Policy Planning White Paper: 

The Legality and Impact of the Russian Referenda in the Occupied Ukrainian Territories

Statement of Purpose

The purpose of this Policy Planning White Paper, prepared by the Public International Law & Policy Group and Ropes & Gray LLP, is to examine the legality and impact of the September 23-27 Russian referenda in the occupied Ukrainian territories.  Specifically, the paper addresses whether the referenda provide a valid basis for Russia’s intended annexation of the occupied territories. 

Executive Summary 

Russia is organizing referenda in the four regions (or oblasts) - Donetsk, Luhansk oblasts (that make up the Donbas Region), and occupied territories of Zaporizhzhia and Kherson oblasts [hereinafter referred to as “occupied territories”], which are all currently under Russian military control.  The question being put to a vote is whether the Occupied Territories wish to join the Russian Federation and become part of its territory.  Previously the Donetsk and Luhansk oblasts held referenda and declared themselves independent from Ukraine.  Russia, North Korea and Syria are the only States to recognize their claim of independence.

The purpose of the referenda is to validate Russia’s annexation of the Occupied Territories, as it is assumed that immediately after the referenda, Russia would ratify the incorporation of the Occupied Territories into the Russian Federation.  In turn, it is expected that Russia would then declare that any attempt by Ukraine to regain those territories would be regarded as an attack on Russian territory.

Despite the various legal rationale stated by Russia, the referenda and any subsequent incorporation of the Occupied Territories into the Russian Federation would be illegitimate and have no legal effect. 

The effort by Russia to annex the Occupied Territories via referendum violates Ukraine’s fundamental right to territorial integrity.  The planned annexation also violates numerous Russian and international guarantees safeguarding Ukraine’s territorial integrity.  While there are corollary rights of self-determination and remedial secession, Russia’s argument referencing Kosovo as justification and precedent do not apply to Ukraine for numerous reasons including that no systematic denial of rights existed within the Occupied Territories and Ukraine prior to Russia’s invasion.

About PILPG’s Policy Planning Initiative

PILPG’s Policy Planning Initiative supports the development of long term, strategic policy planning that is crucial to international accountability, global conflict resolution, and the establishment of international peace.  The Initiative provides timely and accurate policy planning analysis and work product on pressing and future policy conundrums by leveraging PILPG’s deep network of talent within the international legal and policy communities and experience with its pro bono clients globally. PILPG Policy Planning focuses on advising policymakers, policy shapers, and engaged stakeholders on pressing issues within the arenas of international law, war crimes prosecution, and conflict resolution efforts. This includes identifying and addressing gaps within existing policies, anticipating key conundrums and questions that will riddle future policy decisions, applying lessons learned from comparative state practice, and proactively producing and sharing work product to inform such policies and avoid crisis decision making.