Why Ukraine and the International Community Should Demand that Russia Renounce Territorial Expansion

[Jens Iverson is an assistant professor of international law at Leiden University] 

The war in Ukraine was always about Russian aggression and the collective response to that illegal, ongoing crime. A just and sustainable peace needs to focus on reducing the risk of Russian aggression in the future. Unfortunately, the “peace plan” proposed by the US to Ukraine does not do enough to address that fundamental concern. Rather, it sets the stage for a return to war, and not only in Ukraine. 

The question remains: what should Ukraine and its allies propose in response?  In answering this, I draw on principles of just post bellum: most fundamentally that a just and sustainable peace should be the overarching goal of those involved in the transition from armed conflict.

There are many elements of the leaked text that Ukraine could rightfully reject on the merits, but there is one that it might make sense to focus on above all others. Forcing attention to be paid to the issue of Russian territorial expansion — making it the most salient issue in the discussion — plays to Ukraine’s strategic advantage in how we talk about the war. Ukraine is both the survivor of Russia’s aggression and a bulwark against further Russian aggression. This is an asset. This brings us to point 3 in the leaked text: “There will be the expectation that Russia will not invade its neighbours and NATO will not expand further.”

Apparently this sounds better in the original Russian. In English, this enigmatic, passive utterance is odd for a number of reasons, some of which will be detailed below. In any case, it is certainly ripe for improvement. 

I will articulate a proposed alternative text in lieu of this clause, explain problems with the current leaked text, amplify the need for the alternative text, and conclude by responding to a few predictable objections. Regardless of whether any text is agreed upon or what the exact language is, those opposed to returning to an age of empire and territorial acquisition through aggression should keep clear-eyed about their objectives.

Proposed Alternative Text

Ukraine and its allies might consider proposing something like this:

3.1 Obligations: Russia recommits itself to never expand its de jure or de facto borders, either through aggression, accepting union with another entity, or any other means. It will never again invade or occupy territory, nor displace the sovereign authority of another outside its own territory. No additional numbers of military personnel under Russian control will leave Russian soil. 

3.2 Interpretation: No conduct by any other entity shall be used as an excuse for a violation of this commitment, including preparations for self-defence against Russia. 

3.3 Enforcement: This shall be enshrined in the Russian Constitution and reinforced by UNSC resolution. Any violation of this commitment voids every clause in this agreement beneficial to Russia and waives any claim of immunity for assets held abroad. 

Call it the “Empire Is Over” Clause. This actually addresses the key problem that led to the war. Without addressing this problem, the war is likely to continue and metastasize after a pause. Putin has revealed he believes it is legitimate to illegally invade, occupy, and (under domestic law) annex the sovereign territory of others, often using the ridiculous fiction that the territory became an independent state and then Russia merely acceded to the new state’s request to join Russia. 

Yes, the “Empire Is Over” Clause is just words on paper. But words can have legal and real-world effects if backed by effective enforcement mechanisms. 

What’s Wrong with the Current Leaked Text?  

Implied Conditionality that May Lead to War

Again, the current leaked text apparently reads: “There will be the expectation that Russia will not invade its neighbours and NATO will not expand further.”  It does not take a subtle textual analysis to pick up the threat here: if NATO expands, Russia may very well invade its neighbours. No excuse should ever be given or implied for further Russian aggression. This clause not only puts Ukraine at risk for further aggression, it puts at risk all states on the Russian periphery. One can imagine Putin and his apologists trotting this clause out in the future, arguing in effect “they made us do it in the past, and they made us do it again.”  This is not true, and it should not be reinforced in any manner. If NATO expansion isn’t an available excuse, there may be another concocted justification. There is no excuse for aggression. This agreement should not imply one.

