Condemnation of certain developments in Eastern Ukraine as “completely unacceptable”

Published: 20 July 2017 Author: Stefan Talmon

In the wake of the Euromaidan revolution in Ukraine in February 2014, the Russian Federation annexed the Crimean peninsula in March of the same year and tensions between pro-Russian groups in the Eastern Ukrainian oblasts of Donetsk and Lugansk and the central government in Kiev developed into an outright armed conflict. In April 2014, the Donetsk and Luhansk People’s Republics were established which, in May of the same year, declared their independence from Ukraine. On 5 September 2014, the Ukrainian Government and the pro-Russian separatists signed a 12-point Protocol in the Belorussian capital Minsk (“Minsk Protocol”) which provided, inter alia, for an immediate ceasefire and the decentralization of power in Ukraine by means of enacting a Law of Ukraine “On interim local self-government order in certain areas of the Donetsk and Lugansk regions”. By January 2015, however, the Minsk Protocol ceasefire had completely collapsed and renewed heavy fighting caused significant concern in Germany, especially after proposals to send armaments to Ukraine were made in the United States of America.

At the initiative of Chancellor Angela Merkel and French President François Hollande the leaders of France, Germany, Russia and Ukraine conducted talks at Minsk on 11 and 12 February 2015 which led to a 13-point package of measures for the implementation of the Minsk Protocol (“Minsk II Agreement”), including an immediate and comprehensive ceasefire monitored by the Organization of Security and Co-operation in Europe (“OSCE”), the withdrawal of heavy weapons, the conduct of local elections in the Donetsk and Lugansk regions and the carrying out of constitutional reform in Ukraine with the adoption of a new constitution providing for decentralization and a special status of certain areas of the Donetsk and Lugansk regions. The Minsk II Agreement was subsequently endorsed by the United Nations Security Council. However, by 2017 neither had constitutional reform had been carried out nor had local elections been held in the separatist areas.

 

Russian recognition of documents issued by the Donetsk and Lugansk Peoples Republics

Against this background of the political stalemate in Ukraine, on 18 February 2017 Russian President Vladimir Putin signed an Executive Order which read:

“Being guided by universally recognised principles and standards of the international humanitarian law and in order to protect the rights and freedoms of individuals, the President has resolved that temporarily, during the political settlement period of the crisis in certain districts of Ukraine’s Donetsk and Lugansk regions pursuant to the Minsk Agreements, personal identification documents, education and (or) qualification certificates, birth certificates, marriage, divorce, name change and death certificates, vehicle registration certificates, and vehicle registration plates issued by the corresponding authorities (organisations), valid in the specified district, will be recognised in the Russian Federation as valid for Ukrainian citizens and stateless persons permanently residing in those areas.

Pursuant to the Executive Order, Ukrainian citizens and stateless persons permanently residing in certain districts of Ukraine’s Donetsk and Lugansk regions can enter and leave the Russian Federation without applying for visas upon showing identification documents (birth certificates for children under the age of 16), issued by the corresponding authorities which are valid in the said districts. […].”

This Executive Order triggered an immediate reaction from the Federal Government. On 20 February 2017, the spokesperson for the Federal Foreign Office stated:

“[T]he Executive Order signed by President Putin on 18 February, which recognizes as valid in the Russian Federation documents and passport documents issued in the separatist areas, the so-called Donetsk and Lugansk People’s Republics, is, in our view, a clear violation of the spirit and objectives of the Minsk Agreement. For us, there is no question whatsoever that we wholeheartedly support the sovereignty, the territorial integrity, the unity of Ukraine, and the full implementation of the Minsk Agreement. We consider this step of the Russian Federation to run counter to his objective. We must also assume that, in particular, the handling of passport documents by the Russian Federation is at least questionable with regard to the applicable rules of international law.”

Replying to a question on the international legality of the Russian measures, the spokesperson for the Foreign Ministry said:

“In his decree of 18 February, the day before yesterday, the Russian President said on the one hand that, from the point of view of the Russian Federation, the measures taken would not entail any change in the international status of the separatist territories.

On the other hand, if we understand the content of the Order correctly, it entails, inter alia, visa privileges for people living in Ukraine, on Ukrainian territory, in the areas around Lugansk and Donetsk. In particular, it means that travel documents issued by institutions in those areas will be recognized by the Russian Federation. This in itself is difficult to comprehend because according to international law and common sense travel documents are only issued by States and only to their nationals. A German passport is not issued by the federal state of Berlin or by a municipality in Bavaria, but it is issued on behalf of the Federal Republic of Germany on the basis of our constitution and the relevant laws.

