Russia’s illegitimate annexation of four territories in 2022 in mainland south-eastern Ukraine, i.e., of the Donetsk, Luhansk, Zaporizhzhia, and Kherson oblasts, represents a conundrum. It magnifies the challenge of the earlier shamelessly illegal theft and annexation of the Crimean peninsula. Since March 2014, and even more so since September 2022, this has become the most intractable obstacle for productive talks.
The two countries would need to solve not only a number of political issues between each other, but a fundamental legal confrontation. Russia has been not only violating international law for almost nine years now, in a hitherto unthinkable manner. The Kremlin’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.
Putin and Zelenskyy both face dilemmas around this issue. While it is true that the Russian leader now has near-dictatorial powers (and an instinct to match), he would nonetheless struggle to amend again a Russian constitution he so recently changed. President Zelenskyy’s situation is far clearer. Changing the nation’s key legal foundation document to allow Ukraine’s dismemberment is clearly a political impossibility, except in the event of outright military defeat.
Regardless, the constitutions of one or both countries would have to change in the event of a territorial compromise. That, in turn, would require large majorities in parliamentary votes.
A reversal of the 2022 and especially 2014 enlargements of Russia, in a new constitutional reform is somewhat more likely than Ukraine’s voluntary reduction of its state territory. Yet, it would be politically a far greater gamble for the Putin regime to do this than it was to seize Crimea, Donetsk, Luhansk, Kherson, and Zaporizhzhia regions in the first place. Such an abrogation of the fateful 2014 and 2022 expansions of Russia and the separation of territories now regarded by Russian law as full parts of the Federation would appear to most Russian nationalists as embarrassing, if not outright illegitimate. It could, moreover, become suggestive for other Russian regions, which, for instance, in the case of a deep socio-economic crisis, might consider the idea of a similar departure from the Federation they are now subjects of.
Ominously, Russia’s September 2022 annexation documents and the revised Russian basic law make explicit claims toward Ukrainian lands that Russia does not actually occupy. Instead, these territories are still held or have been recaptured by Ukraine. None of the four newly annexed mainland oblasts of Ukraine has been fully captured by Russian forces. That is in contradiction to the Russian state’s new self-definition and, therefore, in partial violation of the Russian Constitution.
This creates a curious legal context for any negotiations between the two. Unless Russia’s Constitution changes, Putin or any other Russian president would not only be unable to return any currently occupied Ukrainian territories to Ukraine’s control, its most fundamental law would require Russia’s head of state to demand additional territories to bring the text of the Russian Constitution into congruence with the political realities on the ground.
Some may think that the manifest absurdity of such a diplomatic position is sufficient to dismiss it out of hand. Yet, this cannot be ignored.
The status of the Black Sea peninsula became, after its official annexation by Russia, a zero-sum game; once decided, there was nothing to discuss about Crimea. Since September 2022, the Kremlin has only added to the problem with its latest annexations.
The constitutional impasse that has emerged is not the only hindrance to meaningful talks but is another reason to be skeptical about the potential of a lasting non-military solution to Russia’s war.
Dr. Andreas Umland is an Analyst with the Stockholm Center for Eastern European Studies (SCEEUS) at the Swedish Institute of International Affairs (UI). This article summarizes parts of a longer SCEEUS report on hindrances for Russian-Ukrainian negotiations currently in preparation.
Europe’s Edge is CEPA’s online journal covering critical topics on the foreign policy docket across Europe and North America. All opinions are those of the author and do not necessarily represent the position or views of the institutions they represent or the Center for European Policy Analysis.
