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Y.Kostenko. After the failure of the Budapest guarantees: how and will multilateral international instruments for security and disarmament work?


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Seventy to ninety years of the last century will go down in the history of mankind as a period of intensive attempts to finally achieve real progress in establishing peaceful cooperation between countries, limiting the arms race, introducing the basic monetary unit, attempts which achieved the creation of the post-war system of international security that began in 1945 with the signing of the UN Charter. In this context I would like to make two general observations.

First, these results in the military sphere are: the coming into force of multilateral international treaties, important for the cause of peace, including the Treaty on the Non-Proliferation, the Treaty on the Reduction and Limitation of Strategic Offensive Arms, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their destruction, the Treaty on Conventional Armed Forces in Europe, and the Treaty on Open Skies. Undoubtedly, these important documents helped to reduce the confrontation between NATO and the Warsaw Pact, and strengthened the confidence and security of its members. Today most of the politicians who made military and political decisions, and diplomats who implemented these solutions in practice, are no longer with us, but it is obvious that their work has allowed humanity to avoid a global military catastrophe at the end of the 20th century, and achieve détente in international tensions.

Second, in the current globalized world, any destructive changes in the post-war system of international security and stability, formed with titanic efforts by representatives of many countries of the world, any violation of the legal foundations of the system by a country, and in a region, have a negative and sometimes disastrous effect on global international relations, reducing the threshold of emerging regional conflicts.

Today there are voices, namely from Beijing, that the Yalta-Potsdam system of international relations does not work anymore. However, so far no one has created a new system, and no one even knows how to do it.

Considering the consequences of flagrant violations of its international obligations by the Kremlin towards Ukraine, I agree with the reasoning of Vasyl Vasylenko that the “anti-Ukrainian ideology and revanchist aspirations rooted in the Russian mentality, determine the content of the foreign policy of Russia towards Ukraine and its ultimate strategic goal, implying total destruction of the latter as a national unity, subject to international law and geopolitical reality.” So, I would like to say that a politician came again to power in the Kremlin, who became a hero of well-known songs, and Ukrainian-Russian relations came to an impasse for a long period of time. But it is not so. Let us remember the flagrant violation of universally recognized provisions and principles of international law, attempts to annex Crimea in the early 90s of the last century, and the crisis in bilateral relations caused by events around the island of Tuzla. Today's brutal annexation of Crimea and Donbas by Russia, and the so-called hybrid war against Ukraine represent a long-term strategic line of the Kremlin, aimed at rejecting the existence of Ukraine as a state within the “Russian world” concept.

It seems that when analysing the deep crisis of the global international legal system, brought about by aggression, that has developed after the Second World War, we have to start with the UN Charter. The realities of the modern world are such that the basic principles of peace and security provisions set out in this fundamental document are not adequate, and in practice cannot protect a country from the aggression of a permanent member of the Security Council. Calling things by their real names, the UN found itself helpless in the face to Russian aggression against our country. The UN General Assembly Resolution of March 27, 2014 on the sovereignty and territorial integrity of Ukraine, unfortunately, cannot be an instrument for restoring the status quo due to its advisory nature. It should be added that the aggressive actions of Russia violate the basic principles of coexistence of countries on the European continent, stipulated in 1975 in the Final Act of the Conference on Security and Cooperation in Europe: the non-use of force or threat of force, inviolability of borders and territorial integrity of the countries.

In most countries of the world that, in particular, supported the aforementioned resolution of the UN, naturally the question arises: how is it possible, if not to avoid, then at least minimize the threat of violation of their territorial integrity. The answer to this question, extremely important for the future of many countries, is a difficult one, we shall come back to it later. Now it should be emphasized that the flagrant violation by Russia of the UN Charter and the principles of the Final Act undermines the foundations of international relations, and the credibility of obligations undertaken by countries, especially nuclear ones. Lack of trust leads to a systemic crisis in international relations, and destroys the cooperation in all areas without exception: military, political, economic and humanitarian.

