Referendums on Joining Russia in Luhansk, Donetsk, Zaporizhzhia and Kherson: What Impact on Conflicts Classification?

These regions are occupied by Russia through proxy authorities. A territory is occupied when it is under the authority of a hostile army (Article 42, 1907 Hague Regulations Concerning the Laws and Customs on Land). Such control can be exercised through proxy forces: if a state exercises overall control over de facto local authorities or other local groups that exert effective control over the territory, the state can be considered an occupying force.

Two elements must exist in such a situation. First, the foreign state has overall control over de facto local authorities. Second, the de facto authorities exercise effective control over a territory.

Since these regions are occupied by Russia, the relevant legal framework is the international law of occupation and the four Geneva Conventions.

The rationale underpinning the law of occupation is that the occupying power has to ensure (or restore) public order and security in the occupied territory. However, under no circumstances the occupying power acquires sovereignty over the occupied territory. Therefore, the referendums are illegal under international law.

Since the referendums are unlawful, their outcome does not affect the classification.

Even if Russia announced the annexation of the four regions on Friday 30 September 2022, such a declaration is unlawful and does not have legal effects.

Luhansk, Donetsk, Zaporizhzhia and Kherson are therefore still part of Ukraine and are occupied by Russia. What might change is the type of occupation. Indeed, while now Russia occupies these regions by proxy, following the annexation it might decide to send Russian individuals to take over the power from the current local authorities.