HOW RUSSIA’S CONSTITUTION HINDERS PEACE

Author: Dr. Andreas Umland, Analyst with the Stockholm Center for Eastern European Studies (SCEEUS) at the Swedish Institute of International Affairs (UI)

There are numerous reasons why negotiations to end Russia’s invasion of Ukraine are unlikely to be successful, but one stumbling block is particularly serious and rarely mentioned.

Russia’s illegitimate annexation of four territories in 2022 in mainland south-eastern Ukraine, i.e., of the Donetsk, Luhansk, Zaporizhzhia, and Kerson 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 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 domestic law. As a result, the Ukrainian and Russian Constitutions now lay explicitly 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 expansion 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.

Note

Typically, regular amendments to Ukraine’s Constitution must garner the support of two-thirds of parliament (art. 155). Amendments of the most important constitutional provisions require in addition ratification by an „All-Ukrainian“ referendum (art. 156).

Ukraine’s Constitution explicitly acknowledges the importance it attributes to Ukraine’s territorial integrity and national unity, but camouflages its methods of defending it through use of double-speak, which is a common tactic among democratic constitutions to protect territorial integrity. On the one hand, Article 2 brands Ukraine’s territory “within its present border… indivisible and inviolable,” and Article 157 forbids constitutional amendments “oriented toward the liquidation of the independence or violation of the territorial indivisibility of Ukraine.” These provisions suggest that amending Ukraine’s Constitution to allow for secession would amount to an unconstitutional constitutional amendment as a violation of the eternal value of territorial integrity and national unity. On the other hand, Article 73 disguises this by seemingly providing a track for “altering the territory of Ukraine … [albeit] exclusively by an All-Ukrainian referendum.” In fact, the Ukrainian Constitutional Court attempted to prevent Crimea from holding a referendum to support secession because this matter can only be decided at the national level. In Ukraine’s case, requiring an All-Ukrainian referendum is a gentler way of impeding secession, because of the low probability that parliament would authorize such endeavor and that most Ukrainians ratify secession. Moreover, the alternative of relying on the Court to declare a constitutional amendment unconstitutional after the fact may come too late to prevent secession.

Reinforcing this interpretation is the fact that the Ukrainian Constitution further hinders secession, by forbidding the establishment of political parties which aim to violate Ukraine’s territorial sovereignty (art. 37). Ukraine invoked this clause on a few occasions to ban Communist parties from promoting Russian meddling with Ukraine’s sovereignty and territory.