01 May Termination of the Treaty of Friendship between Ukraine and Russia – Too Little Too Late?
Yulia Ioffe is a DPhil (PhD) candidate in Public International Law at University of Oxford.
On 21 April 2019, Ukraine held the second and the final round of its presidential elections. The new President, Volodymyr Zelensky, has vowed to focus on achieving a ceasefire in an armed conflict in the East (which has claimed more than 13,000 lives) and moderating hard-line policies aimed at promoting the Ukrainian language. As a result, he was repeatedly called a Kremlin’s puppet and accused of being ‘sympathetic’ towards Russia.
The first round of elections took place on 31 March 2019, coincidentally one day before the termination of the Treaty of Friendship, Cooperation and Partnership between Ukraine and the Russian Federation (the Treaty, English version starts at p. 30). A perceived hesitation on the part of Ukraine to terminate the Treaty met a lot of criticism domestically, since it took Ukraine almost five years since the annexation of Crimea and the start of armed conflict in Eastern Ukraine.
The termination of the Treaty, however, seems to be a logical conclusion of the term of the current President of Ukraine, Petro Poroshenko, who came into power after the Maidan revolution. Months before the election, having low approval ratings, Poroshenko grasped at straws to increase his support among the Ukrainian population, which might explain this rather ‘odd’ timing of the Treaty termination.
The post will discuss the history and content of the Treaty, the official position of Ukraine and Russia in relation to the termination of the Treaty, whether the termination is consistent with the Vienna Convention on the Law of Treaties (VCLT), and whether it was possible to terminate the Treaty earlier.
History and Content of the Treaty
The Treaty was signed on 31 May 1997 by the second President of Ukraine, Leonid Kuchma and the first President of Russia, Boris Yeltsin. The Treaty entered into force on 1 April 1999.
The Treaty was concluded for ten years, but provided for the possibility to be renewed automatically for successive 10-year periods, if neither party intended to terminate the Treaty (Article 40). If the party did intend to terminate the Treaty, it had to notify the other party at least six months before the expiry of the current 10-year period. In 2008, the Treaty was automatically renewed for another ten years. On 17 September 2018, President Poroshenko initiated the process of the Treaty termination before another 10-year renewal. On 21 September 2018, the Ukrainian Ministry of Foreign Affairs notified the Russian Federation about the intention not to renew the treaty. On 6 December 2018, the Parliament of Ukraine adopted Law No. 2643-VIII (here in Ukrainian) terminating the Treaty, with 277 votes in support and 20 opposing (Ukrainian Parliament has 450 seats; 331 MPs were present during the vote).
One of the key obligations set by the Treaty was Article 2, which observed that the parties ‘shall honour each other’s territorial integrity and shall acknowledge the inviolability of the borders existing between them’. Article 3 further clarified that the parties ‘shall structure their relations […] on the principles of […] sovereign equality, territorial integrity, inviolability of borders’. Otherwise, the Treaty included mainly obligations of conduct, formulated in aspirational language. In particular, the majority of the Treaty provisions concerned the cooperation in different spheres, including military (Article 8); disarmament (Article 9); economy and trade (Articles 13-14); protection of investment (Article 15); transportation (Article 17), education and science (Article 23). A substantive part of the Treaty regulated the position of Russians in Ukraine and vice versa. For instance, the Treaty ensured the protection of national minorities and their right to ethnic, cultural, linguistic and religious identity (Article 12) and provided national treatment to citizens of the other state (Article 10).
Moreover, Article 38 encouraged the parties to enter into other treaties that are ‘necessary for the implementation of the provisions’ of the Treaty. Consequently, the Treaty was a basis for a number of subsequent treaties, including the 2004 Treaty between Ukraine and the Russian Federation on Cooperation in the Use of the Azov Sea and the Kerch Strait (here in Ukrainian; still in force) and the 2004 Treaty between Ukraine and the Russian Federation on the Ukrainian-Russian State Border (here in Ukrainian; still in force). What will happen to these treaties after the termination remains to be seen.
The Treaty did not have a compromissory clause, but Article 37 envisaged that the disputes in relation to interpretation or application of this Treaty had to be settled through consultation and negotiations. Further, Article 7 provided that if there was a threat to peace or any concerns in relation to national security, sovereignty or territorial integrity, the parties had an option of conducting consultations to resolve the situation. In this regard, surprising is the statement of the Ukrainian Minister of Foreign Affairs that the Treaty was not terminated earlier, because it had been used for the purposes of bringing the cases before the international courts and tribunals, including the International Court of Justice (ICJ) and the European Court of Human Rights.
Ukrainian View on Termination
Ukrainian Law No. 2643-VIII states that Ukraine terminates the Treaty based on Article 60 of the VCLT and Article 40 of the Treaty. The reason for termination includes the military aggression of the Russian Federation, which according to the Law is against the object and purpose of the Treaty and also constitutes a material breach of the Treaty. The Law notes that the termination of the Treaty exempts Ukraine from any obligations under the Treaty and does not affect the rights, obligations or legal status of Ukraine arising from the implementation of this Treaty prior to its termination, which is in line with Article 70 of the VCLT.
