Several months ago, I examined what was shaping up to be a very dark ending to the Ukraine conflict. Russia and the United States would draft a peace agreement requiring that Ukraine cede substantial territory to Russia, as well as potentially granting immunity to Russian officials for international crimes and enabling the mass deportation of Ukrainians from Russian controlled areas. The U.S. and Russia would present that agreement to Ukraine as a take-it-or-leave it proposition. If Ukraine signed, it would obviously do so because of Russian coercion via the use of force in 2014 (Crimea) and 2022 (the rest of Ukraine). If it did not, the war would continue, with the U.S. likely withdrawing its logistical and intelligence support from Ukraine as a result.
That account turned out to be overly optimistic. While as of this writing the negotiations are proceeding in fits and starts, the main talks in Saudi Arabia have begun without Ukraine’s direct participation. While Ukraine has few options in the face of a seemingly unified Russian-American front, it has nonetheless made clear that it will not accept any agreement that allows Russia to annex all the territory it currently occupies or one that does not provide for credible third-party security guarantees. It also objects to other Russian demands, such as the calling of elections. A U.S. envoy has described the status of the Russian occupied territories the “elephant in the room” at the negotiations. These developments thus present the very real possibility that Russia and the US will deal with the Ukrainian objections by simply removing it from the process entirely and concluding an agreement to which Ukraine is not a party.
This post examines the status of such an agreement under international law. Can Ukraine become subject to rights and obligations under a treaty to which it is not a party? Further, would that agreement be opposable to other non-party states, and indeed the entire international community? In asking these questions, I will focus almost entirely on a treaty’s cession of territory. This is the one provision that could in theory be opposable to third states (for reasons I will discuss). Conversely, if it is not opposable, a Russian occupation would amount to a de facto or de jure annexation and would require non-recognition by other states. The ICJ’s Advisory Opinion on Occupied Palestinian Territories makes this obligation under international law quite clear.
I will assume for purposes of this discussion that Ukraine will continue to object to a treaty ceding territory. If it ultimately withdraws those objections (again, likely under duress), there would be no reason for it not to sign so that it could receive any benefits the agreement might provide. As I discussed in my first post, at this point Ukraine could withhold a claim that the agreement was void due to coercion and not waive its right to raise the claim later. There would also be no incentive for Russia and the U.S. to prevent Ukraine from signing if it were willing to do so, and indeed one can imagine a huge political messaging upside for both of them if that were to happen.
Treaties and Third Parties
International law has long been clear that a treaty only binds its parties and does not create rights or obligations for third states absent their consent. In 1926, the PCIJ held in the Certain German Interests in Polish Upper Silesia case that a treaty “only creates law as between States which are parties to it; in case of doubt, no rights can be deduced from it in favour of third States.” (p. 29). This rule is succinctly codified in Article 34 of the Vienna Convention on the Law of Treaties (VCLT): “A treaty does not create either obligations or rights for a third State without its consent.” As Sir Gerald Fitzmaurice, the third ILC Special Rapporteur on the law of treaties, reported to the Commission in 1960, the rules on third parties “are so fundamental, self-evident and well-known, that they do not really require the citation of much authority in their support.” (p. 84 – quoted in Dörr & Schmalenbach).
One can often tell how deeply embedded a rule has become in international law if it has acquired its own Latin maxim. The rule on third parties has two: res inter alios acta (a thing done between others) and pacta tertiis nec nocent nec prosunt (agreements neither harm nor benefit third parties).
As Article 34 provides, third states can nonetheless choose to consent to rights and/or obligations in the treaties of others. The details of how this is accomplished are set out in VCLT Articles 35 and 36. Each requires both that parties intend the rights/obligations to come into effect and that the third state(s) consent. Thus, like virtually every other international legal obligation, the rules on third parties are grounded in the consent of affected states.
An Objective Regime?
