The Legal Barriers to Ukraine-Russia Peace

The heated discussion among Western policymakers and shapers on how the Russian-Ukrainian war could and should end is intensifying by the month. Regardless of one’s stance on the desirability and possibility of a negotiated conclusion of the war, the difficulties in reaching such a finale must be acknowledged by all participants of the debate. Moscow’s neo-imperial meddling abroad in various countries over the last three decades provides ample ground for skepticism.

The Confrontation of Two Constitutions

For the cessation of the current Russian-Ukrainian war, there are multiple reasons why negotiations between Kyiv and Moscow will probably either not happen or will not bring about any desirable results—let alone lasting peace. One of them is the manifest conflict between the constitutions of Ukraine and Russia. Russia’s recent illegitimate annexation of four territories in mainland southeastern Ukraine—of the Donetsk, Luhansk, Zaporizhzhia, and Kherson Oblasts—represents a conundrum. It magnifies the challenge of the equally scandalous Russian military capture and illegal incorporation of the Crimean Peninsula eight years previously. Since March 2014, and even more so since September 2022, this has become the most intractable problem for productive talks between Ukraine and Russia.

In addition to some difficult political issues, this fundamental legal confrontation is distinctly complicated to track. Not only has Russia been violating international law for almost nine years now, in a hitherto unthinkable manner, but Moscow’s annexations have also fundamentally changed Russian domestic law. As a result, the Ukrainian and Russian constitutions now lay explicit claim to one and the same territories in eastern and southern Ukraine, including Crimea.

Moreover, Putin and Zelenskyy are—as presidents of their respective countries—also seen by their peoples as the “guarantors” of their constitutions and as obliged to implement them. Even if one or both wanted to make territorial compromises, the fundamental law of their state explicitly forbids them to do so. This means that, before substantive peace talks can generate results, one or both constitutions would have to change. To do so, however, would require securing large majorities in parliamentary votes. This is not only unrealistic in the case of Ukraine, but also difficult in the case of Putin’s Russia.

A reversal of Russia’s enlargements by a new constitutional reform is, perhaps, more likely than Ukraine’s voluntary reduction of its state territory. Yet, it would be politically far more difficult and riskier for the Putin regime to accomplish than the initial annexations. Such an abrogation of Russia’s expansions, and the separation of territories now regarded as inherent parts of the Federation, would appear to most Russian nationalists as embarrassing, if not illegitimate. It could, moreover, influence other Russian regions that—in the case of a deep socioeconomic crisis, for instance—might consider the idea of a similar departure from the Federation they are now subjects of.

The Crimean Precedent

This peculiar legal and political problem has been in existence since March 18, 2014, when the Russian Federation officially included the Crimean Peninsula as its state-territory. The annexation of Crimea was officially acknowledged by only a few countries and by certain political circles around the world. But Moscow then presented to the outside world a semi-plausible explanation for its violation of international law in the Black Sea. Among other dubious assertions, it proclaimed that the history of Crimea under the czarist and Soviet empires justified Russia’s scandalous 2014 action.

The Kremlin’s story was an exercise in historical cherry-picking, to be sure. Many national governments around the world could—and some do—present similar irredentist narratives referring to this or that historical episode. They too might lay claim to certain territories that once belonged to their country but are now—as a result of putative historical injustice—located in other states.

Notwithstanding the historical dubiousness and political explosiveness of Russia’s 2014 rhetoric, unofficially, around the world numerous politicians and diplomats as well as some experts bought the Kremlin’s tale about Crimea. That was despite both the actual history of Crimea before, during, and after the czarist period, and also the subversive effects of such a recognition for the stability of the world’s legal order. The implicit acknowledgement of Moscow’s claim of the Black Sea peninsula among many non-Russian observers—even some in the West—was one reason why international sanctions in response to Russia’s extraordinary actions of February-March 2014 were either mild or nonexistent.

Until recently, the Crimea question was, perhaps, an issue whose solution could have been either postponed to a distant future or that might have, one day, been resolved in partial accordance with Moscow’s preferences. The latter could have happened via a temporary international administration for the peninsula, or by enhancing the autonomy of Ukraine’s Autonomous Republic of Crimea even further. With Russia’s September 2022 annexation of four additional Ukrainian territories, however, such options seem untenable.

