The American people have spoken: Donald Trump won the presidential election in a landslide, securing himself a second term in the White House that is due to begin on January 20th next year. The Republican nominee’s resounding victory comes with major implications for the war in Ukraine: Shortly after the election, the Wall Street Journal reported that a peace plan that would allow Russia to keep the Ukrainian territory it currently occupies was circulating within Trump’s transition team.
Regardless of its political feasibility, this plan raises important legal questions: Does international law allow aggressor states to walk away with territorial gains after starting a war? And would a peace agreement along these lines affect the obligations of third parties? By answering these and other questions, this post seeks to shed light on some aspects of the jus post bellum that might emerge in Ukraine under the incoming Trump administration.
Trump’s purported proposal for peace
The Trump team’s leaked plan (hereinafter: “the proposal”) would allow Russia to maintain control over the roughly 20% of Ukrainian territory it currently occupies, including Crimea. The proposal does not specify whether Ukraine would be required to formally cede sovereignty over these territories to Russia. In addition, a demilitarized zone patrolled by non-U.S. third party forces would be established, and Ukraine would need to abandon its bid for NATO membership for at least twenty years. In exchange, Ukraine would continue to receive military aid from the U.S. to prevent Russia from launching another invasion.
It is important to note that Trump’s transition team has not yet confirmed the authenticity of the proposal. However, its content would be in line with some of the statements Trump made during his campaign: Heavily criticizing the Biden administration’s approach to the conflict, he promised to end the war within 24 hours if elected. In addition, he reportedly stated that he would pressure Kyiv to make territorial concessions to Russia in order to facilitate a settlement. Trump’s actions since becoming President-elect have arguably been more balanced: In a phone call that the Kremlin denies took place, he reportedly warned Russian President Putin not to escalate the war any further. What the next administration’s Ukraine policy will look like therefore remains largely a matter of speculation.
Nevertheless, the prospect of a U.S.-backed peace plan that would require Ukraine to give up territory remains on the table for now. Further analysis is therefore warranted.
An unequal treaty?
The main legal obstacle to any peace agreement requiring Ukraine to make concessions to Russia is Article 52 of the Vienna Convention on the Law of Treaties (VCLT), which reads:
“A treaty is void if its conclusion has been procured by the threat or use of force in violation of the principles of international law embodied in the Charter of the United Nations.”
The provision makes clear that such treaties, referred to as “unequal” or “leonine” treaties during the VCLT’s drafting process (see YILC 1966, vol. II, pp. 17 et seq) are not merely voidable, but void ab initio. This principle is a relatively recent addition to the international law of treaties. It developed only after the end of World War II, following:
“The endorsement of the criminality of aggressive war in the Charters of the Allied Military Tribunals for the trial of the Axis war criminals, the clear-cut prohibition of the threat or use of force in Article 2(4) of the Charter of the United Nations, together with the practice of the United Nations itself” (Draft Articles on the Law of Treaties, 1966, Article 49, commentary 1).
Ukraine and Russia are both parties to the VCLT, as noted by the ICJ in its recent judgment on the merits in the ICSFT/CERD case, para. 46. Article 52 also reflects customary international law. Consequently, there is no doubt that the legal principle embodied in the provision is applicable between the two states.
The scant jurisprudence we have indicates that the threshold for proving that a treaty results from an illegal threat or use of force is a relatively high one (Fisheries Jurisdiction (UK v. Iceland), para. 24). In the case of Ukraine, however, even the most demanding standard of proof would easily be met: In March 2022, the U.N. General Assembly unequivocally denounced Russia’s “Special Military Operation” as an act of aggression contrary to Article 2(4) U.N. Charter. It is clear that Ukraine would never voluntarily allow Russia to take control of large swaths of its territory. Nor would it agree to give up its long-held aspirations to join NATO. Any agreement providing for such concessions would therefore fall under Article 52 VCLT, rendering it void. This result is unaffected by the fact that Russia’s initial plan was likely to conquer all of Ukraine, and that the implementation of the proposal could therefore be seen as the “lesser evil”: Even if an aggressor is only partially successful, the result remains the product of an illegal use of force (Schmalenbach in Dörr/Schmalenbach Commentary to the VCLT, 2nd edn. 2018, Article 52, para. 23).
Given that peace treaties are by definition preceded by the use of force, one might be inclined to think that Article 52 VCLT does not apply to them. However, there is nothing to back up such a teleological reduction: Acknowledging that the article represented a progressive development rather than a codification of pre-existing legal principles, the International Law Commission (ILC) stated that:
“The rule […] cannot therefore be properly understood as depriving of validity ab initio a peace treaty […] procured by coercion prior to the establishment of the modern law regarding the threat or use of force” (Draft Articles on the Law of Treaties, 1966, Article 49, commentary 7).