The discussion might not end here, however. The one legal argument available to Russia and the U.S. would be that new treaty-based Ukrainian boundaries would constitute an “objective regime” that is opposable to Ukraine and all other third states. The idea of objective regimes arose in international law because some treaties seem to have legal effects beyond the obligations created for their parties. Indeed, many of these treaties seem to require universal or erga omnes effects in order to achieve their purpose. Consider a few examples. A treaty between a few states requiring that a canal be open to “all shipping” would seem to grant rights to non-parties. A peace treaty creating a new state and defining its boundaries could not accomplish those goals if third states were neither required to recognize the state’s existence nor respect its treaty-based boundaries. A treaty designed to protect an area of the global commons from predation would fail if non-parties were free to plunder its resources.
While two of the ILC’s special rapporteurs for the law of treaties (Fitzmaurice and Waldock) proposed including an article on objective regimes in the Vienna Convention, support in the Commission was lacking. Opposing views ranged from full opposition to the entire concept to misgivings about the adequacy of state practice. (Subedi, pp. 168-74). The Vienna Convention is thus silent on whether objective regimes even exist in treaty law, let alone their precise contours.
While there is no authoritative definition of an objective regime, many cite Judge McNair’s description in the 1950 Southwest Africa advisory opinion (p. 153):
From time to time it happens that a group of great Powers, or a large number of States both great and small, assume a power to create by a multipartite treaty some new international régime or status, which soon acquires a degree of acceptance and durability extending beyond the limits of the actual contracting parties, and giving it an objective existence. This power is used when some public interest is involved, and its exercise often occurs in the course of the peace settlement at the end of a great war.
According to McNair, many of the agreements commonly described as creating objective regimes involved territorial settlements after general armed conflict: the Congress of Vienna, the Treaty of Versailles, and the Yalta Agreement. Others cited by commentators involve the permanent neutrality of states such as Switzerland, Belgium, Austria, Cambodia and Laos. Still others involve rights of passage through the Suez, Kiel and Panama canals. Some scholars also cite the League of Nations Mandate system (the subject of McNair’s opinion) and the Antarctic Treaty. Such regimes are said to have erga omnes effects (see, for example by McNair in his magisterial law of treaties volume (p. 255) and Boyle & Chinkin (p. 239)).
Treaty-based and judicial support for objective regimes is scattered but evident nonetheless. While the VCLT does not address objective regimes as such, Article 62(2)(a) provides that a fundamental change in circumstances cannot function to terminate or allow withdrawal from a treaty if it establishes a boundary. Similarly, the 1978 Vienna Convention on the Succession of States in Respect of Treaties provides that state succession does not in itself affect boundaries established by treaties (Art. 11) or obligations related to the use of any territory (Art. 12). The opinion of the League of Nations experts on the Aaland Islands case described European powers in peace treaties as creating “true objective law, the true effects of which are felt outside the immediate circle of contracting parties.” And the ICJ in recognizing the international legal personality of the UN in the Reparations for Injuries Advisory Opinion, described how:
“fifty States, representing the vast majority of the members of the international community, [brought] into being an entity possessing objective international personality, and not merely personality recognized by them alone” (p. 185, emphasis added).
The arguments supporting the erga omnes effects of boundary treaties focus on the need for stability. Absent a world legislature, international law should encourage neighboring states to establish their boundaries by negotiation and agreement rather than through armed force (as complicated as that may be in the present case). Some of the incentives for doing so would collapse if those boundaries were not opposable to other states, in particular neighboring states, since threats to the state’s territorial integrity might also come from non-parties. Even if a boundary treaty does follow an armed conflict, granting it objective status could help forestall future conflicts involving predatory third states. This reasoning seems to underly the ICJ’s holding in the Chad/Libya case that “[a] boundary established by treaty thus achieves a permanence which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way affecting the continuance of the boundary.” (para. 73).
