14 Jun Options for a Peace Settlement in Ukraine: Option Paper VII – Multilevel Peace Agreement Design: Dealing with Geopolitical Support
[Christine Bell is Director of PeaceRep (Peace and Conflict Resolution Evidence Platform), Assistant Principal (Global Justice) and Professor of Constitutional Law, University of Edinburgh. The opinions expressed herein are the author’s own.
Thanks are due to the PeaceRep programme funded by the Foreign, Commonwealth and Development Office, for support to write the piece.]
Introduction: Need for a Geopolitical Dimension to Settlement
This contribution examines design options for the geopolitical dimension of any peace settlement for the conflict in Ukraine. Geopolitical settlement is used here to mean: an agreement resolving the geopolitical dimensions of the Russia-Ukraine conflict that is agreed to by the key relevant third-party states and international organisations. ‘Relevant third-party states’ and ‘international organisations’ are: states and organisations who have been engaged in the conflict indirectly or directly supporting one side, with a view to their own interests in relation to the conflict outcomes, whether connected to the ‘global common good’ or not. This piece addresses design options for such geopolitical settlement, arguing that design options have substantive consequences in terms of how the settlement is presented, understood, and intertwined with other forms of bi-lateral settlement (see also Nash 2019).
Complex Conflict Systems
Relating to the 2014 conflict, Wittke has identified four different political and/or conflicts at play:
- A Russian-Ukraine conflict within Ukraine’s borders, with Russia having effective and overall control over the instigation, management and trajectory of the conflict.
- A conﬂict between local elites in Donbas and the government in Kiev over demands for greater local self-government.
- A conﬂict among diﬀerent local elites in East Ukraine who have established and funded paramilitary battalions;
- A conﬂict driven by the masses between supporters of the Euromaidan and their rivals in the so-called Anti-Maidan, usually pro-Russian denizens of East Ukraine who consider the Euromaidan an illegal coup d’état.
The Russian-Ukraine conflict today dominates and has changed the dynamics of the other three conflicts; indeed, which conflicts exist and drive the others is itself a matter of contestation. However, in the current phase of conflict, a fifth conflict can be added: the conflict between (loosely) the US and Europe on one side, and Russia on the other, regarding Ukraine’s political, military and economic relationship with the EU and NATO, and its relationship to Russia and perhaps other non-aligned states.
The dispute over ‘what the conflict is about’, itself has to be resolved if a settlement is to be reached, and this is likely to have to involve more parties than Russia and Ukraine. The argument is not that Russian-Ukraine settlement has to await some type of new international order to be agreed by geopolitical actors. This is a more specific argument that as geopolitical conflict is part of the problem, so its resolution will need to be part of any lasting solution.
The Substance of Geopolitical Settlement
A key issue that will affect the design of how geopolitical agreement is constructed is what the content of the settlement is. The settlement terms will be determined by outcomes of the conflict, Ukrainian and Russian balance of power considerations, and the stance that other international actors take regarding any settlement.
The issues that logically require geopolitical settlement can be sketched out as follows:
- Questions on the status, neutrality and sovereignty of Ukraine in terms of membership of international organisations and as recipient of military assistance. Options as to how neutrality and sovereignty are understood and made practical depend on the actions, not just of Ukraine and Russia, but other third-party states and organisations (see Weller, Neutrality Options Paper).
- The presence or absence of foreign forces, including Russian forces and others will likely require international commitments and monitoring mechanisms, and ongoing military support to Ukraine – if there was a will to agree – would have to be agreed with those parties providing it (see Serry, Cease-fire Options Paper).
- Issues of non-interference and the EU and NATO security order, for which only the EU and NATO can make a credible commitment (see Kemp, European Security Order Options Paper).
- International litigation and accountability issues (see Anonymous Expert, Claims Commission Options Paper). International courts have their own criteria and processes of investigation and decision-making. However, third-party states can make commitments as to how and when they will address issues of accountability to the conflict, and accordingly, what agreements between Ukraine and Russia on these issues, will hold.
- Resettlement of displaced people. As issues of return affect not just Ukraine and Russia, but the international organisations who manage issues of resettlement and return, and the third-party host states, this is an issue that is likely to require some level of geopolitical agreement.
