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KEY TAKEAWAYS

  1. NATO was formed to limit the growing power and aggression of Russia. Ukraine has been trying to gain membership in NATO and Russia is against it.
  2. The Minsk agreements, also known as the Minsk protocol, were signed in 2014 and 2015 and both were not incorporated.
  3. Ukraine had submitted its nuclear arsenal to Russia by Budapest Memorandum on Security Assurance in exchange for the security guarantees from US, UK, and Russia. However, Russia ended up invading Ukrainian Crimea
  4. By Kharkiv Accords, Ukraine had tried to improve its relationship with Russia which proved to impact it negatively.
  5. Russia vetoes the UN Security Council Resolution that deplores the aggression against Ukraine.

INTRODUCTION

The independence of Ukraine, in 1991, was frowned upon by Russia as well as the West. Russia in a sense incorporated the USSR, on the other hand, Ukraine was a significant contributor to the downfall of the USSR. As per international law, even though Ukraine had seceded from USSR, prima facie it had fragmented from Russia to become an independent nation. The conflict between Russia and Ukraine has its roots in the dissolution of the USSR. After gaining independence, Ukraine had shed the Russian imperial legacy and lent towards the West. Russia had tried to obstruct the West leaning policies of Ukraine such as forming close ties with NATO and the EU.

The ongoing geopolitical and international Russia-Ukraine conflict is one of the most hostile crises after World War II that has been escalating.There have been countless incidents of aggression between the two nations in the past such Annexation of Crimea,the Russo-Ukraine War.Many peace agreements were signed by the two nations but they ended up fueling the conflict more. Satellite images from November 2021 extracted by NATO showed a buildup of 100,000 Russian troops and significant military equipment along the pro-West Ukrainian border. However, Russia had then denied its plan of attacking Ukraine. In February of 2022, the Russian Parliament had passed the resolution to recognize the independence of two territories in eastern Ukraine.

Russia had launched special military operations in various parts of Ukraine hitting its military base with the aim to demilitarize and denazify Ukraine. Ukraine had responded by imposing military law in the country and serving ties with Russia and resorting to military aggression for defence. The outcome of this war is very destructive with loss of life and property in both countries at an enormous rate. Many nations and International Organizations have been providing support to Ukraine and isolating Russia. The two nations had talks for negotiation which failed and the aggression has intensified. However, Russia it seems has been careful to let not other countries join the war, especially NATO as it would lead to a World War and might even be disadvantageous for Russia itself. At the emergency session of the UN Security Council, Russia has agreed upon evacuating foreign nationals from Ukraine. Russia has, further, declared a partial ceasefire opening humanitarian corridors for civilians. However, reports from western intelligence officials predict the change of Russia’s war tactics to bombard Ukrainian cities instead of the end of the war.

NATO TREATY

North Atlantic Treaty Organization (NATO) of 1949 is an intergovernmental military alliance that was established in the aftermath of World War II, specifically the events of attack by Germany and the Soviet Union. It was signed on 4 April 1949 with the aim to provide collective security to the member nation. NATO came into being shortly after the Soviet Union had tested its first atomic bomb and had undertaken an expansionist policy of developing Communist Parties and regimes throughout the World.

NATO had intensified the existing Cold War between Western Capitalists and the Eastern Communist States. Ab initio, NATO has tried to limit the aggression and the growing power of the Soviet Union. The objectives that were enlisted in the Treaty were:

a. To create fear psychosis for Russia.

b. To create a collective defence mechanism to protect the member states from Russian aggression.

Article 5 of the Treaty provided for the principle of Collective defence- where an armed attack against one or more members was deemed to be against all the members of NATO. In the 1980s, after the end of the cold war, the relations between NATO and Russia had somewhat relaxed. However, in 1994, the NATO expansionist decision had resulted in the relationship going through a phase of stability and crisis cycle. One of the worst kinds of crisis had occurred after the Euromaidan Movement in Ukraine. This had resulted in the revision of military policies between NATO and Russia. Russia had reacted to this by invasion and annexation of Ukrainian Crimea in 2014.

Russia had harvested resentment against NATO for having been granting membership to the Former Soviet Republics. 3 Former Soviet Republics- Estonia, Latvia, and Lithuania were initially the members of NATO, and Poland and Romania, and others even joined NATO, later.

