About Negotiations, Territories and Referendums

In the last few months, it seems, there has been no talk of negotiations and stopping the war between Ukraine and the aggressor country. Of course, different people have different motivations for talking about it. However, there are many foreign politicians, experts, and activists who cannot be called those who relay the will of the dictator of the aggressor country, but who, for various reasons (economic, humanitarian, and others), want to end the hot phase of our war and therefore propose to start negotiations.

Their logic, as a rule, boils down to the fact that when neither side of the conflict can achieve superiority by force of arms, it is irrational to kill people at the front for an unlimited time, it is necessary to go to negotiations and agree on some kind of compromise. Often these people are even well-informed about which country attacked first and started hostilities, who is fighting for just causes and who is not. However, they say: "You can liberate your territory by force, please, we are in favor of such an approach, but time is running out, you cannot do it, and people are dying, so it is necessary to stop it in another way, namely with the help of negotiations." Well, since it is always necessary to find a compromise in negotiations, we are also suggested to be ready for some sacrifices, for example, territorial ones.

At first glance, it seems that everything is really logical, but this logic is too superficial, formulaic. It does not take into account the specifics of this war. Let's consider in more detail only two issues, namely, the conditions for starting negotiations and the legal aspects of the possibility of "territorial sacrifices" during these negotiations.

Terms of negotiations

As you know, Ukraine gained the status of an independent state in 1991 in a completely legitimate way. This was the result of the realization of the Ukrainian nation's right to self-determination. The Ukrainian people, having more than a thousand-year (only known) history of permanent residence in their territory, despite the loss of statehood in the past and dependence on neighboring state centers, like many other peoples of Europe, grew to realize themselves as a modern nation at the end of the 19th century and began the struggle for self-determination, which lasted almost the entire 20th century.

As a result, the state of Ukraine and its borders in the 90s of the last century were recognized by the entire international community, international documents, in particular the United Nations (UN), and bilateral agreements between Ukraine and the Russian Federation. However, already in the 21st century, the Moscow dictator, falsifying history and ignoring international law, proclaimed his Nazi doctrine, which we call racism. According to it, there is no Ukrainian people, accordingly there is no Ukrainian nation and its right to self-determination, and all the territory they occupy, according to some medieval agreements, should belong to his empire. In addition, all those people who, contrary to his "brilliant teachings" call themselves Ukrainians, must be broken by various genocidal methods. And began to implement this doctrine from 2014, reaching the full-scale invasion of 2022.

And under such conditions, these logical Western and Eastern politicians and experts propose to start negotiations. At the same time, they do not explain how to conduct negotiations when one of the parties does not recognize the existence of the other party and, accordingly, its subjectivity in international relations. Even if negotiations are carried out through intermediaries, it does not change anything. After all, any agreement reached at such negotiations is worthless.

Therefore, all those who are sincerely in favor of negotiations as a method of ending the war of the Russian Federation against Ukraine, should first of all get the Moscow dictator to deny all the delusions spoken and written by him about the non-existence of the Ukrainian people, the "artificiality" of the Ukrainian state, the "historical belonging" of our territory or its parts to his empire... It is important to achieve recognition by him again of international law, the regularity and legitimacy of the existence of Ukraine as an independent state, the inviolability of its territory within internationally defined borders. Only under this condition can we start talking about conducting negotiations.

It is surprising that, hearing demands for negotiations from everywhere, we do not hear in response from each of our diplomats, each of our government officials, an explanation of this condition for the start of negotiations.

In addition to clarifying issues of historicity and subjectivity, clarifying the issue of attitude to international law is also of no less importance for the start of negotiations. Because if the negotiations are to take place not on its basis, but on the basis of some agreements specially developed for them, then it turns out that we, as victims of aggression, are being pushed, for example, to seize Kursk Nuclear Power Plant so that negotiations can be held on the release of the Zaporizhzhia Nuclear Power Station. In addition, it turns out that we are also being pushed to seize the Kursk and Belgorod regions so that negotiations can be held on the release of the illegally captured territories of the Kherson and Zaporizhzhia regions, etc.

Let's separately consider the legal aspect of the issue of Ukrainian territories as a subject of future negotiations. We read in foreign media, hear from foreign speakers the formula "peace in exchange for territories." That is, we have to give up some territories of Ukraine in order for the aggressor to stop shelling, destroying and killing us. First of all, under such a scenario, it turns out that the aggression made sense because the enemy troops attacked, seized and legitimized all territorial possessions during the "peace negotiations". It is possible to prepare for the next act of aggression with the aim of seizing some more territories. By the way, this will happen not only on the part of Moscow and not only in relation to Ukraine. It will be a precedent for the whole world and no one knows yet who will want to use it and when. Is this the kind of future we want for the world?

