Transition in Ukraine: Why, How, and What Next?

Giuseppe Di Luccia is one of the CCSDD’s Washington-based research assistants for the Untitled
2013-2014 school year. In December 2013, Giuseppe obtained his MA in International Law and Organizations from Johns Hopkins SAIS. He previously received a Master’s in Law from
 University of Naples Federico II. Today Giuseppe joins us to elucidate the state of the current crisis in Ukraine, the future of Crimea, and his predictions for the upcoming presidential elections in the beleaguered former Soviet state. 

By Giuseppe Di Luccia

The approximately 800,000 protesters who occupied Kiev city hall and Independence Square (best known as Maidan Square, though Maidan itself means “square” in Ukrainian) last December were the main actors of what seems to be the final stage of the Ukrainian transition. The beginning of this process can be traced back to the Declaration of Independence from the Soviet Union delivered by the Ukrainian parliament, and confirmed on 1 December 1991 by the first democratic elections in Ukraine’s history. However, its status of buffer state makes the transitional picture much more complicated than it might look at first glance. The political debate within the “modern descendant” of the glorious Kievian Rus’ is, indeed, characterized by an entrenched socio-cultural dichotomy between pro-Russian eastern regions and pro-European western regions.

By and large, the pivotal moments in Ukrainian democratization pattern were reflected by its constitutional developments. First on 28 June 1996, in the late phase of the post-communist transition, the Verkhovna Rada (parliament) ratified the constitution, defining Ukraine as a unitary state with an autonomous region, Crimea. The fundamental text assigned the guidance of the country to the president, defining a semi-presidential form of government, which afforded him extensive executive and legislative powers. Second, on 8 December 2004, the constitution was amended following the 2004 political crisis, better known as the Orange Revolution. This constitutional revision, resulting from the unrest triggered by the 2004 presidential elections, which were broadly recognized as rigged, provided for the preservation of the semi-presidential form of government. However, the modifications approved by the parliament weakened the president’s powers. More specifically, the president could not nominate Ukraine’s prime minister anymore, as this became an exclusive task of the parliament. Likewise the president could not dismiss members of the Cabinet of Ukraine.

Next, in October 2010 a back step on the democratic path was taken when the Constitutional Court of Ukraine declared the 2004 amendments unconstitutional, thus reestablishing the previous regime. The decision came after the February 2010 presidential elections, which reported the slight victory of Mr. Yanucovich, this time evaluated free and fair by international electoral observers. Nonetheless, the ruling was highly controversial at the national and international level since it clearly appeared to be the result of pressures exerted by Yanucovich and his establishment on the judges tasked with the delicate decision.

Finally, the most recent unrest led to the 21 February 2014 parliament’s approval of a law reinstating the 2004 changes. Although the amendments procedure did not perfectly comply with the one provided for by the constitution (since Article 111 required the then-president Yanukovich’s sign of the text), it substantially responded to the demand for a more democratic system.

Simultaneously it must be noted that the current globalized international system is characterized by an increasingly stronger influence of foreign actors in other countries’ domestic affairs, as a consequence of more intertwined economic and political interests. Yet, unfortunately, with the advantages of this strengthened interdependence, it often comes the risk of transforming third states in the battlefield for the protection of external interests. In particular, the current transitional scenario in Ukraine is being undermined by disputes pitting the European Union and the United States against Russia. The principles of international law, which these powers claim to protect, are veils behind which geostrategic and economic considerations poorly hide as instruments to warrant their support for one side or to the other.

