This informative article shows that International treaties have to be consistent with national and international law if they have to represent the interests of the country and its people.
On the 21st of April 2010 in the city of Kharkiv in Ukraine, President Victor F. Yanukovich of Ukraine and President Dmitry A. Medvedev of the Russian Federation signed The Agreement where the period of the Black Sea Fleet of the Russian Federation to remain on the territory of Ukraine is extended for 25 years, from 2017 to 2042 with an automatic prolongation for 5 additional years.
In Ukraine, The Agreement caused indignation of the opposition, of parties of ecologists, of local Councils and in general of all segments of the Ukrainian society. A great number of analyses concluded that The Agreement contradicts the Constitution of Ukraine.
The Association of Independent Jurists and Journalists “The Democratic Space” decided to examine The Agreement and the legal grounds both for The Agreement and against it. The research focused on whether The Agreement fell in compliance with the applicable standards established by the current Ukrainian legislation and binding norms of the International Law. So, the whole article of this is based on the findings of the Association’s “Analysis of The Agreement between Ukraine and the Russian Federation pertaining to questions of presence of The Black Sea Fleet of the Russian Federation on the territory of Ukraine”.
The current Ukrainian and International laws that apply to this Agreement are:
1. The Constitution of Ukraine.
2. An agreement (named the Basic Agreement) between Ukraine and the Russian Federation “On the Status and Conditions for the Black Sea Fleet of the Russian Federation to Remain on the Territory of Ukraine” dated 28.05.1997.
3. An agreement between Ukraine and the Russian Federation “On Parameters of the Black Sea Fleet Division” dated 28.05.1997.
4. An Agreement between the Governments of Ukraine and of the Russian Federation “On Mutual Calculations Related to the Black Sea Fleet of the Russian Federation Division and to Remaining on the Territory of Ukraine” dated 28.05.1997.
5. The Law of Ukraine “On the International Treaties of Ukraine” dated 29.06.2004.
6. The Law of Ukraine “On the Order of Access and Conditions for Sub-Units of the Armed Forces of Foreign States to Remain on the Territory of Ukraine” dated 22.02.2000.
7. The Vienna Convention “On the Law of Treaties” of 1969.
An Examination in the aforementioned Analysis by the Association’s President determined that:
1. The Law of Ukraine “On the International Treaties of Ukraine”. foresaw that an International treaty of Ukraine might be extended due to the conditions established by the treaty itself;
2. The aforementioned Basic Agreement, concluded for a period of 20 years, by Article 25 envisages its prolongation only for 5 year periods providing that the period of its effect would be further automatically prolongated for subsequent 5 year periods unless any of the parties advised the other party in writing of the termination of the Basic Agreement’s effect no later than a year before an expiration of the Agreement’s period of validity”. It means that, from the day of an expiration of the valid 20 year period, the term could be extended only in 5 year increments.
In our case, as we see, the 20 year validity term of the aforementioned Basic Agreement, did not come to an end and hence as it is obviously seen, the legal grounds for its prolongation did not exist in 2010. Since the Basic Agreement does not foresee a prolongation of the agreement for more than a 5 year period, its prolongation for a period of 25 years by The Agreement, does not have any valid grounds.
An access of sub-units of other states to to the territory of Ukraine is permitted by the aforementioned Law of Ukraine “On the Order of Access and Conditions for Sub-Units of the Armed Forces of Foreign States to Remain on the Territory of Ukraine”, dated 22.02.2000. It states that such an access may be performed in accordance with the following underwritten aims (an aim is an obligatory indication in an International Treaty ) as they follow:
a) the joint participation with sub-units of armed forces of Ukraine, and with other armed formations for military training, and in other arrangements directed towards an improvement of military readiness, exchange of experience within the frameworks of agreements concerning international military cooperation intended for a joint preparation of military sub-units grounded in the frameworks of military cooperation according to the international treaties of Ukraine;
b) a transitional displacement of sub-units of armed forces of other states across the territory of Ukraine when the term of such displacements might not exceed 10 days unless other is not stated by an international treaty of Ukraine;
c) rendering military assistance to Ukraine at its request for the purpose of responding to: military aggression of a third country, in extraordinary situations caused by natural and man-made consequences;
d) maintenance of military units temporarily located on the territory of Ukraine due to international treaties.
