ANNEXATION UNDER INTERNATIONAL LAW

Annexation is defined as the forcible and illegal acquisition of territory by one State at the expense of another. The prohibition of annexation, in part or in full of a territory, is accepted as a fundamental principle of customary international law, for which no exception or derogation is permitted. In addition to the use of force and annexation being illegal and absolutely prohibited under international law, the resulting consequences also violate other peremptory international norms, like the right to self-determination.

Article 2(4) of the UN Charter requires that all Member States “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.” Subsequently, the Declaration on Principles of International Law concerning Friendly Relations Co-operation among States, adopted unanimously by the UN General Assembly, declared that “the territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force”.

Moreover, in the case of Russia it inherently entails the commission of war crimes and crimes against humanity. Such crimes include but are not limited to: extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; the transfer, directly or indirectly, by the occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; persecution; and other inhumane acts.

A further confirmation of the validity as customary international law of the principle of the prohibition of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations may be found in the fact that it is frequently referred to in statements by State representatives as being not only a principle of customary international law but also a fundamental or cardinal principle of such law.”

In congruence, the International Law Commission (ILC), in the course of its work on the codification of the law of treaties, expressed the view that “the law of the [UN] Charter concerning the prohibition of the use of force in itself constitutes a conspicuous example of a rule in international law having the character of jus cogens [peremptory norm]”. The ILC’s Special Rapporteur also confirmed “the prohibition of aggression” and the “right to self-determination” as the most widely recognized examples of peremptory norms of general international law. Likewise, the Special Rapporteur of the ILC in ‘Consequences of peremptory norms of general international law (jus cogens) on unilateral acts’ addressed the unilateral use of force leading to annexation. He affirmed that unilateral acts that are in conflict with a peremptory norms, including use of force and annexation, are considered invalid and inadmissible. This is also in line with the ILC Guiding Principles applicable to unilateral declarations of States capable of creating legal obligations, with commentaries thereto, which stipulate in their principle eight that “a unilateral declaration which is in conflict with a peremptory norm of general international law is void.”

The gravity of the use of force and annexation is also reflected normatively in Article 8 bis of the Rome Statute of the International Criminal Court dealing with the “supreme international crime” of aggression. The Rome Statute defines aggression as an international crime which is “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations”, such as “the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof”.

Annexation also violates international humanitarian law. Given that a territory is occupied, the starting point is the application of the law of occupation and its universally recognized rules. Among these rules are that the occupation should be temporary and that sovereignty and title in an occupied territory are not vested in the occupying Power but rather remain with the population under occupation, even if there is de jure annexation. That is to say, the law of occupation specifically safeguards the occupied people from any attempts of annexation or claims of sovereignty over the territory.  IHL also prohibits the occupying Power from changing the law that applies in the occupied territory and the transfer of part of the population of the occupying Power to the occupied territory. This provision aims to prevent the occupying Power from altering the legal status, character, and demographic composition of the occupied territory against the interests of the population living there.

Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.”

Third State Responsibility          

Under international law of State responsibility for internationally wrongful conduct, grave violations of peremptory norms give rise to specific international legal consequences for the occupying Power, and the international community. Since Russia has repeatedly demonstrated its unwillingness to abide by its obligations vis-à-vis international legal order and the Ukrainian people, it is imperative that third State parties and international institutions uphold their obligations towards ensuring accountability and compliance with international law. While the occupying Power, is obliged to end its occupation and guarantee non-repetition and reparations, the international community is obliged to refrain from recognizing unlawful acts or lending assistance, in addition to the obligation to cooperate to bring an end to grave violations. Such obligations are stipulated under peremptory norms of international law, the UN Charter, all relevant Conventions, and customary international law. Respect by States of their obligations in this regard is a decisive factor in ensuring Russia’s compliance with its obligations as well as strengthening the efficacy of the international legal order.  

U.S. Crimea Declaration

Russia, through its 2014 invasion of Ukraine and its attempted annexation of Crimea, sought to undermine a bedrock international principle shared by democratic states: that no country can change the borders of another by force. The states of the world, including Russia, agreed to this principle in the United Nations Charter, pledging to refrain from the threat or use of force against the territorial integrity or political independence of any state. This fundamental principle – which was reaffirmed in the Helsinki Final Act – constitutes one of the foundations upon which our shared security and safety rests.

