Ukraine is about to terminate the epochal Treaty with Russia, singed more than two decades ago, by activating the clause of its Article 40. Sending a notification of non-prolongation six months before the end of another ten-year period would bring the Treaty to an end – and that’s the plan of the Ukrainian President.
From our perspective such a move would weaken Ukraine’s international position, including vis-à-vis Russia. The Treaty has been a legal instrument for holding off Russia: despite the fact that Moscow violated the Treaty by annexing Crimea, further escalation was made more risky and expensive because the Treaty has been valid. Moreover, this fundamental document has been referred to in numerous legal processes Ukraine has been running against Russia internationally. Last but not least – the Treaty has been an instrument for Ukraine to induce its weaknesses in a confrontation with a much superior rival. In asymmetric conflicts weak parties need binding norms and agreements, even if they are violated; while stronger parties want to get rid of them. A move by Ukraine to terminate the Treaty may in the end play with Russia’s hand.
There are 41 articles in the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation. The word “cooperation” is used most often, 35 times. In 1997 it has been definitely a treaty about cooperation virtually in everything.
Those days are gone. The Parties to the Treaty are rather fighting than cooperating. Russia has annexed Crimea and supported separatists in Donbas. Hostilities with varying degrees of intensity are under way in economic, trade, energy, information, and a number of other areas. But the Treaty has still been in force.
According to Article 40, the Treaty is supposed to continue automatically every ten years, unless one of the Parties notifies the other of its intention to terminate no later than six months beforehand. Deadline for Ukraine is the last day of September. At a recent meeting with ambassadors President Poroshenko demanded the Ministry of Foreign Affairs to prepare documents to notify the Russian party, that Ukraine would opt to halt the Treaty. This would be a simple legal step with possible huge political consequences.
For several times the issue of possible termination of the Treaty has been heavily debated in Ukraine. Pros and cons are rather well known by now. But the moment is different today: now a decision has to be taken, be it continuation or termination. There’s no room for further uncertainty. Moreover, presidential elections are just several months ahead. That adds specific flavor to any foreign policy moves, especially when it comes to dealing with Russia. Ukraine doesn’t seem to have a long-term Russian strategy, but politicians do have their election strategies at hand. The stance of the future of the Treaty, which has already become a symbol of hybridism of bilateral relations, may be a powerful asset in election wars of 2019.
Political speculations aside, the Treaty is a part of a broader fundamental problem: finding the best way to deal with Russia. This is not an easy problem at all. Strategic asymmetry, high level of interdependence, and lack of trust are key features to keep in mind while shaping the future of bilateral agreements.
What’s So Big about the “Big” Treaty?
In 1997 the world has been different from what it is today. It is even more so when comes to the Eastern Europe and regional security arrangements. Twenty years ago it seemed like former Soviet republics, although going through a difficult transformation period and occasionally suffering internal conflicts, would however manage to maintain international peace.
The agenda of regional security has not been yet dominated by Russia’s intentions to regain dominance over post-Soviet space. Even Russia’s relations with the West have not yet been damaged – that would happen shortly after. Bilaterally Ukraine and Russia were mostly concerned about division of the Black Sea Fleet and the status of the Russian Black Sea Fleet in Ukrainian Sevastopol.
An agreement was needed to resolve most urgent issues and set the framework for further – as it was believed – friendship, cooperation, and partnership. Twenty years ago Russia’s share in Ukraine’s foreign trade was about 38.5%, comparing to current 25%. The two countries were united by economic ties, joint ventures, transit capacities, and social interactions. The potential for further cooperation seemed huge, and the Treaty was set to enhance it.
The Treaty is mostly about cooperation – from military to educational issues. It covers important problems of citizenship, language, economic cooperation, which were equally important in 1997 and after. But what is more important, it sets a mechanism for settling disputes, establishes regular meetings of minister of foreign affairs, joint commissions and other tools for a constant and active bilateral dialogue. It also outlines strategic partnership between the two countries, aiming at further strengthening it.
