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FEDERALISM AND INTERNAL CONFLICTS

SERIES EDITORS: SOEREN KEIL · EVA MARIA BELSER

Decentralization, Regional
Diversity, and Conflict
The Case of Ukraine

Edited by
Hanna Shelest · Maryna Rabinovych
Federalism and Internal Conflicts

Series Editors
Soeren Keil
School of Psychology, Politics and Sociology
Canterbury Christ Church University
Canterbury, UK

Eva Maria Belser
University of Freiburg
Freiburg, Switzerland
This series engages in the discussions on federalism as a tool of internal
conflict resolution. Building on a growing body of literature on the use of
federalism and territorial autonomy to solve ethnic, cultural, linguistic and
identity conflicts, both in the West and in non-Western countries, this
global series assesses to what extent different forms of federalism and ter-
ritorial autonomy are being used as tools of conflict resolution and how
successful these approaches are.
We welcome proposals on theoretical debates, single case studies and
short comparative pieces covering topics such as:

–  Federalism and peace-making in contemporary intra-state conflicts


– The link between federalism and democratization in countries facing
intra-state conflict
–  Secessionism, separatism, self-determination and power-sharing
– Inter-group violence and the potential of federalism to transform
conflicts
– Successes and failures of federalism and other forms of territorial
autonomy in post-conflict countries
–  Federalism, decentralisation and resource conflicts
– Peace treaties, interim constitutions and permanent power sharing
arrangements
– The role of international actors in the promotion of federalism (and
other forms of territorial autonomy) as tools of internal conflict
resolution
–  Federalism and state-building
–  Federalism, democracy and minority protection

For further information on the series and to submit a proposal for con-
sideration, please get in touch with Ambra Finotello ambra.finotello@pal-
grave.com, or series editors Soeren Keil [email protected] and
Eva Maria Belser [email protected]

More information about this series at


http://www.palgrave.com/gp/series/15730
Hanna Shelest  •  Maryna Rabinovych
Editors

Decentralization,
Regional Diversity,
and Conflict
The Case of Ukraine
Editors
Hanna Shelest Maryna Rabinovych
Security Studies Programme Faculty of Law
Foreign Policy Council University of Hamburg
“Ukrainian Prism” Hamburg, Germany
Odesa / Kyiv, Ukraine

Federalism and Internal Conflicts


ISBN 978-3-030-41764-2    ISBN 978-3-030-41765-9 (eBook)
https://doi.org/10.1007/978-3-030-41765-9

© The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer
Nature Switzerland AG 2020
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The use of general descriptive names, registered names, trademarks, service marks, etc. in this
publication does not imply, even in the absence of a specific statement, that such names are
exempt from the relevant protective laws and regulations and therefore free for general use.
The publisher, the authors and the editors are safe to assume that the advice and information
in this book are believed to be true and accurate at the date of publication. Neither the
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publisher remains neutral with regard to jurisdictional claims in published maps and
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Switzerland AG.
The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland
Preface

There has been an increase in the number of ethnic, cultural, linguistic,


and identity conflicts within states around the globe, often marked by
extensive foreign support for one of the conflicting parties. Eventually,
such conflicts tend to result in establishment of quasi- or de facto states,
experiencing the challenges of non-recognition, isolationism, economic
downturn, and emigration. Territorial self-government arrangements
(TSGs) represent a frequently used tool in the management of different
types of conflict, yet, little evidence exists about TSGs’ application in the
context of extensive foreign support for one or several conflicting parties.
The ongoing “crisis in and around Ukraine”, encompassing the Russian
Federation’s illegal annexation of Crimea in 2014 and the armed conflict
in the east of the country, makes Ukraine an insightful case to unpack the
complex business of the use of decentralization as a conflict-management
tool. Hence, this book revolves around four themes: first, exploring the
substance of the regional diversity in Ukraine and government policies
thereto; second, critically examining legal definitions of the conflict and
regarding government-uncontrolled territories; thirdly, assessing Ukraine’s
experience of using decentralization as a conflict-resolution tool, and,
finally, considering the nexus between decentralization reform and the
processes of democratization, modernization, and European integration
in Ukraine. Based on the experience of Ukraine, the study reveals a hand-
ful of risks that top–bottom or internationally imposed TSG arrangements
may bring under the circumstances of extensive foreign support for one of
the sides to the conflict.

v
vi  PREFACE

This publication will be of key interest to scholars and students of con-


flict studies, federalism and Eastern European Studies, and, more broadly,
political science, sociology, law and international relations.

Canterbury, UK Soeren Keil


Freiburg, Switzerland  Eva Maria Belser
Contents

1 Introduction: Regional Diversity, Decentralization, and


Conflict in and around Ukraine1
Maryna Rabinovych and Hanna Shelest

Part I Regional Diversity in Ukraine and Its Accommodation


in Government Policies15

2 Regionalism in Ukraine: Historic Evolution, Regional


Claim-Making, and Centre–Periphery Conflict Resolution17
Oksana Myshlovska

3 Navigating Ethnopolitical Disputes: Ukraine’s


Constitutional Court in the Tug-of-War over Language49
Andrii Nekoliak and Vello Pettai

4 Crimean Tatars and the Question of National and Ethnic


Belonging in Ukraine81
Alina Zubkovych

Part II The “Crisis In and Around Ukraine”, Occupied


Territories and their Reintegration: The Legal
Dimension105

vii
viii  CONTENTS

5 The Domestic Dimension of Defining Uncontrolled


Territories and Its Value for Conflict Transformation in
Moldova, Georgia, and Ukraine107
Maryna Rabinovych

6 The Reintegration of Donbas Through Reconstruction


and Accountability. An International Law Perspective145
Tomasz Lachowski

Part III Federalization / Decentralization as a Tool


of Conflict Resolution: Discursive and Foreign
Policy Perspectives185

7 Three Faces of Federalism in the Foreign Policy: Russian


and German Approaches to the “Ukraine Crisis”187
Nadiia Koval

8 The Dark Side of Decentralization Reform in Ukraine:


Deterring or Facilitating Russia-Sponsored Separatism?211
Jaroslava Barbieri

Part IV Decentralization, Its Perceptions and Linkage to


Democratization, Modernization, and European
Integration of Ukraine257

9 Decentralization and a Risk of Local Elite


Capture in Ukraine259
Max Bader

10 Signs of Progress: Local Democracy Developments in


Ukrainian Cities283
Aadne Aasland and Oleksii Lyska

11 Decentralization Reform: An Effective Vehicle for


Modernization and Democratization in Ukraine?311
Olga Oleinikova
 CONTENTS  ix

12 Decentralization in Ukraine and Bottom-Up European


Integration339
Anne Pintsch

13 Conclusions and Directions for Further Research365


Maryna Rabinovych and Hanna Shelest

Index371
Notes on Contributors

Aadne  Aasland  is a  Senior Researcher at the Norwegian Institute for


Urban and Regional Research (NIBR) at Oslo Metropolitan University.
His research interests include social inclusion and exclusion, ethnicity
issues, migration, and local governance. He has been in charge of
several large-scale international projects, for example in Russia, the
Baltic States, and Ukraine. Since 2008 he has been leading a research
part of the project on local government reform and local democracy
in Ukraine in collaboration with the Association of Ukrainian Cities
and the Norwegian Association of Local and Regional Authorities.
He currently leads the ARDU project studying the accommodation of
ethnocultural diversity in Ukrainian border regions.
Max Bader  is an Assistant Professor at the Department of Russian and
Eurasian Studies at Leiden University, the Netherlands. His research inter-
ests include elections, corruption, authoritarian politics, and democratiza-
tion, with a regional focus on post-Soviet Eurasia. He has published widely
in the area of comparative politics in journals such as Post-Soviet Affairs,
Democratization, Europe–Asia Studies, East European Politics, and Russian
Politics.
Jaroslava Barbieri  is a PhD candidate in Russian and Eastern European
Studies at the Department of Political Science and International Studies,
University of Birmingham, the United Kingdom. Her research interests
include Russian foreign and security policy, Russian disinformation tactics,
and influence networks in the EU and its neighborhood, Ukraine’s for-
eign and security policy, EU relations with Eastern Partnership (EaP)

xi
xii  NOTES ON CONTRIBUTORS

countries, and the politics of memory in the post-Soviet region. She has
collaborated in a research assistant capacity with the Russia and Eurasia
Programme at Chatham House, the Conflict Studies Research Centre, the
Arena Project at the LSE’s Institute of Global Affairs, and One Philosophy
Group. She was also a research associate for EU-STRAT, an EU-funded
project on the links between the EU and EaP countries.
Nadiia Koval  leads Central Europe Studies at the Foreign Policy Council
“Ukrainian Prism” and lectures on European integration at the Kyiv
School of Economics. She has previously served as a Head of the Centre
for International Studies at the Diplomatic Academy of Ukraine and
worked as an analyst in foreign policy and security issues at the
National Institute for Strategic Studies and the Ukrainian Institute
for the Future. Her research interests include post-conflict settlement and
reconciliation policies and Ukraine’s foreign policy towards Central and
Western European states.
Tomasz  Lachowski is a researcher in the Faculty of Law and
Administration, University of Łódź, Poland. His PhD dissertation was
devoted to the issue of “Transitional Justice in International Law: With
Special Reference to Victims’ Justice (Right to Justice, Right to Truth and
Right to Reparation)”. Due to the interdisciplinary character of the
research, in addition to the basic legal methodology, he conducted his
field research in numerous post-violence states coming to terms with his-
torical injustices, such as Bangladesh, Bosnia and Herzegovina, the
Caucasus region (Georgia, Armenia), Egypt, Moldova, Mozambique,
and Ukraine. His current research focuses on the application of tran-
sitional justice in ongoing conflicts and post-conflict reconstruction,
with special emphasis on post-Maidan Ukraine and the question of reinte-
gration of Donbas.
Oleksii Lyska  is a regional coordinator at the German Corporation for
International Cooperation (GIZ). As a researcher, he was affiliated with
the Association of Ukrainian Cities within the framework of the Ukrainian–
Norwegian project “Evidence-Based Local Government Policy
Development in Ukraine.” Previously, he worked as a Business Analyst for
USAID / Chemonics International Inc. in the Ukraine Confidence
Building Initiative. And prior to this, he was a  Head of Analytics and
Presentation Division in the Department for Improvement of Regional
Competitiveness of Kharkiv Regional State Administration and an Associate
  NOTES ON CONTRIBUTORS  xiii

Professor at the Simon Kuznets Kharkiv National University of Economics.


His research interests include public participation in government, involve-
ment of local communities in decision-making, administrative services,
and decentralization in Ukraine.
Oksana  Myshlovska  is a researcher at the University of Bern and the
Graduate Institute in Geneva, Switzerland. She contributes to a project
that focuses on a role of civil society in conflict transformation and recon-
ciliation in relation to the history and memory in Ukraine, Chechnya, and
Georgia. In 2017–2018, she was a  principal investigator for the
Institute of Development Studies (Sussex University) and the Swiss
Development Agency contributing to “A Learning Journey on Governance
in Fragile and Conflict-Affected Contexts.” Previously, she was a researcher
at the University of St. Gallen and the Global Studies Institute in Geneva.
Her research is at the intersection of memory studies, history, transitional
justice, and conflict transformation in Eastern Europe, with a focus on
Ukraine.
Andrii  Nekoliak  is a PhD candidate at the Skytte Institute of Political
Studies, University of Tartu, Estonia, focusing on memory politics and
law in Poland, Ukraine, and Estonia. He holds master’s degrees in law
(2014) and in  democracy and governance (2017) from Yaroslav
Mudryi National Law University in Ukraine and the University of Tartu,
respectively.
Olga Oleinikova  is a Lecturer and Director of the Ukraine Democracy
Initiative in the School of Communication, University of Technology
Sydney, Australia. She is a winner of the “Forbes 30 Under 30” award and
a finalist for the Australia’s Council of Humanities, Arts, and Social
Sciences Future Leader Award. She is an author of Achiever or Survivor?
Life Strategies of Migrants from Crisis Regimes (2020) and  an editor of
Democracy, Diaspora, Territory: Europe and Cross-Border Politics (2019).
She has published articles and media commentaries on democracy in
Ukraine, migration from Europe to Asia-Pacific, the problems of transi-
tion in Eastern Europe, transnationalism, and globalization.
Vello Pettai  is a Director of the European Centre for Minority Issues in
Flensburg, Germany. He holds an additional appointment as a Professor of
Comparative Politics at the University of Tartu, Estonia. For more than
twenty years he has been publishing on ethnic politics in the Baltic states,
including the effect of constitutional court decisions on minority issues in
xiv  NOTES ON CONTRIBUTORS

Estonia and Latvia in the East European Constitutional Review. He is


an author of Varieties of Democracy in Post-Communist Europe (forthcoming
in the BASEES/Routledge Series on Russian and East European Politics).
Anne  Pintsch  is an  Associate Professor at the Department of Political
Science and Management at the University of Agder, Norway. Her previ-
ous positions include an  Interim Professor for Empirical Democracy
Research at the University of Mannheim, a  Project Director at the
Mannheim Centre for European Social Research (MZES), Germany, and
a post-doctoral fellow at Gent University, Belgium. Her research focuses
on external democracy promotion, international organizations with a
focus on the European Union, and political transformation in Central
and Eastern Europe. She has published extensively on political devel-
opments in Ukraine, including the book Democracy Promotion by
Functional Cooperation: The European Union and its Neighbourhood (with
T.  Freyburg, S.  Lavenex, F.  Schimmelfennig, T.  Skripka, 2015) and
articles in the Journal of European Public Policy, Democratization and
Eurasian Geography and Economics.
Maryna Rabinovych  holds a PhD in Legal Studies from the University
of Hamburg, Germany. During her PhD studies, she held visiting posi-
tions at the Aristotle University of Thessaloniki, the University of Vienna,
and the National Autonomous University of Mexico. Prior to this, she was
an expert on regional development with the German Corporation for
International Development (GIZ) in Ukraine. Her research interests
include EU external relations and their legal regulation, the EU
Neighbourhood Policy, EU–Ukraine relations, as well as political and
legal dynamics in Eastern Europe and Ukraine.
Hanna  Shelest is a Director of Security Programmes  at the Foreign
Policy Council “Ukrainian Prism” and an Editor-in-chief at UA: Ukraine
Analytica. Prior to this, she had served for more than 10 years as a Senior
Researcher at the National Institute for Strategic Studies under the
President of Ukraine. In 2014, she served as a  Visiting Research
Fellow at the NATO Defense College in Rome. She was also an
adviser of the working group preparing the Ukrainian Navy Strategy
2035. Her research interests include conflict resolution, security and
cooperation in the wider Black Sea Region and the Middle East, and the
foreign policy of Ukraine.
  NOTES ON CONTRIBUTORS  xv

Alina  Zubkovych is currently a  Deputy Director of the Ukrainian


Institute of Sweden. She was a post-doctoral research fellow at the Centre
for Baltic and East European Studies (CBEES) at Södertorn University.
She is an author of Dealing with the Yugoslav Past: Exhibition Reflections
in the Successor States (2017). Her current research focuses on the identi-
fication processes in post-Maidan Ukraine. She conducted interviews with
Crimean Tatars who moved to mainland Ukraine after the annexation of
Crimea, and also studies how the image of Crimea is changing today.
CHAPTER 1

Introduction: Regional Diversity,


Decentralization, and Conflict in and around
Ukraine

Maryna Rabinovych and Hanna Shelest

Introduction
A decrease in interstate wars (Holsti 2016, 43) is one of the trends shaping
the post-World War II global security environment. There has, however,
been an increase in ethnic, cultural, linguistic, and identity conflicts within
states, often involving an establishment of the “breakaway” or “de-facto”
states, and external (foreign) “support” to the parties of such conflicts,
reinforcing polarization (Dupuy and Rustad 2018). Hence, third-state
ideational, political, financial, and military “support” to the parties to
intrastate conflicts, including the administration of de-facto states, gives
rise to the emergence of complex conflict constellations, embracing the
intra- and interstate aspects.

M. Rabinovych (*)
University of Hamburg, Hamburg, Germany
H. Shelest
Foreign Policy Council “Ukrainian Prism”, Odesa/Kyiv, Ukraine

© The Author(s) 2020 1


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_1
2  M. RABINOVYCH AND H. SHELEST

Territorial self-governance arrangements (TSG) (federalization and dif-


ferent forms of decentralization) have been widely applied as a tool of
managing intrastate conflicts rooted in interethnic, cultural, linguistic, and
identity-related cleavages (e.g. federalization of Bosnia and Herzegovina,
re-federalization in Nigeria, decentralization in Uganda and Sri Lanka)
(Wolff 2013). Despite the fact that the vast majority of proposed conflict
settlements for societies, experiencing such conflicts, involve some form of
TSG, there is no consensus in scholarship whether the application of TSG,
in general, or of particular governance arrangements under this umbrella
term, allow for successful conflict resolution and promote stability
(Martínez-Herrera 2010; Wolff 2011, 2013; Keil 2012; Breen 2018;
Walsch 2018). The variation in the results of TSG application in different
conflict settings is determined by numerous factors, including peculiarities
of a particular conflict, involvement of third parties and the design of con-
flict settlement (Wolff 2010). Similar arguments can be made about
decentralization, which may both decrease an intrastate conflict through
bringing governments closer to the people, and indirectly encourage it
through supporting the growth of regional parties (Brancatti 2006).
Notably, while there are studies systematically examining the relationship
between the duration of intrastate conflicts and third-party involvement,
virtually no attention has been paid to the functioning of TSG, in general,
and decentralization, in particular, under the circumstances of conflict
constellations, involving both the intra- and interstate dimensions.
Subsequently, unpacking the complexity pertaining to the intrastate
divides and third-party involvement, as well as the potential of TSG and
decentralization as conflict resolution tools, requires an in-detail insight
into the historical roots of divides of a particular society, existing power-­
sharing arrangements, and a discursive and legal framing of the third-party
involvement.
The case of Ukraine is highly illustrative for research into the scope of
the problem outlined above: it features a historical constitution of ethni-
cally, linguistically, and culturally diverse societies; power-sharing and an
accommodation of diversity in state policies; a complexity of conflict,
involving the intra- and interstate dimensions; foreign support for de-facto
states’ administrations; and, finally, an application of decentralization as a
tool to settle the conflict with extensive third-party participation. As
underlined by Oksana Myshlovska, an author of “Regionalism in Ukraine:
Historic Evolution, Regional Claim-Making and Centre-Periphery
Conflict Resolution”, Chap. 2 in this volume, “throughout history the
1  INTRODUCTION: REGIONAL DIVERSITY, DECENTRALIZATION…  3

present territory of Ukraine has been an arena of competing influences of


global, regional and local powers. In particular, different territories com-
prising contemporary Ukraine, used to belong to, among others, the
Kyivan Rus (ninth to thirteenth century), the kingdom of Galicia-Volhynia
(twelfth to fourteenth century), the Grand Duchy (Principality) of
Lithuania (fourteenth to the end of the eighteenth century), the Polish-­
Lithuanian Commonwealth (sixteenth to eighteenth century), the Russian
Empire (end of the eighteenth to early twentieth century), the Austro-­
Hungarian Empire (nineteenth to early twentieth century) and the Soviet
Union (twentieth century). Consequently, Ukrainian regions differ in
terms of ethnic composition, national and regional identities, language
identities and practices, religious affiliation, beliefs and practices, and for-
eign policy attitudes. Until the highly controversial presidential campaign
of 2004, the problem of diversity received relatively modest attention
from policy makers and scholars, despite differences that led a notable
observer of Ukraine to refer to a “deeply divided society with a pro-
nounced pattern of regional diversity” (Wilson 1997, 1). Moreover, until
the launch of the decentralization reform in 2014, Ukraine had been a
centralized state with few competencies ceded to local territorial self-­
government units. An important feature, characterizing the power-sharing
arrangements in post-independence Ukraine, has been the legacy of neo-­
patrimonialism, combining strong presidential power, clientelism (the
exchange of goods and services for political support) and regime corrup-
tion (the use of public resources for private purposes or political support)
(Bratton and van den Walle 1997). Under such circumstances, the devel-
opment of local self-government with an account of multi-aspect diversity
had been impeded by an array of factors, such as the lack of public debate
on diversity and its reflection in state policies; the proliferation of simpli-
fied constructs of diversity, such as the “Two Ukraines” concept of
Riabchuk (2002), explaining Ukraine’s macro-level division into the pro-­
European Ukrainian-speaking west and center and the pro-Russian south-
east; centralized management of resources, reflected in the limited
competencies exercised by bodies of local self-government; and the
absence of transparency of resource distribution among local territorial
self-government units (hromadas).
The annexation of Crimea by the Russian Federation in March 2014,
allegedly supported by more than 80 percent of voters, and the outbreak
of violent conflict in eastern Ukraine, gave new impetus to the debate on
regional diversity. In particular, a considerable number of surveys and
4  M. RABINOVYCH AND H. SHELEST

academic contributions have aimed at offering a detailed analysis of the


substance of ethnic, religious, linguistic, and cultural diversity in Ukraine,
Ukrainians’ geopolitical and foreign policy preferences, and their dynam-
ics over the period since the 2013 Euromaidan1 Revolution (the
“Revolution of Dignity”) to the present era. Furthermore, given the
Russian Federation’s explicitly unlawful annexation of Crimea and its
extensive support to “rebels” in eastern Ukraine and, later on, its leader-
ship of the self-proclaimed so-called Donetsk and Luhansk People’s
Republics (“DPR” and “LPR”), the “crisis in and around Ukraine” has
provoked intense discussion on the interplay of the intra- and interstate
factors triggering the conflict, and its qualification under international law.
Whilst the “reunification of Crimea with Russia” is widely acknowledged
to violate the foundations of public international law, qualifying the situa-
tion in eastern Ukraine under international law is a more complex task. In
this vein, it is challenging to develop an objective and in-depth under-
standing of the “distribution of roles” between diversity and its misman-
agement by Ukrainian authorities and Russia’s extensive involvement in
the proliferation of secessionist beliefs, actions and movements in eastern
Ukraine that eventually led to the establishment of the DPR and the LPR.
Reaffirming its “full support for the sovereignty, independence, and
territorial integrity of Ukraine”, the UN Security Council has been very
cautious about either mentioning the parties to the conflict or qualifying
it (UN Security Council 2014, 2015, 2018). Similarly, the definition put
forward by the Organization for Security and Cooperation in Europe
(OSCE) of the “crisis in and around Ukraine” only implies third-party
involvement by incorporating the “around” dimension (OSCE 2015). So
far, only the International Criminal Court has pointed to the parallel exis-
tence of “direct military engagement between the respective armed forces
of the Russian Federation and Ukraine” and “the non-international armed
conflict” in eastern Ukraine (International Criminal Court 2018, paras.
72–73). Looking ahead, it should be mentioned that modern scholarship
offers different conceptualizations of the conflict in Ukraine, ranging from
a “separatist war”/ civil conflict/ civil war (Katchanovski 2016; Wilson
2016) to the Ukraine–Russia “hybrid” conflict (Kofman and Rojanski