As we did in the Welles Declaration in 1940, the United States reaffirms as policy its refusal to recognize the Kremlin’s claims of sovereignty over territory seized by force in contravention of international law. In concert with allies, partners, and the international community, the United States rejects Russia’s attempted annexation of Crimea and pledges to maintain this policy until Ukraine’s territorial integrity is restored.

The United States calls on Russia to respect the principles to which it has long claimed to adhere and to end its occupation of Crimea. As democratic states seek to build a free, just, and prosperous world, we must uphold our commitment to the international principle of sovereign equality and respect the territorial integrity of other states. Through its actions, Russia has acted in a manner unworthy of a great nation and has chosen to isolate itself from the international community.

The illegality of the Annexation

The Russian leadership portrayed the annexation of Crimea as the long-awaited and rightful ‘return’ of the peninsula to its proper home. According to the Russian president, Vladimir Putin, ‘… in the minds of people, Crimea has always been and still is an inseparable part of Russia’. Although the referendum to legitimize Russia’s military intervention was in reality a token exercise conducted after the fact and under duress, Putin insisted: ‘We held a referendum in strict compliance with the UN charter and international legislation. For us, the case is closed.

What happened in February–March 2014 was a full-spectrum military operation executed on land and at sea and supplemented by sustained and targeted anti-Ukraine information operations. Finally, when a referendum was held – in effect at gunpoint – on 16 March 2014 to legitimize Russia’s takeover of Crimea, the Kremlin hijacked the principle of self-determination. Public opinion polling prior to Russia’s aggressive disinformation campaign spoke clearly in favour of Crimea remaining part of Ukraine. Yet ahead of the vote, those who supported remaining within Ukraine could not campaign freely. The ballot also excluded the option for Crimea to remain part of Ukraine as an autonomous republic, i.e. according to the constitution in force. Furthermore, the Kremlin substantially inflated voter turnout. While it said that 82 per cent of voters had cast their ballots, a member of Russia’s presidential Civil Society and Human Rights Council reported that turnout was likely to have totalled 30–50 per cent. Election fraud such as multiple voting was also reported.

The Venice Commission of the Council of Europe concluded that the referendum was illegal, as it violated the constitutions of both Ukraine and Crimea. The process also failed to meet European democratic standards or provide for meaningful negotiations between the stakeholders. The Organization for Security and Co-operation in Europe (OSCE) sent in no observers as it also found the referendum illegal. A UN General Assembly resolution underscored the invalidity of the 16 March vote.

The argument that Crimea rightfully belongs to Russia overlooks the grave violation of international law committed by Russia, while opening a proverbial Pandora’s box in terms of the revision of borders and possible conflicts in other parts of the world. It also endorses a Russian neo-imperial outlook and the logic of ‘spheres of influence’, both of which wrongfully imply that Russia has the right to act as it sees fit in relation to smaller and weaker neighbours, especially where there is a significant ethnic Russian or Russian-speaking population.

To adhere to such views is to lose vigilance over the considerable security risk that the current Russian regime poses for Europe. It is to sustain the delusion that Putin’s Russia could be an ally in countering rising Chinese power on the continent, or a constructive partner in counterterrorism. It also effectively excuses Russia’s key role in five other frozen conflicts in the post-Soviet region. Susceptibility to realpolitik-based arguments likely contributed to the country’s reinstatement as a member of the Parliamentary Assembly of the Council of Europe (PACE) in June 2019, even though Russia had failed to reverse any of the violations of international law that led to the suspension of its membership in the first place. This illustration of the ability of Russia to act with impunity in turn undermines the mission and credibility of PACE, and the notion of multilateralism as a whole.

Finally, accepting Russia’s Crimean land grab means undermining the prospects for global nuclear non-proliferation. In 1994 Ukraine renounced its nuclear status. In exchange, the Budapest Memorandum provided assurances from the nuclear powers, notably Russia, the US and the UK (France and China were co-signatories), in relation to Ukraine’s territorial integrity. These assurances were violated 20 years later. The failure of the international community to uphold the commitments it undertakes discredits the process.

The illegality of the annexation must not be doubted. The global community of nations should maintain the policy of non-recognition of Crimea as part of the Russian Federation, similar to the non-recognition of Soviet control over the Baltic states after the Second World War. It took the Baltic states 50 years to reclaim their statehoods. A similarly long wait is very much conceivable in the case of Crimea. Policymakers should refer to Russia as an occupying power in Crimea, a fact already recognized by the UN General Assembly, PACE, the International Criminal Court and other international organizations and states.