A part of the Treaty that lays out general principles of bilateral relations (Articles 2-7) carries the spirit of the agreement. This is because of this part that the Treaty is labeled “big”. This is about being good reliable and predictable neighbors, respecting sovereignty and borders of each other and resolving any conflict issues by negotiations and peacefully. To a certain extent the Treaty contained a model for post-Soviet space of how relations with Russia can be arranged.
The Treaty has been a framework. It was designed to be a basis to a number of other bilateral documents, among which the Black Sea Fleet Agreement of 1997, the Treaty on the Russian-Ukrainian State Border of 2003, and the so-called Kharkiv Accords of 2010 are the most important. Overall there have been 451 interstate agreements between Ukraine and Russia before 2014. Many of them, of course, were signed before the “Big” Treaty. More than forty of them have already been terminated or suspended as a result of annexation of Crimea by Russia in 2014.
The “Big” Treaty is still valid.
Why the Treaty Should or Should Not Be Terminated?
The Treaty is valid, although attempts to terminate it have been earlier taken. Back in 2014 the Ukrainian Parliament discussed a law, aimed at denouncing the Treaty, but failed to approve it. A broader approach, targeting at breaking off diplomatic relations with Russia and introduce visa regime for Russian citizens visiting Ukraine, has also been quite popular among Ukrainian politicians and experts. Earlier this year the President called for suspension of specific parts of the Treaty.
When it comes to discussing Ukraine’s further steps regarding the Treaty or, generally, regarding Russia, there always appears emotional side hand in hand with political reasoning.
Having a valid treaty about cooperation, friendship and partnership – referred to as “strategic” in Article 1 of the Treaty – is certainly a kind of schizophrenia under current geopolitical circumstances. The spirit of the document is completely ruined, and it no longer reflects in any way a true agenda of bilateral relations between Ukraine and Russia.
On the other hand, the document in many ways reflects actually what Ukraine would like to one day have in relations with Russia: respect for sovereignty and territorial integrity, refrain from the use or threat of force or peaceful ways of settling disputes. These are fundamentals of mutual trust and good neighborhood. If Ukraine is ever to have another treaty with Russia, it most certainly would contain all these passages.
Traditional argument against terminating the Treaty comes to possible weakening of Ukraine’s position in international courts. However, from a juridical standpoint, the fact that the Treaty had been violated does not depend on whether it is terminated or not. Russia can be hold responsible in any case. From this point of view, it is not clear enough what was meant by President Poroshenko, when he mentioned that Ukraine “is prepared and legally protected enough for a next step – termination of the Treaty…which due to Moscow has long ago become an anachronism.” Ukraine has been equally ready for this step during recent four years.
However, it has never been an easy option. Terminating the Treaty is often believed to weaken legal constraints on Russia’s further aggressive actions. On the other hand, by annexing Crimea from Ukraine and supporting separatists in Donbas the Kremlin has demonstrated that considerations of hard power calculations are far more important for Russia than any legal commitments. Not only has the “Big” Treaty with Ukraine been violated, but also founding principles of international law. It doesn’t look like if Russia decides further escalation is in its interests, the Treaty would stop it.
But the Treaty is also important in one more regard. Ukraine is a weaker party to a protracted asymmetric conflict. Weaker parties are usually better off when a stronger party is bounded by norms, agreements, and multilateral commitments. In other words having no framework agreement with Russia would damage Ukraine more. Possible weakening of international position versus Russia may be a price for internal political gains.
Bringing legal basis of bilateral relations into correspondence with political reality is, of course, necessary and inevitable. The “Big” Treaty hasn’t lived up to expectations, and is certainly among other important international norms, violated by Russia. The end of another ten years period of extension may be a right moment to terminate the Treaty. However, extensive analysis should be carried out to define how termination of the Treaty would impact the whole complex of bilateral Ukrainian-Russian agreements.