The spark that triggered the Euromaidan rebellion was, indeed, President Yanukovich’s withdrawal from an agreement of closer trade ties with the EU, instead moving towards closer cooperation with Russia. This second thought immediately set in motion a mass reaction against the corruption deep-rooted in government. Yanucovich’s policy was supported by Moscow’s enticing offer of a price decrease by a third for Russian gas supply and a $15 billion purchase of Ukrainian debt. However, Yanukovich’s authoritarian reaction against dissenters, which was carried out first by passing anti-protest laws and then by attempting to crackdown on demonstrators, led to his deposition. The removal from power was brought about by an escalation of violence that culminated on 20 February 2014, when Kiev saw its worst day of violence in 70 years, registering a death toll of approximately 100 victims. After the Ukrainian parliament had established an interim government led by leaders of the Euromaidan movement backed by the EU and the USA, notably Prime Minister Arseniy Yatsenyuk and interim President Olexander Turchynov, the assembly set new elections for 25 May 2014. In other words, the external intervention polarized the already radical standpoints and expanded the internal rift. Hence, external actors are inevitably affecting the transition process.

This tug of war revealed itself over Crimea’s dispute. Crimea’s claim for independence is generating a new “frozen conflict.” Once again the principle of territorial integrity, upheld by the pro-Western Ukrainians, clashes against the principle of self-rule, which Russia wants to defend in order to assure the safety of the ethnic Russian community residing in this region (it constitutes 58% of the local population). According to the official outcome, the 16 March 2014 local referendum on Crimea’s secession and annexation to Russia recorded an outstanding majority of ayes (97%) out of a significant turnout (80%).

In legal terms, the public consultation was illegal at both the international and national levels. In this particular case, self-determination does not justify an extreme solution like secession. In fact, it could be applied only if specific conditions exist, such as large-scale and persistent violations of basic individual human rights, unjust taking of a legitimate state’s territory or a state’s persistent violation of an intrastate autonomy agreement. Moreover, both doctrine and jurisprudence agree on the opinion that the will of people, albeit overwhelming in numbers, does not represent a sufficient condition to the creation of a new state. In order to be considered legally effective, the public consultation has to be legitimized by a norm included in a constitution or in an international treaty. In this respect, the Ukrainian constitution is crystal-clear in Art. 73: “Issues of altering the territory of Ukraine are resolved exclusively by an All-Ukrainian referendum” (emphasis added). Finally, the recognition from a significant number of states can assume a constitutive value as for the creation of a state, which performed a unilateral secession declaration. Bearing that in mind, the day before the referendum, the proposal of the resolution on the illegality of the public consultation in Crimea almost reached the general consensus within the Security Council, marking politically-isolated Russia as the only member state opposed to it.

Nonetheless, the absorption of Crimea into Russian Federation, albeit illegal, has continued, reaching a point of no return. After President Vladimir Putin signed legislation annexing the region, Crimean parliament adopted a new constitution on 11 April 2014, notwithstanding the strong objections of the Muslim Tatar minority. The text stipulates that the transition period will end on 1 January 2015. Despite Crimean lawmakers’ complacence for the speed of the integration process, recent history has taught us that hastily-compiled texts of constitutions could only lead to instability, especially when the constitution-making process is not inclusive. Institutions are rushing to conform to Russian law, with the Ukrainian state no longer in control and the banking system in disarray as Ukrainian and Western banks pull out of Crimea. However, for the time being it appears that the strategy of the fait accompli is paying Russia back.

Beyond these considerations, the political stalemate generated by Russian de facto occupation of Crimea is exacerbating the tensions: violence is escalating and spreading to Ukraine’s eastern regions. Likewise negotiations are compounded by the sanctions imposed by the USA and the EU on targeted Russian politicians and high officials, together with the economic retaliation from Moscow, which is using Ukrainian dependency on Russian gas supply as coercive tool to impose its will.

On 25 May 2014, Ukraine will meet its fate. The interim government will have the daunting task of guaranteeing fair and free elections in a scenario of turmoil and unrest – anything but easy to manage. All the eyes will be on them. There is a broad consensus that democracy should be more than just free and fair elections, but it cannot be less. Therefore, international electoral observation missions are indispensable to make sure that open and legitimate elections will pave the way to sustainable development and effective democracy as well as to peace, security, and conflict prevention.

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