21 März 2022

We Should Take the Ukrainian – Russian Negotiations Seriously

Ukrainian and Russian negotiators have been meeting regularly since 28 February, sometimes in a small Ukrainian town at the Belarusian border, sometimes online. Most experts and commentators have dismissed these talks as irrelevant and only for show.

I disagree. The negotiations matter for the simple reason that a negotiated end to this war remains a plausible scenario. If it suddenly materializes, many governments will have to quickly respond to complex political-legal challenges. Ukraine is asking for tangible, quasi-automatic security guarantees, possibly from Germany too. We need legal-political options on how they could look like.

Of course I understand the doubts about the negotiations. Russia has shown zero good will towards Ukraine ever since its attacks on the country in 2014. Its many lies about the military build-up before the invasion and the way it is conducting this war leaves no doubt that there can be no trust whatsoever in its leadership and motives. For now, Russia is in the talks to look better in the court of global public opinion, not because it is seeking peace.

Doubts also arise from the choice of the Russian chief negotiator. Vladimir Medinsky was the Minister of Culture from 2012 to 2020, engaging in a systematic campaign to revise Soviet History, trying to spin its most shameful moments into something positive (for example the Molotov – Ribbentrop Pact).

Despite all this, I am weary of the prevailing group think that we should dismiss these talks as worthless. Group think has not served us well in this conflict: It first insisted that Russia would not attack and then insisted that the Ukrainian army stands no chance.

The negotiations matter because a negotiated end to this war remains a plausible scenario. Sure, there are other scenarios, such as a collapse of the Russian army or a protracted, violent stalemate, but not to give attention to a negotiated end excludes one important scenario from our horizon of reflection. And if it materializes, our governments – in the EU and the US – may be confronted with some serious questions that should better be explored ahead of time.

To be clear, if these negotiations ever get real, it will only be because Putin – or in case of his fall his successor – wants to end the war in a face-saving manner and that is only likely to happen if he judges that Russia’s military fortunes are in decline. The often-heard demand to “give diplomacy a chance”, instead of arming Ukraine, gets the cause-effect relation wrong. Russia will use diplomacy when the (original or revised) military strategy is not working or if domestic pressures become too strong.

Depending on the development of the war, the window for a deal may be small. If Ukrainian forces sense that they can carry out a successful counteroffensive, their willingness to negotiate will diminish.

Up to this point the negotiation positions have been laid out quite clearly. My organization, Democracy Reporting International, is tracking them here. Russian and Ukrainian negotiators have been quite transparent so far.  We can judge the Russian intention to be serious or not by whether it keeps raising “denazification” and demilitarization as demands.

The former is part of its disgraceful campaign over the years to suggest that Ukraine’s governments were right-wing extremists, when it is Russia that supports the extreme right across Europe. In the context of the invasion the call for denazification has ominous overtones of killing or deporting the Ukrainian elite. It is particularly distasteful given that Russia has invaded its peaceful neighbour with the aim of subjugation. That is what Nazis (and Communists) did.

The demand for demilitarization is equally absurd. Russia has attacked Ukraine for the third time in eight years. Of course, Ukraine won’t demilitarize.

The other main issues appear solvable.  President Zelensky has already indicated a level of flexibility that would be a dream for mediators, if the other side reciprocated.

What are the main issues?

Status – The biggest bone of geostrategic contention, the issue that many commentators wrongly saw as the central issue of Russia’s assault, is solvable as Zelensky has indicated that Ukraine’s accession to NATO is not absolutely necessary. Russia is trying to steer the debate towards some models of “neutrality”, such as the Austrian and Swedish situation. It is not particularly useful to present other countries as models, especially if they carry negative connotations (Austrian neutrality followed the country’s post-war occupation by the Soviet-Union and the Allied forces. Its State Treaty with these powers included many provisions on “denazification”). But it is worth noticing that, as EU member states, Austria, Sweden (and Finland for that matter) participate in the EU’s Common Foreign and Security Policy. The Russian side does not seem to be demanding the isolation of Ukraine.

Security Guarantees – Ukraine is demanding tangible security guarantees.  This is reasonable, given that Russia had explicitly guaranteed to protect Ukraine’s borders in exchange for receiving its Soviet-era nuclear weapons in the now infamous Budapest Memorandum. The Memorandum also included an obligation for the US and the UK to protect Ukraine from such attacks. Understandably Ukrainians no longer trust any guarantees by Russia or generically worded guarantees from other states.

