Courts, sanc­tions and the block­ade:

A con­sol­i­dated strat­egy to hold Rus­sia ac­count­able for its armed ag­gres­sion against Ukraine

The Ukrainian Week - - CONTENTS - Volodymyr Va­sylenko

Ukraine has filed cases against Rus­sia at the Euro­pean Court of Hu­man Rights, the In­ter­na­tional Court of Jus­tice, the In­ter­na­tional Tri­bunal for the Law of the Sea, and the In­ter­na­tional Crim­i­nal Court. These, how­ever, can­not and should not be viewed as a re­place­ment of a con­sol­i­dated claim. Nor could such con­sol­i­dated claim be a re­place­ment of Ukraine’s mo­tions against Rus­sia in in­ter­na­tional courts.

The lib­er­a­tion of the oc­cu­pied parts of Ukraine will in­evitably con­tinue to be a No1 is­sue on Ukraine’s so­cial and po­lit­i­cal agenda. Re­cent heated debates on the draft ver­sions of the law on the tem­po­rar­ily oc­cu­pied ter­ri­tory, and draft law on the Restora­tion of Ukraine’s Ter­ri­to­rial In­tegrity, as well as the of­fi­cial re­ac­tion to the block­ade of trade with the oc­cu­pied ter­ri­tory ini­ti­ated by ac­tivists only con­firm that fur­ther de­lays in find­ing the so­lu­tion to fa­vor some­one’s busi­ness in­ter­ests are im­pos­si­ble.

TAC­TICS AND STRAT­EGY IN COURTS

The prepa­ra­tion of a con­sol­i­dated claim on the one hand, and Ukraine’s cases in in­ter­na­tional courts on the other hand, are el­e­ments of a uni­fied state pol­icy, albeit with dif­fer­ent func­tions. The goal of this pol­icy is to es­tab­lish and en­force Rus­sia’s re­spon­si­bil­ity for the crime of ag­gres­sion against Ukraine.

The Ukrainian cases that are cur­rently heard in in­ter­na­tional courts of­fer a tac­ti­cal so­lu­tion of hold­ing Rus­sia ac­count­able for vi­o­la­tions of in­di­vid­ual in­ter­na­tional con-

ven­tions dur­ing its armed ag­gres­sion. If the ver­dicts are in fa­vor of Ukraine, they can in­di­rectly solve some as­pects of Rus­sia’s re­spon­si­bil­ity, but not the cru­cial ones. There­fore, in ad­di­tion to those cases, Ukraine must pre­pare a con­sol­i­dated claim. Its strate­gic goal would be to es­tab­lish con­sol­i­dated le­gal base for a process to hold Rus­sia fully and di­rectly ac­count­able for all the con­se­quences of its armed ag­gres­sion as a crime.

Im­por­tantly, the tac­tics used by the Ukrainian del­e­ga­tions in var­i­ous on­go­ing pro­cesses in in­ter­na­tional courts should fit into a uni­fied strat­egy of le­gal de­fense of Ukraine’s na­tional in­ter­ests in the con­text of the Rus­sian armed ag­gres­sion. The con­sol­i­dated claim against the Rus­sian Fed­er­a­tion should be the key el­e­ment of this strat­egy. All that more that the po­ten­tial of us­ing in­ter­na­tional courts to pro­tect Ukraine’s na­tional in­ter­ests in its re­la­tions with Rus­sia has been ex­hausted.

The con­sol­i­dated claim should be the of­fi­cial doc­u­ment pre­sent­ing Ukraine’s le­gal stance on Rus­sia’s re­spon­si­bil­ity for the armed ag­gres­sion. The prepa­ra­tion of the claim should be ac­com­pa­nied by the stream­lin­ing of the doc­u­ments, fact-based ma­te­ri­als and in­ter­ro­ga­tion pro­to­cols of pris­on­ers of war, tes­ti­mony of civil­ians, ver­dicts and con­clu­sions of Ukrainian courts, and sim­i­lar doc­u­ments. Com­piled this would present a uni­fied bulk of ev­i­dence to de­fend Ukraine’s le­gal stance and its claims against the Rus­sian Fed­er­a­tion as ag­gres­sor state.

