Blog

by Lukas Wahden, Research Assistant at the German Association for East European Studies and a Yenching Scholar at Peking University

• Russia’s recognition of the so-called ‘Donetsk and Luhansk People’s Republics’ in eastern Ukraine conclusively upended a broad international consensus on the laws upholding the sanctity of post-imperial borders

• The aftershocks of this decision are likely to further erode international institutional safeguards against territorial irredentism, resulting in an aggravation of border disputes around the world

• In the longer term, Russia’s recognition of breakaway republics in eastern Ukraine will also have a negative impact on several aims of Russian foreign policy, such as Russia’s attempts to portray itself as a conservative bulwark defending the international order, the Sino-Russian ‘strategic partnership’, and Russia’s ability to preserve its own territorial integrity against regional separatist forces

Two days before Russia launched its war in Ukraine, the Kenyan diplomat Mbugua Martin Kimani offered a rare glimpse of sanity during an emergency meeting of the United Nations Security Council. Condemning Russia’s recognition of two breakaway statelets in eastern Ukraine, the so-called ‘Donetsk and Luhansk People’s Republics’, Kimani drew a parallel between current territorial disputes in Ukraine and the situation faced by his country in the wake of its own independence from the British Empire.

Kenya, Kimani recalled, was born out of the ruins of European imperialism. But the Kenyan borders, as well as those of most other African states, had been drawn up in imperial metropoles with no sensitivity to local conditions, and therefore continued to reflect the country’s painful modern history. Instead of attempting to remedy those arbitrary borders through territorial irredentism, African states such as Kenya had jointly settled on an inherently flawed – but neatly delineated – system of territorial division following their independence. Prioritising political stability and continental integration over the rectification of historical injustice at all cost.

Kimani’s comments offered a subtle, but remarkable, rebuttal to a rambling speech given the night before by Vladimir Putin. In that speech, the Russian president laid out his argument in favour of recognising the ‘Donetsk and Luhansk People’s Republics’, and branched off into a lengthy historical excursion, arguing that modern Ukraine as a whole was a brainchild of the Soviet Union’s early leadership, with no authentic tradition of statehood. In Putin’s view, the 1991 international recognition of the borders of Ukraine as congruent with the territorial boundaries of the Ukrainian SSR, should in retrospect be seen as an injustice of enormous proportions, inflicted against the historical legacy of the Russian people.

While Putin’s irredentist musings over Ukraine did not previously attract much attention, they were by no means without precedent. In July 2021, the website of the Kremlin released a long essay written by the president, entitled ‘On the Historical Unity of Russians and Ukrainians’. In that essay, Putin first spelled out his quarrels with modern Ukrainian statehood, citing among his sources his former mentor, the first mayor of Saint Petersburg, Anatoly Sobchak, as an ostensible ‘legal expert’. In 1992, Sobchak had proposed that the successor states of the Soviet Union should accept the restoration of their borders to the outlines of the year 1924, in which the USSR had first assumed its shape as a federation. Restating Sobchak’s demands thirty years later, Putin argued ​​that borders inherited from the Soviet era – and especially those that had been drawn up at the expense of the ‘Russian core’ – should now again be ‘subject to discussion.’

Putin’s claims stand in sharp contrast to the remarks made by ambassador Kimani. Both do, however, revolve around the same long-standing dilemma in international politics and law. For the best part of three centuries, the dissolution of imperial structures and multinational states has proceeded in accordance with a legal principle called uti possidetis iuris, which determines that any seceding territory should retain as its new international borders the dividing lines that, at the time of its independence, marked it out as a separate region within the state it formerly belonged to.

Applied for the first time during the dissolution of the Spanish empire in the Americas, uti possidetis later also provided the legal groundwork for the delineation of post-colonial borders in Africa, the Middle East and Asia. In the early 1990s, the European Community recommended that the principle be used for the recognition of new states in former Yugoslavia. And at the 1991 Belavezha Conference, during which the leaders of the Soviet republics of Russia, Ukraine and Belarus formally dissolved the USSR, uti possidetis was applied to determine the borders of the Soviet Union’s fifteen successor states.

In all those instances, the use of the uti possidetis principle reflected a compromise between multiple states emerging from imperial or quasi-imperial structures. Internal administrative boundaries within empires are rarely perceived by affected peoples as just or legitimate. Problematically, however, perceptions regarding the injustice of post-imperial territorial borders can quickly proliferate both within seceding territories, their neighbouring states, as well as the former imperial metropoles, and often in mutually irreconcilable ways. To prevent wars over territory, post-imperial states therefore often settled on applying uti possidetis as the lesser one of two evils, a choice of stability at the expense of territorial justice however perceived.

The outcomes of such compromises over territory are today universally acknowledged, and the principle of uti possidetis iuris has been recognised as customary international law by the International Court of Justice. Alongside a strong territorial integrity norm, respect for uti possidetis helped to bring about a sharp decline in the number of wars after 1945, with wars of conquest virtually subsiding after 1975 .

For Putin to upend the territorial settlements of the post-Soviet area, and to claim for Russia a right to modify regional borders by force, a right based on nothing but a subjective perception of      ‘historical injustices’, risks to open the Pandora’s box of territorial irredentism, not only in the post-Soviet region itself, but also in other post-imperial settings. The galvanising impact of Putin’s invasion might, for example, soon be felt in the West Balkans, where territorial revisionism is playing a noticeable role in the run-up to upcoming elections in Serbia. Its effects could also, however, come to reshuffle the cards in ongoing border conflicts in Africa and Asia.

The problems created by Russia’s war in Ukraine could also, however, turn out to be even more fundamental. As a permanent member of the United Nations Security Council, Russia holds a special responsibility for the upkeep of the post-war international order. For the past twenty years, Russian foreign policy has consistently attempted to highlight the undesirable impacts of precedents being set by selective violations of international legal provisions on the part of great powers, and especially by the United States. Russian decision-makers will understand, therefore, that Russia’s choice to upend a near-universal consensus on the law underlying post-colonial borders will likely produce unintended consequences far beyond the realms of its own neighbourhood.

Moreover, Russia’s much-vaunted foreign policy goal of casting itself as a conservative bulwark acting in defence of the traditional precepts of international law is also unlikely to survive the war in Ukraine. In the long term, this will have a negative impact on the viability not only of Russia’s grand strategy, which will need to be rethought, but also erode the Sino-Russian ‘strategic partnership’, which is premised on perspectives shared by both countries on the nature of the international order.

But most significantly, perhaps, it should be remembered that Russia itself is not only a post-imperial, but simultaneously also an imperial state. Russia remains home to more than 190 nationality groups, some of which harbour their own ambitions for territorial independence. By destroying a legal framework that has long supported Russia’s territorial integrity from the outside, Moscow is accepting a risk that its policies on Ukraine might at some point backfire in its own regions.In the early 1990s, several Russian regions tried to break away from Moscow. For future Russian leaders, it will be difficult to explain why the historical injustices’ that justified Putin’s war in Ukraine should not also suffice as grounds for Karelia, Chechnya or Tatarstan to seek independence from the Russian Federation. Arbitrary boundaries were drawn up by the Soviet leadership not only in Europe, but also within the heartlands of the former Russian empire – in the long term, Russia’s policy towards breakaway statelets in eastern Ukraine might therefore unexpectedly come back to haunt it.