1
 Euromaidan was a wave of demonstrations sparked by the Ukrainian government’s deci-
sion to suspend the signing of an association agreement with the European Union. They
started on November 21, 2013 in Maidan Nezalezhnosti (Independence Square) in Kiev and
eventually led to the 2014 Ukrainian revolution.
1  INTRODUCTION: REGIONAL DIVERSITY, DECENTRALIZATION…  5

2015; Lanoszka 2016), challenging the post-Cold War world order


(Allison 2014). Notwithstanding the above, Russia’s support for separatist
forces in Donbas is a factor, seldom contested even by the proponents of
the so-called “civil war” approach. Thus, the challenge of establishing
causal links between the intrastate and interstate dimensions of the conflict
makes Ukraine an appealing case for those interested in researching and
qualifying conflicts marked by strong external support for one of the
parties.
In view of the above mentioned complexity, Ukraine’s crisis response
strategy has been comprised of three key axes: security operations, such as
the Anti-Terrorist Operation (ATO) (2014–2018), led by the Security
Services of Ukraine (SBU), and, later on the Joint Forces Operation under
the leadership of the military (2018–ongoing) (Verkhovna Rada 2018);
diplomatic efforts, on both building international coalition against the
Russian Aggression and pertaining to the Minsk Agreements and their
implementation; and domestic reforms, including inter alia the decentral-
ization reform.
Launched in April 2014, shortly after the illegal annexation of Crimea
by the Russian Federation and the outbreak of violence in eastern Ukraine,
the reform of decentralization primarily aims at transferring a significant
share of authority, resources, and responsibility to local self-government
bodies. The effective fulfilment of this umbrella goal has inter alia encom-
passed the amalgamation of hromadas, aimed at strengthening their capac-
ity, an advancement of direct democracy at the local level, and a reform of
regional policies (e.g. state financing for infrastructure projects at regional
level) (Decentralization 2019). While the reform was much appreciated by
both Ukrainian stakeholders at different levels and foreign donors, little
research has been done on its possible role in conflict resolution and actual
effectiveness for conflict management. Hence exploring the role of ongo-
ing decentralization reform in conflict resolution is of high value for the
implementation of the Minsk II Agreements and the package of measures
for its implementation that stress decentralization as a core component of
the political settlement. Thus, the application of decentralization as a form
of territorial self-governance arrangement in Ukraine under extensive
external involvement and the, so far, limited insights into its role in con-
flict resolution is the last, but not least, reason to focus on the case of
Ukraine in terms of the “Federalism and Internal Conflict” series.
6  M. RABINOVYCH AND H. SHELEST

Objectives and Structure
In view of the above, this volume focuses on four themes. Firstly, it explores
the matter of regional diversity in Ukraine and government policies thereto
prior to the outbreak of the “crisis in and around Ukraine”2 and soon
thereafter. The second part of the volume zooms in on the legal perspec-
tives pertaining to the conflict and government-controlled territories,
stressing the securitization of regional diversity issues. Thirdly, the volume
assesses an application of the decentralization reform as a means of conflict
resolution. Finally, yet importantly, it considers decentralization’s broader
effects with respect to Ukraine’s modernization, democratization, and
European integration. Consequently, the book is divided into four parts.

Part I: Regional Diversity in Ukraine and its Accommodation


in Government Policies
The three chapters in Part I revolve around the problem of regional diver-
sity in Ukraine and how it had reflected in governmental policies prior to
the outbreak of the “crisis in and around Ukraine” and shortly thereafter.
In sum, the historical, sociological, and legal perspectives, embraced by
Part I, reveal that, notwithstanding the multi-aspect nature of diversity in
Ukraine, there had been no unified strategy to accommodate it until the
launch of decentralization reform in 2014. Prior to this there had been
attempts to apply asymmetric state structures, subsidies and budget dis-
bursements, and special economic zones, which were functioning differ-
ently in different areas of the country. Moreover, an overview of surveys
and academic contributions, commissioned prior to the Revolution of
Dignity, demonstrated that this diversity was hardly conceptualized as an
actual or potential source of a conflict. The Revolution of Dignity, followed
by the Russian Federation’s illegal annexation of Crimea and the outbreak
of the conflict in eastern Ukraine seem to have played a threefold role with
regard to the regional diversity and its accommodation. First of all, these
events exerted considerable impact on the politics of belonging in Ukraine,
with a category of “being Ukrainian” defined beyond strictly ethnonational
terms. Secondly, they fueled the debate on regional diversity, and national,

2
 Here and after we use official terminology recognized and used by international organi-
zations, such as the Organization for Security and Cooperation in Europe. See for example:
https://www.osce.org/ukrainecrisis.
1  INTRODUCTION: REGIONAL DIVERSITY, DECENTRALIZATION…  7

language, and civic identity in Ukraine. In this light, the ongoing reforms
have already addressed some of the obstacles to the accommodation of
regional diversity, such as the non-transparent distribution of state funds,
through establishing new budgetary and fiscal rules.
In Chap. 2, Oksana Myshlovska presents an overview of the historical
constitution of Ukraine’s territory, focusing on roots and the substance of
regional cleavages and differences. She also offers a crucial analysis of the
nature of Ukraine’s political regime, center–periphery relations, and
regional politics as factors that may contribute to the emergence of a vio-
lent conflict, but also can be consonant with objectives of conflict resolu-
tion and peace-building. Notably, in the first part of her analysis,
Myshlovska does not only shed light on the historical processes that deter-
mined the regional diversity of contemporary Ukraine, but delves into
interpretations of such a diversity, thus, enabling a reader to follow land-
mark turns in the diversity discourse in Ukraine. The chapter points to the
excessive concentration of competencies at the central level and the non-­
transparent distribution of funds among regions and local communities as
crucial failings of pre-Euromaidan center-periphery relations. The author
finds these structural deficiencies to have been effectively addressed by
ongoing decentralization reform. Notwithstanding the post-Euromaidan
increase in self-identification with Ukrainian citizenship and a high level of
popular support for decentralization, Myshlovska identifies regional dif-
ferences in terms of historical memories and attitudes to Euromaidan as “a
source of vulnerability to future regional mobilizations.”
In Chap. 3, Andrii Nekoliak and Vello Pettai contribute to our under-
standing of the regional diversity of Ukraine by exploring a language issue
and language policy in Ukraine, with a particular focus on the practice of
the Constitutional Court of Ukraine in cases involving the state language
policy and legislation before 2014. The added value of this contribution
lies in its insight into the status and institutionalization of Ukrainian and
Russian languages in Ukraine, being one of few contributions that deal
with a judicial dimension of language politics in Ukraine. The chapter
demonstrates that, even though the Constitutional Court of Ukraine is
fairly accessible across a number of eligible appellants, it has been pre-
dominantly used by members of parliament in order to strengthen the
position of Ukrainian as a state language, inter alia, by calling for thwart-
ing alternative legislation that would favor the rights of Russian-language
users. A close look into the court’s reasoning in language-related cases
enables Nekoliak and Pettai to highlight the contentious nature of the
8  M. RABINOVYCH AND H. SHELEST

language issue in Ukraine, as well as to label the court as a “minimalist”


institution, aspiring to uphold parliament’s prerogative to regulate the use
of language in the state.
In Chap. 4, Alina Zubkovych highlights the dynamics of national and
ethnic identifications of Crimean Tatars in the mainland, with an emphasis
on changes that occurred as a consequence of the illegal annexation of
Crimea. Zubkovych stresses the novelty of the Crimean Tatars’ forced
extensive exodus from Crimea to mainland Ukraine and seeks to distin-
guish its implications for their national belonging. Based on in-depth
interviews with Crimean Tatars in Kyiv and Lviv, the chapter stresses a
broadening of the category of “being Ukrainian” from the solely ethnon-
ationalist to one incorporating citizenship and a language as factors con-
stitutive of one’s understanding of belonging. Agreeing with Myshlovska,
Zubkovych affirms an increase in her researched group’s self-identification
as Ukrainians, despite a frequency of the multiplication of performed iden-
tities through language use. Last but not least, Zubkovych stresses termi-
nological ambiguities, shaping the studies of the identity in contemporary
Ukraine.

Part II: The “Crisis In and Around Ukraine”, Occupied


Territories and their Reintegration: The Legal Dimension
This part of the volume explores the legal perspectives pertaining to the
ongoing “crisis in and around Ukraine,” occupied territories and their
potential reintegration, drawing parallels to the cases of Transnistria,
South Ossetia, and Abkhazia. Striving to analyze the legislation, relevant
for understanding a nature of the conflict and peculiarities of the securiti-
zation of regional diversity in the Ukrainian context, we opted to utilize
the OSCE’s term “crisis in and around Ukraine” for two reasons. Firstly,
it allows us to promote the consistency of our collaborative work. Secondly,
even though there is a broad consensus on the Russian Federation’s
involvement in the conflict, we see the phrase “crisis in and around
Ukraine” as the term accepted by the international community, thus eradi-
cating a bias factor, and also allowing one to analyze the situation in all
regions of Ukraine within its internationally recognized borders. At the
same time, subject to relevant substantiation, we did not limit the authors’
freedom to apply other terms, such as a “hybrid war” or the Russian
aggression, especially in the context of further discussion on the effects of
decentralization and its implications for conflict resolution.
1  INTRODUCTION: REGIONAL DIVERSITY, DECENTRALIZATION…  9

Chapter 5, by Maryna Rabinovych, offers a comparative analysis of the


domestic regulations concerning uncontrolled territories in Moldova,
Georgia, and Ukraine. The chapter demonstrates striking differences in
approaches in Moldovan and Georgian legislation in determining the legal
status of the uncontrolled territories, largely consonant with the dynamics of
international efforts to settle respective conflicts. Subsequently, Rabinovych
characterizes Ukrainian domestic legislation concerning the uncontrolled
territories as “hybrid” one, applying “soft”, conflict-­transformation-­directed
and “hard,” reintegration-oriented legislation simultaneously. Based on her
analysis of the negotiation of the notorious “Steinmeier Formula,”3 the
author points to a significant role of Ukrainian domestic legislation in inter-
national conflict resolution efforts. Overall, underlining the multiplicity of
nexuses between the domestic dimension of defining uncontrolled territories
and international conflict resolution efforts, Rabinovych suggests focusing
researchers’ attention on the domestic legislation of states that are deprived
of effective control over some of their territories.
In Chap. 6, Tomasz Lachowski substantiates a definition of Russia’s
involvement in the conflict in eastern Ukraine as a crime of aggression
under international law, and explores the international law pathways the
government of Ukraine can utilize to promote the reintegration of occu-
pied territories. Whilst Russia’s support for separatists and administrations
of the so-called Donetsk People’s Republic (DPR) and Luhansk People’s
Republic (LPR) has already been examined by scholars from the critical
international law perspective, the added value of Lachowski’s contribution
lies in its application of reintegration-oriented peace-building and transi-
tional justice perspectives. In this vein, Lachowski emphasizes the impor-
tance of regional positions in the reintegration process, given the
securitization of regional differences in the DPR/LPR narratives.

Part III: Federalization/Decentralization as a Tool of Conflict


Resolution. Discursive and Foreign Policy Perspectives
The chapters in this part engage with the core concerns of the “Federalism
and Internal Conflict” series, namely, the extent to which and the circum-
stances under which different forms of TSG can serve the objectives of

3
 The Steinmeier Formula calls for elections in the separatist-held territories under
Ukrainian legislation and the supervision of the OSCE. If the OSCE accepts that balloting
was free and fair, then self-governing status for the territories will be introduced.
Representatives of Ukraine, Russia, DPR, LPR, and the OSCE signed it on October 1, 2016.
10  M. RABINOVYCH AND H. SHELEST

conflict resolution. Here, authors substantiate two arguments to make in


the broader debate on TSGs as a conflict resolution tool. Firstly, It is
argued that, in the case of Ukraine, Russia-sponsored scenarios of federal-
ization, and even Ukrainian-led decentralization reform (if misinterpreted)
bear considerable security risks for Ukraine. Secondly, it is argued that
through implementing part of the Minsk Agreements the reform of decen-
tralization in Ukraine has not (so far) proven to be an effective tool of
conflict resolution or conflict management. In the future, the validity of
this statement will, however, depend on outcomes of current peace-­
oriented policies conducted by President Volodymyr Zelenskyy—inter
alia, new rounds of “Normandy format” negotiations or adoption of new
“special status” legislation.
In Chap. 7, Nadiia Koval considers a discursive use of federalism as
applied to the conflict in eastern Ukraine in the official discourses of Russia
and Germany, with the former extensively supporting pro-Russian forces
in Eastern Ukraine, and both countries being involved into the peace pro-
cess. Koval shows that, for the Russian Federation, federalization repre-
sents “the long-term primary strategic goal, regarded as a means to regain
lost influence in the post-Soviet states and at minimum to limit their inte-
gration into Western political and security institutions”, thus bearing an
existential threat for Russia’s neighbors. By contrast, given its commit-
ment to the resolution of the crisis in and around Ukraine by diplomatic
means, and its historical legacy of federalism, Germany tends to refer to
the potential federalization of Ukraine as both a conflict-resolution and a
good-governance tool. The difference in discursive use of federalism by
key engaged international players testifies to the problematic nature of
internationally imposed (promoted) federalism.
In Chap. 8, Jaroslava Barbieri challenges the prevailing argument
according to which “ongoing decentralization reform in Ukraine can act
as a powerful deterrent against Russia-sponsored separatism”. According
to Barbieri, key concerns to be taken into account include a continued
non-establishment of the institution of prefects as a form of state oversight
of the implementation of decentralization; local elites’ long-lasting links
with pro-Russian forces (members of the former Anti-Maidan movement)
and the nexus between the reform of decentralization and Donbas’s “spe-
cial status.” Largely in line with the findings by Rabinovych and Koval,
Barbieri shows how President Zelenskyy’s commitment to reach signifi-
cant progress in peace talks “opened a window of opportunity for the
Russian leadership to reboot the Minsk process to its own advantage”.
1  INTRODUCTION: REGIONAL DIVERSITY, DECENTRALIZATION…  11

Thus, in contrast to many scholars, Barbieri analyzes the “dark side” of


Ukraine’s decentralization as a conflict-resolution tool—an exercise, very
much needed, when considering TSGs as a means of conflict resolution.

Part IV: Decentralization, its Perceptions and Linkage


to Democratization, Modernization, and European Integration
of Ukraine
The last part of the book goes beyond the decentralization–conflict reso-
lution nexus, and seeks to examine decentralization’s implications for the
processes of democratization, modernization, and the European integra-
tion of Ukraine. We argue that, although it does not immediately repre-
sent a viable conflict-resolution tool, and although it bears security risks,
decentralization reform is consonant with Ukraine’s long-term policy
objectives of democratization, modernization, and European integration.
In this vein, in Chap. 9 Max Bader examines the promises and flaws of
decentralization with an emphasis on the risk of capture by a local elite
that may further reduce citizens’ trust in decentralization and conse-
quently, adversely affect the reform’s democratization potential. Like
Barbieri in Chap. 8, Bader expresses concern about the Ukrainian govern-
ment’s failure to introduce prefects, an innovation that was intended to act
as a counterbalance to empowered communities.
Furthermore, as is established by Aadne Aasland and Oleksii Lyska in
Chap. 10 with respect to Ukrainian cities, popular support for decentral-
ization can indirectly promote consensus-building and, consequently, the
mitigation of intrasocietal cleavages. However, an increase in local elites’
role in communities’ amalgamation (a local elite capture) may gradually
destroy citizens’ support for decentralization, thus, diminishing decentral-
ization’s positive implications for democratization and modernization.
The contribution by Aadne Aasland and Oleksii Lyska examines citi-
zens’ perceptions of and interaction with local authorities, based on two
democracy surveys conducted in early 2014 (prior to the launch of the
reform) and at the end of 2017 in 20 Ukrainian cities. The surveys show
the signs of progress in terms of both citizens’ perceptions of the respon-
siveness of local authorities and the opportunities for civic participation at
the local level in many cities. Nevertheless, Aasland and Lyska record
Ukrainian citizens’ extremely low level of trust in public institutions at
national level as a hindrance to the speedy progress of top–bottom decen-
tralization reform.
12  M. RABINOVYCH AND H. SHELEST

In Chap. 11, Olga Oleinikova continues the examination of the nexus


between decentralization and modernization, also touching upon the
democratization processes. Her research offers an extensive meta-analysis
of the interplay between decentralization, modernization, and democrati-
zation processes from Western and Eastern European perspectives. Based
on this, she argues that decentralization can serve as a “vehicle for mod-
ernization” under a number of conditions, such as a secure existence and
financing of local governments, clear definition of priorities for industrial
development, and a possibility of autonomy in the use of resources for the
implementation of socioeconomic initiatives.
In Chap. 12, Anne Pintsch examines the linkage between the decentral-
ization reform and Ukraine’s strategic foreign policy goal of European
integration. More specifically, the chapter considers the transnational rela-
tions of the amalgamated territorial communities, in particular, an opera-
tion of community twinning partnerships with counterparts abroad and
membership of transnational European networks. Based on the sociologi-
cal perspective of the European integration and results of an ambitious
survey, conducted among the communities, Pintsch highlights the value
of decentralization reform for bottom-top Ukrainian European integration.
The book concludes with Chap. 13 reflecting on the lessons that the
case of Ukraine supplies to the study of the interconnection and correla-
tion between regional diversity, decentralization, and conflicts, especially
those with foreign involvement, and proposes directions for further
research.