It is of cru­cial im­por­tance for the claim to con­vinc­ingly prove that it is not just the reg­u­lar units of the Armed Forces of Rus­sia that are in­volved in the armed ag­gres­sion against Ukraine, but ir­reg­u­lar forces and mil­i­tant groups cre­ated, armed, com­manded, con­trolled and funded by the Rus­sian Fed­er­a­tion. That its ac­tions qual­ify as armed ag­gres­sion un­der item 3.g of the UN Gen­eral As­sem­bly Res­o­lu­tion 3314 (XXIX) on the Def­i­ni­tion of Ag­gres­sion (dated De­cem­ber 14, 1974) and Art. 1 of the Law of Ukraine on De­fense No 1932-ХІІ dated De­cem­ber 6, 1991.

It is equally im­por­tant to pro­foundly prove that the Rus­sian civil ad­min­is­tra­tion and the Rus­sian Armed Forces in Crimea are an oc­cu­pa­tion ad­min­is­tra­tion and an oc­cu­pa­tion army. In the tem­po­rar­ily oc­cu­pied parts of Donetsk and Luhansk oblasts, quasi-state col­lab­o­ra­tionist en­ti­ties known as the Donetsk and Luhansk Peo­ple’s Re­publics (DNR and LNR) act as such oc­cu­pa­tion ad­min­is­tra­tion. They were cre­ated by Rus­sian spe­cial ser­vices, while the oc­cu­pa­tion army there is com­prised of both the reg­u­lar and ir­reg­u­lar unites of the Armed Forces of Rus­sia.

The key el­e­ment of this con­sol­i­dated claim should be the as­sess­ment of the dam­age in­flicted on the Ukrainian state, so­ci­ety and cit­i­zens by the armed ag­gres­sion of the Rus­sian Fed­er­a­tion. Also, Ukraine should jus­tify its claims re­gad­ing the scale and forms of re­im­burse­ment for the losses it faced as a re­sult of the ag­gres­sion. There­fore, the doc­u­ment should pay spe­cial at­ten­tion to war crimes and crimes against hu­man­ity com­mit­ted by the po­lit­i­cal lead­er­ship and mil­i­tary com­mand, as well as the per­son­nel of the Armed Forces of the Rus­sian Fed­er­a­tion.

The con­sol­i­dated claim should be ap­proved by the Na­tional Se­cu­rity and De­fense Coun­cil of Ukraine and en­acted by the Pres­i­den­tial De­cree. Con­se­quently, it should be sent to the Rus­sian Fed­er­a­tion as an of­fi­cial doc­u­ment with a sup­ple­men­tary diplo­matic note on Ukraine’s vi­sion of peace­ful pro­cesses to dis­cuss its claims (di­rect talks, ne­go­ti­a­tions in­volv­ing third par­ties, in­ter­na­tional ar­bi­tra­tion, In­ter­na­tional Court of Jus­tice).

If Rus­sia re­jects this (as ex­pected), Ukraine will have an op­por­tu­nity to trans­fer its con­sol­i­dated claim against Rus­sia to the in­ter­na­tional sta­tus by ex­er­cis­ing its right to dis­trib­ute it among UN mem­ber-states as an of­fi­cial doc­u­ment of the UN Gen­eral As­sem­bly, and within other in­ter­na­tional or­ga­ni­za­tions and plat­forms. The con­sol­i­dated claim can be a pow­er­ful in­stru­ment to dis­pel the state­ments of the Rus­sian au­thor­i­ties and pro­pa­ganda about the con­flict in Eastern Ukraine as an in­ter­nal one, and not a con­tin­u­a­tion of Rus­sia’s armed ag­gres­sion launched with the grab of Crimea. This claim would re­main an of­fi­cial doc­u­ment that would record Ukraine’s le­gal stance and clearly out­line its claims against Rus­sia as ag­gres­sor state. More­over, these claims would not have an ex­pi­ra­tion date.

There­fore, the prepa­ra­tion of this con­sol­i­dated claim should re­main the pri­or­ity of Ukraine’s diplo­matic ef­forts from the mo­ment it is pre­sented to Rus­sia and on. No­body knows how the in­ter­na­tional sit­u­a­tion will evolve and the bal­ance of geopo­lit­i­cal pow­ers in the world will shift. Mean­while, the ob­vi­ous and un­jus­ti­fied de­lay in the prepa­ra­tion of Ukraine’s con­sol­i­dated claim un­der­mines the author­ity of the Ukrainian gov­ern­ment and the geopo­lit­i­cal po­si­tion of Ukraine. In the eyes of Ukrainian so­ci­ety and the in­ter­na­tional com­mu­nity, this points to Ukraine’s ac­cep­tance of all the con­se­quences of the Rus­sian ag­gres­sion, as well as to the lack of will to de­mand the restora­tion of Ukraine’s ter­ri­to­rial in­tegrity or the re­im­burse­ment of the losses in­flicted by the Rus­sian ag­gres­sion.