The Peremptory Norm Problem

Russia is asking for de facto control over sovereign Ukrainian territory. International law is clear on de jure control, per Article 53 of the VCLT: “A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law.” Annexation of territory acquired by acts of aggression cannot be made valid by treaty. This agreement may draw lines on the map of de facto control, but it cannot make aggression legal. Under 41(2) of ARSIWA, “No State shall recognize as lawful a situation created by a serious breach within the meaning of article 40, nor render aid or assistance in maintaining that situation.”  States cannot recognize Russian purported annexation without committing an internationally wrongful act themselves. 

It is too much to ask Russia to sign an agreement that has a full mea culpa clause, just as it would have been too much for Iran to admit past violations when agreeing to the JCPOA. The main point of the peace agreement is not a comprehensive justice mechanism of the sort that would be viable if Russia had been utterly vanquished on the battlefield. We do not need another Treaty of Versailles.

But taken in total, the proposed text undermines peremptory norms to an inexcusable extent. Providing the “Empire is Over” Clause would underline that we are not entering a new era where the logic of empire has returned. It does not actually say Russia is trying to return to an era where conquest justified territorial gains, and that it must stop: but anyone with eyes to see can understand its meaning and justification.

Too Small an “Ask” From Russia

Russia does not concede in the leaked text that it has invaded its neighbours. Russia’s story has always been that it has been invited in by newly sovereign oblasts, with a sprinkling of humanitarian intervention justification for ethnic Russians. Should it want to do this trick again, the leaked text would do little. “We are not invading; we have been welcomed in by the true authorities of [xxx]!”  

Russia does not concede in the leaked text that invading another country is a violation of the general prohibition on the use of force between states, and that acts of aggression (for states) and the crime of aggression (for individuals) are violations of peremptory norms of international law. If anything, it implicitly undermines the central commandments that underpin international law and international order.

The demand that Russia behave like a normal country is in one sense, a maximalist demand. It is arguably even more maximal than demanding that Russia relinquishes territory or pays reparations. From an imperial perspective, land traded today may be conquered tomorrow. What is needed to achieve a lasting peace is the removal of the imperial approach. A credible and enforceable obligation not to expand its territory is the minimum of what is needed to reduce the chance of further aggression. It sets the right framework for a just and sustainable peace.

The current leaked text is not even a promise. It is “an expectation” put in the passive tense. For why the “ask” should be larger at this stage, one can turn to the text of the “Empire Is Over” clause below.

Why the Proposed Language in the “Empire Is Over” Clause is Necessary

Let’s look at the proposed text in a few pieces:

3.1 Obligations: Russia recommits itself to never expand its de jure or de facto borders, either through aggression, accepting union with another entity, or any other means. It will never again invade or occupy territory, nor displace the sovereign authority of another outside its own territory. No additional numbers of military personnel under Russian control will leave Russian soil. 

This language, while phrased as the continuation of an ongoing obligation (“recommits”), is the central commitment needed from Russia. It is the heart of what Ukraine, Europe, NATO, and the international community want from the peace process. Russia should be able to defend itself. It does not have to expand its borders to do that. It does not have to invade or occupy others to do so. Annexing neighbouring territory is not driven by law or self-defence, but by domestic Russian politics.

This may hurt Russian pride, but the central fact of Russian self-defence is: while the nation’s founding myth may be turning back invading German armies, Europeans and NATO have no interest in Russian territory. The fantasy of constant fear and victimhood may sell at home, but it is unmoored from reality. If anything, given the rising power of China (not to mention the catastrophic effects of the Soviet invasion of Afghanistan and the US/NATO invasion of Afghanistan and Iraq) Russians should be secretly happy to have a reason not to engage in further adventurism and to shore up their flanks. This does not require retreat. It just requires an end to further imperial ambition. It requires Russia to end the circus of war and machismo posturing abroad, however useful it is to distract from the problems at home.

It should not be an “ask” at all for Russia not to commit aggression. What is new in this language is the following demand: Russia must not play games with international law to achieve a rump empire by other means. The international community will be much better served if there is a unified message to Russia and all who would follow in Putin’s footsteps: “the age of empire is over.”

