Russia’s Sham Referendums in Ukraine: A Turning Point in the Move Towards an International Right to Substantive Democracy?
Vol. 44 Associate Editor
Since the end of the Cold War, authoritarian governments have used international organizations in a novel way. Where once governments would resist the influence of international organizations, they now seek to use them to advance their own political goals. One illustrative example of this is the use of democratic processes and facially democratic institutions to comply with the procedural right to democracy required by several treaties. For example, following its illegal annexation of Crimea in 2014, Russia used a referendum to ‘legitimize’ its control over the region. It has followed this move with similar sham referendums in Donetsk, Kherson, Luhansk, and Zaporizhzhia – all areas Russia has occupied since starting its illegal war in Ukraine in February 2022. While these recent referendums have been widely rejected by the international community, these actions demonstrate a wider issue in international law – attempts by authoritarian states to manipulate procedural democratic rights ostensibly protected by treaty. With the renewed Western focus on international law and on the protection of democratic legitimacy around the world, countries should seek to incorporate a substantive right to democracy into existing procedural democratic protections in order to prevent the abuse of democratic mechanisms by authoritarian governments. This blog post seeks to (i) understand the difference between substantive and procedural democracy; (ii) demonstrate the abuse of procedural democratic rights by authoritarian states; (iii) highlight the potential for the expansion of these rights given increased western focus on international law and institutions; and (iv) analyze the barriers that remain in place to prevent the adoption of protections to a substantive view of democracy. Understanding procedural and substantive democracy Treaties generally adopt a procedural understanding of democracy, meaning they are concerned with the procedural requirements of elections and the framework required for a democracy to function. This understanding of democracy is fundamentally concerned with the use of elections, universal suffrage, and widespread participation in order to create a legitimate government reflective of the will of the people. While this should in principle create democratically legitimate governments, electoral procedures are frequently manipulated in order to undermine the processes. For example, the elections held in Russia in 2021 were widely condemned after claims of ballot stuffing, forced voting, and the banning of Putin’s most vocal opponents came to light soon after the United Russia party extended its unbroken period in power, after originally gaining a majority in 2003. More recently Russian State media agency TASS pointed to the use of international election observers to demonstrate that the referendums in occupied Ukraine were free and fair. International election observers, like those controlled by the UN, are an important tool for ensuring legitimacy in international elections, butthe international observers used by Russia in Crimea in 2014, and more recently in the occupied regions of Ukraine are considered to be fake observers by experts in the subject. These election observers, as well as others controlled like the PRC-controlled Shanghai Cooperation Organization, use different techniques facially purposed with ensuring ‘free and fair’ election to not only validate illegitimate or fixed elections, but also to create confusion and distrust in democracy by undermining the election results of established and reputable international organizations. The substantive view of democracy considers more than the functional aspects of democracy, seeing democracy to be intertwined with human rights and other things central to democratic states. Substantive democracy ensures that elections are not hampered by interference by political bodies and ensures that the results of an election are in fact reflective of the wishes of the people in a country. This view stems from the idea that democracy, rule of law, and human rights are interconnected and interdependent. The lack of consensus as to exactly what constitutes substantive democracy and the lack of a clear end goal make its adoption particularly difficult, especially on an international stage with different countries holding, sometimes vastly, different views as to what constitutes human rights, essential freedoms, or even democracy. The best attempt to illustrate the substantive view is found in the UN Commission on Human Rights 1999 resolution ‘Promotion of the Right of Democracy’, which listed eight requirements that expand on the procedural view of democracy. While international organizations often use rhetoric that suggests they protect a right to substantive democracy, the language of international legal materials generally only covers the procedural view of democracy. With the world now focused on very clear abuses of ‘free and fair elections’ held by Russia, there may be an opportunity to get countries to embrace substantive democracy in a multilateral treaty in order to provide additional protections against the attempts by authoritarian governments to use democratic procedures as a political weapon against democratic countries. The abuse of procedural democratic