An of­fi­cial con­sol­i­dated claim of Ukraine against the Rus­sian Fed­er­a­tion as ag­gres­sor state, legally doc­u­mented, made pub­lic in Ukraine and dis­trib­uted in the world, would mo­bi­lize so­ci­ety, in­crease sup­port of the gov­ern­ment, raise its ap­proval rat­ings, re­in­force the unity in Ukraine’s for­eign pol­icy vec­tor, and prop up Ukraine’s po­si­tion in the talks with Rus­sia, Western part­ners and in­ter­na­tional fi­nan­cial in­sti­tu­tions.

The re­fusal of Rus­sia to con­sider the con­sol­i­dated claim would cre­ate ad­di­tional le­gal ground for the ex­ten­sion and es­ca­la­tion of in­ter­na­tional sanc­tions in­tro­duced by Western democ­ra­cies.

SOFT SANC­TION POL­ICY

The fact that Ukraine’s lead­er­ship lacks a clear and co­her­ent le­gal stance in re­pelling Rus­sia’s armed ag­gres­sion or deal­ing with its con­se­quences leads to a sit­u­a­tion where

the coun­try does not have an ef­fi­cient sanc­tion pol­icy against ag­gres­sor state.

The Cab­i­net of Min­is­ters has failed ear­lier to take steps to ad­e­quately and con­sis­tently ap­ply sanc­tions against Rus­sia, blam­ing this on the lack of a re­spec­tive law. This ex­pla­na­tion does not stand up to scru­tiny. Un­der in­ter­na­tional law, a state that faces ag­gres­sion has the right to im­me­di­ately ap­ply wide-scale sanc­tions against ag­gres­sor state with or with­out re­spec­tive laws.

Al­most six months into Rus­sia’s armed ag­gres­sion, on Au­gust 14, 2014, the Verkhovna Rada passed the Law on Sanc­tions (No16644-VII), ini­ti­ated by the Cab­i­net of Min­is­ters. Later that month, then-Prime Min­is­ter Arseniy Yat­se­niuk pre­sented the Strat­egy of the Gov­ern­ment’s Pro­gram Ac­tions. Among other things, it en­vis­aged “sanc­tions against the ag­gres­sor, in­clud­ing against in­di­vid­u­als and le­gal en­ti­ties of the Rus­sian Fed­er­a­tion that pose a threat to the na­tional in­ter­ests, se­cu­rity, sovereignty and ter­ri­to­rial in­tegrity of Ukraine”.

How­ever, sanc­tions against Rus­sia were not in­tro­duced un­til a year af­ter that when the NSDC passed a de­cree On the Ap­pli­ca­tion of In­di­vid­ual Spe­cial Eco­nomic and Other Re­stric­tive Mea­sures (Sanc­tions) on Septem­ber 2, 2015, and the Pres­i­dent en­acted it with De­cree No549/2015 on Septem­ber 2, 2015. The NSDC passed only five sim­i­lar de­ci­sions be­tween then and the be­gin­ning of 2017. They cover a mere 335 in­di­vid­u­als and 167 le­gal en­ti­ties.

The flaws of the Law on Sanc­tions pre­vent both the Cab­i­net of Min­is­ters and the NDSC from pass­ing de­ci­sions on sec­toral sanc­tions. This right has, for no just rea­son, been in­cluded in the scope of the Verkhovna Rada’s pow­ers. This makes the ap­pli­ca­tion of sanc­tions against the wrong­do­ing state vir­tu­ally im­pos­si­ble. The Law on Sanc­tions over­looks the gen­er­ally ac­cepted norms of cus­tom­ary in­ter­na­tional law, diplo­matic law and the law of in­ter­na­tional treaties in that it does not en­tail the op­tion of break­ing or sus­pend­ing, in full or in part, diplo­matic and con­sular re­la­tions, as well as in­ter­na­tional treaties with the ag­gres­sor state. As a re­sult, treaties be­tween Ukraine and Rus­sia on mil­i­tary tech­ni­cal co­op­er­a­tion have long re­mained ef­fec­tive and en­acted. The Treaty on Friend­ship, Co­op­er­a­tion and Part­ner­ship be­tween Ukraine and Rus­sia re­mains in force to­day: it qualifies Rus­sia as Ukraine’s strate­gic part­ner and stip­u­lates that the two coun­tries share a trans­par­ent bor­der and a visa-free regime.