Russian View on Termination
The Kremlin Press Secretary criticised Ukrainian move towards termination of the Treaty, calling it ‘shooting yourself in the foot’. The Russian Ministry of Foreign Affairs responded with denying the violation of the Treaty and ‘declared readiness’ to hold negotiations to update the bilateral legal framework, which ‘may admittedly have become somewhat outdated.’ The Russian Federation also accused Ukraine in violation of a number of provisions of the Treaty, including Article 6 of the Treaty, prescribing the parties ‘not to enter into any agreements with any countries directed against the other party’ and Article 12 of the Treaty, ensuring the ‘protection of the ethnic, cultural, linguistic, and religious identity of national minorities on their territory’ and promoting ‘the creation of equal opportunities and conditions for the study of […] the Russian language in Ukraine.’ According to the Russian Foreign Ministry, these provisions were violated by Ukraine’s ratification of the Memorandum of Understanding between Ukraine and the Alliance on Host Nation Support for NATO Operations, amending Ukraine’s Military Doctrine to proclaim the strategic goal of joining NATO, and adopting a number of laws ‘waging a consistent offensive against the Russian language and the rights of Russian speakers in Ukraine’, including the Law on Language Quotas for Television and the Law amending Ukrainian Legislation to Restrict the Entry of Anti-Ukrainian Foreign Print Products.
Is Termination Consistent with the VCLT?
Article 54 of the VCLT prescribes general and obvious grounds for the termination of a treaty (a) under its provisions or (b) by consent of the parties. As can be seen from the above, Article 40 of the Treaty expressly provided for a possibility to terminate the Treaty six months before the renewal. Ukraine followed the procedure pursuant to Article 40 of the Treaty, and terminated the Treaty in compliance with the VCLT.
At the same time, Ukraine could have terminated the Treaty in consequence of a material breach pursuant to Article 60 VCLT, even though the general logic of the VCLT implies that states cannot release themselves from treaty obligations at will (Villiger, Commentary on the 1969 Vienna Convention on the Law of Treaties, p. 684). The principle of reciprocity dictates that the injured party should not be called upon to comply with its obligations under the treaty when the other party fails to comply with those obligations which it undertook under the same treaty (Villiger p. 738).
Article 60(1) of the VCLT generally permits to invoke the material breach as a ground for terminating a bilateral treaty. Although the concept of ‘material breach’ is highly contentious in academic literature (Corten and Klein, Vienna Convention on the Law of Treaties, p. 1377), the main definition is given in Article 60(3)(b) of the VCLT, referring to ‘the violation of a provision essential to the accomplishment of the object or purpose of the treaty’. Unfortunately, Article 60(3) of the VCLT and the International Law Commission commentary are silent on the interpretation of what is meant by an ‘essential provision’. It is clear, however, that the determination has to be made in light of the object and purpose of the Treaty. One of the commonly mentioned sources of guidance on the object and purpose of a treaty is its preamble (Case concerning Sovereignty over Certain Frontier Land, pp. 209, 221). The preamble of the Treaty states that the ‘strengthening of friendly relations, good-neighborliness and mutually beneficial cooperation corresponds to the vital interests of their peoples and serves the cause of peace and international security’. The first three articles of the Treaty clarify that these friendly relations should be based on the respect to sovereign equality, territorial integrity, and inviolability of borders.
The Treaty at hand is different from a typical FCN. Thus, the logic, which the ICJ applied in Oil Platforms (Preliminary Objections, para 28) and Military and Paramilitary Activities (Nicaragua v USA) (Merits, para 273) that the respective FCNs ‘[were] not to regulate peaceful and friendly relations between the two States in a general sense’, is not applicable in this case. Indeed, the circumstances of adopting the Treaty were different. The Treaty was aimed at maintaining peace and security and avoiding potential violence and armed conflict between the two states that were created after the collapse of the Soviet Union. The provisions on respecting the territorial integrity and inviolability of the borders were essential to the execution of the Treaty, since they induced Ukraine to enter into the Treaty in the first place. Therefore, the violation of Articles 2 and 3 of the Treaty as a result of Russia’s aggression in 2014 would have qualified as a material breach, as these were the provisions essential to the accomplishment of the object and purpose of the Treaty under Article 60(3)(b) of the VCLT.
Since the Russian Federation alleged that Ukraine also had violated certain provisions of the Treaty, Russia could have argued – if unconvincingly – that Ukraine had been responsible for the occurrence of Russia’s material breach and consequently was precluded from invoking Article 60 (see Gabčíkovo case, para 110).
The Treaty has been terminated in line with the VCLT. The failure to invoke a material breach by Ukraine and as a result a 5-year wait for the termination are more easily explained by political reasons rather than the ambiguity of the term ‘material breach’ or an attempt to bring cases under the Treaty against Russia before international courts and tribunals.
The Treaty served as a legal framework for Ukraine-Russia bilateral relations for 20 years. Since the termination of the Treaty, the Russian President announced his decision to fast-track Russian citizenship for the residents of Eastern Ukraine, and Ukraine’s Parliament approved a law granting special status to the Ukrainian language, making it mandatory for public sector workers, as well as requiring 90 percent of content in Ukrainian for TV and film distribution firms (see here in Ukrainian).