Tangible security guarantees could include Ukrainian-Russian border zones being demilitarized and the stationing of international troops and monitoring missions. Ukrainian negotiators are asking for explicit guarantees with quasi-automatic, specific consequences should the country be attacked again.  It hopes to line up a number of signatory guarantor states, which would immediately supply the country with weapons and other specified support. This deserves attention in countries such as the US, Germany, France, the UK, Poland and Turkey (possibly China, as Ukraine mentioned the need to involved UN Security Council members), which may be required to quickly respond for a request to serve as guarantors of a peace arrangement.

Let’s briefly explore legal-political issues that could arise in Germany: Could Ukraine be guaranteed active military support in the case that is being attacked (foreshadowing Article 42 VII EU-Treaty before Ukraine joins the EU)? If so, would this fall outside the scope of Article 24 II of the German Constitution, which the German Constitutional Court considered to provide a legal basis only for situations of mutual collective security (i.e. UN, NATO or EU)?  Would that be the case if the guarantee was codified in a UN Security Council resolution, but the actual support be delivered unilaterally with no EU or NATO involvement? If the question of German security guarantees for Ukraine becomes an issue, should Germany convince parties to anchor it in a UN Security Council resolution to solve domestic legal challenges? Could Article 87a II of the German Constitution provide a legal basis for a guarantee which was not anchored in an UN SC resolution, but only established in an international (legal or political) agreement? What could Germany guarantee exactly, given that parliament must approve any military action abroad, making a quasi-automatic guarantee impossible? Related legal questions need to be asked on the delivery of weapons, which may form part of a tangible security guarantee for Ukraine.

Territory – Obviously Russia’s illegal annexation of Crimea in 2014 and its recognition of the pseudo-states of Donetsk and Luhansk – created by covert Russian military action – are the bones of contention. Ukraine demands that these territories are restored to Ukrainian control, in line with international law. It has, however, been largely overlooked that here too Ukrainian negotiators have sent constructive signals. Zelensky has indicated that he understands it would be difficult for Russia to recognize Crimea as part of Ukraine (again, something mediators would love: one party being able to describe the other side’s opinion).  Stressing that Crimea and the pseudo-republics are part of Ukraine, he has suggested that compromises could be made. One of his negotiators, Mykhailo Podolyak, was reported by the Financial Times to have said the issue could be “compartmentalized” – which could mean that they are addressed in a parallel process that could last longer than negotiations on the other issues.

Sanctions: The US, the EU and other third parties have imposed sanctions against Russia, which would like to include the issue in negotiations. If Russia became serious about negotiations and made agreement to a deal contingent on the lifting of sanctions, the US, the EU and other sanction powers (UK, Canada, Japan, Australia, New Zealand, etc.) would need to be ready to start talks with Russia in closest consultations with the Ukrainian negotiators.  Some sanctions have also been imposed on Belarus for its involvement in the war, increasing the complexity of the issue.

Other issues will need to be addressed, such as war reparations for Ukraine. The Russian negotiators have also brought up language issues (see the opinion of the Council of Europe’s Venice Commission here), but these are not likely to stand in the way of an agreement if both sides are truly interested in coming to a deal.

In conclusion: Good policy-making prepares for plausible scenarios. Governments should have plans for the obvious scenarios, such as a collapse of the Russian regime, a long-drawn out fight, or indeed a sudden rush to the negotiating table. The main issues for negotiation are already clear. If Russia suddenly becomes serious about an agreement, drops its absurd demands of “denazification” and demilitarization, a deal may be more plausible than we now think. The Ukrainian government has sent numerous constructive signals. Governments in Europe and beyond should be prepared to respond to a sudden turn of events and be ready to offer what may be needed to get a deal done.

SUGGESTED CITATION  Meyer-Resende, Michael: We Should Take the Ukrainian – Russian Negotiations Seriously, VerfBlog, 2022/3/21, https://verfassungsblog.de/we-should-take-the-ukrainian-russian-negotiations-seriously/, DOI: 10.17176/20220322-001342-0.

One Comment

  1. Sandra Khadhouri Mo 11 Apr 2022 at 12:37 - Reply

    Thanks Michael for exploring this important angle. As you note, even the most savage of conflicts like in Bosnia ended in the Dayton Peace agreement, so the right research, diplomacy and creativity need to go into this now, given that events can move very swiftly. Please continue your tracking and analysis. Thank you.

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