Ця стаття також доступна українською мовою тут.

What does it mean when a news outlet reports on “Russia’s annexation of [Ukrainian territory]?” Recent examples include: CNN (“… Friday’s annexation of four Ukrainian territories by Russia.”), Fox News (“Russian President Vladimir Putin to annex 4 Ukrainian regions …”), The Washington Post (“Russia’s annexation puts world ‘two or three steps away’ from nuclear war”), BBC (“Four regions of Ukraine… are being annexed by the Russian Federation”), The New York Times, Le Monde, Der Spiegel, and El País (or more generally see Google Trends). Even if the general tone of the publication expresses some form of disapproval, the widespread usage of the term “annexation” is a de facto victory for Russia. So how should we write about what is happening in Ukraine without using this term? Can we discuss an illegal declaration of annexation when necessary without conceding annexation?

“Annexation” is slippery. It involves three important frameworks that can be used when saying whether or not Russia has annexed Ukrainian territory: domestic law, the situation on the ground, and international law. There are two conflicting versions of the first (Ukrainian and Russian domestic law), and the second can swiftly change as events on the battlefield unfold, but the third is comparatively stable and objective, and in this should be used as a default to describe the situation. Simply put, international law requires Ukrainian territory be acknowledged as Ukrainian, so that should be how we describe it.

The simplest frameworks are the domestic law frameworks. Ukrainian law maintains that Ukrainian territory remains Ukrainian. (Ukraine’s allies agree.) Russia’s shifting domestic law says (or will say) the opposite. Russia’s changes to its own law also degrade the political possibilities for peace within Russia. Specifically, because relinquishing Ukrainian territory treated as “Russian” under Russian domestic law will be more politically difficult, the domestic options and costs have changed. The fact that this means a just and sustainable peace is less likely make these changes especially worthy of condemnation (for more on this functional approach to law and morality in this area see my work on jus post bellum). Another question is whether it also changes the political economy outside Russia — a question we will return to shortly. 

The international community in general and objective news outlets in particular are not in the habit of naively repeating the assertions that emerge from the Russian government. Russia routinely makes untrue claims: that it is responding to a genocide; that Ukraine somehow isn’t real; that Ukrainian oblasts are independent states for a brief and convenient moment before being absorbed. But these assertions usually are ignored and are almost never repeated by neutral news outlets without correction. Annexation is often the exception. Why?

I believe the reason why the media refers to annexation, without scare quotes or often much in the way of explanation, has to do with the second framework: that of “what’s happening on the ground.” It would not be difficult to say “de facto annexation” instead of “annexation,” even in the legend of a map – although even that de facto reality would be different on the map than the proclamations from Moscow, given the failure of the Russian army to achieve its stated aims. But there is some truth in describing Crimea as “de facto annexed” for example — the lived experience of people in Crimea has been one of being governed by Russia, regardless of what international law has to say about whether that term should be referred to as unlawful occupation, purported annexation, or anything else. 

There is an echo of this in how international law addresses the question of whether or not an armed conflict exists: we no longer focus so much on declarations of war, but instead just ask what the objective ground truth is. Similarly, regardless of whether the occupying power declares that they are occupying territory, if there is de facto occupation, then we call it “occupation.” One can legally characterize an occupation as legal or illegal, but calling a territory “illegally occupied” does not change the fundamental fact of occupation.

But to state Russia has “annexed” territory that it has illegally occupied, particularly without any further explanation, leads the reader into error as a matter of international law. It confuses Russian assertion with international legal fact. International law does not permit the acquisition of one state’s territory by another state through acts of aggression. To say Russia has “annexed” a Ukrainian oblast while Ukraine maintains its territorial claim is, in a minor way, to aid Russia in its wrongful act. It has two incorrect implications. First, it implies that Russia has acquired territory de jure. This is not true as a matter of international law. Second, it implies Russia has gained control through something other than acts of aggression. That is also false. A phrase like “illegally annexed” might help cure the second implication, but not the first. “Annexed” still slips into a legal claim of the current status, regardless of how it was achieved. “Purported” or “attempted” annexation is slightly better, but still does not present a clear picture.

The clearest description remains the simplest: each area in question remains “illegally occupied Ukrainian territory.” That is their legal status before and after whatever domestic legal performances occur in Moscow. If it is necessary to describe Russia’s domestic legal maneuverings or the declarations of its puppet entities to convey a story, the best way to describe it is probably something along the lines of “the illegal declaration of annexation.” For example: “the Donetsk Oblast, which Russia has illegally and incorrectly declared annexed, is only partially occupied by Russia.”  

Why use the international law framework in this case? Why not focus on Russian domestic law, or the facts of current domination on the ground, instead of international law? Both the gravity of the situation and the implications of our vocabulary indicate a rejection of naïve usage of the term “annexation.” International law takes illegal attempted acquisition of territory rather seriously. One might say ending territorial conquest is the central point of contemporary international law.

You do not have to care much about international law in general to prize this fundamental goal. You do not even have to take seriously the binding requirement of Article 41.2 of the Articles on Responsibility of States for Internationally Wrongful Acts: “No State shall recognize as lawful a situation created by a serious breach [of peremptory norms] nor render aid or assistance in maintaining that situation.” You merely have to value the norms that lie behind the general prohibition against the use of force. You merely have to hate war, and the aggression that starts it.

Why did Putin put on the performance of annexation, knowing that it would not be accepted – at least not in the short run – by Ukraine or Ukraine’s allies? Why change the political economy of Russia so that the likely range of options for a peaceful settlement is limited? It is, perhaps, a fool’s game to try to guess his intentions. But one cannot help but suspect every mention of annexation in the news brings a smile to his face. The illegality of his government’s purported annexation is not a low-level violation of the principle of non-interference. It is not just that it is done in furtherance of an illegal use of force. It is also inherently, given his words, a threat of the use of a much wider use of force. That threat is a further grave violation of international law, and must be met with an appropriate collective response. Anything less invites repetition.

There is an invitation for every person reading that a territory has been annexed. An invitation to treat it as a “done deal.” To treat it as de jure and inevitable, rather than de facto and temporary. To change the political economy of continued solidarity with the Ukrainian people. If the slippery nature of the term “annexation” allows imprecision in our collective thinking, the media is doing Putin’s work for him. It is using the bully’s language, and is implicitly taking the bully’s side. Russia’s language and performances about annexation make no difference to the way international law characterizes that territory. It only matters insofar as it is an additional violation of international law.

Every day, as Ukraine drives out Russian forces from illegally occupied Ukrainian territory, they are not somehow occupying recently-annexed Russian territory. They are on territory that never stopped being Ukrainian.  

Update your stylesheets.

Stop saying “annexed territories.”

An example of what the media should stop doing. 

For more of Just Security’s coverage, please visit our Russia-Ukraine war Archives.

IMAGE: Russian President Vladimir Putin gives a speech during a ceremony, formally annexing four regions of Ukraine Russian troops occupy – Lugansk, Donetsk, Kherson and Zaporizhzhia, at the Kremlin in Moscow on September 30, 2022. (Photo by GAVRIIL GRIGOROV/SPUTNIK/AFP via Getty Images)