Oleksii Plotnikov, PhD, international judiciary

The long-expected moment is here when Russia publicly announced the terms of its ultimatum on the non-expansion of NATO (for the previous parts of this saga please check the website of the ARC [1] [2]). Much has already been said about the draft treaties proposed by Russia to the US [3] and to the NATO states [4]. The immediate reaction of the addresses of these drafts can hardly be called optimistic for Russia. The press-secretary of the White House said that “We will not compromise the key principles on which European security is built, including that all countries have the right to decide their own future and foreign policy, free from outside interference” [5]. The NATO Secretary General stated that the Russian proposals had been received, but “any dialogue with Russia would also need to address NATO’s concerns about Russia’s actions, be based on the core principles and documents of European security, and take place in consultation with NATO’s European partners such as Ukraine” [6].

The Russian proposals have caused a barrage of criticism from Ukrainian commentators revolving around the opinion that such proposals are unacceptable in themselves, and that they will not be considered. They are thus nothing but “blackmail” and “raising the stakes” in the negotiations in the hybrid war (for example, materials of “Liga” [7] and the “LB” [8]). When discussing the reasons and forms of Russia’s manifestly impossible demands, their content is somewhat lost. This is understandable, because it is difficult to call these demands “international law”. However, as a very venerable doctor once told the author, the doctor must be accurate, and he must not be squeamish. Therefore, let us arm ourselves with a scalpel of scientific interest and try to dissect this international legal cadaver in the Crimean light.

To begin with, let’s look at the, so to speak, cover letter. It is published as a video recording of the briefing by the Deputy Minister of Foreign Affairs of the Russian Federation Sergey Ryabkov [9]. The content of his speech can be divided into two blocks. First, the Russian official spoke about the reaffirmation of already existing obligations, such as “ensuring cooperation within the framework of international law”, “fulfilling obligations under international law under the UN Charter”, “prohibition of the use of force or the threat of use of force in any manner inconsistent with the UN Charter”, “reaffirming the principle of non-interference”, and “the principle of indivisible and equitable security”. These are good wishes, although it is not clear why Russia needs additional confirmation, considering that they are already provided in the UN Charter, the Helsinki Final Act and other documents. This is probably due to the second block of the speech that clearly contradicts the first one: “to disavow Ukraine’s membership in NATO”, “the special responsibility for security in Europe lies with the USA and Russia”.

The speaker especially insisted on the violation by the U.S. of earlier agreements, which allegedly created a danger for Russia. However, he failed to name these allegedly violated treaties, recalling for some reason the Montreux Convention on the Black Sea straits and the Founding Act on Mutual Relations, Cooperation and Security between Russia and the North Atlantic Treaty Organization.

The ARC already wrote about the alleged assurances on the part of the U.S. and other states about non-extension of the NATO, so here we will limit ourselves to reiterating that there is no written confirmation of their existence, at least in the form of records of meetings (let alone any binding instrument). There are only occasional references to informal conversations between diplomats, which cannot give rise to an international obligation. It is equally difficult to understand the reference to the Montreux Convention [10], that was concluded long before the creation of NATO, and Ukraine could not violate it, even if it wanted to, because it does not own the straits and does influence their regime.

There remains the Founding Act of 1997 [11]. Suffice to say that it does not contain a word about NATO enlargement. It reaffirms the principle, reiterated many times before and since, of respecting the sovereignty, independence and territorial integrity of all states and their right to choose the modes of ensuring their own security. It also mentions the rejection of any “dividing lines or spheres of influence limiting the sovereignty of any state”.

Interestingly, the Russian deputy minister did mention the right of each state to choose the means to ensure their own security, including by joining alliances, but, in his opinion, this right is not absolute and depends on how such a choice will affect the “principle of indivisible security” as Russia sees it. For example, Ukraine’s accession to NATO is a violation of the principle of indivisible security, but Russia’s occupation of Crimea is not. At least this follows from the answer to a journalist’s question about the Budapest Memorandum. It turns out that Russia complies with the Memorandum and continues to guarantee the security of Ukraine, but this does not concern a phantomic “right of the residents of the Crimea to freely choose their means of existence and belonging to the states”. It seems that the aggressor State is trying to appropriate to itself the exclusive right to interpret what violates international peace and security and what does not.

Another interesting journalistic question concerned the manifest unacceptability of Russia’s demands. Mr. Ryabkov believes that “the situation in Europe and Eurasia has changed. The standards of the old experience are no longer used. You have to look at everything in a new way and start to write relations from a clean slate”. This is perhaps the most important Russian point: to give up all previous agreements and conclude a new one, including the prohibition of NATO expansion. At the same time, the speaker repeatedly noted the urgency of this proposal, speaking literally about the days that the U.S. and other countries of the Alliance have to simply sign the treaties proposed by Russia without any discussion.

The ultimatum character of the demand for an immediate and unconditional reconsideration of the entire system of international security was confirmed by another Russian Deputy Foreign Minister, Alexander Grushko. In an interview, he said that accepting the proposals was the only way for “the military or military-technical scenario of confrontation to be turned into a political process” and that “Russia will engage in creating counter threats if NATO turns down the Russian proposals for security guarantees” [12]. It is difficult to imagine a more explicit threat of use of force against the NATO states.

The demands themselves are more far-reaching than NATO not expanding eastward. The “draft treaty” with the United States stipulates that the latter must exclude further eastward expansion of the North Atlantic Treaty Organization, refrain from stationing its armed forces and weapons, including within international organizations, military alliances or coalitions, in areas where such deployment was perceived by the other party as a threat, not deploy short- and shorter-range land-based missiles outside national territory, and exclude the deployment of nuclear weapons outside national territory.

