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Instruments of the Russian Federation regarding the illegal change of the territory of Ukraine: Legal evaluation

12.10.2022

Operational legal assessment of the most important processes and events in the fields of constitutionalism, political parties and elections, governance and public administration, judiciary, anti-corruption, criminal justice from experts of the Center for Political and Legal Reforms



Situation

On 5 October, four federal laws of the RF on the ratification of so-called “international treaties” (recognized on 2 October by the Constitutional Court of the RF as constitutional) and four federal constitutional laws of the RF on the illegal annexation of part of the territory of Ukraine by Russia have been published on the Official Internet Portal of Legal Information of the Russian Federation. Under these acts, from 30 September, the “Donetsk People’s Republic”, “Luhansk People’s Republic”, “Zaporizhzhia Oblast” and “Kherson Oblast” have been admitted to the RF as the “subjects of the Russian Federation”, and their titles to be added to the list of relevant federal units in Article 65(1) of the Constitution of the RF. Before, on 21 February and 29 September, the President of the RF recognized these territories as “independent states”. Eight years ago, in March 2014, the “Republic of Crimea” and the “city of federal significance Sevastopol” were added to the Constitution of the Russian Federation in the same way. 

Legal evaluation

According to Article 2(1)(3) of the Constitution of Ukraine, the sovereignty of Ukraine extends to its entire territory, and the territory of Ukraine within the existing border is integral and inviolable. Since Ukraine is a unitary state (Article 2(2)), the issue of alteration of the territory of Ukraine at the final stage is decided exclusively by an all-Ukrainian referendum (Article 73). 

The sovereignty, territorial integrity, and existing state border of Ukraine are recognized by all sovereign nations in terms of the UN Charter and are guaranteed by many bilateral and multilateral international treaties, to which the RF is a party itself, in particular, the Final Act of the Conference on Security and Cooperation in Europe (Helsinki Act, 1975), the Memorandum on Security Guarantees in Connection with Ukraine’s Accession to the Treaty on the Non-Proliferation of Nuclear Weapons (Budapest Memorandum, 1994), the Treaty between Ukraine and the Russian Federation on the Ukrainian-Russian State Border, 2003, etc. 

Any change of an independent nation’s territory can occur exclusively in a peaceful and legitimate way, following the norms and principles of international law and in compliance with the relevant provisions of national constitutional law. In this regard, the aggressive actions of the RF, aimed at violating Ukraine’s territorial integrity by unilateral and illegal change of Ukraine’s territory, are known to be null and void and cannot cause any legal consequences ab initio. Illegal annexation, which is the result of the use of force by Russia against Ukraine, cannot lead to the extension of the sovereignty of the RF over the occupied territories of Ukraine; the very actions and instruments of the RF regarding the annexation of these territories constitute a crime of aggression under international law. 

Regardless of the content of Article 65 of the Constitution of the RF, the territories of the Autonomous Republic of Crimea, of Sevastopol as a city with a special status, as well as of the Donetsk, Zaporizhzhia, Luhansk and Kherson oblasts, occupied by Russia, were, are, and will remain, under Article 133 of the Constitution of Ukraine, as an integral part of Ukraine since the adoption of the Act of Declaration of Independence of Ukraine of 24 August 1991, approved by a national vote (referendum) on 1 December 1991.

In connection with the above, the experts of the CPPR believe that the bodies of public administration of Ukraine do not need to adopt any acts, except for political statements, aimed at qualifying the actions of the RF public bodies and recognizing their consequences as null and void, since such actions of the RF are null and void due to their illegality. However, on 4 October, the President of Ukraine signed Decree No. 687/2022, “On the Nullity of Instruments Violating the Sovereignty and Territorial Integrity of Ukraine”, which recognizes as null and void, i.e., those that do not create any legal consequences, decrees of President of RF No. 147 of 17 March 2014, No. 71 of 21 February 2022, No. 72 of 21 February 2022, No. 685 of 29 September 2022, No. 686 of 29 September 2022, as well as any other decisions, instruments, and agreements adopted, issued and concluded based on and/or in connection with the implementation of the specified decrees of President of the RF. 

CPPR, undoubtedly supporting the motives and arguments of the Head of State outlined in this document, expresses doubts about the practicality of adopting political statements as a legal instrument. From a legal point of view, such actions of the RF do not require recognition of their nullity by legal instruments. The legal nature and purpose of normative legal instruments are to regulate and protect existing social relations within the jurisdiction of Ukraine and the powers granted by the Constitution and laws of Ukraine, not to evaluate instruments issued by foreign state authorities, even if they are illegitimate, absurd or void. The nullity of Russia’s instruments regarding the illegal change of the territory of Ukraine is fait accompli, regardless of whether the President of Ukraine signed Decree No. 687/2022 or not.