On Sanctions, Donbass Passports, and International Law

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February 22, 2017 – Fort Russ – 

Rostislav Ishchenko, RIA Analytics – translated by J. Arnoldski – 

Ukrainian President Petro Poroshenko, returning from his disastrous trip to Munich for a conference on security issues, met on Tuesday in Kiev with the EU commissioner for humanitarian aid and crisis management, Christos Stylianides. Whether out of desire to smooth out the unpleasant impression of Ukraine’s being complete disregarded in Munich, or simply out of inertia, Poroshenko spoke about strengthening sanctions against Russia with this European official responsible for humanitarian assistance and ensuring human rights in crisis regions.

Poroshenko justified his position by saying that Russia’s recognition of documents from the Donetsk and Lugansk People’s Republics is a gross violation of the Minsk Agreements. 

Honestly speaking, I doubt that Kiev believes in the possibility of sanction pressure on Russia being heightened. It is just as unlikely that the Kiev government still believes in the arrival of European investments of IMF financing of Ukraine. They simply have to promise the nation some kind of “bright future.”

Besides greetings and farewells, Poroshenko had to say something at the talks. But what does a representative of Ukraine have to talk about if not sanctions or money? Ukraine has nothing to sell. It has nothing with which to buy something. Ukraine won’t be let into the EU and NATO. And they won’t be given a visa-free regime. And although the sanctions still exist, they won’t be strengthened. And although the IMF is not giving money, it still hasn’t finally refused to do so. But talks are being held nonetheless.

Failed sanctions 

Even if we assume that Russia was violating something, the EU and US are clearly not eager to impose new sanctions. Why? 

First of all, they don’t have any new excuses to strengthen sanctions. They could only infinitely reinforce sanctions over Crimea. But secondly, the US and EU have always used sanctions in a certain sequence. The objective of sanctions is destabilizing the economic situation inside the target country in order to force its leadership to capitulate to the West and unconditionally accept its demands. Or sanctions are used to prepare the ground for an invasion or coup. 

If it becomes clear that these goals are not being achieved, then the West starts looking for opportunities to lift sanctions. This was the case with Iran and China.

The same thing is now happening with the anti-Russian sanctions. In both Washington and Brussels, they perfectly understand that instead of destroying the Russian economy, finance, and destabilizing the social sphere, the sanctions have led to a dramatic consolidation of Russian society and accelerated the elimination of financial and economic dependence on the Western system. Now the West is faced not with strengthening sanctions, but the problem of withdrawing from the sanctions regime to save face.

The West was a bit too self-confident and, by imposing sanctions, demanded too much from Moscow (including returning Crimea to Ukraine). If the sanctions are lifted now without having won anything in return, then the whole world will see clearly that the West has lost this geopolitical confrontation to Russia. On the other hand, if they drag on the sanctions for too long, then an even more difficult situation could arise: you never know what other course Russia could take to force Ukraine to make peace in Donbass.

So now the EU and US are dodging each other and trying to nudge each other ahead. If the EU removes the sanctions first, then Washington could say that its allies have betrayed the cause of democracy, so there’s no need for the US to suffer alone.

If the US lifts sanctions first, then the EU will cite the example of the leader of the free world. Then it seems that sanctions will be running in place in for some time.

What does Russia’s recognition of DPR/LPR documents mean? 

Poroshenko’s justification of the need for new sanctions was extremely weak and, in the very least, contradictory. First of all, the reference to the Minsk Agreements doesn’t work. According to the agreements, nothing was said about DPR/LPR documents, so Russia had a free hand in this. There is no outright ban on the recognition of passports contained in the agreements.

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Secondly, Russia is a guarantor of the Minsk Agreements. The recognition of DPR/LPR documents affects Russia’s fulfillment of these duties only positively if at all. In the very least, it increases the consideration of the population permanently inhabiting the DPR and LPR and controls its movement.

Thirdly, Russia had de-facto already recognized the republic’s documents. The residents of the DPR/LPR whose Ukrainian passports were lost over the course of hostilities crossed the border. Youth finishing school had the opportunity to enter Russian universities with education certificates from the republics. The DPR and LPR also instituted independent birth, death, and marriage certificates as Ukraine declined to do so.

Since Ukraine did not protest against the recognition of DPR/LPR documents for more than a year, its protest on the institution of a legal framework for such is questionable.

Fourthly, international law allows for contact with authorities de facto controlling a territory even if you do not recognize them. Ukraine itself supports contacts with the DPR and LPR insofar as it signed the Minsk Agreements with them.

As a guarantor of the agreements’ implementation, Russia has even more of a right and obligation to support such contact. And the very fact of contact suggests that you recognize in one way or another the documents confirming the identity of the representatives of the territory with which you entering into contact. 

If Russia, France, Germany, and with some reservations, Ukraine recognize the documents confirming the authority of the leaders of the unrecognized republics (who, by the way, crossed two borders to arrive in Minsk), then why not recognize a document confirming the fact of a child’s birth in Donetsk in 2016? The fact that Ukraine refuses to issue a birth certificate does not mean that the fact of a birth is cancelled. 

Fifthly, Putin’s decree emphasizes that the recognition of DPR/LPR documents is temporary – until the implementation of the Minsk Agreements. Over the course of the agreements’ implementation, the ultimate status of the republics is to be determined as well as just what documents the population will use. Consequently, the decree was issued not in spite of, but in pursuance of the Minsk Agreements.

Who is responsible for protecting the population?  

Finally, there is another interesting collision here. Last year, on October 12th, Ukrainian media had quite a celebration. The Parliamentary Assembly of the Council of Europe adopted a resolution in which, inter alia, it was indicated in relation to Crimea, the DPR and LPR that “according to international law, Russia, which de-facto exercises control over these territories, is responsible for the protection of the population.” 

Kiev praised the resolution as an example of recognition of “Russian aggression.” However, every coin has two sides. Control over the territories does not necessarily mean their occupation. For example, the US controls the Kiev regime, but has not sent troops to Ukraine.

On the other hand, according to the same international law, the side controlling territories has the right not only to recognize local documents, but even to issue its own ID’s. After all, this has to be considered as part of fulfilling the task of defending the population.

Thus, in order to fulfill the obligations placed by PACE on it, Russia has at least two options: distribute its own passports (or some kind of temporary documents) or recognize (prior to the realization of Minsk) local documents. Moscow chose the most gentle way.

One can only imagine what would happen in Kiev if the distribution not of Russian passports, but of some other kind of temporary (but still Russian) documents substituting for passports was begun. Thus, from the point of view of international law, Russia’s position is invulnerable, and from the point of view of the Minsk Agreements it merely facilitates their implementation.

Since we all know that in modern politics even being absolutely right does not mean that the West won’t obstruct the law if it benefits it, it must be noted that the sanctions game has long since been recognized by the West as senseless and unprofitable. 

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Thus, it would be better if Poroshenko had asked Christos Stylianides for money for humanitarian projects. 

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