In the wake of last month’s (December 2019) Normandy format summit (see Eurasia Daily Monitor, December 11, 12, 2019), and awaiting the same forum’s top-level meeting in April, Ukrainian officials are airing proposals to revise the Kremlin-imposed Minsk agreements of 2014 and 2015. The accords, designed to legalize Russia’s control of the Donetsk-Luhansk territory and to disrupt Ukraine farther afield, remain unimplemented to date thanks to the previous Ukrainian government’s successful maneuvering and stalling. That work has made it possible for President Volodymyr Zelenskyy’s administration now to call for revising the Minsk accords.
Whereas the former president, Petro Poroshenko, and the Ukrainian Parliament had unilaterally introduced domestic legal barriers to the implementation of the Minsk accords, the Zelenskyy administration proposes to revise these documents by negotiation with Russia, Germany and France in the so-called Normandy format. Kyiv launched its revision campaign in a stunning volte-face on the eve of the recent Normandy summit (see EDM, December 9, 2019), partly adopting Ukrainian civil society’s “red lines” against a solution on Moscow’s terms. Mr. Zelenskyy, however, failed to make any headway with revisions at the recent summit. Moreover, he is trapped by his consent to negotiate a new “special status” law for Donetsk-Luhansk and his acceptance of the Steinmeier formula – two commitments that the Ukrainian president confirmed at the recent Normandy summit.
Nevertheless, the Zelenskyy administration persists with its proposals in the Minsk Contact Group and in the public arena to revise the Minsk accords in Ukraine’s favor. The proposed revisions concern a common interpretation of certain key clauses, the sequence of their eventual implementation and a reconfiguration of the Minsk Contact Group. The Ukrainian side is channeling these proposals through the Contact Group in anticipation of the next Normandy summit to be held in April in Berlin. It introduced these proposals in the Contact Group’s December 18 and January 16 sessions, marking the start to a hoped-for revision process (Ukrinform.ua, Hromadske.ua, December 18, 19, 2019, and January 16, 17, 2020).
— Donetsk-Luhansk special status: Ukraine’s Presidential Office is currently drafting constitutional amendments on the country’s administrative decentralization, which applies country-wide. Moscow wants the amended Constitution to include a reference to Donetsk-Luhansk’s special status, as the Minsk agreements prescribe. However, the draft amendments’ latest published version (Ukrayinska Pravda, December 16, 2019) does not reference any special status for any territory of Ukraine.
This version has, in the meantime, been withdrawn for reworking due to domestic political considerations unrelated to Donetsk and Luhansk. President Zelenskyy is committed to enacting the special status in a new law – one that would, moreover, incorporate the Steinmeier formula. This is the high price that Mr. Zelenskyy agreed to pay for meeting with Russian President Vladimir Putin at the recent Normandy summit. However, Mr. Zelenskyy plans an enactment by ordinary law, necessitating a simple majority in the Verkhovna Rada. Enshrining the special status into the Constitution would require a two-thirds majority, forcing Mr. Zelenskyy into a deeply embarrassing collaboration with Viktor Medvedchuk’s pro-Kremlin party.
— “Elections” in Donetsk-Luhansk: The Ukrainian side calls for the right of internally displaced persons (IDP) to participate in these local elections as a precondition to such elections being held in this territory. The IDPs are those war refugees who moved to Ukraine’s interior (as distinct from those who moved to Russia). The IDPs’ return to participate in elections is a new precondition on Kyiv’s part. It is also a security issue, as are the disarmament and/or withdrawal of “unlawful forces” and the replacement of Russian control by some form of international control of the Ukraine-Russia border as prerequisites to any elections in this territory.
— Sequencing of military and political steps: The Contact Group’s December 18 and January 16 sessions have seen Kyiv reaffirm the “security first, elections afterward” principle. For its part, Russia maintains that the term “unlawful forces” in the Minsk accords does not apply to the Donetsk-Luhansk forces (let alone to the Russian military, which Russia claims is not present there). Similarly, Russia holds strictly to the letter of the Minsk accords, whereby Ukraine would not regain control of the Ukraine-Russia border in that territory even after the local elections there. Instead, under those 2014 and 2015 documents, Kyiv would merely begin negotiating with Donetsk-Luhansk about sharing control of that border. However, Kyiv considers the possibility of accepting local elections in return for Moscow’s acceptance of international control of that border, as a transitional solution toward ultimate Ukrainian control.
— Working group on border control: Ukraine proposes that the Minsk Contact Group create an additional (fifth) working group to deal with the status of the Ukraine-Russia border in the Russian-controlled territory. Under Kyiv’s proposal, Ukraine and Russia would delegate representatives of their respective border troops and customs services to begin discussing the procedures for transferring border control from Russian hands to international or Ukrainian hands, in conjunction with local elections.
