11 Mar Ukraine: How to End the War
[Marc Weller is Professor of International Law at the University of Cambridge and a barrister at Doughty Street Chambers. He served as United Nations Senior Mediation Expert and has been an advisor in a large number of peace negotiations. He is the co-editor of International Law and Peace Settlements (Cambridge University Press, 2021). The views expressed are his own alone.]
On Monday, Russia floated a peace balloon. Kremlin spokesman Dmitry Peskov outlined the conditions for ending the war in Ukraine ‘in a moment.’ A day later, a spokesperson for the Russian Foreign Ministry added that the war aim was no longer the removal of the government in Kyiv—presumably a necessary step if the Ukrainian leadership is to be romanced into a peace-settlement.
In parallel with the Russian initiative, if it is one, governments from China, Israel, the members of the African Union to Turkey and Switzerland have offered their services as mediators. But an initial high-level meeting between the foreign Ministers of Ukraine and Russia in Antalya, Turkey, was not auspicious. Nevertheless, it may be worth asking whether the Russian proposal offers at least elements for the construction of the famous ‘off-ramp’ that would allow the parties a way out of the present situation?
In fact, the proposed peace terms are quite similar to Moscow’s demands made since last December, when heavy Russian troops started to assemble around Ukraine in large numbers. These were contained in two draft treaties on European security submitted by Russia to the US. If these terms were rejected then, they are likely to be rejected now.
In any event, Ukrainian President Zelensky will not jump at a settlement while the war is going better than expected. The present onslaught with all the misery, suffering and destruction it has brought, will make it difficult if not politically impossible to make any concessions just now.
In fact, the Ukrainian government is already insisting on accountability of the Moscow leadership for launching an aggressive war and war crimes. There will also be a trillion-dollar bill for reparations.
The question is whether the Kremlin’s proposals can be transformed through negotiations into a settlement that could bring to the conflict to an end. Such a settlement would be based on the conclusion of both sides that outright victory is unlikely or that the human toll is far higher than both societies can accept. Moreover, they would need to be able to avoid admitting defeat.
The Russian proposal of 7 March addresses the status of Ukraine, the position in international law of Luhansk and Donetsk and the Crimea, and armaments.
First, Russia demands that Ukraine must commit itself to neutrality in its constitution. This is meant permanently to exclude both NATO and EU membership.
Short of the occupation of the country and the imposition of a Russia-friendly parliament, one cannot readily imagine Ukrainian law-makers mustering the two-thirds majority necessary for a constitutional change to this effect.
Previously, Russia had sought a legally binding undertaking from NATO, or the US, excluding NATO membership for Ukraine and indeed other former Soviet states that have not joined yet.
However, NATO ‘s ‘open door’ policy is supported in international law, which prohibits threats or pressure on states in order to determine their foreign policy or alliances. For instance, the Friendly Relations Declaration of the UN General Assembly which is accepted as an authentic interpretation of the UN Charter provides:
No State may use or encourage the use of economic, political or any other type of measures to coerce another State in order to obtain from it the subordination of the exercise of its sovereign rights and to secure from it advantages of any kind. [General Assembly Resolution 2625 (XXV).]
The ICJ has confirmed that this includes the obligation to respect the right of all states freely to determine their foreign policy, which would include their choice of alliance or membership in regional integration organizations. [Nicaragua Case, ICJ Report, p. 14, para 205.]
Still, and perhaps surprisingly, Washington had reportedly assured Moscow in answering the proposal of last December that Ukrainian membership in NATO would not be on the cards for many years, suggesting (at least to the Kremlin) the possibility of a formal or informal moratorium underwritten by the US.
It is possible that a peace settlement for Ukraine could involve a commitment of this kind for a more extensive period. This could take the shape of a formal, self-imposed limitation by Ukraine, expressed through a legally binding unilateral declaration or it could communicate its intention not to seek NATO membership for a certain period in the settlement itself.
In addition, or instead, there might be a US undertaking to ensure that result. NATO itself would presumably be unwilling to depart from its formal ‘Open Door,’ and some effort would be expended in shaping the undertakings in a way that makes them appear as a voluntary action by, or affecting, Ukraine.
Next, Moscow is demanding that Kyiv must recognize the independence of Luhansk and Donetsk. Before the invasion, the Russian-sponsored authorities in both entities controlled only about a third of the territory of their respective province. They, and Moscow as their sponsor, now demand recognition by Ukraine within the full provincial boundaries.
The supposed statehood of both entities is of course the result of Russia’s use of force. In law, the two are ‘non-states’—they cannot ever be states unless freely accepted as such by Ukraine, and all other states are under an obligation not to recognize them.
