16 Mar Possible Draft of a Framework Agreement on the Restoration of Peaceful Relations between Ukraine and the Russian Federation
[Marc Weller if Professor of International Law and International Constitutional Studies in the University of Cambridge, the former Director of the Lauterpacht Centre for International Law and of the European Centre for Minority Issues, a former United Nations Senior Mediation Expert and a Barrister (Middle Temple) at Doughty Street Chambers. He served as advisor in a large number of international peace negotiations. He is the co-editor of International Law and Peace Settlements, Cambridge University Press, 2021. The views expressed are his own alone.]
The author wishes to record his gratitude to the editor and staff of Opinio Juris for bearing with this venture with such great kindness and efficiency, at a time when many other, highly important contributions need to be aired.
This is the third contribution in a series addressing a possible peace settlement for Ukraine. The first offered a narrative overview of some of the issues that arise. The second provided a more detailed overview of key approaches and likely issues. This instalment extends these contributions into the full text of a draft framework agreement.
Any settlement, if ever it comes, will reflect the balance of power on the ground at the time of its conclusion, among other factors. Hence, offering this text is risky, as it either offers too many concessions to the one or other side, and sacrifices for the other, or not enough of them, depending on how the situation on the battlefield and other factors develop.
Inclusion of any particular step or possible solution in this document should not be taken to suggest that it must be included in a settlement. Indeed, the sides may well develop an even shorter and simpler agreement in their negotiations. For instance, Ukraine might be willing to rule out NATO membership without trading this for the rather innovative security guarantee proposed here.
For now, this text merely hopes to contribute in two rather modest ways.
First, this venture simply proves that a Framework settlement could be reached in a relatively compact and thus expeditious way. Peace is possible if both sides can agree to reach for it. Second, the draft hopes to offer some ideas that might help overcome otherwise apparently insurmountable issues.
The text is mindful of the fact that Russia launched its initial threat of force against Ukraine in order to extract concessions from NATO, rather than Kyiv. On 17 December of last year, Moscow put forward to the US two draft agreements on security arrangements. A settlement between Ukraine and the Russian Federation will likely need to be supported by broader discussions about security in Europe, without giving way to unjustifiable demands made forward by the Russian Federation.
Possible Draft of a Framework Agreement on the Restoration of Peaceful Relations between Ukraine and the Russian Federation
Desirous to bring the armed operations in Ukraine to an immediate end, to preserve lives and to end further destruction, and to lay the ground for a peaceful, common future, Ukraine and the Russian Federation
HAVE AGREED AS FOLLOWS
This Agreement provides the legally binding Framework for the termination of armed operations in Ukraine, for the withdrawal of the armed forces of the Russian Federation from Ukraine according to an agreed time-table, and for future peaceful relations between the Parties and within their wider region.
This Agreement is based on full recognition by its Parties of the following principles:
- territorial integrity and unity of states as enshrined in the UN Charter, the Friendly Relations Declaration 2625 (XXV) of 1970, the 1975 Helsinki Final Act, the Alma Ata Protocol of 1991, the 1994 Budapest Declaration and other applicable standards;
- the prohibition of the threat or use of force as established in Article 2 (4) of the UN Charter, including the prohibition of the acquisition of territory by force;
- commitment to maintain the de facto territorial status quo as of 20 February 2022;
- the principle of sovereign equality of states, and non-intervention in their sovereign rights, including the right freely to determine their political, economic, social and political system and their foreign policy;
- the principle that the authority to government must be based on the will of the people, freely expressed in genuine and periodic elections;
- full respect for human rights and fundamental freedoms and the provisions of humanitarian law;
- the equal treatment of all segments of the state population, including the full range of linguistic and cultural rights and other entitlements of members of non-dominant groups;
- enhanced local government within, and constitutionally-anchored, significant self-government for, certain regions.
