The heated debate among politicians and officials in the West about how the Russo-Ukrainian war could and should end is intensifying every month. Regardless of one’s position on the desirability and possibility of a negotiated conclusion to the war, all participants in the debate must recognize the difficulties of reaching such a conclusion. The experience of various countries with the neo-imperial interference from Moscow abroadover the past three decades, provides ample grounds for skepticism.
The comparison between two Constitutions
As for ending the current Russo-Ukrainian war, there are all sorts of reasons why negotiations between Kyiv and Moscow will probably not take place or lead to any results, much less lasting peace. One of these is the overt conflict between the constitutions of Ukraine and Russia. Russia’s recent illegitimate annexation of four territories in southeastern mainland Ukraine, namely the provinces of Donetsk, Luhansk, Zaporizhzhia and Khersonrepresents an enigma. Magnifies the challenge of the equally scandalous Russian military capture andillegal incorporation of the Crimean peninsula eight years earlier. Since March 2014, and even more since September 2022, this has become the most intractable issue for productive talks between Ukraine and Russia.
The two countries have to resolve not only a number of political issues with each other, but also a fundamental legal comparison. Russia has not only been violating international law for almost nine years, in a way that was previously unthinkable. Moscow’s annexations also radically changed Russian domestic law. As a result, the Ukrainian and Russian constitutions now explicitly claim the same territories in eastern and southern Ukraine, including Crimea.
Furthermore, Putin and Zelensky – as presidents of their countries – are also seen, by their peoples, as the “guarantors” of their constitutions and as obliged to apply them. Even if one or both of them wanted to make territorial compromises, the basic laws of their two states would explicitly forbid it. This means that, before starting substantive peace talks, one or both of the Constitutions would have to change. To do so, however, would require large majorities in parliamentary votes. This is, to put it mildly, difficult in the case of Putin’s Russia and unrealistic in the case of Ukraine.
The Crimean precedent
This particular legal problem has already existed since March 18, 2014, when the Russian Federation officially included the Crimean peninsula in its state territory. The annexation of Crimea has been officially recognized by only a few countries and a few political circles around the world. Moscow presented a semi-plausible explanation to the outside world in 2014 for its violation of international law in the Black Sea. Among other dubious claims, it proclaimed that the history of the Crimea in the Tsarist and Soviet empires it justified the scandalous Russian action of 2014.
The history of the Kremlin, to be honest, was a historical selection exercise. Many national governments around the world could – and some do – present similar the irredentist narrative referring to this or that historical episode. They too could claim some territories that once belonged to their country but which are now – due to an alleged historical injustice – in other states.
Despite the dubious historicity and thepolitical explosiveness of Russian rhetoric of 2014, unofficially numerous politicians and diplomats as well as some experts from all over the world bought the story of the Kremlin over the Crimea. This is despite both the real history of Crimea before, during and after the tsarist period, and the subversive effects of such recognition for the stability of the world legal order. The implicit acknowledgment of Moscow’s claim to the Black Sea peninsula by many non-Russian – even Western – observers was one of the reasons why the international sanctions in response to Russia’s extraordinary actions of February-March 2014 were mild or non-existent.
Until recently, the Crimean question was perhaps a problem whose solution could be postponed into the distant future or could, one day, be resolved in partial accord with Moscow’s preferences. The latter solution could have taken place, for example, through atemporary international administration of the peninsula, or by further strengthening the autonomy of the Autonomous Republic of Crimea of Ukraine. With Russia’s September 2022 annexation of four more Ukrainian territories, however, those options appear to have disappeared.
The new stalemate
Not only are the Kremlin’s arguments for the recent second annexation of the southern and eastern mainland of Ukraine even more tenuous than those for Russia’s incorporation of Crimea in 2014. The hitherto half-open question of the peninsula has now reconfigured itself into a most principal and territorially broadest issue it concerns the identity, coherence and future of Ukraine as a whole.
The Crimean problem is now an integral part of the broader question of the right to exist of a founding member of the United Nations. As a result, a complete reversal of Russia’s entire illegal westward expansion, according to all of Ukraine’s wishes, is now supported by more people and countries around the world than ever before.
It is disturbing that the annexation documents of Moscow of September 2022 and the subsequent revision of the Russian Basic Law explicit advance claims against Ukrainian lands that Russia does not actually occupy. On the contrary, these territories are still or again under the control of Kyiv and not Moscow. In fact, none of Ukraine’s four recently annexed oblasts has so far been completely conquered by Russian forces. This is in contradiction with the new self-definition of the Russian state and in partial violation of the Russian Constitution which includes these oblasts in the official territory of the Russian Federation.
Russia “Failed State”?
In fact, it can be said that Russia has turned into what is known in political science and international diplomacy as “Failed state“. Before 2022, Moscow was engaged in reduce the sovereignty and integrity of other nationsas the Moldova, Georgia and Ukraineby military and non-military means. Now the Russian Federation itself is – according to its own Constitution – a country that does not fully control its borders and territory. This is not only an embarrassing political situation for the Kremlin, both domestically and internationally.
It also creates a curious legal framework for possible negotiations between Kyiv and Moscow, the success of which many politicians, diplomats, pundits and secularists outside Ukraine are hoping for. Unless the Russian constitution is changed, Putin or any other Russian president will not only be unable to return the Ukrainian territories currently controlled by Moscow to Kyiv control. Russia’s most important law requires the Russian head of state to seek further employment. An official Russian negotiating partner would be obligated by law to insist that Kyiv give up further Ukrainian territory to Moscow – in order to make the text of the Russian constitution congruent with the political realities on the ground.
This general impasse was, for nearly nine years, the reason why there were no serious negotiations on Crimea between Ukraine and Russia after March 2014. Unlike today, from the summer of 2014 until early 2022, Kyiv and Moscow have been negotiating intensively with each other, both within the framework of the Minsk negotiations and Normandy than elsewhere. Since the issue of the peninsula’s status on the Black Sea had become a zero-sum game between Moscow and Kyiv after its official annexation by Russia, there was nothing to discuss about Crimea. From September 2022, Moscow has created the same deadlock for four other regions of southeastern mainland Ukraine.
Structural obstacles to negotiations
Many observers believe that the achievement of a ceasefire between Moscow and Kyiv depends on the political will of a few selected political figures, such as the presidents of Russia, Ukraine, the United States, France, the European Commission. This view ignores that Russia’s 2014 and 2022 constitutional amendments regarding the official territory of the Russian Federation created structural obstacles to peace negotiations productive with Ukraine. The widespread assumption that better or different political agency and diplomatic engagement from the West, Kyiv or both is sufficient to reach a lasting agreement with Moscow is therefore naïve.
The constitutional impasse that emerged after the Russian annexations of 2014 and 2022 is not the only one obstacle to meaningful negotiation (as will be illustrated in three other comments). However, that is already enough to be skeptical of the potential for a lasting, non-military solution to the current conflict. Such an end to the ongoing war would be possible – in the hypothesis of continued Russian opposition – only if Ukraine revised its constitution and therefore denounced itself as an independent state.
This would not only be – and rather unlikely – unsatisfactory for most Ukrainians. It would also question the stability and future borders of other states. Their current territories could, following Moscow’s strategy of behavior since 2014, be abolished through military interventions and political annexations by their neighbors.
Cover photo EPA/MAXIM SHIPENKOV