chechnya.

Close

Top Stories on CFR

Artificial Intelligence (AI)

Sign up to receive CFR President Mike Froman’s analysis on the most important foreign policy story of the week, delivered to your inbox every Friday afternoon. Subscribe to The World This Week. In the Middle East, Israel and Iran are engaged in what could be the most consequential conflict in the region since the wars in Afghanistan and Iraq. CFR’s experts continue to cover all aspects of the evolving conflict on CFR.org. While the situation evolves, including the potential for direct U.S. involvement, it is worth touching on another recent development in the region which could have far-reaching consequences: the diffusion of cutting-edge U.S. artificial intelligence (AI) technology to leading Gulf powers. The defining feature of President Donald Trump’s foreign policy is his willingness to question and, in many cases, reject the prevailing consensus on matters ranging from European security to trade. His approach to AI policy is no exception. Less than six months into his second term, Trump is set to fundamentally rewrite the United States’ international AI strategy in ways that could influence the balance of global power for decades to come. In February, at the Artificial Intelligence Action Summit in Paris, Vice President JD Vance delivered a rousing speech at the Grand Palais, and made it clear that the Trump administration planned to abandon the Biden administration’s safety-centric approach to AI governance in favor of a laissez-faire regulatory regime. “The AI future is not going to be won by hand-wringing about safety,” Vance said. “It will be won by building—from reliable power plants to the manufacturing facilities that can produce the chips of the future.” And as Trump’s AI czar David Sacks put it, “Washington wants to control things, the bureaucracy wants to control things. That’s not a winning formula for technology development. We’ve got to let the private sector cook.” The accelerationist thrust of Vance and Sacks’s remarks is manifesting on a global scale. Last month, during Trump’s tour of the Middle East, the United States announced a series of deals to permit the United Arab Emirates (UAE) and Saudi Arabia to import huge quantities (potentially over one million units) of advanced AI chips to be housed in massive new data centers that will serve U.S. and Gulf AI firms that are training and operating cutting-edge models. These imports were made possible by the Trump administration’s decision to scrap a Biden administration executive order that capped chip exports to geopolitical swing states in the Gulf and beyond, and which represents the most significant proliferation of AI capabilities outside the United States and China to date. The recipe for building and operating cutting-edge AI models has a few key raw ingredients: training data, algorithms (the governing logic of AI models like ChatGPT), advanced chips like Graphics Processing Units (GPUs) or Tensor Processing Units (TPUs)—and massive, power-hungry data centers filled with advanced chips.  Today, the United States maintains a monopoly of only one of these inputs: advanced semiconductors, and more specifically, the design of advanced semiconductors—a field in which U.S. tech giants like Nvidia and AMD, remain far ahead of their global competitors. To weaponize this chokepoint, the first Trump administration and the Biden administration placed a series of ever-stricter export controls on the sale of advanced U.S.-designed AI chips to countries of concern, including China.  The semiconductor export control regime culminated in the final days of the Biden administration with the rollout of the Framework for Artificial Intelligence Diffusion, more commonly known as the AI diffusion rule—a comprehensive global framework for limiting the proliferation of advanced semiconductors. The rule sorted the world into three camps. Tier 1 countries, including core U.S. allies such as Australia, Japan, and the United Kingdom, were exempt from restrictions, whereas tier 3 countries, such as Russia, China, and Iran, were subject to the extremely stringent controls. The core controversy of the diffusion rule stemmed from the tier 2 bucket, which included some 150 countries including India, Mexico, Israel, Switzerland, Saudi Arabia, and the United Arab Emirates. Many tier 2 states, particularly Gulf powers with deep economic and military ties to the United States, were furious.  The rule wasn’t just a matter of how many chips could be imported and by whom. It refashioned how the United States could steer the distribution of computing resources, including the regulation and real-time monitoring of their deployment abroad and the terms by which the technologies can be shared with third parties. Proponents of the restrictions pointed to the need to limit geopolitical swing states’ access to leading AI capabilities and to prevent Chinese, Russian, and other adversarial actors from accessing powerful AI chips by contracting cloud service providers in these swing states.  However, critics of the rule, including leading AI model developers and cloud service providers, claimed that the constraints would stifle U.S. innovation and incentivize tier 2 countries to adopt Chinese AI infrastructure. Moreover, critics argued that with domestic capital expenditures on AI development and infrastructure running into the hundreds of billions of dollars in 2025 alone, fresh capital and scale-up opportunities in the Gulf and beyond represented the most viable option for expanding the U.S. AI ecosystem. This hypothesis is about to be tested in real time. In May, the Trump administration killed the diffusion rule, days before it would have been set into motion, in part to facilitate the export of these cutting-edge chips abroad to the Gulf powers. This represents a fundamental pivot for AI policy, but potentially also in the logic of U.S. grand strategy vis-à-vis China. The most recent era of great power competition, the Cold War, was fundamentally bipolar and the United States leaned heavily on the principle of non-proliferation, particularly in the nuclear domain, to limit the possibility of new entrants. We are now playing by a new set of rules where the diffusion of U.S. technology—and an effort to box out Chinese technology—is of paramount importance. Perhaps maintaining and expanding the United States’ global market share in key AI chokepoint technologies will deny China the scale it needs to outcompete the United States—but it also introduces the risk of U.S. chips falling into the wrong hands via transhipment, smuggling, and other means, or being co-opted by authoritarian regimes for malign purposes.  Such risks are not illusory: there is already ample evidence of Chinese firms using shell entities to access leading-edge U.S. chips through cloud service providers in Southeast Asia. And Chinese firms, including Huawei, were important vendors for leading Gulf AI firms, including the UAE’s G-42, until the U.S. government forced the firm to divest its Chinese hardware as a condition for receiving a strategic investment from Microsoft in 2024. In the United States, the ability to build new data centers is severely constrained by complex permitting processes and limited capacity to bring new power to the grid. What the Gulf countries lack in terms of semiconductor prowess and AI talent, they make up for with abundant capital, energy, and accommodating regulations. The Gulf countries are well-positioned for massive AI infrastructure buildouts. The question is simply, using whose technology—American or Chinese—and on what terms? In Saudi Arabia and the UAE, it will be American technology for now. The question remains whether the diffusion of the most powerful dual-use technologies of our day will bind foreign users to the United States and what impact it will have on the global balance of power.  We welcome your feedback on this column. Let me know what foreign policy issues you’d like me to address next by replying to [email protected].

Iran

As Trump weighs whether to join Israel's bombing campaign of Iran, some have questioned if the president has the authority to involve the U.S. military in this conflict.

RealEcon

The Global Fragility Act (GFA) serves as a blueprint for smart U.S. funding to prevent and end conflict, and bipartisan congressional leaders advocate reauthorization of the 2019 law.