Legal Regulation of Changes in the Territory of the Russian Federation as a Factor of National Security

Savoskin Aleksandr Vladimirovich ORCID: 0000-0002-7112-6845 Doctor of Law Head of the Department of constitutional and international law, Ural state university of economics; Professor of the Department of constitutional law, Ural State Law University. V.F. Yakovlev 620144, Russia, Sverdlovsk region, Yekaterinburg, 8 Marta str./narodnaya Volya, 62/45, office 750 savoskinav@yandex.ru Other publications by this author

Galitskov Vladimir Aleksandrovich PhD in Law Associate professor of the Department of constitutional and international law, Ural State University of Economics 620144, Russia, Sverdlovsk region, Yekaterinburg,, 8 Marta str./narodnaya Volya, 62/45, office 750 v_galitskov@mail.ru

The issue of changing territorial borders is one of the most painful at all levels of public interaction: international, regional and even municipal. And this is not accidental. The centuries-old history of mankind has repeatedly demonstrated that the causes of military conflicts or mass political protests are caused precisely by territorial claims. This is quite understandable, since the territory is a spatial sphere of the realization of state sovereignty, and its belittling or ignoring is not just painful for countries, but can also lead to their disappearance as subjects of relations in principle.

In practice, border changes between states occur ad hoc and are formalized by bilateral treaties, however, this makes such changes unpredictable and always leaves questions about their legitimacy (with the exception of agreements on demarcation, that is, marking the border on the ground). There are no universal international treaties on this, so the answers should be sought only in international legal customs and in national legislation.     

The Constitution of the Russian Federation allows for the possibility of territorial changes (Article 137), but does not detail this process, leaving it at the discretion of the federal legislator by adopting the relevant Federal Constitutional Law, which is  Federal Constitutional Law No. 6 dated 17.12.2001 "On the Procedure for Admission to the Russian Federation and the Formation of a New Subject of the Russian Federation in its Composition". Note, however, that this law regulates only the issues of accession of a new subject to the Russian Federation, but not the issues of withdrawal from its composition.

This is seen as the first mechanism for ensuring national security. Russia does not prohibit the subjects of the Russian Federation from leaving, but it does not allow it either. On the contrary, the absence of an exit mechanism not only does not provoke individual subjects of the federation to use it, but also makes any such attempts illegitimate, committed outside of legal regulation, and therefore illegal.  

The procedure for joining a new subject to the Russian Federation is regulated directly by Part 1 of Article 137 of the Constitution of the Russian Federation and its norms on the powers of the President of the Russian Federation, the Federal Assembly of the Russian Federation, the Constitutional Court of the Russian Federation in terms of concluding international treaties, their preliminary constitutional and legal assessment and adoption of federal Constitutional laws; the already mentioned Federal Constitutional Law "On the Procedure for Admission to the Russian Federation and formation of a new subject of the Russian Federation in its composition", Federal Law No. 101-FZ of 15.07.1995 "On International Treaties of the Russian Federation", as well as regulatory acts regulating the work of bodies and officials involved in the process of joining new subjects of the Russian Federation (first of all, this is Federal Constitutional Law No. 1-FZ of 21.07.1994 "On Constitutional Court of the Russian Federation", as well as regulations of the chambers of the Federal Assembly of the Russian Federation and the Constitutional Court of the Russian Federation).

Note that there are no laws on referendums in the above list of acts, since the latter are not provided for either on the territory of the Russian Federation (or its individual subjects) or on the territory being annexed. At the same time, in practice, referendums were repeatedly held on an initiative basis and acted as a serious argument to confirm the seriousness of intentions to join Russia.

The absence of mandatory requirements for holding a referendum may be explained by the fact that Russia has no right to regulate the rules for holding a referendum outside its territory (that is, in the annexed territories). However, in our opinion, Russia has the right to set the conditions under which it is ready to accept new territories into its composition. And one of such conditions may be the holding of a referendum.

The absence of a mandatory procedure for holding a referendum on the annexation of new territories looks all the more unjustified if we hypothetically assume that the Republic of Belarus, for example, will apply with a proposal to join Russia. Can such a large-scale issue be solved only by means of representative democracy? I think not.

Despite the absence of requirements for holding referendums in the legislation, in 2014 and 2022, the process of joining the Russian Federation was preceded by holding referendums in the territories being annexed. A natural question arises – why were they held, if they are not mandatory. The answer to this question lies, no matter how strong, not only in the field of geopolitics, but also in the field of classical public international law and is connected with the need to legally consolidate the status of the emerging new state as sovereign.

In a legal and general political sense, holding a referendum is an act of direct expression of the power of the people, and therefore it cannot be ignored by other participants in legal relations, even if the results of such an expression of will are extremely unpleasant or not beneficial to them. In international legal terms, a referendum is perhaps the only way for residents of a certain territory not just to declare their independence, but also to legitimize this decision by confirming the decision of their representatives (previously elected authorities and officials). with their voices.

Is holding a referendum a guarantee of the emergence of the state and its recognition by other participants in international communication? Absolutely not. It is enough to recall the repeated referendums of the Pridnestrovian Moldavian Republic. For example, the last chronological referendum was held on September 17, 2006 and included questions about declaring independence and joining Russia. Then 97% of those who voted "for" joining ^[1]. However, Transnistria did not become a subject of the Russian Federation. And the reason here is that unilateral expression of will is not enough to join Russia. We need a response initiative from Russia, which, also being a sovereign subject of international law, is not obliged to enter into legal relations even if they are initiated by our compatriots through forms of direct democracy.