- Sanctions relief, reconstruction and international financial support. These all require geopolitical agreement between those involved in imposing sanctions, and will need to be linked to whatever settlement is agreed between Russia and Ukraine.
- Regional stability framework. Any wider regional stability framework that would attempt to include Russia and Ukraine would have to be agreed across the region of states and relevant organisations.
While conflict outcomes and the precise settlement terms between Ukraine and Russia will shape the contours of settlement on these issues, none can be resolved by agreement between Russia and Ukraine alone. All require some formal or informal wider geopolitical agreement.
What then are the options for how geopolitical commitments could be captured in an agreement? There are three main options for how to reach and frame geopolitical settlement. All could be used to agree parameters for settlement, and/or subsequently lock-in the international dimensions of any Ukraine-Russia settlement terms. Indeed, often international agreement starts by trying to establish agreed parameters within which the conflict should be resolved, and builds-in international commitments around any settlement outcome.
Option One: United Nations Security Council Resolution
This option is to reach agreement on the parameters of conflict resolution through the mechanism of the UN Security Council, and then use the UNSC Resolution to underwrite any Ukraine-Russia peace agreement. The UN Security Council then provides effectively a mechanism of review for implementing the process.
In other conflicts, UNSC Resolutions have often framed the parameters of conflict resolution, even by asserting the normative parameters of the settlement (e.g. no acquisition of territory by use of force). They have been used, for instance, to:
(a) create an internationally agreed framework for negotiations in a number of conflicts (e.g. Yemen, UNSCR 2216, 2015 where it drew on the Gulf Cooperation Council peace process framework);
(b) underwrite and legalise the commitments in an agreement with internal and international dimensions (e.g. Bosnia, UNSCR 1031 1995; Indonesia-East Timor, UNSCR 1236 1999);
(c) create a primary geopolitical commitment to the settlement terms (e.g. Israel/Palestine, UNSCR 242 1967);
(d) address and establish a global consensus regarding how implementation challenges to the agreement should be dealt with by the parties to the conflict when difficulties arise between conflict parties (e.g. Cote D’Ivoire, UNSC Resolution 1721 2006).
In Ukraine, given that Russia is a permanent member of the UN Security Council and therefore has a veto, it is not possible for the Security Council to play an external or somewhat ‘neutral’ role, to attempt to corral conflict parties into resolution of the conflict. There was no UNSC Resolution to underwrite the Minsk Agreements, presumably because of Russia’s rejection of this approach.
It might therefore seem unlikely that a UNSC Resolution could be used as part of a multi-layered approach to settlement in this conflict. However, non-use should not perhaps be automatically assumed. The permanent five (P5) members represent the most significant protagonists in the geopolitical conflict. When a settlement seems likely to emerge, it might begin to be in the self-interest of the parties to support a UNSC Resolution.
There are arguments that it be in Russia’s interests to have a UNSC Resolution. The failure to endorse and legalise the Minsk Agreements (2014 and 2015) – that addressed several layers of conflict – with a UNSC Resolution made it easier for Ukraine to argue that some of the commitments could not be implemented due to its internal legal system. A UNSC Resolution that mandated implementation might have made it easier for Ukraine to implement, or at least harder to argue that internal constitutional and political procedures constituted an obstacle. A Resolution could also address geopolitical ‘de-escalation’ commitments, and forms of international guarantee and monitoring of withdrawal by Russia, that would be useful to Ukraine obtaining international guarantees, perhaps coupled with addressing questions of Ukraine’s neutrality.
The advantage of a UNSC Resolution is that it is an accepted way of doing business, which cannot be argued to be ‘captured’ because all the critical geopolitical conflict parties have a veto. The disadvantage in this scenario is that Russia is both key to any resolution and a direct conflict party, in violation of the UN Charter. This has not been the case in other conflicts in which UNSC Resolutions have been useful. The use of a UNSC Resolution is therefore uniquely difficult in the current Ukraine conflict. Nevertheless, the example of Cambodia (addressed below), at the end of the Cold War – before the era of cooperation to deal with intrastate conflict and routine use of UN SC Resolutions for intrastate conflict – saw a ‘Statement’ of the P5 members of the UNSC, rather than a resolution, frame the negotiations and the geopolitical commitment to them. It might be possible to use this type of ‘statement’ mechanism by some or all P5 members in similar ways.