3. Cessation of Violence
(1) There shall be an immediate cease-fire. All hostile military operations and all forms of armed violence shall cease upon entry into force of this agreement. From that point onwards, all regular and irregular armed forces of both Parties or under their control will conduct themselves in accordance with the Protocol on Disengagement and Withdrawal annexed to this Agreement (Annex I). Each Party will issue the appropriate instructions and ensure their rigorous implementation.
(2) A Mixed Commission shall be established upon entry into force of this Agreement with a view to addressing allegations of cease-fire violations or other infractions of the Protocol on Disengagement and Withdrawal (Annex I) and preventing tensions and incidents between the respective armed forces. The Commission will establish local Sub-commissions in all regions of contact between the respective armed forces.
(3) The Commission and its Sub-commission may be chaired by senior military experts appointed from a list agreed by both sides who are neither Ukrainian nor Russian Federation nationals. Its modalities and procedures are set out in the Protocol on Disengagement and Withdrawal (Annex I). If the Parties cannot readily agree on these appointments, they will be made by the OSCE Secretary-General from the list.
4. Withdrawal of Forces
(1) There shall be a full and complete withdrawal of all armed forces that were not present in Ukraine on 23 February 2022 according to the time-table established in the Protocol on Disengagement and Withdrawal annexed to this Agreement (Annex 1).
(2) The withdrawal shall be front-loaded and, subject to Article 8 (12) of this agreement, completed within a period of four weeks from entry into force of this agreement.
(3) Both sides will cooperate fully in ensuring that the withdrawal of forces can occur safely for all involved, without further loss of life. They will facilitate the delivery of fuel, foodstuffs and other items necessary to implement the Protocol. To the extent possible, the Government of Ukraine will take steps to avoid public manifestations or other action directed against the departing forces.
(4) The Parties shall cooperate in the collection and removal of destroyed or abandoned materiel, including in particular those items that might pose a threat to public health, such as unexploded ordinance.
(5) Implementation of Articles 6, 8 and 9 of this Agreement is dependent on full implementation of this present article, as certified by the OCSE Secretary at the end of the withdrawal period.
5. Other Transition Steps
(1) The sides will facilitate immediate, full and unrestricted humanitarian access to all areas of Ukraine upon entry into force of this Agreement, including medical assistance. This includes unimpeded access for international humanitarian agencies operating with the consent of the government of Ukraine.
(2) The Russian Federation shall ensure the safe handover of nuclear facilities under its control to the Ukrainian authorities. The IAEA shall be invited to support this process if deemed helpful or necessary by the government of Ukraine.
(3) The sides will rapidly exchange information on prisoners of war and other detainees and repatriate them within no more than two weeks from entry into force of this Agreement. They will urgently collaborate in relation to resolving the fate of missing persons and will also cooperate in addressing the issue of recording the location, and arranging the transfer or dignified burial, as the respective Party may wish, of the remains of the fallen.
(4) The sides will facilitate the voluntary and safe return of the displaced and refugees who wish it to their homes and property. Relevant international agencies may support this process and help ensure confidence on the part of returning populations.
(5) Special steps shall be taken to support and protect the vulnerable, including children, families, women and men at special risk, the disabled and the elderly.
6. Friendly Relations
(1) The Parties permanently and definitively renounce the threat or use of force in their mutual relations for any reason whatever. They will settle any disputes they may have amicably, in accordance with Articles 2 (3) and 33 of the UN Charter.
(2) The Parties confirm their commitment to the de facto territorial status quo as of 20 February 2022. Without prejudice to its position de jure, Ukraine will not actively challenge that status quo.
(3) Ukraine and the Russian Federation will conduct an intensified dialogue, with international facilitation, on issues concerning returns, human and minority rights, compensation and other matters, in relation to a territory of concern covered by sub-paragraph (2) above.
(4) The UN Security Council will be invited by both Parties to endorse this Agreement and adopt a Security Guarantee under Chapter VII.
