Roundtable Blog: Voting Under Duress — Referenda, Aggression, and the Limits of Democratic Consent
Editor’s Note:
This post is part of the PILPG Lawyering Justice roundtable series. Rather than a traditional co-authored article, it presents a curated set of expert reflections from members of PILPG’s Ukraine Peace Negotiations Working Group. Drawing on a closed-door discussion held on 6 February 2026, this roundtable examines one of the most legally and politically fraught questions facing Ukraine: whether a national referendum can play a legitimate role in a peace process shaped by aggression, occupation, and mass displacement.
Referenda are commonly understood as the highest expression of democratic will. Yet in contexts defined by coercion and force, democratic instruments themselves may be distorted into tools that legitimise unlawful outcomes. This roundtable explores the legal limits of consent under international law, the precedent-setting risks of post-aggression referenda, and the strategic choices Ukraine faces in navigating popular participation without eroding its sovereignty or the international legal order.
1. Can Territorial Change Resulting from Aggression Ever Be Legitimated by Referendum?
Dr. Paul R. Williams, Rebecca Grazier Professor of Law and International Relations at American University
The issue involves both legal and ethical dimensions. Even if procedurally lawful under domestic legislation, referenda in occupied territories raise profound normative concerns. Creating a referendum-based validation mechanism would institutionalise a pathway for legitimising aggression. The core question is not merely whether Ukraine can hold a referendum, but whether international law permits the consequences such a referendum would produce.
Dr. David Crane, Founding Chief Prosecutor of the UN Special Court for Sierra Leone and Founder of the Global Accountability Project
Any referendum conducted after aggression risks negating the crime of aggression by retroactively legitimising unlawful territorial claims. Even a procedurally valid vote may be interpreted as acknowledgement of Russia’s claims over Crimea or Donbas. Allowing referenda to validate conquest creates a dangerous global precedent — invade, hold territory, organise a vote, and claim legality. Ukraine is not the only audience; other potential aggressors are closely watching how international law responds. At the same time, a clearly framed referendum rejecting territorial concessions could place Ukraine in a strong bargaining position by demonstrating unified public resistance to ceding land.
Prof. Milena Sterio, Distinguished Professor of Law at Cleveland State University
The prohibition on the acquisition of territory by force is a jus cogens norm that cannot be derogated from through popular consent. Even genuine democratic approval cannot cure the illegality of territorial change resulting from aggression. Referenda held under coercive conditions undermine the non-recognition doctrine that protects Ukraine’s territorial integrity. International law draws a clear line: sovereignty cannot be voted away when force is the determining factor.
2. Does Democratic Consent Retain Legal Meaning When Given Under Duress?
Prof. Michael Kelly, The Senator Allen A. Sekt Endowed Chair in Law at Creighton University School of Law
Democratic sovereignty theory does not support territorial concessions made under military pressure. Consent obtained under invasion and occupation constitutes duress and invalidates any agreement to surrender territory. If territory were ever relinquished, international law would require full compensation, including land value, infrastructure, and subsurface resources, underscoring the impracticality of referendum-based territorial loss.
Article 2(4) of the UN Charter protects political independence and territorial integrity. Referenda combined with elections under current conditions would be nearly impossible to organise without fatally undermining legitimacy.
Ambassador Zorica Marić-Djordjević, former Head of the Permanent Mission of Montenegro to the World Trade Organization and Special Representative of Montenegro to the UN Human Rights Council
Democratic legitimacy cannot override the principle of non-recognition of unlawful acts. A Ukrainian referendum ratifying territorial change would validate aggression through democratic means. The optics alone would weaken Ukraine’s position and offer a model for other conflicts. Any referendum must avoid even implicit recognition of annexation outcomes.
At the same time, a referendum conducted by Ukraine under its own constitutional framework differs fundamentally from any vote organised under foreign occupation. In principle, Ukraine may consent, through a treaty freely negotiated between sovereign equals, to a boundary adjustment without breaching the duty of non-recognition (provided it does not validate the prior unlawful use of force). A referendum could serve as a channel of domestic democratic endorsement for such consent. However, such consent would not erase the illegality of the original aggression, nor extinguish state responsibility, criminal accountability, or claims to reparations. Those legal consequences remain governed by separate bodies of international law. The principal risk lies in perception: if territorial loss were seen as “ratified,” it could politically suggest that sustained aggression yields results and invite similar tactics elsewhere.
Greta Ramelli, Legal Officer, Program Manager at the Public International Law & Policy Group
Under current Ukrainian law, referenda cannot be held under martial law, creating a significant legal constraint. Any referendum would therefore be contingent on a ceasefire and linked to broader peace negotiations. Referenda should not be treated as standalone mechanisms but as part of a larger sequencing strategy.
Short-term peace achieved through territorial concessions may prove unsustainable in the long term.
3. What Precedents Would a Post-Aggression Referendum Set Beyond Ukraine?
Dr. Paul R. Williams, Rebecca Grazier Professor of Law and International Relations at American University
International law has spent decades delegitimising conquest, and referenda risk reversing that progress. A model of “invade, hold, vote, legitimise” would erode the prohibition on territorial acquisition by force. Institutionalising such a mechanism would provide a blueprint for laundering aggression. Ukraine’s democratic credentials do not exempt it from the constraints of international legal order.
Stephanie Gusching, Associate at White & Case, secondee at the Public International Law and Policy Group
Referenda conducted under duress risk legitimising similar tactics in other geopolitical contexts. Potential spillover effects include Taiwan, Greenland, and other contested territories. Ukraine’s decision will shape how democratic processes are perceived in future conflicts involving force.