The Draft Articles thus envisaged that future peace treaties would indeed be void if they resulted from the threat or use of force. Simply put, the idea of a “victorious peace” dictated by those who prevail on the battlefield is not sanctioned by modern international law.
Consequences for third states?
Even if a peace treaty were to formally transfer sovereign title to Crimea and the occupied parts of the Luhansk, Donetsk, Kherson and Zaporizhzhia oblasts to Russia, this transfer would be void under Article 52 VCLT. Consequently, there would be no valid consent on the part of Ukraine for Russia to assume sovereignty over these territories. In the absence of such consent, Russia’s (illegal) annexation of the occupied Ukrainian territories could not subsequently become a (legal) cession.
As a consequence of the inability of an invalid peace treaty to “heal” the annexations, the obligations of other states in this regard would remain unchanged: Under the customary principle known as the Stimson Doctrine, which is now enshrined in Article 41(2) of the Articles on State Responsibility, third states must not recognize the effects of an annexation. The precise content of this duty was first spelled out by the ICJ in its 1971 Advisory Opinion on Namibia, and again this year in the Advisory Opinion on Israel’s policies in the Occupied Palestinian Territory. According to the Court, states are not only under an obligation to abstain from formally recognizing Russia’s sovereignty over the territories concerned; they also must prevent any trade and investment relations that would assist Russia in maintaining control over them (Occupied Palestinian Territory AO, para. 278). The EU already carries out this obligation by Council Regulations No. 692/2014 and No. 2022/263.
No way forward?
In summary: Any agreement that would require Ukraine to make concessions to Russia against its will cannot take the form of a legally binding treaty. Ukraine’s sovereignty is protected by Article 52 VCLT. With respect to the occupied territories, the customary duty not to recognize annexations provides an additional safeguard. The floated proposal could therefore only be implemented as a non-binding political agreement akin to the Joint Comprehensive Plan of Action (JCPOA), a.k.a. the “Iran nuclear deal”. Such an agreement would formally leave Ukraine’s sovereignty over the occupied territories untouched, thus leaving open the possibility of returning them to the control of the Ukrainian government eventually. The U.S. could join such a political agreement as a guarantor. In the meantime, the territories would remain subject to the law of belligerent occupation as enshrined in Articles 42 et seq. of the Hague Regulations and Articles 47 et seq. of the Fourth Geneva Convention.
A peace plan could also be enacted by the U.N. Security Council, which is not bound by Article 52 VCLT (Schmalenbach in Dörr/Schmalenbach Commentary to the VCLT, 2nd edn. 2018, Article 52, para. 39, 48-50). However, that would require the consent of all five permanent members of the Security Council, see Article 27(3) U.N. Charter. Not only the U.S. but also France and the UK have steadfastly supported Ukraine since the beginning of Russia’s full-scale invasion in 2022. Therefore, such a fundamental change in policy to the detriment of Ukraine seems rather unlikely – even with a Trump administration in the White House.
Treaty or No Treaty? – International Law and the Purported Trump Peace Proposal for Ukraine
Written by Philipp KehlThe American people have spoken: Donald Trump won the presidential election in a landslide, securing himself a second term in the White House that is due to begin on January 20th next year. The Republican nominee’s resounding victory comes with major implications for the war in Ukraine: Shortly after the election, the Wall Street Journal reported that a peace plan that would allow Russia to keep the Ukrainian territory it currently occupies was circulating within Trump’s transition team.
Regardless of its political feasibility, this plan raises important legal questions: Does international law allow aggressor states to walk away with territorial gains after starting a war? And would a peace agreement along these lines affect the obligations of third parties? By answering these and other questions, this post seeks to shed light on some aspects of the jus post bellum that might emerge in Ukraine under the incoming Trump administration.
Trump’s purported proposal for peace
The Trump team’s leaked plan (hereinafter: “the proposal”) would allow Russia to maintain control over the roughly 20% of Ukrainian territory it currently occupies, including Crimea. The proposal does not specify whether Ukraine would be required to formally cede sovereignty over these territories to Russia. In addition, a demilitarized zone patrolled by non-U.S. third party forces would be established, and Ukraine would need to abandon its bid for NATO membership for at least twenty years. In exchange, Ukraine would continue to receive military aid from the U.S. to prevent Russia from launching another invasion.