Secondly, no one says exactly which territories are meant in such a scenario. As you know, today parts of Tavria, Slobozhanshchyna, Donbass and the whole of Crimea are occupied. All these four parts of the affected territories were occupied in different ways, at different times and have different significance for the future. Moreover, for the future not only of Ukraine, but also of the entire Black Sea and Eastern European regions. Obviously, it is impossible to ignore it, but the initiators of the negotiations do not reveal their cards.

Legal aspects of the possibility of "territorial victims"

Even more difficult is the legal aspect of such negotiations from the point of view of the Constitution of Ukraine and our legislation. At first glance, this situation appears to be a closed circle and a hopeless situation, which makes negotiations impossible in general. After all, in order to stop the war, we are told, it is necessary to sacrifice the territories. But according to the Constitution of Ukraine, the change of the territory of Ukraine is decided exclusively by an all-Ukrainian referendum. But in order to hold an all-Ukrainian referendum, it is necessary to end the martial law regime, and to do this, peace and security are necessary. At this point, the circle closed.

However, from a legal point of view, at least theoretically, a way out of this situation can be found by dividing everything listed above into two stages — first, the arrival of peace in our country and therefore the end of martial law. And in a few years, after the restoration of security and the return of refugees and displaced persons, a referendum can be held. We do not dwell on the details, for example, on the problem of managing disputed territories in the transition period or the guarantees of such agreements, although in fact they are extremely important and complex in their essence. However, I have not had to hear or read from the initiators of the negotiations such proposals or other options for legally viable scenarios.

Regarding the referendum on changing the territory of Ukraine, if you look at our legislation, several more questions arise. The Law "On the All-Ukrainian Referendum" defines, in accordance with the Constitution of Ukraine, the possibility of holding a referendum on the question of changing the territory of Ukraine (Part 1 of Article 3). "The all-Ukrainian referendum on the change of the territory of Ukraine is a form of adoption by the citizens of Ukraine who have the right to vote, of the decision to approve the law adopted by the Verkhovna Rada of Ukraine on the ratification of the international treaty on the change of the territory of Ukraine" (Part 1 of Article 18). However, at the same time, the law indicates that "issues aimed at... violation of... the territorial integrity of Ukraine cannot be the subject of an all-Ukrainian referendum" (Part 2 of Article 3). This restriction allegedly stems from constitutional norms: "The territory of Ukraine within the existing border is integral and inviolable" (Article 2). A number of articles of the Constitution of Ukraine are aimed at protecting or guaranteeing the territorial integrity of Ukraine (17, 65, 102, 132...), up to Article 157: "The Constitution of Ukraine cannot be changed if the changes... are aimed at eliminating the independence or violating the territorial integrity of Ukraine ".

In its decisions, the Constitutional Court of Ukraine has repeatedly emphasized the importance of the principle of territorial integrity and the impossibility of violating it in a way not foreseen by the Constitution. For example, through regional referendum or treaties that are not approved by the all-Ukrainian referendum.

However, different constitutional experts draw two different conclusions from all this. Some say that all these norms together mean the impossibility of reducing the territory of Ukraine in general, that the change of the territory of Ukraine is possible only in the direction of its even greater increase. Foreign experts are a little surprised by such an interpretation, reading the norm of our Constitution that the issue of changing the territory of Ukraine is decided exclusively by an all-Ukrainian referendum (Article 73). "So, what, did you protect yourself from expanding the territory of the state?" they ask.

Therefore, there is another interpretation, which follows from the statement that only illegal encroachment on changing the territory of Ukraine is a violation of territorial integrity and is therefore inadmissible. That is, the conclusion of an international agreement by an authorized state body, which will provide for a change in the territory of Ukraine, after it has been approved by the Verkhovna Rada of Ukraine and approved by an all-Ukrainian referendum, will not be considered an unacceptable violation of the territorial integrity of Ukraine, regardless of the direction of the change in territory (increase or decrease).

Of course, only the Constitutional Court of Ukraine can bring final clarity to these issues. Moreover, the Law "On the All-Ukrainian Referendum" provides for its control over compliance with the Constitution of Ukraine on the issue of the all-Ukrainian referendum, including in the case of a referendum on changing the territory of Ukraine (Article 21).

Final remark. This article is not written to support any position in the debate whether our warring country needs negotiations or not. In my opinion, it would be unwise to oppose negotiations in principle, we would not be understood by many world leaders in the world with such a position. However, it is fundamentally important, especially for a country in a state of hostilities, when talking about negotiations, to have a position on when they can be started, who can be their subjects. In addition, it is also important to determine which legally justified provisions or proposals can be the subject of these negotiations, which mechanism will guarantee their results, etc.

It is equally important that this position be known and understood, firstly, by the Ukrainian people, and secondly, by the world community. This is the only way we can protect ourselves from the risk of unexpectedly becoming participants in some unfavorable negotiations for us at some point. In addition, in this way, we can protect ourselves from the prospect of losing at these negotiations what thousands of Ukrainian lives have already paid for and what our heroic Armed Forces of Ukraine are fighting for, namely the freedom and independence of Ukraine, the opportunity to choose our own path to the future.