In 1997, Ukraine had entered into the Charter of a distinctive partnership with NATO kick starting the cooperation. In 2008, Ukraine had joined the Bucharest Summit where Paragraph 23 of the Bucharest Summit Declaration had stated NATO’s acceptance of two former Soviet Republics- Georgia and Ukraine as its member.

In 2019, the Constitution of Ukraine was amended and the prospect of Ukraine to join NATO and European Union was enshrined in it. This Euro-Atlantic Provision in the Constitution of Ukraine has a legal binding on the Ukrainian Government’s foreign policies. This amendment was even granted the green light by the Constitution Courts of Ukraine in 2018. It was adopted with 335 out 450 votes favouring the amendment in the Parliament of Ukraine

However, Ukraine is not a member of NATO and is an Enhanced Opportunities Partner of the alliance. Thus, the NATO membership application of Ukraine is still pending and the President of Ukraine had appealed for the acceleration of the process of its inclusion in the Alliance.

Russia has firmly disagreed with Ukraine joining NATO stating that the inclusion of Ukraine in NATO would leave Russia being circled and would be a threat to its power in the East. Prior to its attack on Ukraine, Russia had demanded a guarantee from NATO to bar Ukraine from joining NATO. The demand was denied on the grounds that Ukraine being a sovereign country had the right to choose its own security alliance freely. On the other hand,backing out from joining NATO will be unconstitutional for Ukraine because of the Euro-Atlantic Provision present in its Constitution.

KHARKIV ACCORDS

Besides attaining the membership of NATO, Ukrainian Foreign Policies had the aim to form ties with the European Union and do away with the Russian imperial legacy. Former President Viktor Yanukovych was especially vocal about his idea of ascending Ukraine to the European Union and gaining the membership of NATO. He had even made an attempt to strengthen the Russia-Ukraine relations and signed the Kharkiv Accords /Russian Naval Base for Natural Gas treaty in 2010. According to the Accord, Ukraine had leased naval bases in Crimea to Russia from 2017 to 2024 in exchange for a multi-year discounted contract which provided Ukraine with Russian natural gas at a price lowered by 30%. A clause of additional 5 years for renewal was even present.

In 2011, Ukrainian Prime Minister Mykola Azarov had sought the reduction of Russian imports of natural gas by two-thirds. According to the Treaty, a limited number of Russian troops were allowed to be stationed in Crimea. The Accord was unfavourable for Ukraine as there was a cap put on the hike of the scale of the lease.

In 2014, when Ukraine was set to sign the Association Agreement with the European Union which would have integrated the global economy, Russia pressurized Ukraine by stopping the imports and threatening to the imposition ofextra duties on natural gas supplies. Russia wanted Ukraine to join the Eurasian Economic Union. Succumbing to the pressure, Yanukovych had abruptly rejected the Agreement which had flared Euromaidan Movement.

The Movement upheld the belief that Ukraine must attempt to integrate with EU and Russia-Ukraine relations and pro-Russian policies would negatively impact Ukraine. This had eventually led to the Russian invasion and annexation of Crimea which was the beginning of the Ukraine Russia Conflict. A week after the annexation of Crimea, Russia had unilaterally terminated the Russian-Ukrainian agreements which included Kharkiv Accords also.

BUDAPEST MEMORANDUM SECURITY ASSURANCES

After independence, Ukraine had inherited 176 strategic and more than 2,500 tactical nuclear missiles from USSR and was then the third-largest nuclear power in the World. The West and Russia had pressurized Ukraine politically and economically to give up its Nuclear power to Russia.

Budapest Memorandum on Security Assurance is a diplomatic memorandum signed by the United States, United Kingdom, and Russia at the summit of the Organization for Security and Cooperation in Europe (OSCE) on 5 December 1994. The security guarantees were quid pro quo for Ukraine submitting its nuclear arsenal to Russia. By signing the Memorandum, Ukraine had acceded to the Non-proliferation agreement and was denuclearized.

