Office of External Relations
February 8, 2020
Atlantic Council

February 4, 2020

International law may yet contain Putin in Ukraine

UkraineAlert by Michael Waelbroeck and Willem Aldershoff



French President Emmanuel Macron, Russian President Vladimir Putin and Ukrainian President Volodymyr Zelenskyy pictured during peace talks at the Elysee Palace in Paris. December 9, 2019. Ian Langsdon/Pool via REUTERS


[ Right up front I acknowledge that I begin in deep disagreement – maybe outrage – with the premise of this article. The authors – Europeans both – express the hope that international law might “contain” Putin in Ukraine. They see the West’s objective as “containment” -- sacrifice Ukraine, just keep Putin from going any further. Europeans have played that game before. I have no desire to “contain,” no interest in sacrificing Ukraine again to some greater concern. The objective is to get Putin out of Ukraine and back behind Russia’s borders! RAM ]
  . 
As the undeclared Russo-Ukrainian War approaches its sixth year, there is little sign of progress towards peace in eastern Ukraine. [ Words matter, language matters. “Russia’s War Against Ukraine” is much more accurate and descriptive. RAM ] The spring 2019 election of Volodymyr Zelenskyy as Ukraine’s new president had sparked fresh hopes of an end to the conflict.

However, Zelenskyy’s first face-to-face meeting with his Russian counterpart Vladimir Putin in Paris at the end of last year proved anticlimactic. No breakthrough was forthcoming. [ The authors’ hopes may have been that Zelenskyy would concede enough to Putin that they could see hope for containment. How little they must have thought of President Zelenskyy. Yes he wants and seeks peace, but not a Ukrainian surrender so that other Europeans can relax until Putin makes his next move. RAM ] The Paris summit made clear that there is still considerable distance between the Russian and Ukrainian visions of a post-conflict settlement. Officially, at least, disagreement centers on the sequencing of the measures outlined in the Minsk Protocols, which were signed by Ukraine, Russia, France, and Germany in early 2015 in a bid to end active hostilities and pave the way for a sustainable peace.

The Minsk Protocols are problematic in a number of ways. First and foremost, it is important to underline that they were signed under duress at a time when Russian forces were rapidly advancing in eastern Ukraine. According to the memoirs of former French president and Minsk Protocols co-signatory Francois Hollande, Putin openly threatened to “crush” the Ukrainian military during the heated all-night negotiations that took place in the Belarus capital prior to the February 12, 2015 signing. 

Aside from the conditions in which they were negotiated, the main practical problem with the Minsk Protocols is the lack of agreement over a definitive timetable. This has left the subsequent peace process hostage to rival interpretations. In particular, debate continues to rage over the sequencing of troop withdrawals, local elections, and the return of the Russian-Ukrainian international border to Ukrainian control. [ Frankly the whole “peace” process in the context of Putin being one of the players is little more than diplomatic gamesmanship. Peace process – come on! Real peace will not come until Putin pays for what he has done and is doing. Yes there are sanctions, but they stand as is with the threat that there will be more if Putin does more. Wrong! Sanctions should regularly be escalating as long as Russia remains in Crimea and Eastern Ukraine. The pain has to be increasing the longer he stays – up the cost month-by-month.  And sanctions should only be a part of increasing Western resolve to push Putin back to within his borders. RAM ]

In Paris, President Zelenskyy called for revisions to the Minsk Protocols and made it clear that Ukraine will not hold any local elections until Russia withdraws its military presence and returns control of the international border to Ukraine. Officials in Kyiv have since reiterated this position. Unsurprisingly, Moscow is resistant to any such changes. Instead, Russia continues to push for elections under conditions that would serve to cement Kremlin control over occupied eastern Ukraine. There is no obvious middle ground between the two positions.


