A history of one technology

The so-called bill on the reintegration of the occupied territories has been discussed for months, although in fact it envisages no algorithm for reclaiming these territories. Moreover, the very term “reintegration” is being used illegitimately in the public space, since no reintegration can take place without prior de-occupation. However, society is well-used to the confusion that is produced by politicians. Recently, presidential representative in the Verkhovna Rada Iryna Lutsenko said that over 2,000 (!) amendments had already been proposed to the bill, which is actually entitled “On the Peculiarities of the National Policy Regarding Ensuring the State Sovereignty of Ukraine over Temporarily Occupied Territories in Donetsk and Luhansk Oblasts.” According to her, not all of them correspond to the initial intentions of the bill. One such amendment is the proposal to break diplomatic relations with the Russian Federation due to it being an aggressor country. Ivan Vynnyk, an MP from the Petro Poroshenko Bloc’s faction, said it would be logical to break relations with Russia if we considered it an aggressor. “The law on the reintegration of the Donbas has Russia assigned the status of an aggressor country,” Vynnyk said in a comment, “and to maintain diplomatic relations with the Russian government would be a crime on the part of the Ukrainian Ministry of Foreign Affairs (MFA) if the bill passes.” However, according to Vynnyk himself, Poroshenko will not agree to making such an initiative into law. Poroshenko said as much on November 8 at a meeting with members of his bloc’s faction.

At the same time, member of the Committee on National Security and Defense, which leads the work on the bill, Andrii Teteruk reported on the amendment No. 595, which was introduced by the UKROP party. This amendment to the said bill, which should be considered by parliament on November 16, proposes to mandate the Cabinet of Ministers of Ukraine to break diplomatic relations with the Russian Federation within three months.

This subject has been raised repeatedly since the start of Russia’s aggression and the occupation of Ukrainian territories. However, according to some experts, breaking diplomatic relations would have been an appropriate step at the outset of the Russian aggression against Ukraine. Instead, the Ukrainian government has chosen a different approach, where the war is called an anti-terrorist operation (ATO), and relations with the occupier have the same hybrid character as the war itself.

In March 2016, the MFA issued the Position Statement of the MFA of Ukraine on the Draft Resolution of the Verkhovna Rada of Ukraine “On the Termination of Diplomatic Relations with the Russian Federation” (that is, there was already a similar initiative), which outlines the main negative consequences of such an act:

•  “Reaching a peaceful settlement by diplomatic means of the conflict in the east of Ukraine is impossible without bilateral and multilateral contacts with the Russian Federation. [Let us note that the Ukrainian government officially called the Russian Federation’s aggression against Ukraine “the conflict in the east of Ukraine,” thus further confusing and weakening the position of our state in war. – Author.]

•  “The possibility of protecting the legal rights and interests of legal and natural persons of Ukraine in the territory of the Russian Federation will be substantially reduced.

•  “Ensuring consular protection and providing necessary support to Ukrainian citizens illegally detained by the Russian authorities will be extremely difficult to achieve.

•  “Breaking diplomatic relations will make it impossible to resolve the existing bilateral disputes with the Russian Federation, among them the temporary occupation of the Autonomous Republic of Crimea [that is, the MFA of Ukraine officially treats the occupation of Ukrainian territories as a dispute between the two states. – Author].

•  “Ukraine will face the need to choose a mediator that would be acceptable for both countries [the MFA does not in any way mention in that context the countries that, according to the Budapest Memorandum, assumed the roles of guarantors of the territorial integrity and sovereignty of Ukraine. – Author].

•  “There is a real risk of negative consequences for the Ukrainian economy due to the possible collapse of bilateral trade [this item looks particularly dubious when coming from our foreign policy department against the background of thousands of deaths and lost territories. – Author].”

“UKRAINE HAS EFFECTIVELY FROZEN ITS DIPLOMATIC RELATIONS WITH THE RUSSIAN FEDERATION ANYWAY”

But, in the end, what can be gained from breaking diplomatic relations with the Russian Federation? What are risks, and how appropriate it would be?

“Breaking diplomatic relations is not the subject matter of the Law ‘On the Temporarily Occupied Territories of Ukraine.’ To regulate this issue in the abovementioned bill would serve no useful purpose and be inappropriate,” one of the authors of the bill “On De-Occupation,” international law expert Volodymyr VASYLENKO, commented for The Day. “Breaking diplomatic relations is a matter of international legal sanctions that an aggressed state can apply against an aggressor nation in order to force it to restore international law and order. Breaking diplomatic relations is only one of the types of sanctions that Ukraine has the right to apply to Russia as an aggressor country. In accordance with international customary law, a state that has suffered an act of aggression has the right to apply sanction measures against an aggressor country from the moment of the beginning of aggression, regardless of whether an internal legislative act that regulates sanctions exists in the state in question.”

