A his­toric law of geopo­lit­i­cal scale:

What is im­por­tant about the newly passed Deoc­cu­pa­tion Law

The Ukrainian Week - - CONTENTS - Volodymyr Va­sylenko, Judge of the In­ter­na­tional Crim­i­nal Tri­bunal for the for­mer Yu­goslavia in 2002-2005, for­mer Am­bas­sador to Benelux coun­tries, EU and NATO

Why the newly passed Deoc­cu­pa­tion Law mat­ters

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. The vote proved that Ukraine’s par­lia­ment has a 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 to 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.

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 AGREE­MENTS

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 their con­clu­sion. They never were a sub­ject of spe­cial par­lia­men­tary anal­y­sis; the Verkhovna Rada never ap­proved or rat­i­fied them.

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

THE LAW HAS NO PRO­VI­SIONS ABOUT RE­JEC­TION

OF MINSK AGREE­MENTS OR AP­PLI­CA­TION

OF ANY REPRESSIONS AGAINST UKRAINIAN CIT­I­ZENS ON THE OC­CU­PIED TER­RI­TO­RIES

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.

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 bands 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 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 such that 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.

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.

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 ITS ARMED AG­GRES­SION AGAINST UKRAINE

A forced move. In con­tent and form, the Minsk Agree­ments are not in­ter­na­tional treaties that are bind­ing for the par­ties and are reg­u­lated by pub­lic in­ter­na­tional law

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