Ukrainian modern politics seems to be unimaginable without loud pre-election statements. Everyone chooses "pillars" for themselves, leaning on which their pr-strategy will work. Actually, President’s Administration decided to voice one such "pillars" – geopolitical one.
It is about denouncing the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation, signed in 1997. This thesis was announced by the head of state at a recent meeting with Ukrainian ambassadors. In particular, he stressed that he expects from the Ministry of Foreign Affairs a package of documents that are necessary to launch the whole process.
However, the corresponding proposal is not new. The corresponding bill on denunciation has already been submitted to the Verkhovna Rada in 2014. However, it was not put to the vote at that time.
There are no formal reasons for a delay. Let us not discuss the backstage issues. No one is surprised by the fact that from time to time government patrons are letting out “a patriotic gin.” All of us remember Tomos, or calls to consolidate in our Euro-Atlantic aspirations in the text of the Constitution.
Of course, the burning of bridges with Moscow fits perfectly into the general context of patriotic rhetoric and, most importantly, it enjoys the support of the majority of Ukrainian citizens. It remains only to find a profitable format.
Back in April during the 11th Kyiv Security Forum, Petro Poroshenko announced that he would propose terminating certain provisions of the Treaty. Now we are talking about its denunciation. As you can see, not all puzzles are combined into a single picture.
Manuscripts do not burn…
From a legal point of view, the document itself contains a provision on the procedure for its termination. According to Art. 40, it "will then be extended automatically for subsequent ten- year periods if one of the High Contracting Parties does not inform the other High Contracting Party of its intention to curtail it by written notification not less than six months before the end of the current 10-year period."
The treaty entered into force after the exchange of instruments of ratification in April 1999. For its termination, according to Art. 40, within nine years, Ukraine can at any time send a relevant statement to the Ministry of Foreign Affairs of the Russian Federation and stop this "fraternal friendship". The question is precisely about the ground of such a decision.
In accordance with paragraphs 5 and 32 of the first part of art. 85 of the Constitution of Ukraine, the adoption of decisions on the denunciation of international treaties of Ukraine refers to the powers of the Verkhovna Rada. This issue is resolved by submitting for consideration in the paliament of the relevant draft laws on the representation of subjects of the right of legislative initiative, which under Article 93 of the Constitution of Ukraine are the President of Ukraine, People's Deputies of Ukraine, and the Cabinet of Ministers of Ukraine.
That is, the Basic Law does not contain provisions that would rule out the possibility of people's representatives to submit to the parliament bills on the ratification and denunciation of international treaties of Ukraine.
On the other hand, point 3 of the first part of Art. 106 KG provides that the conduct of negotiations and the conclusion of international treaties are attributed to the authority of the head of state. Also, paragraph 1 and paragraph 7 of Art. 116 determine that the implementation of foreign policy and the organization and provision of foreign policy activities are attributed to the powers of the Cabinet of Ministers.
Therefore, logically, the corresponding bill on denunciation must be submitted to the Verkhovna Rada by the president or the Cabinet.
In particular, it would require an appropriate conclusion of the government, which, in accordance with the relevant provisions of the Constitution of Ukraine (Article 116) and the Law of Ukraine "On the Cabinet of Ministers of Ukraine" (Article 20) ensures the implementation of the foreign policy of the state, decides on the conclusion and implementation of international treaties of our state.
The key risks
Many experts agree that denunciation will provide additional legal and political grounds for protecting Ukraine's national interests. In particular, it will increase our credibility as a self-sufficient, integral and independent country. In addition, at the legislative level, this will help to consolidate today's real state of international relations between Ukraine and the Russian Federation.
However, there is an opinion that the termination of the Treaty is dangerous because it deprives Ukraine of access to the mechanisms of bilateral regulation laid down in the Treaty, as well as the right to invoke the violation of the Treaty while protecting its violated rights in international instances.
From the legal point of view, it is rather difficult to say whether the termination of the Treaty will give Ukraine additional advantages in international lawsuits against the Russian Federation. As basically it depends on the professionalism of the specific lawyers who will represent Ukraine. However, it can be precisely stated that the termination of the Treaty will in no way influence the establishment of the international legal responsibility of the aggressor for violating its norms.
