The attack on Ukrainian warships and the arrest of Ukrainian navy sailors stepped up public and political discussions on the severance of diplomatic relations with Russia. If Ukraine takes such a decisive step, the country may gain some political advantages, though it may risk of losing an already limited access to Ukrainian citizens who for a number of reasons are staying in Russia or the occupied Crimea. Ukraine is more likely to break off diplomatic relations in case of an extraordinary escalation of hostilities, a continuing low legitimacy of the Ukrainian leadership or a consent of a third country to represent the interests of Ukrainian citizens and legal entities in Russia.
Despite the annexation of Crimea, intervention in the armed conflict in Donbas and other subversive actions by the Kremlin, Ukraine decided to preserve diplomatic relations with Russia. However, each time when the conflict or political tensions between the two countries escalate, Ukrainian public and political circles step up heated debates on whether Ukraine should break off diplomatic relations with the aggressor state. In particular, the attack on 3 Ukrainian warships and the arrest of 24 Ukrainian navy sailors in November 2018 raised the question about the necessity to break off diplomatic relations.
For nearly five years, Ukraine demonstrates a line of behaviour towards Russia which is at odds with a common practice of countries which have faced an aggression. Such a position is mainly caused by fears of a possible Russia’s reaction which may affect Ukrainian citizens who are staying in Russia.
Russia’s latest hostile actions give cause for analyzing pros and cons of Ukraine’s decision to break off diplomatic relations with the aggressor state.
Pros of breaking off diplomatic relations with Russia
- Ukraine will demonstrate a decisive and consistent position that gross violations of international law by Russia are unacceptable. This may strengthen Kyiv’s position in multilateral negotiations and weaken Kremlin’s narratives of a civil war in Ukraine, a lawful accession of Crimea to Russia and lawful actions of the FSB in the Sea of Azov and the Kerch Strait.
- Russian intelligence officials hiding behind the diplomatic status will be expelled from Ukraine. In the current situation, the question arises what Russian diplomats are doing in Ukraine in accordance with the functions of a diplomatic mission, envisaged in Art. 3 of the Vienna Convention on Diplomatic Relations of 1961: “a) representing the sending State in the receiving State; b) protecting in the receiving State the interests of the sending State and of its nationals, within the limits permitted by international law; c) negotiating with the Government of the receiving State; d) ascertaining by all lawful means conditions and developments in the receiving State, and reporting thereon to the Government of the sending State; e) promoting friendly relations between the sending State and the receiving State, and developing their economic, cultural and scientific relations”.
- Ukraine will escape responsibility for losses caused by damages to the Embassy’s premises, vehicles and other property. Kremlin’s hostile actions often spark protests near the Russian Embassy in Kyiv which are sometimes accompanied by attacks on the mission’s premises made by radical groups. However, Art. 45 of the aforementioned Convention specifies that “the receiving State must, even in case of armed conflict, respect and protect the premises of the mission, together with its property and archives”. Moreover, if diplomatic relations with the aggressor state are broken off, Ukraine will avoid reputational losses as state which is incapable of ensuring inviolability and security of missions’ premises.
Cons of breaking off diplomatic relations with Russia
If diplomatic relations are broken off, Russian authorities may obstruct Ukrainian consular officers in their functions to protect Ukrainian citizens and legal entities in Russia. In accordance with para. 3 of Art. 2 of the Vienna Convention on Consular Relations of 1963, “the severance of diplomatic relations shall not ipso facto involve the severance of consular relations”. However, there is a risk that Russia may respond with a more decisive step – it may either broke off consular relations with Ukraine or expel a large number of Ukrainian consular officers (Ukraine has consular posts in St. Petersburg, Rostov-on-Don, Yekaterinburg and Novosibirsk). As a result, it will hamper an already limited access of Ukrainian consular officers to the citizens who for a number of reasons are staying in Russia or the occupied Crimea: migrant workers (around 3.5 million persons), political prisoners (around 90 persons) and prisoners of war (24 navy sailors). In such a situation, Ukrainian diplomats would have to negotiate with a third state which might be willing to represent the interests of Ukraine and its citizens in Russia.
At the same time, the severance of diplomatic relations will not in any way impact on the negotiating process. Kyiv and Moscow conduct multilateral negotiations on the peaceful settlement in Donbas – within the Trilateral Contact Group by means of the OSCE mediation, the Normandy format with the participation of Germany and France, and the Volker-Surkov talk channel.
Despite the latest developments in the Kerch Strait, Ukraine has not resorted to break off diplomatic relations with Russia yet. However, such a decisive step is more likely under certain circumstances:
- new extraordinary developments in the Sea of Azov, the Kerch Strait or provocations along the Ukrainian-Russian border, the administrative boundary between Kherson region and the occupied Autonomous Republic of Crimea;
- growing public demand for more decisive actions amid low legitimacy of the Ukrainian leadership (it becomes more likely as the presidential election approach on March 31, 2019);
- productive negotiations with a third state (this may be Switzerland, Germany, Finland) regarding the representation of the interests of Ukraine and its citizens in Russia.