Top-level Ukrainian and Russian politicians have given us a few riddles by now. One of them is how two states, or two business partners, act if they want to achieve mutually beneficial goals.
The Ukrainian state, to save its economy, is offering the Russian Federation to rent its Black Sea Fleet base in Sevastopol at a certain price because there is no one but Russia who wants it. At the same time, Moscow insists on a lower price, saying that Kyiv has no one else to offer it to. So, what’s best, to make an agreement or forget it?
The answers provided by the Ukrainian political opposition come down to the simple and unpretentious solution: “Everything is lost. The national interests have been sold out.” The desired psychological effect is achieved, but the task of saving the economy is not solved.
Even if the government comes out as a formal winner in this argument, officials have lost their reputation and have turned into “bad guys” in the eyes of the nation because they “sold out” Ukraine.
Obviously, the government and the opposition have their own internal political games. But what is the best way out? I think that professionals should take care of contracts with diplomatic skills and tough bargaining when needed, or with jokes to ease the tension at other times. However, society should be involved in the discussions and help to find compromises.
A good negotiator will know that there are no small things in contracts this big. One of the most amazing lessons comes from the timeless agreements signed by Cuba to lease to the Americans a military base in Guantanamo. Apart from the bad reputation of Guantanamo, the residents of this Island of Freedom receive peanuts for its rent – just $4,085 monthly. The rent price has not been changed since 1934.
The Cuban negotiators could not or did not want to foresee the devaluation of the dollar. Also, this is the territory where Cuban jurisdiction is merely formal. The U.S. has full control over it. In 2008, the U.S. Supreme Court ruled that Guantanamo is “in every practical respect a United States territory."
It seems that our negotiators also have problems with foresight. Otherwise we would have no debate, post-factum, after the signing of the agreement that the Russian Black Sea Fleet would be based in Crimea until at least 2042. The agreement is so unclear that some believe it allows Russia to build new bases in Odesa and Balaklava. In my opinion, it cannot because the transitional clauses of the current Constitution only allows for the extension of existing military bases.
How can Russia carry out modernization of its fleet? Can it take part in Russia’s armed conflicts with other countries without informing Ukraine? What is the critical set of circumstances when Ukraine can insist on changing the agreement? And if Russia’s desire to keep Sevastopol (called “the city of Russian glory”) was so great, why didn’t Ukraine bargain harder?
But the mistakes and shortsightedness may not be all one-sided. It seems that the Russian side does not mind making the same mistakes, either. What is the point to sign an extension agreement seven years before the existing one runs out, if Ukraine can have a new president, a new Constitutional Court and a new parliament in the meantime.
In the United Kingdom or Germany, a change of a prime minister or chancellor does not mean a stormy exit from the Council of Europe or a U-turn in foreign policy. But in Ukraine, nobody can guarantee that the next parliament won’t cancel the law on ratification of the April 21 Kharkiv agreements on the Black Sea Feet. And perhaps a future Constitutional Court will say such a deal contradicts the Constitution.
In my opinion, the spirit of the Constitution was violated with this Viktor Yanukovych-Dmitry Medvedev pact, while the letter was observed. If we examine the shorthand record of the debate around the 1996 Constitution, it becomes clear that parliamentarians were guided by the premise that the Russian fleet will have to leave Sevastopol sooner or later, but needs time to do it.
Roman Marchenko is senior partner in Ilyashev & Partners law firm, and vice president of the Association of Law Firms of Ukraine.