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PART I

Regional Diversity in Ukraine and Its


Accommodation in Government
Policies
CHAPTER 2

Regionalism in Ukraine: Historic Evolution,


Regional Claim-Making, and Centre–
Periphery Conflict Resolution

Oksana Myshlovska

Introduction
Recently, scholars have been occupied with explaining why the previous
phases of contention in Ukraine had unfolded in a non-violent manner, while
the 2013–2014 contention cycle turned into a violent conflict. One of the
most contested issues in the scholarly debate has been the nature and mean-
ing of the conflict that started in early 2014, some interpreting it as a “civil
war,” others as “Russian aggression against Ukraine,” and the recognition of
an internal dimension to the conflict (Kudelia 2014; Kuzio 2017; Matveeva
2017). Wilson (2016) holds that while historical and identity factors, eco-
nomic fears and alienation from the new government that had come to
power in 2014 played a role in the outbreak of the violent conflict, it was the

O. Myshlovska (*)
University of Bern, Bern, Switzerland
e-mail: [email protected]

© The Author(s) 2020 17


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_2
18  O. MYSHLOVSKA

intervention of Russia and the role of local elites in Donbas1 that were the
key triggers. Other studies analyze the economic drivers of the conflict
(Zhukov 2016; Giuliano 2018) and mobilizations on both sides of the con-
flict (Matveeva 2017; Kudelia 2019; Umland 2019).
The chapter aims to make several contributions. First, it analyzes iden-
tity and regional cleavages in Ukraine and the evolution and dynamics of
claim-making and center-­periphery contention related to them in differ-
ent regions. The findings are in line with grievances-based explanations of
civil war onset that find strong association between political exclusion of
groups and competition along ethnic lines and internal conflict (Cederman
et al. 2010; Cederman et al. 2013; Wucherpfennig et al. 2016). Second, it
studies the non-violent forms of contention in Ukraine from the late
1980s until the eruption of violent conflict in 2014. The findings are con-
sistent with theories of conflict that posit that non-violent forms of conflict
precede escalation into violent conflict. Drawing on the contentious poli-
tics literature that holds that it cannot be assumed that the causes of non-
violent and violent conflict are different (McAdam et al. 2001), Germann
and Sambanis (forthcoming) find that grievances such as political exclu-
sion and lost autonomy are associated with the emergence of nonviolent
separatist claims and the escalation of nonviolent separatist claims to vio-
lent conflict. By examining a long period of contention preceding the
eruption of violent conflict, the chapter’s findings challenge the prevalent
conflict analysis that puts the Euromaidan as the starting point of the con-
flict. Third, the chapter examines contention around issues of history and
memory that receives less attention in the social science analysis of civil
war onset and conflict dynamics. Finally, it also examines the persisting
internal cleavages in the government-controlled areas that have been over-
shadowed by the focus on violent conflict in and around Ukraine.
The chapter  starts with a review of the historical constitution of the
present territory of Ukraine and its administrative–territorial system. Then
it examines regional cleavages and differences and their dynamics, focus-
ing on the different dimensions of regionalism outlined below. Next, it
studies the regions with substantial ethnic diversity and with territorial
units where some ethnic minority groups constitute a majority, namely the

1
 Donbas is a shortening from “Donetsk Coal Basin,” which encompasses parts of eastern
Ukraine (partially Donetsk, Luhansk, Dnipropetrovsk, and Zaporizhzhia oblasts) and of the
Rostov region in Russia. In this chapter, it is used to define Donetsk and Luhansk regions.
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  19

Autonomous Republic of Crimea (ARC), Transcarpathia, and Donbas,2


which have witnessed regional mobilizations around the issues of lan-
guage, ethnicity, and political or economic autonomy passing through
several stages of regional and center–periphery contention since the late
1980s. Finally, the chapter examines different forms of accommodation of
claims such as an asymmetric state structure in the case of Crimean auton-
omy, power devolution, free economic zones, subsidies and budget dis-
bursements, power-sharing at the national level, and local and regional
legislation on historical memory and languages.
Looking at the drivers in the “making of regions” in post-socialist
Europe, Melanie Tatur (2004, 15) argues that among factors that led to
the rise of regionalism were the dismantling of mechanisms of central
redistribution and of regional equalization, the rebalancing of economic
regions in view of changing positions in the global markets, and the open-
ing of opportunities for regional diversity, competition, and identity redef-
inition due to political liberalization and democratization. In the last few
decades, dozens of projects, surveys, and studies have been conducted to
investigate the phenomenon of regionalism in Ukraine. Indeed, it has
become an important factor in modern Ukraine. Multiple studies have
examined the configuration of regions and their number, the nature and
importance of regional cleavages, the “regional effect” and its meaning
(Birch 2000; O’Loughlin 2001; Sasse 2001, 2010; Kubicek 2002;
Barrington and Herron 2004; Shulman 2004; Malanchuk 2005;
Katchanovski 2006; Hrytsak et  al. 2007; Rogers 2007; Kulyk 2011;
Lewicka and Iwańczak 2019).
One of prominent approaches to the study of regionalism in Ukraine is
a mapping of regions based on declared attitudes and identifications using
the results of surveys or comparing pre-defined regions using the selected
criteria. Lewicka and Iwańczak (2019, 30) define a region as “a homoge-
nous topographical area, different from neighbouring areas” which is
“related people’s identities and the feelings that people have for their place
of living.” Surveys have captured territorial identification targets, regional,
national, and transnational identities (for example, eastern Slav or
European), various non-territorial identification targets, historical con-
sciousness and mnemonic practices, language identity and practices,

2
 Another relevant region where similar processes of regional contestation and mobiliza-
tion took place is Bukovyna (Kruglashov 2010–2011), however, it is not studied in the pres-
ent chapter.
20  O. MYSHLOVSKA

attitudes to bilingualism, and the use of languages in different spheres.


Moreover, they inquired about religious affiliation, religious beliefs and
practices, geopolitical and foreign policy orientations, attitudes to material
belongings, to corruption, risk, and trust.
Another approach has been to look at the “regional effect”—a salience
of regions as factors in themselves due to different historical experiences
rather than “compositional” effects of individual sociodemographic attri-
butes such as ethnicity or language. Some studies defined regions looking
at a variety of criteria such as historical legacies (belonging to different
states), industrialization, urbanization, demographics, ethnic composition
and languages (Barrington and Herron 2004). Other studies have used
the method of historical contextualization, and have investigated the role
of a variety of factors such as patterns of settlement, violence and migra-
tion, socio-economic processes, state language, nationality and population
management policies, state-society and center–periphery relations on the
constitution of the present institutions, social capital, identifications, val-
ues and preferences (examples of such studies are Kuromiya 1998, 2016
for Donbas; Šabić 2004; Zimmer 2004, 2007; Hrytsak 2007 for Galicia;
Sasse 2002, 2007 for Crimea).
Furthermore, regions have also been defined as mental constructs
involving myths, symbols and social imagining at a sub-national level.
Keating (1998, 84) holds that similar to national imagining, regional
identity-building requires “the search for a ‘usable past’, a set of historical
referents which can guide a regional society on its distinct road to mod-
ernization, bridging the past, via the present, with the future.” Zimmer
(2007, 98) also highlights the socially constructed nature of a region and
defines it as “a multi-layered and contradictory space that is not to be
understood in territorial terms, but as socially constructed by actors’ dis-
course as well as their action and interaction.” In terms of the study of
symbolic politics and the production of a “usable past” at a regional level
by regional elites and other actors the best-studied regions in Ukraine are
Donbas (Wilson 1995; Sereda 2007; Studenna-Skrukva 2014),
Slobozhanshchyna (Zhurzhenko 2004a, b), Galicia (Šabić 2004; Sereda
2007), Crimea (Plokhy 2000; Charron 2016) and Bukovyna (Kruglashov
2010–2011). More recently, other regions (Dnipro, Zaporizhzhya, and
Kharkiv) started to be studied in terms the politics of memory, myth-
making and symbolic politics (Kasianov 2018). Scholars also note the
competition of different memories and competing narratives of the past
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  21

held by different mnemonic communities at a regional level (for example,


for the case of Crimea Plokhy 2000 and Charron 2016).
Finally, Zimmer (2007, 98) notes that “[d]iscourses… cannot be sepa-
rated from the political, social and economic powers that create them; and
it is constellations of actors that condition the use of the available cultural
resources.” Historical uniqueness and particularities of regions can be used
by different actors to make a variety of claims such as demands for fiscal,
political or cultural autonomy and more powers at the regional and local
levels. Scholars note that flexibility, openness to negotiation and compro-
mise between the center and regions, and the role of external powers in
relation to their ethnic kin are important factors for the accommodation of
claims and management of center–periphery conflicts (Sasse 2002).

I. Historical Constitution
of the Ukrainian Territory

Throughout history, the present territory of Ukraine has been an arena of


competing influences of global, regional and local powers. Parts of the
territory were integrated into competing or co-existing state formations.
The medieval Kyivan Rus and then the kingdom of Galicia–Volhynia, con-
sidered as indigenous entities in national historiography, fell under the
rule of the Golden Horde, the Grand Principality of Lithuania, Poland
and then the Polish-Lithuanian Commonwealth. The Crimean Khanate
existed from the fifteenth century until 1783, first as an independent state,
then Ottoman-ruled. Transcarpathia was part of the medieval kingdom of
Hungary from the eleventh century until 1699 when it was integrated
into the Habsburg Empire. During the seventeenth to nineteenth centu-
ries, the Russian state expanded westwards and absorbed left-bank and
then right-bank Ukraine,3 abolishing the autonomy of the Cossack
Hetmanate. In the eighteenth to nineteenth centuries, the theatres of con-
flict concerned the territories of the declining Ottoman Empire. Following
a series of Russian–Turkish wars, Russia had incorporated southern
Ukraine and Crimea by 1783. After the division of the Polish–Lithuanian
Commonwealth between the Russian empire, the Kingdom of Prussia,
and Habsburg Austria at the end of the eighteenth century, the

3
 Left and right banks of the Dnieper, which runs roughly north–south through present-
day Ukraine.
22  O. MYSHLOVSKA

borderland between the three states remained peaceful until the outbreak
of World War I in 1914 (Prusin 2010).
In the Austro-Hungarian Empire, the crown lands of Galicia and
Bukovyna were home to a sizable Ukrainian population; Transcarpathia
was in the Hungarian-administered part of the empire as of 1867. These
territories were characterized by substantial ethnic, religious, and linguis-
tic diversity. In 1910, the Ukrainian share of the population was 64 per-
cent in eastern Galicia, 56.3 percent in Transcarpathia and 37.1 percent in
Northern Bukovyna (Prusin 2010, 15). In the Russian empire, an admin-
istrative-territorial organization comprising three levels (gubernia, povit,
and volost) was introduced at the end of the eighteenth century. There was
a majority Ukrainian-speaking population in nine gubernias of the Russian
empire: Kyivska, Kharkivska, Chernihivska, Poltavska, Volynska, Podilska,
Katerynoslavska, Khersonska, and Tavriiska.
Until the early 1900s, the Ukrainian population was overwhelmingly
illiterate. Ukrainian political and civil society institutions, language plan-
ning, literature, and education emerged and developed at different paces
and dynamics in the different states to which the territories with a sizable
Ukrainian population belonged. The Ukrainians claimed common ances-
try but lacked a common standardized language and other common
national institutions. The development of national movements and
national awakening took place in the framework of multinational empires
that differed in their management of ethnic, linguistic, and religious diver-
sity (Berger and Miller 2014). With the coming of the national awakening
era in the nineteenth century Poles and Ukrainians started to develop their
national consciousness and national territorial claims, with different hopes
and expectations about relations with imperial centers. As a rule, other
socio-cultural groups, most importantly Jews, were excluded from these
group national imagining processes (Bartov 2018).
During the first half of the twentieth century, the territory of Ukraine
became a major theater of geopolitical and local conflict, ethnic cleansing,
forced population exchanges, and other types of violence, resulting in
immense population losses and migrations (Prusin 2010; Levene 2015).
During World War I and the frontier wars of 1918–1920, rule over the
contested territories between the Russian, Austro-Hungarian and German
empires changed several times; then, after imperial collapse, rule over the
territories was contested by a growing number of political entities and
groups. Several new states—Poland, Finland, Estonia, Latvia, Lithuania,
and the Soviet Union—emerged out of the frontier and civil wars while
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  23

other short-lived states, including the Ukrainian People’s Republic (UNR)


and the Western Ukrainian People’s Republic (ZUNR), were unable to
survive. During the period of the Ukrainian Central Council
[Ukrayinska Tsentralna Rada], the UNR and the Ukrainian State (under
the leadership of Hetman Pavlo Skoropadskyi in 1918), new proposals for
the administrative–territorial organization and delineation of a Ukrainian
“ethnic” territory were debated, but were never fully implemented. The
UNR guaranteed broad political and national rights to ethnic minorities,
including representation in state governance bodies. During the period of
revolution, various Ukrainian authorities initiated the standardization of
the Ukrainian language, the establishment of Ukrainian-language educa-
tion, and other institutions of modern statehood. However, the processes
of modernization and the establishment of the core institutions of modern
statehood were only completed as part of a Soviet nation-building project.
The initial primary motivation of the Soviet nationality policy was to show
that the Soviet state was different to the Russian empire dubbed “the
prison of the peoples.” Soviet rule was established with the promise of self-
determination, though it was to be self-determination in the framework of
Soviet statehood and governance opposed to forms labeled “bourgeois.”
In the Soviet Union, various forms of administrative–territorial arrange-
ments, most importantly national homes for “titular nations,” were intro-
duced (Martin 2001).
The 1919 Paris Peace Conference did not support the demands of the
UNR delegation for the independence of Ukraine. The Polish state came
into existence as a result of its military victories and with the support of the
Entente powers. Poland took eastern Galicia, Vilnius, western Byelorussia,
and Volhynia; the incorporation of these territories into Poland was con-
firmed in the Polish–Soviet Treaty of Riga in 1921. Romania, which had
been on the Entente side, gained Bessarabia and Bukovyna, and
Czechoslovakia seized Transcarpathia, thanks in large part to the lobbying
of Rusyn groups in the United States. International minorities’ treaties
were devised to deal with the issue of the substantial number of minorities
who found themselves in the young states of the interwar period. The
administrative borders between the Ukrainian Soviet Socialist Republic
(SSR) and the Russian Soviet Federative Socialist Republic (SFSR) were
established in the 1920s, though they were adjusted several times during
the early Soviet period (Yefimenko 2016).
In 1922–1923, a new three-level administrative system consisting of
okruhs, rayons, and villages was adopted by the Ukrainian SSR, and 102
24  O. MYSHLOVSKA

povity and 1989 volosti were transformed into 53 okrhuhs and 706 rayons.
The number of village councils was decreased through a process of amal-
gamation. In 1930–1932, a two-level system was introduced, which was
replaced again in 1932 by a three-level system of oblasts, rayons and vil-
lage councils. In 1932, Kharkiv, Kyiv, Vinnytsia, Dnipropetrovsk, Odesa,
Donetsk, and Chernihiv oblasts were created; in 1937, Zhytomyr,
Mykolayiv, Poltava, and Kamyanets-Podilsk (renamed Khmelnytsk oblast
in 1954); and in 1939, Zaporizhzhya, Kirovohrad and Sumy oblasts. In
1938, Donetsk oblast was divided into Stalinska (renamed Donetsk oblast
in 1961) and Voroshylovhradska (renamed Luhansk in 1961) (Bazhan
et al. 1965, 639–640).
During and immediately after World War II, Transcarpathia was
annexed by Hungary, then again by Czechoslovakia before being inte-
grated into the Ukrainian SSR. Northern Bukovyna was annexed to the
Ukrainian SSR in 1939. During the war, Romania reoccupied Bukovyna
and parts of Odeska, Mykolayivska, and Vinnytska oblasts. During the
Nazi occupation, 1.43 million Jews were annihilated on the territory of
Ukraine (Altman 2002, 303), and a number of conflicts involving under-
ground groups (the Ukrainian nationalist underground, the Polish under-
ground (AK), Jewish groups, Soviet partisans, and other armed groups)
erupted in the contested territories in eastern Galicia and Volhynia (Prusin
2010). These regions became the site of mass ethnic cleansing. The con-
flicts in the western borderlands between the nationalist underground and
the Soviet military and security forces continued for a few years after the
end of the World War II, even while the final territorial and forced popu-
lation-exchange settlements in Eastern Europe were being arranged
between the allied powers at the end of World War II.
After the annexation of western Ukraine, Northern Bukovyna and parts
of Bessarabia, Volynska, Drohobytska, Lvivska, Rovenska, Stanislavska,
Ternopilska, Izmailska and Chernivetska oblasts were created in
1939–1940. Between 1924 and 1940, the Moldavian Autonomous Soviet
Republic was included in the administrative system of the Ukrainian
SSR.  Khersonska oblast was created in 1944, Zakarpatska in 1946, and
Cherkaska in 1954. In 1954, responsibility for Krymska oblast (which had
the status of an autonomous soviet republic from 1922 to 1945) was
transferred to the Ukrainian SSR from the Russian SFSR. Finally, Izmailska
oblast was united with Odeska oblast, and Drohobytska with Lvivska
oblast in 1959–1963 and a substantial amalgamation at the rayon level
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  25

took place at the same time (Bazhan et al. 1965, 639–640). This adminis-
trative–territorial system was inherited by independent Ukraine.
So, as can be seen, the different parts of the current territory of Ukraine
changed hands many times in the twentieth century. Multiple layers of the
historical past provide a rich symbolic capital for national and regional
actors to draw upon for the construction of regional frameworks of mean-
ing; equally, they provide space for multiple contested claims by interna-
tional, national, and local actors and for the political mobilization of
regional cleavages in terms of historical memories and identifications.

II. Regional Cleavages and Differences


One of the divisions that has recurred in discussions of regionalism in
Ukraine has been the split generated by centuries of “western (Polish-
Lithuanian and Austro-Hungarian) and eastern (Russian) influences”
(Lewicka and Iwańczak 2019, 25), reflected most importantly in regional
differences in attitudes toward Russia and the Russian language, national-
ism, and the independence of Ukraine. With his publications “One Nation,
Two Languages, Three Cultures” in 1999 and Two Ukraines in 2003,
Mykola Riabchuk (1999, 2003)  initiated a protracted debate about the
macro-level division of Ukraine into a pro-Western, democratic west and
center, and a pro-communist, pro-Russian south and east. He further
developed his theses in 2015:

the main—and indeed the only important—divide is not between ethnic


Russians and Ukrainians, or Russophones and Ukrainophones, or the “East”
and the “West.” The main fault line is ideological—between two different
types of Ukrainian identity: non/anti-Soviet and post/neo-Soviet,
“European” and “East Slavonic.” All other factors, such as ethnicity, lan-
guage, region, income, education, or age, correlate to a different degree
with the main one. (Riabchuk 2015, 138)

Other studies draw a dividing line between the regions with developed
national identity and regions characterized by non-national forms of
attachment—fluid, ambiguous, and mixed identifications. For example,
Shulman (2004) sees the dominance of two identifications: ethnic
Ukrainian in the west of Ukraine and Slavic in the east. Some studies
explained the split in the attitude to Ukrainian independence reflected in
differences in regional electoral behavior by reference to historical legacies
26  O. MYSHLOVSKA

of belonging to different states. Katchanovski (2006) examined persistent


regional political cleavages in Ukraine between 1991 and 2006. He found
that regions that had been under the Austro-Hungarian, Polish, Romanian,
and Czechoslovak rule generally voted for political parties that supported
the independence of Ukraine, whereas many in eastern regions supported
pro-communist and pro-Russian parties in favor of the preservation of the
Soviet Union.
Some studies focused on defining a configuration of the regions and
their number by integrating a variety of factors. Birch (2000) uses histori-
cal experiences combined with economic development to propose a divi-
sion of Ukraine into five regions—the former Habsburg regions, western
Volhynia, the right bank of the Dnieper, the left bank of the Dnieper, and
the former Ottoman lands of the Black Sea littoral. Birch (2000, 1017)
holds that “careful analyses of individual-level data reveal that even when
socio-demographic attributes are controlled for, region still exerts an inde-
pendent influence.” Barrington and Herron (2004) divide Ukraine into
eight regions, identifying such factors as historical legacy (having belonged
to different states), industrialization, urbanization, demographics, a
national profile, and language use as important factors in the constitution
of regions. Like Birch (2000), they underline the importance of historical
experience rather than personal attributes such as language, nationality,
religion, or education in explaining differences in regions’ attitudes. Other
scholars have refined the configuration of regions, arguing that there are
further sub-divisions in the Barrington and Herron eight-region model.
Rogers (2007) and Hrytsak (2019) show differences between regions in
the southeast, and between Luhansk, on the one hand, and Kharkiv and
Sumy oblasts, on the other, that mainly consist in the different levels of
support for Ukrainianization policies. Rogers (2007) also highlights dif-
ferentiations within the western Ukrainian region, where eastern Galicia
stands out in stark contrast to its neighbors. Riabchuk’s stance has been
criticized for the simplification of complex and overlapping regional divi-
sions and for taking a normative approach to the definition of regions
based on stages of national development (Hrytsak et  al. 2007; Rogers
2007; Hrytsak 2019; Schmid and Myshlovska 2019).
Since the early 1990s, the central government in Kyiv has faced several
cases of claim-making from regions and groups demanding additional fis-
cal, political, or cultural autonomy or protection of linguistic–cultural
rights in comparison with other territorial units. The most prominent
cases have been Donbas, Crimea, Transcarpathia, and Bukovyna. What
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  27

these regions have in common is the diversity in their ethnic composition.