Russia’s aggressive policy towards Ukraine has undermined all the values which were laid out the foundation of bilateral relations and thus made the Treaty outdated.
However, there have been good reasons for Ukraine so far not to rush and halt the agreement. A violated Treaty has been referred to in international courts and put additional diplomatic and political costs on Russia. With its fundamental provisions being broken, it still provided minimal toolbox for protecting some of remaining Ukrainian interests in relations with Russia.
But today – due to the Treaty’s timeline and Ukrainian elections approaching – compromised decisions have little chances to work out. Rhetoric about abandoning some of the Treaty’s provisions, so popular several months ago, is no longer applied. Terminating the Treaty, as well as announced Constitutional amendments about Ukraine’s NATO and EU membership aspirations, are supposed to work together and help bring electoral result next year.
Simple decisions, however, are not going to work in a situation so difficult. Ukraine should be getting ready for more unpredicted and more risky relations with Russia after the Treaty is terminated.
 President: We Are Ready for Termination of the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation // https://www.president.gov.ua/news/prezident-mi-gotovi-do-pripinennya-diyi-dogovoru-pro-druzhbu-49254
ICPS participated in the Eastern Partnership Conference in Vienna
Expert of the International Centre for Policy Studies Yehor Kyian participated in the conference “Ten Years of EaP: Today's Achievements, Tomorrow's Goals”, which took place on May 28-29 in Vienna. The event was attended by representatives of diplomatic departments, governments and leading think-tanks in Europe. In general, all participants of the EaP Conference supported positive rhetoric and noticed significant achievements in cooperation. The Conference consisted of three closed and one public panel. Participants of the first closed panel “How to keep all stakeholders on board” tried to solve the problems of heterogeneity of the EaP countries. At the same time, the emphasis was placed on the need to avoid the “division” of the EaP countries due to their heterogeneity, but to focus on finding commonalities. The aspect of possible restrictions within the framework of the Eastern Partnership has been discussed during the closed panel “The EaP’s “external relations“ and third-party co-operation”. The emphasis was on increasing trade between countries. It was noted that it is necessary to improve cooperation not only with third parties and the EU, but also with each other within the framework of the Eastern Partnership. During the open panel discussion on general topic of the conference, the representatives of the European Commission and countries such as Austria, Romania, Belarus, Georgia and Moldova have exchanged successful experience in implementing reforms and cooperation within the framework of the Eastern Partnership. “It is not necessary to consider the entrance into the EU for the very purpose, because in implementing reforms, countries first of all improve their lives for themselves and should be interested in them,” ICPS expert Yehor Kyian conveys the ideas of one of the participants of the event. - Despite the support and assistance of the EU, some countries have observed bilateral trends - that is, not only the implementation of European values, but, on the contrary, exception to them. First of all, it is about oppression of freedom of speech and media.” During the “Transformation, approximation to EU standards and values, regional cooperation - Experiences and challenges across the wider European region” panel it was highlighted on the experience of the Balkan countries. Their representatives noted that it is necessary to give more clear benchmarks from the EU side regarding the prospects of joining. In their opinion, delaying integration processes can create internal opposition and loss of confidence / support from the public regarding accession to the EU. According to Yehor Kyian, participation in such events by the official Ukrainian delegation will allow our country to better demonstrate its position on the international arena and maintain a close dialogue with Europe.