This obligation prohibiting the acquisition of territory by force and the obligation not to recognize the result has been repeatedly confirmed. Resolution 2625 (XXV) states: ‘No territorial acquisition resulting from the threat or use of force shall be recognized as legal.’ Resolution 3314 (XXIX) on the Definition of Aggression also determines that ‘no territorial acquisition or special advantage resulting from aggression is or shall be recognized as lawful.’ [GA Res 3314 (XXIX), Article 4 (3).]. The Declaration on the Enhancement of the Effectiveness of the Principle of Refraining from the Threat or Use of Force in International Relations, confirms that no territories resulting ‘from the threat or use of force in contravention of international law will be recognized as legal acquisition or occupation.’ [General Assembly Resolution 42/22, Article 10.]
The UN Security Council has consistently acted in accordance with this principle, as was noted by the International Court of Justice in the Kosovo Advisory Opinion. [Kosovo Advisory Opinion, ICJ Reports 2010 ICJ 403, para 81.] The obligation that ‘all States are under an obligation not to recognize the illegal situation’ is therefore very clear indeed. [Wall, ICJ Rep 2004, p. 136, para 159.]
Moreover, this doctrine has already been applied to the two Oblasts and their claim to statehood. The Russian Federation was constrained to veto a draft Security Council resolution that formally deplored its decision relating to the status of certain areas of Ukraine’s Donetsk and Luhansk regions and decided that Moscow must immediately and unconditionally reverse that decision. [SC 14808, 25 February 2022.]
This was followed by the adoption in the UN General Assembly of a resolution sponsored by no less than 94 states and receiving 141 affirmative votes, entitled Aggression against Ukraine. The Resolution reaffirmed ‘that no territorial acquisition resulting from the threat or use of force shall be recognized as legal,’ and:
5. Deplores the 21 February 2022 decision by the Russian Federation related to the status of certain areas of the Donetsk and Luhansk regions of Ukraine as a violation of the territorial integrity and sovereignty of Ukraine and inconsistent with the principles of the Charter;
6. Demands that the Russian Federation immediately and unconditionally reverse the decision related to the status of certain areas of the Donetsk and Luhansk regions of Ukraine; … [A/ES-11/L.1.]
Ukraine is therefore in a very strong position to argue that acceptance of the purported statehood of both entities is not possible, going against universal obligations triggered by the peremptory norm of international law involved.
Rather, a negotiated outcome might return to the second Minsk agreement of 2015. The failure fully to implement that provision has been often complained of by Russia in the Security Council, including especially in the run-up to the recent invasion.
The agreement offered a measure of autonomy to both Oblasts within the overall territorial sovereignty of Ukraine. This would have included enhanced local self-administration and other features, such as control over local policing.
It should now be possible to develop these provisions further, reassuring the ethnic Russian population in parts of the two areas that their identity and rights will be fully realized in an environment of self-government, or virtual statehood. There might even be provision for links between the Oblasts and neighbouring Russia, adding to that reassurance without threatening the continued unity of Ukraine.
Luhansk and Donetsk may be very reluctant to walk back on their claim to full statehood. However, even if Russian support props up both entities, this means in effect an existence forevermore in the twilight of the international isolation that comes with the designation of ‘non-state.’ Moreover, participating in a settlement would allow both Oblasts to claim authority over all of the territory assigned to them as a Ukrainian province, instead of the mere third they controlled at the onset of the conflict.
The issue is likely to be even more difficult in relation to Crimea. The Kremlin is demanding acceptance of its annexation of Crimea. Moscow argues that Crimea was illegitimately removed from Russia by Stalin in 1954 and has now been ‘returned.’ This move, it argues, occurred in line with the expressed will of the majority of its Russian-speaking population, which approved independence in 2014 with a supposed overwhelming majority.
Of course, the circumstances of the poll were hardly free and fair. Moreover, the authorities of the lawful sovereign, of Ukraine, had been displaced through forcible action by Moscow’s forces stationed on the peninsular, in violation of the relevant status of forces agreements. They operated without their badges, supposedly unattributably, as the famous ‘little green men.’
General Assembly Resolution 68/262 addressing Russia’s use of force of 2014 and Crimea’s short-lived purported independence that ensued:
Calls upon all States, international organizations and specialized agencies not to recognize any alteration of the status of the Autonomous Republic of Crimea and the city of Sevastopol on the basis of the above-mentioned referendum and to refrain from any action or dealing that might be interpreted as recognizing any such altered status. [Para 6].
In view of this background, is unlikely that a settlement could include an express recognition of Crimea by Ukraine as part of the Russian Federation. On the other hand, even before the war there would have been no prospect for such a return. But that is a quite different to a formal recognition of the outcome of a forcible annexation.
A sadly realistic negotiating outcome would offer a finely balanced formula that excludes a future challenge to the present situation without formally recognizing it. The sides could pledge not to challenge the territorial status quo, without endorsing its legitimacy.
Presumably Moscow would also be seeking some sort of pan-European acknowledgement of its new borders. This was one of the key reasons for Soviet participation and keen interest in the Helsinki Final Act of the Conference on Security and Participation and Cooperation in 1975. Although non-binding, the Final Act confirmed the territorial changes in Europe that occurred at the end of World War II, including the significant shifts in the borders of the Soviet Union, Poland and Germany.
