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 master of laws. 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:
- The Constitution of Ukraine.
- 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.
- An agreement between Ukraine and the Russian Federation “On Parameters of the Black Sea Fleet Division” dated 28. 05. 1997.
- 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.
- The law of Ukraine “On the International Treaties of Ukraine” dated 29. 06. 2004.
- 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.
- The Vienna Convention “On the law of Treaties” of 1969.
An Examination in the aforementioned Analysis by the Association’s President determined that:
- 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;
- 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.