"A decision made by Russia and the US over Ukraine's head is unthinkable from a legal point of view," say international law experts. Can Trump and Putin force Ukraine to give up territories?
Back in April, US President Donald Trump announced that they had a large degree of unanimity with Russia to reach a peace agreement. He then said that the agreement provided for Russia to retain the annexed Crimean peninsula, ARD recalls.
"A decision taken by Russia and the US over Ukraine is legally unthinkable, although politically it seems increasingly likely", believes Pierre Tilboerger, professor of international law at the University of Bochum. Without Ukraine's consent, there could be no peace agreement. Today's international law is based on the "sovereign equality of states". Two states cannot simply be left to conclude agreements at the expense of a third, the German public media quoted him as saying.
Tilboerger emphasizes that a deal to secede territories from Ukraine without its consent clearly violates the country's territorial sovereignty. In addition, such a treaty between Russia and the United States "would also contradict the prohibition of violence in its content, and therefore would also be in violation of international law."
The occupied territories belong to Ukraine
The Crimean peninsula and the four regions in which there is Russian occupation - Lugansk, Donetsk, Kherson and Zaporizhia - belong to Ukraine according to international law. The fact that Russia holds these regions or parts of them under control does not change anything in this regard.
In 2014 in Crimea and in 2022 in Eastern and Southern Ukraine, there were referendums on the accession of the occupied regions to Russia, ARD recalls. According to the international law expert, however, these referendums were not valid - as they must meet certain conditions in order to be recognized by international law.
"For example, there must be guarantees that voters expressed their opinion without coercion and without fear", says Tilborger. Which was definitely not the case either in 2014 in Crimea, or in the following two referendums in 2022 in the context of war and Russian occupation of the regions.
Russia commits serious violations in the occupied territories
Very recently - in July this year - the European Court of Human Rights in Strasbourg ruled that between 2014 and 2022 Russia had established a "system of violations" against human rights in the occupied regions. According to the decision, this includes indiscriminate military attacks, executions of civilians and Ukrainian soldiers, torture and persecution, but also "suppression of the Ukrainian language in schools". Therefore, the referendums held in these areas cannot be considered to be in accordance with international law, points out the ARD.
The UN General Assembly has repeatedly confirmed that the referendums in Crimea and in Eastern and Southern Ukraine were illegal. Accordingly, they could not change anything regarding the regions' belonging to Ukraine. Lawyer Tilborger also points out that in 2003 an agreement was concluded between Ukraine and Russia, in which Russia recognized Crimea as part of Ukraine. In 1997, the two countries pledged to respect each other's borders.
How far does the right of self-determination extend?
Russia has consistently maintained that the people of Crimea and the regions of eastern and southern Ukraine wanted to secede from Ukraine, and that this was supported by an important principle of international law - the right of peoples to self-determination. However, international law is very reserved on the question of whether the right of a people to self-determination also gives them the right to secede from their mother country through a referendum, explains Tilborger.
In principle, the right of peoples to self-determination allows them to freely determine their political, economic and cultural development. However, this principle must be balanced against another principle of international law, namely state sovereignty over their own territory. The two principles can come into conflict if a group wants to secede and the state is against it.
From the perspective of international law, a distinction must be made between "internal" and "external" self-determination, Tilborger told ARD. "Internal" self-determination means: Within the mother state, national minorities are given special protection, such as self-administration or protection of their culture and traditions.
"External" self-determination, i.e. secession from the mother state, is only possible in extreme circumstances. A people must be subjected to systematic oppression and suffer from serious human rights violations in order to secede. And in the case of Crimea or eastern and southern Ukraine, there have been no such serious human rights violations by the Ukrainian government.
Can Ukraine voluntarily give up the occupied territories?
What would happen then if Trump and Putin made a deal that provided for the separation of the occupied territories from Ukraine, and the Ukrainian government was forced to agree through gritted teeth? Would this price of peace be permissible from the point of view of international law? In principle, yes, Tilborger told the German public media. But agreement to such a peace agreement would have to be "a voluntary act of the Ukrainian government that does not contradict the law". It should not be achieved under coercion or threat of violence.
The international law expert believes that it is "very debatable what a forced or voluntary decision by the Ukrainian government could look like in the current situation". At the moment, it is difficult to say how things should develop in Ukraine in order to talk about a voluntary relinquishment of territories under international law. The intensive Russian airstrikes against civilian targets in recent months and the threats of the US government to stop military aid certainly do not speak of a situation in which the government of Ukrainian President Volodymyr Zelensky can act freely.
Tilborger also highlights another aspect: when deciding on the territorial integrity of a state, the role of the affected population must also be taken into account. International law presents different opinions on the issue - some say that when giving up territories, the people affected must also give their consent.
What does the Ukrainian constitution say?
If changes are to be made to the Ukrainian state territory, the country's constitution explicitly provides for a referendum in which all Ukrainians with the right to vote can participate.
It is likely that a change to the constitution will also be necessary if the regions occupied by Russia are separated, writes ARD. Since it defines the state territory of Ukraine, all four regions of Lugansk, Donetsk, Kherson and Zaporizhia are listed there. From the point of view of international law, the laws of Ukraine itself do not play a decisive role, but from a political point of view, Ukrainian constitutional law should be relevant to any peace agreement, concludes the German public media.