Russia’s annexations in Ukraine are a legal and strategic mess

“wHERE DOES a Motherland Begin?”, the patriotic theme song of a Soviet-era film series glorifying the KGB, is among Vladimir Putin’s favourite tunes. In 2010 he played it clumsily on the piano at a benefits concert, and it enjoyed a bit of a revival in 2014 around Russia’s seizure of Crimea in Ukraine. This week the song acquired an ironic subtext. With the Duma, Russia’s parliament, having formally annexed occupied areas in eastern and southern Ukraine, the country’s government is no longer sure just where the motherland begins.

Officially Russia claims to have incorporated the provinces of Donetsk, Luhansk, Zaporizhia and Kherson. But of the four, only Luhansk is under near-complete Russian control. The annexations are supposedly justified by fake referendums which Russia made a show of holding on September 23th-27th, but it cannot even pretend to have consulted populations in areas it did not administer. Ukraine’s army is advancing rapidly in several areas, and the frontlines are fluid. On October 3rd, as the Duma was preparing to vote, Dmitry Peskov, the Russian government spokesman, told reporters he could not say exactly which bits of Kherson and Zaporizhia were now part of Russia: “We will continue to consult with the local populations; that will depend on their desires.”

This has created confusion. “For the first time since I don’t know what century, Russia doesn’t have recognised borders on its western side,” says Arkady Moshes, a Russian academic at the Finnish Institute of International Affairs. “If we think about Ukraine crossing into some areas but not into others, where do we draw the line?” Ukraine has been instructed by NATO countries not to use Western-supplied weapons to attack Russian territory, but Russia now considers large areas of Ukraine to be Russian territory as well.

NATO allies reject the annexations. But coupled with Vladimir Putin’s repeated vows to use nuclear weapons to defend the homeland, the annexations were intended to extend Russia’s nuclear umbrella to occupied territory. Yet even as they took place, Ukrainian forces were advancing into regions Russia now claims as native ground. If anything, this has reduced the credibility of Russia’s nuclear threats. But rendering Russia’s red lines vague also makes the (slight) possibility of an accidental nuclear exchange more likely.

The annexations have ended any hopes Western countries may have harboured for a ceasefire and negotiations any time soon. Volodymyr Zelensky, Ukraine’s president, says he will negotiate only with Mr Putin’s successor. Officially, Ukraine’s Western allies support its ambitions to reclaim all the territories Russia has seized from it since 2014. But unofficially, some countries drew a distinction between areas Russia occupied since it invaded on February 24th, and those held before then by the self-proclaimed Russian-backed “republics” in Donetsk (DNR) and Luhansk (LNR). Crimea is often placed in another category still. Many countries that support Ukraine’s efforts to beat back Russia’s current invasion have been queasy about signing on to its ambition to retake the peninsula.

“There was a split in the EU between countries following the American-British line that Ukraine must simply win, and those following the Paris-Berlin line that it was important not to humiliate Russia and that the war would end in negotiations,” says Bob Deen of the Clingendael Institute, a Dutch think-tank. Many quietly assumed that Ukraine was unlikely to regain Crimea militarily, and might ultimately accept its annexation by Russia as part of a peace deal. Even America sometimes signalled that it treated Crimea differently. When Ukraine bombed a Russian airbase on the peninsula in August, the Pentagon noted that none of its weapons had been used in the attack.

Now that all of the occupied territories in Ukraine have been placed by Russia on the same footing as Crimea, such a deal is even harder to imagine. “Up until now, Crimea was something else,” says Gustav Gressel of the European Council on Foreign Relations, another think-tank. “Even if Ukrainians would never say this publicly, they were aware that in the West and in the Russian perception there was a difference, and maybe one would have to conclude the war without retaking it.” The annexations, he says, “buried that”.

According to international law, all of Russia’s annexations are equally illegitimate. In territorial disputes at the International Court of Justice (ICJ), the most important justifications claimed by countries revolve around existing treaties, effective control over territory or the doctrine of uti possidetis, which holds that old administrative boundaries should become borders when territories achieve independence. Ukraine’s internationally recognised border with Russia follows the boundary that existed between the Ukrainian and Russian republics when both were members of the Soviet Union, before its collapse in 1991. The countries promised to respect those boundaries in a friendship treaty in 1997, and ratified a clear border treaty in 2003.

Russia has justified its land grabs in Crimea and eastern Ukraine with the precedent of NATO’s intervention in Kosovo in 1999, and that country’s declaration of independence in 2008. But the ICJ ruled Kosovo’s declaration of independence legitimate in part because it was made by a freely elected legislature not subject to military threats. (Many countries, including five EU members, still do not recognise it.) In Crimea, the so-called independence referendum took place under the guns of occupying troops, as did the Crimean parliament’s subsequent vote to join Russia. The sham referendums in September were even more nakedly fraudulent: the 99% “yes” vote in Donetsk made it clear that Russian authorities had simply made up the results.

Only a few countries have recognised the annexation of Crimea, mainly long-standing Russian clients such as Nicaragua and Syria. Yet from 2014 to 2022 the West’s reaction was limited to relatively modest sanctions, in part because some governments quietly gave a measure of credence to Russia’s claims. Privately, European diplomats often noted that Crimea, which enjoyed autonomous status within Ukraine, had a long history of Russian rule and a mainly ethnic-Russian population. “Many of them thought that even if the referendum had been free and fair, most people would have voted to join Russia,” says Mr Deen, who at the time was the Crimea advisor for the OSCE, a European security monitoring group.

Such views could come back to the fore if the war in Ukraine were to grind to a stalemate, leaving Crimea behind Russian lines and opening the possibility of a ceasefire. “The ideal outcome from Berlin’s perspective would be if Russia were pushed back [to] the lines of February 24th, leading to some kind of talks,” says Janis Kluge of the German Institute for International and Security Affairs, a think-tank.

But at the moment, Mr Kluge adds, all that matters is how the war unfolds on the ground. If the fighting goes so badly for Russia that Crimea might fall, “Putin will probably not be around any more.” On October 4th Ukraine’s forces continued their rapid southward advance in Kherson, as Russian lines appeared to collapse in places. Ukraine’s goal of reconquering all of its lost territory no longer looks so implausible. ■

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