OPINION on Possibility of Ukraine's Voluntary Cession of Part of Its Territory

OPINION

on Possibility of Ukraine's Voluntary Cession of Part of Its Territory

International discussions of the possible peace negotiations between Ukraine and Russia often include debates about various territorial issues, including possible concessions. For instance, ahead of the most recent meeting of the US and Russian presidents in Alaska, Donald Trump said he wants a "land swap" between Ukraine and Russia[1]. Russia instead demands full control over four regions of Ukraine (including those partially controlled by Ukrainian Armed Forces) and annexed Crimea. The Ukrainian government, meanwhile, cannot agree to ceding Ukrainian territory: President Volodymyr Zelenskiy has repeatedly cited the Ukrainian Constitution, which explicitly lists all subnational administrative and territorial units of the country, including eastern and southern regions that are partially under temporary occupation. The Constitution contains a separate section on the Autonomous Republic of Crimea, granting it partial autonomy. The President of Ukraine, therefore, rejects Russian territorial claims as unconstitutional.

 

Existing Ukrainian borders, inviolability, and integrity of Ukraine’s territory

Article 2 of the Constitution of Ukraine explicitly states that the territory of Ukraine within its existing borders is integral and inviolable. The principle of unity and territorial integrity is also enshrined in Article 132 of the Constitution.

Ukraine’s state borders were established long before the adoption of the 1996 Constitution, specifically through the Declaration of State Sovereignty of Ukraine adopted on July 16, 1990, and they coincide with the administrative borders of the Ukrainian SSR. International recognition of these borders was formalized in several ways:

• through recognition of Ukraine as an independent state by other states, which also included recognition of its borders;
• through Ukraine’s accession to the United Nations as the successor to the Ukrainian SSR (this also implied recognition of the territorial integrity of a UN member state within its recognized borders); and
• by entering into several bilateral and multilateral agreements such as 1991 trilateral Belavezha Accords between Ukraine, Russia, and Belarus (confirmed the inviolability of borders between the respective former Soviet republics), the 1991 Almaty Declaration (reaffirming the principles of the Belavezha Accords and mutual recognition of borders among CIS member states), and the 2003 Treaty on the Ukrainian-Russian State Border between Russia and Ukraine.

The delimitation of the land border between Ukraine and the Russian Federation was finalized in 2003, while the demarcation process has never been finished (effectively, it was halted in 2014). Land borders with other neighboring states were approved between 1991 and 1992.

 

Relationship between concepts of “changes to Ukraine’s territory” and “violation of Ukraine's territorial integrity” in the Constitution of Ukraine

In the context of the integrity and inviolability of Ukraine’s territory (Article 2 of the Constitution), the Constitution of Ukraine distinguishes between “changes to Ukraine’s territory” and “violation of Ukraine’s territorial integrity”.

In particular, changes to Ukraine’s territory are generally permissible and require approval through a nationwide referendum (Article 73 of the Constitution), while violation of territorial integrity is prohibited. Moreover, Article 157 of the Constitution prohibits even constitutional amendments that may violate the state’s territorial integrity. Since violations of territorial integrity cannot be contemplated through constitutional amendments, they are also impermissible — and this is made clear in Article 8 of the Constitution — under any other legal acts, including laws and international treaties.

However, when using these two concepts, the Constitution needs the Constitutional Court to provide clarity (by means of an official interpretation) on what should be understood by "changes to the territory of Ukraine" and "violation of the territorial integrity of Ukraine," how these concepts relate to and differ from each other, and what consequences follow from these actions. The Constitutional Court should provide the answers to these questions in an appropriate official interpretation of the constitutional norms.

However, the Constitutional Court currently faces a deep institutional crisis, operating on the verge of legitimacy with only 12 out of its 18 judges in office (which creates the risk of losing quorum once the Court deals with controversial, complex, or politically sensitive court cases, rendering it unable to settle them). In such circumstances, signing a peace agreement — or similar international treaty that might involve changes to Ukraine’s territory — is premature and represents significant risks. On the one hand, such a treaty/agreement can be subsequently overturned by the Constitutional Court as unconstitutional, and peace negotiations would be derailed. On the other hand, anyone who signs that agreement — be it the President or another public official authorized by the President — without seeking in advance the Constitutional Court's opinion on the matter would likely be criminally prosecuted for violation of the territorial integrity of Ukraine, i.e., for a crime foreseen by Article 110 of the Criminal Code.

Without a fully functional Constitutional Court, capable of providing a definitive interpretation of key constitutional concepts regarding changes to the state's territory, the latter is deprived of a key legal safeguard.

Therefore, the first step forward to address the lack of constitutional clarity is to fill all six vacant judge seats pursuant to the procedures set forth by the Constitution and the Law on the Constitutional Court of Ukraine. Once the Court is fully staffed, the President or other bodies/officials entitled to seek the Court's official interpretation of the Constitution can request it to provide an official interpretation of the relevant constitutional norms, so that the fully operational Court is able to promptly consider such a request.

