Sham Russian Referenda and Illegal Annexation of Ukrainian Sovereign Territory

The New York City Bar Association[1] unequivocally rejects and strongly condemns the illegitimate Russian referenda held in the Donetsk, Kherson, Luhansk, and Zaporizhzhia regions between September 23 and 27, as well as the subsequent illegal annexation of these Ukrainian territories by Russia on September 30. The referenda and annexation were conducted contrary to Russia’s obligations under the Charter of the United Nations, the Final Act of the Conference on Security and Co-Operation in Europe, and numerous other legal instruments to which both Russia and Ukraine are parties. The New York City Bar Association urges all members of the international community to reject these illegal acts, for third parties to cease support for Russia’s illegal conduct, and for Russia to immediately comply with its obligations under international law and as a founding member of the United Nations.[2]

Russia’s actions of annexing Ukrainian sovereign territory through the use of Kremlin-engineered referenda[3] violate basic tenets of international law, including international humanitarian law and the international law of occupation, which only compounds its previous flagrant violations of international law and the Charter of the United Nations.[4]

After committing the crime of aggression and violating Article 2(4) of the United Nations Charter by illegally annexing Crimea in 2014 and invading Ukraine without legal justification in 2022,[5] Russia became an occupying power in territories over which it exercises effective control. As an occupying power over sovereign Ukrainian territory, Russia has legal obligations under international law, including the Fourth Geneva Convention. Specifically, Article 47 of the Fourth Geneva Convention states:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, into the institutions or government of said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.[6]

Russia must maintain the status quo ante within the regions it occupies and may not justify the violation of the territorial integrity of Ukraine through referenda, particularly through referenda that are not freely held in accordance with international standards. All available evidence indicates that the referenda did not meet the international standards for free and fair elections.[7] Furthermore, even if the referenda were freely held, they could not be held in compliance with international law without the consent of the territorial state, Ukraine.[8] The illegal annexation of Ukrainian territory is an act of aggression committed by Russia against Ukraine, which constitutes an additional crime of aggression.

As a result, the unlawful referenda and purported annexation of Ukrainian territory by Russia lack validity and can have no impact on the legal status of these territories under international law. Russia remains an occupying power in these regions and Ukraine’s inherent right to self-defense under Article 51 of the Charter of the United Nations remains unchanged notwithstanding these sham referenda and the illegal annexation of Ukrainian territory.[9] The New York City Bar Association further rejects the assertions of Russian officials that Russia’s use of force in Ukraine may be justified  as self-defense[10] under Article 51 of the Charter of the United Nations because Ukraine did not commit or threaten to commit any armed attack against Russia or any other United Nations member state.

The New York City Bar Association is gravely concerned that the referenda and illegal annexation of Ukrainian territory will be used by Russia as a means to forcibly conscript residents of these regions to participate in Russia’s war of aggression and that they may be used as a justification for the use of tactical nuclear weapons during the prosecution of its illegal war against Ukraine. Either of these acts would blatantly violate the foundational principles of international law and numerous international treaties to which Russia is a party.

The New York City Bar Association calls on the international community to refuse to recognize the referenda and illegal annexation of the Ukrainian sovereign territory by Russia. The New York City Bar Association further calls on all stakeholders to take all possible measures to hold Russia and senior Russian officials accountable for these flagrant violations of international law and the Charter of the United Nations.