Updated, revised and corrected on February 13, 2014
(Originally published on February 12, 2015)
The Telegraph has published the full English text of the Minsk II accord of February 12, 2015 The text is found here.
The full text in English, with the points numbered and the individual signatories listed, has also been published in the Financial Times. The text is found here.
The full text in Russian, published by the OSCE, is found here.
The Minsk Ii Agreement of February 12, 2015 holds out the hope for a ceasefire from February 15, and a path toward peace in the eastern Ukraine.
However, it is a minefield, and all the cards for its successful implementation lie in Vladimir Putin’s hands.
There are, to be sure, positive aspects to the agreement, including the resumption of social payments, banking facilities, and the duty to pay taxes under Ukrainian law in rebel-controlled areas.
Nonetheless, perhaps the most striking aspect of the agreement is that the obligation to withdraw all foreign fighters and equipment is not tied to any timetable or deadline, while the obligation to restore the border to Ukrainian control is subject to conditions which require the agreement of local separatist leaders, with a deadline for restoring Ukrainian control of the border that extends until the end of 2015.
It will be quite difficult to verify the withdrawal of Russian fighters so long as the border is not returned to Ukrainian control, pending agreement on elections, and legal and constitutional reforms. Should they be so inclined, Putin and the so-called “separatists” (his puppets) will as a result have endless opportunities to quarrel about implementation.
In effect, German Chancellor Merkel, French President Francois Hollande, and Ukrainian President Petro Poroshenko have achieved more promises from President Vladimir Putin, who continues to deny that Russia even has troops, tanks, armor and soldiers in the Ukraine–despite overwhelming proof to the contrary.
More significantly, they have agreed to give Russia until the end of 2015 to comply with the most fundamental norm of the U.N. Charter, Article 2 paragraph 4, which prohibits “the threat or use of force against the territorial integrity or political independence of any state.”
This provision is a norm of jus cogens or mandatory inhternational law, from which there can be no exception by way of agreement. As such, the provisions in the Minsk II agreement which suspend the binding effect of Article 2 paragraph 4 of the Charter would appear to be void ab initio, with no legal effect.
Consequently, Russia remains under an international legal obligation, not subject to conditions, to immediately withdraw its forces, tanks, artillery and other equipment from the territory of the Ukraine.
These provisions subject to conditions amount to no more than political commitments from an aggressor state which is not known for its veracity or carrying through on its promises, and the victim of it aggression, and the latter’s supporters, in an agreement concluded at the end of the barrel of a gun.
Moreover, the agreement does not address the Russian conquest and purported “annexation” of the Crimea, which under international law remains Ukrainian territory under Russian military occupation.
Without the United States, NATO, and the European Union participating in the Minsk Summit of February 11-12, this was probably the most Merkel, Hollande, and Poroshenko could have extracted from Putin at this time.
The agreement probably represents the end of the road in terms of what can be achieved by verbal diplomacy not backed by more forceful instruments of national power. The next time negotiations are undertaken, e.g., to ensure compliance with this agreement, they should be led by the U.S., NATO, and the EU, not France and Germany.
Echoing Neville Chamberlain after he and Eduard Daladier of France signed the infamous Munich Pact in September, 1938, the German and French leaders might well say that they have achieved “peace in our time”.
Unfortunately, Chancellor Merkel and President Hollande were so obtuse as to not even secure Vladimir Putin’s signature on the document, failing to understand the political significance of such an act.
The agreement should be signed by Putin, Merkel, Hollande, and Poroshenko, even at this late hour. Putin’s signature would add greatly to the pressures, both at home and abroad, for him to comply with its terms.
Perhaps the Minsk II agreement will produce a ceasefire that will hold for a time, and save lives. That would be good. Perhaps Putin will abandon his plan for producing a “frozen conflict” in the Ukraine that will prevent that country from ever joining NATO, or even the European Union, and even lead him to drop the idea of building a “land bridge” to the Crimea. That would be really good.
But if one considers Russia’s pattern of duplicity and lies, from supporting Bashar al-Assad in Syria as he broke every agreement he ever made, beginning in 2011, to Russia’s own monstrous lies and deceptions regarding the Ukraine during the last year, including its own violation of the April 17, 2014 Geneva Agreement, the September 5, 2014 Minsk Protocol, the September 19, 2014 Minsk Memorandum, as well as the 1994 Budapest Memorandum and Article 2 paragraph 4 of the U.N. Charter itself, there would appear to be few grounds for hope that such a change might occur.
What Putin has achieved at Minsk II is to deflect the pressure in the U.S. for immediately sending “lethal weapons” in significant quantities to Kiev, and the decisions of individual EU member states to do likewise. He has also succeeded in providing both Americans and EU members who oppose imposing really harsh, sectoral sanctions—now—for Russia’s recent and continuing invasion of the eastern Ukraine, many new arguments to delay or defeat their adoption.
In a word, the only real winner at Minsk II appears to have been Vladimir Putin.
What the U.S.and the EU should do now is to draft very harsh sectoral sanctions (which can be imposed immediately by the U.S. acting alone—while the EU seeks to develop its consensus, and to begin gathering and staging the supply of “lethal weapons” to Kiev so that the decision can be executed immediately upon its adoption. They should maintain intense pressure on Putin, not with words or threats, but with actions and facts on the ground (e.g., preparing really harsh sectoral sanctions, including expulsion from the SWIFT international payments system, actually shipping lethal arms to staging areas in NATO countrie for quick delivery to Kiev if such a decion is made) so that he might actually turn away from his present course of war in the Ukraine.
We can hope for the best in terms of Putin’s implementation of the Minsk II agreement, but need to prepare earnestly to act quickly and energetically through economic and other means if he doesn’t adhere to its terms, in order to bring Russia’s aggression against the Ukraine, including its military occupation of the Crimea, to an early end.
Finally, the definitive and authoritative document should at all costs be circulated to Merkel, Hollande, Poroshenko and Putin, so that their signatures are affixed to it. As noted, it is of paramount importance that the signature of Vladimir Putin appear on the final document, if there is to be any hope that he might actually adhere to its terms.
In domestic law, an agreement that leaves essential terms open to be agreed in the future is known as an “illusory contract”, is not binding, and in fact is not a contract at all. It may become binding, however, if in the course of its performance those essential terms are supplied.
Let us hope that the Minsk II agreement may become more than illusory as its essential terms are filled in during the course of its performance.
That is a hope, however, not a binding agreement that resolves the conflict—which is driven by Russian military aggression. It’s not something you would want to bet the farm on.
The Trenchant Observer