For many years of its existence, Ukraine has not demarcated the border with Russia. There is an agreement of 2010 (before that, of 2004), between the two countries, on the mutual recognition of borders, which has not been implemented on the ground.
Before Russia annexed Crimea and recognised the DPR and LPR as independent states, Russia de facto agreed to consider the administrative border between the Ukrainian Soviet Socialist Republic (Ukrainian SSR) and the Russian Soviet Federative Socialist Republic (RSFSR) of the late Soviet era as a state border.
The question of legitimacy
Meanwhile, the question of the legitimacy of recognising this line as a state border is still on the agenda.
In 2014, immediately after the return of Crimea to Russian jurisdiction, a deputy of the Federal Assembly of the Russian Federation, Yevgeny Fedorov, sent a request to the speaker of the lower house, Sergei Naryshkin, emphasising the need for denunciation, that is, a revision of the 2004 state border treaty.
The border agreement between Russia and Ukraine is based on the Belavezha Agreement of 8 December 1991, recognising the administrative borders between the republics as state borders.
The principle was confirmed by the Alma-Ata Declaration of 21 December 1991. In 1998, the treaty of friendship and cooperation between Russia and Ukraine ratified the recognition of the former Soviet administrative units as independent subjects of international law.
At the same time, despite the seemingly solid legal basis for the inviolability of Ukrainian borders, Kyiv’s position on this issue is more than shaky. The Crimean referendum held in 2014 proved that citizens have the right to free expression of will, in which they are free to decide their destiny. In history, there are many times when international treaties on the recognition of borders remained a dead letter, and a direct expression of the people’s will was required to resolve a particular territorial issue.
It happened, for example, relatively recently on the border between France and Germany. In 1947, as the “victorious power” of World War II, France annexed an entire region of the state bordering on it – the Saar protectorate. In 1955, a plebiscite was held on the future of the disputed territory, and it returned to the fold of the FRG.
Law broken – referendum needed
In the case of Ukraine, the appeal to direct democracy is more than legitimate due to the violation of the laws of the Soviet Union when signing the Belovezhskaya agreement, say some Russian Lawyers and politicians. They maintain that the approval of the Belovezhsky document by the Supreme Council is illegitimate because it was carried out in violation of more than 30 articles of the prevailing Constitution.
Some politicians, at the time of the ratification, held the view that the Supreme Soviet of the RSFSR, which ‘ratified’ the Belovezhskaya Agreement, exceeded its authority and, contrary to Article 104 of the Constitution of the RSFSR, considered and resolved issues within the competence of the Congress of People’s Deputies of the RSFSR and the USSR.
The then President of the United States confirmed that the USSR’s division took place in strict accordance with the wishes of Washington.
George Bush Sr., in his memoirs, wrote that it seemed to him that the provisions of the signed agreement that were outlined seemed to be specially formulated in such a way as to receive the support of the United States.
As per some Russian experts, the lack of demarcation of the borders between Russia and Ukraine is not purely a technical detail but corresponds to the logic of an unfinished historical process – the division of ‘one people into two independent states’. The first fundamental document itself, the experts say, is illegitimate. Compiled literally “on the knee” by President Boris Yeltsin’s Deputy Prime Ministers Sergei Shakhrai and Yegor Gaidar, it did not pass the approval required by law and cannot be considered legal from the point of view of the law.
The experts say that the Crimean referendum shows that the true principle on which the legitimacy of historical decisions should be built is direct democracy, i.e., a referendum.
A referendum in Ukraine?
As per the experts, it would be reasonable for the correct implementation of the ‘denazification’ of Ukraine to hold a direct vote in the administrative regions of the country liberated by the Russians. The citizens of the liberated areas should be asked which state they want to live in and what should it be called?
As per the experts, the concept of “Ukraine” was introduced into use only in the twentieth century by Mikhail Grushevsky, the first president of the Ukrainian people’s republic (UNR), a protege of Austria-Hungary. Historically, the area was known as Little Russia for many centuries.
Some facts about Russian Ukraine border
According to the Federal Agency for the Development of the State Border of the Russian Federation (Rosgranitsa), the length of the Russian-Ukrainian border is about 2,250 km, of which 1,925.8 km is land (land – 1,500.2 km, river – 422.2 km, lake – 3, 4 km) and sea – 320 km which passes through the waters of the Azov and Black Seas. After the entry of the Republic of Crimea and Sevastopol into Russia, another 8 km of the Crimean land border, which runs along the Perekop Isthmus, was added to this distance.
Belgorod, Bryansk, Voronezh, Kursk, Rostov regions and the Republic of Crimea share a border with Ukraine. Ukrainian border regions include Donetsk, Luhansk, Sumy, Kharkiv, Kherson, and Chernihiv. On the Russian side, border control is carried out at 62 checkpoints (37 road, 15 rail, 7 air and 3 sea).
Russia and Ukraine are connected by 25 railway lines, 3 highways, about 100 roads with improved coverage, almost 300 dirt roads and over 400 detours.