 

Concept of territorial integrity: international law and the position of Ukraine’s constitutional court

 Under international law, the concept of territorial integrity includes:

• possibility of changing frontiers in accordance with international law by peaceful means and by agreement (p. I of the 1975 Helsinki Final Act);
• recognition of the inviolability of state borders and refraining from any acts constituting a threat of force or direct or indirect use of force against another state, from any manifestation of force for the purpose of inducing another state to renounce the full exercise of its sovereign rights (p. II of the 1975 Helsinki Final Act); and
• respect for the territorial integrity of states and refraining from the threat or use of force against the territorial integrity or political independence of any state (p. III of the 1975 Helsinki Final Act, Article 2(4) of the UN Charter).

Therefore, under international law, a violation of territorial integrity is limited to the “external” dimension, i.e., the use of force or threat of force by another state. Importantly, the international prohibition of the use of force or threat of force applies not only to territorial integrity, but also to any international treaties, including those related to territorial issues or disputes. For instance, Article 52 of the 1969 Vienna Convention on the Law of Treaties states that a treaty is void if its conclusion results from the threat or use of force in violation of principles of international law laid down in the UN Charter[2].

A state’s sovereignty over certain territories is not absolute and can be limited in certain cases:

• exercising the right to self-defense by the state (Article 51 of the UN Charter)[3];
• if the sate gives consent for such limitation (e.g., consent for the presence of the peacekeeping forces or the military units for exercises, or deployment of military bases);
• based on a decision of the UN Security Council to maintain or restore peace and security (Chapter VII of the UN Charter)[4];
• exercising the people’s right to self-determination in cases of violations of human rights and/or oppression[5]; and
• restitution (return) of the occupied territories under international agreements[6] or based on decisions of the international courts[7].

 At least two such instances are known in Ukrainian practice, namely the 1999 exchange of territories with Moldova upon mutual consent[8], and the revision of the maritime border with Romania based on a the 2009 ICJ decision[9].

As has been mentioned above, the Constitutional Court of Ukraine has failed to provide a clear answer on what constitutes a “violation of territorial integrity” under Article 157 of the Constitution.

In its Decision on the local referendum in the Autonomous Republic of Crimea (dated March 14, 2014),[10] the Court only noted that holding a local referendum to reduce Ukraine’s existing borders, to exclude an administrative-territorial unit, or change the constitutional status of such a unit violates the principles of Ukraine’s integrity and inviolability. It emphasized that changes to Ukraine’s territory must be resolved through a nationwide referendum appointed by the Verkhovna Rada (p.p. 4.3 and 4.4 of the Decision). In this Decision, the Court also referred to international principles of sovereignty and territorial integrity, including the possibility of changing borders through peaceful means and based on agreement under international law, thus effectively acknowledging that the principle of Ukraine’s territorial integrity can be interpreted in line with the international approach to the matter.

In its Opinion on the strategic course towards Ukraine’s EU and NATO membership (November 21, 2018)[11], the Court also ruled that constitutional amendments allowing the use of existing military bases in Ukraine for foreign military deployments on lease terms do not violate Article 157 of the Constitution. This implies that the narrowing/limitation of Ukraine's sovereignty over certain territories (in this case, the locations of the respective military formations) is not a violation of Ukraine's territorial integrity within the meaning of Article 157 of the Constitution.

Nevertheless, these Court positions still fail to make it clear whether Ukraine’s voluntary cession of certain territories — even if approved through a nationwide referendum as prescribed by the Constitution — would constitute a violation of territorial integrity under Article 157 or are permissible under the Constitution’s provisions on territorial integrity and inviolability, i.e., approved by a nationwide referendum appointed by the Verkhovna Rada. Therefore, ensuring a greater legal certainty in this regard requires an official interpretation by the Constitutional Court of the constitutional concepts of “changes to Ukraine’s territory” (which is legally allowed) and “violation of Ukraine's territorial integrity” (which is prohibited).

Without such an official interpretation, any discussions of the possibility of Ukraine's voluntary cession of territories in potential peace negotiations with the Russian Federation hardly make any sense, as they just would create legal and political uncertainty (e.g., the need to revisit such cession if deemed unconstitutional, to conduct further rounds of peace negotiations etc.). The peace negotiations would therefore only be productive if the Constitutional Court confirms the possibility of reducing Ukraine’s existing borders, removing an administrative-territorial unit from Ukraine, or changing the constitutional status of such a unit through by the nationwide referendum.

The current legal framework does not grant any official the authority to take any actions aimed at relinquishing territory; moreover, any such actions may be treated and prosecuted as a crime under Article 110 of the Criminal Code.