The Agreement concerned envisages neither an aim that could have corresponded to national interests of Ukraine that could substantiate a need to prolong the military presence of the Black Sea Fleet in Ukraine, nor duration of this presence which accords with Article 5 of the aforementioned Law “On the Order of Access and Conditions for Sub-Units of the Armed Forces of Foreign States to Remain on the Territory of Ukraine”. These conditions have to be understood as having clear distinctness and limitedness in time and conformity of that presence to the interests of Ukraine, but not of Russia. To the contrary, Article 2 of the aforementioned Basic Agreement speaks only of the interests of Russia i.e. of the interests of the Black Sea Fleet of the Russian Federation.
The Agreement, contrary to the requirements of this Law of Ukraine, does not define any limitations to the activity of the Russian Naval Base. That is, it does not impose a prohibition for the Fleet to join military conflicts with third countries, so that the national interests of Ukraine might be threatened. In the light of the Resolution of the 29th Session of the General Assembly of the UNO, in such a case Ukraine might be considered an accomplice of the aggression and would be automatically absorbed in war if ships of the Black Sea Fleet of the Russian Federation based on the territory of Ukraine participated in military actions, since there are no agreements establishing the right of Ukraine to ban the use of armed forces of the Russian Federation from the territory of Ukraine against a third country.
The Agreement does not define an amount or order of payments to Ukraine for the rental of land and of other landed property on the territory of Ukraine, e.g. for living quarters; for the use of the territorial waters and airspace of Ukraine; for air navigation and hydro-graphic searches should military sub-units be located there; or for providing Russian nationals with communal and other services. The Agreement does not define the process of determination of damages and recovery of damages to Ukraine and to third countries, or to physical and legal persons on the territory of Ukraine due to the actions or lack of actions by personnel and sub-units of the Russian Black Sea Fleet. The Agreement does not envisage a procedure to exercise control over activities of sub-units of the armed forces of the Russian Federation, including the possibility of revisions without notice, of how the sub-units of the armed forces of the Russian Federation might meet conditions of this agreement.
The Agreement does not stipulate conditions for a denunciation of this agreement, which means that The Agreement cannot be denounced or withdrawn from by a party to the Agreement as it is provided for by Article 56 of the Vienna Convention “On the Law of International Treaties”, stating that such a denunciation or withdrawal can not be considered legal if an agreement does not contain such a condition in its body. The Agreement manifestly does not comply with the requirements of the Convention and the aforementioned Article 5 of the Law of Ukraine dated 22.02.2000. So, one needs to conclude that any agreement that would be legal and responsive to the interests of Ukraine would foresee a limit to the stay of the armed forces of the Russian Federation on the territory of Ukraine.
The Agreement of 21 April 2010, like the Basic Agreement of 28 May 1997 that was extended, set such limits that would allow the Russian Federation to believe that its Fleet would remain on the territory of Ukraine for a long period of time. That such presence does not reflect the national interests of Ukraine is substantiated by Article 17 of the Constitution of Ukraine, which reads that presence of foreign armed formations shall not be permitted on the territory of Ukraine. And although account 14 of part XV of the Constitution of Ukraine envisages the existence of foreign military bases on the territory of Ukraine, it emphasizes that such a presence of the armed forces of the Black Sea Fleet of the Russian Federation in the Crimea ought to be temporary, on conditions of rent, in a manner stipulated by international agreements.
Supporters of The Agreement, while referring to its Article 2, speak of the value of this agreement to the national interests of Ukraine and its people saying that a rental payment for the presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine, beginning from 28 May 2017, will comprise payments by the Russian Federation to Ukraine amounting to 100 million American dollars per year plus additional costs, received as a reduction (beginning from the date of this agreement comes into force), of the price of natural gas established by the current Contract between NAK NAFTOGAS of Ukraine and VAT GASPROM in the amount of 100 USD per each 100 m³ of gas provided for Ukraine.