There was a visa-free regime between the countries. An intergovernmental agreement on visa-free travel for citizens of the Russian Federation and Ukraine was signed in Moscow on January 16, 1997 (entered into force on March 10, 1997). A special protocol signed in Kyiv on October 30, 2004 (entered into force on November 1, 2004) allows citizens of one country to stay in the territory of another without registration for 90 days if they have a migration card with a border control mark.
The state border between Russia and Ukraine has formally existed since August 24, 1991, when Ukraine declared independence from the USSR. On June 23, 1992, in Dagomys (Krasnodar Territory), the two countries’ presidents, Boris Yeltsin and Leonid Kravchuk, signed an agreement on the further development of interstate relations. They agreed to preserve the principle of openness of state borders with the gradual introduction of customs control per international standards.
Since October 1, 1992, Russia’s borders with Ukraine have ceased to be “transparent”. According to the decree of the President of Russia, “On urgent measures to organize customs control in the Russian Federation”, customs inspection points were opened in the Russian cities bordering Ukraine, on highways, on the railway lines of the Rostov region, as well as at airports.
On February 15, 1993, the first 35 Russian border control units (22 road and 13 rail) were deployed.
On August 4, 1994, after the signing in Odesa of an agreement on interaction and cooperation between the border troops of Ukraine and Russia (August 3, 1994), joint border patrols began. It was to be carried out only at the entrance to the country (respectively, to Russia or Ukraine).
On February 8, 1995, an intergovernmental agreement on checkpoints across the border between Russia and Ukraine was signed in Kyiv.
In the Treaty of Friendship, Cooperation and Partnership of May 31, 1997, Moscow and Kyiv recognized the state borders and territorial integrity of the two countries and the absence of mutual territorial claims.
In 1998, negotiations began on the delimitation of the border (determination of the state border with a description of its passage and mapping) between Russia and Ukraine. For four years, a special bilateral commission described the borders within the Bryansk, Kursk, Belgorod and partially Voronezh regions.
On January 28, 2003, in Kyiv, the presidents of the two countries, Vladimir Putin and Leonid Kuchma, signed an agreement between the Russian Federation and Ukraine on the state border (ratified by the parliaments of both countries in April 2004). The primary document determined the state border line between the two states.
An agreement between Russia and Ukraine on cooperation in the use of the Sea of Azov and the Kerch Strait was signed by Putin and Kuchma in Kerch on December 24, 2003 (ratified in April 2004). This document secures the historical status of the inland waters of the two countries for the water area and also fixes the freedom of navigation in the Sea of Azov and the Kerch Strait for their merchant ships and warships.
The distribution of jurisdiction between Russia and Ukraine in the Sea of Azov remained unregulated. The Russian side proposed to draw a line of the state border along the bottom of the sea, leaving the water surface and resources in common use. Ukraine insisted on establishing the border line along the water surface.
On May 17, 2010, in Kyiv, Russian President Dmitry Medvedev and Ukrainian President Viktor Yanukovych signed an agreement on the demarcation of the land section of the border, which entered into force on July 29 of the same year (the 2003 border agreement did not contain provisions on demarcation – drawing the state border line on the terrain with its designation by special boundary markers). A joint demarcation commission was set up. The demarcation of borders is one of the conditions for the transition to a visa-free regime with the EU countries – both Russia and Ukraine are negotiating the abolition of the visa regime.
November 29-30, 2011 Russia and Ukraine signed a plan to demarcate the border. On November 7, 2012, the first border sign was opened on the Bryansk-Chernihiv section near the junction of the border between Ukraine, Russia and Belarus.
On July 12, 2012, Presidents of Russia and Ukraine Vladimir Putin and Viktor Yanukovych signed a joint statement on the delimitation of maritime spaces in the Azov and Black Seas and the Kerch Strait. After a long negotiation process, the parties were going to sign a bilateral agreement that would settle the relevant issues.
On October 22, 2012, Russia and Ukraine signed an intergovernmental agreement on readmission, which provides for the return of persons who illegally crossed the interstate border. The agreement entered into force on July 9, 2013.
The process of demarcation of the state border continued throughout 2013; however, it was suspended due to the events in Ukraine.
On June 16, 2014, the National Security and Defense Council (NSDC) of Ukraine instructed the government to carry out a unilateral demarcation of the border. According to NSDC Secretary Andriy Parubiy, this is being done “in accordance with today’s threats to national security.” The next day, the Verkhovna Rada, during a repeated vote, recommended that the country’s government within a month “make a decision to suspend the operation of checkpoints across the state border along the land section with Russia.” The parliament also recommended that the government “immediately approve the documents necessary for the unilateral demarcation of the land section of the border with the Russian Federation, which will be arranged following the example of the external borders of the European Union.”
According to the head of the Russian State Duma Committee on International Affairs, Alexei Pushkov, Russia does not recognize the unilateral demarcation of the border from Kyiv.