As Ukraine’s lead­er­ship has been lack­ing a clear stance on the ap­pli­ca­tion of in­ter­na­tional sanc­tions against Rus­sia, the Verkhovna Rada passed the scan­dalous Law On the Es­tab­lish­ment of the Free Trade Area Crimea and the De­tails of Eco­nomic Ac­tiv­i­ties on the Tem­po­rar­ily Oc­cu­pied Parts of Ukraine on Au­gust 12, 2014. It thus cre­ated le­gal base for the strength­en­ing of the Rus­sian oc­cu­pa­tion au­thor­i­ties in­stead of ap­ply­ing eco­nomic block­ade of the ter­ri­tory grabbed by Rus­sia.

Civic ac­tivists, sup­ported by the Right Sec­tor, Azov Civil Co­prs and mem­bers of the Azov bat­tal­ion re­sponded by launch­ing a civic block­ade of the oc­cu­pied Crimea. The ini­tia­tive was to block the trans­fer of cargo to Crimea from Ukraine and to Ukraine from Crimea. Sup­ply of elec­tric­ity to Crimea was sus­pended too. That block­ade started on Septem­ber 20, 2015, and ended on Jan­uary 17, 2016, as the Cab­i­net of Min­is­ters’ De­cree No1035 On Re­stric­tion of De­liv­ery of Cer­tain Goods, Works and Ser­vices from the Oc­cu­pied Ter­ri­tory of Ukraine to the Rest of the Ter­ri­tory, and Back came into force. This de­cree is dated De­cem­ber 16, 2015. Sub­se­quently, the block­ade turned into the mon­i­tor­ing of how the Gov­ern­ment de­cree was be­ing en­forced. How­ever, the re­stric­tion it in­tro­duced did not cover the sup­ply of elec­tric­ity and the goods of strate­gic im­por­tance to the econ­omy and se­cu­rity of the state.

The de­cree was passed un­der the pres­sure of the pub­lic rather than as a man­i­fes­ta­tion of a con­sis­tent sanc­tion pol­icy against Rus­sia. It in­tro­duced par­tial re­stric­tive mea­sures rather than full-fledged sanc­tions. They cov­ered not the ag­gres­sor state as a whole and not the en­tire oc­cu­pied ter­ri­tory of Ukraine, but only part of it.

Later, on Au­gust 31, 2016, the Cab­i­net of Min­is­ters un­der Volodymyr Gro­is­man passed the Con­cept of the State Pro­gram to Re­store and Build Peace in Eastern Ukraine (en­acted with de­cree No892-р) and the Ac­tion Plan to Im­ple­ment Some Ba­sics of the State Do­mes­tic Pol­icy On Cer­tain Ar­eas of Donetsk and Luhansk Oblasts where State Au­thor­i­ties Tem­po­rar­ily Do Not Ex­er­cise Their Func­tions (de­cree No8-p dated Jan­uary 11, 2017). How­ever, both the Con­cept and the Plan speak of the “armed con­flict” that is tak­ing place in some ar­eas of Donetsk and Luhansk Oblasts, not of the ag­gres­sion by the Rus­sian Fed­er­a­tion that results in the tem­po­rary oc­cu­pa­tion of Crimea and parts of Eastern Ukraine. They make no men­tion of the

THE TAC­TICS USED BY THE UKRAINIAN DEL­E­GA­TIONS IN VAR­I­OUS ON­GO­ING PRO­CESSES IN IN­TER­NA­TIONAL COURTS SHOULD FIT INTO A UNI­FIED STRAT­EGY OF LE­GAL DE­FENSE OF UKRAINE'S NA­TIONAL IN­TER­ESTS IN THE CON­TEXT OF THE RUS­SIAN ARMED AG­GRES­SION

Au­tonomous Repub­lic of Crimea or the city of Sev­astopol oc­cu­pied tem­po­rar­ily by Rus­sia, nor do they qual­ify the parts of Donetsk and Luhansk Oblasts that are grabbed by Rus­sia as tem­po­rar­ily oc­cu­pied ter­ri­to­ries. In­stead, they de­scribe them as “re­gions where the state au­thor­i­ties tem­po­rar­ily do not ex­er­cise their pow­ers”.

It is ob­vi­ous that the con­cep­tual ba­sis for the doc­u­ments passed by the Cab­i­net of Min­is­ters fits into the key the­sis of the Rus­sian au­thor­i­ties and pro­pa­ganda: it claims that Crimea is the “in­her­ently Rus­sian land”, while the con­flict in Eastern Ukraine is an in­ter­nal one in which Rus­sia is not in­volved.