Ambassador Jorge Lomonaco, former Ambassador of Mexico to the UN Human Rights Council, and to the Organization of American States
Historical precedents demonstrate how treaties and ratification processes can be shaped by power asymmetries. The nineteenth-century US–Mexico war illustrates how territorial transfer and ratification can produce enduring legal ambiguities. Formal validation through legal processes does not eliminate underlying concerns about coercion.
4. Can Referenda Be Used Strategically Without Ratifying Territorial Loss?
Ambassador Ylber Hysa, former diplomat of the Republic of Kosovo
Referenda may serve purposes other than territorial validation, including domestic cohesion and political legitimacy. The framing of the question is critical; it should be designed to nullify annexation claims rather than endorse territorial change. Used carefully, referenda can strengthen Ukraine’s internal unity during negotiations without conceding sovereignty.
Delayed or postponed referenda may preserve flexibility pending more favourable geopolitical developments. Interim agreements could include review clauses, though this may require accepting temporary concessions.
Ambassador Jorge Lomonaco, former Ambassador of Mexico to the UN Human Rights Council, and to the Organization of American States
Referenda can function tactically to gain time and political space rather than to resolve territorial questions. Strategic delay may allow Ukraine to consolidate international support and military capacity. Tactical considerations may at times prevail over strictly legal ones, but without crossing red lines on recognition.
Tyler Thompson, Co-Founder and Chief Negotiation Officer of Expeditionary, founding member of the U.S. State Department’s Negotiations Support Unit
The purpose of the referendum must be clearly defined. For Russia, an ideal outcome would validate annexation; for Ukraine, only an overwhelming rejection would be beneficial. A divided or ambiguous result would be strategically dangerous. Russia would exploit drafting ambiguities and legal grey zones in peace agreements.
5. How Should Voter Inclusion Be Addressed After Occupation and Mass Displacement?
Kateryna Kyrychenko, Head of Ukraine Legal Affairs and Program Management at the Public International Law and Policy Group
Ukrainians from occupied territories and displaced persons are arguably the most directly affected by any territorial outcome. Excluding these populations undermines substantive justice and democratic legitimacy. At the same time, differentiated voting schemes raise serious concerns under equal suffrage principles. Any referendum design must confront the realities of displacement, coercion, and forced transfer, while ensuring that voter inclusion criteria are clearly defined and legally defensible.
Tyler Thompson, Co-Founder and Chief Negotiation Officer of Expeditionary, founding member of the U.S. State Department’s Negotiations Support Unit
Population movements, forced displacement, and settlement of Russian nationals in occupied territories complicate voter eligibility. There is no clear precedent for weighted or differentiated voting in such contexts. Demographic manipulation risks distorting the electorate, and any ambiguous or divided outcome would be strategically harmful for Ukraine. Russia would likely exploit grey zones in interpretation to advance lawfare narratives.
Ambassador Joachim Rücker, former Special Representative of the UN Secretary-General and Head of the UN Mission in Kosovo
Referenda must comply with Ukraine’s constitutional framework. Narrow parliamentary or referendum majorities may be insufficient for decisions of existential national importance; national unity, not procedural minimalism, should guide territorial decisions. Historical precedents suggest populations in occupied territories should participate once conditions allow genuine and free expression. Comparative constitutional models, including post-war Germany, illustrate how decisions can be structured when parts of the population are temporarily unable to vote.
6. How Should a Referendum Question Be Designed — or Should It Be Deferred Entirely?
Ambassador Zorica Marić-Djordjević, former Head of the Permanent Mission of Montenegro to the World Trade Organization and Special Representative of Montenegro to the UN Human Rights Council
Referendum questions must be singular, clear, and legally precise. Bundling multiple issues risks misrepresenting voter intent. The Cyprus experience demonstrates how rushed or failed referenda can stigmatise rejection as opposition to peace and complicate future negotiation rounds. Venice Commission involvement and adherence to international electoral standards are essential. Explicit criteria for voter inclusion should be developed in advance.
Where a peace agreement combines territory, security guarantees, and status arrangements, simplicity and legal clarity are essential. OSCE and Venice Commission standards require neutral phrasing, prior review, and conditions for informed choice. Splitting a comprehensive agreement into multiple binding questions risks inconsistent outcomes and an ambiguous mandate, as illustrated by the 2004 Annan Plan referendum. A cautious model for Ukraine would involve a single principal question approving the agreement “as ratified by the Verkhovna Rada,” prior constitutional review of the wording, and full public dissemination of the agreement under balanced campaigning conditions. Such safeguards cannot eliminate political risk, but they would reduce legal ambiguity and strengthen procedural legitimacy.
Ambassador Ylber Hysa, former diplomat of the Republic of Kosovo
Interim arrangements may include review clauses without resolving sovereignty questions immediately. Postponed referenda may offer a safer path than premature votes under pressure. Buying time may be preferable to allowing Russia to dictate the pace. The political costs of delay must be weighed against the irreversible consequences of recognition, and interim arrangements should not prejudice long-term sovereignty claims. International monitoring presence is critical to legitimacy.
Dr. David Crane, Founding Chief Prosecutor of the UN Special Court for Sierra Leone and Founder of the Global Accountability Project
Ceasefires and deconfliction arrangements can provide a neutral negotiation platform without resolving territorial questions. In some circumstances, not holding a referendum is the most democratic and legally responsible choice. Democracy should not be forced to legitimize outcomes produced by force.
Conclusion
This roundtable underscores a central lesson: democratic mechanisms cannot be used to repair the legal damage caused by aggression. For Ukraine, restraint in deploying referenda may be as important as democratic participation itself.
The challenge is not whether Ukrainians should shape peace, but how to ensure that democratic tools strengthen, rather than erode, Ukraine’s sovereignty and the international legal order.