Option Two: A Parallel Mechanism for Ongoing Geopolitical Agreement
In Afghanistan, former Yugoslavia, Libya and Somalia, international conference style mechanisms, were used at key moments to bring together all the geopolitical actors and in-country stakeholders to work out iterative frameworks for ending the conflict. The Conference outcomes operate as forms of multiparty agreement to the various commitments undertaken, and can specify a concrete set of actions which commit all delegates.
In Afghanistan, for instance, a series of conference proceedings brought together the Afghan government, Afghan stakeholders and third-party states, binding national and geopolitical stakeholders to commitments that aimed to reinforce a peace process. Other international groupings also signed agreements supporting the 2001 Bonn Agreement. For example, the 2002 Kabul Good-Neighbourly Relations Declaration saw the Transitional Administration of Afghanistan and neighbouring states – some of whom had a relationship to conflict parties within Afghanistan – sign an agreement to ‘constructive and supportive bilateral relationships based on the principles of territorial integrity, mutual respect, friendly relations, cooperation and non-interference in each other’s internal affairs’.
This approach attempts to marry in-country ‘stabilisation’ with geopolitical agreement to support that stabilisation. The advantage is that it creates the ongoing ‘peace process’ and negotiations as a multi-level agreement mechanism which can include both commitments of the main parties to the conflict, but also geopolitical commitments to a range of confidence-building and support measures. The conference mechanism arranges international commitments and local commitments as interconnected and supportive. The disadvantage is that domestic interests can end up submerged to international interests in how the conflict is resolved. In Afghanistan, for example, language relating to ‘anti-terrorism’ dominates and was internationally driven. The Taliban were understood to be terrorists and excluded as stakeholders when some form of inclusion over time was necessary to stabilisation. The other disadvantage is that the primary conflict parties need to consent to place dispute resolution into this frame. International conference mechanisms can be a somewhat unwieldy, high-level diplomatic mechanism, leading to broad commitments made in diplomatic language. Nonetheless, international conferences, with clear outcomes documented in conference conclusions, can help to clarify the parameters of a settlement, and inject momentum into the process by bringing different levels of actors and commitments into one conflict resolution conversation.
Option Three: International Actors Sign the Main Agreement alongside Other Actors
Geopolitical settlement can also be reached by having geopolitical players sign the main agreement alongside other actors, leaving ambiguous whether they sign as ‘first-parties’ (participants in the conflict), guarantors for the commitments of other (domestic) first-parties, general guarantors, or merely witnesses or mediators signing to add gravitas. Multiple agreements use this form of geopolitical engagement. In the context of a bilateral agreement to resolve an historic interstate conflict and cross-border water management, the 1998 Acta Presidential de Brasilia between Peru and Ecuador was endorsed by a range of ‘guarantor’ countries and involved a package of agreements with international actors making their own commitments to the process.
There are advantages to having a range of international actors signing. International signatories can lock-in their own agreement to settlement commitments and tie it to international norms that underpin the settlement, in a way that is reciprocal to each other as well as to the state affected by the conflict. This modality avoids disaggregating ‘status’ issues that are themselves contentious – such as who signs with what interest and connection to the conflict. The disadvantage is that it can be difficult for the conflict-affected state in practice to mobilise international re-engagement further down the line, if the agreement is breached.
Option Four: Parallel Geopolitical Settlement Treaty
This option sees international actors sign agreements with each other, often as binding treaties, either as a side-accompaniment to the main agreement, or as part of a comprehensive ‘set of’ agreements – some of which will deal with the internal domestic constitutional issues. Often they do so with a dual role as guarantors, and as countries connected to the conflict historically, with the capacity to influence some of the kin-groups involved in the conflict.
