Ukraine Symposium – Illegality of Russia’s Annexations in Ukraine

On 30 September 2022, a ceremony took place in Moscow’s Kremlin in which Vladimir Putin, President of the Russian Federation, signed “treaties” with representatives of four entities formed in the territory of Ukraine: the so-called People’s Republics of Donetsk and Luhansk and the oblasts of Zaporizhzhia and Kherson. Preceding this ceremony events took place that Moscow portrayed as referendums in the above-mentioned territories; with the claimed result of popular support in these Ukrainian territories for joining Russia.

The Russian annexation of Ukrainian territory has already widely and rightly been characterized as illegal under international law – illegal first of all because the announcement of annexation was preceded by Russia’s use of military force in contradiction with the UN Charter, a jus cogens norm in international law. The “referendums” did not correspond to any international standards and should therefore not be called referendums in the first place. Moreover, intense battles are ongoing in the region and already after the ceremony in the Kremlin, Ukrainian forces liberated the “annexed” city of Lyman in Donbas. Even when annexations as unilateral acts were in principle possible according to international law, they were considered problematic when a war was still ongoing.

The aim of this blog post is first to shed further light on the illegality of the Russian annexation of Ukrainian territories. Its second aim is to interpret further Russia’s current behavior and rhetoric in the context of international law. As it is so obvious that Russia’s annexation of Ukrainian territories can only be characterized as illegal under international law, what is the Kremlin actually up to?

Annexations in Modern Legal History

First, a little bit of history on the illegality of annexations is due. In 1928, when signing the Kellogg-Briand Pact, States renounced recourse to war as an instrument of national policy in their relations with one another. The Soviet Union was not among the initial signatory States of this treaty, but it accepted the same principle in its relations with its Western border States when it initiated and signed the so-called Litvinov Protocol in 1929. Moreover, the Soviet Union initiated the generous Convention for the Definition of Aggression which was signed in London in 1933, between the Soviet Union and its border states. However, on 23 August 1939 the Soviet Union concluded a non-aggression pact with Nazi Germany, with a secret protocol dividing countries of East Central Europe between the two revisionist powers in their respective “spheres of influence.” Aggressions very soon followed based on this secret protocol, including one after which the Soviet Union was expelled from the League of Nations in 1939 – the Soviet war against Finland.

This revealed a problematic instrumental feature in Soviet approaches to international law at the time. Moscow solemnly promised one thing in treaties with its neighbors and then did the opposite when its understanding of Realpolitik demanded it. In the 1930s, Soviet international lawyers such as Pashukanis wrote openly that Moscow in its foreign policy was entitled to do anything which would advance the class interests of the proletariat; in this sense past treaties were not sacrosanct. Thus, formally there was a common understanding between the “capitalist countries” and the Soviet Union that aggression was to be condemned and prohibited. At the same time, the Soviet Union meant something else with international law and treaties as such. They were first and foremost a means of foreign policy and a tool of national propaganda, not an autonomous set of rules constraining Soviet foreign policy.

One of the factors explaining Moscow’s behavior in Ukraine since 2014 is that in 1944 and 1945, the Soviet Union received a geopolitical reset from the West as a consequence of being indispensable in the war effort against the Axis powers. At Nuremberg, Germany’s attack against Poland on 1 September 1939 was characterized as a crime against peace. But the Soviets continued to characterize their military invasion in Eastern Poland from 17 September 1939 onwards as “liberation.” The problem is that to an extent, the Soviet Union got away with this approach. This is possibly the lesson learned in Moscow, which has repercussions in our times and for Putin: at the end of the day, this is how international law works, it is written by the winners. All it takes is to belong to the winners, to become one.

Nevertheless, in 1945, the United Nations Charter was adopted, Article 2, paragraph 4 of which famously stipulates: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.” It is in the sense of Article 2, paragraph 4 of the UN Charter that Russia’s use of force against Ukraine has been blatantly illegal.

Illegality of annexations has been a logical and inevitable corollary to the use of military force, notwithstanding its prohibition under international law. Already in 1932, the United States formulated the so-called Stimson doctrine based on which territorial changes produced by violations of the Kellogg-Briand Pact, such as at the time in Manchukuo, would not be recognized. Later, this approach became widely known and used as the non-recognition doctrine; a corollary of the prohibition of aggression and use of force in international law. Furthermore, in terms of consequences of illegality, the International Law Commission’s Articles on State Responsibility (Responsibility of States for Internationally Wrongful Acts), endorsed by the UN General Assembly in 2001, introduce the concept of “serious breaches of international law” (Art. 40) and foresee in Article 41, paragraph 2: “No State shall recognize as lawful a situation created by a serious breach, nor render aid or assistance in maintaining that situation.”

