Two Big Obstacles To Peace: The Russian And Ukrainian Constitutions
Even if Russia's Vladimir Putin and Ukraine's Volodymyr Zelensky were willing to find a compromise on territory, their respective constitutions explicitly forbid signing off on such a deal.
STOCKHOLM — Debates about how to bring an end to the Russian war in Ukraine are growing more intense as the months go by. Regardless of whether they believe it is desirable, or even possible, to end this war around the negotiating table, all those involved in the debate must acknowledge the difficulties associated with that approach. Moscow’s track record of neo-imperialist interventions in the affairs of other countries over the last three decades gives much cause for scepticism.
There are a whole host of reasons why negotiations between Kyiv and Moscow are unlikely to take place, or to achieve any significant results if they do — let alone reach a lasting peace deal.
The main reason lies in the contradictory claims of the Ukrainian and Russian constitutions. Russia’s most recent unlawful annexation of four regions in south-eastern Ukraine, in September 2022, represents a huge obstacle to peace.
It is an intensification of the problem first created by Russia’s scandalous, illegal military annexation of the Crimean peninsula over eight years ago. Since March 2014, the situation in Crimea has been an almost insurmountable obstacle to productive discussions between Ukraine and Russia.
The two countries not only need to discuss a range of political questions, but also to overcome a fundamental legal issue. Russia’s actions over the last almost nine years have not only been an unprecedented breach of international law. Moscow’s annexations have also fundamentally changed its own domestic legal situation. Both the Ukrainian and the Russian constitutions now explicitly claim sovereignty over the same territories in eastern and southern Ukraine, including Crimea.
As presidents of their respective countries, Vladimir Putin and Volodymyr Zelensky are seen by their people as “guarantors” of their constitutions and have a responsibility to uphold them. Even if one or both of the leaders wanted to compromise on territory, their constitutions explicitly forbid this.
The Crimean question
This means that before serious peace talks can take place, one or other of the constitutions must be amended. However, that would require a significant majority of parliamentary votes, which, to put it mildly, would be difficult in Putin’s Russia and unrealistic in Ukraine.
Before the latest wave of annexations, the Crimea question could have been put off, or perhaps one day resolved with partial concessions to Moscow’s demands.
For example, a temporary international administration could have been established to govern Crimea, or Russia may have been appeased by increasing the already high level of independence enjoyed by the autonomous republic of Crimea within Ukraine. However, since Russia’s annexations of a further four Ukrainian regions in September 2022, these options no longer seem feasible.
It is not only that the Kremlin’s justifications for the annexation of these territories are even more flimsy than its arguments for annexing Crimea in 2014. The question of the Crimean peninsula, which until now was partly up for debate, has become a matter of principle, a far larger question about the identity, integrity and future of Ukraine.
It creates a difficult legal context for any possible negotiations between Kyiv and Moscow.
It is now part of a larger question about a founding member of the United Nations’ right to existence (the Ukrainian Soviet Socialist Republic was part of the UN from 1945 until 1991). This means that more and more people and countries across the world are now showing support for rolling back all of Russia’s illegal westward expansion.
Ominously, Moscow’s annexation documents from September 2022 and the corresponding changes to the Russian constitution explicitly claim sovereignty over Ukrainian territories that are not currently under Russian control. Instead, these regions have either always been under Kyiv’s control or have been retaken by Ukrainian troops.
In reality, none of the four recently annexed Ukrainian territories have been conclusively captured by Russian forces. This creates a bizarre contradiction with the Russian constitution, which includes these regions in the official territory of the Russian Federation.
In Sevastopol, Crimea, at the center of the Ukraine-Russia dispute
Annexed territories, partial Russian control
In fact, Russia has turned itself into a “failed state”, according to the definition of the term used in political science and international diplomacy. Before 2022, Moscow was seeking to undermine the sovereignty and integrity of other states such as Moldova, Georgia and Ukraine through military and non-military means. Now the Russian Federation itself — according to its own constitution — is a country that doesn’t completely control its own borders and territories.
That is not only an embarrassing situation for the Kremlin, both domestically and internationally. It also creates a difficult legal context for any possible negotiations between Kyiv and Moscow, on which many politicians, diplomats, experts and the general public outside of Ukraine are pinning their hopes. As long as the Russian constitution remains as it is, Putin – or any other Russian president — would not have the authority to give back the Ukrainian territories currently under Moscow’s control.
What’s more, Russia’s constitution now seems to require the head of state to seek to occupy further Ukrainian territories. Any official Russian negotiator would be legally obliged to insist that Kyiv cedes further Ukrainian territories to Moscow – in order to bring the text of the Russian constitution in line with the political reality on the ground.
Some people may think that the obviously absurd nature of this diplomatic situation would be enough reason to dismiss it out of hand. However, any Russian president or other negotiator would run the risk of being accused of high treason if they suggested or agreed to anything that is contrary to the Russian constitution.
The same is true for any Ukrainian president or other negotiator, whose constitution would oblige them to insist on Ukraine’s full territorial integrity and political sovereignty being restored as soon as possible.
Political will alone is not enough
This is the reason why, over the last nine years or so, there has been no serious progress in negotiations between Ukraine and Russia over Crimea. Unlike today, between summer 2014 and early 2022, Kyiv and Moscow were engaged in intensive negotiations with one another, through the Minsk Trilateral Contact Group and the Normandy Front.
However, as the status of the Crimean peninsula after its official annexation by Russia became a zero-sum game for Moscow and Kyiv, there was no room for discussion. Moscow’s annexations of September 2022 have created a similar roadblock when it comes to the four further regions in south-eastern Ukraine.
Changes to Russia’s constitution in 2014 and 2022 pose structural obstacles to productive peace talks.
Many onlookers believe that achieving a ceasefire between Moscow and Kyiv depends on the political will of a few chosen leaders, such as the presidents of Russia, Ukraine, the United States, France, the European Commission, and so on. This view ignores the fact that the changes to Russia’s constitution in 2014 and 2022 pose structural obstacles to productive peace talks with Ukraine.
The widespread assumption that better political and diplomatic engagement from the West or Kyiv, or both sides, would be enough to achieve a lasting agreement with Moscow is therefore naïve.
The constitutional dead end created by Russia’s annexations is not the only obstacle to meaningful negotiations. But on its own it is sufficient reason to be skeptical about the potential of a long-term non-military solution to the current conflict. Assuming Russia continues with its intransigent stance, this would only be possible if Ukraine amended its own constitution and thereby gave up its status as an independent state.
This is highly unlikely: not only would it be unsatisfactory to most Ukrainians, but it would also threaten the future stability and borders of other countries, whose territories would be at risk of seizure by neighboring states following Moscow’s strategy of military interventions and political annexations.
*Andreas Umland is an analyst at the Stockholm Centre for Eastern European Studies at the Swedish Institute of International Affairs.
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