CHAPTER 2 LEGAL STATUS OF THE UKRAINIAN STATE

From the year 1648 to 1654 central and eastern Ukraine led and ruled by Hetman Bohdan Khmelnytsky was an independent polity. Nominally, in periods of peace with Poland, it recognized the sove­reignty of the Polish King.

On January 8, 1654 the alliance with Russia (or with Muscovy, as other peoples called the Russian state of the seventeenth century) was approved by the General Assembly (GeneraVna Rada) of the Ukrainian Cossack Army in the city of Pereiaslav. At that time no written agreement was concluded. But from the start Moscow tried to place Ukraine in a position of dependency. When the Ukrainian Government, represented by its Hetman and higher officials swore allegiance to its new ally, the representatives of the Russian Tsar refused to reciprocate and only promised that the Tsar would defend the Zaporozhian Army and protect and preserve its rights and pri­vileges. A little later a written treaty between Russia and Ukraine was concluded in Moscow in March 1654 by the representatives of both contracting parties (the Ukrainian Government was represen­ted by Chief Justice Samiilo Bohdaniv and the Colonel of the Pere- iaslaw Regiment Paul Teteria). We have two versions of this treaty. The first has eleven articles and the second has twenty-three. Later at the meeting of the General Cossack Assembly in 1659 in Pere- iaslav convoked for the election of Yurii (George) Khmelnytsky, the representatives of Russia presented still another version of the Treaty of 1654.

The Treaty of 1654 (it, as well as subsequent treaties concluded by the Ukrainian Hetmans with the Russian state, usually was called the ’’Articles” or the ’’Hetman Articles”) was composed in the form of a request of Ukraine to preserve her rights and privileges, and the confirmation of these rights by the Russian Tsar. Yet in essence it was a treaty between the two states.

The provisions of the 1654 Treaty were far from perfect. Some of its parts were not arranged in a satisfactory system, some of them were concerned with problems of little importance and, on the other hand, some highly important problems were not mentioned. In the Treaty of 1654 (as well as in the ’’articles” of the later time) we can note two principally different aspects. The Treaty was an act of the international alliance of the two states, but it was also a constitutional charter sui generis which shaped the governmental system of the Ukrainian state.

Under the Treaty the Ukrainian state became dependent on and protected by the Muscovite Tsar. The latter promised that the Ukrainian state would be governed according to its former laws and privileges as well as the rules established by the Treaty. Ukraine preserved its right to carry on foreign relations with other states; but some of them (relations with Poland and Turkey) had to be controlled by Russia. Ukraine had to pay tribute to the Tsar. The state had to be ruled by a Hetman elected for his lifetime, and was to enjoy full internal autonomy. The Ukrainian separate court system was to be preserved. In Article 17 (of the version of twenty- three articles) the Moscow Government acknowledged that the field of Ukrainian internal policy did not belong to its jurisdiction. Some parts (articles 2, 3, 4, and 7) promised to preserve the rights and privileges of the different hereditary classes of Ukraine: such as the Cossacks, noblemen (shliakhta), and townspeople.

The legal character of the Treaty is a controversial problem. Basil Sergeevich, an outstanding historian of Russian law, regarded this treaty to be an act of personal union, i. e., in his opinion, Ukraine and Russia had a common monarch and in all other aspects remained completely separate independent states. But Sergeevich’s opponents noted that the Ukrainian state had its own ruler — the Hetman — and that the conception of the personal union did not explain his po­sition. The opinion of Sergeevich was shared by Rostyslav Lashchen- ko, a professor of the Ukrainian Free University in Prague in the 1920’s. In his opinion the Treaty of 1654 preserved the independence of Ukraine and its Hetman acknowledged only the ’’moral authority” of the Russian Tsar. But the introduction of the ’’moral authority” problem does nothing for the proper evaluation of the politico- legal relations established by the Treaty of 1654. Professor Andrew Yakovliv, a well-known historian of Ukrainian law, however, justi­fiably remarked that the concept of personal union implied equality between the parties, while the Treaty of 1654 declared the superio­rity of the Russian Tsar.

Michael D’iakonov, of the Russian Academy of Sciences, and Alexander Popov, an Ukrainian scholar, thought that the Treaty of 1654 established a real union — a closer union than a personal union.