It is important to note that Trump’s transition team has not yet confirmed the authenticity of the proposal. However, its content would be in line with some of the statements Trump made during his campaign: Heavily criticizing the Biden administration’s approach to the conflict, he promised to end the war within 24 hours if elected. In addition, he reportedly stated that he would pressure Kyiv to make territorial concessions to Russia in order to facilitate a settlement. Trump’s actions since becoming President-elect have arguably been more balanced: In a phone call that the Kremlin denies took place, he reportedly warned Russian President Putin not to escalate the war any further. What the next administration’s Ukraine policy will look like therefore remains largely a matter of speculation.
Nevertheless, the prospect of a U.S.-backed peace plan that would require Ukraine to give up territory remains on the table for now. Further analysis is therefore warranted.
An unequal treaty?
The main legal obstacle to any peace agreement requiring Ukraine to make concessions to Russia is Article 52 of the Vienna Convention on the Law of Treaties (VCLT), which reads:
The provision makes clear that such treaties, referred to as “unequal” or “leonine” treaties during the VCLT’s drafting process (see YILC 1966, vol. II, pp. 17 et seq) are not merely voidable, but void ab initio. This principle is a relatively recent addition to the international law of treaties. It developed only after the end of World War II, following:
Ukraine and Russia are both parties to the VCLT, as noted by the ICJ in its recent judgment on the merits in the ICSFT/CERD case, para. 46. Article 52 also reflects customary international law. Consequently, there is no doubt that the legal principle embodied in the provision is applicable between the two states.
The scant jurisprudence we have indicates that the threshold for proving that a treaty results from an illegal threat or use of force is a relatively high one (Fisheries Jurisdiction (UK v. Iceland), para. 24). In the case of Ukraine, however, even the most demanding standard of proof would easily be met: In March 2022, the U.N. General Assembly unequivocally denounced Russia’s “Special Military Operation” as an act of aggression contrary to Article 2(4) U.N. Charter. It is clear that Ukraine would never voluntarily allow Russia to take control of large swaths of its territory. Nor would it agree to give up its long-held aspirations to join NATO. Any agreement providing for such concessions would therefore fall under Article 52 VCLT, rendering it void. This result is unaffected by the fact that Russia’s initial plan was likely to conquer all of Ukraine, and that the implementation of the proposal could therefore be seen as the “lesser evil”: Even if an aggressor is only partially successful, the result remains the product of an illegal use of force (Schmalenbach in Dörr/Schmalenbach Commentary to the VCLT, 2nd edn. 2018, Article 52, para. 23).
Given that peace treaties are by definition preceded by the use of force, one might be inclined to think that Article 52 VCLT does not apply to them. However, there is nothing to back up such a teleological reduction: Acknowledging that the article represented a progressive development rather than a codification of pre-existing legal principles, the International Law Commission (ILC) stated that:
The Draft Articles thus envisaged that future peace treaties would indeed be void if they resulted from the threat or use of force. Simply put, the idea of a “victorious peace” dictated by those who prevail on the battlefield is not sanctioned by modern international law.
Consequences for third states?
Even if a peace treaty were to formally transfer sovereign title to Crimea and the occupied parts of the Luhansk, Donetsk, Kherson and Zaporizhzhia oblasts to Russia, this transfer would be void under Article 52 VCLT. Consequently, there would be no valid consent on the part of Ukraine for Russia to assume sovereignty over these territories. In the absence of such consent, Russia’s (illegal) annexation of the occupied Ukrainian territories could not subsequently become a (legal) cession.
As a consequence of the inability of an invalid peace treaty to “heal” the annexations, the obligations of other states in this regard would remain unchanged: Under the customary principle known as the Stimson Doctrine, which is now enshrined in Article 41(2) of the Articles on State Responsibility, third states must not recognize the effects of an annexation. The precise content of this duty was first spelled out by the ICJ in its 1971 Advisory Opinion on Namibia, and again this year in the Advisory Opinion on Israel’s policies in the Occupied Palestinian Territory. According to the Court, states are not only under an obligation to abstain from formally recognizing Russia’s sovereignty over the territories concerned; they also must prevent any trade and investment relations that would assist Russia in maintaining control over them (Occupied Palestinian Territory AO, para. 278). The EU already carries out this obligation by Council Regulations No. 692/2014 and No. 2022/263.
No way forward?
