Ukraine: A Path to Peace?

There seems to be no end in sight to the four-year-old war between Ukraine and Russia being waged since February 2022 following Russia’s annexation of the Crimea in 2014. There are two main obstacles to a peace settlement. First, there has to be an internal settlement around land and territorial control. Secondly, there has to be some means of enforcing the peace.

 
​The internal settlement: Land
 
Russia insists that settlement of the conflict requires that it obtains control of the whole of the Donbas and has its earlier seizure of the Crimea confirmed. Together they account for about 9 % of the area of Ukraine. For Ukraine the loss of this land and its resources means that its territorial integrity is irredeemably compromised. 
 
Constitutional theory suggests that for deeply divided societies such as Ukraine a substantial devolution of power coupled with minority veto rights are justified. Devolution could be structured as a form of self-government for the oblasts of the Donbas and for Sevastopol and the Crimea. They would have their own devolved governments, elected under their own system, their own civil administration responsible for their own public policies in such areas as health and education. They would accept both the Russian currency and Ukrainian currencies as official currencies and could be established as free trade zones with no tariffs or taxes on trade between the rest of the Ukraine and Russia. Both languages would be accepted as official languages. They would be responsible for their own internal security and policing. 
 
Minority veto rights in any devolution of powers become crucial in respect of foreign policy. Ukraine’s current government calls for the country to seek accession to the EU and NATO. Minority veto rights could provide that any negotiation affecting external relations with international organisations should require endorsement by 80% of the regional departments of Ukraine. Assuming that the Donbas and Crimea could account for 7 out of 27 administrative regions, they would together have a potential veto power over any proposals to pursue an accession process to the EU and NATO and veto power over the terms negotiated for any proposed accession if they were firmly against.
 
The constitutional justification for devolution and minority veto rights is in terms of the need for the framework to demonstrate inclusiveness. Ukraine’s history of relationship with Russia and its historical importance as a centre for the Russian orthodox church means that this history and its significance for an important minority in the Ukraine needs to be recognised. Subject to these devolved powers and minority veto rights, the government of Ukraine will be able to act on behalf of the whole and maintain its overall territorial integrity. 
 
Enforcing the peace
 
Even if an internal settlement involving agreement on devolved powers and minority veto rights can be reached, neither Russia nor Ukraine will trust the other to observe the terms of the agreement. In theory there are two pathways to recognise and make up for the absence of trust. The first is to call on external guarantors to hold standby powers to enforce the settlement in the event of any infringement. The second is for some kind of international recognition of a neutrality status for the Ukraine. 
 
Guarantees
 
The provision of guarantees seems at first sight to be the most straightforward way to guarantee the peace. The guarantor power or powers (such as the US or an international ‘coalition of the willing’) would be ready to intervene if the conditions for the internal settlement were not complied with. For example, the US could provide the Ukraine with a guarantee for its continued territorial integrity against any attempts to increase the size and number of administrative regions with devolved powers and minority veto rights. At the same time, Russia could provide guarantees to the devolved administrative regions so that their minority veto rights would not be eroded. 
 
Unfortunately, in politics guarantees are not as simple as they initially appear. The difficulties can be illustrated through a comparison of guarantees in politics with guarantees in financial markets.

The first problem is that the conditions under which the guarantees may be called are not straightforward. In financial markets the conditions under which a guarantee can be called are clear. For example, a missed payment of principal or interest may trigger the guarantee. This clarity may be lacking in real world politics. Ukraine’s territorial settlement may be subject to gradual erosion rather than clear breaches. The dark arts of ‘hybrid’ warfare and political coercion may be preferred to more overt actions involving force. 
 