According to the national census of 2001, ethnic Ukrainians constituted a
majority in all oblasts of Ukraine except for the Autonomous Republic of
Crimea (ARC) and the city of Sevastopol. Russians constituted a majority
in the ARC (58.3 percent) and in all of its urban centers, and in Sevastopol
(71.7 percent). At the rayon and city levels, ethnic Russians were a slight
majority in smaller towns, such as Ternivka of Dnipropetrovsk oblast
(52.9 percent), Makiyivka of Donetsk oblast (50.8 percent), Krasnodon
(63.3 percent), Stakhanov (50.1 percent), Krasnodonskyi rayon (51.7 per-
cent) and Stanychno-Luhanskyi rayon (61.1 percent) of Luhansk oblast,
and in Putyvlskyi rayon of Sumy oblast (51.6 percent). Hungarians com-
prised a majority in Berehovo rayon of Zakarpatska oblast (76.1 percent),
Bulgarians in Bolhradskyi rayon of Odesa oblast (60.8 percent), Romanians
in Vyzhnytskyi rayon of Chernivtsi oblast (91.5 percent), and Moldovans
in Novoselytskyi rayon of Chernivtsi oblast (57.5 percent) (all data from
Dnistryanskyi 2006).
The most multicultural regions with several important national groups
were Crimea (58.3 percent Russians, 24.3 percent Ukrainians, and 12 per-
cent Crimean Tatars), Transcarpathia (80.5  percent Ukrainians, 12.1  per-
cent ethnic Hungarians, 2.6 percent Romanians, and 2.5 percent Russians),
Odesa oblast (62.8 percent Ukrainians, 20.7 percent Russians, 6.1 percent
Bulgarians, and 5  percent Moldovans) and Chernivtsi oblast (75  percent
Ukrainians, 12.5 percent Romanians, 7.3 percent Moldovans, and 4.1 percent
Russians). At the rayon level, Prymorskyi rayon of Zaporizhzhia oblast con-
sisted of 52.5 percent Ukrainians, 23.4 percent Bulgarians, and 22.2 percent
Russians. The two binational regions were Donetsk (56.9 percent Ukrainians
and 38.2 percent Russians) and Luhansk (58 percent Ukrainians and 39 per-
cent Russians) oblasts (all data from Dnistryanskyi 2006).
This section will proceed with a review of the studies on the particulars
and dynamics of identifications, attitudes, and historical memories in
Galicia, Donbas, and Crimea, and Section 3 will focus on the processes of
claim-making and accommodation of claims in the regions of
Transcarpathia, Crimea, and Donbas. Kruglashov (2010–2011) explores
the particularities of regional identifications and loyalties in the region of
Bukovyna and Zhurzhenko (2004a, b) of Sloboshchanshyna; however,
these cases are not studied in the present chapter.
With western and eastern Ukrainian regions seen as opposite poles in
regional differentiation, there have been a number of comparative studies
of identities and identifications in these regions (Tatur 2004; Hrytsak
28  O. MYSHLOVSKA

et al. 2007). Surveys of a hierarchy of identities was conducted by a group


of scholars in Lviv and Donetsk in 1994, 1999 and 2004 (Hrytsak et al.
2007). The surveys proposed 28 identification targets. Both Lviv and
Donetsk showed stability in the top identifications. National identification
was dominant in Lviv and selected as top identity by 73.1 percent in 1994,
74.8 percent in 1999, and 72.1 percent in 2004. It was closely followed
by regional Lvivite identification. Regional identification was dominant in
Donetsk: 55.6  percent selected it as a dominant identification in 1994,
56.4 percent in 1999 and 68.4 percent in 2004 (Hrytsak 2007, 49–50).
At the same time, while the hierarchy of identification targets was stable in
Lviv (the top five being Ukrainian, Lvivite, woman, Greek Orthodox, and
Zakhidniyak (chka)), there were substantial changes in the hierarchy of
identifications beyond the top two (regional and woman) in Donetsk. A
prominent dynamic in Donetsk was the decreasing salience of the Soviet
(from 40.1 percent to 9.9 percent) and the slight increase in the impor-
tance of Ukrainian (from 39.4  percent to 42.7  percent) identification
between 1994 and 2004.
Another region that has stood out in terms of regional identity has
been Crimea. Sasse (2002, 23, fn 4) cites a survey undertaken in Crimea
and published in a local newspaper in January 1996 that showed that
32  percent identified the USSR as their homeland, 28  percent Crimea,
16 percent Russia and only 11 percent Ukraine. Charron (2016) analyzed
identities and political preferences of the Crimean population on the basis
of a survey he conducted in Crimea in 2011. His research shows that liv-
ing in Crimea was the strongest territorial factor of identity among all
groups (69.9 percent) (Russians, Ukrainians, Crimean Tatars, and others),
and it was the highest for the Crimean Tatars. In comparison, living in
Ukraine was supported by 33.1 percent of respondents. The three cultural
aspects of identity (nationality, native language, and religious beliefs) are
also salient. In terms of defining their homeland [rodina], Charron con-
cludes (2016, 246) that “Crimeans by and large did not equate homeland
with either Russia or Ukraine, but rather with Crimea itself.” A sense of
belonging to Ukraine was higher than belonging to Russia or the Soviet
Union. Only 1.6  percent of ethnic Russians and less than 1  percent of
other groups indicated Russia as their homeland, and only 8.3 percent of
Russians, 3.8 percent of Ukrainians, 3.1 percent of Crimean Tatars and
4.1  percent of Other considered the Soviet Union as their homeland
(Charron 2016, 250).
Furthermore, some studies explored strength, complexity (number of
identification targets), and internal consistency of identifications using
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  29

both territorial and non-territorial identification targets (Lewicka and


Iwańczak 2019). Analyzing the results of a survey undertaken in 2013,
Lewicka and Iwańczak (2019) established that there are regional differ-
ences not only in the content of identifications but also in their strength.
Place and national identifications were significantly weaker in the east,
particularly in the Donbas region, than in western regions. Eastern regions
were characterized by having overall the weakest emotional attitudes
toward places of living (cities and regions), weaker overall local identity,
and more neutral responses to all national issues. Lewicka and Iwańczak
(2019) also find that Galicia and central Ukraine is the most homogenous
region in Ukraine and has the strongest identity profile focused on
Ukrainian identification.
Following the Russian annexation of Crimea and the beginning of a
conflict in eastern Ukraine in early 2014, debates about the role of regional
cleavages in Ukraine have taken on a new prominence. Many new surveys
have been commissioned to understand the dynamics of identifications
and attitudes, especially in eastern Ukraine and in the non-government
controlled areas of Donbas (examples include Tsentr Razumkova 2016;
Haran and Yakovlyev 2017; Arel 2018; Kulyk 2018, 2019; Onuch et al.
2018; and Sasse and Lackner 2018). Surveys undertaken by the Institute
of Sociology of the National Academy of Sciences of Ukraine in 2013,
2014, 2015 and 2017 in the Donbas region (Zolkina 2017)4 reflected the
same general trends—the prominence of both local and national identifi-
cations as the most important in the region and the changing nature of
identifications. However, these surveys were carried out using a somewhat
different methodology than the Lviv–Donetsk study. They measured one
(“first and foremost”) identification, divided a sub-national identification
into an identification with a locality where a respondent lived and a region,
and finally added an identification as a citizen of Ukraine (instead of the
ambiguous category “Ukrainian” as in the Lviv–Donetsk study). Surveys
showed that in 2013, local and regional identity (together 43.4 percent)
was of almost the same prominence as citizen of Ukraine identity (41.7 per-
cent) in Luhansk and Donetsk oblasts. The identification as a citizen of
Ukraine reached the lowest level in 2014 (34.3 percent) with a concomi-
tant increase in identification as citizens of the former Soviet Union and
citizens of the world; the proportions of local and regional identifications
were stable, however, with substantial fluctuations between the local and

4
 The 2014, 2015 and 2017 surveys covered only the government-controlled areas.
30  O. MYSHLOVSKA

regional levels. After the increase in 2014, identification as a citizen of the


former Soviet Union fell sharply, from 13.9 percent to 5.4 percent in 2015
(Zolkina 2017, 160). Regional surveys carried out by the Democratic
Initiatives Foundation (DIF) and the Ukrainian Sociology Service in 2015
and 2017 showed important differences between Donetsk and Luhansk
oblasts, with identification as a citizen of Ukraine being more pronounced
in the latter than in the former (Zolkina 2017, 162).
Furthermore, surveys have also shown regional differences in terms of
attitudes to Ukrainian independence, a vision of the administrative–terri-
torial structure of Ukraine, and the political status of regions. Western
Ukraine has differed not only in the stability of its hierarchy of identities
(Hrytsak et al. 2007), but also in its support for independence in a hypo-
thetical referendum (between 93 percent and 96 percent in 1991, 2006,
2011 and 2016) (Bekeshkina 2017, 11). According to the DIF surveys,
the proportion of those who would vote against the act of independence
increased from 11.3 percent in 1991 to 29.8 percent in 2006 and 32.9 per-
cent in 2011. The highest proportion of those who would vote against was
in the south (including the ARC) and the east—42.8 percent and 51 per-
cent in 2006 respectively and 52.9  percent and 47  percent in 2011.
Support for independence in these regions dramatically increased in 2016
(Bekeshkina 2017, 11).
Both Donbas and Crimea stood out in the way respondents saw the
administrative–territorial structure of Ukraine and the political future of
the regions. Support for federalization of Ukraine was the highest in the
two regions. In 1991, 67  percent of the population in Luhansk and
Donetsk oblasts were in favor of a unitary centralized state with all power
based in the center and 29 percent were in favor of a federal Ukraine with
autonomous regions (Adamovych 2006, 39). The survey conducted by
Charron (2016, 254) showed that, in 2011, 45.5 percent of the popula-
tion of Crimea preferred joining Russia, 39.1 percent preferred remaining
in Ukraine regardless of whether or not Crimea was autonomous, and
15.4 percent preferred independence or some other status. According to
a sociological survey carried out by the Kyiv International Institute of
Sociology (KIIS) in eight oblasts of southern and eastern Ukraine between
10 and 15 April 2014, 15.4 percent of the population in the regions sup-
ported separation from Ukraine and unification with Russia, 24.8 percent
a federal state system and 45.2 percent a unitary decentralized state. The
highest support for separation from Ukraine and unification with Russia
and for federalization among the eight oblasts surveyed was in Luhansk
oblast (30.3 percent and 41.9 percent respectively) and in Donetsk oblast
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  31

(27.5 percent and 38.4 percent respectively). Support for a unitary decen-


tralized state was 34.2  percent in Luhansk oblast and 41.1  percent in
Donetsk oblast, while support for a state with its current rights intact
stood at 12.4 percent for Luhansk oblast and 10.6 percent for Donetsk
oblast (KIIS 2014).
The attitude of the population of Donbas dramatically changed between
two nationwide surveys conducted by the DIF in January and July 2015.
The federalization option dropped from 30.4 percent to 12 percent, cre-
ation of an independent state from 19.8 percent to 0 percent and separa-
tion from Ukraine and joining another state from 14.8  percent to
4.8 percent. There was an increase in support for a unitary Ukraine with
existing rights from 2.5 percent to 22.9 percent and a unitary state with
expanded rights from 26.9 percent to 44 percent (Bekeshkina 2017, 26).
According to a survey carried out by the Razumkov Center, in 2016, only
5 percent in Luhansk oblast and 8 percent in Donetsk oblast supported
separation from Ukraine and joining another state, and 8  percent in
Luhansk oblast and 15 percent in Donetsk oblast supported an autono-
mous status in a federalized Ukraine. At the same time, the share of those
supporting a unitary state with expanded rights increased to 49 percent in
Donetsk and 57 percent in Luhansk oblasts (Tsentr Razumkova 2016, 65).
In comparison to other oblasts of the northeast, Donetsk and Luhansk
oblasts stood out in their attitudes to the protests of 2013–2014, the
change of government in 2014, and on the nature of the armed conflict in
the east (KIIS 2014). According to the KIIS survey of April 2014,
70.5 percent in Donetsk oblast and 61.3 percent in Luhansk oblast con-
sidered the Euromaidan as a coup d’état organized by the opposition with
support from the west (KIIS 2014).5 The two oblasts also had the highest
share of those who considered the new authorities that came to power fol-
lowing the Euromaidan to be illegitimate. The 2015 Region, Nation and
Beyond survey showed that the regional divisions over the Euromaidan
persisted, with 71.5 percent supporting the Euromaidan in the west and
only 8.4  percent supporting it in the government-controlled part of
Donetsk oblast (Chebotarova 2019, 418–419). Furthermore, Ukrainian
society seemed divided about the nature of the conflict. In December
2015, 49.3  percent considered that it was a war of aggression against
Ukraine (75.2 percent in the west and 23.6 percent in Donbas), 20.2 per-
cent a civil conflict between pro-Ukrainian and pro-Russian residents of
Ukraine (6.4  percent in the west and 24.6  percent in Donbas), and

5
 Euromaidan—see Chap. 1, fn 1.
32  O. MYSHLOVSKA

15.2 percent a conflict between Russia and the United States for spheres
of influence (8.8 percent in the west and 31.8 percent in Donbas) (Tsentr
Razumkova 2016, 50).
The Lviv–Donetsk study also initiated research into regional divisions
related to historical memories and identities. This study was further devel-
oped in the Nation, Region and Beyond surveys conducted in 2013, 2015
and 2017. In her study of historical identities and memories of Lviv and
Donetsk residents through surveys in 1994, 1999 and 2004, and incorpo-
rating a review of local press, a Ukrainian sociologist, Viktoria Sereda
(2007), found substantial differences between Lviv and Donetsk in their
celebration of holidays and in their identifications of the most important
historical periods, figures, and events. The 2013 Nation, Region and
Beyond survey reconfirmed the main findings of the previous study on
historical memories: Soviet-period holidays (Defenders of the Motherland
Day, Women’s Day, and Victory Day) were much more rooted in popular
practices than the holidays instituted after Ukraine became an indepen-
dent state; however, Ukrainian holidays were gradually gaining in impor-
tance. Ukrainian holidays were mostly celebrated in Galicia, Volhynia, and
central Ukraine, while Soviet holidays dominated all over Ukraine except
for Galicia. Stepan Bandera and Lenin were the most regionally divisive
historical figures, while the wartime and postwar activities of
OUN and UPA, Holodomor, and World War II were the most polarizing
historical events (Survey 2013).
The studies discussed above provide a view of regional differences of
identifications, attitudes and historical memories. Quantitative studies
based on censuses and survey data are complemented by qualitative stud-
ies using methodologies such as historical contextualization and oral his-
tories that allow to understand the historical constitution of identities,
attitudes, and memories and their meaning. For example, Šabić (2004,
140) explains the prominence of ethnic nationalism in eastern Galicia by
the destruction of the pre-war Polish, Jewish, and Ukrainian elites and
their replacement by “a peasant one socialized and educated in the Soviet
system.” Based on semi-structured interviews, Tatur (2004, 380) describes
Donbas as a region “without history” due to symbolic poverty resulting
from a history in which industrialization amid the steppe occupies a cen-
tral place. Respondents “expressed strong feelings of belonging … directed
towards the place, the community, the here and now without reference to
a narrative of ‘historic identity’.” Local elites described the region as an
“old industrial region” that prides itself in physical work and technical
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  33

competence, and referred to a region’s “borderland position, openness,


multi-ethnic composition and tolerance as an industrial melting pot of
people” (Tatur 2004, 380). Another important characteristic noted by the
authors is the lack of civil social capital due to the dependence of workers
on large companies that dominate the region and their patrons. Similarly,
for Kuromiya (1998, 2016), the Donbas region, colonized late, sparsely
populated and “dyke pole”6 located at the periphery of the main centers
of power, always provided a refuge for freedom-seekers defying all author-
ities. According to Kuromiya (1998, 2016), the region was a perpetual
headache for all regimes, including the Soviet. With a high turnover of
workforce from different parts of the Soviet Union, Donbas became the
melting pot of cultures, with its own industry-related social imaginary.
The above longitudinal analysis of various dimensions of regionalism in
Ukraine enables us to define several obstinate tendencies. Regional and
local attachments have persistently been selected over national-level
attachments in Crimea and Donbas. Another feature of regionalism has
been the stability of identities, loyalties, and beliefs in western Ukraine in
contrast to their fluctuations in the rest of Ukraine. The overall weaker
identification profiles outwith western Ukraine identified in the study by
Lewicka and Iwańczak (2019) help explain these considerable fluctua-
tions. The above analysis also seems to establish that while there has been
an increasing identification with Ukrainian citizenship and support for
decentralization, important regional differences persist in terms of histori-
cal memories, and attitudes to the Euromaidan and the nature of the
ongoing conflict. Also, one has to consider that the pervasive use of pro-
paganda by Russia (Kyiv International Institute of Sociology and Detector
Media 2017) and the manipulation of identifications, views, and attitudes
by local elites have become a factor in regionalist politics.

III. Contentious Center–Periphery and Regional


Politics, and the Accommodation of Claims
This section studies the claims that have been advanced in the regions or on
behalf of the regions with regional particularities studied in Section 2, namely
Transcarpathia, Crimea, and Donbas. It also investigates the role of the polit-
ical system, institutions, and center–periphery relations in accommodating

6
 “Dyke pole”—romanized version of the Ukrainian for “Wild Fields,” a historical term
used in Polish–Lithuanian documents of the sixteenth to eighteenth centuries.
34  O. MYSHLOVSKA

the claims. Sasse (2002, 1) asserts that one of the main drivers of conflict in
the post-Soviet space is the centralization of power and institutional rigidity,
“both of which are not conducive to the flexible management of ethnic and
regional diversity.” Until the launch of decentralization in 2014, Ukraine was
a highly centralized state with few competences at the local level. Almost all
taxes collected at the local level were transmitted to the regional and national
levels and then redistributed back from the center to regions that in their
turn distributed to the local level. The distribution of funds from the state
budget to a sub-national level was non-transparent and served as a way of
rewarding the loyalty of regional elites. Resources were redistributed from
more-developed to less-developed oblasts through a centralized system that
promoted corruption, neo-patrimonial relations and reinforced inter-
regional tensions, biases, and grievances. Furthermore, there was no efficient
mechanism of oversight of the legality of decisions at the local level or recti-
fication of violations of national legislation. Regions also had different levels
of economic diversification and export orientation, with eastern Ukraine’s
subsidized heavy industry primarily oriented toward the Russian market, a
factor that created many fears at the local level about the implications for the
local economy of the proposed Association Agreement with the EU
(Giuliano 2018).
Furthermore, as there were no established and transparent rules con-
cerning the distribution of budgetary funds, leading to a proliferation of
patron–client relations between the center and lower levels of governance,
a change of the government at the national level, and hence of ruling
clans, provoked uncertainty and fears about the inflow of budgetary
resources. Stroschein (2012, 202) argues that “the uncertainty that reigns
during periods of severe institutional change is particularly ripe for tension
and mobilization, as groups fear that even the smallest gains by their
opponents might grant them wide-ranging and permanent advantages.”
The periods of transition and turmoil such as perestroika and the dissolu-
tion of the Soviet Union, the miners’ strikes of the early 1990s, “Ukraine
without Kuchma” protests, the Orange Revolution, and the Euromaidan
became periods of uncertainty, resulting in claim-making and renegotia-
tion of power-sharing and institutional arrangements.
The period of perestroika and glasnost in the 1980s opened opportuni-
ties for multiple public claim-making processes. One level of contention
was between the republic (Kyiv) and central (Moscow) levels of gover-
nance. Claims advanced by dissidents and human rights movements that
emerged in Soviet Ukraine following the de-Stalinization period in the
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  35

mid-1950s about the violation of civic, national, and linguistic rights of


groups in the Soviet Union, the rectification of past injustices, and the
need to provide more autonomy and “real” rights to the Soviet republics
resulted in the adoption of legislation at the republic level on languages
and the rehabilitation of victims of political repressions, as well as the
preparation of a more democratic version of the Union Treaty. In 1988,
the Secretary General of the union Communist Party, Mikhail Gorbachev,
initiated a partial transfer of responsibilities from party organs to the sovi-
ets (councils) in the framework of a future constitutional reform. A series
of laws adopted by the Verkhovna Rada of the Ukrainian SSR on military
service on the territory of the Ukrainian SSR and economic sovereignty,
accompanied by a declaration of sovereignty, laid the ground for the proc-
lamation of independence in 1991. The overall peaceful dissolution of the
Soviet Union (with the exception of Transnistria and the Caucasus) has
been largely attributed to the lack of revisionist intentions from neighbor-
ing countries such as Poland and Germany and a decision by the Soviet
and then Russian leadership not to use force against national movements
in the Soviet republics (Prusin 2010).
In western Ukraine, the vote for independence in 1991 was seen as a
culmination of the struggle of the Ukrainian people for independence,
while in the rest of Ukraine, especially in the east and in Crimea, the pre-
dominant motivation was an economic one. In the latter two regions, it
was believed that national sovereignty would mean that taxes would be
kept in the republic to improve the economic situation and wellbeing of
the population. Striking Donbas miners concluded a situation alliance
with the Ukrainian anti-communist and pro-independence intelligentsia
in supporting the independence of Ukraine in 1991 (Mykhnenko 2003).
The period from the late 1980s to the early 1990s was the only period
when the local elites lost control of the workers’ protests in Donbas
(Kovaleva 2007, 66). The economic collapse in the early 1990s, meant the
central government started to lose hope and trust related to national
independence.
In the early 1990s, central government faced cases of claim-making in
several regions. In Transcarpathia, a referendum on seeking to become an
“autonomous status within independent Ukraine” was held at the same
time as the referendum for independence; it was approved by 78 percent
of voters. Another vote was held in Berehove rayon, which has a majority
Hungarian population, on setting up a Hungarian autonomous district
within Transcarpathia; that proposition was approved by 81.4 percent of
36  O. MYSHLOVSKA

voters (Stroschein 2012, 194). The autonomy of Transcarpathia was envi-


sioned as multi-ethnic in character, justified by the historic uniqueness of
the region, while that of the Berehove rayon was envisioned as an ethnic
one (Stroschein 2012, 195). Claims for regional sovereignty were also
advanced by the Society of Carpathian Ruthenians. These votes were all
preceded by mobilization of different ethnic groups and debates in local
councils where compromises and decisions, seen as outcomes of a legiti-
mate process, were achieved. After the initial demands for local autonomy
had been rejected by the central government, the region
of  Transcarpathia  settled on a compromise solution of a free economic
zone (Stroschein 2012). Finally, Stroschein (2012, 231) highlights the
role of the devolution of power and elections in the moderation of
demands: “The codification of local government structures in the form of
Law #64 of 1994, and the holding of elections that year, alleviated con-
tention and claims over autonomy for the region.”
Mobilization around Crimean autonomy and separatism also started in
the early 1990s. A referendum on the establishment of the Crimean ASSR
within the USSR was held on 20 January 1991, and was supported by
93.26 percent of votes. Before the proclamation of Ukrainian independence,
agreement was reached to retain Crimea’s autonomous status within the
Ukrainian SSR (Sasse 2002, 14). A Russian national and separatist move-
ment spearheaded a vote by the local Supreme Soviet for the independence
of Crimea in 1992 and passed a Crimean Constitution. Internal disagree-
ments within the movement and failure to deliver stability and economic
growth opened opportunities for a dialogue with Kyiv. Sasse (2002) regards
the asymmetric autonomy arrangement, albeit constitutionally ambiguous
and weakly implemented, that was achieved in Ukraine in the 1990s through
a lengthy process of political negotiation as a factor in preventing conflict
until 2014. Her core argument is that “the political process of negotiation and
central and regional elite bargaining rather than the institutional outcome per
se was important for conflict prevention” (emphasis in original). Among fac-
tors that contributed to the prevention of conflict Sasse (2002) gives particu-
lar weight to weak ethnopolitical mobilization and polarization due to
regional diversity, Kyiv’s readiness for compromise on language and ethnicity
issues, and the cautious approach of Russia and Turkey in their dealings with
their ethnic kin groups. At the same time, while the autonomy solution
helped to regulate center–periphery relations, it did not accommodate claim-
making by non-dominant groups in Crimea such as Crimean Tatars,
Ukrainians, and other minorities.
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  37

