The fine print matters – so Crimea will be Russian

Since we had to get up to speed with the domestic implications of free trade agreements, we've been paying more attention to international treaties. As usual the fine print is far more important than the title. The Ukraine predicament is a reminder, as explained below by my colleague Rob Ogilvie.

"A suggestion that the US had given “security guarantees” to the Ukraine was alarming. Security guarantees are a staple of international diplomacy, and when given by the world’s only super-power, they matter.  US security guarantees  to Germany and Japan have kept them from rearming, although that happy period in world affairs is ending. Both World Wars last century were triggered (though not caused) by security guarantees.  And it is exactly a hundred years since the boundless optimism and easy internationalism of fin de siècle Europe ended in the then unimaginable bonfire of WW1.

"History will no doubt clarify individual thoughts and motives of February 2014.  As a generalisation, in foreign policy Russia thinks chess, the US thinks monopoly.  It could all be blundering and opportunism.  However, it is at least possible Putin and his advisors have again suckered a naive US administration. The people’s revolution in Ukraine has given Putin the long awaited opportunity to annex Crimea, and possibly the rest of Ukraine, without fear of serious consequences.

"Tweaking Russia’s tail was fun when Russia was weak and demoralised, but now Russia is stronger and determined.  It will not allow Ukraine to align Westward – any more than the US would permit Alaska to secede to Russia or China.  The US should have realised a misplaced tweak could lead to aggression. If they chose to do the tweaking, they had better know their next steps.

"Perhaps the tweaking by Ukrainians was spontaneous. Whatever, the US again looks flatfooted.   Post Syrian fading “red line” the current US administration seems feckless, in international affairs at least.  Soaring rhetoric without hope of action – hence strategically irrelevant and a tyrant’s free pass.  Thankfully vainglory is leavened with real cowardice.  Obama will quickly rein in the braver, more reckless members of his team. “Grave consequences” (a Cuban missile crisis level threat) became “there will be costs” and now the plainly risible “we will work closely together to support Ukraine and its people at this historic hour” (sending victim support teams?).  Meanwhile,  the US has quietly withdrawn its navy from the Black Sea.

"And what of the other serious player, the Germans?  The idea of Germany lecturing Russia over the future of Ukraine would be funny if it wasn’t so bizarre.  Putin must be itching to say to the talented Merkel “you  tried that twice last century, how did that work out for you?”.  Ukraine is firmly within Russia’s strategic orbit, paid for in blood, treasure and horror way beyond our experience, and no amount of wishful thinking or bluster will change that.  Germany (in Stalin’s famous quip about the Pope) has no divisions. So why would Putin care for a moment what they say?

"Back to the “security guarantee”.  When the Soviet Union imploded the West realised to its consternation that many of their nukes were in Ukraine, then degenerating into chaos and kleptocracy.  A historically aware Ukraine was reluctant to just give away its only deterrent force.  So a series of deals were done – money and support in return for the nukes.  The nukes were returned to the much more responsible democratic Russia (sic!) and the US, Europe and Russia gave Ukraine a set of “security guarantees”.  The fine print makes interesting reading.  They each make pleasant sounding promises not to blackmail or invade.  But when it comes to the money clause, instead of “we will come to your aid if anyone invades you” they  jointly promise to urgently report any aggression to the …..Security Council of the UN!  Where Russia has a veto.  Enough said.  Clearly wiser heads prevailed.

"The Ukrainians weren’t fooled, and knew it was race against time to secure the right to emigrate Westward before Russia reasserted itself.  Perhaps, if the West had left well enough alone, Ukraine might have stayed independent long enough to pull it off.  But along with so much of the post Berlin wall promise, that will now just be a historical footnote “what could have been”.

"There are lessons here for NZ.  Relying on loose arrangements with a fading superpower, or the good offices of the UN is not a defence strategy, it is wishful thinking. Read the fine print."

Stephen Franks is principal of Wellington commercial and public law firm Franks and Ogilvie.

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