(5) The Chapter VII resolution of Security Guarantees will impose comprehensive, universal sanctions upon each of the two parties to this agreement. Application of the resolution will however be suspended. The sanctions will be activated against whichever of the two parties is determined by the Security Council in a procedural vote to have acted in serious breach of sub-paragraph 1 of this Article.
(6) The Parties are entitled to develop and maintain their defensive capabilities, and to receive international assistance towards that end. However, Ukraine will not acquire missiles or cruise missiles of a range above 150 km.
(7) Ukraine and the Russian Federation will not deploy heavy weapons within 30 km of their line of territorial separation, including in the areas of Luhansk and Donetsk, once Article 4 of this Agreement has been implemented. Ukraine will not deploy heavy weapons within 20 miles of the internal administrative boundaries of Luhansk and Donetsk, and none within those boundaries.
(8) The Russian Federation will not maintain heavy weapons within Luhansk and Donetsk while its transitional force is present in parts of those territories in accordance with Article 8 (12) of this Agreement.
(9) Ukraine confirms its continued full cooperation with the IAEA inspection and nuclear weapons non-proliferation regime. Ukraine reiterates that it will never acquire nuclear, biological or chemical weapons and invites OPCW and other international inspection.
(10) Ukraine declares that it will not exercise its sovereign entitlement to seek membership in a military alliance for the period of duration of this Agreement, nor will it consent to the permanent deployment of foreign forces on its soil. [This commitment may be reflected in a US side letter.]
(11) It is understood that Ukraine will not be in a position to achieve EU membership for a period of less than 10 years from entry into force of this agreement. However, Ukraine is entitled to maintain its EU perspective and to strive towards fulfilling criteria for membership during that period if it wishes it. Any relationship with the EU that may develop thereafter would require modalities consistent with sub-paragraph 8 above while this agreement is in force.
(12) The Russian Federation will not inhibit, or interfere with, free access of any shipping to Ukraine for any vessels of any flag.
7. New European Security Order
(1) Both Parties will actively contribute to the development of a New European Security Order, based on the United Nations Charter, the 1970 UN Declaration on Friendly Relations 2625 (XXV), the Helsinki Final Act of 1975, and the 1999 Charter for European Security and subsequent declarations adopted by the CSCE/OSCE.
(2) Ukraine and the Russian Federation invite the concerned states to negotiate mutual balanced reductions of their forces as affects their common region. This should result in a balanced presence of forces as may be necessary to assure the security of all, including limitations of numbers of forces and types of weapons.
(3) The Parties encourage the states concerned to address the situation that has arisen in Europe in the context of the termination of the INF Treaty. Renewed mutual restraint on deployments, verifiable limitations on relevant nuclear capable delivery vehicles and warheads, transparency and confidence building should be discussed by them.
(4) Ukraine and the Russian Federation will encourage the revitalization of the OSCE as a mechanism to enhance stability, transparency and confidence in Europe, and in particular in their region. They will support the conduct of an urgent review addressing ways and means of streamlining the OSCE structures and making them a more effective building block of the New European Security Order.
(5) Ukraine and the Russian Federation will encourage the adoption by the concerned states within two years of entry force of this Agreement of a Protocol on Confidence Building and the Prevention of Incidents, including arrangements on limitation in numbers and weaponry in military manoeuvres in their region, notification and observation procedures for such manoeuvres, avoidance of aerial intrusions or provocations and related incidents, etc.
(6) In this context, the Parties acknowledge the need to provide effective safeguards and assurances for the security of other regional states, such as Moldova and Georgia.
8. Luhansk and Donetsk
(1) Luhansk and Donetsk Oblasts will receive a special status as autonomous entities within Ukraine. That status will provide for extensive powers of self-governance within the sovereign jurisdiction of Ukraine without disturbing the otherwise unitary character of the state (asymmetrical autonomy).