"Mickey Mouse" document
In order to understand that all this Treaty in the current realities is a complete absurdity, it is enough to look at several norms from the first articles of the document. This is an excellent illustration of the real attitude of the aggressor to the norms of the international document that he has signed.
So, art. 1 stipulates that "the High Contracting Parties, as fraternal, equal, and sovereign nations, shall base their relations on mutual respect and trust, strategic partnership, and collaboration." Well, Moscow seems not to care about it.
Art. 2 says that "The High Contracting Parties, in accordance with the provisions of the UN Charter and obligations under the Final Act of the Council for Security and Collaboration in Europe, shall respect each other's territorial integrity, and confirm the inviolability of the borders existing between them." Russia, having occupied part of Ukraine, automatically becomes a violator of the treaty. On occasion, the whole horde of "Putins" will not hesitate to break it again.
Art. 3: "The High Contracting Parties shall construct their relations with each other on the basis of principles of mutual respect for sovereign equality, territorial integrity, the inviolability of borders, the peaceful settlement of disputes, the nonapplication of force, including economic and other means of pressure, the right of peoples to decide their own fates freely, nonintervention in internal affairs, the upholding of human rights and basic freedoms, collaboration among nations, and the conscientious fulfillment of international obligations assumed, as well as other generally accepted norms of international law." No comments.
Art. 4 says that the parties “shall take essential steps to promote the process of general disarmament and the creation and strengthening of a system of collective security in Europe, as well as to strengthen the peacekeeping role of the UN and increase the effectiveness of regional security mechanisms." Another daring and cynical violation by the Russian Federation.
Art. 6 states that "each of the High Contracting Parties shall refrain from participation in or support of any actions directed against the other High Contracting Party, and is obligated not to enter into any agreements with any countries directed against the other Party. Neither of the Parties shall also permit its territory to be used to the detriment of the security of the other Party." It follows that our European aspirations, in particular, Ukraine's accession to NATO, can be viewed by the aggressor as an external threat. It is logical that such norms hinder the movement of Ukraine to the Alliance and should be abandoned.
In addition, in Art. 7 provides that "in the event, a situation arises that, in the opinion of one of the High Contracting Parties, creates a threat to peace, disrupts the peace, or affects the interests of its national security, sovereignty, and territorial integrity, it may propose immediate consultations to the other Party. The Parties shall exchange the appropriate information, and where necessary take coordinated or joint steps, in order to overcome such a situation."
What kind of consultations can we talk about when the aggressor annexed part of the sovereign territory of the state and supports separatist militants in another part.
The Russian Federation has violated virtually every undertaken norm under the Treaty, demonstrating complete disregard not only to the Treaty but also to international law as a civilizational property of the free world.
I also want to draw attention to the numerous speculations of politicians and experts on the issue of automatic extension of the Treaty and its termination six months before the expiry of the next 10-year period.
It is worth explaining that, according to Art. 40 of the Treaty, it was indeed concluded for a period of ten years, and its validity should indeed automatically continue for the next ten-year periods.
But further, the Treaty provides for a mechanism for the termination of the contract at the request of one of the parties, which must notify the other party of this intention six months before the end of the next ten-year period. So, not "six months before," but "not less than six months before" the end of the next ten-year period.
It is important that the next ten-year period expires in April 2019, and its last six months is the period from October to March 2019.
Now, as a result of delaying important decisions, lack of political will and search for political dividends from the leaders of the Ukrainian state and politics, an unfortunate situation has developed: if we do not inform the aggressor of the termination of the Treaty before the end of September, we will have to wait until April to return to this issue. Is this just a calculation or unprofessionalism? But this definitely does not meet the interests of the people.
Unfortunately, I have to admit that the denunciation of the Treaty is not an instrument of combating the aggressor, but rather an internal trump card in the hands of those who are ready to plunge into the turbulent pre-election suffer, using this "pillar". At the international level, this situation does not fundamentally change. Everyone knows perfectly that any promises of Moscow, even if they are secured by international treaties, are not worth a dime.
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