counterpunch | In his book The Great Delusion[5], Professor John Mearsheimer of the University of Chicago elucidated principles of international order and the necessity to respect agreements (pacta sunt servanda), including oral agreements. In his article in the Economist on 19 March 2022[6], Mearsheimer explains why the West bears responsibility for the Ukrainian crisis. Already in 2015 Mearsheimer had signalled the importance of keeping oral agreements, as those given by the United States to Mikhail Gorbachev in 1989-91, to the effect that NATO would not expand eastward[7]. In subsequent lectures Mearsheimer has explained that, whether of not the West considers NATO’s expansion a provocation, what is crucial is how NATO expansion is perceived by those who feel threatened by it. In this context we must remember that article 2(4) of the UN Charter prohibits not only the use of force but also the threat of the use of force. Promising to expand NATO to the very borders of Russia and the massive weaponization of Ukraine certainly constitute such a threat, especially bearing in mind the aggressive campaigns by NATO members in Yugoslavia, Afghanistan, Iraq, Syria and Lybia.
For decades Russian Presidents Vladimir Putin and Dmitry Medvedev have been warning the West – notably at the 2007 Munich Security Conference[8] — that NATO eastward expansion constitutes an existential menace to Russia. Both Presidents advocate a European security architecture that will take into account the national security concerns of all countries, including Russia. Whether Russian fears are objectively justified or not (I think they are) is not the pertinent question, since their apprehension is a factum. What is crucial is the obligation of all UN member states to settle their differences by peaceful means, i.e. to negotiate in good faith. That is precisely what the Minsk agreements were all about. Yet, Ukraine violated the Minsk agreements systematically. Russia did make a credible effort to negotiate since 2014 in the context of the OSCE and the Normandy Format. German Chancellor Angela Merkel[9] and French President François Hollande[10] recently confirmed that the Minsk agreements were intended to give Ukraine time to prepare for war. Thus, essentially, the West entered the agreements in bad faith by deliberately deceiving the Donbas Russians. In a very real sense, Putin was taken for a ride at Minsk and during the eight years of Normandy Format discussions. Such behavior reflects a “culture of cheating”[11] and violates well-established principles of international relations amounting to perfidy, in contravention of the UN Charter and general principles of law. Notwithstanding, In December 2021 the Russians put forward two peaceful proposals in the hope of averting military confrontation. Although the treaty proposals were moderate and pragmatic, the US and NATO refused to negotiate pursuant to article 2(3) of the Charter and arrogantly rejected them. If this was not a provocation in contravention of article 2(4) of the UN Charter, I do not know what is.
Professor Wittner is right in reminding us of the Budapest Memorandum of 1994 and the 1997 Treaty of Friendship, Cooperation and Partnership, but these instruments have to be placed in legal and historical context, in particular in the context of Western pronouncements since 2008 to bring Ukraine into NATO, an issue that in no way was foreseen in the two instruments above.
Wittner is wrong in his evaluation of the Crimean issue. I was the UN representative for the elections in Ukraine in March and June 1994 and criss-crossed the country, including Crimea. Without a doubt, the vast majority of the population there and in the Donbass are Russian and feel Russian. This brings up the issue of the jus cogens right of self-determination of peoples, anchored in articles 1 and 55 of the UN Charter (and in Chapters XI and XII of the Charter) and in Art. 1 common to the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights. Wittner seems to forget that the US and EU supported the illegal coup d’état[12] against the democratically elected President of Ukraine, Victor Yanukovich, and immediately started working together with the Putsch-regime in Kiev, instead of insisting in re-establishing law and order as provided for in the Agreement of 20 February 2014[13]. As Professor Stephen Cohen wrote in 2018, Maidan was a “seminal event”[14].
Without the Maidan Putsch and the anti-Russian measures immediately taken by the Putsch-regime, the Crimean and Donbass peoples would not have felt menaced and would not have insisted on their right of self-determination. Wittner errs when he uses the term “annexation” to refer to the reincorporation of Crimea into Russia. “Annexation” in international law presupposes an invasion, military occupation contrary to the will of the people. That is not what happened in Crimea in March 2014. First there was a referendum to which the UN and OSCE were invited – and never came. Then there was an unilateral declaration of independence by the legitimate Crimean Parliamen, only then was there an official request to be re-incorporated into Russia, a request that went through the due process mill, being first approved by the Duma, then by the Constitutional Court of Russia, and only then signed by Putin. Had a referendum been held in 1994, when I was in Crimea, the results would surely have been similar. A referendum today would confirm the will of the Crimeans to be part of Russia, not Ukraine, to which they had been artificially attached by decision of Nikita Khruschev, a Ukrainian himself. There are no historical or ethnic reasons justifying Crimea’s attachment to the Ukraine. Many international lawyers agree that Crimea exercised its right of self-determination and was not “annexed” by Russia[15].
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