protections by authoritarian states While western countries grew more isolationist and reduced their involvement in international organizations following the cold war, the onset of the war in Ukraine breathed life into these organizations and western governments began to use the international political and legal levers available to them. The results of the referendums in Russia have been widely condemned and few countries consider them to be legitimate. However, the attempt to use the democratic processes to consolidate an illegal act of aggression highlights a gap in international law which was less relevant when most treaties that express support for democracy were drafted. That gap is the need for expanded protections beyond those already included in treaties. For example, article 25 of the ICCPR guarantees the right to vote by secret ballot in genuine periodic elections. This right alone was effective when authoritarian governments rejected all forms of democratic elections, but falls short when they undermine the legitimacy of those elections and facially comply with the requirements of the treaty. While Russia’s recent use of referendums has gained global condemnation, its use of democratic processes to achieve its autocratic goals are not new. Authoritarian governments have been using disinformation and pseudo-democratic organizations to advance their own agendas. UN election monitors were vital in ensuring fair and free elections in developing democracies, but are now rivaled by alternate election monitoring organizations sponsored by authoritarian governments. These organizations create confusion and undermine democratic values. This highlights the need for expanded protections in treaty law to counter the manipulation of current treaty provisions by authoritarian states. The international momentum toward substantive democratic rights The war in Ukraine could be a turning point in the move towards an international guarantee embracing the substantive view of democracy. With the world’s attention on the flagrant undermining of democracy and human rights by Russia in Ukraine, the west should seek to advance a treaty protecting a more substantive view of democracy. Recent UN General Assembly votes have indicated that there is momentum against the violation of Ukrainian democratic legitimacy by Russia. For example, the General Assembly recently passed a resolution calling for the immediate reversal of its attempted illegal annexation of Ukrainian territory. This vote passed by an overwhelming majority of 143 member states, with 5 voting against and 35 abstentions. The UNGA also voted to suspend Russia’s membership of the UN Human Rights Council due to “violations and abuses of human rights and international humanitarian law.” Furthermore, In September 2022 UN-appointed independent human rights investigators have assessed that war crimes have been committed by Russia in the conflict. This convergence of clear violations of human rights and democratic rights could be used as a trigger for those seeking to solidify the rights to finally propose a treaty that includes protections for the substantive view of democracy. Liberal democracies should capitalize on this momentum and start gaining support for new multilateral treaties to secure the rights associated with the substantive view of democracy. This would clear the fog created by the facially compliant but actually subversive actions of authoritarian states under the existing treaty framework. Agreeing a comprehensive substantive view of democracy will likely present significant challenged, but would be a valuable exercise for the preservation and advancement of global democracy. Barriers to expanding treaty protections to a right to substantive democracy Liberal democracies seem to be waking up to the fact that the democratic rights guaranteed by international treaties are inadequate for the new international landscape, but this does not mean that there is an easy route to international protections for substantive democracy. There are inherent problems with adopting treaty language to protect enhanced democratic rights, given the differing views as to what should be included in substantive democracy. While international organizations also use language that suggests their dedication to democracy, this rarely includes a concrete definition of what they mean. Allowing countries to make reservations against particularly problematic provisions in a treaty protecting these rights could be an effective way of getting the treaty across the line, but may undermine the desired goal of the treaty. There is also doubt as to the effectiveness of ongoing US leadership. The US was long the spearhead of the spread of liberal democracy but recent political turmoil has seen factions within US politics advocate for an isolationist view, and a withdrawal from international organizations and agreements. Uncertainty over the outcome of the 2024 election would likely make countries hesitant to sign and ratify a treaty, given the willingness of President Trump to pull back on U.S. obligations under international law.