Also, should the price exceed $333 per 100m³ of gas; then it is reduced by 30%, paid out for the supply volume stipulated by the above contract. These additional funds have to be registered as monthly totals, as payment of the obligations of Ukraine, to be cleared off through the execution of provisions of Article 1 of this Agreement.
Thus although The Agreement is specific in having the obligations of Ukraine cleared off, it does not recognize the obligation (and if there’s not an obligation, then there’s not a responsibility) of Russia to make the rent payments to Ukraine in the amount of 100 million US Dollars. In the wording of Article 2 of this Agreement, payment as lease for the presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine, starting from 28 May 2017, will comprise payment for the presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine. Such a wording defines the amount of payment, but not an obligatory annual payment of this sum to Ukraine for the 25 years’ period to which the basic agreement is extended.
Moreover in this provision of The Agreement, the terms of such payments did not have a clear meaning and according to the requirements of the Vienna Convention “On the Law of International Treaties” (Article 32),The Agreement concerned is inadmissible for being equivocal. So, on the one part, the rent payment due to Article 2 of The Agreement, dated 21.04.2010, has to be received by Ukraine together with the concessionary gas prices beginning from 28 May 2017, while, on the other part, the agreed payments have to be made by Ukraine to Russia from the date that this Agreement comes into force, that is from the date of ratification( on27April 2010) by the Ukrainian and Russian Parliaments.
The Agreement does not envisage a legal mechanism to ensure the execution of payments by Russia to Ukraine that demonstrates the failure of The Agreement to assert the national interests of Ukraine and its citizens. The lack of such a mechanism in The Agreement will make the recovery of the agreed but not paid sums difficult, even if so ordered by international courts. The Agreement is clearly more concerned about gaining permission for the navy of the Russian Federation to be based on the Ukrainian territorial waters of the Black Sea, than about intentions of the Russian Federation to make future payments to Ukraine in return for Ukraine’s granting permission for a further extension of the Russian Fleet’s presence in the territorial waters of Ukraine. That is, The Agreement is secured only by the other party’s absolute confidence in the promises of the Russian Federation.
In order to evaluate the validity of this confidence, one needs to analyze the Russian Federation’s fulfillment of preceding agreements mentioned above.
Some Ukrainian Internet and journal articles pertaining to these questions state that the Russian party more than once had violated treaty requirements of the aforementioned agreements between Ukraine and the Russian Federation and that is substantiated by the facts as they follow below.
In 2005 military personnel and equipment of the 382nd detached battalion of marines disembarked in the Crimea from a Russian landing vessel of the Black Sea Fleet “M. Filchenkov” with the authorization of the Russian Federation. The Russian party had not adjusted their plans to hold maneuvers and combat training on Ukrainian territory with the competent Ukrainian authorities as was their obligation. The maneuvers and training included vessels of the Black Sea Fleet crossing the frontier of Ukraine, which is specifically addressed in the above Agreement “On an Order of Ordnance Yards Use for Combat Trainings of the Naval Forces of Ukraine by the Naval Forces of the Black Sea Fleet of the Russian Federation”.
On 15 April 2008 an APR-3M-1 aircraft rocket designed to attack vessels was lost from a nautical sea yard by ships of the Russian Federation. Authorities of the Black Sea Fleet did not acknowledge this by any documentation. On 26 April 2008, a coastal command of Ukraine found this rocket on a seashore of Privatnoye – a village of the Alushta district in the Crimea. Such a loss of this military rocket endangered the local inhabitants. Experts of the Naval Forces of Ukraine examined the rocket and concluded that the Russians had brought armaments to the territory of Ukraine that had not been stipulated by the Russian- Ukrainian agreements.
During the preparatory arrangements to commemorate on the 29th of April 2008 the 250th anniversary of the City of Sevastopol founding, ships of the Russian Federation performed maneuvers in the bay of the city. During these maneuvers ten armored troop carriers of the 810th regiment of marines of the Black Sea Fleet landed from the landing ship “Azov”. The troop carriers and marines performed military exercises and marched through the streets of the city to the point of their re-embarkation in the Kozacha bay. Permissions for naval maneuvers and for the movement of armored troop carriers along the streets of the city had been given neither by the Center of Regulation of ships’ movements of the Transportation Ministry of Ukraine nor by motor inspection department of the Ministry of Internal Affairs of Ukraine.