Ukraine’s best hope of breaking this deadlock may lie in an appeal to international law. It is easy to see why many might dismiss such appeals as futile. After all, with its invasion of eastern Ukraine and annexation of Crimea, Moscow has already provided ample evidence of its readiness to disregard international law. [ The issue here is not law, it is not diplomatic tactics, it is Putin! He responds to what confronts him. Little or acceptable resistance and he aggressively presses his self-serving interests. There have to be very serious consequences for everything he does. He has to be made to pay a price and the price has to be increased until it is too much for him to pay. RAM ]

However, by mobilizing international law, Ukraine could consolidate support for its position among the wider international community. At the very least, this could prevent the country from being pressured into calamitous compromises by those seeking a return to business as usual with Russia. [ I am sorry, maybe I am being unfair but the authors’ concern for Ukraine rings hollow to me. They want to “contain” Putin in Ukraine so that they can go back to business as usual with Russia. RAM ]

In order to make its case without changing the terms of the Minsk Protocols, Ukraine should seek to put the Budapest Memorandum back on the table. The Budapest Memorandum was signed in December 1994 by the leaders of Ukraine, Russia, the United Kingdom, and the United States to formalize the handover of Ukraine’s vast Soviet-era nuclear arsenal. It commits the United States, United Kingdom, and Russia to respect the independence, sovereignty and existing borders of Ukraine while refraining from the threat or use of force against Ukraine’s political independence. Under the terms of the Budapest Memorandum, Ukraine is entitled to protest to any of the signatories in case of breaches in the terms of the agreement. Mechanisms are set out to request consultations in order to remedy breaches. [ Diplomatic games – and nothing more when Putin is involved. Yes, Ukraine should be hammering away at the Budapest Memorandum pointing out the obligations the United States and Great Britain made! RAM ]


The Budapest Memorandum should not be confused with security guarantees. Indeed, it has often been argued that the “security assurances” contained within the Memorandum merely restate the existing obligations already flowing from international law and the UN Charter. Nevertheless, these obligations are of the utmost importance. [ Get serious – the authors can gloss over the assurances on their way to their containment objective, but the fact is the American negotiators of the Budapest Memorandum clearly led newly independent Ukraine’s negotiators to understand “assurances” as “guarantees” and they have turned out to be anything but. Hammering home the terms of the Budapest Memorandum is the last thing the United States and Great Britain want, but both should finally start meeting the obligations the promised. Evolving and regularly strengthening sanctions, more and more military aid - - - greater and greater costs for Putin to continue in Ukraine. RAM ]

The international legal order is founded on the obligation of each state to respect the sovereignty and territorial integrity of all other states. Likewise, the ability of a state to exercise control over its borders and thereby assure its territorial integrity are essential attributes of its sovereignty. No state can reasonably be required to organize elections in a part of its territory which it does not control.

These obligations to respect the sovereignty and territorial integrity of states constitute “preemptory norms” of international law. In other words, they are among the fundamental principles from which no derogation is permitted. As such, they impose themselves on all agreements between states subject to international law. As the sole legitimate sovereign power in eastern Ukraine, the Ukrainian authorities have every right to demand control over the international border and the withdrawal of foreign troops before agreeing to organize local elections.

Russia is unlikely to be moved by such arguments, but this may not be the case where fellow Minsk Protocol signatories Germany and France are concerned. By joining Moscow in pressuring the Ukrainian government to organize elections in Russian-occupied eastern Ukraine, Germany and France risk violating international law. This carries significant implications.
Furthermore, in line with the terms of the Budapest Memorandum, it also entitles Ukraine to seek diplomatic support from the United States and the United Kingdom in order to resist such pressure. International law and the Budapest Memorandum failed to prevent the Russian attack on Ukraine in 2014, but they could yet have roles to play in the quest for peace and the return of Ukraine’s territorial integrity. [ The bottom line should be that noting international law, agreements signed and commitments made by Russia a united West should regularly be increasing the costs Putin has to pay for being in Crimea and Eastern Ukraine. Talk the diplomatic talk if you will, but apply genuine pressure and tighten it and tighten it until Putin cannot pay the price of his aggression. RAM ]

Michel Waelbroeck is emeritus professor in European Law at the Free University of Brussels. Willem Aldershoff is a former unit head at the European Commission.



The views expressed parenthetically here by Mr. McConnell are his and are not necessarily those of the Foundation or FOUN.

Bob McConnell
Coordinator, External Relations
U.S.-Ukraine Foundation’s Friends of Ukraine Network

Robert A. McConnell is a co-founder of the U.S.-Ukraine Foundation and Coordinator of External Relations for the Foundation’s Friends of Ukraine Network. He is Principal of R.A. McConnell and Associates. Previously, he has served as head of the Government Advocacy Practice at Gibson, Dunn & Crutcher, Vice President – Washington for CBS, Inc, and Assistant Attorney General in the Department of Justice during the Reagan Administration. rmcconnell@usukraine.org
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