The Con­cept jus­ti­fies and the Plan en­vis­ages ex­ten­sive co­op­er­a­tion with the ag­gres­sor, on its terms and in the in­ter­ests of those Ukrainian oli­garchs who ear­lier played into the hands of the Rus­sian ex­pan­sion and ag­gres­sion in Eastern Ukraine, and wish to con­tinue their busi­ness on the ter­ri­to­ries oc­cu­pied by Rus­sia at any price.

These doc­u­ments un­der­mine Ukraine’s le­gal po­si­tions in the is­sues of Rus­sia’s re­spon­si­bil­ity for the armed ag­gres­sion and of the restora­tion of Ukraine’s ter­ri­to­rial in­tegrity. They es­sen­tially are the op­po­site to the con­cept of sanc­tions against the ag­gres­sor state.

THE BLOCK­ADE AND THE PRES­I­DENT

Ukrainian politi­cians who are de­pen­dent on the oli­garchs have man­aged to block the con­sid­er­a­tion of the draft law on the tem­po­rar­ily oc­cu­pied ter­ri­tory of Ukraine (hope­fully, this block­ing is tem­po­rary as well). Yet, the gov­ern­ment is forced to re­act to the fact that the ma­jor­ity of Ukrainian so­ci­ety re­jects trade with the oc­cu­pied ter­ri­tory.

On Fe­bru­ary 16, 2017, the NSDC passed the De­ci­sion on Ur­gent Mea­sures to Neu­tral­ize the Threats to the En­ergy Se­cu­rity of Ukraine and Re­in­force the Pro­tec­tion of its Crit­i­cal In­fra­struc­ture. It was en­acted on that same day with the Pres­i­den­tial De­cree No37/2017. Among other things, it man­dates the Cab­i­net of Min­is­ters to ur­gently “ap­prove the pro­ce­dure for the move­ment of goods to the area or from the area of the ATO in Donetsk and Luhansk Oblasts, and the list of goods whose move­ment is banned”. On March 1, 2017, the Cab­i­net of Min­is­ters passed the re­spec­tive de­ci­sion “ban­ning the move­ment of goods to the tem­po­rar­ily un­con­trolled ter­ri­tory and from the un­con­trolled ter­ri­tory, other than food­stuffs and medicines that are part of hu­man­i­tar­ian cargo, or goods and prod­ucts that are nec­es­sary to con­tinue the op­er­a­tion and main­te­nance of steel­works, min­ing, coal ex­trac­tion and en­ergy in­dus­tries, and the ob­jects of crit­i­cal in­fra­struc­ture”.

The civic block­ade of trade with the oc­cu­pied ter­ri­to­ries, the forced seizure of Ukrainian en­ter­prises by the Rus­sian oc­cu­pa­tion au­thor­i­ties, and the es­ca­la­tion of ag­gres­sive ac­tions by Rus­sia in Eastern Ukraine pushed the NSDC to pass two de­ci­sions on March 15, 2017 (en­acted on the same day by Pres­i­den­tial De­crees No62/2017 and 63/2017) On Ur­gent Ad­di­tional Mea­sures to Coun­ter­act Hy­brid Threats to the Na­tional Se­cu­rity of Ukraine and On Spe­cial Eco­nomic and Other Re­stric­tive Mea­sures (Sanc­tions).

How­ever, the Pres­i­dent of Ukraine crit­i­cized harshly the lead­ers and ac­tivists in­volved in the block­ade at the NSDC meet­ing. He blamed a num­ber of sup­port­ive po­lit­i­cal forces of at­tempts to “get rid of part of the Don­bas” and “le­gal­ize” this in­tent with the law on the tem­po­rar­ily oc­cu­pied ter­ri­to­ries. He also stated that “such a law ruins the Minsk process” and “will bury in­ter­na­tional sanc­tions against the Rus­sian Fed­er­a­tion as they are tied to Minsk”. As an al­ter­na­tive op­tion, Pres­i­dent Poroshenko sug­gested that a law on the restora­tion of Ukraine’s ter­ri­to­rial in­tegrity should be pre­pared, con­sid­ered and ap­proved.