According to the information from UNIAN the Ministry of Foreign Affairs of Ukraine issued a decisive protest against systematic neglect by the Russian Black Sea Fleet of provisions of the Basic Agreement.
On 8 July 2009 law enforcement officers of Ukraine detained vehicles of the Black Sea Fleet of the Russian Federation that in violation of the agreements were transporting winged rockets through the densely populated city of Sevastopol without any permission from the Ukrainian authorities. Experts concluded that those actions of the Russians created a risk of extraordinary emergency. The possibility of such threats increased when the Russian Federation amended its defense structure legislation through Presidential Ukase dated 10.01.2000 (#24). This Ukase envisages an application of forces beyond the confines of the Russian Federation in case the national interests of Russia require it.
A deployment on the Ukrainian territory of the Russian potential nuclear weapons transports, including the armored cruiser “Moskva”, the patrol ships “Pitlivy” and “Smitlivy”, as well as airplanes: “Su-24”, “BC-12”, and “KA-27″ is an infringement of the International agreements of Ukraine.”
Some actions of the commanders of the Black Sea Fleet of the Russian Federation violated the sovereignty of Ukraine on its territory, and violated the rights of Ukrainian citizens when the commanders enclosed some inhabited locations with fences and established checkpoints at entrances making them closed areas. For example, this was done in the city of Kacha, hindering the free movement of the inhabitants of the peninsula.
More than once Russian authorities subleased lots of land and landed property belonging to Ukraine to other persons and legal entities, without necessary permissions and approvals, who in the course of time changed their function, modified structures etc. Lessees and sub-lessees did not properly maintain some properties leased to them, causing gross material losses. These violations of the basic agreements between Ukraine and the Russian Federation concerning the Black Sea Fleet, as it is understood, are a vivid substantiation that the execution of The Agreement does not support absolute confidence in the promises that the Russian Federation will pay the rent agreed in return for the Black Sea Fleet’s staying on the Ukrainian territory.
The Agreement we are examining both as other agreements concerning the Black Sea Fleet do not clearly define the legal status of landed property. Neither do they secure the rights of Ukrainians to that property given by Ukraine to the Black Sea Fleet of the Russian Federation in a way that allows the authorities of the Fleet to sublease to commercial parties against the interests of Ukraine. The Agreement as well as the preceding agreements mentioned above, could be better understood to represent the interests of the Ukrainian state and of its citizens if they clearly defined the rent payments for the use of the land, defined waters, air space and other privileges of Ukraine. The Ukrainian Delegation when concluding the first basic agreements concerning the rent of lands and specific waters by Russia, proposed different calculations based on the Russian legislation that resulted in a sum of 420 million US Dollars. During the negotiations in Kyiv, the Russian Delegation headed by the then PrimeMinister V. Chernomyrdin did not agree with that sum.
The Ukrainian delegation then proposed a calculation based on average rates of payment for lands situated beyond the confines of inhabited settlements that amounted to $22,000 US dollars per hectare per year. The first proposed figure of 420 million dollars was close to world rates. For example, the USA while renting the naval base in Subic Bay in the Philippines, which doesn’t have the developed infrastructure of Sevastopol or Feodosia in the Crimea, pays $25,000 dollars per year for the use of a hectare of the base’s territory. The Russian Federation uses eighteen parcels of land totaling 23 hectares in the cities of Feodosia, Yalta, Yevpatoria and Saki, and in the Black Sea Region. One can imagine what the payment to Ukraine would have been, had the terms been determined in the agreements. According to this rate, Russia will have to pay to Ukraine 471 million US Dollars annually. Russia was not able to pay such an amount to Ukraine. Hence debts for energy carriers were set as a base for the calculations. The Agreement like other basic agreements pertaining to the Black Sea Fleet of the Russian Federation envisages the payments for stationing of the Black Sea Fleet in Ukraine through the repayment of Ukrainian debts.