History and symbolic politics have been an important part of claim-


making by different groups (Plokhy 2000). Charron (2016) describes the
historical mythologies and narratives that were mobilized by Russia and
Ukraine in constructing their claims to Crimea. For instance, the Russian
claim to Crimea was justified by the importance of the region for the
adoption of Christianity following the baptism of Prince Volodymyr of
Kyivan Rus in 988, by the Sevastopol myth as a city of Russian military
glory, a legend that arose in the aftermath of the Crimean War of
1853–1856, the battles of the Great Patriotic War, and nostalgia for the
Soviet past (Charron 2016). The deportations of Crimean Tatars in 1944
to Central Asia and Siberia became a central event in their memory and
national identity as well as a concrete illustration of Crimea as their
homeland.
In Donbas, the local elites took advantage of the growing popular dis-
satisfaction with the economic failings and the Ukrainization policies of
central government in the early 1990s. The national and local elections in
the 1990s saw the return of a party nomenclatura and Soviet regional
economic leaders (Zimmer 2004). Another wave of miners’ strikes started
in the 1990s in support of regional autonomy for Donbas, calling for the
right of local law-making, policing, budgeting, economic activity, and cul-
tural autonomy, and the resignation of the president and central govern-
ment (Mykhnenko 2003; Adamovych 2006, 35–38). Donetsk oblast held
a local referendum together with the parliamentary elections in March
1994; 80 percent voted for a federal Ukraine, 87 percent voted for Russian
to be given the status of the second state language, 89 percent agreed with
the proposition that Russian should be a language of education, science,
and administration in Donetsk oblast, and 89 percent that Ukraine should
become a full member of the CIS Economic Union and Parliamentary
Assembly (Kovaleva 2007, 68).
While local councils in Transcarpathia became the platforms for claim-
making, debate and consensus-seeking between different ethnic groups
and organizations representing them, in Donbas regional elites co-opted
the workers’ movement, which failed to become inclusive and build con-
nections with other civil society organizations (Mykhnenko 2003;
Kovaleva 2007). Local elites established control over local government,
media, and civil society at the regional level with little contention at the
sub-regional level (Zimmer 2004; Adamovych 2006). Zimmer (2007,
100) calls the regional regime that was established a “captured region”
and argues that “the capture includes not only the control of the political
arena and the economic realm, but also the determination and imposition
38  O. MYSHLOVSKA

of public discourse by that regional elite.” The main line of contention was
between the center and regional elites. The conflict between Kyiv and
Donbas was resolved by partial power-sharing at the national level when
local political and economic leaders, for example, Yuhym Zvyahilskyi and
Viktor Yanukovych, were offered positions in the center. Furthermore, the
regional elites were awarded other privileges by the center such as subsi-
dies for the region’s mining industry and heavy industry, and the status of
a special economic zone blessed with a favorable tax regime and exemp-
tion from import duties (Kovaleva 2007).
In terms of history and symbolic politics, the main line of contestation
was not between different local mnemonic communities, as in Crimea, but
rather between Kyiv and Donbas. Wilson (1995) studied the divergence
between national and local history narratives about the region in the early
1990s. Local historians and publicists sustained a regional interpretation
of the past that established an indigeneity of the presence of ethnic
Russians in the region and ignored or delegitimized claims of Ukrainian
historiography to the presence of Ukrainians or proto-Ukrainians and
Ukrainian state structures in the region. Wilson (1995) claims that the
development of such alternative historical mythologies has been one of the
underlying causes of claims of separatism and autonomy in the region:
“Russophile historiography … has created the ideological basis for a move-
ment for regional autonomy or even separatism in the Donbas. The key
point in Russophile historiography is that Russians are not ‘immigrants’ in
the Donbas, but a ‘rooted [or indigenous] people’.” Identities and sym-
bolic politics are dynamic and influenced by the changing international,
national, regional and local circumstances. Zimmer (2004, 320–321)
holds that difficulties in competing in international markets and failure to
attract foreign investment by industries in Donbas led to local industries’
increasing self-reliance and dependence on eastern, above all Russian,
markets, which in turn led to changes in discourse and symbolic politics.
Another round of regional mobilization and contention started in
2004. Following the second round of presidential elections on 21
November 2004 and the beginning of the Maidan protests, the Luhansk
Oblast Council declared a creation of the Autonomous South-Eastern
Ukrainian Republic on the territory of nine oblasts of eastern and south-
ern Ukraine, and the ARC with a capital in Kharkiv, sent a request to the
Russian Federation to officially recognize the republic. Calls for separation
from Ukraine were articulated at the rallies organized by the local authori-
ties in eastern Ukraine in support of Viktor Yanukovych in 2004
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  39

(Adamovych 2006, 93). After the parliament of Ukraine annulled the


results of the second round of the presidential elections, an All-Ukrainian
Assembly of members of the parliament and members of local councils
took place on 28 November 2004 in Severodonetsk (in Luhansk oblast),
recognizing the legitimacy of the election of Viktor Yanukovych as a presi-
dent and claiming the right to organize a referendum on the status of
territories in response to what it claimed was an unconstitutional seizure
of power. Russia remained cautious during the 2004 events. While it offi-
cially endorsed Yanukovych, as a presidential candidate, and sent a repre-
sentative to the Severedonetsk assembly, it refrained from openly
supporting separatist movements in eastern and southern Ukraine.
Decisions to grant Russian the status of the regional language were taken
by Donetsk, Luhansk, and some other local authorities in eastern and
southern Ukraine during Yushchenko’s presidency. The 2004 crisis was
defused by a power-sharing agreement between Yushchenko and
Yanukovych in 2006.
The contestation took new forms in 2013–2014. By January 2014, the
supporters of the Euromaidan had occupied administrative buildings and
declared the creation of “people’s councils” [narodna rada] in many loca-
tions in western and central Ukraine. Some local councils in the regions
also adopted resolutions in support of the Euromaidan and the European
integration of Ukraine, acts which exceeded the responsibilities of local
authorities. On 22 February 2014, the day the parliament of Ukraine offi-
cially declared for the self-removal of Yanukovych from his responsibilities,
the leaders of the Party of Regions, Mykhaylo Dobkin, the governor of the
Kharkiv Council, and members of parliament Vadym Kolesnichenko and
Oleh Tsarev, called a second assembly of deputies of all levels of the south-
eastern oblasts, the city of Sevastopol, and the ARC in Kharkiv. The orga-
nizers claimed that more than 3,000 participants participated in the
assembly. There, Tsarev declared that an armed coup d’état had taken
place in Ukraine. The assembly adopted a resolution that stated that in
view of the disruption in the constitutional order, the organs of local gov-
ernance, the Verkhovna Rada of the ARC, and the city council of Sevastopol
were to take responsibility for the preservation of constitutional order,
respect for law and human rights and the safety of citizens in the territo-
ries. In contrast to the events of 2004, a delegation from Russia, including
Aleksei Pushkov, the head of the State Duma committee on international
relations, participated in the assembly and officially supported the gather-
ing (Mediaport 2014). In an interview he gave to a researcher Anna
40  O. MYSHLOVSKA

Matveeva in 2017, Oleh Tsarev recognized that the expectation was that
the role of anti-Maidan protests and the setting up of a Coordination
Council of the Southeast in spring 2014 would be similar to the 2004
congress in Severodonesk in opposition to the Maidan protests. However,
the regional elites lost control of the events (Matveeva 2017, 81–82).
Tsarev also states that the regional elites were afraid of losing their jobs in
the event of Maidan’s victory (ibid.).
In comparison with the earlier stages of contention, the situation in
2014 became more complex with the opening of new lines in the conflicts.
While the internal dimension in center–periphery contestation and inter-
regional differences in identifications, attitudes, and memories remained,
there was a fragmentation of actors at the regional level, participation of
external actors opening new dimensions in the conflict, and loss of control
by the regional elites. An important research question that remains is the
role of decentralization and democratic governance reforms that began to
be implemented by the government that came to power following the
Euromaidan on the management of persisting internal cleavages and the
claims of regional and local elites.
Ongoing reforms have already addressed one of the underlying struc-
tural causes of the conflicts—the non-transparent and corrupt distribution
of state funds—by establishing rules for defining the amount of funding
for regional development on the basis of a formula and direct budget rela-
tions between communities and the state budget. By making the collec-
tion of taxes and financial flows from the center more predictable and
transparent, decentralization removed, to a degree, the opportunities for
national and elites to engage in patron–client dealings. None the less,
somes of the funds from the state budget are still distributed in a non-
transparent manner. Also, there has been a decrease in support for feder-
alization and an increase in support for decentralization in eastern
Ukraine (Fond Demokratizatsiya 2017), which is another factor indicat-
ing a potentially positive role of decentralization in conflict resolution and
peace-building.

Conclusions
The chapter has shown that regional differences in terms of identity and
historical legacies have been used to make a variety of claims, including
separatist and autonomy claims, and have been reshaped in the process of
center-periphery contention since the late 1980s. Beyond the widely
2  REGIONALISM IN UKRAINE: HISTORIC EVOLUTION, REGIONAL…  41

acknowledged role of external intervention in the escalation of conflict in


eastern Ukraine in 2014, the chapter has examined the long-term non-
violent contention related to regional cleavages prior to the escalation of
the conflict and political exclusion.  It  has shown the differences in the
claim-making and accommodation of claims between the three regions
studied: Transcarpathia, Crimea, and Donbas. While in the case of
Transcarpathia and Crimea, local councils and parliaments and elections
played an important role as sites of contestation, deliberation, and consen-
sus-seeking that were recognized as legitimate by all parties, in the case of
Donbas, characterized as a “captured region,” control of local govern-
ment, media, and civil society by regional elites prevented similar pro-
cesses, and center–periphery conflicts were resolved not through the use
of institutions but rather through elite pacts. This chapter has examined a
variety of means for the accommodation of claims at the regional and local
levels such as an asymmetric state structure, power devolution, free eco-
nomic zones, subsidies and budget disbursements, power-sharing at the
national level, and local and regional legislation on historical memory and
languages. Because of Ukraine’s regional particularities, different forms of
accommodation have worked in different regions, which means that
decentralization could work differently in different regions. This requires
further research.
While the blurred nature of ethnic, linguistic, and regional divisions,
and an absence of stable regions in Ukraine, are widely acknowledged
(Schmid and Myshlovska 2019), this chapter has identified several impor-
tant features of regionalism since 2014: a persistence of regional and local
attachments in Donbas (in the government-controlled areas); changing
attitudes to the independence of Ukraine and to the nature of the admin-
istrative–territorial structure beyond western Ukraine; and so important
inter-regional differences in terms of historical memories, attitudes to the
Euromaidan and the nature of the ongoing conflict.
While the core focus of conflict-resolution efforts has been on the vio-
lent conflict in eastern Ukraine, the persisting internal dimensions of the
conflict have received less attention. In the last few years there has been an
increasing identification with Ukrainian citizenship and support for decen-
tralization, so important regional differences in terms of historical memo-
ries, attitudes to the Euromaidan, and the nature of the ongoing conflict
remain and may be a source of vulnerability to future regional mobiliza-
tions. The effect of the ongoing reforms in decentralization and demo-
cratic governance on the resolution of center–periphery conflicts and the
accommodation of regional claims remains to be seen.
42  O. MYSHLOVSKA

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CHAPTER 3

Navigating Ethnopolitical Disputes:


Ukraine’s Constitutional Court in the Tug-­
of-­War over Language

Andrii Nekoliak and Vello Pettai

Introduction
Ethnopolitical controversies are often seen as zero-sum and difficult to
resolve by negotiation between conflicting sides. Mediation and even arbi-
tration sometimes seem like the only ways out, especially when a dispute
has reached boiling point. Needless to say, the most extreme version of
such intervention comes in the form of international involvement.
However, before such a drastic situation can arise, democratic institutions
within countries themselves should provide mechanisms for resolving eth-
nopolitical disagreements by fostering dialogue and establishing legitimate
decision-making mechanisms. Parliaments are meant, of course, to

A. Nekoliak (*) • V. Pettai


Johan Skytte Institute of Political Studies, University of Tartu, Tartu, Estonia
e-mail: [email protected]

© The Author(s) 2020 49


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_3
50  A. NEKOLIAK AND V. PETTAI

nurture such conflict resolution in the first instance by ensuring represen-


tation for all groups in a society as well as acting as a site for interest aggre-
gation, exchange, and negotiation. Further, liberal constitutionalism is
intended to provide additional, counter-majoritarian protections through
non-elected institutions such as ombudsman and, above all, courts of law.
It is this dimension of ethnopolitics that this chapter addresses: how has
Ukraine’s Constitutional Court navigated appeals brought to it by com-
peting plaintiffs in cases involving the country’s language policy and lan-
guage legislation?
For three decades, the language issue (together with issues of historical
memory and identity) has loomed large in public and academic debates in
and about Ukraine. Among others, the discourse of “two Ukraines” (dvi
Ukrainy) has emerged in public intellectuals’ understanding of the coun-
try’s regional diversity (Riabchuk 2003). Although it is speculative to
believe that this diversity might undermine the idea of establishing an
enduring and workable Ukrainian nation-state, it is clear that ethnopolitics
are at play throughout Ukrainian society and therefore warrant scholarly
attention.
The contribution made by this chapter comes from its focus on lan-
guage issues and how the law plays into the status and institutionalization
of the two major languages of the country: Ukrainian and Russian. Current
studies usually provide an overview of the evolution of governmental lan-
guage policy and of how various language legislation initiatives were intro-
duced in post-Soviet Ukraine (Arel 1995; Besters-Dilger 2009; Kulyk
2009, 2013; Moser 2013).To date, only a handful of studies have focused
more extensively on legal or judicial dimensions of language policy.
Bowring (2009) analyzed Ukraine’s obligations according to international
law in the domain of language use and minority protection. Trach (2009)
focused on language legislation and the usage of Ukrainian and Russian in
the judicial sphere. However, the latter contribution surveyed the devel-
opments in the area of legislation on language in the courts and did not
pay attention to the role of constitutional review and judicial politics in
managing language policy in Ukraine, as this chapter will do.
We argue that the narrative of Ukraine’s Constitutional Court over lan-
guage matters and legislation can be expressed as follows. The court argues
and upholds prerogative of the parliament to regulate social relations and
language use in the country. This means that, on the one hand, it refrains
from introducing policy tools for language management and usually
waives appellants’ arguments to deal with content of language legislation;
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  51

on the other hand, when it does exercise constitutional review and makes
a decision to invalidate a certain piece of language legislation, the court
checks if parliament abided by constitutional procedure for adopting a
piece of legislation. In other words, when language legislation matters are
under its review, the Constitutional Court considers the prerogative of
constitutional review in a “narrower” sense as conformity of legislation to
constitutional procedure of adoption. As the analysis below demonstrates,
the court is more vocal on the ethnopolitics of language matters when it is
not being asked to issue a direct policy-outcome decision or when it adju-
dicates in a separate policy domain, where the court will not alter the legal
framework on languages formally. This allows one to conceptualize the
Constitutional Court as a “minimalist” institution that treats law as some-
thing that is created first and foremost according to, and enshrined in, a
proper procedure. Therefore, this chapter echoes the conclusion pub-
lished previously by Wolczuk (2002b) that the Constitutional Court is an
adherent of positivism in legal doctrinal sense.
The chapter is structured as follows. The first section elaborates briefly
on the phases of language policy in Ukraine, including the new language
law of April 2019. The second section elaborates the framework of
Ukraine’s Constitutional Court, its evolution and main parameters.
Thereafter, the next three sections present emblematic cases from the
Ukraine’s Constitutional Court on language-related matters. The sections
showcase how different Ukrainian-minded and Russian-minded appellants
have engaged the court in order to foster competing views and agendas
over the status of Ukrainian and Russian in the country. The implica-
tion of the chapter is to illustrate the challenge for any constitutional or
high court to remain a credible institution in light of growing “judicializa-
tion” of politics. Ultimately, the magnitude of the task is even greater for
constitutional courts dealing with sensitive and divisive ethnopoliti-
cal issues.

I. The Language Issue and Phases of Language Policy


in Ukraine

As with many republics of the former Soviet Union, Ukraine has had to
struggle since the late 1980s with a process of re-equilibration of its lan-
guage landscape and language policy away from the preponderant role
previously played by Russian. Not only was Russian the privileged
52  A. NEKOLIAK AND V. PETTAI

language of communication across the disparate parts of the USSR, it also


seeped its way deep into the individual national republics, often becoming
a prevalent language in local state administration, written regulation, and
day-to-day operation. Part of this process was, of course, driven by the
proportion of ethnic Russians in a given republic or even region of a
republic: where Russians constituted large majorities of the regional popu-
lation, the Russian language ended up dominating the linguistic land-
scape. However, with the advent of national independence for all of the
former Soviet republics, the question of how much titular language should
now become the mainstay of state administration and public communica-
tion across these territories quickly came to constitute the essence of eth-
nopolitics around language policy. How would different political forces
take steps to defend or alter such linguistic balances and language regimes?
What specific changes would be enacted by language laws and their
amendments when they succeeded in being adopted? Would there also be
reversals in this process? Before looking, therefore, at how the Ukrainian
Constitutional Court would be pulled into these different struggles, a
brief overview of the actual course of language policy in Ukraine is in order.
Ukraine’s history of language policy begins (as it did in many ex-Soviet
republics) during the heyday of Mikhail Gorbachev’s perestroika reforms,
when, in 1989, the Supreme Soviet of the Ukrainian Soviet Socialist
Republic adopted a law “On Languages in the Ukrainian SSR.”1 Akin to
many other Soviet republics, the Ukrainian parliament declared the
Ukrainian language as the official state language, while at the same time
acknowledging the special status of Russian in certain domains. While this
was an important first symbolic step toward determining the new language
regime, in practice Russian continued to dominate across many areas of
societal life (Kulyk 2006). Moreover, as Wolczuk (2002a, 88–89) notes,
the law remained vague on how to enforce or upgrade the status of the
Ukrainian language in practice.
This becomes an important parameter of the language issue in Ukraine,
since for the next two decades this relatively ambiguous law would remain
on the books, despite attempts to amend or even repeal its provisions. In
other words, stalemate around a dysfunctional legislative framework meant
that different political forces would end up seeking recourse through
other institutions, including the Constitutional Court. In the meantime,

1
 The official Ukrainian-language titles of national laws discussed in this chapter are listed
at the end of the chapter under “Laws of Ukraine [Verkhovna Rada Ukrainy].
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  53

however, a second nominal development occurred in 1996—the adoption


of a new Constitution. In addition to revamping all of Ukraine’s political
institutions, the Constitution reaffirmed in its Article 10 Ukrainian’s pre-­
eminent linguistic status. Moreover, it decreed, “The State shall ensure
comprehensive development and functioning of the Ukrainian language
in all spheres of social life throughout the entire territory of Ukraine.”
While the new document singled out the “free development, use and pro-
tection of Russian” as guaranteed in the country, it did not accord it any
special rights in state administration or other official domains.
In this respect, Ukraine continued with two oftentimes largely declara-
tive, and yet still highly significant, affirmations of the new language
regime in the country. Moreover, because of this flux and ambiguity, lan-
guage struggles would continue throughout the 1990s and 2000s, with
different sides trying to tilt the balance in one way or another. These
pitched battles would flare up around different lower-level regulatory
changes, during the ratification of the European Charter for Regional and
Minority Languages and during efforts to regulate cinematography and
language usage in courts. As we will see below, this is where the
Constitutional Court would frequently be brought into the ethnopoliti-
cal fray.
A game-changer of sorts took place, however, in 2012 with the adop-
tion of a new law “On Principles of the State Language Policy” promoted
by President Viktor Yanukovych and the language warriors in his camp.2
The law was aimed at turning around the previous institutionalization and
strengthening of Ukrainian language in favor of a leveling up of regional—
mostly Russian—languages in the country. As is known, this move came to
be one of the broader reasons for Yanukovych’s downfall during the
Maidan Revolution in 2014. However, before this demise, the Kivalov–
Kolisnichenko law had become an object of dispute before the
Constitutional Court.
Unsurprisingly, the victory of the pro-Ukrainian forces during the 2014
Revolution led to a renewed push to strengthen the position of Ukrainian
language in society, including legislation that imposed obligatory quotas
of Ukrainian on radio (Zakon Ukrainy 2016), on TV (Zakon
Ukrainy  2017a), and limited the scope of minority language education

2
 In Ukraine, the law is usually referred to as the Kivalov–Kolisnichenko Law after the
influential “Party of Regions” MPs, Serhiy Kivalov and Vadym Kolisnichenko, who pushed
the law through in 2012.
54  A. NEKOLIAK AND V. PETTAI

(Zakon Ukrainy 2017c; Kulyk 2018, 2019). Most prominently, in 2018,


the Constitutional Court annulled the 2012 law, paving the way for the
adoption in 2019 of an entirely new law “On Provision of Functioning of
Ukrainian Language as the Official Language.” This law would further
bolster Ukrainization by, among other things, consolidating the use of
Ukrainian in the entertainment industry, customer service, television
broadcasting, advertising, print media, and other spheres; establishing a
position of the language “ombudsman” to deal with the protection of the
state language; and establishing liability (fines) for failure to comply with
the law’s comprehensive requirements (Zakon Ukrainy 2019).
In the broad scheme of things, therefore, political struggles over lan-
guage in Ukraine have ebbed and flowed, with the last decade, of course,
witnessing a number of dramatic shifts and tensions. Closer analysis of
how the country’s Constitutional Court has attempted to adjudicate com-
plaints within this struggle will show that courts cannot necessarily take on
a full-scale role of arbiter or promulgator of final justice, especially on
sensitive ethnopolitical matters. It is more likely that it will stick to proce-
dural questions where possible, and where not, it will concur with legisla-
tures’ rights to enact policy, but will not pronounce on whether a policy is
ethnopolitically fair or not.