International conference “Ukraine's relations with its Western neighbors. A chance for rebooting”
On May 22, ICPS conducted an international conference devoted to the analysis of Ukraine’s policy towards V4 countries with the participation of diplomatic missions’ representatives, expert community, think tanks, representatives of the state authorities and media. The conference was organized as part of the project “Ukraine and V4 countries: promoting better understanding” with the support of the International Visegrad Fund and Ministry of Foreign Affairs of the Netherlands. The International Centre for Policy Studies (ICPS) in cooperation with the experts from Poland, Hungary and Slovakia have analysed the trends of relations development in the region and presented recommendations on implementing the new neighbourhood policy between Ukraine and the countries of Visegrad Group. Ensuring good neighbourhood and stable relations between Ukraine and its Western neighbours is a necessary prerequisite for regional stability, given the existing security threats and challenges in the region. Elaboration of a new, improved approach on the relations between Ukraine and the countries of the Visegrad Group is necessary to improve and strengthen regional cooperation, as well as to prevent new divisions in the future. The experts came the conclusion that in order to limit the scale of problems in relations between Ukraine and its Western neighbours, as well as creating a more favourable environment, countries should discourage aggressive rhetoric towards one another in internal political discourses. Secondly, they should expand mutually beneficial areas of cooperation and try to develop common approaches. They should include regional security, energy security and transnational issues. Thirdly, countries should pay more attention to supporting democracy in the region. And, finally, more attention should be paid to the ways of mutual protection of ethnic minorities. In turbulent times, strong Central and Eastern Europe - in the security, economy, and social development potential - will be in the interests of not only regional states, but also Europe as a whole. The expert recommendations are entailed in a policy research “Ukraine’s neighbourhood policy towards V4 countries: promoting better understanding”.
Ukraine and V4 countries: promoting better understanding. Briefing for diplomatic missions in Ukraine
International Centre for Policy Studies (ICPS) has conducted a briefing for diplomatic missions in Ukraine as part of the project “Ukraine and V4 countries: promoting better understanding”. ICPS experts presented the analysis of the current state of relations between Ukraine and the V4 countries as well as their expert recommendations on improving the neighbourhood policy of Ukraine. Ensuring good and sustainable neighborhood relations between Ukraine and its Western neighboring countries is crucial for regional stability with a view of the existing security threats and challenges in the region. Elaboration of a new updated approach towards the relations between Ukraine and its V4 neighbors is necessary to improve and strengthen regional partnership and prevent the occurrence of new contradictions in the future. A deeper understanding of mutual interests may open space for compromise and logrolling. Deteriorating regional security is a challenge for all; and cooperation with the view to restore fundamental institutions may bring more benefits rather than continuation of disputes. To achieve this it would be useful to concentrate on long-terms achievements rather than on short-term gains. Spheres of common priority, i.e. energy security, transportation and transit capabilities, security cooperation, should be given special attention. Hostile rhetoric should be discouraged at all possible levels. Strengthening democratic institutions, enhancing rule of law, protecting human rights, improving solidarity, as well as promoting tolerance may become common goals, capable of contributing into a positive agenda of relations between Ukraine and its Western neighboring countries. The project “Ukraine and V4 countries: promoting better understanding” is implemented with the support of the International Visegrad Fund and Ministry of Foreign Affairs of the Netherlands.
Minsk Format, Budapest Plus or Anything Else?