The second area of difficulty is that the incentives to call on the guarantor power are different. In financial markets the entity that is the subject of the guarantee, for example a public sector borrower, has an incentive to ensure that the guarantee is not called. Otherwise, its credit standing in the market will be generally impaired. In connection with a political settlement the incentives may work in the opposite direction. The incentives might favour calling on the guarantor rather than trying to avoid the call. In the case of Ukraine, the subjects of the guarantees, the Ukrainian government or its administrative regions exercising minority veto rights, may each feel an incentive to call on their guarantor at the first opportunity. 
 
Thirdly guarantees in the context of a political settlement are inevitably confrontational. The interests of the guarantor powers are clearly opposed. In financial markets the interests of different classes of creditors with different types of security, including the security of a guarantee, may also conflict or compete. But there are also strong incentives and established procedures for financial ‘work-outs’ that aim to protect the interests of each of the parties involved and to distribute fairly any burden-sharing costs. There would be no such setting or established work-out procedures in the case of conflicting interests in the case of Ukraine. Guarantees risk entrenching a continual state of great-power confrontation rather than a path to work-out or compromise.
 
Thus, despite the immediate appeal of guarantees in the case of the Ukraine a different type of assurance about maintaining the status as agreed under the settlement may be needed. Two precedents are relevant. One is provided by UN trusteeships. The other is provided by declarations of internationally recognised neutrality. In each case, the UN, the Security Council and the members of the General Assembly would recognise the international status of Ukraine as a neutral state. Russia would not face a Ukraine belonging to what it sees as a potentially hostile Western alliance. Ukraine would have its territorial integrity preserved against what it sees as a potentially hostile Russia. 
 
International Recognition
 
UN Trusteeship arrangements would involve reestablishing the UN Trusteeship Council originally set up to guide colonial territories to self-governing status. The work of the Trusteeship Council came to an end in 1994. International recognition of the settlement for Ukraine under remodelled UN trusteeship arrangements could give the UN a direct role in overseeing the settlement and in monitoring respect for the terms of the settlement while Ukraine provides the government. This monitoring role could be useful also in connection with the administration of reconstruction aid where, in the absence of supervision by an international body, bilateral aid may simply be used to build destructive client relationships and foster corruption. A strictly monitoring role is also a less intrusive form of involvement compared with direct UN administration such as in Kosovo & E. Timor, unlikely to be acceptable to Russia and possibly to Ukraine as well.  
 
The Trusteeship Council is comprised of each of the permanent members of the UN Security Council. This would possibly be an advantage in providing an institutional framework for containing disputes between the great powers about whether or not the terms of Ukraine’s settlement are being observed. The internalisation of disputes might not offer resolution. Even in this case, talk remains better than war. The Trusteeship Council could provide for a work-out procedure in the case of disputes..
 
UN sponsored neutrality could avoid the kind of direct involvement associated with trusteeship or other forms of UN administration. Neutrality has been recognised under international law since the Hague Convention of 1907. Switzerland is the best-known example. Under conditions of neutrality Ukraine would undertake not to align with either Russia or NATO in world diplomacy and particularly in the case of conflict. UN endorsement of Ukraine’s neutrality would provide a way of recognising its unique history and relationship with Russia.
 
A country may choose to change its status and join an alliance. In the case of Ukraine sanctions would therefore be needed to enforce neutrality. For example, it could be agreed that if the conditions for neutrality were to be breached by an application of the Ukraine for NATO or EU membership without allowing its Russian oriented administrative regions to apply their minority veto rights, then individual UN member states might apply sanctions in terms of restrictions on trade or financial flows. 
 
Conclusions
 
There are limits as to how far constitutional theory can be applied to situations like the Ukraine. Ultimately the test is a human one. It applies equally to both sides. Ukraine’s political leaders have to face families that have lost members and be able to state that their sacrifice was justified by the maintenance of its territorial integrity even with devolved internal power arrangements and by the international recognition of its neutrality. Russia’s political leadership also has to face families that have lost members and be able to state that the recognition of devolved powers and minority veto rights in the settlement coupled with Ukraine’s future neutrality also justify the sacrifices made.