LITUANUS LITHUANIAN QUARTERLY JOURNAL OF ARTS AND SCIENCES   Volume 36, No.3 - Fall 1990 Editor of this issue: Antanas Klimas, University of Rochester ISSN 0024-5089 Copyright © 1990 LITUANUS Foundation, Inc.

C U R R E N T   E V E N T S

THE SOVIET SECESSION LAW IS A SHAM

By Jaak Treiman
Mr. Treiman, a lawyer in Canoga Park, California,
is an Honorary Consul for Estonia.

(Reprinted from The Wall Street Journal Europe, July 3, 1990)

Estonians, Latvians and Lithuanians maintain they are not subject to Soviet law because they were illegally occupied and because their people have never acquiesced in Soviet rule.

Even though their position is based on recognized principles of international law, some commentators have suggested that the recently enacted Soviet secession law provides a reasonable way for the Baltic states to achieve full independence. This suggestion ignores the provisions of the secession law.

The new law "On the Procedure for Resolving Questions Connected With a Union Republic's Secession from the U.S.S.R." actually violates the Soviet Constitution, bestows all relevant secession decision making power on the central government, and invents a new, ad hoc, political unit.

Lack of Definitions

The new law is ostensibly designed to implement a republic's constitutionally guaranteed right to secede. The Soviet Constitution has always contained an article in which an unqualified right to secede has been preserved to the republics. Article 72 of the current Constitution states that, "The right of free secession from the U.S.S.R. shall be preserved for each union republic." Notwithstanding this Constitutional mandate, the new secession law actually emasculates Article 72 by establishing a myriad of pre-conditions to secession and vesting Moscow, rather than the republics, with the authority to decide whether secession can take place.

The new law requires the secession decision to be made in a popular vote by "U.S.S.R. citizens permanently resident on the republic's territory at the moment when the question of its secession from the U.S.S.R. is raised and possessing the right to vote according to U.S.S.R. legislation ..."

The secession law does not define "permanent resident" just as it fails to define any of its other key terms. However, when read together with the Law on Elections to the U.S.S.R. Supreme Soviet, the term "permanent resident" does not exclude Soviet military personnel stationed in the republics so long as they were present "at the moment when the question of ... secession from the U.S.S.R. is raised." Soviet military personnel and their dependents would be eligible to vote in a secession referendum. As "permanent residents," the military would also constitute part of the numerical total needed to achieve the requisite two-thirds favorable vote, regardless of whether or not they actually voted.

The movement of 200,000 new Soviet troops into Ukraine to conduct maneuvers and cast additional votes for Party candidates during the recent Ukrainian elections illustrates the basis for Baltic concern about the secession law's voting eligibility requirements. Estonia is reported to currently have approximately 150,000 Soviet troops stationed within its borders, Latvia about 200,000 and Lithuania about 100,000 with an additional 200,000 to 300,000 troops massed close to its borders. This does not include an unknown number of dependents and nonmilitary support personnel.

Even though two-thirds of all permanent residents who are eligible to vote (not two-thirds of those voting) cast ballots in favor of secession, secession does not take place. Instead, for the republic desiring to secede, the favorable results only mark the start of an uphill marathon, interspersed with hurdles, where the failure to clear even one hurdle results in a three month to 10 year's disqualification, depending on which hurdle was not cleared. On the other hand, the secession legislation provides the U.S.S.R. a downhill, hurdle-free course.

Moscow's position is further hedged by the invention of a concept new to Soviet law, namely, "places densely populated by ethnic groups constituting a majority of the population of the locality in question." The vote in such localities, the boundaries of which are undefined and which appear conducive to gerrymandering, is tabulated separately but is also counted as part of the total vote. Then, even if the secessionist republic clears all of the hurdles, crosses the finish line and is determined to be the winner by judges who are presumptively anti-secessionist, those localities may, if their vote was against secession, nevertheless remain part of the U.S.S.R.

One has the image of a Baltic Swiss cheese— independent Baltic states dotted with red holes, among them Riga, Tallinn and parts of Vilnius.

The preceding statement about "anti-secessionist judges" is not hyperbole. Article 5 of the secession law provides that "the U.S.S.R. Supreme Soviet, in coordination with the union republic's Supreme Soviet, decides the question of the presence as observers on the republic's territory of plenipotentiary representatives of the U.S.S.R., union and autonomous republics, and autonomous formations." While the "presence" of these observers shall be "coordinated" with the seceding republic, the actual composition and authority of the commission of observers is determined by the U.S.S.R. Supreme Soviet. While Article 5 also provides that the U.S.S.R. Supreme Soviet "can, if it deems this to be necessary, invite U.N. representatives onto the republic's territory for the duration of the poll" the commission is required to be present for the "preparing, holding and determining the results of the referendum." In other words, the commissioners with plenipotentiary powers will be present for the entire secession process; the United Nations observers, if invited, would be present only for the actual voting.

Once the vote is tabulated the U.S.S.R. Supreme Soviet is to establish that the "referendum was carried out in accordance with the law." If it finds any violation, "the U.S.S.R. Supreme Soviet schedules within a three month period a repeat referendum for the republic, or for part of the republic . . . or for the place densely populated by the ethnic groups." No limitation is placed on the number of times the U.S.S.R. Supreme Soviet can order all or part of the referendum to be repeated. One should keep in mind that an individual who tires of the process and stops voting is effectively voting against secession.

If the Supreme Soviet finds no illegalities in the voting process, it submits "the question" (not just the results) for examination by the Congress of U.S.S.R. People's Deputies. These deputies "examine the results of the referendum . . . and also the opinions of the supreme organs of state power of union and autonomous republics." Then, "at the submission of the U.S.S.R. Supreme Soviet coordinated with the Supreme Soviet of the seceding republic, the Congress of U.S.S.R. People's Deputies lays down a transitional period not exceeding five years within which questions arising in connection with the republic's secession from the U.S.S.R. must be resolved" (emphasis added). Most of the "questions" which "must be resolved" are contained in Article 14. There are nine of them, plus a 10th "catch-all" which provides that "other questions requiring mutual settlement must be resolved." Since it is mandated that every issue must be resolved, (including for example, the "status of the territories densely populated by the ethnic groups mentioned [in] the present law, taking into account the results of their expression of their will in the referendum") the Congress of People's Deputies has absolute, effective control over negotiations and secession.

If total agreement is not achieved on each one of the issues, then Article 14's mandate has not been met and the entire process ends, the original referendum results not-withstanding.

If the republic desiring to secede has successfully cleared all of the previous hurdles, Article 19 provides that, "During the last year of the transitional period," a mandatory repeat referendum is held "if this is demanded by one-tenth of U.S.S.R. citizens permanently resident on the republic's territory and entitled to vote under U.S.S.R. legislation." The repeat referendum must also pass by a vote totaling two thirds of the eligible population.

Moscow's Options

The process ends when the U.S.S.R. Supreme Soviet convenes a Congress of U.S.S.R. People's Deputies "to adopt a decision confirming the completion of the process for coordinating the interests and satisfying the claims of the seceding republic, on the one hand, and of the U.S.S.R., union republics, or autonomous republics, autonomous formations, and ethnic groups (constituting a majority of the population in the locality in question), on the other hand." No guidelines are established for the confirmation process. The law assumes that if there is no confirmation, there is no secession.

Finally, it should be noted that Article 9 of the secession law provides that during the transition period Soviet law continues to apply in the seceding republic. Moscow therefore retains the option to change the rules and modify the secession process as circumstances might dictate.

Charitably viewed, the newly enacted Soviet secession law constitutes false advertising. Analytically, viewed, it is pure demagoguery.