The “Big” Ukrainian-Russian Treaty: Time to Terminate?

Ukraine is about to terminate the epochal Treaty with Russia, singed more than two decades ago, by activating the clause of its Article 40. Sending a notification of non-prolongation six months before the end of another ten-year period would bring the Treaty to an end – and that’s the plan of the Ukrainian President.

From our perspective such a move would weaken Ukraine’s international position, including vis-à-vis Russia. The Treaty has been a legal instrument for holding off Russia: despite the fact that Moscow violated the Treaty by annexing Crimea, further escalation was made more risky and expensive because the Treaty has been valid. Moreover, this fundamental document has been referred to in numerous legal processes Ukraine has been running against Russia internationally. Last but not least – the Treaty has been an instrument for Ukraine to induce its weaknesses in a confrontation with a much superior rival. In asymmetric conflicts weak parties need binding norms and agreements, even if they are violated; while stronger parties want to get rid of them. A move by Ukraine to terminate the Treaty may in the end play with Russia’s hand.

Introduction

There are 41 articles in the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation. The word “cooperation” is used most often, 35 times. In 1997 it has been definitely a treaty about cooperation virtually in everything.

Those days are gone. The Parties to the Treaty are rather fighting than cooperating. Russia has annexed Crimea and supported separatists in Donbas. Hostilities with varying degrees of intensity are under way in economic, trade, energy, information, and a number of other areas. But the Treaty has still been in force.

According to Article 40, the Treaty is supposed to continue automatically every ten years, unless one of the Parties notifies the other of its intention to terminate no later than six months beforehand. Deadline for Ukraine is the last day of September. At a recent meeting with ambassadors President Poroshenko demanded the Ministry of Foreign Affairs to prepare documents to notify the Russian party, that Ukraine would opt to halt the Treaty. This would be a simple legal step with possible huge political consequences.

For several times the issue of possible termination of the Treaty has been heavily debated in Ukraine. Pros and cons are rather well known by now. But the moment is different today: now a decision has to be taken, be it continuation or termination. There’s no room for further uncertainty. Moreover, presidential elections are just several months ahead. That adds specific flavor to any foreign policy moves, especially when it comes to dealing with Russia. Ukraine doesn’t seem to have a long-term Russian strategy, but politicians do have their election strategies at hand. The stance of the future of the Treaty, which has already become a symbol of hybridism of bilateral relations, may be a powerful asset in election wars of 2019.

Political speculations aside, the Treaty is a part of a broader fundamental problem: finding the best way to deal with Russia. This is not an easy problem at all. Strategic asymmetry, high level of interdependence, and lack of trust are key features to keep in mind while shaping the future of bilateral agreements.

What’s So Big about the “Big” Treaty?

In 1997 the world has been different from what it is today. It is even more so when comes to the Eastern Europe and regional security arrangements. Twenty years ago it seemed like former Soviet republics, although going through a difficult transformation period and occasionally suffering internal conflicts, would however manage to maintain international peace.

The agenda of regional security has not been yet dominated by Russia’s intentions to regain dominance over post-Soviet space. Even Russia’s relations with the West have not yet been damaged – that would happen shortly after. Bilaterally Ukraine and Russia were mostly concerned about division of the Black Sea Fleet and the status of the Russian Black Sea Fleet in Ukrainian Sevastopol.

An agreement was needed to resolve most urgent issues and set the framework for further – as it was believed – friendship, cooperation, and partnership. Twenty years ago Russia’s share in Ukraine’s foreign trade was about 38.5%[1], comparing to current 25%[2]. The two countries were united by economic ties, joint ventures, transit capacities, and social interactions. The potential for further cooperation seemed huge, and the Treaty was set to enhance it.

The Treaty is mostly about cooperation – from military to educational issues. It covers important problems of citizenship, language, economic cooperation, which were equally important in 1997 and after. But what is more important, it sets a mechanism for settling disputes, establishes regular meetings of minister of foreign affairs, joint commissions and other tools for a constant and active bilateral dialogue. It also outlines strategic partnership between the two countries, aiming at further strengthening it.

A part of the Treaty that lays out general principles of bilateral relations (Articles 2-7) carries the spirit of the agreement[3]. This is because of this part that the Treaty is labeled “big”. This is about being good reliable and predictable neighbors, respecting sovereignty and borders of each other and resolving any conflict issues by negotiations and peacefully. To a certain extent the Treaty contained a model for post-Soviet space of how relations with Russia can be arranged.