Article 41 reflects general international law. But the illegality of Russia’s announcement of annexation in Ukraine also becomes evident when taking into account specific treaties and agreements regarding the borders of Ukraine. In the Budapest Memorandum of 1994 between Ukraine, Russia, the United Kingdom and the United States, the signatory States reaffirmed to Ukraine their commitment “to respect the independence and sovereignty and the existing borders of Ukraine” and reaffirmed “their obligation to refrain from the threat or use of force against the territorial integrity and political independence of Ukraine.” Moreover, on 28 January 2003, Russia and Ukraine concluded in Kyiv a border treaty in which Russia recognized the post-Soviet borders of Ukraine, i.e. including Crimea and Donbas, as Ukrainian territories. The treaty carries the signature of President Putin and was duly ratified by both States. Thus, by challenging Ukraine’s borders through military force, the Russian government has abandoned its approach taken consistently until 2014.

Russian Legal Manipulations

Nevertheless, one cannot escape the impression that the Russian government has, at least pro forma, tried to create an appearance that the incorporation of the above-mentioned territories could be considered as legal under international law. In principle, the same approach as with the annexation of Crimea in 2014 has been followed. First, Russia recognized the “independence” of the respective territory and then quickly annexed it. For example, the legal act (ukaz) of the Russian President of 29 September 2022 which recognized “state sovereignty and independence” of Kherson oblast refers to the ”generally recognized principles and norms of international law,” especially the ”principle of equal rights and self-determination of peoples.” Historically, already with the illegal annexation of the three Baltic States of Estonia, Latvia, and Lithuania, the Soviet Union tried to create an appearance of elections and thus a sort of democratic legitimacy, although all these acts happened after the threat of force and the elections were sham elections only. After 1945 too, Soviet dominance over Eastern Europe was, as a rule, established via sham elections as Stalin had promised to Roosevelt and Churchill that the people’s free will would be taken into account.

President Putin’s speech of 30 September 2022 further reveals that the Russian government sees the war in Ukraine as nothing less than a proxy conflict regarding the present and future of the world order. Putin justified the referendums based on Article 1, paragraph 2 of the UN Charter which stipulates that one of the purposes of the UN is to “develop friendly nations among nations based on respect for the principle of equal rights and self-determination of peoples.” Thus, although post-1991 Russia criticized the right of peoples to self-determination as a ground for secession, it now formally refers to it justifying its announcement of annexations at the cost of Ukraine. In the end, Putin’s Russia’s approach is characterized by a Schmittian decisionism of sorts. International law is what great powers say it is and Russia wants to (again) be such a great power.

In his speech of 30 September 2022, Putin also offered a massive civilizational critique of the West, arguing inter aliathat the West wants to determine who can exercise self-determination and who cannot. He claimed that most countries have agreed to become vassals of the United States and the neocolonial West, but that Russia would never succumb to such a humiliating role. Putin also criticized the Western political concept of a “rules-based international order,” asking rhetorically and mockingly: “Where were these rules taken from? Who saw these rules, agreed to them?” Putin proudly declared, with the approval of his Russian political elite in the audience, that Russia is a proud country-civilization and will not live “under false rules.” Putin further accused that the Western model of governance is still neo-colonialist and based on a division of the world into civilized and uncivilized as in earlier times. One must think about what resonance such words can have in the non-Western world when for example China and India abstained on 30 September 2022, as the UN Security Council voted over the draft resolution condemning the Russian annexation. Russia, of course, vetoed the draft resolution, highlighting once again that Russia’s war against Ukraine and how third countries relate to it (or do not relate to it) has also become a crisis of the United Nations.

Conclusion

In the last decades, international lawyers have conceded that international law can be indeterminate, enabling both utopian and apologist arguments. Putin’s Russia has taken this to the extreme and demonstrates what can be done with the “language” of international law either in bad faith or at the time of resurgence of imperial ambitions. The core of the rules-based world order – a notion which the Russian government mocks – is, of course, international law. In 1991, 1994 and 2003, Russia already agreed to Ukraine’s post-Soviet borders. As it is now trying to change these borders by force and through unilateral annexations, it is presenting a challenge not only for Ukraine as a sovereign State but also for the international legal system as such.

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Lauri Mälksoo is Professor of International Law at the University of Tartu in Estonia. He is member of the Institut de Droit International and of the Council of Europe’s Venice Commission.

Photo credit: Council of Ministers of Crimea