The Memorandum had provided that the independence and sovereignty in the existing borders of Ukraine would be respected. The economic pressure, nuclear arms, threat, and force would not be used against Ukraine by the Signatory countries. United Nations Security Council would be sought immediately for assistance if Ukraine faced aggression or threat of aggression which used nuclear arsenal. However, the drawbacks of the Budapest memorandum were:

a. Absence of Sanction Mechanism to be enforced in case of a breach.

b. Memorandums were not legally binding and were just political agreements.

In 2014, after the revision of military policies between NATO and Russia had annexed Ukrainian Crimea violating Article 1 of the Budapest Memorandum- which provided for respecting the sovereignty and territorial integrity of Ukraine. However, the same was denied by both Russia and the West. Russia claimed the incident was the result of "complex international processes", and had done away with its liabilities. The then President of Ukraine Petro Poroshenko had tried to negotiate with the Signatory Nations for a successor agreement and had failed. Again in 2022, Russia invaded Ukraine breaching the Budapest Memorandum.

MINSK AGREEMENT

The aftermath of the Crimean Annexation and Euromaidan Movement was the Russo-Ukraine War in Donetsk and Luhansk oblasts of the Ukraine which are collectively referred to as the Donbas region. The major bones of contention between Ukraine and Russia is Donbas region present in the Eastern part of Ukraine. Recently, the Russian Parliament has recognized the independence of Donetsk People’s Republics (DNR) and Luhansk People’s Republics (LNR).

The Russo-Ukraine War in the Donbas region of Ukraine fought between Ukraine and the rebel groups backed by Russia had led to intense bloodshed and Minsk Pacts were signed to pacify the situation and restore peace. The Minsk Iwas signed by Ukraine, Russia, and the Organization for Security and Co-operation in Europe (OSCE) with a mutual agreement on the implementation of a ceasefire in the Donbas region. It was the 13 point plan to prevent the two nations from fighting hence-forth.

OSCE had launched Special Monitoring Mission (SMM) in Ukraine to support the implementation of several security-related aspects of the Agreement. OSCE Chairman had prioritized the implementation of the ceasefire, the most important point of the agreement, through monitoring, reporting, and facilitation.Despite the efforts, Minsk I did not last as both parties had failed to comply with the agreement.

On February 15, 2015, the successor agreement- Minsk II was signed by both the nations which had outlined military as well as political actions. The summit was mediated by French President Francois Hollande and German Chancellor Angela Merkel. Minsk II had 14 points which were obligatory to comply with and are yet to be not incorporated in their entirety and ceasefire violations remain common. The Commitments of Minsk II were interpreted differently by Ukraine and Russia and were not translated into tangible results.

The omission of definite deadlines for the implementation of the clauses and sequence for implementation of the individual clauses proved to be a major blunder resulting in serious dispute regarding the agreement. Ukraine had supported the simultaneous implementation of the clauses; however, Russia had tried to manipulate certain clauses. One of which was the full control of the Ukrainian border would be restored to Ukrainian authorities only after local elections and a few Constitutional amendments.

The Minsk agreement is just diplomatic guidance for navigating the border between Ukraine and Russia. It lacked international legal status and had a weak legitimacy. The procedures envisaged in the Constitution of Russia and Ukraine and the International Law were not complied with while signing the Minsk Agreement. Despite the ambiguous legal status of the Minsk Agreement, World leaders and international organizations have considered it legally enforceable and time and again, have mentioned its importance in achieving peace and resolving the Russia and Ukraine conflict.Shortly before the Russian invasion of Ukraine, French President Emmanuel Macron had suggested implementing the Minsk Agreement as a way to resolve the conflict between the nations.

UN COVENANTS

Ukraine condemned Russia’s acts of aggression and had tried to take legal actions and hold Russia accountable in various international Courts–the International Criminal Court, the Permanent Court of Arbitration, and the Law of the Sea Tribunal. However, the same was not easy due to the decentralized structure of the current international court system which consisted of multiple courts and tribunals with a different jurisdiction. In 2017, Ukraine had alleged before the International Court of Justice (ICJ)that in the Russo-Ukraine War the International Convention forthe Suppression of the Financing of Terrorism (ICSFT) and in Crimean the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) were violated. Ukraine wanted Russia to take liabilities for the violations in accordance with international laws.