 Tom Ginsburg, How Authoritarians Use International Law, 31 J. of Democracy (2020) at 44.  See, e.g., International Covenant on Civil and Political Rights, art 25, Dec. 16, 1996, 999 U.N.T.S. 171 [hereinafter ICCPR]; Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 221.  Ian Birrell, Crimea’s Referendum was a sham display of democracy, The Guardian (Mar. 17, 2014), https://www.theguardian.com/commentisfree/2014/mar/17/crimea-referendum-sham-display-democracy-ukraine.  Anisha Kohli, What the ‘Sham’ Referenda in Russian-Controlled Ukraine Could Mean for Both Countries, Time (Sept. 22, 2022, 4.41 PM) https://time.com/6215851/russia-ukraine-sham-referenda/.  Id.  Ginsburg supra note 1, at 44.  Gregory H. Fox and Georg Nolte, Intolerant Democracies, 36 Harv. Int’l L.J. 1, 14 (1995).  Amin Saikal, Democracy and Democratization, Encyclopedia Princetoneinis (last visited Nov. 11, 2022), https://pesd.princeton.edu/node/251.  See Steve Rosenberg, Russia Election: Putin’s party wins election marred by fraud claims, BBC (Sep. 20, 2021), https://www.bbc.com/news/world-europe-58614227; Oleg Yegorov, What is Russia’s ruling party doing to boost its rating, pre-elections?, Russia Beyond (Sep. 16, 2016), https://www.rbth.com/politics_and_society/2016/09/16/what-is-russias-ruling-party-doing-to-boost-its-rating-pre-elections_630673.  Mick Krever, Russia’s claimed observers in Ukraine ‘referendums’ violate numerous international principles – experts CNN (Sep. 27, 2022), https://www.cnn.com/2022/09/27/europe/russia-ukraine-referendum-intl.  Id.  See, Ginsburg, supra note 1, 51-52.  Gregory H Fox, Democracy, Right to, International Protection, The Max Planck Encyclopedia of Public International Law, at ¶ 10 (March 2008), https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e773?rskey=P7jEpY&result=1&prd=MPIL.  Michael Trebilcock and Poorvi Chitalkar, From nominal to substantive democracy: The role and design of Election Management Bodies, 2 Law and Development Rev. 191, 191 (2009).  Fox, supra note 13, at ¶ 10.  Id.  Fox, supra note 13, at ¶ 11; Promotion of the Right to Democracy, Commission on Human Rights Res. 1999/57, UN ESCOR, Commission on Human Rights, 57th mtg., U.N. Doc. E/CN.4/RES/1999/57 (1999). The rights are listed in the resolution, see UN Commission on Human Rights, Promotion of the right to democracy., 27 April 1999, E/CN.4/RES/1999/57, available at: https://www.refworld.org/docid/3b00f02e8.html.  See generally, Fox, supra note 13.  The ICCPR only includes a right to free and fair elections…; the human rights committee general comment 25; Article 3 Convention of Human Rights and Fundamental Freedoms. See also, Organization of American States, Inter-American Democratic Charter art. 23, Sept. 11, 2001, 40 I.L.M. 1289 (2001); Charter of Fundamental Rights of the European Union art. 40, Dec. 12, 2000, 2000 O.J. (C 364) 1.  Ginsburg, supra note 1, at 44-45  David L. Schloss and Laura A. Dickinson, Book Review: The Russia-Ukraine War and the seeds of a new liberal plurilateral order, 116 A.J.I.L. 798, 800-802 (2022).  Insert evidence of condemnation and the countries that have expressed support  ICCPR, supra note 2, art. 25.  Ginsburg, supra note 1, at 51. See, also, Sarah Repucci and Amy Slipowitz, The Global Expansion of Authoritarian Rule, Freedom House (last visited 11/21/2022), https://freedomhouse.org/report/freedom-world/2022/global-expansion-authoritarian-rule (“Elections, even when critically flawed, have long given authoritarian leaders a veneer of legitimacy, both at home and abroad. As international norms shift in the direction of autocracy, however, these exercises in democratic theater have become increasingly farcical.”).  Margarette Satterthwaite, Human Rights Monitoring, and electoral assistance as preventative measures, 30 N.Y.U.J. Int’l L. P. 709, 724 (1998).  Ginsburg supra note 1, at 51-52.  Id. at 52.  Ukraine: UN General Assembly demands Russia reverse course on ‘attempted illegal annexation’, UN News (Oct. 12, 2022) https://news.un.org/en/story/2022/10/1129492.  Id. The countries voting against were Russia, Belarus, Nicaragua, Syria, and the Democratic People’s Republic of Korea. The abstentions included China and India.  War crimes have been committed in Ukraine Conflict, top UN human rights inquiry reveals, UN News (Sept. 23, 2022) https://news.un.org/en/story/2022/09/1127691.  Fox, supra note 13, at ¶ 12.  See, e.g. ECtHr declaring that ‘democracy is without doubt a fundamental feature of European public order.’  David L. Schloss and Laura A. Dickinson, The Russia Ukraine War and the seeds of a new liberal plurilateral order, 116 A.J.I.L. 798, 809 (2022).  Id.  Id. The US has withdrawn or threatened to withdraw from treaties and agreements related to subjects ranging from the environment, trade, arms-control, and health; the failure to ratify treaties at the congressional level also creates uncertainty regarding the U.S. reliability around treaties. See generally, William J. Burns, The United States Needs a new Foreign Policy, Carnegie Endowment (Jul. 14, 2020), https://carnegieendowment.org/2020/07/14/united-states-needs-new-foreign-policy-pub-82295; Emily Rauhala, Karoun Demerjian, and Toluse Olorunnipa, Trump Administration sends letter withdrawing U.S. from World Health Organization over COVID-19 response, Washington Post (July 7, 2020 6.10 PM), https://www.washingtonpost.com/world/trump-united-states-withdrawal-world-health-organization-coronavirus/2020/07/07/ae0a25e4-b550-11ea-9a1d-d3db1cbe07ce_story.html; Ann Piccard, The United States failure to ratify the International Covenant on Economic, Social and Cultural Rights: Must the poor always be with us?, 13 Scholar 231 (2010). The views expressed in this post represent the views of the post’s author only.