The tragic events of the recent days, in particular the Malaysian Boeing crash, forced the world to once more re-evaluate the situation with Russian aggression in Ukraine.
In this context, France’s intention to sell Mistral military strategic helicopter carriers to Russia starts to look more cynical than ever before, as now we are talking about handing strategic weaponry over to the country whose actions are causing mass death among civilians from other states.
The recent claims of the French President that “we will hand over one Mistral and then see” should not fool anyone: the transfer of even one Mistral to Putin’s Russia constitutes a serious additional threat not only for Ukraine, but for any other countries this vessel might pass.
The issue of the Mistral deal has not only a political and security aspect, but also a legal one. And in this aspect not everything is as smooth as may seem. The Ukrainian expert community has already raised this issue. I will allow myself to narrow down the legal accusations. Particularly, we need to examine the impossibility of licensing the export of Mistrals, taking into account the violation of number of criteria listed in the Common Position of the EU Council 2008/944/CFSP, which outlines universal rules of control over export of military technology and equipment.
The public has not yet heard official responses and commentary of the French side and representatives of EU institutions to such discrepancies. The receipt of such feedback is essential, as it touches not only on the national interests of Ukraine, but a number of EU member states (Poland, Lithuania, Latvia, Estonia).
Besides, the transfer of the Mistrals poses a big risk that actions violating the UN General Assembly Resolution 68/262 Territorial Integrity of Ukraine might be committed.
Let us try to expand on the essence of possible violations of European legislation. Article 2 of the aforementioned Common Position contains a number of criteria, at the violation of which a country has to refuse to license the export of military technology and equipment. According to preliminary conclusions of experts, in the case of the Mistral deal a number of the following criteria are violated, in particular:
Criterion Four: Preservation of regional peace, security and stability.
Member States shall deny an export licence if there is a clear risk that the intended recipient would use the military technology or equipment to be exported aggressively against another country or to assert by force a territorial claim.
When considering these risks, Member States shall take into account inter alia:
(a) the existence or likelihood of armed conflict between the recipient and another country
(b) a claim against the territory of a neighbouring country which the recipient has in the past tried or threatened to pursue by means of force
(c) the likelihood of the military technology or equipment being used other than for the legitimate national security and defence of the recipient
(d) the need not to affect adversely regional stability in any significant way
Similarly, one can see an infringement of Criterion 5 “National security of the Member States and […]that of friendly and allied countries.” The EU-Ukraine Association Agreement establishes our friendly and partner relationship, including in the area of security and defence, while the transfer of Mistrals to Russia during its aggression against Ukraine goes against Ukrainian strategic interests.
Criterion 6 is also violated. It touches upon the behaviour of the buyer country regarding terrorism and respect to international law. The Russian Federation is the source of terrorism in Ukraine. This fact was proven by the Ukrainian side on many occasions. Besides, continuing to occupy the Crimean peninsula’s violates fundamental principles of the UN Statute by the Russian Federation.
And if Ukraine can make such arguments in light of the risk of the Mistrals’ emergence in the Black Sea, it is obvious that the Baltic states and Poland see the same risks should the Mistrals be based in the Baltic Sea.
Hence, it is probable that the transfer of Mistrals to Russia will infringe upon French obligations springing from the Common Position 2008/944/CFSP, which is a legally binding document. On 2 February 2010, during his address at the National Assembly of French Republic, the then French Minister of Defence, Mr Hervé Morin said that “…this Common Position is a legally binding act that does not require adoption of national measures for transposition, it applies directly upon the French administration…”
In light of this, I think that Ukraine has enough premises to claim that the legitimate transfer of Mistral vessels to the Russian Federation is improbable.
As the Lithuanian President Dalia Grybauskaité stood against the “Mistralization” of European politics, when the US is clearly against the sale of the ships, the suspension of weapon supplies to the aggressor has to become the principal position of all UN members, especially Ukraine! Being at the center of the tragic events, the Ukrainian state cannot be idle in this discussion and has to actively involve itself in international efforts to prevent Russia’s armament – first and foremost by NATO member states, which have the most powerful and precise weapons in the world.
Ukraine has to warn that in case the Mistrals are sold, the Republic of France will become an accomplice in the consequences of their use by Putin’s Russia.
In this regard, we should keep in mind that the March resolution of the UN General Assembly 68/262 Territorial Integrity of Ukraine, which was supported, among others, by France, contains the appeal “…to desist and refrain from actions aimed at the partial or total disruption of the national unity and territorial integrity of Ukraine, including any attempts to modify Ukraine’s borders through the threat or use of force or other unlawful means.” The planned Mistral sale poses a risk of further undermining of Ukraine’s territorial integrity.
In light of everything written above, I addressed the Minister of Foreign Affairs Pavlo Klimkin with the following propositions:
1) make an official petition to the French Ministry of Foreign Affairs, as well as the High Representative of the European Union for Foreign Affairs and Security Policy as the one responsible for controlling export of weaponry in regard to violations of EU legislation;
2) analyze the possibility of petitioning the European Union in light of violation of Ukraine’s rights as a country which will have association and partnership with the European Union in the nearest future. Involve Poland, Lithuania, Latvia, and Estonia in this plain, which have expressed their concern with the Mistral supply contract numerous times, viewing such a sale as a threat to their own national security;
3) order the Ukrainian representative in the UN to add to the agenda of the next UN General Assembly the resolution draft regarding the condemnation of selling Mistral strategic military vessels to the Russian Federation as an act that poses a threat to Ukraine’s territorial integrity, and also raise this issue within the frameworks of other international organizations, in particular the OSCE and Council of Europe.
Author: Oleh Pankevych, deputy head of the Verkhovna Rada Committee on European Integration, deputy head of Svoboda political party
Translated by Mariya Shcherbinina&Oleh Misroshichenko, edited by Alya Shandra