II. The Constitutional Court of Ukraine


Ukraine’s Constitutional Court (KSU) was created in 1996 following the
adoption of the new constitution that revamped the country’s institutions
after the period of flux of the first independent years. An initial attempt at
creating a constitutional review structure had begun in 1992, but this
institution never got off the ground (see Wolczuk 2002b, 329–330).
Currently, the KSU consists of 18 justices, six appointed by the President,
six by parliament, and six by the Congress of Judges, all for 9-year terms.
First and foremost, the Court is empowered to review the conformity of
parliamentary legislation with the Constitution. In addition, it may rule
on the constitutional conformity of other parliamentary acts, decrees of
the President, decisions of the Cabinet of Ministers, and legislative acts of
the Crimean Parliament. Additionally, it may provide official interpreta-
tions of the Constitution, and during the 1996–2016 period, it was tasked
explicitly with interpreting national legislation when called upon to do so.
Such interpretations were seen as a type of adjudication in that they con-
stituted a binding legal opinion concerning the understanding and
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  55

application of pieces of legislation in practice. Finally, in a number of situ-


ations, the KSU has been further asked to provide official inferences (vys-
novky) on a number of defined matters such as the constitutionality of
international agreements or questions put to a national referendum by
popular initiative.3
Although the original law governing the Constitutional Court’s work
was changed several times during its first 20 years, none of these changes
significantly altered its main framework, with the amendments usually
having a merely technical character.4 At the same time, the court also
developed a major credibility crisis, since the appointment of justices by
the three constitutionally designated institutions often became politicized,
especially by the presidency. These twists and turns echoed the overarch-
ing political struggles across the presidencies of Viktor Yushchenko, Viktor
Yanukovych and finally Petro Poroshenko. Presidents sought to use the
Constitutional Court in their separate struggles with the legislature.
An important shift took place in 2016, when the range of eligible appel-
lants to the court regarding matters of constitutionality was expanded to
include single individuals. Prior to that, individuals had only been able to
ask for an official interpretation of legislation. Secondly, the new amend-
ments limited the prerogative of the court to issue official interpretations
only in relation to the Constitution and not to ordinary legislation.
Thirdly, the professional requirements for being a constitutional court jus-
tice were raised to having at least 15 years of experience in the legal profes-
sion (up from 10 years), as well as a need to have demonstrated “high
moral traits” during their prior career. A second wave of changes took
place in 2017, when a series of amendments to the Constitution prompted
the adoption of an entirely new law on the Constitutional Court and its

3
 See Article 7 of the 2017 Law on the Constitutional Court for a full list of these domains.
4
 To illustrate this point further, in 2006, the new amendment reiterated the provision of
the Law of 1996 that a constitutional judge takes the oath during the session of the parlia-
ment with the President, the Head of the Supreme Court, and the Prime Minister being
present in the session (Zakon Ukrainy 2006). Simultaneously, the amendment removed a
caveat that the oath should be taken a month after a judge’s appointment to the Constitutional
Court (ibid.). Furthermore, a more important provision of the Law of 1996 was annulled in
2009. The provision of Article 6 of the original Law on the Constitutional Court from 1996
established that the president was to hold consultations with the prime minister and the
minister of justice regarding new appointees to the Court. According to the provision, the
prime minister and minister of justice had to co-sign presidential degrees on new appointees.
This provision was proclaimed unconstitutional by the Constitutional Court in a decision in
2009 as infringing on constitutional prerogatives of the president (KSU 2009).
56  A. NEKOLIAK AND V. PETTAI

proceedings. In particular, the 2017 law restructured the work of the


court into six chambers or collegiums, two senates and one Great Chamber.
This change was meant in part to give the court a better division of labor
so that it could deal more efficiently with the new reality of individual
constitutional complaints. Hence, the new senates were tasked with adju-
dicating individual constitutional complaints, the collegiums would decide
on opening or refusing constitutional appeals, while the Chamber would
constitute the Constitutional Court’s sitting en banc to decide on matters
of ultimate constitutionality (Zakon Ukrainy 2017b). While these changes
helped to alleviate some of the paralysis of the court (for example, in 2017
the court issued barely any rulings because of this period of flux), ques-
tions remained about how it would deal with the new heavy inflow of
individual complaints, numbering already in the hundreds (Lovin and
Vovk 2018; Slidenko 2018).

III. Constitutional Court Cases


on Language Matters

Political science scholarship on constitutional adjudication in Ukraine has


been thin, with most studies focusing on the Constitutional Court’s role
in mediating overall power politics in the country (D’Anieri 2003, 2006,
91, 179, 205).A few scholars have aimed to profile the court’s jurispru-
dence in a more thorough manner (Wolczuk 2002b; Brown and Wise
2004; Protsyk 2005). In this research, the court emerges as a “navigating”
institution in Ukraine’s power politics, often seen as succumbing to the
demands of the presidency. In terms of defending rights or taking clearer
stances on normative issues, Wolczuk (2002a, b) found the court’s juris-
prudence to be enshrined in legal positivism and that it “has generally
exercised restraint and largely avoided rulings concerned with rights,
which would take it beyond the remits of the Constitution into the wider
terrain populated by such concepts as ‘the rule of law’, ‘social justice’,
‘social state’, or ‘fundamental rights’” (Wolczuk 2002b, 327). Likewise,
Wolczuk concluded that the court was often prone to “political expedi-
ency” in how it resolved political power conflicts between the president
and parliament in the late 1990s (Wolczuk 2002a, 240, 259–280). In our
analysis of language issues, we will find similar reticence and careful
decision-­making on the part of the court.
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  57

Table 3.1  Eligible appellants and appeal types to the Ukrainian Constitutional
Court, and the number of appeals concerning language politics by each category,
1996–2019
Appellants Constitutionality Official Official
interpretation of interpretation of
the Constitution ordinary legislation

President of Ukraine

Parliamentary deputies 11* 1 2

Supreme Court of Ukraine

Ombudsman

Crimean Parliament 1

Cabinet of Ministers

Territorial self-government 3

Individuals

Note: Shaded boxes denote appellants who lost respective standing before the Court after 2016
∗As of August 2019, one appeal was still pending before the Court. It was from the Opposition Bloc
(Oposyciynyi Blok, i.e. former members of President Yanukovych’s Party of Regions) to review the consti-
tutionality of the new law “On Provision of Functioning of Ukrainian Language as the Official Language”
(KSU 2019a).

In Table 3.1, we provide an overview of appellants and appeals on lan-


guage legislation and issues brought before the Constitutional Court since
1996. The table encompasses the respective provisions of the Constitution,
and the two Laws on the Constitutional Court from 1996 and 2017. As
noted earlier, there are two main modes of court decision-making: review-
ing the constitutionality of ordinary legislation and other legal acts, and
providing official interpretation of the Constitution and other legal acts.
The shaded boxes indicate when a respective appellant does not have the
right to request a corresponding mode of adjudication from the
Constitutional Court.5
The range of institutions that have standing before the court as well as
their rights to obtain certain rulings from the court changed as a result of

5
 For a chronological outline of the cases covered in this chapter, see Table  3.2 in the
appendix.
58  A. NEKOLIAK AND V. PETTAI

the constitutional amendments in 2016 and the adoption of the 2017


Constitutional Court law. On the one hand, the rights of individual appel-
lants were strengthened thanks to the ability to lodge formal constitu-
tional complaints  as a way to appeal final decisions of ordinary courts
granted in the new law. On the other hand, they lost the right to request
official interpretations, which in some ways were more effective. In addi-
tion, the Cabinet of Ministers was and remains able to request a constitu-
tional review, but only regarding the question of Ukraine joining
international agreements. Lastly, other governmental offices and bodies of
territorial self-government have never had the capacity to request consti-
tutional review, and the avenue of requesting official interpretations of
legislation was closed for them in 2017. Although none of these pathways
to the court has so far played a role in judicial politics concerning language
issues, it is important keep this range in mind in seeking to understand the
options that political forces might have in pursuing their ethnopoliti-
cal aims.
As Table  3.1 shows, judicial struggles over language legislation have
mostly taken place via parliamentary politics, with different MPs seeking
to transfer recurring battles over language legislation to the Constitutional
Court for further contestation. Moreover, MPs have generally aimed to
obtain “harder” and more impactful rulings on actual constitutionality
rather than the “softer” avenue of mere official interpretation. Because the
struggle over language legislation has generally involved attempts to pitch
the regime toward either increased Ukrainian predominance or a protec-
tion of Russian language spheres, the various cases brought before the
Constitutional Court can also be seen as serving to further one or the
other faction. Moreover, within the context of parliamentary politics, one
can see many of the well-known political forces on both sides of this afore-
mentioned struggle over language legislation using the Constitutional
Court as part of their ethnopolitical campaigns. Hence, during the early
years of the court in the second half of the 1990s, it was the People’s
Movement of Ukraine (Narodnyi Rukh) or national-democratic opposi-
tion party in the parliament that campaigned for a more solid standing for
Ukrainian in Ukrainian public life. Rukh originated in the late 1980s as an
equivalent of the popular front movements in the Baltic states. It gathered
within its ranks former dissidents and Ukrainian-minded intellectuals and
activists and had its electoral base mostly in western Ukraine. It was also
the first political force to take up the avenue of constitutional appeal when
trying to draw attention to what, in their mind, was the toothless nature
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  59

of 1990s language legislation. Moreover, as will be described below, Rukh


would pursue these aims not only in terms of national constitutional law,
but also via international law, drawing on the European Charter for
Regional and Minority languages.
After Rukh declined in prominence, other national-democratic political
parties such as Our Ukraine (Nasha Ukraina) and Fatherland (Batkivschyna)
took the lead in making appeals to the Constitutional Court. These efforts
reached a fever pitch after 2012, when President Yanukovych and his Party
of Regions (Partia Rehioniv) pushed through approval of the Law “On
Principles of the State Language Policy” that many saw as promoting the
interests of the Russian language in the country by granting it a special
regional status. It was at this point that the ethnopolitical contest broad-
ened to include a number of western Ukrainian regional councils, who
employed their right to request legal interpretations from the Constitutional
Court as a way of further stemming the new shift in language regime.
At the same time, the judicial path of contestation was also employed
by Russian-minded parliamentarians. These forces arose from among the
Ukrainian Communist Party as well as at times from the Crimean
Parliament. In the case of the former, the party attempted in 2002 to
amend the Constitution to create a category of “official language” for
Russian. In order to bolster these aims, the party turned to the
Constitutional Court for a comment on the permissibility of such a
change. Meanwhile, the Crimean Parliament (along with support from
Communist deputies) sought relief from the court for what they claimed
was a downgrading of the status and scope of Russian language on the
peninsula and in the country as a whole. Their focus was on language
rights in the administration of justice and the language provisions con-
tained within different procedural codes. All of these instances are
described in greater detail in the following sections on Constitutional
Court jurisprudence.
The focus of post-independence language struggles on the Ukrainian/
Russian cleavage delayed Constitutional Court consideration of individual
constitutional complaints about the near-absence of effective legislation
for other minority languages. As will be shown in the following sections,
high-profile political actors in the parliament, concerned with institution-
alizing Ukrainian vis-a-vis Russian, were the main drafters and the main
presenters of language appeals. In some of the cases (most notably,
addressing the post-Euromaidan education law of 2017), the usage of
ethnic minority languages other than Russian was directly impacted by the
60  A. NEKOLIAK AND V. PETTAI

court’s decisions. However, even in such cases the focus of adjudication


was still predicated on the main language cleavage in Ukraine, sidelining
the attention to minority languages other than Russian (e.g. Hungarian
and Romanian) in various domains of public life. This situation may
change in the future as there is more space for individuals to appeal to the
court following the judicial reform in 2016.  The question, however, is
whether such potential appeals will break the well-established patterns of
the court’s reasoning on language legislation matters.

IV. Institutionalizing Ukrainian and Favoring


the Prerogative of the Parliament in Language
Policy Development
Amidst the ambiguity of Ukraine’s language regime during the 1990s—
operating under an arguably archaic language law from 1989, while hav-
ing adopted merely declaratory assertion of Ukrainian as the sole state
language per the new 1996 Constitution—it became the task of the
Constitutional Court to breathe some life into this framework in 1999,
after a group of mostly Rukh parliamentarians sought the court’s interpre-
tation of Article 10 of the Constitution, defining the role of languages in
the country. It is at this point that we begin to see the nuanced role that is
played in Ukrainian linguistic ethnopolitics by institutional provisions
such as the interpretive acts issued by the Constitutional Court, since it is
this constellation of procedures that allowed a kind of soft supremacy of
Ukrainian to be legitimized, while not occasioning direct political con-
frontation via a harder ruling regarding constitutionality of a legal
act per se.
In their appeal, the nationalist parliamentarians claimed that, despite
the new Constitution’s stipulations, the state language still did not enjoy
the status it should in the actual operation of government. They main-
tained that Russian continued to be used widely in the management of
public affairs and that this practice violated Article 10 of the Constitution
by overlooking Ukrainian as the state language (KSU 1997). At the same
time, the deputies’ appeal was not about a single institution or defendant
violating these norms. Rather, they sought an official interpretation from
the Constitutional Court about how seriously Article 10 should be taken.
This would engender a situation where the court would issue a pronounce-
ment on how to understand the parameters of Ukraine’s new language
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  61

regime, but would leave it up to the legislature to determine the more


precise details.
In its decision, the court began by reiterating the constitutional norm
and role of Ukrainian language as an “obligatory tool of communication
on the territory of Ukraine by bodies of public authority, territorial self-­
government (the language of official acts, workings, internal documenta-
tion flow etc.), and also in other public spheres of the life of society, which
are specified by the law” (KSU 1999). At the same time, it reaffirmed
sections of the Constitution (such as Article 11) declaring that the state
shall promote “the linguistic identity of all indigenous peoples and national
minorities of Ukraine.” Turning to more specific societal domains, the
court established that Ukrainian should be used as the main language of
instruction in public and municipal educational establishments starting
from the pre-primary level and up to higher education. At the same time,
it acknowledged that other languages could be used alongside Ukrainian,
but only as specified by law (KSU 1999). Further, the court enumerated a
number of other arenas where Ukrainian language had already been legiti-
mately promoted via legislation (such as within consumer affairs, the
armed forces, and in public communications by state authorities). This
implied that the state had a right to enforce the norms of Article 10 and
impose “hard” policy tools as necessary. For its part, however, the court
offered its “soft” affirmation of these trends.
The court’s next two decisions demonstrated how it dealt with policy
issues in the aftermath of proclaiming “soft” supremacy of Ukrainian lan-
guage and continuing to favor parliamentary prerogative in the manage-
ment of language policy. In 2003, another group of nationalist MPs
sought to pin the court down more specifically on language policy areas
they felt were still being neglected or violated. Specifically, they challenged
the constitutionality of the practice of Ukrainian government officials issu-
ing citizenship and other identity documents that continued to have
inscriptions in both Ukrainian and Russian. The deputies argued that this
was unconstitutional as per the Constitution’s Article 10. The deputies
called for Article 14 of the 1989 language law (which facilitated this bilin-
gualism) to be declared unconstitutional in light of Article 10 of the 1996
Constitution. They did soon the basis of the court’s own previous 1999
ruling establishing the primacy of Ukrainian. Yet, on this occasion, the
court steered away from letting itself be pulled into a blanket application
of Ukrainian language primacy in state affairs. It turned instead to point 5
of Article 10 of the Constitution, which states “The use of languages in
62  A. NEKOLIAK AND V. PETTAI

Ukraine is guaranteed by the Constitution of Ukraine and is determined


by law.” It used this as cover to enable it to rule that it was parliament’s
duty to enforce (or perhaps clean up) legislation on the use of Ukrainian,
and if parliament had not done so, the court was not in a position to do it
in its stead, since the letter of the Constitution allowed for other languages
to be used (KSU 2003).
A different situation arose in 2006 when another group of parliamen-
tarians (this time representing Nasha Ukraina—President Yushchenko’s
group in the parliament) asked the court to provide an official interpreta-
tion of Article 14 of the Law “On Cinematography”. This provision of the
law had been seen as an affirmative action measure to support the use of
the Ukrainian language in the movie industry (KSU 2006). However, this
time the deputies sought affirmation from the court that the law required
that all movies produced abroad and screened in Ukraine had to be either
dubbed or subtitled into Ukrainian. The question at stake, therefore, was
whether the legal provision could be seen as having an obligatory effect.
In its decision, the court reiterated that the state can legitimately regulate
social relations in this sphere and it supported the view that “the legislator
has obliged every subject of cinematography to dub or subtitle foreign
movies in the Ukrainian language before their distribution in Ukraine”
(KSU 2007). Moreover, on a practical level, this meant that the issuing of
licenses for distributing and screening movies could also made contingent
on companies fulfilling the requirements of dubbing and subtitling movies
into Ukrainian.
These two decisions demonstrated that the more the Constitutional
Court was asked to get involved in language issues as a policy maker, the
less it was inclined to intervene. In both cases, the appellants had referred
to the court’s decision from 1999, seeking it to make good on the soft
supremacy of Ukrainian. Moreover, both cases dealt with the application
of Ukrainian in societal spheres, where the legal regulation of language
usage was seen as admissible. However, what differentiates the two cases is
the type of ruling requested by the applicants. In the case involving lan-
guage inscriptions on passports and other identity documents, the court
was asked to check the formal constitutionality of existing administrative
practice; Ukrainian-minded deputies sought to get the court to rule the
practice of issuing bilingual passports unconstitutional. Had it decided to
open proceedings and rule in the case, the court would have assumed the
role of a policy maker. In the cinematography law case, however, the
appellants asked only for clarification of the existing legal provision, which
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  63

was introduced by the parliament quite intentionally. In this sense, the


MPs wanted the court to remove any possible misreading of the language
provision. It is important to reiterate that the official interpretation mode
cannot lead to an annulment of legal provisions but the constitutional
conformity mode can. Thus, in the former case, the court favored the
status quo regarding the existing policy tool, that is, the practice of issuing
bilingual passports. In the latter case, the court, without altering existing
policy formally clarified how it should be understood. In this respect, we
can also see that the nationalist MPs used the official interpretation mode
as a means to alleviate their language concerns quite effectively: they got
their desired policy ruling.
An even more emblematic case of confirming the supremacy of
Ukrainian in spheres of public life came in 2019. On the one hand, the
events of the case speak about post-Euromaidan language regime realities,
that is, the “nationalizing” move of Ukraine’s political elites in the domain
of education that heavily influenced instruction in minority languages in
the country. On the other hand, the decision on education law again dem-
onstrates the unlikelihood of the Constitutional Court annulling a law or
its provisions based on constitutionality claims by asking it to be a policy
maker. In such cases, the court would confirm the legitimacy of a law’s
aims by aligning with the measures that were introduced by the parliament
most naturally.
In 2017, the Ukraine’s parliament adopted the new Law “On
Education” that curtailed the ability to be educated in an ethnic minority
language (Zakon Ukrainy 2017c). Article 7 of the law confined such edu-
cation to elementary schools and established a presumption of the teach-
ing process to be conducted exclusively in Ukrainian at higher levels. One
caveat of Article 7 allowed for limited instruction of “one or few disci-
plines” in other languages than Ukrainian at middle and high school lev-
els. In practice, this meant that after finishing elementary school, education
in a minority language was limited to having a separate language or litera-
ture class within the curriculum. The new law sparked an intense interna-
tional controversy and a particular outcry by the Hungarian government
(Kulyk 2018; Slidenko 2019).
Following the law’s adoption, a group of Opposition Bloc MPs con-
tested it before the Constitutional Court on the ground of violation the
right to education (KSU 2017). The deputies argued that a right to be
educated in one’s native language constituted an individual natural right.
By the logic of the deputies, the measures of the new law infringed on this
64  A. NEKOLIAK AND V. PETTAI

right by narrowing the scope and availability of education in a minority


language. More generally, the deputies tried to weigh in Article 11 of the
Constitution, which guaranteed free development of the linguistic identi-
ties of national minorities, against Article 10, which proclaimed Ukrainian
as the state language. They also pointed to parts of the 1999 Decision
reiterating protection of Russian and other minority languages. To add
weight to their argument in the appeal, the MPs quoted the Framework
Convention for the Protection of National Minorities (FCNM), ratified
by Ukraine in 1997. In general, the appeal reinvigorated the question of
the accommodation of minority languages in the country’s constitutional
regime as it applied to languages and as it operated in practice.
Following the pattern of institutionalizing Ukrainian language in the
spheres of public life, the court rejected the appeal and, overall, took an
even more assertive stance over supremacy of Ukrainian than it did in
1999. According to the court, “the state must [italics added] contribute to
development and functioning of the Ukrainian language” (KSU 2019b,
4). In view of the court, the need for more Ukrainian language in schools
was predicated foremost upon the premise of Article 10 of the Constitution.
In other words, having more Ukrainian in education was in line with
“constitutional status of the state language” (ibid., 6). Finally, in the deci-
sion, the court defined that the benefit of greater and more comprehen-
sive socialization of national minorities into Ukrainian society legitimized
the aim of the law.

