(To Giuseppe Paccione) On the last day of September, a ceremony was taking place in the heart of the Kremlin, in which the tenant Vladimir Putin it entered into treaties with the delegations of four entities established on Ukrainian territory, the so-called (farce) people's republics of Donetsk and Luhansk and the oblasts of Zaporizhzhia and Kherson. Clearly, to reach this event of annexation, referendums were held in the aforementioned territorial areas, accompanied by the presumed popular outcome for joining Russia.

Il modus operandi Russian to annex some Ukrainian territorial parts is characterized by completely illicit conduct, according to international law, (in primis), for the mere reason that the announcement of the annexation was preceded by the use of the coercive action of force or militarily by Moscow in contrast to the standard now become of jus cogens and almost imperative of the United Nations Charter which prohibits the appeal to jus ad bellum. The referendums did not correspond to any international standard and, therefore, should not be called real referendums. In addition, intense clashes are still ongoing in the region and, immediately after the ceremony in the heart of Putin's power, the Ukrainian army liberated the annexed city Lyman in the Donbass region.

Now, I think it is right to focus on the illegality of the Russian annexation of the territories of the Ukrainian state, although it seems quite clear that this annexation is outlined as illegitimate by international law itself. First of all, I believe it is necessary to brush up on the history of the illegality of annexations, starting with the well-known Briand-Kellog Pact, of 1928, in which it is highlighted with the signature that the States renounced the use of war as an instrument of national policy in their mutual relations. The then Union of Soviet Socialist Republics was not among the first signatory states of the aforementioned treaty, however it accepted the same principle in its relations with the western border states when it initiated and subsequently signed the Litvinov protocol in 1929. The USSR, in addition, started the generous Convention defining aggression which was signed in the capital of the United Kingdom in 1933 between Moscow and the neighboring states.

How not to mention in August 1939 the Non-aggression pact signed between Stalin and Hitler, with a Secret protocol which divided the countries of Central and Eastern Europe between the two revisionist powers in their respective spheres of influence. Then followed attacks based on the aforementioned Protocol, including one after which the USSR suffered expulsion, in 1939, from the League of Nations, due to the beginning of Soviet hostilities against Finland.

This outlined a problematic instrumental conjecture in Soviet approaches to international law of the time. The Kremlin solemnly promised one thing in treaties with countries opposite and then did the opposite when its understanding of realpolitik required it. Around the XNUMXs, the team of international scholars of the USSR clearly underlined that the Moscow government in its foreign policy had the right to do anything that could favor the interests of the proletarian class, for this reason the treaties were considered not sacrosanct or it was not necessary to adhere to the principle pacta sunt servanda. Formally, therefore, there was a common understanding between the capitalist states and the USSR on the question that aggression should not only be repudiated, but also condemned and prohibited. At the same time, the Moscow authorities pointed to something else with internal law and treaties as such, in the sense that they were considered, first and foremost, a means of foreign policy and an instrument of internal propaganda, rather than an autonomous set of rules that bind the Soviet foreign policy.

One of the factors that clarify the Kremlin's conduct in Ukraine since 2014 lies in the reason that in the XNUMXs and XNUMXs the USSR received a geopolitical restoration from the West as a consequence of its being indispensable in the endeavor of armed conflict. against the Axis Powers. During the process of Nuremberg, the attack by Nazi troops against the sovereignty and territorial integrity of Poland, which took place on September 1, 1939, was framed as a real crime against peace. However, the USSR continued to characterize their hostile military occupation in eastern Polish territory on September 17, 1939 onwards as liberation. The question is why Moscow has managed to get away with this approach. This could be the lesson that the Kremlin has learned, which has repercussions in our age and for Putin, after all, this is how international law works, written in black and white by the victors.

After the Second World War, it was decided to adopt the United Nations Charter to safeguard future generations from the scourge of war, in which a rule that has now become almost imperative and customary has been evoked (we refer to Article 2, paragraph 4) in which it is inferred that "Members must refrain in their international relations from the threat or by the use of force, whether against the territorial integrity or political independence of any state, or in any other way incompatible with the purposes of the United Nations ”, a provision which was violated by Moscow against Ukraine.

