Secession by Referendum?

Last month I wrote a series of posts, chained below, concerning the separatist conflict in Moldova. At issue is who should control Transnistria, a strip of land between the Dniestr River and the border of Ukraine. Transnistria contains Moldova’s key industrial infrastructure, power plants, and, importantly, a significant stockpile of Soviet-era arms. Since 1992, it has been under the effective control of a separatist regime that calls itself the Transnistrian Moldovan Republic (“TMR”). I was part of a mission sent by the New York City Bar to assess the legal issues and I drafted the mission’s report.

Today the Transnistrians go to the polls to vote on a referendum concerning whether they want the TMR to be a separate country. The referedum was organized by the separatist leaders and only those in the separatist enclave may vote. Consider the somewhat surreal scene in Transnstria today, as described by the International Herald Tribune:

People began trickling in early Sunday to the 262 voting stations as loudspeakers throughout the center of the main city, Tiraspol, blared Soviet-era music and reminders to vote. They stood patiently behind registration tables set up by street – Lenin Street, Marx Street – and many clutched now- useless Soviet passports.

At first blush this might seem like a “wave of democracy” ballots-over-bullets scenario. Nothing could be further from the truth. The Transnistrian referendum is an example of how blatantly illegal regimes have learned to use the tropes of international law to cloak themselves with a mantle of respectability.

The drive for a referendum was emboldened in recent months by Montenegro’s achieving sovereignty via referendum, the belief that Kosovo will also achieve independence, and also, possibly, by Russian support for the Transnistrian referendum process (the exact Russian stance is unclear and the U.S. has sought a clear statement from Moscow if they would recognize such a referendum). The Transitrian referendum itself is being closely watched by South Ossetia, a breakaway region in the former Soviet republic of Georgia , which has also scheduled its own referendum for independence. Abkhazia (also in Georgia) and Nagorno-Karabakh (in Azerbaijan) are other “frozen conflicts” with an interested in the outcome of today’s vote. Are we entering a new era of secession and sovereignty via referendum?

The referendum itself more-or-less clues in the voter on the point of this exercise. As summarized by the US ambassador to the OSCE, there are two questions on today’s ballot:

The first asks if voters “support the course of independence” for Transnistria and then “joining” the Russian Federation. The second asks if citizens favor “rejection of the independence” of Transnistria and subsequent reunification with Moldova.

In sum: independence through unification with Russia or loss of independence through “reunification” with Moldova.

This is nothing new, the Transnistrian leadership has used questionable referenda in 1990 and 1994 in attempts to seem legitimate. Now they argue that, besides legitimacy, a referendum showing that the population was in favor of independence would be legally binding. In October 2004, the so-called President of the TMR, Igor Smirnov, said

We must hold a national referendum, with international observers to make sure that there can be no doubt about the legitimacy of our state. The results of the referendum will be a law for us, a law that the international community, above all the United States, the European Union and the OSCE, will have to respect.

It is time to separate good law from bad analogies.

Bad Analogy #1: The situation in Transnistria is like that in Montenegro. The key fact regarding the Montenegrin referendum was that Serbia accepted the use of a referendum as a means to resolve the issue. The government of Moldova does not. As a matter of law, the central government (absent some tother sircumstances such as serious human rights abuses) gets to decide. Quite simply, that is what sovereignty is all about.

As far back as the 1920’s, the Aaland Islands Commission weighed the ability of the ethnically Swedish Aaland Islanders to secede from Finland. The Commission found that the ability to choose fate by plebiscite must be decided by the state itself (in that case, Finland); otherwise such a formulation would infringe on the sovereign right of states. To say that a separatist regime can merely vote itself into independence would set so low a bar that the Westphalian system would devolve into a thousand microstates of nature. This is good law and it makes good sense.

Bad Analogy #2: If Kosovo gets independence, so should Transnistria. Kosovo is a special case, the result of the dissolution of a state (Yugoslavia) the general breakdown of a region, and the bad acts of the central government (Serbia). The international administration of Kosovo, due to the humanitarian disaster that was being caused by the central government is also of crucial importance. None of these factors apply in Moldova.

Amidst all the rhetoric about referenda, self-determination, and sovereignty, one should keep a few things in mind.

Reality Check #1: The result of the vote will likely be in favor of independence and unification with Russia. The fix is in. Referenda are a tool that the TMR’s leadership likes to use. They like to refer to the 1990 referendum in Transnistria that reportedly had 96% of the voters favoring autonomy and, if necessary, the future creation of an independent state. While there is likely some support in Transnistria for independence, the votes that occurred must be considered with a critical eye. In a visit to Tiraspol in September 1992, political scientist Pal Kolstø was shown lists in which the votes of the residents had been recorded with their names, causing him to conclude “the anonymity of the voters had been compromised.” How free and fair is an election when the (so-called) government gets to check on how you voted?

Reality Check #2: A pro-independence vote will not change the views of most key countries and international organizations. In an interview with Radio Free Europe, the head of the OSCE mission to Moldova, Louis O’Neill said

The OSCE will not recognize this referendum, and we have no intention to support or observe a unilateral action, which calls into question the territorial integrity and sovereignty of the Republic of Moldova… Particularly when you consider the suggestive character of the questions, which are themselves compound questions, each one of them contains two parts, so there really should be four questions, and that they pretty much imply the desired answer.

The EU has made a similar statement, as reported by Radio Free Europe:

Emma Udwin, spokeswoman to the EU external relations commissioner Benita Ferrero-Waldner, said the referendum will not change the status quo.

“We don’t recognize Transdniester as a state, we don’t recognize Transdniester’s independence and there is no country that does,” Udwin said. “This referendum, which will be held doesn’t alter any part of that state of affairs. It will not be recognized by the EU, we understand that it will not be recognized by the OSCE, and therefore it is not something that will have international validity.”

The US also rejects the validity of the referendum. See here. So not only is the referendum not legally binding, it is not even persuasive. But…

Reality Check #3: Russia is the wild card. Here’s how Radio Free Europe put it:

So far, Russia has not said whether it will recognize the results of the poll. The Russian Foreign Ministry today issued a statement saying that referendums were “seen in recognized democratic states as an important legal basis for building civil society.”

However, some Russian officials have spoken in favor of recognizing the Transdniester referendum and an upcoming similar poll. On November 12, Georgia’s separatist pro-Moscow region of South Ossetia is holding a referendum.

Konstantin Zatulin, the director of the Institute of CIS Countries and a Duma deputy from the pro-Kremlin Unified Russia party, said Russia is generally in favor of referendums.

“Russia definitely respects the principle of referendums to decide the fate of nations and populations. In my opinion, Russia is totally prepared to recognize, under certain conditions, the independence of Transdniester from the Moldovan republic, especially since this independence has long been a fact,” Zatulin said.

Russia may use this referendum for political cover to support Transnistrian independence. It has tacitly supported independence for 15 years. Is this referendum actually about Russia becoming more aggressive in its “near abroad?” Note that South Ossetia and Abkhazia, the two separatist regions in Georgia that are carefully tracking this vote, are also supported by Russia. As a matter of policy, only time will tell whether this is a sign of things to come. As a matter of law, there’s nothing here.