Many commentators noticed that the demand not to expand NATO eastward is not accompanied by a similar commitment by the Russian Federation to exclude the expansion of its own alliances, such as the Collective Security Treaty Organization. Yet other details are even more alarming. The requirement to exclude the deployment of missiles and nuclear weapons outside national territory actually means excluding the possibility of deploying nuclear weapons on two of the three traditional components of the nuclear triad – submarines and aircraft. The requirement not to deploy its forces in areas where their deployment might be perceived as a threat by the other party allows for any speculation about what either side considers a threat. In theory, any state action can be seen as potentially threatening. Replacing a concrete description of facts or possible actions with an abstract “perceived threat” allowed Russia to accuse any state at any time of its actions being perceived as “threatening”.

The draft treaty with NATO provides for no less interesting clauses, in particular:

– prohibiting states that were members of NATO prior to May 27, 1997, from stationing their armed forces on the territory of other European states where they were not stationed on that date;

– prohibition of NATO’s further expansion, in particular through the accession of Ukraine. It is noteworthy that while the “draft treaty” with the United States refers only to expansion to the east, the “draft treaty” with NATO excludes any expansion in principle;

– NATO’s renunciation of any military activity on the territory of Ukraine, as well as other Eastern European states.

Implementation of these clauses would actually mean that NATO would refuse to station armed forces in the territory of all the states admitted to the Alliance after 1997, which are 14 out of 28 member countries. The point about the exclusion of military activities in the territories of other Eastern European states looks absolutely speculative, given that the list of these states is not precisely defined, and several NATO member states can be included in this list. Again, this opens up space for replacing objective reality with the subjective perception of this reality by one single state.

The cluster of demands about NATO not expanding eastward can somehow be regarded as an attempt to consolidate the “doctrine of limited sovereignty” at a new historical level. It has long been said that the leadership of the Russian Federation is guided by this very vision, also known as the “Brezhnev doctrine” [13], and this is not surprising, since the Russian dictator himself was educated as an international lawyer in the Brezhnev era. This doctrine, which formally recognized the sovereignty of the socialist bloc states but allowed intervention of the “Biп Brother” in matters of principle relating to their policies, disappeared with the USSR. This system of “Soviet-style protectorates” looked outdated already at the time of its creation and corresponded more to the realities of the 19th century than those of the 20th.

However, the presence of the second set of requirements directly to the United States and NATO states indicates that the “draft treaties” proposed by Russia were written in such a way that even if the US and NATO leadership decided to refuse support for Ukraine, these treaties would still be impossible to agree upon. Rejecting NATO enlargement and changing the nature of troop deployment on the territory of member states inevitably entails revising the fundamental documents of the Alliance and, in fact, transforming it into something other than the current NATO. Russia might just as well have demanded that the U.S. return Alaska or that Turkey reconsider the results of the Treaty of Küçük Kaynarca.

But even assuming that NATO decides to liquidate itself to please the aggressor state, the “draft treaties” will still remain unenforceable, because they implicitly obligate not only NATO, but also the UN and all the states of the world. The Russia’s occupation of Crimea, which, according to the current Russian constitution, is allegedly a “part of the Russian Federation”, creates a situation of further uncertainty. The UN does not recognize the allegedly “Russian status” of Crimea, such position is regularly confirmed in General Assembly’s resolutions and documents of specialized UN bodies.

The Russian “draft treaties” contain a number of clauses that refer to the concept of territory, such as not using the territory of other states for hostile actions against each other and not deploying weapons outside national territory. The “draft treaty” with the USA mentions separately the prohibition of deployment of short- and medium-range missiles outside the national territory. However, Russia already deploys short- and medium-range missiles outside its national territory, namely in the occupied Crimea, as it was confirmed by Russian sources [14]. Therefore, the requirement to sign these “treaties” is equal to the requirement to recognize Crimea as allegedly “Russian territory”.

It is unlikely that the Russian diplomats are not aware that putting forward such fantastic proposals with the requirement to agree to them immediately and without discussion is completely unacceptable. Therefore, the published texts are not legal, but political and propaganda documents, which should be regarded as part of the aggressive actions of Russia against the entire world order. To conclude, we cannot but agree with the phrase that Mr. Ryabkov dropped during the press conference: “Our interests in the sphere of European security are opposite”. Indeed, while the U.S. and NATO speak about the need for de-escalation, negotiation process and peaceful resolution, Russia wants something quite the opposite.

1. https://arc.construction/23456

2. https://arc.construction/23820?

3. https://mid.ru/ru/foreign_policy/rso/nato/1790818/

4. https://mid.ru/ru/foreign_policy/rso/nato/1790803/

5. https://www.reuters.com/world/us/white-house-has-seen-talks-proposals-russia-contact-with-european-allies-2021-12-17/

6. https://www.nato.int/cps/en/natohq/opinions_190349.htm?selectedLocale=en

7. https://www.liga.net/ua/politics/articles/budet-afganskiy-stsenariy-kak-rf-pytaetsya-sorvat-sotrudnichestvo-ukrainy-i-nato

8. https://lb.ua/world/2021/12/17/501246_diki_vimogi_rosii_koli_moskva_sama.html

9. https://www.mid.ru/ru/foreign_policy/news/1790874

10. https://zakon.rada.gov.ua/laws/show/995_228

11. https://www.nato.int/cps/ru/natohq/official_texts_25468.htm

12. https://www.interfax.ru/world/810221

13. http://fpp.com.ua/polityka-rosiyi-shhodo-susidnih-derzhav-doktryna-obmezhenogo-suverenitetu/

14. https://www.militarynews.ru/story.asp?rid=1&nid=504227&lang=RU