The secret of the Kharkov agreements. Why does Ukraine still recognize the legality of the Russian fleet in Crimea?

Official Ukraine is against the denunciation of agreements signed by a state traitor

Beginning of April 2014. The occupation of Crimea is completed. Russian dictator Vladimir Putin has issued a decree terminating four interstate agreements concluded with Ukraine. We are talking about Russian-Ukrainian agreements on the Russian Black Sea Fleet, dated 1997 and 2010. Putin’s decision was preceded by “approvals” from the State Duma and the Federation Council of the Russian Federation.

“Today there are no grounds for continuing legal relations regarding the deployment of the facility and personnel of the Russian Black Sea Fleet in Ukraine, including the obligations of the Russian side to provide the Ukrainian side with payment or other compensation or compensation,” such a statement was made by Deputy Head of the Russian Foreign Ministry Grigory Karasin at the end March 2014.

Ironically, the role of the torpedo that incinerated the agreements of the now two warring states was played by one of the signatories, the ex-president of Russia, and as of 2014, the head of the government of the Russian Federation, Dmitry Medvedev.

Ten years ago, he turned to Putin and reported on the need to break the “Kharkov agreements,” which he himself consecrated with Ukrainian President Viktor Yanukovych.

In April 2010, the “Kharkov agreements” extended the stay of the Russian Black Sea Fleet in Ukraine by 25 years - until May 28, 2042, with subsequent automatic extension for subsequent five-year periods if neither party notifies the other party in writing of the termination of the Agreement no later than than one year before expiration. Payment for the presence of the fleet was to consist of annual payments of $100 million per year, starting in 2017, as well as additional funds obtained by reducing the price from the date of entry into force of this Agreement in the amount of up to $100 dollars from the price established by the current contract between NAC Naftogaz of Ukraine and OJSC Gazprom, for every thousand cubic meters of gas supplied to Ukraine. At a price of $333 and above per thousand cubic meters of gas, the reduction will be $100; at a price below $333, the reduction will be 30% of this price

How does Kyiv react to this in 2024, exactly 10 years after the events in Crimea and Moscow’s unilateral breaking of agreements?

As of April 2024, the Ministry of Foreign Affairs of Ukraine insists: the agreements on the basing of the Russian Black Sea Fleet in Crimea... are valid! “The specified international treaties, including the “Kharkov agreement,” remain relevant for Ukraine today, since, from the point of view of international law, they clearly confirm the sovereignty of Ukraine over the Autonomous Republic of Crimea, legally fix the temporary nature of the basing of the Russian Black Sea Fleet precisely on the territory of Ukraine, and define the international legal conditions for the lease of Ukrainian territory by the Russian side, etc.,” says the response of the Department of Communications and Public Diplomacy of the Ministry of Foreign Affairs to the “Commander in Chief” request.

Logic of the Ministry of Foreign Affairs

A few words about the agreements themselves. In 1997, Ukraine signed three agreements with Russia: on the status and conditions of the presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine; on the parameters of the division of the Black Sea Fleet and on mutual settlements related to the division of the Black Sea Fleet and the presence of the said fleet.

Key points of these documents:

• The agreement on the presence of the Russian Black Sea Fleet in Crimea is valid for 20 years - until May 28, 2017;
• Russia has pledged not to have nuclear weapons in the Black Sea Fleet on Ukrainian territory;
• Russia will compensate for damage that may be caused by the actions or inaction of military formations or persons from their composition in the performance of their official duties;
• The Russian Black Sea Fleet, located on the territory of Ukraine, undertakes to prevent pollution in the places of its deployment.

By the way, in the current realities, theses about the amount of weapons and equipment of the Russian fleet in Ukraine are eloquent. In particular, one of the 1997 agreements prescribed limits for the Russians: no more than 132 armored combat vehicles and 24 artillery units of 100 mm caliber and above. It was also allowed to use no more than 22 land-based naval combat aircraft.

As for the Agreement between Ukraine and Russia on the presence of the Russian Black Sea Fleet on the territory of Ukraine, which was signed on April 21, 2010 in Kharkov, it is actually a continuation of those previously adopted during Kuchma’s presidency.

In the context of the above described, the Ministry of Foreign Affairs of Ukraine takes the position: the formal preservation for Ukraine of the validity of the basic agreements and the Kharkov Agreement continues to provide our state today with an additional tool for the implementation of the international legal responsibility of the Russian Federation in connection with the armed aggression against Ukraine both in 2014 and and in 2022. Russia's deliberate violation of international legal obligations under these international treaties gives Ukraine the opportunity to raise the issue of the international legal responsibility of the Russian Federation and demand appropriate compensation on international platforms and within the framework of existing international legal mechanisms.