(2) Luhansk and Donetsk will be governed according to an Organic Law on their Special Status of constitutional standing, providing for the full set of institutions of self-governance and meaningful competences to be exercised by these institutions within the framework of the constitution of Ukraine and the human and minority rights that apply under the constitution and international law.
(3) The Organic Law shall provide for gender balance in all the institutions established through it.
(4) The drafting of the Organic Law on the Special Status of Luhansk and Donetsk shall be completed within six months from the entry into force of this agreement and shall be brought into force within a further six months. This may include a constitutional amendment if required to enact the Organic Law.
(5) The authority of the institutions of Luhansk and Donetsk will extend throughout the full territory of both entities. The Organic Law on the Special Status of Luhansk and Donetsk will ensure that the linguistic and ethnic communities within both entities will be fairly represented in the institutions of governance according to the principles on genuine democracy, power-sharing and rule of law outlined in Annex III.
(6) Equal rights and opportunities for members of the Ukrainian-speaking and the Russian-speaking communities will be guaranteed, as will be the rights of all other communities in Luhansk and Donetsk, as throughout Ukraine. In local units of self-government where members of the one group are in a position of numerical dominance, special provision shall be made for the rights of the members of the non-dominant group.
(7) There will be significantly enhanced powers of local self-government at municipal level within Luhansk and Donetsk, to be established in Ukrainian law. Units of local self-government may exercise their powers in cooperation with one another if they so choose, subject to compliance with the Organic Law on the Special Status.
(8) As provided in Annex III, the drafting process of the Organic Law on the Special Status of Luhansk and Donetsk shall be conducted by a Commission, consisting of five representatives of the government of Ukraine and five representatives each of the two principal language groups from Luhansk and Donetsk, and two others. At least half of the members of the Commission shall be women.
(9) The process will be supported by a group of five international experts nominated by the OSCE High Commissioner on National Minorities, at least two of which shall be women. The experts will offer an initial draft implementing the provisions of Annex III as a basis for discussion.
(10) There will be broad popular consultation on the draft among the population segments in Luhansk and Donetsk in their full diversity.
(11) If, after three months of discussion, the Commission is unable to adopt s draft Organic Law with the support of 3/4th of its members, the members of the international expert group shall be entitled to participate in the vote.
(12) A transitional group of lightly armed forces of the Russian Federation of a strength of up to 3500 shall remain within the former line of control in Luhansk and Donetsk as it existed on 20 February 2022. They will be completely withdrawn upon entry into force of the Organic Law on the Special Status, as provided in sub-paragraph (9) above.
(13) A joint police and security force composed principally of members of the local population and equitably representing linguistic or ethnic population groups shall be established before the withdrawal of the transitional group to ensure security and good order in both entities. Through this agreement Ukraine invites the OSCE to assist with training and the establishment of this force.
(14) Through this agreement, a permanent OSCE Monitoring, Good Offices and Reconciliation Mission for Luhansk and Donbas is invited. The Mission will be headed by a Special Representative of the Secretary-General of the OSCE, assisted by two Deputy Representatives. Each of the Parties to this Agreement will nominate one Deputy Representative. The nominees must not have been associated with the recent armed operation.
(15) Save for extraordinary circumstances to be defined in the Organic Law on the Special Status of Luhansk and Donetsk, Ukraine shall not introduce its armed forces into the territories. However, with the cooperation of the authorities in both entities, it may maintain elements of its national civil protection force at a strength of less than 800 in the entities.
(16) Ukrainian national authorities shall operate freely in both entities in the exercise of their competences, offering national state services within their competences. Maintaining the external border and customs services is part of that national competence.
(17) The local authorities within, and the authorities of, Luhansk and Donetsk, may establish special cultural and economic links across the border to the Russian Federation.
(18) Customs and duties for imports from the Russian Federation into or through Luhansk and Donetsk shall comply with most favoured nation status as it applies throughout Ukraine.
