Ukraine’s Constitutional Reform Precludes Federalization or Special Status for Donetsk-Luhansk

On July 1, President Petro Poroshenko made public the draft amendments to Ukraine’s Constitution, regarding decentralization of the country’s administrative-territorial system (Kyiv Post, July 1). The amendments redefine the relationship between Ukraine’s central government and the administrative-territorial units on three levels (province, district, community), devolving competencies from the higher to the lower levels. The changes are subject to parliamentary approval, which is anticipated by late August, ahead of the campaign for country-wide local elections.

A working group within the Constitutional Commission under the Verkhovna Rada’s (national parliament) chairman Volodymyr Hroysman drafted these amendments. The Council of Europe’s Commission for Democracy through Law (The Venice Commission, leading advisory body on constitutional law) had been consulted on the work, and assessed its final result positively, prior to Poroshenko’s July 1 announcement. According to the Council of Europe’s secretary general, Thorbjorn Jagland, the institution “highly values the fact that Ukraine took all of the Venice Commission’s recommendations into account” (Deutsche Welle, July 9).

The new constitutional text has major implications for the diplomacy and politics of conflict in Ukraine’s east. The amendments, as finalized (pending adoption by parliament), break the link that Moscow had artificially imposed between a settlement of the Russia-Ukraine war and an internal Ukrainian constitutional settlement. Moscow was seeking to shape Ukraine’s constitutional reform by linking it with the implementation of the Minsk agreement under Russia’s influence. With “decentralization,” Moscow implied federalization, as well as special status arrangements for its Donetsk and Luhansk proxies. These are entitled to their say on Ukraine’s constitution through the Minsk process. Berlin and Brussels, among others, have underwritten that link. By breaking that link, Ukraine safeguards the integrity of its fundamental law.

In his presentation to the media, Poroshenko remarked that the amendments consolidate Ukraine as a “unitary state with a decentralized political system.” With public opinion polls showing “strong rejection of the idea of federalizing Ukraine,” the president noted, decentralization amounts to “vaccinating against the bacilli of federalization” (President.gov.ua, July 2).

The term “special status” does not appear in the constitutional text. Under the transitory provisions, “specific procedures of local self-administration in certain districts of the Donetsk and Luhansk provinces would be defined by a distinct law” (UNIAN, July 2).

Moscow had insisted all along that a political resolution of the conflict in Ukraine’s east depended on a far-reaching decentralization of Ukraine—its “federalization” in all but name—and a “special status” for the Russian-controlled Donetsk and Luhansk territories. Moreover, Russia pressed Ukraine to negotiate about decentralization generally and about special status in particular with the Donetsk and Luhansk leaders. This was meant to incapacitate and potentially disaggregate Ukraine as a state, insert Russia’s proxies into Ukraine’s constitutional processes, and ensure an oversight role for Russia over those processes.

Requiring Ukraine to change its constitution by negotiations with Donetsk-Luhansk, and not independently of them, is a key feature of the Minsk agreement designed to entrap Ukraine. However, Ukraine’s independent decisions on the constitution (“unilateral,” from Moscow’s perspective) are leading Ukraine out of that trap.

Russia’s Foreign Affairs Minister Sergei Lavrov complained to the European Union’s incoming Council of Ministers’ presidency (Luxembourg) about Kyiv’s potentially game-changing move: “The Russian side is deeply concerned about the Kyiv authorities’ unwillingness or inability to agree with Donetsk and Luhansk on local elections, or invite their representatives to draft Ukraine’s new constitution. We are concerned that the draft constitution, prepared without their involvement, does not include even a single [political] provision from the Minsk agreement. Neither does it hold out a special status for those [Donetsk-Luhansk] territories, nor a decentralization of powers as are listed in the Minsk document” (Interfax, July 4).

Similarly, Donetsk and Luhansk accuse Kyiv of acting unilaterally on the constitution and stonewalling on their special status, instead of acting in coordination with them (Interfax, July 3, 6). In response, Donetsk and Luhansk have unilaterally announced local elections to be held on their territories (see EDM, July 9).

Throughout this conflict, Russia managed to introduce the decentralization and special status clauses in all the major international documents that it co-signed with Western powers regarding Ukraine. From the April 2014 Geneva declaration (Russia, the United States, the European Union, Ukraine) to serial statements of the “Normandy” group (Russia, Germany, France, Ukraine), as well as the Minsk One and Minsk Two armistice documents (Minsk Two then recycled as a UN Security Council resolution), all accepted Russia’s definition of the conflict as internal to Ukraine. All those documents and forums have asked Ukraine to decentralize and concede special status arrangements by negotiation with Donetsk and Luhansk, as prerequisites to conflict resolution.

Such is also the basis of ongoing negotiations in the Minsk Contact Group (Ukraine, Russia, OSCE, Donetsk, Luhansk). The logic of this process has led incrementally toward legitimizing and potentially legalizing the Donetsk and Luhansk authorities. In this spirit, the Contact Group has been discussing the modalities of holding local elections in Donetsk-Luhansk; the act itself of holding those elections is all but presumed under the Minsk armistice. And, as recently as mid-June, two senior European Commission officials were suggesting that Kyiv should move pro-actively and concede a “special status” for Donetsk-Luhansk (Ukraiynska Pravda, June 23, 24).

Ukraine’s independent move on the constitution is overturning some of the advantages that Moscow had built for itself and its proxies into the negotiating process. At this point they no longer have a say in decentralization: “federalization” is definitely excluded, “special status” in the sense of the Minsk agreement also excluded, and local elections in the occupied territories now de-legitimized to the same degree as the Donetsk-Luhansk leaders themselves.

The constitutional amendments can shield Ukraine from external pressures to make those sorts of transactions with Russia’s proxies. Such transactions would become unconstitutional once the parliament enacts these amendments to the fundamental law. But, for that shield effect to materialize, Ukraine’s parliament must adopt the amended constitution by a two-thirds majority, requiring a disciplined vote by the parliamentary parties.