It is for that reason that I have said that the measures are contradictory and that they definitely do not conform to the spirit and the purpose of the Minsk Agreement; because the paramount goal of Minsk is to restore the full sovereignty of Ukraine on the basis of the 13 articles of 12 February 2015.”

He added that “travel documents issued by the self-proclaimed People’s Republics of Lugansk and Donetsk are not recognized [by Germany].” This view was seconded by the spokesperson for the Federal Government who said that the “recognition of the travel documents of these self-proclaimed […] so-called People’s Republics of Lugansk and Donetsk is undermining the unity of Ukraine. This is in stark contradiction to everything agreed in Minsk and is therefore completely unacceptable.”

Responding to Germany’s criticism, the Russian Ministry of Foreign Affairs issued a statement later the same day which read in part:

“Presidential Executive Order of February 18, 2017 […] was adopted primarily in the interests of people and in order to guarantee their rights and freedoms. No one can exercise their rights without the recognition of personal identification documents and education, birth and marriage certificates. Under the Executive Order, people permanently residing in certain districts of Ukraine’s Donetsk and Lugansk regions can enter the Russian Federation upon showing their identification documents.

This measure is designed to alleviate life in the region that has been affected by the inhumane policies of the Kiev authorities and the thoughtless actions of Ukrainian nationalists. […].

By adopting the above document, the Russian Federation acted primarily from humanitarian considerations. The Executive Order is fully in keeping with international law, which does not prohibit the recognition of basic documents necessary for the realisation of civil rights and freedoms issued by the authorities that are not internationally recognised. Evidence of this can be found in international practice and decisions of international courts, including the UN International Court of Justice and the European Court of Human Rights.

Measures stipulated in the Executive Order are temporary and will be effective until the political settlement of the crisis in certain districts of Ukraine’s Donetsk and Lugansk regions pursuant to the Minsk Agreements.”

In a conference call with reporters on 20 February 2017 President Putin’s spokesman called the Executive Order a humanitarian gesture to assist the residents of the regions who had been prevented by a transportation blockade imposed by Ukrainian nationalists to travel to the government-held area to get or extend their passports and other documents. The spokesman pointed out that the action does not officially recognize the People’s Republics. He said: “These aren’t the documents of an officially recognized State. They are de facto issued on the territory.”

Asked to comment on the German Foreign Ministry’s statement that Russia’s recognition of passports and other documents issued by the self-proclaimed Donetsk and Lugansk People’s Republics was in conflict with the spirit and purpose of the Minsk Agreements, Russian Foreign Minister Sergey Lavrov stated on 21 February 2017:

“I can only confirm that this order is completely in people’s interests and was dictated by humanitarian considerations. It lays the groundwork for human rights and freedoms in a situation where it is impossible to meet these international standards due to a reason that you know very well. The Ukrainian authorities continue doing all they can to make living in these territories as difficult as possible and to impede the implementation of inalienable human rights and freedoms as much as possible. It is difficult and sometimes even impossible to enjoy these rights without documents that identify a person or certify a person’s birth or marriage. Generally, the enjoyment of these rights is impeded in a situation where a vast territory with a population of several million is cut off from citizens’ status registration offices. Another reason is that the attempts by some Donbass residents to receive corresponding services on the left side of the line of contact are becoming practically impossible […].

As for whether what is going on corresponds to the spirit and purposes of the Minsk Agreements, I will say that it corresponds not only to the spirit but also to the letter of the Minsk Agreements, which state in black and white that it is necessary to resolve all humanitarian problems in this part of Donbass. What’s more, international law does not prohibit the recognition of documents issued by internationally unrecognised authorities to ensure rights and freedoms. This is the practice of the International Court and the ECHR.”

Foreign Minister Gabriel raised the issue of the “recognition of passport documents” during his talks in Moscow with his Russian counterpart on 9 March 2017. At a press conference on 15 March 2017 the spokesperson for the Foreign Office once again touched upon the recognition of passport and civil status documents saying:

“We are gravely concerned about the gradual partitionist tendencies in the separatist regions in Eastern Ukraine. […] In addition, these include the recognition by the Russian Federation of passport and civil status documents issued in the separatist regions […].”

While the recognition by the Russian Federation of documents and vehicle registration plates issued by the authorities of the Donetsk and Lugansk People’s Republic may have been a “violation of the spirit and objectives of the Minsk Agreement”, it was not contrary to international law. The Russian Federation in its response to the German criticism correctly referred to international practice and the jurisprudence of the International Court of Justice (“ICJ”) and the European Court of Human Rights. The ICJ held in its Namibia Advisory Opinion:

“In general, the non-recognition of South Africa’s administration of the Territory should not result in depriving the people of Namibia of any advantages derived from international co-operation. In particular, while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.”