(19) Luhansk and Donetsk are entitled to an equitable share of fiscal and other revenue from the national government on par with other comparable regions and as is needed to exercise their enhanced competences. In accordance with Annex III, they may also raise additional funds through local taxes and may receive foreign direct investment and development aid.
(20) Disputes about competences of the authorities in Luhansk and Donetsk, or their exercise, shall be settled by application to the Constitutional Court of Ukraine, which shall give full effect to self-governance according to the Special Organic Law for the two entities.
9. Other Arrangements
(1) Ukraine will review provision for language and cultural rights, and for full and effective equality for Russian-speakers, throughout its territory. It will enhance provisions for linguistic, cultural and other communities in line with best practices according to the European Framework Convention for the Protection of National Minorities and The European Charter for Regional and Minority Languages. These arrangements will be reviewed by the Council of Europe Venice Commission. Ukraine will implement recommendations that may be made by the Commission.
(2) Ukraine will receive very significant support for rehabilitation and reconstruction. Luhansk and Donetsk will equitably share in this support, taking due account of any disproportionate damage that may have occurred in both entities during the present confrontation, and the lack of governmental support in parts of the entities, since 2014.
(3) The Russian Federation will make a very significant initial contribution to a new Joint Fund to be established by the Parties, to assist in recovery and to foster reconciliation, cultural understanding and cooperation, and will make further significant annual contributions until the conclusion of the first review period of this Agreement.
(4) The Joint Fund, which will attract significant additional contributions from other governments and institutions. It will also offer an assistance and lump sum compensation scheme for individuals and companies directly affected by injury, death or damage in consequence of the conflict. It will operate unbureaucratically and rapidly.
10. Entry into Force, Implementation and Duration
(1) This agreement enters into force immediately upon signature by the Parties.
(2) The obligations contained in Articles 4 and 5 will be implemented immediately. The other provisions become operative once the UN Security Council has taken the steps foreseen in Article 6 (4) and 6 (5), subject to the application of Article 4 (5).
(3) The Russian Federation will ensure compliance by the authorities in Luhansk and Donetsk and will remove any legal barriers that might conflict with the arrangements provided for both entities in this Agreement.
(4) The government of Ukraine will ensure passage of the legislation necessary for the implementation of this agreement in accordance with the democratic constitutional process in Ukraine.
(5) Signature shall be witnessed by the Chair-in-Office of the OSCE. This shall signify the willingness of the OSCE to support implementation of this Agreement as provided above.
(6) The OSCE Secretary-General shall serve as final authority to interpret should disputes about interpretation or application of this Agreement arise.
(7) Other states or organizations may be invited to issue a declaration associating themselves with this Agreement, especially in relation to the aim of establishing a New European Security Order noted in Article 7 of this Agreement and other arrangements requiring international cooperation.
(8) Such governments or institutions as have adopted economic measures in relation to the conflict are invited by both Parties to consult with one another and offer a consolidated plan on reversing these steps in synchronicity with the successful implementation of this agreement.
(9) Ukraine will consult with key states and institutions and the Secretary-General of the United Nations to arrange for a major pledging conference on rehabilitation, reconstruction and other urgent financial needs.
(10) The agreement is equally authentic in its Russian, Ukrainian and English language versions.
(11) The agreement shall be registered with the Secretariat of the United Nations.
(12) The Annexes to this Agreement are an integral part of this agreement.
(13) At the conclusion of a period of 12 years from entry into force of this agreement, the parties shall conduct a joint review of its terms. If they agree to modifications, the modified agreement shall apply for one further period of 12 years. If no amendments are agreed, the agreement shall auto-extend its duration for one further period of 12 years.
I. Protocol on Disengagement and Withdrawal
II. Draft for a Security Council Resolution on Security Guarantees to be sponsored jointly by Ukraine and the Russian Federation
III. Key Elements for an Organic Law on the Special Status of Luhansk and Donbas