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21 February, 2018  ▪  Volodymyr Vasylenko

A historic law of geopolitical scale

Important aspects of the new Deoccupation Law

On January 18, 2018, the Verkhovna Rada passed Law No 7163 on Specifics of State Policy in Ensuring Ukraine’s Sovereignty on the Temporarily Occupied Territories in Donetsk and Luhansk Oblasts. 280 MPs from the pro-European and pro-transatlantic coalition voted in favor of it while 36 MPs from the Opposition Block, a breakaway of the Party of Regions, voted against it. The vote proved that Ukraine’s parliament has a patriotic statehood majority which, regardless of interparty rivalry, political ambitions and personal tensions, has acted in unity around the idea of reinforcing resistance to the armed aggression of Russia and overcoming its consequences through mechanisms and under conditions that best fit Ukraine’s vital national interests.

Law under attack

It was not surprising to see the establishment of the Russian Federation respond to it with a mix of negativity, frustration and hysteria. In Ukraine, it was criticized by the mouthpieces of anti-Ukrainian forces which are still present in government entities, including the Verkhovna Rada, echoed by numerous agents of Russian influence centered in different media or acting as independent experts, as well as useful idiots and some representatives of the human rights community.  

They all present themselves as the “party of peace”. In reality, they make the Fifth Estate, advocating peace through concessions that are existentially threatening for Ukraine’s independent statehood. Orchestrated by the Russian diplomacy, propaganda and security services, this choir speaks against that law aimed at creating the modality for a peaceful solution that fits the national interests of Ukraine based on universal principles of modern international law.

The first target of this multilateral attack is the definition of the Russian Federation as the state that has committed the crime of armed aggression against Ukraine. While the outrage of Russian officials and unofficial speakers is understandable, negative response of Ukrainian citizens in whatever form is amoral and against the law. Such actors should be treated as participants of Russia’s disinformation campaign to justify its armed aggression against Ukraine, deceive Ukrainian society and the international community, and set them against Ukraine’s leadership.

RELATED ARTICLE: A shot away: Who is fighting against Ukrainian military in the Donbas

Critics of the law intentionally distort its purpose, content and function as they draw focus on some of its secondary flaws or important issues that are not a matter it regulates. The law is not perfect in terms of legislative technique or classic rules of lawmaking. However, its provisions do not contradict the Constitution of Ukraine and are fully in line with international law.

The document is primarily of a framework nature. It outlines many provisions that refer to the items of the Constitution, laws and other mandatory acts, as well as international treaties that are recognized as binding by the Verkhovna Rada of Ukraine and are part of Ukrainian law. This approach makes the provisions of the law flexible and usable to create viable, legitimate and fair mechanisms of regulation, including through the Minsk Agreement.

The law and the Minsk Agreement

Official Russian speakers, including Sergei Lavrov, MFA Speaker Marina Zakharova, Putin’s Press-Secretary Dmitri Peskov and others, as well as those echoing them in Ukraine, including Yuriy Boyko, Hanna Herman, Vadym Rabinovych and others, say in various forms that the definition of Russia as aggressor state in law delivers a powerful blow to the Minsk Agreements, killing them, crossing them or denying them, and so it buries any hope of a peaceful solution of “the Donbas problem” and the establishment of peace in Ukraine. They underline, with no good reason, that this law is aimed at stifling dissent and deepening the alienation of Ukraine’s territory Kyiv does not control. Boyko has gone farther than his Russian counterparts by claiming that the law provides for the punishment for all Ukrainian citizens residing in the temporarily occupied territories.

Such cynical demagoguery and deceptive statements are made to accuse Ukraine, in an unjustified and fake manner, of unilaterally dropping Minsk Agreements, and the intention to violate human rights in the occupied territory. The purpose of these claims is to persuade Western democracies that sanctions against Russia should be lifted for Ukraine’s failure to stick to the Minsk Agreements, and to nurture hostile attitude of civilians on the temporarily occupied territory towards Ukraine.