“Thus, the current situation regarding the validity of the basic agreements and the Kharkov agreement is characterized by the fact that the Russian side considers these international treaties to have lost force and do not apply, and the Ukrainian side, in accordance with Article 65 of the Vienna Convention on the Law of Treaties of 1969, expresses objections and challenges Russia’s corresponding unilateral steps to terminate the said international treaties as contrary to international law,” explains the Department of Communications and Public Diplomacy of the Ministry of Health

Deputy Minister of Justice - Commissioner for the European Court of Human Rights in 2016-2021, Ivan Lishchina, agrees with the position of the Ministry of Foreign Affairs. In a comment to the “Commander in Chief,” the ex-official noted: there are not many documents in which Russia officially recognized that the Crimean peninsula belongs to Ukraine.

“What happened in Kharkov in 2010 obviously contradicted the interests of Ukraine. At the same time, the Ukrainian side used the current Agreement between Ukraine and the Russian Federation on the presence of the Russian Black Sea Fleet when submitting evidence to the European Court of Human Rights. We are talking about the case “Ukraine versus Russia” regarding the occupation of Crimea. In particular, Ukraine proves that in the spring of 2014, not only units of the Russian Black Sea Fleet were in Crimea, as provided for in the mentioned interstate agreements, but also other types of troops, such as paratroopers,” explained the former Deputy Minister of Justice.

According to Leshchina, the denunciation of the “Kharkov agreements” will only bring disadvantages to Ukraine, since it will affect the previously built evidence base in international courts.

Fiasco in the Rada

And yet, on the part of Ukraine, there were several attempts to denounce the “Kharkov agreements” through the Verkhovna Rada. One of them was during the presidential term of Viktor Yanukovych. Opposition politician Vladimir Yavorivsky (died in April 2021) tried to screw the then government. In December 2012, the chosen one registered a corresponding bill, shrewdly emphasizing the threat to the national and economic security of Ukraine from the presence of the Black Sea Fleet in Sevastopol. The People's Deputy then noted: The Law “On the ratification of the Agreement between Ukraine and the Russian Federation on the presence of the Black Sea Fleet of the Russian Federation on the territory of Ukraine” was adopted (a week after the signing of the “Kharkov agreements” by Yanukovych and Medvedev - “Commander in Chief”) without preliminary consideration in the Constitutional Court for its compliance with the requirements of the Constitution.

It is expected that this legislative initiative failed then. The Main Scientific and Expert Department of the Verkhovna Rada issued “reinforced concrete” arguments: the 2010 Agreement does not provide for the possibility of its denunciation. In addition, the termination of the Agreement will entail an increase in state budget expenses due to an increase in the price of natural gas due to the cancellation of the discount that the then presidents of Ukraine and Russia included in the “body” of the document.

As a result, Yavorivsky’s bill received 152 votes, with the minimum required 226.

In the wake of the Revolution of Dignity, in March 2014, the same people’s deputy Yavorivsky again proposed to terminate the three agreements on the basing of the Russian fleet in Crimea from 1997. This was supposed to be a reaction to the so-called “entry of the Republic of Crimea and the city of Sevastopol into the Russian Federation,” which Putin consecrated on March 18, 2014. The bill lay in the Rada until November 2014, and then it was withdrawn.

People's Deputy Oleg Lyashko also tried to annul the agreement. But his bills on the denunciation of four agreements on the basing of the Russian Black Sea Fleet did not reach the session hall for four years.

Similar attempts were also recorded in the Verkhovna Rada of the current 9th convocation. In March 2021, people's deputy from the Servant of the People Oleg Dunda submitted a bill to denounce the Agreement between Ukraine and Russia on the presence of the Russian Black Sea Fleet on the territory of Ukraine.

In the explanatory note to the draft law, the author noted that in January 2011, the State Bureau of Investigation announced suspicion of high treason against Viktor Yanukovych for signing the Kharkov Agreements in 2010. The investigation believes that the ex-president, in prior agreement with senior officials of the Russian Federation, provided the then Russian President Dmitry Medvedev with assistance in carrying out subversive activities against Ukraine. As a result of the signing of the so-called Kharkov agreements, the personnel of troops and military equipment of the Armed Forces of the Russian Federation on the territory of Ukraine was increased instead of preparing for their reduction and withdrawal from the territory of Ukraine.

