For a month, heated discussions among politicians and opinions in the West about how the Russian-Ukrainian war can and should end are intensifying. Regardless of one’s position on the desirability and possibility of a negotiated end to the war, all must recognize the difficulty of achieving such an end. The experience of various countries regarding Moscow’s neo-imperial intervention over the past three decades provides enough grounds for skepticism.

Opposition of two constitutions

There are a number of reasons why negotiations between Kyiv and Moscow are unlikely to take place or lead to any results, let alone lasting peace. One of these reasons is the clear contradiction between the constitutions of Ukraine and Russia. Russia’s recent illegal annexation of four territories in southeastern Ukraine, namely the Donetsk, Luhansk, Zaporizhia, and Kherson regions, is a major problem. This heightens the challenge posed by Russia’s equally scandalous military seizure of the Crimean peninsula and its illegal incorporation eight years ago. Since March 2014, and even more so since September 2022, this has become an insoluble problem for the possibility of productive negotiations between Ukraine and Russia.

The two countries have to resolve not only a series of political issues between themselves, but also a fundamental legal confrontation. Not only has Russia violated international law for almost nine years in a way that was previously unimaginable. Moscow’s annexations also fundamentally changed Russian domestic legislation. As a result, the Ukrainian and Russian constitutions now explicitly state that one and the same territory in eastern and southern Ukraine, including Crimea.

In addition, Putin and Zelensky – as presidents of their countries – are considered by their peoples to be “guarantors” of their Constitutions and as such are obliged to fulfill them. Even if one or both are willing to make territorial compromises, the basic laws of the two states expressly prohibit them from doing so. This means that one or both constitutions must be changed before meaningful peace talks can take place. For this to happen, it is necessary to secure the majority necessary for voting in the parliaments. This is, to put it mildly, difficult in the case of Putin’s Russia and unrealistic in Ukraine.

The Crimean precedent

This legal issue has existed since March 18, 2014, when the Russian Federation officially included the Crimean Peninsula in its state territory. The annexation of Crimea was officially recognized by only a few countries and political circles of the world. In 2014, Moscow presented to the outside world a semi-believable explanation for the violation of international law in the Black Sea. Among other dubious claims, it claimed that it was Crimea’s history under the tsarist and Soviet empires that justified Russia’s outrageous actions in 2014.

Undoubtedly, the history of the Kremlin is an exercise in choosing what was agreed upon in history. Many national governments around the world could – and some do – present similar irredentist narratives by referring to some historical episode. They could also lay claim to certain territories that had once belonged to their country, but which now – as a result of alleged historical injustice – ended up in other states.

Despite the dubious historical discourse and the political explosiveness of Russian rhetoric in 2014, many politicians and diplomats, as well as some experts around the world, unofficially believed the Kremlin’s story about Crimea. And this despite the real history of Crimea before, during and after the tsarist period, as well as the subversive consequences of such recognition for the stability of the world legal order. Moscow’s outright recognition of its claims to the Black Sea peninsula – among many non-Russian observers, even some in the West – was one of the reasons why international sanctions in response to Russia’s extraordinary actions in February-March 2014 were either mild or negligible. existing.

Until recently, the Crimean issue was, perhaps, an issue that could either be postponed for the distant future, or resolved in part at some point according to Moscow’s preferences. The latter could happen, for example, through the creation of a temporary international administration of the peninsula or through further strengthening of the autonomy of the Ukrainian Autonomous Republic of Crimea. But with the annexation of four additional Ukrainian territories by Russia in September 2022, such options seem to have disappeared.

A new dead end

And the Kremlin’s arguments regarding the recent second annexation of the southern and eastern territory of Ukraine are even more fragile than the arguments regarding the annexation of Crimea. The hitherto semi-open issue of the peninsula has now been repackaged into a more important territorial issue of identity, unity and the future of Ukraine as a whole. The issue of Crimea is now an integral part of the broader issue of the right to existence of the founding country of the UN. (Ukrainian Soviet Socialist Republic was a part of the UN from 1945-1991.) As a result, the complete withdrawal of Russia from the entire illegally annexed region, according to all the wishes of Ukraine, is today supported by more people and countries around the world than before.

Ominously, Moscow’s September 2022 annexation documents and the updated Russian Basic Law make clear claims to Ukrainian lands that Russia has not actually occupied. These territories are either still or again under the control of Kyiv, not Moscow. In fact, none of the four recently annexed mainland regions of Ukraine have yet been fully captured by Russian forces. This contradicts the new self-determination of the Russian state and partially violates the Constitution of Russia, which includes these regions in the official territory of the Russian Federation.

In fact, Russia has now turned into – what is known in political science and international diplomacy – a “fail state”. Until 2022, Moscow was engaged in reducing the sovereignty and integrity of other countries, such as Moldova, Georgia and Ukraine, through military and non-military means. Currently, the Russian Federation itself – according to its own Constitution – is a country that does not fully control its borders and territory. This is an uncomfortable political situation for the Kremlin, both domestically and internationally.

This creates a strange legal context for the negotiations between Kyiv and Moscow, the success of which many politicians, diplomats, experts and laymen outside Ukraine hope to succeed. Unless the Russian Constitution is changed, Putin or any other Russian president will not be able to take back any Ukrainian territory currently under Moscow’s control. The Russian constitution requires the head of the Russian state to strive to occupy them completely. By law, the official Russian negotiator should insist that Kyiv cede additional Ukrainian territories to Moscow in order to bring the text of the Russian Constitution into line with the political realities on the ground.

Some might think that the obvious absurdity of such a diplomatic constellation is enough to dismiss it from the outset. However, the Russian president or another Russian negotiator would risk being charged with treason if he suggested, agreed, or tacitly agreed to violate the Russian Constitution. The same applies to every Ukrainian president or other participant in the negotiations, who are also obliged by their Constitution to strive for the earliest possible restoration of Ukraine’s territorial integrity and full political sovereignty.

This general deadlock for almost nine years has been the reason for the absence of serious negotiations on Crimea between Ukraine and Russia after March 2014. Unlike today, Kyiv and Moscow communicated intensively from the summer of 2014 until the beginning of 2022 under the Minsk agreements. and Norman format, as well as elsewhere. Since the issue of the status of the Black Sea peninsula after its official annexation by Russia became a zero-sum game between Moscow and Kyiv, there was nothing to discuss about Crimea. Since September 2022, Moscow has created the same impasse with respect to four other regions in the southeast of mainland Ukraine. Read the entire article and comment on Contributors.ro