V. Language Rights in Judicial Proceedings


In the language disputes previously discussed, the heart of the matter
involved establishing language primacy in certain administrative docu-
ments or audiovisual recordings. In other words, they were inanimate
objects. A different kind of language domain involves rights during inter-
active communication and administrative procedure. The judiciary itself is
one such arena. Here, the language regime pertains to not only the
language(s) in which documents are processed (including the language of
final rulings), but also the language(s) the participants are allowed to use
during their interaction. In this respect, this arena pits the principle of
regulating the use of official language(s) in the public sphere up against
individuals’ active (political) right to obtain justice in the language that is
most comfortable for them. During the 2000s, the court was asked twice
to deal with balancing these imperatives. The two cases dealing with the
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  65

language of justice in national courts demonstrate how the court navi-


gated between competing requests coming from different aisles of
Ukrainian politics. In resolving the cases, the court tilted toward defend-
ing the right of all plaintiffs in civil and administrative procedures to use
the language of their choice, while upholding the primacy of Ukrainian
within the judicial institution itself.
The first case emerged in 2004, when the Crimean Parliament peti-
tioned the court to review the constitutionality of Article 7 of the Civil
Procedural Code, set to take effect in 2005. The regional parliament
argued that by declaring the state (Ukrainian) language as the only lan-
guage of courtroom hearings, the Code would seriously disadvantage
other languages (Verkhovna Rada Autonomnoi Respubliky Krym 2004).
This was not least an issue in Crimea, where over 80 percent of the popu-
lation claimed Russian as their first language. Moreover, the previous Civil
Procedural Code of the Ukrainian SSR (from 1963) had guaranteed the
right to conduct courtroom hearings and procedure in the language of the
majority of a given region alongside Ukrainian (ibid.).This would no lon-
ger be the case under the new code.
While the Crimean Parliament submitted its appeal with regard to
Ukraine’s civil courts, an additional appeal was lodged by parliamentarians
from the Communist Party, who challenged analogous changes set to take
effect in the administrative courts. In their petition, the deputies brought
out a further argument in that Article 22 of the Constitution does not
allow for narrowing the content and scope of existing individual rights and
freedoms by introducing new legislation (KSU 2005). Therefore, in the
view of the appellants, the new procedural codes would infringe on indi-
viduals’ opportunity to request the use of Russian in legal procedures pre-
scribed by previous legislation. Finally, both the Crimean Parliament and
the Communist deputies argued that the new procedural codes would
violate the Constitution of the Autonomous Republic of Crimea from
1998 in as far as the regional constitution proclaimed that Russian can be
used in the administration of justice, notary activity, and legal aid, given
the language’s majority status on the peninsula (Verkhovna Rada
Autonomnoi Respubliky Krym 2004; KSU 2005).
While acknowledging the weight of many of these minority-language
claims, the Constitutional Court ultimately confirmed the constitutional-
ity of the new procedural codes. It did so by maintaining that the new
codes continued to “reproduce content characteristics of rights of persons
in judicial proceedings” that had existed under the previous procedural
66  A. NEKOLIAK AND V. PETTAI

legislation (KSU 2008). Thus, in its view there was no narrowing of con-
tent or scope of minority language rights. Likewise, the court maintained
that the overall constitutional provisions protecting the free use of Russian
and preventing discrimination based on language continued to be in force.
Therefore, implicitly plaintiffs in court could continue to communicate in
Russian if they desired. However, the court also pointed out that the
Crimean courts belonged to a unitary system of national courts, meaning
that no exemptions from national procedural codes (especially regarding
the language of judicial documents) could be granted (ibid.).
With this ruling, the court took a step toward reaffirming the primacy
of Ukrainian as the language in judicial administration, while defending
the rights of citizens to use the language of their choice in actual proceed-
ings. Two years later, in 2010, the court came under fire from the other
aisle of Ukrainian politics, when a group of MPs from the Batkivschyna
party group in parliament claimed that a new Yanukovych-era law (“On
the Judicial System and the Status of Judges”) would favor the Russian
language over Ukrainian in the administration of justice. Article 12 of that
law established that the usage of “regional languages” and of “languages
of national minorities” would be allowed in courts alongside Ukrainian.
Here, the parliamentary deputies insisted on the primacy of Ukrainian
without any reservations or caveats. In their view, the new law was a step
back from court’s soft supremacy decision from 1999. While the deputies
did not demand that Ukrainian be the sole language in the judicial realm,
they did argue that using regional languages and the language of national
minorities should be confined to certain judicial districts with particular
regional language habitats and only with regard to the submission of doc-
uments and evidence before the courts (KSU 2010).
On this score, the Constitutional Court rejected the deputies’ argu-
ments and reaffirmed the rights of individuals to uninhibited judicial
access. The court ruled that a person’s right to justice and their right to
defend themselves in court encompassed the possible or necessary usage
of Russian and other national minority languages (KSU 2011). In the
court’s view, “under certain circumstances, realization of a right to justice
relies on a guarantee to use Russian and other minority languages freely”
(ibid.). This also meant that anyone would have a right to use minority
languages in national courts across the entire territory of Ukraine without
caveats or reservations. In other words, the usage of these languages could
not be confined to separate judicial districts.
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  67

VI. Procedural Violations as a Basis


for Court Rulings

As is often the case in judicial rulings, courts must assess not only the sub-
stance of legal disputes, but also the propriety of prior legislative or judicial
procedures. In other words, rulings may be handed down that do not
decide the real essence of a claim, but rather pre-empt such determina-
tions because of the discovery of an earlier procedural failing. In a number
of cases, Ukraine’s Constitutional Court has invalidated laws on these
grounds. Moreover, as we will see in this section, some of these outcomes
have arisen in relation to the most controversial language disputes,
prompting the question whether the court has not sometimes used such
procedural arguments as a convenient escape-hatch during contentious
appeals. In these kinds of decisions, the court has acknowledged and artic-
ulated an inclination to review the constitutionality of language laws in a
narrow sense as conformity to the procedure for their adoption. In this
sense, the court has viewed the checking of the propriety of constitutional
procedure as its primary responsibility with respect to constitutional
review. At the same time, the pieces of legislation that the court has invali-
dated based on such findings has involved several high-profile attempts to
bring about the most drastic changes to the country’s language regime.
The response of the court has been to waive claims about the substance of
such changes and not get involved in the development of or debate over a
proposed frameworks and policies.
A case in point began in December 1999, when the Ukrainian parlia-
ment adopted a law ratifying the European Charter for Regional or
Minority Languages. This key international framework for promoting lan-
guage diversity in Europe (sponsored by the Council of Europe) had been
controversial in many countries where language disputes exist. In Ukraine,
MPs from the nationalist Rukh party were no exception to these senti-
ments, and proceeded to appeal ratification to the Constitutional Court.
Their concerns continued to be motivated by the anxieties touched upon
earlier: that Ukrainian was not enjoying majoritarian status in the country
politically and socially, and that implementation of the charter would sub-
vert the state language regime. The plaintiffs expressed the view that the
legal regulation of languages should be made by the country’s laws and
not by ratifying international treaties (KSU 2000a). Thus, on the substan-
tive side, the Rukh representatives argued that the law ratifying the charter
was not a legitimate tool for regulating language usage since it introduced
68  A. NEKOLIAK AND V. PETTAI

“a regime of applying national minority languages, which discriminates


against the state language in Ukraine” (Ibid, 3).
At the same time, parliamentarians spent a greater part of their appeal
elaborating on alleged procedural inconsistencies committed during pas-
sage of the law in parliament. In particular, the deputies alleged that the
manner in which the law had been promulgated was unconstitutional, and
therefore the law itself should be annulled. The dispute involved Article
94 of the Constitution, which establishes that a piece of legislation, after
having been signed by the Speaker of Parliament, must be sent to the
President for final signature, promulgation and entry into force. However,
the law ratifying the charter had been passed based on Ukraine’s 1993 law
“On International Treaties”, which stipulates that legislation involving
international treaties is signed only by the Speaker and enters legal force
immediately thereafter. The Rukh parliamentarians argued that this was
unconstitutional, and they used this procedural incongruity to question
the validity of the entire charter.
The court bowed to these technical arguments, noting that parliament
should have adhered to the 1996 Constitution and not the 1993 interna-
tional treaties law. The basic framework of Article 94 in the Constitution
was both exhaustive and supreme in the way it envisaged the procedure for
signing pieces of legislation, and laws ratifying international treaties were
no exception in this regard (KSU 2000b). Therefore, the court struck
down both the ratification law and the respective provisions of the inter-
national treaties law. At the same time, the court, commenting on the
appellants’ substantive arguments regarding the charter, noted bluntly
“With the regard to the constitutional appeal’s point regarding unconsti-
tutionality of some provisions of the Charter in their substance, the court
came to conclusion that the law in question did not hold to constitutional
procedure requirements for signing and publishing of laws (Article 94 of
the Constitution), and the raised questions of substance were not a subject
of the Court’s review” (ibid.).While the Ukrainian parliament eventually
passed the European Charter again, in due conformity with the
Constitution, this case does serve as an example of how language ethnop-
olitics in Ukraine has sometimes ridden the waves of procedural hiccups.
Even more emblematic of this phenomenon was an episode beginning
in 2002, when 165 MPs introduced a legislative amendment to grant a
new kind of “official language” status to Russian in Ukraine’s Constitution.
The amendment was first proposed by parliamentarians from the
Communist Party group in the parliament, who were delivering on a
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  69

long-standing promise dating back to the 1990s to grant separate status to


Russian in the Constitution. The amendment proposed to supplement
Article 38 of the Constitution with a “right to use Ukrainian as a state
language and Russian as an official language in the process of managing
public affairs and in the bodies of territorial self-government” (Grach et al.
2002). Thus, the amendment was meant to establish a new binary lan-
guage regime, circumventing the core Article 10 on language statuses in
the Constitution.
In the event, the Constitutional Court again used a procedural argu-
ment to refuse even to rule on the case. It asserted that under Article 156
of the Constitution all changes concerning the main foundations of the
state and society must be introduced to the parliament by no less than two-
thirds of the body’s members, hence at least 300 MPs. Although the
Communists’ amendment seem to concern a more innocuous section of
the Constitution concerning citizens’ rights in public administration, the
court still found that the creation of a new kind of “official language” status
for Russian would alter the main contours of Ukrainian statehood and
therefore declared the amendment subject to the higher threshold for con-
sideration. Since the amendment did not meet this threshold, the court
said it “does not have a right to open constitutional proceedings in this case
and to provide a legal decision regarding the amendment” (KSU 2004).
A final example of a backdoor release for the court from involvement in
language ethnopolitics arose in 2018, when the justices were called upon
to formally strike down the highly controversial law on “On Principles of
the State Language Policy” adopted in 2012. Because of the way in which
the law was seen as promoting the rights of the Russian language in differ-
ent regions of the country, it had already been contested in a series of
appeals to the court in 2012. But none of these ended up engendering real
constitutional proceedings or rulings because of repeated technical short-
comings in the appeal documents. Even in the midst of the 2014
Euromaidan revolution, the country was unable to fully abolish of the
2012 language law, since although the parliament did pass a formal act of
annulment, the interim President of Ukraine, Oleksandr Turchynov,
refused to sign the document due to the societal turmoil at the time
(Korrespondent 2014). Because of this, the law lingered on.
In July 2014, the nationalist party Svoboda called on the court to review
the constitutionality of the language law in order to release the legislation
from limbo. In their appeal, the deputies drew on both substantive and
procedural arguments. The appellants argued that the introduction of
70  A. NEKOLIAK AND V. PETTAI

regional languages disadvantaged Ukrainian in the country’s constitu-


tional framework. In the view of Svoboda MPs, Ukrainian language was
being downgraded by a number of provisions which would privilege
regional languages in, above all, public administration, local self-­
government, and the administration of justice. All of this was seen as being
in violation of Article 10 of the Constitution (KSU 2014). Yet, the center-
piece of the appeal revolved around the procedure. The deputies argued
that the way the law had been voted in plenary violated Article 84 of the
Constitution, according to which members of parliament must vote for
legislation in person. The plaintiffs maintained that on that day it had been
observed that many parliamentarians had cast votes on behalf of other
members, thus throwing into doubt the validity of the final approval.
True to its accumulating practice of concentrating first on procedure
and then substance, the court chose to discharge the substantive aspects of
the appeal and focus instead on the integrity of procedure. The court
pointed out that “voting in person means direct exercise of a people’s
deputy’s will regarding the issues under consideration of the parliament”
(KSU 2018). In the court’s view, this was in line with the nature of a
people’s deputy mandate to represent the Ukrainian people. Personal vot-
ing could therefore not be delegated, and no MP could be legitimately
inhibited in the exercise of his/her capacity to vote. Most importantly, the
court established that voting in person constituted a part of the constitu-
tional procedure for adopting a piece of legislation (ibid.).
In turn, the court assessed evidences regarding the way in which voting
took place on July 3, 2012. It established that the law was passed by MPs
from the parliamentary majority using voting cards belonging to other col-
leagues in their absence. The court also identified a number of technical
violations during that day that taken together undermined the integrity of
the constitutional procedure significantly. Therefore, in light of the consti-
tutional principle of personal voting, the court abolished the law in full.
Moreover, at the end of its decision, the court stated explicitly its prefer-
ence for ruling on the basis of procedural, rather than substantive grounds.
The justices wrote: “The subject of the constitutional review [the appel-
lant] argues the unconstitutionality of the Law by referring to not only a
violation of the integrity of the constitutional procedure, but also to the
unconstitutionality of the substance of the law. However, adhering to a
constitutional procedure for legislative adoption is an element of legitimacy
of legislative process. This means that when the procedure is violated, it is
not the content of the law that warrants constitutional control, but rather
the constitutional procedure of its adoption and endorsement” (ibid.).
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  71

Conclusion
This chapter had multiple aims. On an empirical level, it has sought to
provide a synthesized analysis of how Ukraine’s struggles over language
policy have evolved specifically within the realm of the country’s
Constitutional Court. While the court has been fairly accessible across a
range of eligible appellants, and has had a fairly broad mandate to not only
review the constitutionality of legal acts, but also provide interpretation of
them, it emerges that within the sphere of language politics it has mostly
been members of the parliament who have sought substantiation from the
court for their attempts to influence Ukraine’s language regime. In par-
ticular, one can see how some Ukrainian parliamentarians have tried to get
the court to weigh in on ways in which Ukrainian language might be
imposed more authoritatively as the state language, based on the main
stipulations on language in the 1996 Constitution. Moreover, these forces
have used the court to thwart alternative legislation, when it has aimed to
strengthen the rights of Russian-language users, such as the Yanukovych-­
era law on bolstering Russian as a regional language. At the same time, the
court has been a sanctuary for Russian-minded leaders, who have sought
to make clear before the justices that in some areas of the country the
rights of Russian-speakers need to be protected and that blanket imposi-
tion of the Ukrainian across the administrative or judicial realm would be
discriminatory. On this score, the court has also provided some relief.
Where does this Ukrainian example, therefore, leave us in terms of
understanding the role that constitutional courts might play in mediating
ethnopolitical disputes? As with many political phenomena, there are two
important constellations of issues that come together to influence this
prospect. The first is the ethnopolitical situation of the country itself.
Ukraine is a country immersed in the kind of triadic nexus famously
described by Rogers Brubaker (1996, 2011). While the role of the
Ukrainian government as a “nationalizing state” has been mixed (in con-
trast to, say, the Baltic states), there remains a core aspiration (that seems
to only have grown over the last two decades) to tilt the ethnopolitical
balance more toward an understanding of Ukraine being fundamentally a
Ukrainian-language nation-state. A Ukrainian-focused language policy
naturally forms a part of this goal. It should be added though that not
every “nationalizing” move is inherently villainous or indented to ostra-
cize ethnic minorities of the country. In fact, there are legitimate sociolin-
guistic concerns that a Ukrainian-focused language policy naturally seeks
72  A. NEKOLIAK AND V. PETTAI

to address. In this respect, the court must walk a fine line, since it is not
arbitrating between necessarily equal political forces (as might be the case
in a more diversely pluralistic country like Nigeria or India). It must
instead be ready and able to balance the very strong sentiments of titular
Ukrainian nation-statehood with contemporary principles and practices of
minority protection, whilst all the while not letting the fact that the minor-
ity is linked to an overbearing, neighboring kin-state influence its judicial
decision making. In other words, justices are being asked to decide essen-
tial identity issues about which they themselves may have subjective feel-
ings and opinions—even more so moving forward following the outbreak
of armed conflict over Crimea and the Donbas region.
Added to this particularity is, of course, the second “constellation”,
namely, the court itself, its institutional prerogatives, actual practices and
overall political standing. All of these elements equally determine the way
in which a constitutional court can play a role in certain ethnopolitical
situations. While the Ukrainian Constitutional Court has been endowed
with what might be called proactive powers (especially concerning the
right to interpret legislation), within the sphere of language issues it has
generally used these powers sparingly. Moreover, it has at times staked out
a very technical approach, deciding to place procedural issues center-stage
and thereby explicitly demur on adjudicating substantively between com-
peting ethnopolitical claims. Lastly, it is unquestionable that the court’s
authority (not least in the eyes of ethnopolitical actors seeking to decide
whether to “go the judicial route” with their claims) has suffered over the
years, when the appointment of justices became politicized or when major
structural changes paralyzed the court’s overall functioning.
Putting these two parts of the equation together, the Ukrainian
Constitutional Court’s legal positivism as well as other moments of reserve
with regard to deciding language ethnopolitics may be understandable.
After all, courts themselves are not actually makers of policy, who should
have to, or even just be able to, determine whether Ukraine must become
more Ukrainian-dominant or, oppositely, even go bi-national. In a situa-
tion where core nation-statehood is on the line, constitutional courts will
be hard-pressed to make rulings that will entirely contradict such pres-
sures. Key elements to ensure that decisions remain balanced include a
professional and impartial appointment process for justices as well as
strong awareness of principles and practices of minority rights deriving
from international experience, so that decisions are not made in a
national vacuum.
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  73

Appendix
Table 3.2  Cases on language matters discussed in the chapter
Case Date Appeal type Decisionb
(OI/C)a

The case on application of the Ukrainian language 1999 OI Ukrainian


The case on ratification of the Charter on Languages 2000 C Ukrainian
The case on &3, Article 10, and Article 14 of the Law 2003 C Russian
of Ukrainian SSR “On Languages in Ukrainian SSR”
from 1989
The case on Russian language as official language 2004 C Ukrainian
The case on distribution of foreign movies 2006 OI Ukrainian
The case on the language of justice 2008 C Both
The case of the Law “On Judicial System and Status of 2011 C Both
the Judges” from 2010
The case of the Law “On Principles of the State 2018 C Ukrainian
Language Policy” from 2012
The case of the Law “On Education” from 2017 2019 C Ukrainian

a
OI = Official Interpretation; C = Constitutional ruling
b
Decision” column refers to increased Ukrainian-language or Russian-language predominance in public
life as an outcome of Constitutional Court decisions. That is, if the decision institutionalized Ukrainian,
we put “Ukrainian” in the column and vice versa for Russian

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76  A. NEKOLIAK AND V. PETTAI

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———. 2006. Konstytutsyine Podannia sczodo Oficiynoho Tlumachenia Chastyny
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78  A. NEKOLIAK AND V. PETTAI

———. 2007. Rishennia Konstytutsiynoho Sudu Ukrainy pro Ofitsyine


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Konstytutsyi Ukrainy (Konstytutsyinosti) Statti 15 Kodeksu Administratyvnoho
Sudochinstva Ukrainy, Statti 7 Cyvilnoho Procesual’nohoKodeksu Ukrainy
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———. 2009. Rishennia Konstytutsiynoho Sudu Ukrainy sczodo Vidpovidnosti
Konstytutsyi Ukrainy (Konstytutsyinosti) Zakonu Ukrainy “Pro Vnesennia Zmin
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Ukrainy, Osoblyvostei Provadzhennia u Spravah za Konstytutsyinymy
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“Pro Sudoustiy ta Status Suddiv,” Kryminalno-Procesual’noho Kodeksu
Ukrainy, Hospodars’ko—Procesual’noho Kodeksu Ukrainy, Cyvilnoho
Procesual’noho Kodeksu Ukrainy, Kodeksu Administratyvnoho Sudochynstva
Ukrainy. [Decision of the Constitutional Court of Ukraine about
Constitutionality of Some Provisions of the Law “On Judicial System and
3  NAVIGATING ETHNOPOLITICAL DISPUTES: UKRAINE’S CONSTITUTIONAL…  79

Status of the Judges”, of the Criminal Procedural Code of Ukraine, of the


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———. 2014. Konstytutsyine Podannia sczodo Nevidpovidnosti Konstytucyi
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Constitutional Court of Ukraine Regarding Constitutionality of the Law “On
Education”]. http://www.ccu.gov.ua/docs/2803
———. 2018. Rishennia Konstytutsiynoho Sudu Ukrainy sczodo Vidpovidnosti
Konstytutsyi Ukrainy (Konstytutsyinosti) Zakonu Uktainy “Pro Zasady
Derzahvnoi Movnoi polityky” [Decision of the Constitutional Court of
Ukraine about Constitutionality of the Law “On Principles of the State
Language Policy”]. https://zakon.rada.gov.ua/laws/show/v002p710-18
———. 2019a. Konstytutsyine Podania sczodo Vidpovidnosti Konstytutsii
Ukrainy (Konstytutsiinosti) Zakonu Ukrainy “Pro Zabespechenia
Funktsionuvannia Ukrainskoii Movy yak Derzhavnoi” [Appeal to the
Constitutional Court of Ukraine Regarding Constitutionality of the Law “On
Provision of Functioning of the Ukrainian Language as the State Language”].
http://www.ccu.gov.ua/sites/default/files/kp_51.pdf
———. 2019b. Rishennia Konstytutsiynoho Sudu Ukrainy sczodo Vidpovidnosti
Konstytutsyi Ukrainy (Konstytutsyinosti) Zakonu Ukrainy “Pro Osvitu” [Decision
of the Constitutional Court about Constitutionality of the Law “On Education”].
http://www.ccu.gov.ua/sites/default/files/docs/10_p_2019_zm.pdf
CHAPTER 4

