Oleksii Plotnikov, PhD, international judiciary

A week before our Association published an analysis of the Russian threats against Ukraine in terms of international law [1], where we made an assumption that the threat of force from Russia against Ukraine is in fact directed against NATO states. It might seem, and this was admitted in our text, that this assumption is too bold. Today it should be admitted that our assumptions turned out to be by no means bold, but, on the contrary, very cautious, in comparison with the statements of the foreign policy department of the aggressor state.

On December 10, the Russian Foreign Ministry published its “Statement on Dialogue with the United States and Other Western Countries Regarding Security Guarantees”. The publication coincided in time with the escalation of tensions around Crimea, including due to blocking of 70 % of the Azov Sea [3]. This escalation is so serious that it provoked a reaction from the UN General Assembly. The resolution adopted on December 9 [4] characterizes Russia’s actions as nothing less than “the unjustified use of force by the Russian Federation against Ukraine, in the Black Sea, the Sea of Azov and the Kerch Strait”. This UN resolution also explicitly mentions the threat of use of force against Ukraine.

Thus, there was an official confirmation of both of our previous assumptions. Russia confirmed at the level of the Foreign Ministry statement that the statements of its top officials should be viewed as claims directed towards the NATO. The UN General Assembly has again reaffirmed that the use of force and the threat of use of force are taking place. The Russian Foreign Ministry statement should be evaluated from these positions.

The resolution of the Russia’s diplomatic agency is far from diplomatic spirit and is filled with judgmental statements that are clearly offensive and unacceptable for international diplomacy, such as “encouraging Russophobia,” “justifying the actions of the Kiev regime,” “Ukrainian protégés,” and others. It ends, however, with relatively specific proposals, namely:

– development of legal guarantees excluding against any expansion of the NATO to the east;

– disavowing of the decisions of the NATO Bucharest summit on membership of Ukraine and Georgia as contradicting allegedly “as contrary to the commitment undertaken by all the OSCE participating States “not to strengthen their security at the expense of the security of other States”;

– the legal confirmation of the agreement on the non-deployment of the United States and other NATO countries of strike weapons systems on the territory of countries neighbouring Russia;

– agreements on some military issues and the resumption of dialogue between defence departments.

If Russia started talking about legal guarantees and promises to prepare draft international agreements, apparently, its proposals may have some kind of international legal basis. Indeed, Russia refers to documents adopted within the OSCE. The problem with these documents is that they are not international treaties.

The main international treaty governing international peace and security is, of course, the UN Charter. This document, to which all states of the world are parties, prohibits the use of force, threats, violation of the territorial integrity. Russia violated these obligations and does not mention them.

Security issues between Ukraine and the Russian Federation were (before 2018) regulated by the 1997 Treaty of Friendship, Cooperation and Partnership (the so-called “Big Treaty”) [5]. The parties mutually recognized the inviolability of the existing borders. For Ukraine, it was this agreement, and not the Budapest Memorandum, that was a principal legal guarantee of Russia’s recognition of the Ukrainian sovereignty over Crimea and Sevastopol. This treaty has also been violated by Russia, and Russia does not mention either it or the security guarantees contained therein.

Russia refers to a number of the OSCE documents, none of which is an international treaty. The Final Act of Conference on Security and Co-operation in Europe 1975 [6], the Charter of Paris for a New Europe [7], the Istanbul Document 1999 [8] are declarations only. An international declaration differs from a convention, covenant, concordat or any other international treaty in that it does not create specific legal obligations. The international declaration cannot be violated. It is possible to act contrary to the declaration, not to act in the spirit of the declaration, but it cannot be observed or not observed as an international obligation.

However, a declaration is not a completely empty document. This format is chosen in cases where states are not ready to take on specific obligations and only seek to outline possible paths. For this reason, a variety of good intentions are often included in the declaration. For example, the CSCE Final Act 1975 begins with the recognition of the principle of the sovereign equality of states. The first principle of the Charter of Paris speaks of democracy as “the only possible system of government” and the obligation to comprehensively protect and promote human rights. The Istanbul Charter opens with a statement of states’ strong commitment to the cause of freedom.

If the Russian Foreign Ministry believes that these documents create some kind of obligation, then it is unlikely that Russia’s actions are consistent with each of their clauses. The blatant disdain for Ukraine in the Russian statement is in no way consistent with the principle of sovereign equality of states. It makes no sense to talk about democracy in Russia, which despised the very essence of democratic procedures by the Crimean “referendum” held at gunpoint. The state, strangling the freedom of Ukrainians, Crimean Tatars, and those Russians who dare to oppose its aggressive policy in the Crimea, cannot speak about the cause of freedom.

The only thing left for Russian diplomats is to look for at least some provision in international agreements that, if taken out of context and distorted, would look like a legal basis for the wishes of the top political leadership. This is what they are doing, and the statement published by the Russian Foreign Ministry is a vivid example.

It is difficult to understand which legal obligation the authors of the statement refer to. It contains the assertion on allegedly “obligations regarding the indivisible security in the Euro-Atlantic and the entire OSCE space. This principle was initially proclaimed in the Helsinki Final Act”. Everything is mixed in this phrase – a declaration, an obligation, a principle. An obligation is said to exist, but it is recognized that it has been “proclaimed” that is, it is not an obligation. The CSCE Final Act 1975 does not mention any “Euro-Atlantic”. One can only assume that the authors of the statement have caught on to the phrase in the preamble “recognizing the indivisibility of security in Europe”. However, the preamble is not part of the declaration itself, but only indicates the reasons for its adoption. The preamble can be invoked in some of the techniques for interpreting an international treaty, but the preamble by itself can in no way create obligations.