This so-called “Namibia exception” to any non-recognition policy has also been adopted by the European Court of Human Rights with regard to the recognition of legal acts by de facto authorities in the unrecognized Turkish Republic of Northern Cyprus concerning matters of day-to-day life.

The Federal Foreign Office’s criticism with regard to international law focussed on passport and travel documents. Again, the Foreign Office was mistaken when it stated that “according to international law and common sense travel documents are only issued by States and only to their nationals”. Passports and travel documents have been issued, for example, by the Sovereign Order of Malta, the United Nations Council for Namibia, the Palestinian National Authority or the United Nations Mission in Kosovo. The acceptance of passports does not necessarily imply recognition of the issuing authority as a State. International practice shows that several States accepted the passports of the German Democratic Republic, the Republic of China (Taiwan) or the Republic of Kosovo while at the same time maintaining their policy of not recognizing these entities as States. The handling of passport documents by the Russian Federation thus did not automatically signify any change in the international status of the separatist territories and thus was not “contradictory”. This also becomes clear from the Executive Order itself which referred to “Ukraine’s Donetsk and Lugansk regions” and to “Ukrainian citizens”.

The situation is different in cases where there is an international law obligation not to recognize as lawful a State created by a serious breach of an obligation arising under a norm of jus cogens. On 24 February 1933 the Assembly of the League of Nations noted that the State of Manchukuo was only able to be carried into effect thanks to the presence of Japanese troops and observed that the recognition of that State was not compatible with existing international obligations. States were therefore not allowed to recognize as “passports” documents issued by the authorities of Manchukuo as such recognition would imply recognition of personal sovereignty of the issuing State over the bearer of the passport. The fact that the establishment of the Donetsk and Lugansk People’s Republics was connected with the unlawful use of force by the Russian Federation against Ukraine gives rise to an international law obligation not to recognize as “passports” documents issued by their authorities. However, international practice also shows that this obligation does not prevent States, which require for immigration purposes either a valid passport or other document satisfactorily establishing the identity and nationality of a person, from regarding the passports issued by such States as providing satisfactory evidence of identity. In this context it should be noted that the Russian Federation, unlike Germany, did not refer to “passports” or “travel documents” but to “personal identification documents”. By lifting the visa requirement for Ukrainian citizens and stateless persons permanently residing in certain districts of Ukraine’s Donetsk and Lugansk regions the Russian Federation also cleverly sidestepped the question of whether the “passports” of the People’s Republics could be endorsed with a Russian visa without implying recognition of these documents as passports in the sense of international law.

 

Establishment of the State of “Malorossiya”

In another development, on 18 July 2017 the leader of the Donetsk People’s Republic, Alexander Zakharcheko, announced the creation the State of Malorossiya, or Little Russia – a name once used in tsarist Russia to refer to Ukrainian lands. He declared:

“The situation has reached a dead end. We propose a plan for the reintegration of the country […]. To stop the civil war, we discussed the situation and came to the conclusion that Ukraine has shown itself as a failed state. The Kiev regime is unable to stop the civil war […]. I propose to establish the state of Malorossiya. Malorossiya is an independent young State. The transition period will take up to three years.”

The new federal State with its capital in the Eastern Ukrainian city of Donetsk was to be the successor of Ukraine and was to comprise all regions of the old Ukraine with the exception of Crimea.

Within hours of the announcement of the establishment of the State of Malorossiya a spokesperson for the Federal Government declared:

“The Federal Government condemns this step as completely unacceptable. Mr Zakharchenko has no mandate to speak for this part of Ukraine. We expect Russia also immediately to condemn this step and that it does not respect it, let alone recognize it. The position of the Federal Government is clear: a solution of the conflict in and around Ukraine can only be achieved through negotiations. This is about the implementation of the Minsk agreements to which Russia, the Russian-backed separatists and Ukraine committed themselves.”

The declaration of the new State was in clear violation of the Minsk agreements and betrayed the spirit of negotiations in the Normandy format, that is, the negotiations between Germany, France, Russia and Ukraine on the resolution of the conflict in Eastern Ukraine. The idea of a new State had never had any chance of getting off the ground and was soon afterwards also publicly abandoned by the Russian Government. The Russian President’s press secretary declared: “The statement Zakharchenko made this morning about Malorossiya is his personal initiative. Moscow learned about it from the press. We stay committed to the Minsk agreements.”

Category: Statehood and recognition

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Author

  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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