3.2 Interpretation: No conduct by any other entity shall be used as an excuse for a violation of this commitment, including preparations for self-defence against Russia. 

Given past Russian justifications and behaviour, it is better to make this explicit.

3.3 Enforcement: This shall be enshrined in the Russian Constitution and reinforced by UNSC resolution. Any violation of this commitment voids every clause in this agreement beneficial to Russia and waives any claim of immunity for assets held abroad. 

There is no perfect enforcement mechanism in international law: self-defence against potential Russian aggression will always rely foremost on military forces, not law alone. But given that Russia is seeking changes to the Ukrainian Constitution, it is not unreasonable for a reciprocal request. While the Russian Constitution can be changed and is not much of a bar against Russian state conduct under a current authoritarian system, change the constitution would be an early warning. More importantly, the threat of sanctions snapback (a la the JCPOA) and the waiver of immunity for assets held abroad would be a strong disincentive for any further empire building. If Russia has abandoned its imperial project: what’s the risk?

Objection: Russia will Never Agree to This… So What’s the Point?

Since World War II, most states have no ambition to expand their territory. Most states have no interest in sending more military service members abroad. If you picked a state at random, they would be unlikely to have destabilizing the central underpinning of international order as their goal. A normal country that had suffered over a quarter million dead and a million casualties total and was facing extreme economic hardship would be happy to agree to terms that would force it to… obey the law and not threaten its neighbours.

Russia does not think of itself as a normal country. That is the problem and the point. It is true that Putin is extremely unlikely to agree to this language in the near term. Russian experts I have talked to have framed changing the Russian Constitution as utopian, although they also point to the Helsinki Accords as a precedent for fundamental changes, as well as the surprising contingency of history at key moments. But having Putin reject what is a fundamentally reasonable request to any normal country as a starting point of future negotiations is a better framing than demanding Ukrainian capitulation to Russian demands. Ukraine suggesting this language is a reasonable place to begin.

Objection: Trump will Never Agree to Proposing This… So What’s the Point?

The US would be called hypocritical for proposing this. Hasn’t Trump floated various schemes to increase US territory?  Doesn’t the US feel free to send its troops abroad?  Isn’t the US trending towards the mercantilist approach of a bygone era?

Trump is unpredictable. I don’t think Trump quakes at the thought of being called a hypocrite. If he thought it would bring peace and the credit that came with peace, he would weather that storm somehow. It is in Trump’s interest to help to achieve a peace that makes future historians make him out to be a Clinton (Dayton Accords, Good Friday Agreement) or Carter (Camp David Accords) not a Neville Chamberlain. 

As for US hypocrisy: yes. The US is not the ideal neutral mediator here. Should anything like this be agreed to by Russia, I hope this would bring moral and political pressure to bear to avoid anything like the 2003 invasion of Iraq again. But errors of the past shouldn’t be used to justify the current, deadly, ongoing crime of aggression and territorial expansion. 

Objection: Shouldn’t We Just Stop the Killing Now?  Why an Unjust and Unsustainable Ceasefire Will Likely Kill More People Than Insisting on a Minimal Level of Justice and Sustainability in the Peace

The war is terrible. “Peace at any cost” is not the solution. If Russia learns that, in the end, invading Ukraine pays political dividends at home… the next time Putin needs political capital, the temptation of war will beckon. The war might begin in Ukraine, Georgia, Latvia, or elsewhere. But more people will die in a new era where the fundamental norm of aggression is weakened than in an era where military adventurism is renounced.

The war is terrible. But the next wars may be worse. One of the great miracles of the nuclear age is the overall success of the taboo against owning nuclear weapons. If the takeaway is “nuclear states get away with aggression, and non-nuclear states are vulnerable to aggression” … the result will be a collapse of the nuclear taboo.

Regardless of what Putin pushes, the response of the international community should be the same. Russia should commit to ending imperial expansion. Anything less betrays the commitment to the next generation to do all we can to avoid the scourge of war.