In a comment to “Commander-in-Chief,” Dunda said that the consideration of the bill on denunciation of the Agreement is being slowed down by the ministries of foreign affairs and finance. They recognize that the Russian Black Sea Fleet is in Sevastopol legally. Moreover, these ministries expect to recover compensation from Russia in the future for the unilateral denunciation of the “Kharkov agreements” in April 2014.

“This is an absolutely non-state position, given that there is a corresponding criminal proceeding in which the Kharkov agreements are interpreted as a surrender of national interests,” the chosen one is convinced.

constitutional Court

While the leadership of the Rada hesitates to put the bill on the denunciation of the Kharkov agreements to a vote, a group of people’s deputies took advantage of “option B.” In March 2023, parliamentarians launched an appeal to the Constitutional Court with a request to interpret the constitutionality of the Agreement between Ukraine and Russia on the basing of the Russian Black Sea Fleet on the territory of Ukraine. However, they also encountered difficulties.

It has been a year since the Grand Chamber of the Constitutional Court has been unable to take up the issue on its merits, since it has come under the “fire” of challenges from representatives of the President and the Verkhovna Rada in this court. They are against this issue being reported by the judge of the Constitutional Court Sergei Golovaty. The reason is that back in 2010, the deputy card of the parliamentarian Golovaty at that time voted in parliament for scandalous agreements.

The last time judge Golovaty was challenged was the presidential representative in the Constitutional Court, Sergei Dembovsky. This happened in early December 2023. By this time, the majority of judges cannot clearly decide: either to agree with the arguments of the applicant for the challenge, or to “protect” Golovaty.

In addition, the editors have information that last year the “messenger” from Bankova persistently convinced the reporting judge Sergei Golovaty not to push the consideration of the case of the Kharkov Agreements in the Constitutional Court. They say that “from above” this document is perceived as legal. Therefore, there is no need to move the topic.

By the way, there is an interesting ruling of the Constitutional Court dated April 20, 2010 (the day before Yanukovych and Medvedev signed the “Kharkov agreements”). 50 people's deputies appealed to the court with a request to interpret the provisions of paragraph 14 of the Transitional Provisions of the Constitution in systematic connection with part seven of Article 17 of the Basic Law (prohibition of foreign military bases). For the reasons of fifty deputies, the Russian Black Sea Fleet is in Ukraine temporarily (until 2017) and any prolongation of international agreements on this issue will contradict the Constitution.

However, the Constitutional Court washed its hands of the matter by refusing to open proceedings. The reason is banal. According to the court, parliamentarians did not ask for interpretation of the provisions of the Constitution, but for advice on law enforcement. But the court does not perform such a function.

In a conversation with “Glavkom”, a retired judge of the Constitutional Court and the first Prosecutor General of Ukraine, Viktor Shishkin, expressed the following opinion: The Kharkov agreements, signed in 2010 by the then presidents of Ukraine and Russia Viktor Yanukovych and Dmitry Medvedev, are unconstitutional. He argues that there is no reference to the articles of the Constitution in these agreements.

“Which article of the Constitution did Viktor Yanukovych rely on when signing the Agreement between Ukraine and Russia regarding the presence of the Russian Black Sea Fleet on the territory of Ukraine? After all, the Basic Law contains Article 17, which prohibits the location of foreign military bases on the territory of Ukraine. For example, President Leonid Kuchma, when he signed agreements on the presence of the Black Sea Fleet in Crimea in 1997, was guided by paragraph 14 of the Transitional Provisions of the Constitution. Ad hoc. A one-time action that effectively circumvented a direct provision of the Constitution. That is, Article 17 of the Constitution is eternal, and paragraph 14 of the Transitional Provisions was applied once in 1997. As for Yanukovych, he could not apply Ad hoc for the second time on the same issue. Accordingly, the “Kharkov agreements” he signed are illegal,” the ex-judge explained.

According to Shishkin, in addition to the fugitive president, the then Chairman of the Verkhovna Rada, Vladimir Lytvyn, should be brought to criminal responsibility for high treason. According to the famous lawyer, the speaker did not have the constitutional grounds and rights to sign and ratify the treacherous Kharkov agreements.”

At the same time, Shishkin is surprised by the current position of the Ministry of Foreign Affairs: they say, it is pointless to hold on to an agreement that does not exist. “For the agreement to become invalid, the denunciation of one of the signatories is sufficient. This is what Russia did in April 2014. The position taken by the Ministry of Foreign Affairs is complete nonsense. There are a number of other international treaties, such as the Helsinki Agreements of 1975, which clearly stipulate the territorial integrity of states. Moreover, a number of subjects of international law recognized the territory of Ukraine within the 1991 borders, where Crimea is Ukrainian,” Shishkin emphasized.