The law has no provisions about rejection of Minsk Agreements or application of any repressions against Ukrainian citizens on the occupied territories. The document makes no mention of the Minsk Agreements since the Verkhovna Rada is not involved in the conclusion of those. They never were a subject of special parliamentary analysis; the Verkhovna Rada never approved or ratified them.   

RELATED ARTICLE: How Ukraine's security, defence and the capability to counter hybrid aggression changed in 2017

Representatives of Ukraine’s executive authorities were forced to sign the Minsk Agreements as a result of Russia’s illegal armed aggression against Ukraine. This allowed Ukraine to stop the expansion of Russia’s armed aggression. The Minsk Agreements demand Russia to stop the shooting, withdraw its troops and weapons, free the occupied territories, and create the conditions for Ukraine to restore control over its border with Russia. Also, they have a number of provisions that are unacceptable for Ukraine. These include changes of Ukraine’s constitutional order, a special status for Donetsk and Luhansk Oblasts, elections in the occupied territories and more.

Two opposite approaches to the Minsk Agreements exist. The proponents of one see it as the ultimate evil. The proponents of the other see if as an ultimate panacea. This leads to a rejection of the Minsk Agreements as a fair peaceful solution, or to the perception of them as the way of stopping Russia’s armed aggression and restoration of peace. The truth is somewhere in the middle. It should be sought in the legal nature of the Minsk Agreements and evaluation of them in the context of international practice and modern international law.

In content and form, the Minsk Agreements are not international treaties that are binding for the parties and are regulated by public international law. Even if there is a special consensus about treating them as international treaties, they will not be valid under Art. 52 of the Vienna Convention on the Law of Treaties. It defines any international treaty imposed on a state by force as null and void ab initio, i.e. from the moment of signing.

The Minsk Agreements are international political agreements signed by top officials who bear moral and political rather than legal responsibility for the fulfillment. In order to be applicable, any international treaties, regardless of their nature, should be analyzed in the context of universally recognized principles and norms of international law and morality, Constitutions of the parties involved and their legitimate interests.

This approach is especially necessary for the proper application of the Minsk Agreements. Ukraine’s representatives signed them under extremely bad conditions resulting from illegal application of fore and under time pressure. One consequence is the poorly structured provisions that run counter to basic rules of legal technique and sound reason. Hence the conflicting interpretations of the order in which the provisions should be fulfilled.

As a result of proper interpretation, the participants of the Minsk Agreements have reached an understanding of security provisions being the priority ones. These are the norms that envision the ceasefire, the withdrawal of heavy weapons and equipment from the contact line, the withdrawal of foreign armed groups from the territories, and the restoration of Ukraine’s control over its border with Russia.

The Ukrainian side has said that it is ready to conduct local elections. However, they would only take place on the Ukrainian territories from which Russian withdraws. Also, Ukriane has pledged to take other measures to restore the rule of law on the rest of the liberated territory. However, these measures should not violate the principle of non-interference with Ukraine’s domestic affairs or undermine its constitutional order as a unitary state.

Despite the constructive approach of Ukraine to the application of the Minsk Agreements, Russia has chosen systemic and consistent violation of them. Contrary to the fulfillment of the security provisions, Russia continues its armed aggression against Ukraine. It conducts the war of exhaustion in order to impose the solution on Ukraine that is against modern international law or the Constitutions of both states, and aims to undermine Ukraine’s statehood.

Russia’s leadership and diplomats, security services and propaganda portray the Minsk Agreements as a tool of solving what is presented as an “internal Ukrainian conflict”, rather than as a way to restoring international order violated by Russia’s armed aggression. The Russian authorities are trying to prove that Russia is an intermediary in solving an internal Ukrainian crisis in the East, and brazenly deny the fact that there is a dangerous international conflict in the middle of Europe caused by Russia’s armed aggression against Ukraine.