First of all, this concerns the obligations of states in the nuclear field. The actions of Russia undermine the two basic requirements of the Treaty on the Non-Proliferation of Nuclear Weapons: for non-nuclear countries - not to receive nuclear weapons, and for nuclear countries - to continue disarmament. Joining the NPT, the Verkhovna Rada of Ukraine expressed a number of reservations in the Law dated November 16, 1994, the fourth point of which is: “The threat or use of force against the territorial integrity and inviolability of borders or political independence of Ukraine from any nuclear countries, as well as applying economic pressure aiming to subordinate to their own interest the exercise by Ukraine of the rights inherent in its sovereignty, shall be considered by Ukraine as exceptional circumstances which threaten its supreme interests.” As it turns out, we have some legal basis for the denunciation of participation in the NPT. Another question is whether we shall do it, whether it is in our national interests.

As you know, there is a separate international document on Ukraine's participation in the NPT – the Memorandum on Security Assurances in connection with the Treaty on the Non-Proliferation of Nuclear Weapons, signed in Budapest on December 5, 1994. As ambassador of Ukraine at the negotiations at the CSCE and in the Republic of Austria, I had an opportunity to be a part of our country's government delegation at the signing of this Memorandum. Despite the solemnity of the moment, and the presence of heads of major nuclear powers, at the ceremony we had a sense of dissatisfaction. We understood that we failed to persuade the major world players to conclude a comprehensive, legally binding instrument. In the second paragraph of the political agreement, the Memorandum provides for the obligation of nuclear states, i.e. Russia, the UK and the US, to “refrain from the threat or use of force against the territorial integrity or political independence of Ukraine, and that none of their weapons will ever be used against Ukraine except for self-defence or in any other manner in accordance with the Charter of the United Nations.” Later similar commitments were undertaken by two nuclear powers - France and China. But the Russian aggression against Ukraine revealed the actual declarative nature of this document, because it does not provide for any sanctions against the nuclear powers in violation of its provisions. It does not contain any obligation of these countries to use force to protect the territorial integrity of Ukraine. Thus, our country was not given practical security warrantees, and the mechanisms for their application were not created.

Clearly, the negative example of Ukraine as a country that has not received guarantees of its security is unlikely to be an argument in favour of strengthening the regime of non-proliferation, stimulate the desire in other countries that are still non-nuclear to take appropriate legal obligations, namely to put nuclear activities under the control of the IAEA.

Lack of trust between the states (what trust can we talk about, when you know that your officially transmitted information for security can be used against you by the aggressor?) undermines the foundations of cooperation that are set in a number of provisions of international treaties. Let us take, for example, the Comprehensive Nuclear-Test-Ban Treaty (CTBT) that Ukraine joined in 1996. In accordance with the provisions of this international legal instrument a seismological station (Malyn) and a terminal information transmission - the National Data Centre (Makariv) are operating in our country. The station and terminal are connected to the International Monitoring System, Data Centre in Vienna. Another example is the Convention on the Prohibition of the Development, Stockpiling and Use of Chemical Weapons and on their Destruction that Ukraine joined in 1993. Our state has never had the intention to develop, stockpile or use chemical weapons. However, about 20 Ukrainian enterprises of the chemical industry are subject to the CWC provisions. Every year our country provides the national declarations regarding these objects of the chemical industry and export-import operations of chemicals specified in the Convention, and holds inspections of the Technical Secretariat of the OPCW.

So, returning to the thesis on the means of minimizing threats to national security under conditions of the international legal base and due to the destruction provoked by Russia, the state will, at best, make more careful risk assessments of the mandatory disclosure of any sensitive information, and at worst, it will deliberately refuse to provide it, thus violating its obligations. Another, apparently more productive way of such minimizing is to find reliable allies and partners who can provide support in an emergency, and focus on the powerful military and political structures that can be a guarantor of security. It is no accident that in recent months in Ukraine the number of those who would rather see our country as part of NATO has sharply increased.