 

Possibility of holding a nationwide referendum in Ukraine in line with international standards

Similar to elections, democratic referendums are impossible during the war as voters cannot freely express their will due to a number of reasons such as security threats, lack of infrastructure, forced displacement, limitations of human rights under martial law, and so on. Even in the event of a long-term ceasefire, holding a nationwide referendum will face significant challenges, almost identical to those that will arise in the context of preparing and holding postwar elections.

First and foremost, all Ukrainian voters must be able to vote — a referendum cannot be considered legitimate if millions of citizens are unable to participate due to territorial occupation, internal displacement, or forced removal abroad.

Martial law imposes significant restrictions on political rights and freedoms, including the right to freedom of assembly, movement, access to information, equal opportunities for campaigning and others. All these restrictions must be lifted, otherwise referendum can hardly be considered democratic. In this regard, it is extremely important to create free conditions for public debate, where supporters and opponents of the referendum question have equal access to media and are equally protected from prosecution or coercion.

The state should also effectively address a number of other operational challenges, including infrastructural, security-related, financial and a number of others. Even staffing of the polling commissions in some areas can be highly problematic, while ensuring professionalism of the referendum commissioners would be challenging given that the last nationwide referendum in Ukraine was held 25 years ago based on an abrogated law. Last but not least, the legitimacy of the referendum outcome would be ensured not only through effective referendum administration and dispute resolution, but also through effective domestic and international observation. Both domestic and international observers should be welcomed and involved into observation effort to verify its compliance with democratic standards.

Overall, holding a nationwide referendum in a post-war environment or based on a prolonged ceasefire agreement would be a challenging exercise. Such referendum would require the adoption of a special law or changes to the current Law on National Referendum to address war-related legal challenges. The state should also effectively address numerous organizational, financial, security-related, infrastructural, and other challenges to ensure that the referendum complies with international standards. Similarly to elections, addressing these challenges would require sufficient time, at least 6 months.

       

Approval of peace agreements by referendums: international experience

         If a peace deal in Ukraine includes any territorial concessions, it would likely be subject to approval by a national referendum. However, in international practice, the cases when the peace agreements were submitted for approval by a nationwide referendum are extremely rare for a reason: such agreements often involve mutual concessions or, in cases of defeat in a war, territorial, financial, or other losses of the state concerned. Under such circumstances, the possibility of approving the peace agreements by referendum may be highly questionable or unlikely. Moreover, preparing for a referendum requires creating adequate conditions for participants to form and express their will, which may be absent due to ongoing hostilities or legally excluded during martial law.

The preparation and conduct of referendums also create legal uncertainty for participants in the peace process, as approval of a peace agreement via referendum is not guaranteed. Referendum results may nullify the efforts of peace negotiators, potentially escalating the conflict or leading to endless rounds of peace talks.

For this reason, such referendums have typically been limited to confirming the independence of a part of a state that has successfully seceded as a result of armed conflict or war (e.g., the 2011 South Sudan independence referendum and the 1999 East Timor independence referendum).

 

SUMMARY

In the context of the integrity and inviolability of Ukraine’s territory, the Constitution of Ukraine distinguishes between two concepts, namely “changes to Ukraine’s territory” and “violation of Ukraine’s territorial integrity”. According to the Constitution, changes to Ukrainian territory are allowed, provided they are approved by the nationwide referendum, while violations of Ukraine's territorial integrity are prohibited by the Constitution. However, while providing for the above two concepts, the Constitution is silent as to how these concepts are interrelated and distinguished, and which legal consequences are entailed if one of them is enforced in practice.

Both concepts must be officially interpreted by the Constitutional Court of Ukraine, whose decision will be binding. The Court, however, faces a deep institutional crisis, operating on the verge of legitimacy with only 12 out of its 18 judges in office. Therefore, it is extremely important to fill all six vacant judge seats pursuant to the procedures set forth by the Constitution and the Law on Constitutional Court of Ukraine. This will allow for a prompt official interpretation of the mentioned norms of the Constitution at the request of the President or another subject of the right to constitutional submission, which must be prepared and submitted in advance before this issue becomes the subject of substantive negotiations. Current legislation does not grant any official the authority to resolve issues related to the renunciation of territories. Moreover, any initiatives in this direction may be prosecuted under Article 110 of the Criminal Code of Ukraine.

Even if the Constitutional Court rules that cession is possible under the current Constitution, subject to approval by the nationwide referendum, holding such a referendum is highly problematic. Such referendum would require adoption of an ad hoc law or changes to the current National Referendum Law to address war-related legal challenges. The state should also effectively address numerous organizational, financial, security-related, infrastructural, and other challenges to ensure that referendum complies with the international standards.

 

Annex 1. Cases when states departed from the constitutional principle of territorial integrity and de jure or de facto lost territories

         In the history of the 20th- and 21st-century armed conflicts, there are numerous instances when the states were forced to acknowledge the loss of parts of their territories, even when the principle of territorial integrity was enshrined in their constitutions. Such acknowledgment was either de facto (partial or complete) or was formalized in peace agreements. Some of those cases are briefly explained in a Table below.