In its proposal, the Kremlin has also referred to the continued demilitarization of Ukraine. Presumably it will abandon its claims that Ukraine was pursuing a secret nuclear weapons programme and, as the US had alleged in relation to Iraq in 2003, that Kyiv maintains secret biological weapons laboratories. These claims seem to be related to public persuasion during the conflict, rather than reflecting real concerns.
To stabilize any settlement, limitations on Ukrainian deployments of forces and heavy weapons around Luhansk and Donetsk after a cease-fire might be adopted. Ukraine may also accept limitations on its longer range delivery vehicles that might reach deeper into Russia. A Russian withdrawal of heavy weapons some distance behind its borders with Ukraine could balance these commitments.
Moscow is also insisting on a cessation of violence. A cease-fire on its own might also allow the invaders to regroup, be reinforced, and to re-ignite the conflict. This would presumably enter into force at its choosing, when it has secured the territory it is really aiming for.
A cease-fire would leave the invading armed forces in control of large swathes of Ukrainian territory beyond the Donbas, for instance along Ukraine’s Southern coastline around Odessa. Freezing the lines of control would effectively divide the country, potentially forever. Hence, any peace settlement would need to tie a cease-fire and the various other elements of the agreement to a front-loaded withdrawal of Russian forces.
In addition, there would need to be a host of provisions on other issues, including the safe handover of nuclear power-stations, release of prisoners of war, restoration of humanitarian and medical services, etc.
Of course, the Russian threat of the use of force before the invasion earlier this year was aimed at Ukraine. But the demands supported by that threat were not really in the main directed at Kyiv, but instead at the US and NATO.
In December, Russia presented a draft treaty on European security as its pressure on Ukraine increased. Article 4 of the draft demanded that NATO must stop any further eastwards expansion. In addition to a moratorium concerning Ukraine noted above, Moscow might seek a similar undertaking relating, for instance, to Moldova. If this breach of the Open Door principle is to be accepted, the question of offering other, effective security guarantees for those left out in the cold would need to be explored.
Moreover, the term ‘eastwards’ expansion would not cover potential candidates like Finland and Sweden. There would also need to clarification of the position on membership, or further stabilization and association, in relation to the EU.
The draft also demanded that NATO forces and weaponry would need to be withdrawn from all states that joined the Western alliance since May 1997. This would be all Eastern European states, including Poland, Hungary and the Czech Republic, which joined in March 1999, and the Baltic states, Slovakia, Romania and Bulgaria, which joined in 2004, and others that associated with NATO since then.
Evidently, this would remove NATO’s protection from all of its Eastern European members. This proposal will therefore not have legs, especially after the recent episode, which has shown their vulnerability to external aggression. Instead more limited, mutual balanced force reductions could be addressed some way down the line at the usual regional disarmament fora.
Reviving a similar proposal advanced by Russia a decade and a half earlier, the proposal also demanded that the US and Russia must withdraw nuclear weapons to their respective home soil. This, of course, is a very major requirement of geo-strategic significance.
Russia is part of Europe. Withdrawing its nuclear weapons to its home soil makes no difference. Intermediate range missiles could still reach the capitals of Western Europe. Tactical nuclear weapons would also be very close to the potential theatre of war.
The same would not be true for the US, being located an ocean away. What is known as the de-coupling of Europe from the US strategic umbrella would have been achieved. Hence, this proposal, too, is unlikely to fly. Instead, a settlement for Ukraine might be accompanied by an undertaking to resume Russia-US negotiations on intermediate range weapons.
A settlement would therefore most likely consist of several layers, ranging from the two key protagonists to regional security organizations and the Russo-US strategic relationship. It would also likely be endorsed in the UN Security Council.
While it is possible to conceive of a settlement roughly along these lines, achieving it will evidently be difficult. It will also seem a distasteful activity to many. The leaders on both sides may not be able to retreat from their present positions without risking the massive loss of popular support or indeed their leadership position. This latter aspect is presumably an important consideration, at least for President Putin.
Many will argue that a settlement is impossible while the Russian leader is in power. The West may assert that Russia should only be allowed out of this situation of its own making if it pays a heavy price. A face-saving deal that leaves Russia with some trophies of the war, as would be likely in a negotiated settlement, may not be on the cards. Then, again, if further massive civilian casualties occur, or the risk of strategic escalation jumps up further, this calculation may change.
Hence, it will be useful to continue thinking about the elements a settlement would need to address, and how it would address them. This would depend on the constellation on the battlefield, the maintenance of international resolve in this matter, and the level of further civilian casualties Ukraine is willing to accept.
In short, a settlement will only come about if both sides find themselves in a situation where they have no other, or better, choice. Let us be ready for that moment.