This is not necessarily the majority view, however. Many other scholars believe the objective character of treaty-based boundaries “cannot be seen in the alleged dispositive character of the treaties concerned, but rather in the principle that a State is by its very existence competent to consolidate its territory within the limits established by public international law.” (Dörr & Schmalenbach, p. 682). Thus, “any treaty which establishes a boundary between two or more States is valid erga omnes simply because of the absent competence of third States to regulate the subject matter.” (Id.)
No, Not an Objective Regime
Given that objective regimes have at least a plausible grounding in international practice, one cannot dismiss out of hand the possibility of a US-Russia agreement setting “objective” Ukrainian borders. That said, even if one accepts that objective regimes are well-established, the case for an erga omnes US-Russia border treaty for Ukraine is remarkably weak even by the doctrine’s own terms.
First, while stability is undoubtedly enhanced when states set their own boundaries, that is hardly the case when boundaries are forced upon them. Imposing borders on non-treaty states following partial or total annexations creates incentives for rapacious wars, i.e. instability. Objective regimes seek to broaden the effect of consensual arrangements so that treaty parties can rest assured other states will not upset the benefits they have negotiated for themselves. This rationale finds no purchase when treaties reconfigure the borders of non-party states that vehemently oppose the outcome.
Another way to make the same point is to run a U.S.-Russia treaty through the last set of formal criteria for an objective regime – the proposal by ILC Special Rapporteur Sir Humphrey Waldock in 1964. He summarized (p. 33) the essential elements as:
(i) the intention of the parties must be to create general rights and obligations in the general interest relating to a particular region, State, territory, etc., and (ii) the parties must include amongst their number the State or States having territorial competence with reference to the subject-matter of the treaty or, at least, that State or States must have expressly assented to the provisions creating the regime.
While the U.S. and Russia would be creating rights and obligations in their own interests, when Ukraine, all its neighbors and virtually the rest of Europe objects, it is hard to say the regime would be “in the general interest.” And because Ukraine is the only state “having territorial competence with reference to the subject-matter of the treaty,” which is the integrity of its own territory, its absence as a party means the treaty also fails the second element. Waldock’s criteria would put Ukrainian consent and approval by the rest of Europe at the center of the analysis. Neither is present.
Second, while the pre-1945 territorial settlements indeed came about in the absence of a “world legislature,” the Security Council can now perform an equivalent function. In Resolution 687 the Council demanded (para. 2) that Iraq respect its 1963 border agreement with Kuwait. Today, the Council could demarcate new Ukrainian borders and demand they be respected by all UN member states as long as Ukraine agreed with that outcome. Ukraine would obviously prefer that the Council demand that Russia respect the 1994 Budapest Memorandum, by which it agreed “to respect the Independence and Sovereignty and the existing borders of Ukraine.” Whatever the specifics of the resolution, Russia cannot seriously argue that an objective bilateral treaty ought to be the option of first resort when its own veto is keeping the Council from acting.
Third, the reasons for supporting erga omnes territorial settlements among large groups of states after general wars do not clearly translate to bilateral treaties. A negotiation among the former is less likely to result in predatory settlements that fully disregard the interests of the absent third states. Or at least they don’t simply enact the narrow interests of two states, or just one state and a willing accomplice. This may be the reason that the few cases addressing the erga omnes character of bilateral border treaties have rejected the idea. In the Isle of Palmas case, Max Huber held that a U.S.-Spanish treaty “cannot be interpreted as disposing of the rights of independent third Powers.” (p. 12). In the Burkina Faso/Mali case, the ICJ addressed the possible consequences of a border treaty between those two states for their mutual neighbor, Niger:
“The Parties could at any time have concluded an agreement for the delimitation of their frontier, . . . [which] although legally binding upon them by virtue of the principle pacta sunt servanda, would not be opposable to Niger.” (para. 46).