ICSFT

The claims of violation brought by Ukraine regarding the Russo-Ukraine Warbefore the ICJ were concerned with Articles 2, 8, 9, 10, 12, and 18 of ICSFT. Russia had argued that the ICJ did not have jurisdiction over the subject matter of the Russia-Ukraine conflict. Paragraph 1 of Article 24 of the Convection had provided that ICJ had jurisdiction over the disputes concerning the interpretation and application of the Convection where negotiation between the parties had failed. Article 24 had laid down the precondition that the parties would first genuinely pursue negotiations before arriving at the court for relief.

The issue before ICJ were:

A. Whether Russia was obliged to take measures to prevent and suppress the alleged financing of terrorism in the War under ICSFT?

B. Whether the obligation was breached by Russia?

These issues were related to the interpretation and application of ICSFT. Further, after the end of the War in the Eastern region of Ukraine, over a period of two years, the conflict was extensively discussed through various diplomatic notesfor negotiation and yet had no progress. The Court, thus, observed that both the Convection and the precondition were fulfilled, therefore the ICJ had the jurisdiction over the matter.

CERD

The allegations brought for the violation of CRED were based on the grounds that Russia had engaged in campaigns which were depriving the Crimean Tatars and ethnic Ukrainians in Crimea of their political, civil, economic, social, and cultural rights. Thus, pursuing policy and practice of racial discrimination against them. Ukraine had claimed that Russia had violated Articles 2, 4, 5, 6, and 7 of CERD. Russia had again questioned the jurisdiction of the Court. Article 22 of CERD had provided that Court with jurisdiction over the disputes which were not resolved through negotiation or the procedures expressly provided by CERD. The Court had concluded that the measures complained constituted racial discrimination in accordance with the definition outlined in Article 1 of CERD.

Agencies of UN

The claims brought by Ukraine before the ICJ were narrowly limited and only touched upon the actual broader issues which were annexation of Crimea and the Russo-Ukraine War in the Donbas Region. After ruling its jurisdiction to entertain the claim brought by Ukraine, ICJ took the severability approach which was not meant to resolve the Ukraine-Russia conflict.

Russia-Ukraine Conflict has been referred to as the “biggest global peace and security crisis” by the United Nation. The UN Charter in Article 2 has provided that the Member Nations should refrain from using threat or force against the territorial integrity or political independence of any state. However, Russia has been using force in events such as Crimean Annexation. Further, it had financed and backed the rebel groups during the Russo-Ukraine War. By forcing Ukraine to reject the Association Agreement with the European Union, Russia had infringed on Ukraine’s sovereignty. Such Russian measures ultra-vires the principles laid in the UN Charter and are inconsistent with the Friendly Relations Declaration of the UN General Assembly.

After Russia launched War against Ukraine, UN Security Council drafted a resolution where the Russian aggression against Ukraine was deplored and sanctions and authorization of force were imposed on Russia as per Chapter VII of the UN Charter which dealt with the actions required to be taken against the Threats to the Peace, Breaches of the Peace, and Acts of Aggression. The Resolution demanded the following from Russia:

  1. Use of force against Ukraine was to be ceased with immediate effect.
  2. Withdraw the military forces completely and unconditionally from the territory of Ukraine within its internationally recognized borders.
  3. Reverse its recognition of the independence of the Ukrainian area- Donetsk, and Luhansk.

When the resolution was put forth for voting, Russia had cast its veto vote claiming the Resolution to be Anti-Russian. Russia is one of the permanent members of the UN Security Council and is currently chairing the Council. Further China, India, and the UAE had abstained from voting and the remaining 11 members of the Council had voted to favor the Resolution.However, the Resolution was not passed due to the veto vote of Russia. Numerous countries had issued a joint statement holding that Russia had abused its veto power to block the Resolution.

Observing the escalating aggression of Russia and the crisis of Ukraine, UN Security Council members- the United States and Albania had requested a meeting to vote through Procedural Votes for the appointment of a special session of the General Assembly to look over the Russia-Ukraine Conflict as Security Council had failed to take adequate measures. The right to veto cannot be wielded in Procedural Votes and 9 out of 15 votes are required to make the decision. Achieving 11 yes votes, United Nations Security Council had called fora General Assembly session with 193 members to deliberate upon the Russian invasion of Ukraine.