In our time more scholars support the view that the Treaty of 1654 established a form of vassalage. This view was shared by the members of the Ukrainian Academy of Sciences Michael Hrushev- sky and Michael Slabchenko as well as by Professor Nicholas Kor- kunov, an outstanding student of Russian law. We also had the opportunity to support this position. Very close to this view is the position of Ukrainian scholars Andrew Yakovliv and Viacheslav Ly- pynsky who thought that the relations established in 1654 were a form of protectorate, or the view of Dr. Bohdan Halaichuk, an Argentine-Ukrainian scholar, who regards this alliance to be a special form of international relations — the pseudoprotectorate. Vassalage and protectorate are rather similar forms of inter-state relations in international law. Vassalage, especially, was a wide­spread form of international relations in the period which we are describing in this work. It is true that the relations between a vassal and his suzerain were a special feature of the feudal period reflec­ting the division of European political system in a pyramid of the greater and smaller rulers. The emergence of a unified and centra­lized state — with a web of hereditary classes — had profoundly changed these relations. Some forms of the old social relations very often had been preserved for some time in the new society. Thus the changed vassalage in the new postfeudal period became only the form of uneven (and transitory) international alliance between two (or among several) states. George Jellinek had this in mind when he wrote: ’’Under this name we know a special politico-legal form of inter-state unions. A sovereign state controls the dependent states which are independent in their internal policies within limits established by the sovereign State, but the sphere of their inter­national activities is limited, due to their dependent position.

The form of vassal-suzerain relations between two (or several) states was quite widespread in the seventeenth century. For instance, relations between Turkey and Rumanian principalities (Wallachia, Moldavia), Transylvania as well as with the Crimean Khanate were organized in this way, likewise the relations between Poland and Brandenburg, etc. Vassalage presupposes the acknowledgement by a vassal state of its dependence on the suzerain and some limitations of its independence — in foreign relations or economic policy (tri­bute payments) and sometimes the suzerain even controls aspects of the internal affairs of the vassal. Very often, as Professor Andrew Yakovliv stated, vassalage was just a nominal form of dependence. The historical events after 1654 show that Bohdan Khmelnytsky interpreted the Treaty of 1654 just as a form of such nominal de­pendence.

Those scholars who interpret the acts of 1654 as the complete incorporation of Ukraine into Russia usually deny the vassalage of Ukraine because under this form alliance and dependence only the ruler of the vassal state swears his allegiance to the suzerain, when, in fact, the whole population of Hetman Ukraine swore an oath of allegiance to the Russian Tsar. In our opinion, this rejection of vassalage is based on a fact of minor significance. Some of the out­standing theoreticians of international and constitutional law (for instance the same George Jellinek) admit the possibility of an oath of allegiance to the suzerain by the population of the vassal state. Professor Bohdan Halaichuk advanced an interesting explanation of this oath of the Ukrainian population in 1654. He thinks that the Moscov Government regarded the Hetman Ukraine to be a polity based, in a measure, on direct democracy. Under such conditions the oath of the Hetman was not sufficient; it had to be supplemented by the oath of the people as possible participants in the decisions concerning the most important problems of the Ukrainian state and its relations with Russia.

As we have noted before, Hetman Bohdan Khmelnytsky regar­ded the Treaty of 1654 as an act establishing rather nominal depen­dence. It suffices to mention his subsequent alliances with Turkey and Transylvania and, especially, with Sweden which at that time was at war with Russia. The situation changed after Bohdan Khmel­nytsky’s death in 1654 and, especially during the subsequent internal struggle which weakened the Ukrainian state. Consequently, its relations with Russia became a form of real dependence, leading to Russian interference in the domestic affairs of Hetman Ukraine. The subsequent treaties with Russia, so-called ’’Hetman Articles,” concluded by Bohdan Khmelnytsky’s successors, reflect this situation. We can mention George Khmelnytsky’s articles of 1654, Ivan Bru- khovetsky’s articles of 1663 and 1665, the ’’Hlukhiv Articles” con­cluded by Hetman Demian Mnohohrishnyi in 1669, Ivan Samoilo- vych’s articles of 1672 and 1674, Ivan Mazepa’s treaty of 1687 con­cluded in the Kolomak Valley, Ivan Skoropadsky’s articles of 1709 and the ’’Decisive Points” granted to Hetman Daniel Apostol in 1728.

We have also to mention the Treaty of Hadiach (Gadiach, Ha- dziacz) in 1658 with Poland which represented an effort to break away from Russia and to return to union with Poland, this time as an equal partner of a federal commonwealth. The Treaty of Hadiach had aimed at establishing a real union of Poland, the Belorussian (White-Ruthenian) and Lithuanian state (the Grand Duchy of Lithuania), and Ukraine; the last had to be called the ’’Grand Duchy of Ruthenia.” There was to be a joint Diet and Senate of the Commonwealth; and the Polish King was to be also the Grand Duke of Lithuania as well as the Grand Duke of Ruthenia. The expanded federation was to conduct a common foreign policy. In other aspects each part was to preserve its own statehood. In particular the Grand Duchy of Ruthenia was to be ruled by its Hetman who was to be elected by the representatives of the hereditary classes of the Kiev, Bratslav and Chernihiv (Chernigov) provinces — the component parts of the Grand Duchy of Ruthenia. ?

But the Hadiach Treaty was not implemented. It was not easy for Poland to accept Ukraine as her equal partner. Most of the Ukrainians, on the other hand, remembering the religious and na­tional intolerance of the Poles in the pre-revolutionary period, oppo­sed the restoration of a union with Poland.