In summary: Any agreement that would require Ukraine to make concessions to Russia against its will cannot take the form of a legally binding treaty. Ukraine’s sovereignty is protected by Article 52 VCLT. With respect to the occupied territories, the customary duty not to recognize annexations provides an additional safeguard. The floated proposal could therefore only be implemented as a non-binding political agreement akin to the Joint Comprehensive Plan of Action (JCPOA), a.k.a. the “Iran nuclear deal”. Such an agreement would formally leave Ukraine’s sovereignty over the occupied territories untouched, thus leaving open the possibility of returning them to the control of the Ukrainian government eventually. The U.S. could join such a political agreement as a guarantor. In the meantime, the territories would remain subject to the law of belligerent occupation as enshrined in Articles 42 et seq. of the Hague Regulations and Articles 47 et seq. of the Fourth Geneva Convention.
A peace plan could also be enacted by the U.N. Security Council, which is not bound by Article 52 VCLT (Schmalenbach in Dörr/Schmalenbach Commentary to the VCLT, 2nd edn. 2018, Article 52, para. 39, 48-50). However, that would require the consent of all five permanent members of the Security Council, see Article 27(3) U.N. Charter. Not only the U.S. but also France and the UK have steadfastly supported Ukraine since the beginning of Russia’s full-scale invasion in 2022. Therefore, such a fundamental change in policy to the detriment of Ukraine seems rather unlikely – even with a Trump administration in the White House.
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Ali Bagheri says
December 2, 2024
Dear Philipp
Thank you for your interesting post.
My question is regarding the last part of your post, in which you briefly talked about the possibility of making such a peace plan binding through a SC resolution.
Considering that this kind of plan would be in contradiction with art 41(2) of ARSIWA and 2(2) of the UN charter can UN SC pass such a resolution and is it binding for the member state in light of the recent development in International law (like Kadi Case and the ILC work on jus cogen)?
Abdulkadir Nacar says
December 2, 2024
Article 52 of the Vienna Convention on the Law of Treaties (VCLT) does not address the protection of territorial integrity but focuses on the use of coercive force by one state to compel another to reflect its will in an agreement. To what extent can a broad interpretation of Article 52—suggesting that political borders cannot be renegotiated in any way after a war—contribute to a realistic peace process? Should the United States’ threat to cut military aid to Ukraine also be considered within the scope of Article 52?
As I understand it, Article 52 requires examining not the conditions that brought Ukraine to the negotiating table during the war but whether it signed the agreement of its own free will. For instance, consider the Munich Agreement of 1938.
Matthias Zechariah says
December 2, 2024
This is an extremely useful piece. Thank you very much.
Juan Antonio Yanez-Barnuevo Garcia says
December 2, 2024
Given the fact that the UN General Assembly, by a very large majority, has formally termed the Russian invasion of Ukraine a case of aggression, one would tend to think that the Assembly, as the plenary principal organ representing the totality of the UN membership, should also have a say on a matter of this importance that affects not just Ukraine but also the wider international community in many ways.
Andrew Serdy says
December 3, 2024
Further to Abdulkadir's last paragraph, although I find this idea unpalatable it is perhaps quite widespread given that very little mention has been made of VCLT Article 52 in all the reams of commentary since the full-scale invasion of 2022 (so thanks for the salutary reminder, Philipp). A query, though: if Art 52 would indeed invalidate ab initio a treaty ceding territory but nothing more after an armed conflict, would that still hold true if the bargain under the treaty is not all one way, e.g. Russia undertakes in return not to object to Ukraine, minus some of its 2013 territory, becoming a member of NATO? Or is that irrelevant because Russia's blessing was not needed anyway, as forcefully underlined in its talks with NATO in the months before February 2022? It is striking that Russia was negotiating not with Ukraine but with NATO, as though its quarrel were just as much if not more with NATO as with Ukraine itself.
Philipp K. says
December 10, 2024
Dear all,
thank you so much for commenting!
I would like to reply to Ali's question first. First of all: That is a VERY interesting point you are raising, and it comes with some intricate legal issues. I think to answer it, we have to deal with two separate sub-questions.
1.) Which legal rules are governing the actions of the UNSC?
We know that the prohibition of recognizing annexations (aka the Stimson Doctrine), as enshrined in Art. 41(2)ARSIWA, addresses states. The UNSC could only violate the doctrine if it was binding on international organizations as well.
Article 42(2) of the DARIO strongly indicates that the Simson Doctrine also applies to IOs. I took a quick look at the commentaries to that article, and it seems like there was broad support among states for extending the prohibition of recognizing the effects of grave breaches of international law to IOs. Also, the commentaries specifically refer to the non-recognition of annexations.
