UKRAINE LEGAL UPDATE
30 September 2022
Russia’s move to formally incorporate Ukrainian territories risks upending the legal system there. New legal structures will create uncertainty in the enforcement of property rights.
Russia has taken steps to annex Ukraine’s Lugansk, Donetsk, Zaporizhia and Kherson oblasts, occupied, fully or in part, after months of fighting since February 2022. On 30 September 2022 Kremlin officials signed documents with the regions’ self-proclaimed leaders formalizing, as far as Russia is concerned, their entry into the country. Ukraine does not recognize the annexations and vows to retake the territories.
Russia does not base its actions on a right of conquest (obviously prohibited under the UN Charter) or any previous claims to the territories. It invokes the principle of national self-determination, sometimes recognized in international law as a valid ground for secession. So “referendums” were held in the territories for joining Russia. Kherson and Zaporizhia were to enjoy fleeting moments of independence before being annexed. Lugansk and Donetsk had been self-declaredly independent since 2014, as recognized by Russia in 2022. Understandably, Ukraine dismisses the proceedings as an illegal charade.
Ukraine’s chain of title to the area stretches unbroken all the way back to the 18th century. Russia seems to recognize that and so does not try to dispute it by invoking any past grounds. Although the 1991 independence declaration grandly traces its statehood to ancient sources, Ukraine holds fast to the borders it inherited from the USSR at independence. Their outline essentially stems from a 1922 treaty founding the USSR, to which Ukraine was a party (dissolved in 1991). Those sticklers for legality knew what they were doing. It was by that treaty that Ukraine got the territories won by the Russian Empire from the Ottomans in the 18th century. So, ultimately, Ukraine’s rights to the southern lands derive at least from the 1774 treaty of Küçük Kaynarca. The Turks have never since complained, so far.
Whatever the historical background, the areas’ formal takeover raises questions unlikely to be resolved by normal conflict of laws principles (see a guidance by the Ministry of Justice on Ukraine’s position). What does that mean in practice? The locals will probably have no choice but to live by such laws as imposed by the de facto rulers. Ukraine will keep on protesting and fighting. Yet two distinct problems may arise.
First, there is the issue of illegal collaboration. It may affect those in the legal profession, particularly notaries, working with the Russian authorities. The fact that ordinary people follow Russian law in daily transactions should not by itself trigger liability.
Second, Ukrainian rights in the annexed territories may lack local enforcement and the Russian ones may not be recognized in Ukraine. That would leave those wishing, for example, to sell assets located in the territories in legal limbo. Ingenuity might produce practical solutions, but often at the risk of them being attacked as sham. A particular problem is where rights arise by registration in a central register (e.g., immovables or company shares). When two incompatible systems exist, conflicts are bound to arise.
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