As Ukrainians brace for a cold, dark winter and more Russian attacks against Ukraine’s critical infrastructure, International Atomic Energy Agency (IAEA) director Rafael Grossi is upbeat, working feverishly to secure Ukraine’s largest electrical generator—the Zaporizhzhia nuclear plant. His hope is that Russia and Ukraine will agree to create a demilitarized safety zone around the embattled plant. Grossi has spoken to both leaders; he believes he can reach an agreement by New Year’s.
There are only two problems. First, the three parties might not reach an agreement. Second, they might reach an agreement but in doing so fail to clarify who actually owns the plant. The second possibility, which few have thought about, could prove to be worse than the first.
Grossi says Russia and Ukraine have already agreed that neither side should “shoot at the facility, nor from the facility” and that the IAEA “represents the only possible way” to keep the plant safe. Rosatom chief Mikhail Ulyanov, Russia’s representative to the IAEA, says Russia supports creating a safety zone. The only thing holding things up, he claims, is Ukraine.
Ukraine, however, has good reason not to proceed. When Grossi first proposed the zone, Ukrainian president Volodymyr Zelenskyy was supportive and declared, “the world not only deserves, but also needs the representatives of the IAEA to force Russia to demilitarize the territory of the [power plant] and return full control to Ukraine.” In Zelenskyy’s last point, though, lies the rub: The Kremlin insists it will never concede ownership of the plant.
If Grossi’s commitment “is to reach a solution as soon as possible,” ownership of the plant is an issue he will have to join. This could prove awkward. Grossi, after all, has gone on record stating that Ukraine is the rightful owner of the plant. Grossi, to be sure, could reverse himself. Less awkward would be to maintain his view but call on both parties, who disagree, to defer the question of ownership to get to yes on the zone.
The Russians, who are not in firm control of the Zaporhizhia province, might well see value in deferring the ownership issue so long as they did not relinquish their right to assert their claim. Meanwhile, the Ukrainians might be so desperate to regain the electricity that Zaporhizhia once supplied, they too might be willing to defer the ownership issue.
Creating a deal on this provisional basis, however, could prove perilous. The UN has previously created safety zones and deferred issues of ownership and sovereignty. When there is no real doubt as to who the owner is, though, deferring the issue can easily create more problems than it solves.
A case in point is the 2014 Minsk agreements that created a buffer zone between the Ukrainian army and Russian proxy forces. That froze the war Russia instigated in the Donbas and made sense for the French and German mediators who wanted an immediate calming of hostilities. In the long run, though, it proved disastrous: It prolonged Russia’s meddling in Donbas and assured Putin a base from which eventually, in February 2022, he escalated his armed assault on Ukraine.
Again, safety zones can work when there is a genuine difference over who has ownership of a particular piece of property, but the dispute has be genuine.
Consider the UN International Court of Justice’s 2011 creation of a provisional demilitarized zone around the Temple of Preah Vihear. In this case, Thailand and Cambodia were at odds over the precise location of their frontier and engaged in armed skirmishes there. Yet, neither country falsely asserted sovereignty over whole provinces of the other country. They were involved, instead, in a genuine disagreement over where their boundary ran.
To protect the cultural property there (the temple), not to mention people’s lives, the court created a safety zone. Thailand, however, explicitly accepted that the temple itself belonged to Cambodia; there was no attempt on Thailand’s part to exploit the safety zone to take what it had no right to have.
Therein lies the difference between a safety zone that can help, and one that might do more harm than good. A zone can help where the parties use it primarily to achieve physical safety; it is risky where one party seeks to use the zone as leverage to pursue other political and territorial aims.
What, then, does this recommend for the Zaporizhzhia nuclear plant?
Any instrument creating a safety zone around Zaporizhzhia must clearly state the plant is Ukraine’s, not Russia’s. It should recall the United Nations General Assembly resolutions that declared Russia’s invasion an act of aggression and Russia’s land grabs void and of no legal effect.
This, of course, might queer the deal but no deal is better than a bad one. Also, there is this: There is an even chance any deal will be overtaken by events. On the one hand, the Russians have so damaged the plant, it is unlikely to be safe to operate for months—enough time for Ukrainian forces to push the Russians out of Zaporizhzhia. In this case, Jus gladii would provide far more safety than any “safety” zone Russia is likely to accept.
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