Another act referred to by the Russian diplomats is the Charter of Paris for a New Europe, which indeed states that “security of every participating State is inseparably linked to that of all the others”. Here the authors of the statement managed to skip not only the rest of the document, but also the content of the paragraph from which this phrase was taken.

They quoted the second sentence. Meanwhile, the first sentence says that states will “strive for a new quality in our security relations while fully respecting each other’s freedom of choice in that respect”. That is, this provision allows each state to choose for itself how to ensure its own security. Freedom of choice includes the right to join any defensive alliance, and all other states must respect this choice. Moreover, if Russia confirms that the security of everyone is inextricably linked with the security of everyone else, then it is not clear why it is surprised by the reaction of NATO members to threats towards Ukraine? NATO is acting in the spirit of understanding that the security of Ukraine is inextricably linked with the security of all other states, and therefore helps Ukraine to strengthen its security.

And in order to finally confirm the absurdity of their demands, the Russian diplomats are citing a phrase from the 1999 Istanbul Document: “the participating states will not strengthen their security at the expense of the security of other States”. The comic of the situation is that this is the fifth sentence from the eighth paragraph of the document. But there are other sentences in this eighth paragraph. For example, the second is: “We reaffirm the inherent right of each and every participating State to be free to choose or change its security arrangements, including treaties of alliance, as they evolve”.

There is also a sixth sentence, which reads: “no State, group of States or organization can have any pre-eminent responsibility for maintaining peace and stability in the OSCE area or can consider any part of the OSCE area as its sphere of influence”. That is, Ukraine is acting in full accordance with the provisions of the Document as it chooses ways to ensure its security by working on preparations for the signing of an alliance agreement within NATO – an action absolutely permissible under the Istanbul document. Russia is trying to establish part of the OSCE region as its sphere of influence, which is not permitted by the Istanbul Document.

Moreover, Russia is trying to incite the NATO states to violate the document, demanding that they recognize their responsibility for maintaining peace and stability in the region, regardless of Ukraine’s position. Obviously, this disregard for the basic principles of international security is completely unacceptable for NATO. The Alliance Secretary General did not need any additional consultations to respond to Russian demands with lightning speed. The Russian statement was published on the website of the Russian Foreign Ministry on the evening of December 10. Five hours later, a quote from Jens Stoltenberg’s speech at a meeting with the newly elected German Chancellor appeared on the NATO website: “NATO’s position when it comes to our relationship with Ukraine remains unchanged. And it is a fundamental principle that every nation has the right to choose its own path. This is enshrined in many documents and agreements that Russia has signed too – everything from the Helsinki Final Act in 1975, to the Charter of Paris, to many other accords.  It has been clearly stated that any sovereign independent nation, of course, has the right to choose his own path, including what kind of security arrangements he wants to be part of. So NATO’s relationship with Ukraine is going to be decided by the 30 NATO Allies and Ukraine, no one else. We cannot accept that Russia is trying to re-establish a system where big powers like Russia have spheres of influence, where they can control or decide what other members can do. So that’s the short answer. We are going to sit down, talk with Russia, but not compromise on the right of every nation in Europe to decide their own path” [9].

In addition to written declarations, the authors of the statement again refer to certain “promises given to the Soviet leaders”. It seems that in the diplomatic history of Russia there is a record of informal agreements that may have existed during the Cold War, or concluded during the collapse of the USSR, that we have already mentioned them in the previous article [1] concerning NATO expansion. It seems that this is exactly what the statement hints at, proposing to give these agreements a legal character. However, the statement demonstrates a complete lack of understanding of the very essence of international treaties.

The state has a head and senior officials, who are elected or appointed according to a specific procedure. International treaties are not concluded between the heads of state, and even less between leaders, but only between the states themselves, whose interests are represented by high-ranking officials. An informal closed agreement between politicians does not and cannot have any legal force and is null and void.

With its statement, the Russian diplomatic department proposes replacing the system of international security treaties with a system of informal “agreements” on spheres of influence in the spirit not even of Talleyrand or Bismarck, but of small criminal elements from the time of the collapse of the USSR. Fortunately, international law is built on very different principles. And the fact that Ukraine acts in the spirit of international law proves that its path lies towards NATO, including issues of de-occupation the Crimea, and not towards the sphere of Russia’s influence.

1. https://arc.construction/23456?lang=uk

2. https://www.mid.ru/ru/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/4991520

3. https://www.radiosvoboda.org/a/news-azov-more-rosiya-agresiya/31603403.html

4. https://undocs.org/A/76/L.22

5. https://zakon.rada.gov.ua/laws/show/643_006

6. https://www.osce.org/files/f/documents/0/c/39505_1.pdf

7. https://www.osce.org/files/f/documents/3/4/39520.pdf

8. https://www.osce.org/files/f/documents/7/f/125811.pdf

9. https://www.nato.int/cps/en/natohq/opinions_190110.htm