The Treaty has been a framework. It was designed to be a basis to a number of other bilateral documents, among which the Black Sea Fleet Agreement of 1997, the Treaty on the Russian-Ukrainian State Border of 2003, and the so-called Kharkiv Accords of 2010 are the most important. Overall there have been 451 interstate agreements between Ukraine and Russia before 2014. Many of them, of course, were signed before the “Big” Treaty. More than forty of them have already been terminated or suspended as a result of annexation of Crimea by Russia in 2014.

The “Big” Treaty is still valid.

Why the Treaty Should or Should Not Be Terminated?

The Treaty is valid, although attempts to terminate it have been earlier taken. Back in 2014 the Ukrainian Parliament discussed a law, aimed at denouncing the Treaty, but failed to approve it. A broader approach, targeting at breaking off diplomatic relations with Russia and introduce visa regime for Russian citizens visiting Ukraine, has also been quite popular among Ukrainian politicians and experts. Earlier this year the President called for suspension of specific parts of the Treaty.

When it comes to discussing Ukraine’s further steps regarding the Treaty or, generally, regarding Russia, there always appears emotional side hand in hand with political reasoning.

Having a valid treaty about cooperation, friendship and partnership – referred to as “strategic” in Article 1 of the Treaty – is certainly a kind of schizophrenia under current geopolitical circumstances. The spirit of the document is completely ruined, and it no longer reflects in any way a true agenda of bilateral relations between Ukraine and Russia.

On the other hand, the document in many ways reflects actually what Ukraine would like to one day have in relations with Russia: respect for sovereignty and territorial integrity, refrain from the use or threat of force or peaceful ways of settling disputes. These are fundamentals of mutual trust and good neighborhood. If Ukraine is ever to have another treaty with Russia, it most certainly would contain all these passages.

Traditional argument against terminating the Treaty comes to possible weakening of Ukraine’s position in international courts. However, from a juridical standpoint, the fact that the Treaty had been violated does not depend on whether it is terminated or not. Russia can be hold responsible in any case. From this point of view, it is not clear enough what was meant by President Poroshenko, when he mentioned that Ukraine “is prepared and legally protected enough for a next step – termination of the Treaty…which due to Moscow has long ago become an anachronism.”[4] Ukraine has been equally ready for this step during recent four years.

However, it has never been an easy option. Terminating the Treaty is often believed to weaken legal constraints on Russia’s further aggressive actions. On the other hand, by annexing Crimea from Ukraine and supporting separatists in Donbas the Kremlin has demonstrated that considerations of hard power calculations are far more important for Russia than any legal commitments. Not only has the “Big” Treaty with Ukraine been violated, but also founding principles of international law. It doesn’t look like if Russia decides further escalation is in its interests, the Treaty would stop it.

But the Treaty is also important in one more regard. Ukraine is a weaker party to a protracted asymmetric conflict. Weaker parties are usually better off when a stronger party is bounded by norms, agreements, and multilateral commitments. In other words having no framework agreement with Russia would damage Ukraine more. Possible weakening of international position versus Russia may be a price for internal political gains.

Bringing legal basis of bilateral relations into correspondence with political reality is, of course, necessary and inevitable. The “Big” Treaty hasn’t lived up to expectations, and is certainly among other important international norms, violated by Russia. The end of another ten years period of extension may be a right moment to terminate the Treaty. However, extensive analysis should be carried out to define how termination of the Treaty would impact the whole complex of bilateral Ukrainian-Russian agreements.

Conclusion

Russia’s aggressive policy towards Ukraine has undermined all the values which were laid out the foundation of bilateral relations and thus made the Treaty outdated.

However, there have been good reasons for Ukraine so far not to rush and halt the agreement. A violated Treaty has been referred to in international courts and put additional diplomatic and political costs on Russia. With its fundamental provisions being broken, it still provided minimal toolbox for protecting some of remaining Ukrainian interests in relations with Russia.

But today – due to the Treaty’s timeline and Ukrainian elections approaching – compromised decisions have little chances to work out. Rhetoric about abandoning some of the Treaty’s provisions, so popular several months ago, is no longer applied. Terminating the Treaty, as well as announced Constitutional amendments about Ukraine’s NATO and EU membership aspirations, are supposed to work together and help bring electoral result next year.

Simple decisions, however, are not going to work in a situation so difficult. Ukraine should be getting ready for more unpredicted and more risky relations with Russia after the Treaty is terminated.