If The Agreement and other basic agreements could be concluded in a way that satisfied and asserted the national interests of Ukraine and its people through an establishment of precise rates of rent for outlined areas of waters of the Black Sea, air space and lands of the Crimea with its infrastructure), then Ukraine could receive funds exceeding those 100 millions of American dollars promised by Russia, that could be used to cover payments to the Russian Federation for their energy carriers. But at the time The Agreement was being drafted these issues were not brought up by the Ukrainian party. To answer a why question, one may refer to Mr. Yanukovich’s words saying in an interview to journalists that he had signed The Agreement because he had no choice regarding the conditions proposed by the Russians and because the economy of Ukraine was in a critical state.
So, going out of this one may conclude that The Agreement of 21 April 2010 was drawn by Ukraine in full compliance with the propositions of the Russian Federation’s interests while disregarding the national interests of Ukraine and its people.
An analysis of Article 2 of the Agreement, which discusses the structure of rental payments in return for the Black Sea Fleet’s stationing on the Ukrainian territory, shows that it contradicts fundamental methodology in the construction of international treaties that requires them to be unambiguous so as to facilitate the understanding of The Agreement. As an example of this is the fact that the rental payment for the use of the Ukrainian territory by the Black Sea Fleet of the Russian Federation, in the amount of 100 million dollars a year together with the funds as a reduction of prices for natural gas (up to 100 US dollars per thousand cubic meters) will take effect beginning from 28 May 2017 and not from the date of the Agreement comes into force, i.e. from 27 April 2010 that is the date of The Agreement’s ratification by the parties.
That the Russian Federation was is and will be in no hurry to pay its contractual debts to Ukraine can be proved by the fact that, on 13 July 2007 at the headquarters of the Black Sea Fleet in Sevastopol, at the Exit Session of the Council of Defense and Security of the Russian Federation there was taken a decision regarding a transportation of remnants of ammunition kept in storehouses of the Fleet to the Russian territory The Council emphasized a necessity to find at the process of this transporting a mechanism to avoid export controls, taxes and fees that is illegal.
After all we have discussed, one may conclude that The Agreement did not fall in compliance with current Ukrainian and international law, concerning requirements to extend the period of presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine till 2042.
For this reason the Association decided to propose to President of Ukraine in accordance with some provisions of the Vienna Convention “On the Law of International Treaties” to make possible amendments to The Agreement of 21 April 2010, due to the legal grounds explored in the Association’s analysis. On 08 May 2010 the Association of Independent Jurists and Journalists “The Democratic Space” sent its analysis with the proposition to President Victor F. Yanukovich of Ukraine. He has not responded yet.
While drawing a conclusion one may say that the aforementioned The Agreement between Ukraine and the Russian Federation concerning the prolongation of the Russian Naval Base operation on the territory of Ukraine does not have legal grounds for it doesn’t fall in compliance with lawand hence it does not protect national rights and interests of Ukraine and its people. * * * * * * * *
Literature used in the process of writing this article:
1.The Constitution of Ukraine adopted by the Supreme Council of Ukraine on 28June 1996. 2.The Law of Ukraine, “On the International Treaties of Ukraine” dated 29 June 2004. 3.The law of Ukraine “On the Order of Access and Conditions for Sub-Units of the Armed Forces of Foreign States to Remain on the territory of Ukraine”, dated 29 June 2004. 4 An Analysis of The Agreement between Ukraine and the Russian Federation pertaining to questions of presence of The Black Sea Fleet of the Russian Federation on the territory of Ukraine”, by the Association of Independent Jurists and Journalists “The Democratic Space”. April 2010
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This article is written in English in Kirovograd, Ukraine, by Valleriy I. Shevchuk, LLM, Master of laws in Comparative Constitutional Law, president of the Association of Independent Jurists and Journalists “The Democratic Space”,Senior Counsellor of Justice.
This is an adapted version of the Author’s original article. The adaptation to American English was made by Ronald K. Robertson from Wichita, USA, who is a native born American.