Ukraine Is Asked to Provide Legal Cover for Donetsk-Luhansk ‘Elections’

Moscow is prepared to orchestrate local elections in the “people’s republics” of Donetsk and Luhansk (“DPR, LPR”), separately from Ukraine’s upcoming local elections. Donetsk and Luhansk announced this intention in early July (see EDM, July 9) and reaffirmed it during the Contact Group’s failed meetings in Minsk, on July 21 and August 4 (Interfax, Ukrinform, Belta, July 22, August 4, 5).

Donetsk and Luhansk do not make decisions independently from Moscow, even though their interests are the same. Separate elections, if staged, would further advance the process of “DPR-LPR’s” secession from Ukraine. Insofar as this threat can be taken seriously, it is because Moscow originated it, not because Donetsk-Luhansk voiced it.

But this threat is a bluff. Local elections separate from Ukraine’s elections would be worthless to Donetsk-Luhansk and to Moscow. They are guaranteed to win, but they need the legal cover of all-Ukrainian elections in order to obtain international recognition of the local outcome. Staging separate elections is, therefore, an empty threat. Its primary object is not Kyiv, but those Western governments that influence Kyiv’s position in the negotiations on implementing the Minsk Two armistice.

Ukraine’s Western partners display, to varying degrees, eagerness to see the Minsk document’s political clauses implemented by December 2015, a Kremlin-stipulated deadline. As part of the implementation process, the “DPR-LPR” would stage local elections on October 25, nominally as part of Ukraine’s local elections, but de facto to be controlled and won by pro-Russia forces in this territory. If validated internationally, such elections would qualify Donetsk-Luhansk (holding a brand-new “electoral mandate”) to negotiate a constitutional settlement with Ukraine.

Under that scenario, major progress could be declared on the political implementation of the Minsk armistice; Ukraine would be saddled with a frozen conflict of a dual nature, military and constitutional; Russia’s aggression against Ukraine would conclusively be reduced to a problem between Kyiv and the “DPR-LPR”; while Brussels, Berlin and other European centers could soon initiate a rollback of economic sanctions and start rebuilding relations with Russia.

Unilateral local elections in the “DPR-LPR” would derail that possible scenario. By “threatening” to stage such elections, Moscow is trying to induce Berlin and Paris (via the “Normandy” group), the European Union, Washington and the Organization for Security and Cooperation in Europe (OSCE) to press Kyiv into providing a Ukrainian legal cover for local elections in that territory. Top German and French leaders, European Commission officials, and some US diplomats have, in recent weeks, prodded Kyiv to consent to local elections in the Russian-controlled territory (see EDM, July 9, 10, 20, 24, August 3).

Ukrainian laws, however, provide no basis for elections of any kind to be held in territories beyond the legitimate government’s control. Ukrainian laws invalidate, in advance, any elections that might be staged in the “territories under temporary occupation,” specifically Crimea and the Russian-controlled parts of the Donetsk and Luhansk provinces. Ukrainian legislation stipulates the legal and democratic prerequisites to any valid elections in that territory. Those prerequisites are nonexistent and unobtainable in the “DPR-LPR” and under Russian military control. Moreover, the Ukrainian law on local self-administration in that territory—as well as a proposed constitutional amendment—can only go into effect after legitimate local authorities will have been elected in free and fair elections there (see EDM, August 4).

Urging Kyiv to go along with elections in the “DPR-LPR” is tantamount to overriding Ukraine’s legislation—as well as sacrificing the usual principles to the expediency of relations with Russia. On that basis, the stage could be set for local elections in the Russian-occupied territory by consensus among the main players (Moscow, Berlin, Brussels, Kyiv, Donetsk-Luhansk).

In that case, three indispensable formalities would remain to be accomplished for staging elections in that territory. First, Ukraine has to give its consent, as the recognized sovereign over a territory seized from it by force. Second (quite complicated in a technical-legal sense) “DPR-LPR’s” local elections will have to be formally connected with Ukraine’s constitutional and legal framework. And third, the OSCE’s Office for Democratic Institutions and Human Rights (ODIHR) will need to help prepare and then observe the elections in that territory. The OSCE is apparently working toward the second and third requirements within the Minsk Contact Group (see above).

Moscow had, all along, prodded Kyiv to recognize, and negotiate with, the “representatives of Donetsk and Luhansk,” specifically “DPR-LPR.” But Kyiv countered all along that it would hold talks with legitimately elected representatives, not the unlawful “DPR-LPR” authorities. Kyiv’s Western partners are now also urging Kyiv to give its consent to those local elections, under the proposed legal fig leaf (see above). U.S. diplomacy has adopted a somewhat more nuanced stance, arguing that local elections in that territory might produce legitimate local leaders qualified for a dialogue (UNIAN, July 17, 31). In Kyiv, however, only the Opposition Bloc and its allies (all originating in the Party of Regions) seem to believe in that possibility.

Ukraine would not willingly provide the legal cover that Russia needs for staging usable elections in that occupied territory. President Petro Poroshenko today (August 6) promulgated the law on local elections, adopted by the Verkhovna Rada (national parliament) on July 14 (Ukrinform, July 14, August 6). This law is one of several that renders any “elections” in Russian-occupied territories invalid ab initio.