“Back in August 2014, the Verkhovna Rada passed a law on sanctions and instituted a series of sanctions as measures of compulsion against Russia, but unfortunately the said law is imperfect, as it was prepared in a hurry and without the involvement of experts, and the sanction measures adopted by Ukraine were not consistent and systematic,” continued the expert. “For the most part, they are belated and uncoordinated with the sanctions of the international community. It has affected their effectiveness. The reason for this situation is not only the imperfection of the law on sanctions, but above all the lack of a systemic national policy on sanctions against Russia as an aggressor country. The general approaches to the development of such a policy were formulated in the recommendations of the parliamentary hearing on the topic ‘Current Issues of Foreign Policy of Ukraine,’ which took place last December, and they were approved by the Verkhovna Rada of Ukraine in May 2017. These recommendations may also serve as an instruction for the executive branch of Ukraine. The policy of sanctions, its directions and scale should be determined by the relevant executive authorities on the basis of the current law on sanctions. But in order for the sanctions to be effective, this law must be substantially improved.”

“In international practice, there have been many cases in which states reacted even to ordinary violations and unfriendly acts by breaking diplomatic relations. The act of aggression is an extremely dangerous international crime, and therefore Ukraine, against which Russia committed such an act of aggression, had the right to break diplomatic relations with it at the beginning of the aggression,” stressed Vasylenko. “Instead, Ukraine has chosen another approach. It has gradually lowered and practically frozen the level of diplomatic relations with the Russian Federation. Under such circumstances, the legislative regulation and the announcement of a complete break of diplomatic relations with the Russian Federation will do nothing in practical terms, but will create pretexts for Russian propaganda to interpret such actions as Ukraine-initiated deterioration of relations and unwillingness to reach a peaceful settlement.”

When asked by The Day whether the act of breaking diplomatic relations with the Russian Federation would be used as a pretext for abandoning the latter nation’s commitments to respect Ukraine’s borders, which, in particular, are reaffirmed in the Treaty on Friendship, Cooperation, and Partnership between Ukraine and the Russian Federation (the so-called Great Treaty), Vasylenko replied:

“Breaking diplomatic relations does not entail, in accordance with two Vienna Conventions – the Convention on Diplomatic Relations (1961) and the Convention on the Law of Treaties (1969) – an automatic termination of international treaties. But even should Ukraine, on its own initiative, terminate the Great Treaty, in which Russia appears as a strategic partner of Ukraine, as part of its international legal sanctions, even then, the article of this treaty which guarantees respect for the integrity of the state borders of Ukraine would not cease to apply. This is because international law has a provision according to which, in the event of cancellation of an international treaty by any party, such cancellation cannot affect the provisions covering national borders.”

“IN AND OF ITSELF, BREAKING DIPLOMATIC RELATIONS IS MEANINGLESS WITHOUT A SET OF OTHER MEASURES”

“When it comes to maintaining or breaking diplomatic relations, in fact, these fact and circumstance do not exist on their own,” Candidate of Legal Sciences, Senior Research Fellow at the Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine Mykola SIRYI commented for The Day. “The presence of formalized diplomatic relations is merely a fact accompanying those political processes that take place. Therefore, in and of itself, breaking diplomatic relations is meaningless without a set of other measures. There is no point in breaking diplomatic relations, but at the same time sitting still and doing nothing. That is, this act may be auxiliary, as an accompaniment to a particular set of actions, which may include breaking relations. Therefore, this country must shape this set of actions in defense of its interests and the protection of international law and order, which has been violated by the Russian Federation’s actions against us. This requires the mobilization of society, the mobilization of the international community, and only in the context of active actions it is appropriate to consider a change in the nature of international legal relations with a particular country. Otherwise, raising the question of breaking diplomatic relations is nothing more than political posturing and making political waves.”

“Today, every know-nothing MP wants to promote oneself using the issue of de-occupation, as the election is coming,” MP of the 5th-7th convocations of the Verkhovna Rada and chairman of the Power of Law NGO Andrii SENCHENKO told The Day. “I think that the government once again treats the public with its familiar disrespect, when it refers to that bill as the bill on reintegration. There is not a word there about it there. Now we have to give a clear assessment of what is happening in the Donbas, and recognize that we are dealing with the Russian occupation of Ukrainian territories. It is necessary to emphasize once again the fact of aggression, to entrench in the law that this aggression against Ukraine began on February 20, 2014, in order not to split the situation in the Donbas and Crimea. Also very importantly, we need to stop talking about the so-called ATO. There is no need to shove into this bill fantastic ideas that will sink it. Breaking diplomatic relations with the Russian Federation may be part of a whole set of measures.”

One of the possible consequences of breaking diplomatic relations may be the introduction of a visa regime. Senchenko replied: “I support introducing biometric control, because it will functionally help us to protect ourselves from the uncontrolled influx of people with false documents, etc. But if we simply introduce a visa regime instead, then we will have a huge problem. And I do not care at all about those who go to Russia as migrant labor. But I am really concerned about those who, for example, must visit occupied Crimea.”

So, we see that the issue of the de-occupation of Ukrainian territories is once again dragged into a wave of political statements that sound nice for those citizens who prefer to see simple solutions to complex issues. But the background to this is a four-year period of government vacillation regarding the national strategies of defense and restoration of sovereignty. Meanwhile, taken by itself, the radicalization of society through statements about the possibility of breaking diplomatic relations with the Russian Federation, or introduction of visas, with their implementation obviously impossible and useless, is more like a technology than a set of rational proposals. How then will these radical public sentiments, involving a penchant for rash actions, be used? Does not this seem to be a set of hybrid methods of manipulating the sentiments of one’s own people in the situation of hybrid aggression? In turn, the society should understand the consequences of proposals put forward to it by politicians who are often populists.