Ways to tackle long-term effects of Russia’s aggression against Ukraine and to resolve a conflict between the two are in the focus of presidential campaign in Ukraine. But after elections are over, the issue will still remain on the top of the regional security agenda. For five years geopolitical effects of Kremlin’s aggressive decisions on Ukraine have been downgrading security architecture in Europe. This is not only a problem of Ukraine, but a common challenge. Lack of trust, application of violence, and institutional weakness are making Europe a more dangerous place. The Minsk format, designed to contain the conflict in the East of Ukraine, has been the basic framework for managing the conflict. One thing is evident so far: it is apparently not enough. It proved helpful in containing Russian advance and freezing the conflict to a level of 100-150 battle casualties from each side annually. On the other hand, at some point it may also have become useful for making the conflict protracted, just like in a number of other post-Soviet cases. Disputed areas, separatists supported from Kremlin, Russian interference are common features of a geopolitical landscape in this part of the world. Seen as instruments for advancing Russia’s geopolitical interests, these conflicts, however, are often utilized by local elites for mobilizing internal and foreign support. But that is a risky game: benefits of that kind are covered by long-term security expenses. Frozen conflicts not only undermine security of home countries for decades, but also affect neighboring countries, which have to share the risks. So far there hasn’t been any reason to believe that Minsk format would be able to resolve the conflict in the East of Ukraine. A stalemate of Minsk raises the issue of possible alternatives. One of them has always been around: breaking away from the agreement. Supported by hardliners in Ukraine, this option could hardly improve the country’s chances in struggling against Russia and at the same time places international sanctions against Russia under threat. Ukraine remains a weaker side to an asymmetric conflict, which means that a bad agreement is usually better than no agreement at all. Another alternative has recently appeared on the agenda of Yulia Tymoshenko, one of the favorites of the presidential campaign in Ukraine. It is called “Budapest Plus”, referring to the Budapest memorandum of 1994, according to which Ukraine got security assurances in exchange for giving away its nuclear weapons. The main idea behind Budapest Plus is to engage the US, the Great Britain, France, China, Germany and the EU into an extended format, which would replace Minsk as a principal tool for conflict resolution. There are at least two advantages such a format could bring about. First, a military conflict in Donbas is a part of a broader problem, which is security deficit in Eastern Europe. For various reasons, the region is facing elevated security risks. This is a problem for many, not just for Ukraine. Expanding a circle of mediators would follow the simple fact that states do care. Moreover, Russia’s actions against Ukraine have damaged mutual trust so much, that now it seems that bilateral issues can be approached only within a broader task of rebuilding security in Europe. This is something major powers can take care about. Secondly, Budapest Plus may help not only increase pressure on Russia, but also to create a more favorable framework for Ukraine to deal with Russia in the long run, in particular over the issue of occupied Crimea. Along with providing Ukraine with more leverage, a broadened format could also be more effective in restoring elements of world order, ruined by Russia’s decision to occupy Crimea in 2014. In the end most countries would benefit from restoration of international institutions, recharging of international law, and return of justice. Reference to Budapest memorandum underlines a connection between Ukrainian security and durability of non-proliferation regime, something most major powers are especially interested in. Getting major powers on board would be hard – probably, the most challenging part of Tymoshenko’s plan. However, it doesn’t seem impossible. Europeans are already in, they just need to be persuaded to get a bit more involved – and get more security on their eastern borders in return. China is expanding its cooperation with Eastern Europe. Even though Ukraine is not taking part in the 16+1 format, the country’s instability and military standoff with Russia is negatively affecting the region in general, especially in areas which are priorities for China: infrastructure and energy. If Beijing wants more presence and more influence in Eastern Europe, it has to consider bigger responsibility for security concerns. The US strategic goal of deterring Russian revisionism would play in Ukraine’s favor. However, Kyiv must be very precise in calculating its value as an ally for the US. Americans don’t seem to be willing to engage at any terms. Ukraine will have to increase its credibility and effectiveness. That could be seen as a part of preparatory work for launching Budapest Plus. Approaches to dealing with the conflict in Donbas can surely be modified and expanded. But they have to bear two key components to be effective: mechanism for compensating Ukraine’s weakness against Russia and a way to include risks Ukraine is facing into a broader security agenda in Europe. Author: Mykola Kapitonenko
Assessment of security challenges: consequences for Ukraine's foreign policy after the elections
