Legal pitfalls of Russian annexations

On September 30, 2022, Russia declared its annexation of four Ukrainian oblasts – Luhansk, Donetsk, Zaporizhzhia, and Kherson. None of the oblasts were under full Russian control at that point. In fact, the unilateral proclamation of them being ‘new Russian territories’ took place amid multiple Russian military setbacks, seen by many as one significant continuing retreat. 

To legitimise the process, the Kremlin staged ‘referenda’ in all four oblasts according to the assumed will of the people. As per the Russian Central Election Commission, 87.05 per centof the residents of Kherson on a turnout of 76.86%, had voted to support their annexation to Mother Russia. However, the organized retreat of occupation forces was met with widespread jubilation on the liberated streets of Kherson City. What gives?

The pretext of the Russian Constitutional Court’s approval of the four treaties is relevant here. It states that as a consequence of arbitrary decisions of the Soviet government, the territory of the Ukrainian SSR was comprised mostly of lands with a predominantly Russian population, held by Kyiv against the will of the people. This was aggravated even further in Russian eyes after the Orange and Euromaidan revolutions, which Moscow saw as culminating in ‘the anti-constitutional coup of 2014’ by the ‘Kyiv regime’. The Constitutional Court also noted that ‘admitting belief in good and justice as one of the founding values of the multi-national people of the Russian Federation, and being a social state governed by the Rule of Law, Russia cannot ignore massive facts of violations of the right to life and discrimination on the basis of ethnic and linguistic affinity, more so on the territory with the population of which Russia has long-lasting historical, cultural and humane connections.’

But if we are to pursue that logic, at least two distinct federal entities of the Russian Federation have no way of affirming their willing territorial affirmation of ‘long-lasting historical, cultural and humane connections’ with Russkiy mir…

In 2017, Sergei Kiriyenko, head of the Kremlin team in charge of designing contemporary internal politics in Russia, declared that ‘the Russian state has not been constructed according to the treaty principle.’ Kiriyenko said that to justify the Kremlin’s reluctance to reaffirm a treaty between Tatarstan and the Federal Centre, first approved by the Russian Parliament in 2007 for ten years. Even then, the State Duma’s approval followed a 1994 treaty signed after Tatarstan had refused to sign a Federative Treaty between the Kremlin and all Russian regions, which became the basis of the Russian Federation and its Constitution of 1993.

In addition, there is the question of Chechnya. It does not even have a valid peace treaty, let alone a federative one with Moscow. Yes, there was an accord signed on May 12, 1997, by Aslan Maskhadov, the President of the Chechen Republic Ichkeriya, and then-Russian President Boris Yeltsin. Yet that document only provided for controversies to be resolved by peaceful means and according to the norms of international law. Needless to say, Putin flagrantly violated its terms barely three years later after flattening Grozny in October 1999. The 1997 agreement followed the Khasavyurt Accords of 1996, titled ‘On principles of the basis of relations between the Russian Federation and the Republic of Chechnya.’ However, the misleading title demanded the upholding of a particular provision of the Russian Constitutional Court stating on December 26, 1996 that the signed documents do not regulate any relations between the Russian Federation and one of its subjects. Thus, Chechnya was clearly left outside the existing legal structure of the Russian state, with nominal autonomy. Moreover, the Chechen Republic Ichkeria, whose President signed the treaty, was declared to have ceased to exist, being replaced with the Republic of Chechnya. This left any documents signed previously null and void.

This is the context in which legal cover for the acquisitions of new territories needs to be revisited. In 2014, Moscow signed a treaty with the Republic of Crimea. In September 2022, four ‘new subjects of the Russian Federation’ (note the imperial term ‘subject’ instead of ‘federal entity’) were integrated through treaties. But as of November 2022, the Russian Federation has one republic with a treaty not reaffirmed (Tatarstan), one republic which had its constitutional definition changed without signing any legal treaty with Moscow (Chechnya), 18 republics that had initially signed on to the federative treaty but were later told by the Kremlin that such treaties had lapsed with no legal recourse made available to its co-signees, three republics with existing treaties whose legitimacy is not recognised internationally even by close allies such as China (Crimea, Luhansk and Donetsk republics), and of course, the Kherson and Zaporizhzhia oblasts. The Russian state has thus shown utter contempt for the rule of law and undermined its own Constitution and legal principles of interrelations between Moscow and the periphery. This not only weakens their case for the annexations of Ukrainian territory in 2014 and 2022, but also provides legal succour for separatist movements within Russia’s own internationally recognised borders.

Most regions signed the federative treaty of 1992, which was later redrafted together with the Russian Constitution. In 2002, both were signed into law in their new formats. The initial treaty provided revision of approval only for regions initially formed as Republics. Usually, republics are non-white, ethnic-minority regions populated by Chechens, Tatars, Buryats, etc. But the erosion of legal norms since the Chechen wars and the intensification of internal repression since 2002, the Russian Federation ceased to honour any legal treaty it had once signed. In 2017, Tatarstan just had it confirmed from Kiriyenko that Moscow does not consider treaty promises worth the paper they are printed on. In fact, the 2014 and 2022 invasions are themselves violations of the Budapest Agreement on which Ukraine’s denuclearisation was predicated.

The racial logic of the Russian Empire and the USSR were less clear, but in the modern Russian Federation, it could not be more blatant. In Timothy Snyder’s powerful words. ‘Russia’s main achievement in this war has been the kidnapping of hundreds of thousands of Ukrainian women and children and dispersing them throughout the Russian Federation, with the express purpose of creating more Russians in the future.

(Vitaly Charushin is a Russian pro-democracy activist and a partner at ITEA, an edtech start-up. He has previously worked at the National Democratic Institute in Moscow. This article has been written exclusively for The Business Post)