Solutions for Ukraine without Ukraine? A peace agreement that provides for the cession of territories can only be reached with Ukraine's consent, Pierre Tilbörger, professor of international law at the Ruhr University in Bochum, emphasized to ARD. He says that it is legally unthinkable to make decisions over Ukraine's head. But is it permissible under international law for Ukraine itself to give up territory - as a price for ending Russia's heavy attacks and concluding a peace treaty?
In principle, a country can give up its own territory, says lawyer Tilbörger. But the approval of such a peace agreement must be a "legal and, above all, voluntary act of the Ukrainian government. And in no case should it be done under duress. In international law, a treaty is generally invalid if it is concluded with violence or under the threat of violence. "Because a state that uses violence should not receive contractual advantages in this way," the expert emphasized to the German public media.
That is, under Russia's massive military attacks at the moment, any concessions in territories are impossible, because there is no way to talk about voluntariness while Ukraine is exposed to bombing.
Invalid peace treaty?
A peace treaty between Ukraine and Russia, which also provides for the cession of territories, "would generally be considered invalid," Tilbörger pointed out. However, this does not mean that it is impossible to conclude any peace treaty.
The clauses of such a treaty, relating to the conclusion of a ceasefire and its guarantee, may in themselves be valid. After all, Russia has already made a "commitment to end the war". Therefore, the clauses providing for the concession of territories would not be valid.
At the moment, it is very difficult to say exactly how the situation in Ukraine must develop in order to be able to speak of a voluntary relinquishment of territories in terms of international law. And should there be a stable ceasefire, effective security guarantees from the US and Europe, or confidence-building measures by Moscow before that, asks ARD.
The question is also what will happen if peace is reached and the current front line is frozen. In this case, will Ukraine and the world community not recognize the Russian occupation de facto, although not legally? And will this not at some point lead to legal recognition?
“If Ukraine later actually accepts and implements a peace treaty that it was forced into, this could change its legal meaning“, notes Pierre Tilborger. However, it also depends on whether Ukraine voluntarily recognizes the new situation. For now, only one thing is certain: the intensive Russian air strikes against civilian targets do not create a situation in which the government of Ukrainian President Volodymyr Zelensky can freely make decisions.
With the consent of its own population
In addition to coercion, another aspect is added: in decisions about the territorial integrity of a state, the role of the affected population must also be taken into account, emphasizes Professor of International Law Tilborger. There are different opinions in international law, but some experts are of the opinion that the relinquishment of territories should always include the consent of the citizens concerned.
The Ukrainian Constitution also stipulates the need for citizens' approval when changing the state territory. It is likely that the relinquishment of territories will also require a change in the Constitution - since Article 133, paragraph 2 defines the state territory, which explicitly includes the Luhansk, Donetsk, Zaporizhia and Kherson regions.
In addition, from a political point of view, any peaceful solution must comply with the Ukrainian Constitution - since it must be acceptable to the people of Ukraine.
To whom do the occupied territories belong
Russia, for its part, annexed Crimea and the four regions of Luhansk, Donetsk, Zaporizhia and Kherson and inscribed them in its constitution as part of its territory, ARD recalls. The Kremlin refers, among other things, to the referendums on the accession of the occupied regions to the Russian Federation, held in 2014 in Crimea and in 2022 in eastern and southern Ukraine.
According to international law experts, however, these were sham referendums that did not comply with the rules of international law. The population was not able to vote freely, and during the “referendums“ in the territories occupied by Russia, there were “systemic violations of human rights“, as the European Court of Human Rights found in July of this year. The opinion that the referendums in Crimea and in eastern and southern Ukraine were illegal is also shared by the UN General Assembly.
Professor Tilborger reminds ARD that in 2003 Russia recognized Crimea as part of the neighboring state in an international treaty concluded with Ukraine. He also recalls the promise that the two countries made to each other in 1997. – to respect each other's territories.
The right to self-determination also has limits
Russia, for its part, constantly justifies its occupation policy by claiming that the people in the occupied areas do not want to live in Ukraine - that is, it refers to the right of peoples to self-determination. However, from the point of view of international law, this argument is untenable, ARD points out.
The right to self-determination allows peoples to freely determine their political, economic and cultural development, Tilbörger points out. However, a distinction must be made between internal and external right to self-determination.
Internal means that national minorities within the state enjoy special protection - which is expressed, for example, in their own administration or in the protection of culture and traditions. External self-determination, i.e. secession from the mother state, is only possible in exceptional cases, Tilbörger emphasizes. A people must be subjected to systematic oppression and suffer from serious human rights violations in order to have the right to secede.
The Russian argument in this regard is also unfounded - because neither in Crimea nor in eastern and southern Ukraine have there been such gross violations of the law by the Ukrainian government.
Author: Max Bauer ARD