‘Separate regions with special status’

Point 11 of the Minsk-2 agreement which is meant to provide a road map to end the conflict in Ukraine, states that the Ukrainian government should undertake:

Constitutional reform in Ukraine, with a new constitution to come into effect by the end of 2015, the key element of which is decentralization (taking into account peculiarities of particular districts of Donetsk and Luhansk oblasts, agreed with representatives of these districts), and also approval of permanent legislation on the special status of particular districts of Donetsk and Luhansk oblasts in accordance with the measures spelt out in the attached footnote, by the end of 2015.

In a previous post, I mentioned that representatives of the rebel Donetsk and Lugansk People’s Republics (DPR and LPR) had laid out their suggestions for the required constitutional amendments. Until today, we only knew the broad outline, but the DPR’s press agency has now published the complete text. The key proposed amendments are as follows:

Article 1391: The regions, towns, and other populated points of Donetsk Province form a separate region with special status. The regions, towns, and other populated points of Lugansk Province form a separate region with special status. … the principles of this status are to be defined by a separate Ukrainian law. … The separate regions with special status are inseparable parts of Ukraine, and within the limits of their powers, defined by the Constitution, separate agreements, and any agreements about the division of powers among these regions … they will independently decide those questions which are brought before them.

Article 1292: The separate regions with special status will form electoral commissions on the territory of those regions. The electoral commissions of the separate regions with special status will be independent and not subordinate to the organs of the legislative and executive powers or other electoral commissions.

Article 1393: The state will guarantee the financial independence of the separate regions with special status by 1) strengthening the budgets of the separate regions with special status with sufficient sources of finance to guarantee the balancing of the budget. …  and 6) introducing a special economic regime.

Article 1394: The organs of local self-government … have the right to create organs to protect public order (people’s militia). These organs’ leaders are to be nominated to and removed from office by the organs of local self-government of the separate regions with special status.

Article 1395: The organs of local self-government of the separate regions with special status will regulate the following matters: 1) agriculture, land resources and ownership … 2) land improvement, 3) social work, charity, 4) urban construction, 5) tourism, 6) museums, libraries, theatres, and other cultural institutions, 7) transport, 8) hunting and fishing, 9) health service, 10) use of the Russian language … 13) economics and investment within the framework of the special economic regime.

Article 1396: The following matters will be considered by the separate regions with special status: 1) carrying out referendums, elections of members of local councils … 7) guaranteeing the right to use Russian and other languages … 8) preserving and constructing memorials … 10) concluding treaties with foreign states on questions linked to the activities of the separate regions with special status, 11) collecting local taxes.

Article 1397: Justice in the separate regions with special status will be administered by courts which are part of the court system of Ukraine. The creation and dismantlement of courts, and the appointment and dismissal of judges, will be carried out with the agreement of the organs of local self-government of the separate regions with special status. …

Article 133: The administrative territorial system of Ukraine consists of: the Autonomous Republic of Crimea; the separate regions with special status of Donetsk and Lugansk Provinces; the provinces, regions, towns, regions in towns, settlements and villages. … The cities of Kiev and Sevastopol and the separate regions with special status of Donetsk and Lugansk Provinces have special status defined by Ukrainian law.

In addition to these amendments, the document also states that ‘It is proposed that the Constitution of Ukraine be amended with the words “Ukraine will not join military blocs and alliances, will remain neutral, and will refrain from participating in military actions outside its own territory.”’

In reviewing this, the Russian press has focused on the fact that the document lists Crimea and Sevastopol as part of Ukraine, as if this somehow means that the rebels are distancing themselves from Russia’s annexation of Crimea and Sevastopol. This supposedly constitutes some form of scandalous political retreat.  In reality, the rebels must know that they cannot get the Ukrainian government to amend its constitution to remove the references to Crimea and Sevastopol. What matters is the proposed inclusion of Donetsk and Lugansk Provinces as ‘separate regions with special status.’

The language used here is significant. There is no talk of ‘autonomy’ or of turning Ukraine into a ‘federal’ state. Rather the phrase ‘special status’ corresponds with the demands of Minsk-2. If the rebel proposals were to come into force, Ukraine would remain a unitary state, albeit one in which two provinces had unique local powers. Furthermore, the statement that the two provinces are ‘inseparable parts of Ukraine’ is extremely important. The labelling of the rebels as ‘separatists’ no longer fits the facts.

The powers requested by the rebels for the ‘separate regions with special status’ are not insubstantial. Even if the word ‘autonomy’ is not used, the proposed amendments would in practice make Donetsk and Lugansk Provinces very largely self-governing. That said, the proposed competencies of the separate regions are not out of line with what one can find in the states and provinces of many Western countries. Beyond the issue of neutrality, the suggestion which would be most likely to cause serious difficulties is that of creating a special economic regime for the separate regions. It would seem that in proposing this, the rebels have in mind the maintenance of close economic ties with Russia. The problem is that a special economic regime for one zone of Ukraine is not compatible with the country’s ambitions to join the European Union (which allows for no such regimes).

Still, a deal along the lines suggested by the rebel document would allow all sides in the conflict to save face: Ukraine would preserve its territorial integrity, while the Ukrainian government could claim that it had successfully resisted attempts to federalize or confederalize the country; and the rebels could say that they had won significant autonomy. Even if some details might prove problematic, overall the rebels’ document is not unreasonable as a foundation for negotiating a peace settlement.

Unfortunately, as I pointed out in my previous post, the Ukrainian government does not appear to be interested in negotiating. Despite the fact that Minsk-2 specifically states that the required constitutional reforms should include ‘special status’ for Donetsk and Lugansk, the government is insisting that they will consist only of a general decentralization of powers to all Ukrainian regions and will not involve any such ‘special status’ for Donbass.  Ukraine’s Western allies should press it to reconsider.