However, I don't think that this is already the end of it. There seems to be broad agreement that, given its peculiar function within the contemporary international legal system, the UNSC enjoys sweeping powers to settle disuptes as it sees fit. As a consequence, it is only constrained by very few legal rules when doing so. To my knowledge, the only thing most people can agree on in this regard is that not even the UNSC can override jus cogens rules of international law. That is also what the ECJ indictaed in the Kadi Case you mentioned. Therefore, a lot depends on the question whether the prohibition of recognizing annexations enjoys the rank of a jus cogens rule of international law.
Ingrid Brunk and Monica Hakimi have convincingly argued that the prohibition of annexations itself is a jus cogens rule: https://www.ejiltalk.org/is-the-prohibition-of-forcible-annexations-of-territory-a-jus-cogens-norm/
While this may indicate that the prohibition to recognize annexations (which is a distinct rule) is a jus cogens rule as well, it does not definitively answer this question.
2.) Would a Resolution granting Russia sovereignty over the annexed territories violate the prohibition of recognizing annexations?
My understanding of the non-recognition principle with respect to annexations is that it does not apply if the state that has acquired the territory in question by force holds a valid title to it. In such cases, the acquisition does not constitute an annexation. One could argue that the UNSC's competence under Art. 41 UN Charter gives the Council the power to create titles to territory if it does so with a view to settling disputes. This could be seen as an anticipated cession on the part of the state losing sovereignty over the territory, because, by joining the UN and accepting the UNSC's competence under Art. 41, all UN member states consented to such a scenario. This would, of course, presume that the Resoltion respects the boundaries of Art. 41 and is not an ultra vires act.
If the UNSC could vest title over the annexed territories in Russia and thereby "transform" the annexation into a cession (of sorts), the prohibition to recognize annexations would not come into play in the first place. Simply speaking, the Resolution would not recognize an illegal situation, but rather create a legal situation.
We see: This is an extremely complicated issue surrounded by many uncertainties. I think much more research would be needed to find a satisfying answer to these questions.
Philipp K. says
December 10, 2024
Next addressing the points raised by Abdulkadir and Andrew:
My understanding of Article 52 VCLT is that it protects the free will and thereby the sovereignty of states against forcible coercion. A closer look at the text of the article reveals that it mirrors Article 2(4) UN Charter by referring to "the threat OR use of force". I think that this language very clearly indicates that these are alternative conditions, rather than cumulative ones. Therefore, even if Ukraine could decide whether to cede sovereignty over the annexed territories without having to fear further acts of Russian aggression, the fact that the whole situation leading up to this was created by the use of force would seem to be enough to trigger the application of Article 52 VCLT. In that case, there would be no THREAT to use force anymore, but because there already was a USE of force, Art. 52 applies nevertheless.
The fact that Art. 52 is strictly limited to coercion by forcible means also leads to the conclusion that it only applies in the relationship between Russia and Ukraine. Even if the US were to "coerce" Ukraine to agree to a deal by withholding military and financial assistance, that would not amount to a threat or use of force. Under the standard established by the ICJ in Nicaragua II, it does not even constiute an act of coercion for the purpose of the non-intervention principle.
Whether Article 52 also applies if the concessions made under a threat or use of force are counterbalanced by other, genuine concession on the part of the aggressor state, as indicated by Andrew, is a more delicate question. I think there would be a plausible cause to argue that Art. 52 does not apply if the aggressor state offers something that actually broadens the scope of possible decisions and actions of the victim state. That could be the case, for example, if the aggressor state were to cede some territory itself in exchange, or if it were to agree to ease its sovereignty in certain ways in order to provide for more security (for example by allowing for peacekeeping forces to be present on its own sovereign territory, or to establish a demilitarized zone).
In the case of Ukraine, however, Russia has not made any such offers. Even the Trump team's purported peace plan does no require Russia to do anything that it is not already legally required to do. And, as you correctly pointed out, Andrew, Ukraine does not have to ask Russia for permission to apply for NATO membership. Therefore, I do not think that such considerations have any role to play here.
Regarding Abdulkadir's question whether Article 52 VCLT could compromise a possible peace process: I think that this result is a necessary consequence of modern international law's resounding condemnation of wars of aggression and forcible acquisitions of territory. My question would be: If Article 52 does not apply in cases like the one at hand, what scope of application would even remain for the rule?
I would add that this does not mean that a peace process cannot take place. But any agreement including territorial and other concessions made as a result of the use of force (or procured by the threat of further use of force) cannot take the form of a legally binding treaty. The bottom line is: Dirty deals can still be made. But international law is no longer available to sanction them. Because aggressor states are not to be rewarded, it withholds its blessings - especially legal force - from the agreement so concluded.