Ukraine Peace Drafting Notes: Protecting Ukraine’s Right to Full Territorial Integrity

Protecting Ukraine’s Right to Full Territorial Integrity

In a situation where Ukraine does not control all of its territories and it is not possible to obtain recognition of its full territorial integrity by Russia, the challenge becomes how to preserve a legal claim to territorial integrity.

To achieve this, there are several aspects to consider:

• Intersection of Territorial Integrity with Other Conundrums:  Territorial integrity is deeply intertwined with security guarantees, reconstruction, compensation for occupation, international law, and historical narratives.  

• Pathways for Maintaining a Claim to Territorial Integrity:  Strategies such as ensuring no implicit territorial concessions in peace agreements, sustaining international non-recognition of occupation, leveraging international legal fora, shaping global narratives, securing reparations, and reintegrating occupied territories can be leveraged by Ukraine to maintain its claim to territorial integrity.

Intersection of the Territorial Integrity Question with Other Conundrums

Territorial integrity questions in the Russian war in Ukraine are connected to several other cross-cutting matters, including:

• Ensuring Security and Political Guarantees:  Ukraine’s experiences with broken agreements underscore the importance of securing robust, enforceable guarantees that can preserve Ukraine’s territorial integrity long-term.  As such, resolutions for Ukraine’s territorial integrity will need to be connected with durable security guarantees.  It is likely that security and political guarantees will be led by Europe.  However, possible guarantor states could involve actors beyond the EU and the US, such as China.  Given China’s influence on Russian policy, its inclusion as a guarantor could help stabilize any territorial arrangements.

• Post-Conflict Reconciliation:  Territorial negotiations and their outcomes could significantly affect national unity, particularly among ethnic and linguistic groups.  Any resolution must prioritize fostering cohesion within Ukraine.

• Impact on International Affairs:  The outcome of the Russian war in Ukraine regarding territorial integrity will have a profound impact on the international legal order and Ukraine’s relationship with its partners, including the European Union and NATO.  The response of other nations, particularly the EU and NATO members, to the status of Ukraine’s territory at the end of the war could influence future alliances or sanctions on Russia.

• Reconstruction:  Reconstruction is inextricably tied to territorial integrity, as international actors will likely be unconvinced to fund rebuilding efforts in areas that Russia controls.  Furthermore, any reconstruction efforts that do take place in occupied areas will need to be framed in a way that does not legitimize Russian claims to the territories.

• Compensation for Occupation:  Ukraine may consider incorporating the demand for economic compensation for occupation into its negotiation points.  Precedents from history, such as the compensation paid during the U.S.-Mexico War, demonstrate that reparations for territorial disputes are not without precedent.  Frozen Russian assets could serve as a source for such compensation, ensuring that any discussions around occupation are contingent upon adequate reparation for damages caused by illegal occupation.

Pathways for Maintaining Territorial Integrity

To ensure Ukraine’s territorial integrity is preserved despite ongoing occupation, the following options could be pursued:

• Peace Agreement:  If it is not possible to include a reaffirmation of pre-occupation borders in the peace agreement, it will be important that the peace agreement does not give away any territory, either implicitly or explicitly.  If a demarcation line is created, using terms such as “military demarcation line” or “line of control” will help underline that the parties do not intend to establish a final boundary.  Using phrases such as “[the line of control] / [demarcation line] shall be established without prejudice to legal rights” will further ensure that Ukraine does not negotiate away its right to territorial integrity. 

• Terms of Art in Negotiations:  It is important for Ukraine to insist on referring to Crimea and areas in Donbas as “occupied territories” or “Russian-controlled territories” rather than “disputed territories,” as the latter term undermines Ukraine’s sovereignty.  “Control” does not imply lawfulness and speaks about a de facto rather than de jure situation.  It is a term commonly used by the European Court of Human Rights when discussing such questions.  Other possible terms used by international organizations that could be employed are:

  • Provisionally Restricted Territories of Ukraine

  • Ukrainian Territories Under Military Imposition

  • Territories Under Exceptional Circumstances of Governance 

  • Regions Under Temporary Disruption of Sovereign Administration 

  • Regions Under Temporary Disruption of Sovereign Administration 

  • Provisional Zones of Interrupted Sovereignty

  • Territories Temporarily Outside Ukrainian Administration 

  • Jurisdictionally Compromised Territories

• International Reaffirmation:  Previous instances of territorial occupation in other states have proven that it is crucial to ensure that the international community continues not to recognize the temporary occupation.  Such non-recognition can be reaffirmed through diplomatic statements, United Nations resolutions, resolutions of regional organizations, and other diplomatic means.  

• Periodic and Perpetual Reaffirmation of Non-Recognition:  To maintain international relevance and increase its effectiveness, the non-recognition of an occupation can be periodically and perpetually reaffirmed across the above-mentioned fora. 

• Leveraging Legal Fora:  Ukraine can highlight Russian violations in international courts, such as the European Court of Human Rights.  In June 2024, the court issued judgments on Russia’s violations in Crimea, underscoring persecution of opposition leaders and other crimes.  Pending cases can further expose Russian actions and reinforce Ukraine’s legal narrative.

• Fostering synergy with Asia, Latin America, and Africa:  Ukraine can engage with states such as France, the UK, and Spain to foster relationships and synergies with states in Asia, Latin America, and Africa to counter the perception that this armed conflict is a proxy war between political blocs.  An active diplomatic campaign with leaders in Asia, Latin America, and Africa could counter Russia’s narrative that Ukraine lacks the legitimacy of a nation-state.  Emphasizing that Ukraine is a founding member of the UN and signed its charter can help shift narratives and garner broader support.  In this context, it might be advisable to “think from the end”, and go beyond the UN General Assembly work, by discussing “early drafts for a UN Security Council resolution” with UN Security Council members in these regions and other members, drawing from historical precedent resolutions.

• Securing the Historical Narrative:  Russia has tried to use historical narratives to manipulate Ukraine’s status as a sovereign state.  To counter such efforts, Ukraine can marshal a strong narrative that accurately describes Ukraine’s history.  Specifically, land claims are rooted in competing narratives, and Ukraine must position its narrative as credible and persuasive.  Specific to Crimea, Ukraine can leverage the rights of the Crimean Tatars as Indigenous Peoples under the Declaration on the Rights of Indigenous Peoples.  Indigenous rights add weight to Ukraine’s claims, as they confer self-determination and land rights protected under international law.

• Demilitarized Zone or International Administration:  A demilitarized zone or international administration could provide a temporary solution to restoration of Ukraine’s territorial integrity, coupled with a phased withdrawal of Russian troops and a clear schedule for demilitarization and full reintegration into Ukraine.

• Interim Autonomy Agreements Without Sovereignty Concessions:  Creating interim autonomy agreements for occupied territories may provide a temporary solution without ceding sovereignty.  Such interim agreements could allow for varying degrees of self-governance while maintaining Ukraine’s legal claims.

• Gradual Reintegration Efforts:  Ukraine can invest in long-term reintegration strategies for occupied territories, focusing on cultural, economic, and infrastructural ties to the central government. Such strategies can include programs to engage populations in occupied areas through measures such as humanitarian aid, cultural exchanges, and economic incentives and collaborating with the International Telecommunication Union (ITU) to maintain control of radio-magnetic frequencies, allowing Ukraine to assert communications control in occupied territories.  Ukraine can also engage displaced persons and refugees from occupied territories to maintain cultural and political ties to Ukraine and empower these communities to act as advocates for reintegration efforts.   This will strengthen Ukraine’s sovereignty claims over time.  Similar approaches were utilized during the Cold War East - West Germany relations.