International Centre for Policy Studies presented the analytical paper “Assessment of security challenges: consequences for Ukraine's foreign policy after the elections”. Former foreign ministers of Ukraine, diplomats, international experts participated in the expert discussion. While presenting the research, ICPS Associate Expert Mykola Kapitonenko identified the trends, challenges and threats to Ukraine's foreign policy and national security. In turn, ICPS Chief Adviser Vasyl Filipchuk outlined the tasks and priorities for Ukraine's foreign policy after the elections. “The world is changing rapidly, destroying the traditional notions of international security and the form of interaction between states, - reads the introductory part of the study. - Institutes of multilateral cooperation are in deep crisis. International law and other non-forcible means of regulating international relations are losing efficiency, while the demand for hard power is growing. States have less trust to each other and increasingly accept international politics as zero-sum games. Non-traditional threats are increasing and those that were on the agenda for a long time - for example, the proliferation of nuclear weapons - is becoming more acute. In such conditions, Ukraine is increasingly turning into an object of international relations, as well as losing its influence on regional processes, while non-mention of global ones. The space for maneuver in foreign policy is narrowing; the tools and resources to achieve their own goals are becoming less. The implementation of current foreign policy, characterized by mixing priorities and lack of realistic assessment of the international situation, further weaken Ukraine's position on all key issues: in conflict with Russia, in dialogue with Western partners and in relations with the majority of its neighbors,” the authors believe. According to them, the continuation of this state of affairs will lead to Ukraine's consolidation in the “gray zone” of Europe's security for decades. The authors consider that the only chance to avoid this scenario is the presidential and parliamentary elections in Ukraine in 2019. Although the results of these elections are difficult to predict, without doubt, one can predict for several years that the urgency of Ukraine's challenges in the field of foreign policy and security will not diminish, and their solution will occupy a priority place among the new leadership of the country. “It is probable that the reset of executive and legislative power will open a window of opportunity to solve existing foreign and security problems, but the external environment will remain as complex or even less favorable for Ukraine, - the research reads. - The domestic institutional or economic weakness of the country, even under conditions of rapid and successful post-election reforms, will continue to aggravate its foreign policy for a long time, and the absence of such reforms will further limit its foreign policy capabilities.” One of the conditions for a successful new foreign policy is an adequate reassessment of the foreign policy and security environment of the country, challenges, threats, its own resources and opportunities to achieve its goals. “No matter what developments have taken place, Ukraine will need much more professional, decisive and flexible diplomacy in the coming years. This diplomacy, in turn, will require a lot of attention and great resources. We will be forced to learn to think about safety issues not as they used to do in the past. And this can prove to be a serious test”, - the authors of the study conclude. During the discussion participants also critically expressed their views on the current work of the Ministry of Foreign Affairs and foreign policy of the state as a whole. Both Kostyantyn Gryshchenko and Borys Tarasyuk, other heavyweights of Ukrainian diplomacy and expert environment emphasized, in particular, the problem of weak management in the Ministry of Foreign Affairs. Research via the link (Ukrainian version): LINK
Expert discussion: “Who will stop the war in Donbas and return Crimea? Foreign Policy and National Security in the Pre-election Strategies of Candidates”
International Centre for Policy Studies presented the analysis of the pre-election strategies of presidential candidates in foreign policy and national security. “Recommendation No. 1 for all of our candidates is to begin by rethinking the current international situation and adequately assessing the current world political processes. We are always ready to help as an expert environment,” ICPS expert Iryna Ivashko said. According to the expert, the main international tendencies in the medium-term perspective are: the crisis of the world order, the return to hegemony of national interests, the lack of security, the growth of force forms of pressure, the weakening of international institutions. In turn, the director of the Institute for Global Transformations, Oleksiy Semeniy, noted that issues of foreign policy in the election race “do not play a leading role”. “The approach for Ukraine - it is necessary to work with people, and by means of experts, and to engage in “political education” in the field of basic foreign policy issues in order citizens to understand what they say to them and that it really means. This is a difficult path, but it is the only one. Candidates respond to ratings: there is a positive for the rating - I will say it; there is no - even if I am convinced, I will not say that,” - the expert said. Semeniy also suggested that the experts agree on two or three main concepts of foreign policy, based on the short-term basis, and suggest to these or other candidates to determine this issue. ICPS research (Ukrainian version): LINK