— Working group on political issues: Ukraine proposes changing the composition of this working group within the Minsk Contact Group. This particular working group is mandated to discuss a special status for Donetsk-Luhansk and related issues such as local elections under the Minsk agreements. Representing Donetsk and Luhansk in this working group are the delegates of those two “people’s republics.” But Kyiv is now challenging their claims to represent this territory’s population. Instead, President Zelenskyy and his envoy to this working group, Oleksiy Reznikov, propose empaneling a larger and more diverse Donetsk-Luhansk delegation, one-half of whose members would be approved by Kyiv from among IDPs or local residents not connected to those “people’s republics.”
— Crimea: President Zelenskyy had promised more than once to raise the issue of Crimea at the December 9 Normandy summit. That promise was one of his justifications for seeking that summit as avidly as he did. He failed to bring up Crimea at the summit, claiming afterwards to have run out of time and promising to bring it up at the next Normandy summit. Doing so would play well domestically and might also provide a smokescreen for concessions on the Donetsk-Luhansk special status and the Steinmeier formula. But the Normandy format is only mandated to address the conflict in Ukraine’s east.
Russia uses a strict-constructionist approach to defend the Minsk accords of 2014 and 2015 and the negotiation formats (Normandy Quartet and the Contact Group on Ukraine) that it imposed on Ukraine five years ago under military duress. Kyiv, by contrast, is trying a revisionist approach to these same documents and forums. They never acquired any legal validity, but have been endorsed all along by Germany and France in the Normandy forum (bringing together the leadership of Ukraine, Russia, France and Germany), to which the Minsk Contact Group (Ukraine, Russia, the Organization for Security and Cooperation in Europe, and the Donetsk and Luhansk “people’s republics”) is subordinate. Revising the Minsk agreements, and reconfiguring the negotiating formats designed to implement those documents, would necessitate the consent of all parties involved.
The Kremlin takes the position that the Minsk agreements are “without alternative” and that Ukraine must “execute of all of the Minsk agreements’ stipulations to their full extent and in their sequence” (TASS, January 11, 17).
Ukraine’s best available legal protection at this stage remains the legislation enacted by the preceding Parliament in January 2018 and signed by then-President Poroshenko in February of that year (Ukrinform, January 18, 19, 2018 and February 20, 2018). Under that enactment, it would be unlawful for Ukraine to accept the special status and “elections” in Donetsk-Luhansk in the presence of “unlawful armed formations” and while Russian forces control the border there. Although the 2018 enactment is valid in terms of Ukrainian domestic law (not internationally), the Minsk agreements have no legal standing of any kind, nor would any implementing arrangements, unless President Zelenskyy and his Servant of the People party decide to give them the force of Ukrainian law.
The 2018 legislation amended Ukraine’s law on a special status for the Russian-controlled Donetsk-Luhansk, which had been adopted in 2014 and 2015 under Russian military coercion and German political pressure. The amendments passed in 2018 were designed to block the implementation of that special status on Russian terms, preserving, however, the possibility of a solution compatible with Ukraine’s sovereignty.
The Kremlin wants President Zelenskyy to replace Ukraine’s existing law on the special status (as amended in 2018) with a new law on the special status of Donetsk-Luhansk. The existing law never came into force, partly because Ukraine declined to introduce the notion of “special status” into the Constitution (hence this inoperative law is unconstitutional), and partly because Moscow wants Kyiv to negotiate the special status legislation with Donetsk-Luhansk, instead of Kyiv determining that special status unilaterally.
President Zelenskyy and the Parliament have prolonged the validity of the existing law one last time in December 2019, a few days before its expiry, in order to avoid its extinction on December 31, and in understanding with Moscow that this old law would be replaced by a new one in 2020 (see EDM, January 16, 2020). The new law on the special status would incorporate the Steinmeier formula, as per Mr. Zelenskyy’s promise to Moscow and the other Normandy participants at the recent summit. Moreover, Kyiv seems willing this time around to discuss the special status and the ensuing implementing legislation in the Minsk Contact Group with Donetsk and Luhansk. To mitigate these concessions, Kyiv seeks to change the composition of the Donetsk-Luhansk delegation in the Contact Group and hopes to avoid amending Ukraine’s Constitution.
The looming danger is that Mr. Zelenskyy’s team would eliminate the 2018 amendments from the old law in the process of drafting the new law on the special status. If so, Ukraine would lose the legal safeguards that could, if necessary, block an externally imposed political settlement injurious to Ukraine’s sovereignty.
The article above is reprinted from Eurasia Daily Monitor with permission from its publisher, the Jamestown Foundation, www.jamestown.org.