If we turn directly to international law, we recall that there are no universal international treaties on the accession of territories (if we do not take into account the Vienna Convention on the Law of Treaties of 1969, which applies to the treaty of accession in the same way as to any other international treaty). But there are a large number of quite contradictory legal customs and precedents on this issue. Within the framework of this article, there is no goal to dive into the world experience of the emergence of new states and territorial transformations ^{[2, 3]}, but it is worth noting the existence of two concepts regarding the moment of the emergence of states: declarative and constitutive ^{[4, 5]}. These concepts are fundamentally important for the order of accession of new subjects of the Russian Federation analyzed by us, since according to Part 1 of Article 4 of the Federal Constitutional Law "On the procedure for admission to the Russian Federation and the Formation of a new subject of the Russian Federation within it", only a foreign state or part of it can be admitted to the Russian Federation.

Let's illustrate this with examples from recent Russian history. So, Ukraine in 2014 and in 2022 objected to the annexation of Crimea and Donbass to Russia. Consequently, these territories could not be annexed as its constituent parts. This in turn means that they could only join as sovereign States.    But then a natural question arises – when did these states arise?

According to the international legal declarative theory, States as subjects of international law appear from the moment of self-declaration. The constitutive theory of the emergence of States connects the legal personality of the latter with their recognition by other recognized States.

In recent decades, the world community (with rare exceptions ^[6]) has refused to recognize newly emerging States. The situation with the Republic of Crimea, as well as with the Donetsk and Lugansk republics, which actually emerged in 2014, but were not recognized by the world community, was no exception. By denying new state-territorial entities official recognition, countries seek to slow down or even eliminate any possibility of territorial changes on the planet. In other words, the countries of the "collective West" are trying in every way to preserve the status quo, perceiving it as an end in itself and completely ignoring one of the key principles of the UN Charter on the right of nations to self-determination.

Russia, entering into contractual relations with the Republic of Crimea and the territories of Donbass, proceeded from the conviction that the new territories, by virtue of self-declaration of their independence, confirmed by the results of referendums, gained sovereignty, became states, and therefore were able to dispose of their territory (including by joining another state). Thus, the actions for the entry of new entities into Russia in 2014 and 2022 fully fit both international and national legal norms. However, it is impossible not to note the context of the adoption of amendments to the Constitution of the Russian Federation reflecting the new territorial composition of the subjects of the federation.

The context should be understood as the presence of a real armed conflict in the annexed territories. And if this context was not particularly significant for the events of 2014, then in the current 2022, the fact of a special military special operation cannot but affect the will of the residents of Donbass. It is not by chance that, according to Part 2 of Article 7 of Federal Constitutional Law No. 5-FKZ of 28.06.2004 "On the Referendum of the Russian Federation", a referendum is not appointed, and the holding of the appointed referendum is postponed in case of the introduction of martial law or a state of emergency in certain areas of the Russian Federation. It seems that this provision of the domestic law is universal and, for objective reasons, prevents the holding of a referendum in the territory where the fighting is taking place. The stated position does not mean that the authors seek to challenge the results of the referendum, or even more so to invalidate it, but focuses on the prematurity of its holding.

The absence of a referendum as a mandatory condition for the annexation of the territory to Russia is compensated by a wide range of authorities involved in making a decision on the entry of new subjects of the federation into Russia. 

First of all, this is, of course, the head of state, who not only signs an agreement on the accession of new subjects, but also notifies the chambers of parliament and the Government of the Russian Federation about the receipt of the initiative of a foreign state to join Russia, and subsequently submits drafts of relevant laws to the State Duma of the Russian Federation.

The Government of the Russian Federation, as the highest collegial executive authority, advises the head of state on the consequences of implementing such an initiative, and subsequently ensures the implementation of measures to integrate new territories into the legal, economic and infrastructural space of the Russian Federation.

The chambers of the Federal Parliament not only advise the President of the Russian Federation at the stage of consideration of the initiative, but also act as the main body authorized to adopt (or reject) the federal law on ratification of the accession treaty, as well as a special federal constitutional law amending Article 65 of the Constitution (regarding the inclusion of new subjects of the Russian Federation), as well as establishing transitional provisions necessary for the full integration of new entities within Russia. At the same time, the powers of the Federal Assembly of the Russian Federation are exclusive, that is, its acts cannot be replaced by decrees of the President of the Russian Federation or provisions of an international treaty. Moreover, the President of the Russian Federation does not have the right to veto the above-mentioned laws adopted by parliament in connection with the accession of new subjects of the federation.

Another body participating in the procedure of joining a new subject of the Federation is the Constitutional Court of the Russian Federation – the highest body of constitutional control that verifies compliance with the entire procedure of joining a new subject for compliance with the Constitution of the Russian Federation.

At the same time, it should be noted that both representative (that is, elected by the people) supreme bodies: the President of the Russian Federation and the State Duma of the Russian Federation jointly participate in the process of joining a new subject of the federation, which guarantees, on the one hand, the unity of the positions of the highest authorities (in the case when a positive decision on accession is made), and on the other hand, it allows us to talk about the maximum legitimacy of the decision being made, since it comes from bodies directly elected by the people of the Russian Federation. This to a certain extent minimizes the risks of internal political instability, since the accession of new subjects requires the consolidated will of almost all the highest authorities. 

At the same time, the potential of direct democracy remains insufficiently tapped at the moment. Recall that referendums on joining Russia were held only in the annexed territories. At the same time, holding a similar referendum on the territory of the Russian Federation would not only provide additional legitimacy to the decision to admit a new entity into Russia, but would also demonstrate the unity and will of the multinational people of Russia. This would be a significant factor in the consolidation of the people of Russia, reducing the threat of internal instability, and a significant fact for the international community, proving that the relevant decision is a direct decision of the entire multinational people, and not just their elected bodies.