What is often called the ‘Belfast’ or ‘Good Friday’ Agreement (1998) for Northern Ireland comprises two agreements: a multiparty agreement of all those local political groupings in the talks, the UK and Irish governments; and a British-Irish Treaty, which draws out and legally binds the UK and Irish governments into their commitments. The Treaty commitments include matters that are, strictly-speaking, outside their absolute control – e.g., the Irish government commits to constitutional changes, even though Irish constitutional law requires amendments by public referenda. A similar modality was used in Greece in the 1950s.
In Cambodia, in 1990, a Statement of the P5 Members of the Security Council (as opposed to a UNSC Resolution), set a framework for what became the Paris conferences, attended by international actors and four Cambodian delegations representing the different factions of the civil war. The so-called 1991 Paris Accords that ended the conflict, in fact comprised an Agreement on a Comrehensive Political Settlement, which was between domestic actors, but also two primarily international agreements: an Agreement Concerning the Sovereignty, Independence, and Territorial Integrity and Inviolability, Neutrality and National Unity of Cambodia, signed ‘in the presence of the UN Secretary General’ by 19 states, including Cambodia, colonial powers, neighbours and regional actors, and those who had intervened in the conflict; and an international Declaration on the Rehabilitation and Reconstruction. A more complex modality of signatories was used in the Dayton Peace Agreement in Bosnia and Herzegovina, as discussed further in ‘mixed approaches’ Option Five below.
Crafting an interstate treaty as part of a package of agreements, can enable direct commitments of key geopolitical actors to be committed to in a legally binding agreement that operates with clear commitments governed by treaty law. The disadvantage is that this is perhaps best suited to an internal conflict with international geopolitical underwriters, who come together to agree to support a settlement. However, it is a model that can perhaps be adapted to the Ukraine contexts, including using the multi-layered approach set out below.
Option Five: Multi-Layered Use of All Options
Multi-layered solutions adopt several of the above modalities to create a ‘multi-layered’ approach to implementation. This approach could enable a Ukraine-Russia settlement which has both cross-border and domestic actions for both parties, to enforce and underwrite agreement. Many of the examples already given have elements of multi-layering, to deal with the multiple conflict levels which need dealt with.
In the multi-layered approach, conflict-party signature to the agreement is accompanied by other forms of geopolitical agreement. In Bosnia Herzegovina, the 1995 Dayton Agreement exemplifies the multi-layered approach, although other examples can be found in Iraq and Colombia (see longer version of this paper). The approach in Bosnia includes: third-party states signing the agreement (or even sections of the agreement) in ambiguous ways that leave open whether they are: first-parties to the conflict signing to commit themselves; third-parties who seek to provide guarantees as to implementation; or underwriters of the commitments of kin groups in-country, who play a role in the conflict (e.g. Federal Republic of Yugoslavia signing the Dayton Peace Agreement on behalf of the Republika Srpska). Sometimes these multi-layered forms of signature are connected to UNSC Resolutions that make the agreement operational or provide some international legal force to its commitments. (See further Bell 2006).
Often multi-layering responds to a need to fashion a legal status that is both international and domestic, where there is no easy legal form available: domestic constitutional commitments, international ceasefire commitments, and external commitments to non-interference need to be woven together.
The multi-layered approach can navigate around the disadvantages of other options, when used in an isolated way. A multi-layered legal status can capture international, bilateral and geopolitical agreement, and weave these together. The disadvantage is that multi-layering requires the negotiators to be creative and to understand the connections of substance and process. Often the modality of using multi-layered agreements, responds to the need to find a compromise on the nature of the conflict, and who is required to guarantee its termination.
Very few multi-layered conflicts are resolved without multi-layered agreement that includes the agreement of external actors. If a multi-level approach to conflict resolution is not achieved, failure to settle one strand of conflict can undo a settlement in the other.
A complex relationship between form and substance connects settlement terms and the modalities of agreement design. The precise commitments on the geopolitical dimensions of the conflict – neutrality; sovereignty; militarization; de-confliction, etc. – will determine which parties make which commitments, and in what form. However, sometimes the issues of form are difficult to resolve because the appropriate form for international agreement involves a compromise over contested narratives on what the conflict is ‘about’: different forms of agreement tell different stories of who was key to the conflict, whether the conflict is internal or international, bilateral or multilateral, and what sovereignty means going forward. These are all substantively contentious issues, which creative process-design can help to address.