Re­gard­less of our opin­ion about those in­volved in the civic block­ade of parts of the Don­bas, it is im­por­tant to re­al­ize that their ac­tions are a re­ac­tion to the gov­ern­ment’s in­abil­ity to con­struct poli­cies to­wards Rus­sia as ag­gres­sor state, based on a clear and con­sis­tent le­gal stance that is in line with the in­ter­ests of the state rather than of in­di­vid­ual oli­garchs or oli­garch groups. A timely and clear def­i­ni­tion of Rus­sia’s armed at­tack against Ukraine as a crim­i­nal ag­gres­sion and the in­tro­duc­tion of the le­gal regime of mar­tial law should have been ac­com­pa­nied by quick de­ci­sions to en­sure coun­ter­ac­tion to threats in var­i­ous sec­tors of the econ­omy and en­ergy first and fore­most. It was well known by then that nearly 45% of ther­mal power plant units in Ukraine worked on an­thracite coal. Shortly af­ter the Rus­sian ag­gres­sion be­gan, the mines de­liv­er­ing vir­tu­ally all an­thracite coal ended up in the oc­cu­pied parts of Donetsk and Luhansk oblasts. Ukraine’s au­thor­i­ties should have fore­seen that sce­nario and started to pre­pare for it prop­erly.

By now, as Ukraine is see­ing the fourth year of its fight against the Rus­sian ag­gres­sion, those in power should have solved the is­sue of fuel di­ver­si­fi­ca­tion, in­clud­ing the sup­ply of an­thracite coal for TESs and nu­clear fuel for nu­clear power plants, and end the de­pen­dence in that on Rus­sia and its oc­cu­pa­tion au­thor­i­ties. This has not been done de­spite spe­cial de­ci­sions by the NSDC, in­clud­ing the one dated Novem­ber 4, 2014, On En­sur­ing En­ergy Se­cu­rity and Ur­gent Mea­sures to En­sure Sta­ble 2014/15 Heat­ing Sea­son, and the sub­se­quent de­ci­sion dated May 6, 2015, to mon­i­tor the en­force­ment of the first de­ci­sion and ad­di­tional mea­sures to en­sure that Ukrainian con­sumers are supplied with en­ergy sources.

Ac­cord­ing to the me­dia, the Pres­i­dent’s crit­i­cism for that fo­cused on the po­lit­i­cal forces that ini­ti­ated the Law on the Tem­po­rar­ily Oc­cu­pied Ter­ri­tory, not the of­fi­cials re­spon­si­ble for the fail­ure to im­ple­ment the above­men­tioned de­ci­sions by the NSDC. Ob­vi­ously, the texts of the draft ver­sions of that law (both the one reg­is­tered ini­tially, and the com­pro­mise ver­sion ap­proved by the work­ing group) are not struc­tured prop­erly and are not com­pleted con­cep­tu­ally. They de­fine the le­gal sta­tus of the tem­po­rar­ily oc­cu­pied ter­ri­tory only frag­men­tar­ily and have sig­nif­i­cant gaps. How­ever, not for a mo­ment they hint at the prospect of us­ing this law as an in­stru­ment to le­git­imize Ukraine’s re­jec­tion of any of its oc­cu­pied ter­ri­tory.

TWO LAWS, ONE GOAL

Draft Law on the Tem­po­rar­ily Oc­cu­pied Ter­ri­tory of Ukraine should be se­ri­ously re­vised and passed as soon as pos­si­ble, not con­demned. The au­thor of this ar­ti­cle has drafted a new ver­sion of such draft law that is avail­able on the web­site of Tyzh­den in Ukrainian. It is nei­ther to re­place nor to con­tra­dict draft law on the restora­tion of ter­ri­to­rial in­tegrity of Ukraine as sug­gested by the Pres­i­dent. Nor is the lat­ter an al­ter­na­tive to the draft law on the tem­po­rar­ily oc­cu­pied ter­ri­tory of Ukraine. Both doc­u­ments com­ple­ment one an­other con­cep­tu­ally. They must per­form a uni­form func­tion and form com­mon ground for the im­ple­men­ta­tion of the Minsk Ac­cords. How­ever, this im­ple­men­ta­tion should fol­low the gen­er­ally ac­cepted norms of in­ter­na­tional law, the Constitution of Ukraine and our le­git­i­mate in­ter­ests, not the scheme im­posed by the ag­gres­sor state.

Oth­er­wise, the pur­poses, func­tions and the role of these laws are dif­fer­ent. The Law on the Tem­po­rar­ily Oc­cu­pied Ter­ri­tory of Ukraine is to be used in the cir­cum­stance of war, while the Law on the Restora­tion of the Ter­ri­to­rial In­tegrity of Ukraine should be en­acted in the en­vi­ron­ment of peace.