RELATED ARTICLE: Deputy Justice Minister, Ombudsman to the ECHR Ivan Lishchyna on official evidence of the presence of Russian troops in Ukraine's territory

As it exploits the desire of Ukrainians to return to peace, Russia works through its agents and its Fifth Estate to make Ukrainian society and Western democracies believe that peace should be established as soon as possible in Donbas through automatic fulfillment of enforced and illegitimate claims and whims of the aggressor as they are listed in the Minsk Agreements. This is being done to work through Ukrainian society so that it presses its government to capitulate, and to persuade Western democracies that they should lift or weaken international sanctions imposed on Russia as aggressor state that violates the Minsk Agreements.

Russia’s manipulative, cynical and provocative approach to these Agreements have become an important incentive that pushed the President to initiate and the Verkhovna Rada to pass the law whose preamble defines the extensive list of violations of international law by Russia. The law, however, does not urge the executive power to reject the Minsk Agreements or to abolish them. Ukraine’s premise is that they can work provided the Russia shows good will and is ready to act in line with modern international law. The law confirms a number of important resolutions of the Verkhovna Rada, and specifies, generalizes and lists consistently and clearly the key components of Ukraine’s state legal position in resisting Russia’s armed aggression and in dealing with the consequences of this aggression.

Firstly, the law states that “the application by the Russian Federation of armed force against Ukraine constitutes a crime of armed aggression” with a reference to the United Nations General Assembly Resolution 3314 (Definition of Aggression) dated December 14, 1974. Under the modern international law, an armed aggression is always a war with signs of a serious crime under international law that imposes special forms of responsibility on the aggressor state under international law. Resistance to an armed aggression is also a war conducted as self-defense from the aggressor, as defined by Art. 51 of the UN Charter.

Secondly, the law provides a clear definition of the armed formations and the occupation administration through which the Russian Federation is committing its crime of armed aggression against Ukraine. Under Art. 3.d. of the UN GA Resolution (Definition of Aggression), the components of Russia’s armed forces include irregular illegal armed formations, armed bans and groups of mercenaries that are created and funded by the Russian Federation, and report to it. The occupation administration of the aggressor state includes Russia-controlled self-proclaimed entities that have usurped the fulfillment of executive functions on the temporarily occupied territories of Ukraine.

This approach matches reality and nullifies manipulative statements about an internal conflict in Ukraine or non-involvement of Russia.

Thirdly, the law states that temporary occupation of parts of Ukraine’s territory by aggressor state is a result of Russia’s armed aggression against Ukraine. It also outlines the specifics of their legal status and regime. The law qualifies the temporary occupation of Ukraine’s territory as illegitimate and creates no territorial rights for Russia regardless of its duration. This provision is based on the universal norms of modern international law. It means that Ukraine does not lose its legal title to this territory and maintains its territorial jurisdiction there.

RELATED ARTICLE: The eastern policy trilemma: What model is needed to deoccupy parts of the Donbas

Equally important are the norms of the law that define the activities of Russia’s occupation administration as contrary to international humanitarian law and illegal, and any act issued as a result of such activities as legally invalid and resulting in no legal effect.

Fourthly, the law confirms that the Autonomous Republic of Crimea and Sevastopol, in addition to the parts of Donetsk and Luhansk Oblasts, are the temporarily occupied territories of Ukraine. Art. 13.3 says that “This law acts without damage to the integral sovereign right of Ukraine to the territory of the Autonomous Republic of Crimea and Sevastopol that are temporarily occupied by Russia, and to the measures aimed at the restoration of Ukraine’s territorial integrity within its internationally recognized borders.” Therefore, some of the critics that accuse Ukraine of rejecting the Autonomous Republic of Crimea and Sevastopol are wrong. Moreover, the preamble and Art. 2 of the law mention Crimea as they refer to the Law of Ukraine on Guaranteeing the Rights and Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine dated April 15, 2014. The provisions of this law qualify Crimea as an occupied part of Ukraine’s territory.

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