One might respond that we should not pine for the days of territorial settlements following major wars, since they mostly involved large and powerful European states acting at the expense of smaller states in the region and elsewhere. But this argument – which many ILC members made in opposition to Sir Humphrey Waldock’s proposed articles in 1964 – is against objective territorial regimes as a category, not simply those embodied in multilateral peace treaties. If one believes multilateral settlements are prone to abuse by predatory hegemons, one should have even stronger objections to two powerful states carving up one of those states’ less powerful neighbors and opposing that reconfiguration to the rest of the world.
One particular post-war settlement – that following WWII for Germany and the rest of Europe — seems to enamor Presidents Trump and Putin, and so it is worth spending a moment considering whether it provides any useful lessons for Ukraine. The German arrangements are presumably attractive because they effectively created spheres of influence for the United States and Soviet Union and allowed them to pursue their own regional agendas during the Cold War. But the German and European settlements provide few useful legal lessons.
Germany was indeed excluded from the three major agreements setting a post-war order in Europe. The Yalta Conference provided that liberated European states would decide their futures through “democratic institutions of their own choice,” but it effectively ratified Soviet and allied zones of occupation as spheres of influence and allowed the “Iron Curtain” division of Europe to take shape. The Berlin Declaration of June 5, 1945 provided that the allies would assume “supreme authority with respect to Germany.” And the Potsdam Declaration of August 1, 1945 divided Germany into four zones of occupation and created the Allied Control Council to exercise joint authority over the country as a whole. The zones of occupation very quickly consolidated into the states of East and West Germany, but the allies did not create those states or delimit their borders in any of these instruments.
In addition to not setting borders, these agreements were not treaties under international law. Neither the U.S. Senate nor Congress as a whole approved any of them and none was deposited with the UN Secretary-General (a requirement for treaties under Charter article 102). The central reason was that the allies viewed Germany as having ceased to function as a fully sovereign state. Opinion among allied international lawyers was divided on Germany’s exact legal status after the war. Hans Kelsen argued in an influential article that no peace agreement had been concluded with Germany because, under the now extinct doctrine of debellatio, it had ceased to exist as a state and there was no counter-party with whom a treaty could be concluded. Sir Robert Jennings, while denying that Germany had been fully subjugated, argued that no treaty was possible because the German government had ceased to exist. (23 Brit. Y.B. Int’l L. 112, 136 (1946)). There were other theories. But it is clear that legally binding treaty was not concluded until the 1990 treaty on German reunification, by which the allies proclaimed their intention “to conclude the final settlement with respect to Germany.” Both West and East Germany were full parties to that agreement.
One could argue that if the U.S. and Russia seek a purely political solution to the Ukraine war, they might draw inspiration from the arrangements for post-War Germany and Europe. That would be the extent of its value, since it was not a case of treaty parties creating new borders opposable to others. But even abandoning a legal comparison does salvage post-War Germany as an instructive example. Germany cast aside the Versailles treaty and started a war of aggression that resulted in tens of millions of deaths. One can understand the allies not seeking their input into peace settlements. But Ukraine is a victim of aggression and their input is essential lest the peace process become just a continuation of that aggression.
In the Chad/Libya case, the ICJ declared that “[t]he fixing of a frontier depends on the will of the sovereign States directly concerned.” (para. 45). There is little justification for departing from this important principle in the case of Ukraine, whatever one thinks of objective regimes more generally. The obvious reason the US and Russia may resort to this third-best option for ending the conflict (the first being an uncoerced bilateral agreement, and the second a Security Council resolution under Chapter VII) is because Russia’s ultimate objective of dismembering Ukraine and/or turning it into a vassal state cannot confidently be accomplished via the first two.
Allowing Russia to pursue those goals through an “objective regime” would be a shameless effort to launder its unlawful objectives by lending the agreement a patina of legality. The doctrine is inapplicable on its own terms and post-war settlements of the past are of little precedential value. Ukraine is entitled to set its own borders. The United States and Russia — which seek to achieve the opposite of the collective community interests supposedly embodied in objective regimes — are not.