The Law on the Tem­po­rar­ily Oc­cu­pied Ter­ri­tory of Ukraine should per­form the fol­low­ing func­tions:

1) es­tab­lish the il­le­gal na­ture of the fact that the Rus­sian Fed­er­a­tion grabbed and keeps by force the tem­po­rar­ily oc­cu­pied parts of the Ukrainian ter­ri­tory;

2) con­firm the sovereign right of Ukraine to re­store its ter­ri­to­rial in­tegrity within the in­ter­na­tion­ally rec­og­nized state bor­ders;

3) es­tab­lish the pro­ce­dure for the pro­tec­tion of hu­man rights for the civil­ian pop­u­la­tion of the oc­cu­pied parts of Ukraine, con­sid­er­ing the fact that the Rus­sian Fed­er­a­tion ex­er­cises ef­fec­tive over­all con­trol within the oc­cu­pied ter­ri­tory as ag­gres­sor state, while all branches of power in Ukraine are de­void of any pos­si­bil­ity to per­form their func­tions there as spec­i­fied by the Constitution and the laws of Ukraine;

4) reg­u­late Ukraine’s re­la­tions with the tem­po­rar­ily oc­cu­pied ter­ri­tory in the sanc­tion regime, based on the need to guar­an­tee na­tional se­cu­rity in the cir­cum­stance of the lengthy armed ag­gres­sion by the Rus­sian Fed­er­a­tion;

5) es­tab­lish the gen­eral pro­ce­dure for as­sess­ing the losses in­curred by Ukraine dur­ing and as a re­sult of the oc­cu­pa­tion of its ter­ri­tory.

The Law on the Restora­tion of the Ter­ri­to­rial In­tegrity of Ukraine should per­form the fol­low­ing func­tions:

1) es­tab­lish the pro­ce­dure for en­sur­ing con­trol of the en­tire length of the Ukrainian-Rus­sian bor­der af­ter the lib­er­a­tion of the tem­po­rar­ily oc­cu­pied ter­ri­tory;

2) es­tab­lish the du­ra­tion and the regime of the tran­si­tion pe­riod that is nec­es­sary to deal with the im­pact of the oc­cu­pa­tion, re­store se­cu­rity for the cit­i­zens and re­build vi­tal in­fra­struc­ture;

3) in­tro­duce a spe­cial regime of in­ter­na­tional hu­man rights pro­tec­tion in the ter­ri­tory lib­er­ated from oc­cu­pa­tion for the tran­si­tion pe­riod;

4) en­tail the terms and dead­lines for the full-fledged restora­tion of the con­sti­tu­tional and pub­lic or­der on the ter­ri­tory lib­er­ated from oc­cu­pa­tion; and

5) list or­ga­ni­za­tional mea­sures to en­force Rus­sia’s re­spon­si­bil­ity for the losses Ukraine in­curred as a re­sult of the oc­cu­pa­tion, and to pun­ish the in­di­vid­u­als in­volved in war crimes and crimes against hu­man­ity.

The Law on the Restora­tion of the Ter­ri­to­rial In­tegrity of Ukraine can be ap­plied only af­ter Rus­sia with­draws from the oc­cu­pied ter­ri­tory. It makes no sense to ex­pect that Rus­sia will vol­un­tar­ily re­turn to Ukraine the ter­ri­tory it grabbed. Full restora­tion of Ukraine’s ter­ri­to­rial in­tegrity is only pos­si­ble through wide-scale sanc­tions that would be ap­plied con­sis­tently by Ukraine and the in­ter­na­tional com­mu­nity of democ­ra­cies.

THE WEAPON OF SANC­TIONS

Ukraine’s sanc­tion pol­icy is im­ple­mented to­day through in­di­vid­ual re­stric­tions against a rel­a­tively short list of Rus­sian in­di­vid­u­als and le­gal en­ti­ties, as well as the re­cent in­tro­duc­tion of some re­stric­tions in trade, but only with the tem­po­rar­ily oc­cu­pied ter­ri­tory.