MARTIAL LAWS

Martial Law is the government order imposed temporarily upon an area by the State replacing the civil rule when the civil authority has broken down or during wartime. Ukrainian Martial law is called "On the legal regime of martial law" which was introduced and adopted in 2015.

Ever since the armed conflict in the Donbas region of Eastern Ukraine, Martial law has been imposed in Donetsk and Luhansk. For the second time, Martial law was imposed on 26 November 2018 when 3 Ukrainian naval vessels and 24 sailors by Russian forces. It was declared in 10 regions along the Black Sea and the borders with Russia, Belarus, and Moldova for a period of 30 days. Russian men who were of the age of 16-60 years were not allowed into Ukraine during the imposition of Martial laws except on humanitarian grounds.

Recently after the Russian attack on Ukraine, the Parliament had approved a declaration of a state of emergency Ukrainian. President Volodymyr Zelensky declared the imposition of martial law in the country. He even urged civilians to stay at home and stay calm. He assured the citizens that the US was preparing to offer Ukraine international support. Article 28 of Ukrainian Martial Law provided for the enforcement of Martial Law on the day following the declaration.

The Ukrainian law has halted and the military rule prevails. Strong restrictions are imposed on meetings, movements, and political parties. Martial law would suspend all existing laws, civil authority, and ordinary administration of justice.Under Article 19, during the imposition of Martial the amendment of the Constitution of Ukraine; Presidential elections and elections to the Verkhovna Rada of Ukraine and local self-government bodies; holding all-Ukrainian and local referendums, and holding strikes, mass meetings, and actions are prohibited.

Article 24 provided that during the imposition of Martial Law, Ukraine should promptly notify the States Parties of the International Covenant on Civil and Political Rights through the Secretary-General of the United Nations regarding the incidents and the situation. After the martial law is terminated in Ukraine, regular or early elections have to be held for the Verkhovna Rada of Ukraine within 90 days.

CONCLUSION

In the 8th year of the Russia and Ukraine Conflict, the dispute is at its peak with Russia launching an armed war against Ukraine. Years of mistrust between the nations has taken shape into the current action of Russia. Russia had had security concerns regarding the possibility of Ukraine joining NATO.NATO, however, has not taken part in the current armed conflict as the collective defence mechanism, under Article 5, is available only for the member nations.

Ukraine might not be the member of NATO but its neighboring nation- Poland is. If the armed conflict intensifies resulting in the inclusion of NATO members in the aggression, NATO will be obligated by the Treaty to defend them and join the war.Russia is yet to launch cyber attacks on Ukraine and during these cyber attacks,it would be difficult to maintain the attack within the geographical boundaries of Ukraine. If Poland is affected by these attacks, the war would be escalated with the joining of NATO and that could possibly result in the next World War.

Amidst the ongoing crisis in Ukraine, Ukraine has applied for its membership in European Union and is most likely achieved its Constitutional Prospect by becoming a member of the EU. EU has agreed to finance weapons for Ukraine in the invasion and is looking forward to imposing more sanctions on Russia. It has further suspended Russia’s equal treatment in World Trade Organization. However, the EU had resisted Ukraine’s call for military action as it would give rise to the possibility of NATO joining the war.

However, it seems Ukraine is not ready for negotiation to end the military actions as it has refused to negotiate with Russia which was supposed to be held in Poland. Ukraine has been and will be affected a lot by the crisis.After the abolition of the martial law, reelection will be held in Ukraine. Not only Ukraine but also Russia is facing external as well as an internal force during the crisis. There is even a possibility that the current crisis might lead to Putin being out of power, however, such a situation is quite unlikely. To affect this political shift, the West has clearly stated that some sanctions imposed on Russia would be lifted and the diplomatic relationship would improve if Putin left office.Currently, there are considerations for the imposition of Martial Laws in Russia.

Despite all this, the outright violation of the international legal order and provisions of the UN Charter cannot be overlooked. Ukraine crisis can be tried by courts such as International Courts of Justice, National Courts, European Court of Human Rights, and International Criminal Court. Ukraine had filed a suitat ICJ against Russia over the invasion to which was the Court responded by calling on Russia to cease the military action in Ukraine.


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