The illegality of annexation was a logical and inevitable corollary of the recourse and use of military coercive action, despite its prohibition evoked by international law. The United States already formulated the Stimson doctrine on the basis of which territorial changes produced by violations of the Briand-Kellog Pact would not have been recognized, i.e. the non-recognition of factual situations established in violation of international law, such as the nullity of the 1938 Munich Agreement or the annexation of the Baltic States by Moscow in 1940 et al. This approach subsequently became widely known and used as a doctrine of non-recognition, a corollary of the prohibition of aggression and the use of the military instrument in international law. Furthermore, taking into consideration the issue of the consequences of illegality, the rules of Draft articles on the responsibility of the state of the international law commission, adopted in 2001 by the UN General Assembly, introduce the concept of serious violations "By the State of an obligation deriving from a mandatory rule of general international law (Article 40)" and evokes that "no State will recognize as legitimate a situation created through a serious violation, nor will it assist or assist in maintaining this situation (Article 41 (2) ', the latter reflects customary international law.

However, the illegality of the announcement of Russia's annexation to the Kremlin becomes quite clear even if special treaties and agreements are taken into consideration. Ukrainian borders. In Budapest memorandum of 1994, whose signatories were the authorities of Kiev, Moscow, London and Washington, who had asserted to Ukraine their commitment to respect the sovereignty, independence and existing borders of the Ukrainian state, also affirming the independence Ukrainian politics. In January 2003, again, Moscow and Kiev concluded a border treaty in which the Russian Federation recognized the post-Soviet Ukrainian borders, including those of Crimea and Donbass, as territorial borders belonging to Ukraine. This treaty bears the signature of President Vladimir Putin and has been duly ratified by the respective parliaments of both countries. Thus, Moscow's illicit conduct of violating Ukrainian borders with military aggression means that the Russian approach consistently adopted until 2014 has been abandoned.

On the other hand, one cannot escape the impression that the Kremlin has, at least pro forma, tried to give a surprise that the incorporation or annexation of these territories can be considered completely legitimate, according to international law. In principle, the identical approach of theannexation of Crimea. First, the Moscow government recognized the independence of the respective territory and, later, swiftly annexed it. L'legal act, for example, issued by President Vladimir Putin, on September 29, 2022, which recognizes the sovereignty and independence of the state of Kherson Oblast refers to generally recognized principles and provisions of international law, especially the principle of equality of rights and self-determination of peoples. From the historical point of view, already with the illegal annexation of the three Baltic States, Estonian, Latvian and Lithuanian, the USSR has tried to create an appearance of elections and, therefore, a kind of democratic legitimacy, since all these acts have taken place. after the threat of coercive force and the elections were only farce. Even after 1945, Soviet dominance over Eastern Europe was, as a rule, determined by disguised elections, although Stalin assured Churchill and Roosevelt that a people's right to self-determination would be taken into consideration.

In Putin's speech on September 30, it can be seen that the Russian government views the war in Ukraine as a proxy conflict over the present and future of the world order.. The Kremlin tenant motivated the referendums following the line and compliance with the UN Charter with reference to Article 1, paragraph 2, which states that one of the purposes of the UN international organization is to "develop friendly relations between nations based on respect and the principle of equality of rights and self-determination of peoples ". Ergo, even if Russia risen from the ashes of the USSR has criticized the right of peoples to self-determine as a reason for secession, now it is formally referring to it, justifying Putin's announcement of annexations to the detriment of Ukraine. In the end, we see that the approach of the Russian Federation led by Putin is characterized by a kind of Schmittian decisionism.

In his last speech Uprising of September 30, the Russian president he even criticized Western civilization, arguing, inter alia, that it wants to decide who can exercise self-determination and who cannot, also adding that most states have agreed to become vassals of the United States and the neo-colonial West, but that his Russia will never succumb to such a humiliating role.

In conclusion, it must be added that the core of the international order, which rests on rules, can certainly only be the same international law which all states, including Russia itself, must respect and fulfill without se and without ma. At the beginning of the nineties of the last century and at the beginning of this new century, Russia had already accepted the respect of the borders with Ukraine. Although it is now trying to shift those neighboring demarcations through the through military coercive action and through unilateral annexations, this constitutes a challenge not only for Ukraine, a subject of international law, a sovereign state, but also for the entire structure of the international legal order as such.  

Russia's illegal annexation to Ukraine

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