September 22, 2014

Ukraine Grants More Powers to Localities in Russian-Controlled Territory

Ukrainian President Petro Poroshenko gives a speech during a parliament session in Kiev on November 27, 2014. Ukraine's parliament confirmed pro-Western Arseniy Yatsenyuk will keep his post as prime minister to lead a new coalition government. AFP PHOTO/ SERGEI SUPINSKY
Ukrainian President Petro Poroshenko gives a speech during a parliament session in Kiev on November 27, 2014. Ukraine's parliament confirmed pro-Western Arseniy Yatsenyuk will keep his post as prime minister to lead a new coalition government. AFP PHOTO/ SERGEI SUPINSKY

On September 16, the Ukrainian parliament approved a “Law on the special procedure of local self-administration in individual districts in Ukraine’s Donetsk and Luhansk provinces” (Russian version’s terminology: poryadok, samo-upravlenie, raiony). Those two provinces of Ukraine are now, de facto, partitioned into Russian-controlled and Ukrainian-controlled zones. The law applies temporarily to Ukraine’s territory controlled by Russian military and proxy forces. The September 5 ceasefire protocol had prescribed for Ukraine to confer a special status on that territory by law.

On September 16, the Ukrainian parliament approved a “Law on the special procedure of local self-administration in individual districts in Ukraine’s Donetsk and Luhansk provinces” (Russian version’s terminology: poryadok, samo-upravlenie, raiony). Those two provinces of Ukraine are now, de facto, partitioned into Russian-controlled and Ukrainian-controlled zones. The law applies temporarily to Ukraine’s territory controlled by Russian military and proxy forces. The September 5 ceasefire protocol had prescribed for Ukraine to confer a special status on that territory by law.