We should remain in the Treaty on Conventional Armed Forces in Europe, given that this agreement was the main founder of security on the European continent since it was signed in 1990; it allowed to significantly reduce the offensive potential of former opponents, and ensured effective control of the levels of conventional arms in the area, from the Atlantic ocean to the Ural Mountains. The main tool for the implementation of its provisions is the exchange of information and implementation of inspections of the controlled objects. Not fulfilling the Istanbul commitments on the withdrawal of its troops and weapons from Moldova and Georgia, in 2007 suspended its participation, and on March 11, 2015 finally quit this Treaty, which was  a logical step given the conditions of Russia’s use of this type of heavy weapons in Eastern Ukraine. Of course, the Treaty cannot function in the area of military operations, when hundreds of Russian tanks and artillery systems are involved in armed aggression against Ukraine. In addition, in response to the Crimea annexation, military cooperation between NATO and Russia was suspended. Under these conditions, unfortunately, Ukraine cannot adhere to the provisions of this Agreement either. The same applies to military measures to strengthen confidence and security defined in CSCE Vienna Document, 1999, including the exchange of military information, the exchange of data on major weapons systems and military equipment, consultation and cooperation mechanisms due to unplanned military activities, inspections and visits to military facilities. At the same time, the positive point is that military operations in eastern Ukraine did not prevent our country from fulfilling the provisions of the Treaty on Open Skies by means of observation flights.  At the end of June a joint mission of Sweden, Germany and Ukraine performed an observation flight over the territory of Russia on Swedish aircraft.

It should also be noted that the media repeatedly reported the militants’ use phosphorus and cluster munitions produced in Russia. And phosphoric weapons, for example, are banned pursuant to Protocol III of the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons.

It should be added that the specific result of aggressive actions by Russia against Ukraine is the escalation of the arms race, especially in Europe. As you can see, there are large-scale military training exercises, military budgets are being increased, and military equipment is being modernized.

Thus, the consideration of the above issues shows that: the main conclusion is that with the brutal aggression against Ukraine, Russia moved itself beyond the world of civilized society that, in the name of global peace and stability, voluntarily adheres to undertaken international and legal obligations related to security and disarmament, and thus Russia becomes an outcast nuclear power. Countries of the democratic world that support the principles and foundations of global security can oppose Russia’s policy of destroying the established international relations, betting on military force in resolving issues and economic pressures on Europe, the only steady and consistent implementing of its obligations under international legal instruments. Thus, they show the worldwide adventurous nature and lack of prospects of the Kremlin leaders. After the collapse of the established principles of peaceful coexistence of countries, the destruction of legal mechanisms to support the fragile trust between countries is that now the Kremlin needs to restore its hegemony not only in CIS, but also in Eastern Europe, to implement plans for the creation of a multipolar world.

 

As it turns out, the Ministry of Foreign Affairs of Ukraine, in addition to the actions taken, must:

- Prepare a detailed analytical document containing a comprehensive analysis of all violations of the provisions of international law in the area of security and disarmament by Russia, the destruction of the foundations of the post-war security system, namely a kind of white paper of Russian crimes against the world order;

- With the assistance of our diplomatic missions abroad, prepare the translation of the document into the working languages of the respective countries, especially those who are still not aware of the threat to the global security system;

- Bring the document not only to the foreign ministries of the countries mentioned above, but also distribute it as a working document of the UN, CSCE, Conference on Disarmament, etc.;

- Conduct in Kyiv the presentation of the document/white paper published in Ukrainian to the public;

- On the basis of this document/white paper, prepare and submit to the next session of the UN a draft resolution on Russia’s violation of basic international legal instruments governing the foundations of post-war security;

- Actively use the theme of Russia’s flagrant violations of international law in the field of security and disarmament at other world and regional forums related to these issues.

01.02.2016 21:14:00