The New Deadlock

Not only are the Kremlin’s arguments for the second, more recent annexation of Ukraine’s southern and eastern mainland even flimsier than for Russia’s 2014 incorporation of Crimea, but the hitherto semi-open question about the peninsula has now become re-packaged into a more fundamental and territorially larger issue about the identity, coherence, and future of Ukraine as a whole. The Crimean problem is now part and parcel of the larger question about the right to existence of a founding member of the United Nations. (The Ukrainian Soviet Socialist Republic belonged to the UN from 1945 to 1991.) As a result, a full reversal of Russia’s entire illegal westward expansion, according to all of Ukraine’s wishes, is today supported by more people and countries across the world than hitherto.

Even more ominously, Moscow’s September 2022 annexation documents and the accordingly revised Russian basic law make explicit claims about certain Ukrainian lands that Russia does not actually occupy. Instead, these territories are either still or once again under Kyiv’s rather than Moscow’s control. In fact, none of the newly annexed four mainland Oblasts of Ukraine has been fully captured by Russian forces so far. That is in contradiction to the Russian state’s new self-definition, and in partial violation of the Russian constitution that includes these Oblasts in the official territory of the Russian Federation.

In a way, Russia has now transformed itself into what political science and international diplomacy call a “failed state.” Before 2022, Moscow was engaged in reducing the sovereignty and integrity of other nations, such as Moldova, Georgia, and Ukraine, by military and non-military means. Now the Russian Federation itself is—according to its own constitution—a country not fully in control of its borders and territory. This is an embarrassing political situation for the Kremlin, both domestically and internationally.

It also feeds the curious legal context of negotiations between Kyiv and Moscow. Unless Russia’s constitution is changed, Putin or any future Russian president would be unable to return any Ukrainian territories currently controlled by Moscow to Kyiv’s control. Russia’s most fundamental bill requires the Russian head of state to actually seek additional occupation. An official Russian negotiating partner would seem to be obliged by law to insist on Kyiv’s cessation of further Ukrainian lands to Moscow—so as to bring the text of the Russian constitution in congruence with the political realities on the ground.

Some may think that the manifest absurdity of such a diplomatic constellation is sufficient to dismiss it out of hand. Yet, a Russian president or other negotiator would run the risk of being accused of high treason, if he or she proposes, agrees to, or succumbs to violating the Russian constitution as it currently stands. The same goes for each Ukrainian president or other negotiator who are also obliged, by their constitution, to seek an as soon as possible restoration of full Ukrainian territorial integrity and political sovereignty.

This general impasse has, for almost nine years now, been the reason why there have been no serious negotiations regarding Crimea between Ukraine and Russia. Unlike today, Kyiv and Moscow were, from summer 2014 until early 2022, bargaining intensely with each other, within the Minsk trilateral (UA, RU, OSCE) and Normandy (UA, RU, DE, FR) formats as well as elsewhere. Once the issue of the Black Sea peninsula’s status had, after its official annexation by Russia, become a zero-sum game between Moscow and Kyiv, there was nothing to discuss further about Crimea. Since September 2022, Moscow has created the same deadlock regarding four additional regions in mainland southeastern Ukraine.

Many observers believe that achieving a ceasefire between Moscow and Kyiv depends on the political will of some select political figures such as the presidents of Russia, Ukraine, the United States, France, and the European Commission. This viewpoint ignores that Russia’s 2014 and 2022 constitutional changes regarding the Russian Federation’s official state territory have created structural hindrances for productive peace negotiations with Ukraine. The widespread assumption that better or different political agency and diplomatic engagement on the part of the West, or of Kyiv, or of both would be enough to come to a lasting agreement with Moscow is thus naïve.

The constitutional impasse that has emerged since Russia’s annexations of 2014 and 2022 is not the only hindrance to meaningful peace negotiations between the two countries. Nevertheless, it alone suffices to be skeptical about the potential of a lasting non-military solution of the current conflict. Such an endgame to the current war would—assuming continued Russian recalcitrance—be only possible if Ukraine were to revise its own constitution and thereby deny its status as an independent state altogether.

This would not only be (apart from looking unlikely) unsatisfactory for most Ukrainians. It would also call into question the future stability and borders of other states. Their current territories could be, following the strategy of Moscow’s behavior since 2014, also abolished via military interventions and political annexations by their neighbors.

Dr. Andreas Umland is an analyst with the Stockholm Center for Eastern European Studies (SCEEUS) at the Swedish Institute of International Affairs. This article summarizes parts of a longer series of SCEEUS commentaries on various hindrances for Russian-Ukrainian negotiations.

Image: A dove in the colors of the Ukrainian flag. (Flickr: Txmx 2)