Submitted urgently by President Petro Poroshenko, the law passed with 277 voting in favor, out of 336 deputies attending (from a total membership of 450). Those opposed simply did not vote, according to reports from this closed-door session. The law had to be rushed through, ahead of the parliament’s recess for pre-term elections due on October 26 (Unian, Zerkalo Nedeli zn.ua, September 16, 17).
Given its link with an onerous ceasefire protocol, this draft law aroused widespread misgivings. Unusually, the Cabinet of Ministers did not participate in drafting this law; and some of the cabinet’s senior members criticized parts of it publicly (see below). Rather, the presidential administration drafted this law (full text in Ukraiynska Pravda, September 15). President Poroshenko had to work hard in parliament on the morning of September 16 to ensure a solid majority for passage of the bill without any significant changes (The Insider [Kyiv], September 16).
Contrary to those initial misgivings, the law’s final version in no way legitimizes the Donetsk and Luhansk “people’s republics” (DPR, LPR). The notion of a “special status” has been dropped, and does not occur in the text as adopted. The Ukrainian law’s notion of self-administration does not apply to the Donetsk province or Luhansk province, nor to the Donbas region (aggregation of the two), let alone to the DPR-LPR. The law applies, instead, to lower-level administrative units in the occupied territory. This legislation is designed to reach out to those local units directly, bypassing or ignoring the “central authorities” of the DPR and LPR. From the standpoint of not legitimizing the DPR and LPR, this Ukrainian law is airtight.
Whether this law can operate as intended, however, seems more than doubtful. Russia’s proxies installed in the administrative centers of Donetsk and Luhansk are strongly placed to control the lower-level administrative units directly, along vertical lines, in the occupied territory. Now partitioned by military demarcation lines (which have not yet fully stabilized), the Donetsk and Luhansk provinces form the most intensively industrialized part of Ukraine.
While avoiding the worst (i.e., any form of accepting the loss of territory), this law remains controversial in Kyiv’s body politic. The law, as adopted, enters into force upon official publication of its full text by the government. The extensive summaries made public by Ukrainian media have drawn strong criticism over ambiguities and loopholes in the law. Even some government officials are disavowing or reinterpreting parts of the adopted law (Ukraiynska Pravda, Ukrinform, UNIAN, Zerkalo Nedeli, September 15–18).
Adoption Mechanism
This law is an octroy, i.e., a unilateral grant of competencies from top down; in this case, from the central government to local administrative units in the occupied territory. Russia and its local proxies will almost certainly attempt to replace an octroy arrangement with a “mutually agreed” one, i.e. of a contractual nature, between Kyiv and the Donetsk-Luhansk authorities, so as to legitimize the latter. Kyiv should expect to face such demands after the parliamentary elections if not sooner.
Duration
The law’s applicability is limited to three years (without provisions for abridgment or prolongation of this term). Some Ukrainian officials (even two presidential advisors) suggest publicly that the law might not necessarily run the full three-year period, and might be terminated earlier, depending on the situation on the ground (Ukrinform, UNIAN, September 17, 18). This seems illusory, however. Russia will certainly insist on the prolongation of this law (or a Russian-amended version of it) after the first term of three years. Western powers (with Germany in the lead) are likely to support prolongation also, as part of the overall armistice arrangement and new “stability” in a conserved conflict.
Geographic Area
The law applies to the “localities geographically situated within the anti-terrorist operation (ATO) area,” i.e., the Ukrainian-defined theater of military operations. However, the ceasefire (and full-fledged armistice agreement to follow) will probably necessitate replacing the notion of “ATO area” with a more precise definition of the geographic area covered by this law.
This law uses the term “districts” [raions] in a generic sense (“self-administration in individual districts in the Donetsk and Luhansk provinces”). However, the Donetsk province is divided into 18 rural districts and 27 urban municipalities, plus the provincial administrative center Donetsk. The Luhansk province is divided into 18 rural districts and 13 urban municipalities, plus the provincial administrative center Luhansk. Moreover, this Ukrainian law applies to various types of administrative units there: cities, districts, municipalities, and villages (see below).
When signing the September 5 ceasefire, the Russian side controlled one third of the territory and one half of the population in the Donetsk and Luhansk provinces. Despite the ceasefire, Russian and proxy forces continue biting off portions from the Ukrainian-controlled territory. By the time the Ukrainian law enters officially into force, the Russians will certainly control more territory than was the case on the date of the ceasefire. They will probably try to expand into additional localities through political subversion after the full-fledged armistice. The Ukrainian military apparently intends to establish a fortified line of demarcation across the Donetsk and Luhansk provinces (sprotyv.info, September 15–18).
Ukraine’s law on the “special procedure of local self-administration in individual districts in the Donetsk and Luhansk provinces” (Ukraiynska Pravda, September 16; see Part One of this article) seeks to retain at least some means of influence and avenues of dialogue between Kyiv and local authorities in the “Anti-Terrorist Operation (ATO) area,” i.e., the Russian-controlled territory. It is an overture to lower-level administrative units there, bypassing the “central” authorities of the Donetsk and Luhansk “republics” (DPR, LPR). Drafted by the Ukrainian presidential administration, and approved by the parliament on September 16, this law offers some serious incentives for those local authorities to cooperate with Kyiv. These provisions do not entail sacrifices to Ukrainian interests or sovereignty de jure.
De facto, however, the law’s poorly drafted provisions regarding its adoption mechanism, its duration, geographic area of its applicability (see Part One), public use of languages, status of the police and judiciary, reconstruction financing, elections in this territory, and the local authorities’ relations with the Ukrainian government and Russia, respectively (see below), seem wide open to abuse by Russia’s proxies in the occupied territories. Senior Ukrainian government officials who did not participate in drafting this law are publicly criticizing or disavowing various parts of it.
Use of Languages
This law “guarantees the right to freely use the Russian language and other languages in public and private life” and will “support the learning and free development of Russian and other languages, their free development and equality” in the Russian-occupied territories of Ukraine.
Intended as a sop to Moscow (more than to local Russians), this provision does not reflect the local socio-linguistic situation. The Russian language reigns supreme here, mainly as a consequence of the Russification of Ukrainians in Soviet times. In the latest census (2001) in the Donetsk province, 75 percent of residents identified themselves as Russian-speakers, but only 39 percent as ethnic Russians, the majority ethnicity being Ukrainian. In the Luhansk province, 69 percent identified themselves as Russian-speakers, but only 38 percent as ethnic Russians, the majority ethnicity being also here Ukrainian, according to the latest census (Russkiy Yazyk v Ukraine, Dannyie Perepisi 2001 goda, aratta-ukraine.com via Unian, April 2, 2014).
Donetsk and Luhansk are the only provinces (oblasts) in which the Russian language predominates. Ukrainian is the state language throughout the country, including here. Russian, however, is the hegemonic language in Donetsk and Luhansk de facto, also enjoying official status on the provincial (oblast) level de jure, on par with the Ukrainian language, under the law on regional languages, in force since 2012. It is the Ukrainian language that needs protection in these two provinces generally, and in the Russian-occupied territories in particular at this time. The Ukrainian language and culture face risks to their survival in the Donetsk and Luhansk “people’s republics.”
Police and the Judiciary
This law authorizes local councils in the Russian-controlled territories on the city, town, district, and village levels to “set up people’s police detachments, their operation to be coordinated by the corresponding council chairman (mayor).” This people’s police shall recruit volunteers from among “citizens of Ukraine who permanently reside in those localities.” Apparently intended as an alternative (potentially a counterweight) to the DPR and LPR paramilitaries (which are often indistinguishable from criminal gangs), the proposed “people’s police” could easily end up recruiting volunteers from among those very elements.
Under this law, the Ukrainian government and elected district-level administrations (councils) in Russian-controlled territories would jointly appoint judges and prosecutors. Thus, an exclusive prerogative of the government would be shared with locally elected authorities, under a special procedure. This law, however, clarifies neither that procedure, nor the jurisdiction to which those judges and prosecutors would be directly responsible.
According to Prime Minister Arseniy Yatsenyuk and Justice Minister Pavlo Petrenko, no “people’s police” or other law enforcement personnel can be authorized in that (or any) territory of Ukraine, unless they operate within Ukraine’s legislation and jurisdiction, which this law, however, does not specify (RBK-Ukraina, Ukrinform, September 17).
Reconstruction Financing and Investment
Under this law, Ukraine’s annual state budgets shall allocate funding for reconstruction and development of the Russian-controlled districts. That funding shall be a protected spending-line earmark, unaffected in the event of overall budget cuts or budget sequestration (i.e., an entitlement). Furthermore, a special legal regime shall be instituted to stimulate investments and credit for reconstruction of industry, infrastructure, and housing, job creation and general economic development of these districts. All this remains, presumably, to be fleshed out in subsequent legislation.
Prime Minister Yatsenyuk, however, firmly opposes such arrangements that “would send [state budget] money to districts not controlled by Ukraine, money that would be stolen by Russian terrorists.” “Not a cent,” Justice Minister Petrenko echoed. Yatsenyuk has instructed the finance ministry to draft legislation on reconstruction financing from sources in the following order or priority: 1) donations and investments by “Ukraine’s oligarchs”; 2) international donor aid; and 3) state budget funds “only if we reestablish full control over the entire territory” (Interfax-Ukraine, RBK-Ukraina, September 17).

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