Mean­while, a sig­nif­i­cant amount of UkraineRus­sia trade re­mains. Based on the of­fi­cial data from the State Sta­tis­tics Bureau, Ukraine ex­ported goods worth $ 3.2bn (8.9% of Ukraine’s to­tal ex­ports) to Rus­sia over 11 months of 2016, while im­port­ing $ 4.6bn worth of goods (13.1% of to­tal im­ports). In other words, Ukraine’s key en­emy re­mains its key trade part­ner. In 2016, Rus­sia abol­ished the free trade regime with Ukraine, im­posed full ban on the tran­sit of goods from Ukraine to the third coun­tries through the Rus­sian ter­ri­tory, and in­tro­duced an em­bargo on many Ukrainian goods. This re­sulted in nearly $1bn-worth of di­rect fi­nan­cial loss for Ukraine, said Ukraine’s Trade Rep­re­sen­ta­tive Natalia Mykol­ska.

Out of the vast num­ber of bi­lat­eral agree­ments reg­u­lat­ing Ukraine-Rus­sia re­la­tions in var­i­ous fields, only 33 have been ter­mi­nated, in­clud­ing six bro­ken off by Rus­sia.

Ukraine’s in­con­sis­tent sanc­tion pol­icy against Rus­sia leads to neg­a­tive con­se­quences:

1) it pre­vents max­i­mum mo­bi­liza­tion of Ukraine’s en­tire po­ten­tial, in­sti­tu­tions and re­sources to counter the ag­gres­sion;

2) it de­mor­al­izes the cit­i­zens of Ukraine and the per­son­nel of the Armed Forces of Ukraine; 3) it en­cour­ages the Rus­sian Fed­er­a­tion to con­tinue the ag­gres­sion;

4) it makes Ukraine vul­ner­a­ble to Rus­sia’s hos­tile ac­tions, eco­nomic and hu­man­i­tar­ian first and fore­most;

5) it is used by the Rus­sian pro­pa­ganda to per­suade the in­ter­na­tional com­mu­nity that what is hap­pen­ing in Ukraine is an in­ter­nal con­flict;

6) it makes Ukraine’s part­ners doubt the need to pro­vide it with as­sis­tance, in­clud­ing ar­ma­ment; and

7) it serves as an ar­gu­ment against tougher sanc­tions on Rus­sia by the in­ter­na­tional com­mu­nity.

It is rea­son­able for Ukraine’s po­lit­i­cal lead­er­ship to stop re­ly­ing on tac­ti­cal de­ci­sions shaped by spe­cific cir­cum­stances that ben­e­fit oli­garch clans first and fore­most. In­stead, it should build a na­tional strat­egy for the pro­tec­tion of the coun­try’s and so­ci­ety’s in­ter­ests in the cir­cum­stances of the Rus­sian armed ag­gres­sion and start ap­ply­ing wide-scale and con­sis­tent sanc­tions against the ag­gres­sor.

This com­plex task takes ef­forts and time. But it must be ac­com­plished, and the sooner it hap­pens, the bet­ter. A closer look at the way Rus­sia treats Ukraine shows that Rus­sia al­ways used the mech­a­nisms of co­op­er­a­tion es­tab­lished be­tween the two states, in­clud­ing in econ­omy, en­ergy, mil­i­tary or hu­man­i­tar­ian do­mains against Ukraine. Nu­mer­ous wars in gas sup­ply, trade, in­for­ma­tion space and more, which Rus­sia has been con­duct­ing against Ukraine (ig­nor­ing the eco­nomic cost for the sake of geopo­lit­i­cal pur­poses), prove this.

There­fore, Ukraine should aim at max­i­mum di­ver­si­fi­ca­tion of bi­lat­eral re­la­tions with coun­tries all over the world to de­crease its de­pen­dence on Rus­sia in all spheres. As long as Rus­sia’s armed ag­gres­sion against Ukraine con­tin­ues, the re­la­tions with Rus­sia should be frozen as much as pos­si­ble and re­main in the regime of sanc­tions.

UKRAINE SHOULD AIM AT MAX­I­MUM DI­VER­SI­FI­CA­TION OF BI­LAT­ERAL RE­LA­TIONS WITH COUN­TRIES ALL OVER THE WORLD TO DE­CREASE ITS DE­PEN­DENCE ON RUS­SIA IN ALL SPHERES

The orig­i­nal block­ade. Pressed by ac­tivists, those in power were forced to sig­nif­i­cantly re­strict trade with the oc­cu­pied Crimea in Jan­uary 2016

A re­luc­tant con­sent. Af­ter the "un­easy" de­ci­sion to break trade ties with ORDiLO, the gov­ern­ment has pledged to de­velop a spe­cific law on the restora­tion of Ukraine's ter­ri­to­rial in­tegrity

Newspapers in English

Newspapers from Ukraine

© PressReader. All rights reserved.