Crimean Tatars and the Question of National


and Ethnic Belonging in Ukraine

Alina Zubkovych

Introduction
Until 2014, the Soviet myth of Crimea as a place that symbolized “mili-
tary glory” was predominantly the one reproduced by Russian, local
Crimean, and Ukrainian post-Soviet authorities. Thus, the collective
memory of ethnic minorities, such as Crimean Tatars, who were deported
to Central Asia en masse in 1944 and only started repatriation at the begin-
ning of the 1990s, lacked public and political support for more than 25
years (Bezverkha 2015). Ever since the annexation of Crimea by the
Russian Federation in 2014, Kremlin officials have continued to promote
the same rigid vision of Crimea (Grigas 2016). At the same time, the
annexation has boosted mechanisms of national narrative re-actualization
in mainland Ukraine (Onuch and Hale 2018). Previously oppressed mem-
ories received official support and have been utilized in recent constructed
narratives on the image of Crimea. This study examines the

A. Zubkovych (*)
Södertörn University, Stockholm, Sweden
e-mail: [email protected]

© The Author(s) 2020 81


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_4
82  A. ZUBKOVYCH

post-Euromaidan dynamics of identity formation in Ukraine through the


prism of a non-titular nation, namely Crimean Tatars.1
The “appearance” (not yet generally understood to be the “return”) of
Crimean Tatars in Crimea at the beginning of the 1990s had a predictable
psychological impact on the peninsula’s local population. Local political
and economic elites revived Soviet myths, exploiting anti-Tatar prejudices
that were still widespread and formed the core of the cliché (Shevel 2001).
Breakaway from this cliché happened in 2014: with the annexation of
Crimea and suppression of freedom of speech, a number of Crimean
Tatars were forced to leave the peninsula and moved to Kyiv; a smaller
number relocated to the western parts of Ukraine. In this chapter, we
analyze how Crimean Tatars who resettled to Ukraine’s mainland perceive
themselves. The analysis is based on a series of in-depth semi-structured
interviews with the settlers. The chapter aims to trace the way in which
Crimean Tatars construct their identities, as well as dynamics of their
national self-identification following the Euromaidan Revolution.
We argue that the construction of the new sense of “Ukrainness,”
incorporating Crimean Tatars, is based not on the ethnonational politics
of belonging, but rather on political citizenship. A distinctive feature of
this form of construction is a stronger inclusiveness towards ethnic minor-
ities, replacing previously existing selectivity patterns—a phenomenon
that requires further reflection and research (Uehling 2016). Thus, focus-
ing on the dynamics of the Crimean Tatars’ self-identification, this chapter
seeks to contribute to this new strand of scholarship investigating a novel
stage of national identity formation in Ukraine. Notably, as we will illus-
trate below, the emerging elements of a more inclusive politics of belong-
ing do not display consistency in presenting Crimean Tatars and their
culture as an integral part of Ukrainian collective memory. Rather, trying
to come to grips with an inconsistent and fragmented process and prod-
uct, academic discourse has tended to settle on a portrayal of identity in
ethnonational terms. The reproduction and adaptation of such a discourse
in non-academic discourses leads to a depiction of Ukraine as a multicul-
tural, multi-religious, and ethnically vivid society without developing a
nuanced understanding of the historical constitution of such features and
the contemporary dynamics of identity formation.
In this vein, the chapter is structured as follows. First, it introduces a
conceptual apparatus, focusing on the notions of ethnic and national

1
 On Euromaidan: see Chap. 1, fn 1.
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  83

identity, reflecting the primordialist and constructivist approaches respec-


tively. Additionally, it demonstrates how the notions of “regional differ-
ence” and “regional diversity” attenuate those two approaches and play
into the Ukraine’s domestic debate on national identity. Based on these
theoretical elaborations, the empirical section of the chapter analyses the
dynamics of national identification in the case of Crimean Tatars. It uses
in-depth interviews with Crimean Tatars who relocated to mainland
Ukraine to demonstrate an extent to which the Euromaidan Revolution,
followed by the annexation of Crimea by the Russian Federation in 2014
has led to the reconsideration of personal experiences, self-identification,
and collective memory of the pre-annexation period.
The chapter is offering a nuanced insight into the post-2014 politics of
belonging and the dynamics of identity formation in Ukraine, based on
the example of the Crimean Tatar community.

I. Conceptual Foundations

1. Regional Difference vs Regional Diversity


Ukraine gained its independence in 1991, while the formation of its con-
temporary borders finished in 1954, when the Autonomous Republic of
Crimea was transferred from the Russian Soviet Socialist Republic to the
Ukrainian SSR.  References to the etymological meaning of Ukraine as
“borderland,” and emphases on the complex historical and social-cultural
constitution of its territory abound in historical texts. Indeed, the number
and variety of the ethnicities and multiple identities that had a chances to
impose and sustain historical change have inevitably nurtured the com-
plexity of the regional structures in today’s Ukraine. Hence, as underlined
by Oksana Myshlovska in Chap. 2, regional diversity is concerned with a
striking assortment of religious, ethnic, linguistic, and socioeconomic
characteristics, and a range of differing historical collective memories and
ideological traditions. An emphasis on regional differences is an important
characteristic of contemporary Ukraine and its vision of itself as a state;
while such an emphasis does not put the country’s territorial integrity into
question, it does provide a foundation for the regional factor to be manip-
ulated. An important question that arises in this regard deals with termi-
nology: should one speak of regional differences or of regional diversity?
Do these terms have different connotations, and can selected terms influ-
ence our analysis of findings? Does difference stresses cleavages and
84  A. ZUBKOVYCH

otherness of the entities, whereas diversity has a pluralistic emphasis on the


richness of variety?
The emphasis on regional differences has been predominantly made by
scholars focusing on conflict potential, risks, and crisis. In this regard,
Sasse’s 2001 study might serve as an example. She identified Crimea,
Donbas, and Zakarpattya as most prone to ethnoregional challenges, a
consequence of the politicization of regional diversity in the territories
(Sasse 2001, 70). Ethnicity is, hence, one of the cleavages prone to be
politically mobilized at the regional level, though it can be also viewed as
a means of attracting attention to more deeply rooted regional cleavages
“such as multi-ethnicity, cultural or socio-economic factors that cross-cut
ethnic markers” (Sasse 2001, 95). Summarizing key factors that have
determined the peaceful overcoming of mobilized Russian nationalism in
Crimea in 1993, Sasse concludes that the way that Ukraine “dealt with its
ethnic and regional diversity and, above all, with its most precarious
region, Crimea, belongs to its political achievements” (ibid. 96). Though
contradicting the findings by Myshlovska presented in Chap. 2 (and, thus,
pointing to the need for further research on pre-Euromaidan policies per-
taining to regional diversity), these conclusions correlate with our inten-
tion to strongly differentiate between regional difference and diversity as
terms having different connotations. Sasse (2001) explicitly uses “diver-
sity” as a neutral fact of regional richness. Only when diversity starts to be
exploited for political mobilization does the author focus on “differences.”
That is, context determines emphasis and the selection of a correspond-
ing term.
In this vein, another terminological tangle concerning regional diver-
sity in Ukraine arises from an unclear distinction between the concepts of
ethnic and national identity. Sometimes these terms are applied as catego-
ries that do not require further explanation. However, empirical evidence
demonstrates the opposite: the overlapping applications of the terms in
respondents’ statements suggest the need for a terminological
reconsideration.

2. Ethnic Identity
The concept of ethnicity is one that is commonly used; however, it is inter-
preted in a different manner depending on the context and theoretical
premises. The primordialist approach would generally emphasize ethnicity
as a long-established bond granted with birth. As major representatives of
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  85

such approaches, Edward Shills and Clifford Geerts connect ethnicity as a


strongly ascribed category with blood, race, and language (Ibrahim 2011).
Primordialism has been heavily criticized for failing to consider the flexi-
bility of ethnic identity. Ibrahim (2011) gives an example of “Arabs” being
thought to be a homogenous ethnic group to illustrate the inconsistency
of such straightforward belief. The homogenous view does not take into
account those who converted to Islam from Judaism and Christianity fol-
lowing the expansion of the Islamic empires in the seventh to tenth centu-
ries; nor does it take into account groups that consider themselves
politically as “Arabs,” but speak Aramaic, Greek, Coptic or other lan-
guages. Examples like this demonstrate the weakness of the primordial
approach to ethnic identity.
Instrumentalists and constructivists would rather view ethnic identity as
a question of rational choice. Post-colonialist Homi Bhabha (1991, 1994)
argues that ethnicity is a “cut and paste job”: individuals will select that
part of their identity from multiple variations, choosing what works best
for them in their situation. Culture is another important factor in con-
structing stability in self-perception. Anthony D.  Smith (2009) empha-
sized the role of symbols and myths in ensuring the continuity of ethnicity
in the modern world. Finally, it is difficult to overestimate the impact of
Benedict Anderson’s (1991) seminal work on the understanding of nations
as “imagined political communities,” and the role of multi-ethnicity in the
process of nation-building.
Inhabitants of countries and regions are presented as people aware of
their ethnic backgrounds, and different factors will lead to their co-­
existence with others of similar or different backgrounds to be peaceful or
a matter of clashes. The number and degree of religious, linguistic, and
cultural differences tend to be cited as an explanation for peaceful or con-
flicting existence in the regions of Ukraine. Ethnic identity is a seemingly
clearly defined category, one commonly reflected and described in litera-
ture on post-Soviet studies of Ukraine. Many scholars have speculated on
a clear division between a regional and an ethnic identity prevailing there.
In our view, such a division generates ideas of Ukrainian society divided
into east and west in terms of language, history, protest participation, and
habitus (Zhurzhenko 2002; Riabchuk 2015).
In constructivist terms, ethnicity, and its close relationship to language
preferences, tends to be assumed to define the completeness and develop-
ment of an identity. Consequently, the most widespread ethnicity is
believed to construct the preconditions for the development of a national
86  A. ZUBKOVYCH

identity, grounded on a clear ethnic tradition, incorporating its cultural,


territorial, and historical legacies (e.g., Smith 2009). Hence, over time, a
dominant ethnic group develops into a titular nation, and its collective
memory forms the background of the national narrative assumed to rep-
resent the country and to be shared by its inhabitants. In primordial terms,
ethnicity is regarded as a self-evident and unproblematic category, with
language as one of its important elements.
In the particular case of Ukraine, however, such self-evidence becomes
most problematic. As underlined by multiple contemporary contributions
in Ukrainian studies, the Euromaidan Revolution, the illegal annexation
of Crimea by the Russian Federation, and the conflict in eastern Ukraine
brought the problem of ethnicity and regional and national identity to the
foreground. The flow of people forced to leave the Crimea and Donbas
regions (referred to as “internally displaced persons” or IDPs) has consid-
erably influenced the debate by restructuring the composition of regions’
populations.
According to official figures, on January 2, 2019, the number of IDPs
was 1.512 million (Ukraine Ministry of Social Policy 2019). The
International Organization for Migration (IOM) reported that in March
2019 60 percent of the IDPs were displaced from Donetsk Oblast, 37
percent from Luhansk Oblast, and 3 percent from Crimea. Over 750,000
registered IDPs resided near the so-called “contact line,” the boundary
between government-controlled and uncontrolled territories of Ukraine
(IOM 2019). The number of IDPs in the rest of Ukraine was: Kyiv city,
145,677 and Kyiv Oblast, 55,835; in eastern Ukraine, Kharkiv Oblast,
128,231 and Dnipropetrovsk Oblast, 68,271; and in southeastern
Ukraine. Zaporizhzhya Oblast, 54,199 (IOM 2019). Notably, the num-
ber of displaced persons is still open to question due to the fact that official
statistics does not cover those who did not register as IDPs, but live in
mainland Ukraine, or left the country, or registered but continued to stay
in the occupied territories (IDMC Ukraine). The last category is predomi-
nantly composed of retirees who registered as IDPs in order to get their
pension benefits though continuing to reside in the occupied territories.
Here, it should be noted that measuring ethnic categories is usually a
challenge for both statisticians and researchers. The complexity of
Ukraine’s territories’ historical constitution and the multicultural co-­
existence of diverse nationalities in the territories of former multiethnic
empires (Austro-Hungarian, Russian, Ottoman or the Kingdom of
Poland) contributes to the challenging nature of this task. Hence,
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  87

ethnicities’ juxtaposition, shifting, overlapping, and permeability become


an important point of analysis (Chandra 2012).
Although macro-data identifies the most salient ethnic groups in
Ukraine, and still provides a useful broad picture of regional and national
identities, the complexities outlined above make clear the usefulness of
micro-level studies. The added value of micro-studies for empirical
research lies in the fact that they enable a nuanced understanding of how
both a respondent and an interviewer construct the ethnicity of the
respondent. An output or a “clear variable” remains to be extracted from
the usually complex uncertainty of multiple identities. Onuch and Hale
(2018) demonstrate how different criteria of Ukrainian ethnicity lead to
contradictory “findings”: ethnicity can start to matter due to the design of
a survey, or it can become irrelevant for the same reasons. Thus, in this
study, one can see how the factor of ethnicity is represented as an impor-
tant one in the context of the Euromaidan Revolution movement but
becomes less evident when talking about support for NATO membership.
Onuch and Hale (2018) conclude that such results crop up due to differ-
ences in the criteria selected to define ethnicity. To overcome such meth-
odological subjectivity and to develop a more nuanced understanding of
political effects produced by ethnicities, Onuch and Hale (2018) suggest
supplementing the notion of ethnicity with more dimensions such as indi-
vidual language preference, language embeddedness, ethnolinguistic
identity, and nationality.

3. National Identity
In view of the above, it is important to underline that the discussion of
regional diversity goes in line with understanding how ethnicities are
reflected in, and related to, national self-perception. If the social construct
of ethnicity is founded on fluctuating elements, what would be the con-
straints of perceiving the self as “Ukrainian” in terms of civic identifica-
tion? Several surveys conducted in Ukraine by the University of St. Gallen
may serve as a tool to both analyze national identification tendencies and
to see the problematic spots that are left behind when surveys are made.
The first survey, conducted in 2015, covered all regions of Ukraine
except the occupied Crimean peninsula and the occupied areas of Donetsk
and Luhansk regions (Ukrainian Regionalism 2015). 2 When respondents

2
 Representative survey, N = 6,000 respondents, margin of error ≈ 2 percent.
88  A. ZUBKOVYCH

were asked what their nationality was, the vast majority (88.6 percent)
identified themselves as Ukrainians. No other nationality exceeded 7 per-
cent, led by Russians (up to 6.9 percent), followed by undefined “mixed”
(1.1 percent) and “other” (1.5 percent). Poles (0.7 percent), Belarusians
(0.4 percent), Jews (0.4 percent), and Lithuanians (0.2 percent) were
among other categories that were mentioned by respondents. However,
since there are different types of identification, and people may not iden-
tify themselves by the defined national marker, questions like “To what
extent do you feel yourself as…” enable the unveiling of more nuanced
characteristics of self-identification. The recourse to the categories of gen-
der/ occupation/ hobby/ local variations of identification and national
identification as one of the possible choices in the formulation of a ques-
tion serves to highlight the importance and topicality of national identity/
national identification as a category.
In a situation when a respondent has multiple choices, the category of
“national identification” (counted on a scale between “1” to “5,” where
“1” means “absolute disagreement” and “5” “complete agreement”) had
the highest rate among respondents in 2015. A similar trend is evident for
2017 (Ukrainian Regionalism 2017): an association with the country got
the highest average score (4.53); local and regional identifications were
very close to the national identification figure (4.47); in 2015, local and
national identification both scored 4.9. Identification with a particular
generation (4.26), social stratum (3.97), and a profession (3.79) remain
important factors in self-perception. Other possibilities of imagined forms
of belonging such as being a European or an east Slav are shared to a lesser
extent, with average scores of 2.88 and 2.79 respectively (Fig. 4.1).
Such data give an impression that there is a defined and non-­problematic
vision of national self-identification, whereby respondents can clearly iden-
tify themselves with one of the proposed categories of “Ukrainian,”
“Russian,” and so on. However, if one takes the same survey and applies
the advanced option of a “Story Map” that visualizes some of the answers
given by the interviewees to the question: “To what extent do you feel
Ukrainian?” the complexity of making the choice and deciding on the cor-
responding “answer” becomes more visible. The quotes presented below
are taken from interviews conducted between 2012 and 2013 (Story Map:
Ukrainian and Russian identities). Thus, they do not reflect the new con-
notations of “being Russian” or “being Ukrainian” that have been devel-
oping since 2013 as a consequence of the Euromaidan Revolution, the
annexation of Crimea by the Russian Federation, and the conflict in
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  89

Fig. 4.1  Self-identification, Ukrainian Regionalism 2017. University of St. Gallen

eastern Ukraine. Nevertheless, the Story Map is illustrative of several cru-


cial aspects of the complexity of national belonging and
self-identification.
Notably, the Story Map demonstrates that the category “Being
Ukrainian” tends to be addressed in ethnonational terms, and is easily
applied in cases, when ethnicity corresponds to the national belonging.
This is visible through such replies as (Lviv, 78, male, pensioner): “I did
not choose my nationality, I was born in a Ukrainian family” (“я не вибирав
своєї національності, я народився в українській сім’ї”).3 Another option
is territorial determinism (Lviv, 44, male, taxi driver): “Anyway, I live here,
I was born here, no matter how it is, it is mine” (“але все таки, я тут живу,
я тут народився, яке б воно не було- воно моє”).4
The post-colonial legacy inherited by respondents, visible through mul-
tiple ethnicities, makes it complex for respondents to make a clear choice.
Such dilemmas are visible when a respondent in Crimea reflects whether
he should define himself as a “Russian” or as a “Crimean Tatar,” referring

3
 Story map: Ukrainian Identity, University of St. Gallen, Lviv, July–August 2012, Available
at: https://uploads.knightlab.com/storymapjs/1523b6e328c2b6c9ecbffcb8a812c4c3/
ukrainian-id/index.html.
4
 Ibid.
90  A. ZUBKOVYCH

to the problem of his variegated family history (Simferopol, 25, male,


financier): “Honestly, difficult to say … I do not ascribe myself to these or to
others … Maybe Russian. Well or yet, the Crimean Tatar … Because Crimea,
because still the history of … my father, and this is the nationality of my rela-
tives” (“Честно, затрудняюсь…не приписываю себя не к тем, не к
другим…Может быть русский. Ну или, крымский татарин, все-­
таки…Потому что Крым, потому что, все-таки, история…моего
отца, и этой национальности моих родных…”).5 Or this kind of state-
ment (Simferopol, 48, female, inspector): “My mother is half-Polish, half-­
Ukrainian, my father is half-Ukrainian, half-Russian. Who am I? Ok, let’s
write ‘Ukrainian’'” (“У меня мама полуполька-полуукраинка, папа-
полуукраинец-полурусский. Кто я? Ну давайте напишу «украинка»”).6
Similar multi-ethnic complexity is reflected in interviews from Donetsk,
2013 (Donetsk, 19, male, engineer): “There are Ukrainians, Russians,
Jews. And the Caucasian nationality. But there is no sharp division. Well, it
seems to me that it does not exist in Ukraine anywhere” (“Украинцы,
русские, евреи есть. И кавказской национальности. Но нету резкого
такого деления. Ну, мнекажется, еговУкраиневообщенигденет”).7
Of course, reflection on multiple ethnicities is not the only way of
thinking of the self. Mono-ethnic perception as a basis for national identi-
fication is another visible option. Such responses may serve as examples
(Donetsk 2013, 61, male, watchman): “Obviously [I’m Russian], because
all my ancestors are Russians, all ancestors” (“Ну как, потому что все мои
предки русские, все предки”).8
All the examples presented above illustrate the complexity of identifica-
tion processes. A permanently shifting perception of “self” produces dif-
ferent interpretations of national belonging. External factors, such as a
conflict or an occupation, may influence actualization of certain nodal
points and suppression of others. The interviews presented above are

5
 Story map: Ukrainian Identity, University of St. Gallen, Crimea, June 2013, Available at:
https://uploads.knightlab.com/storymapjs/1523b6e328c2b6c9ecbffcb8a812c4c3/ukrai-
nian-id/index.html.
6
 Ibid.
7
 Story map: Ukrainian Identity, University of St. Gallen, Donetsk, April–May 2013,
Available at: https://uploads.knightlab.com/storymapjs/1523b6e328c2b6c9ecbffcb8a81
2c4c3/ukrainian-id/index.html.
8
 Story map: Russian Identity, University of St. Gallen, Donetsk, April–May 2013, Available
at:https://uploads.knightlab.com/storymapjs/1523b6e328c2b6c9ecbffcb8a812c4c3/
russian-id/index.html.
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  91

illustrative of the complexity of the ways that people make their choices.
They also demonstrate that such common ascriptions as “national” or
“ethnic” belonging is an element of the multidimensional phenomena of
the construction of ethnicity and national identity. The survey also dem-
onstrates variation in both the criteria of measuring identity and the
outcomes.
The annexation of Crimea and the conflict in eastern Ukraine made it
highly topical to critically reconsider the politics of belonging in Ukraine.
Such a search for redefinition is a result of several factors. Firstly, such
redefinition serves as an immediate response to massive Kremlin hybrid
media propaganda that, by using fake narratives, aims to simplistically dis-
tinguish Ukrainians into “Russian speaking,” “Russia’s compatriots,” and
“nationalistic” others. Secondly, an important reason for reconsidering
the politics of belonging deals with the changes of regional landscape that
have emerged as a result of the large number of IDPs forced to leave
Crimea and certain parts of Donbas. In this context, Crimean Tatars who
moved to mainland Ukrainian cities such as Kyiv, or to areas of western
Ukraine, are of particular importance.

II. Empirical Findings Relating to Crimean Tatars’


Identification Strategies
Despite being indigenous to Crimea, Crimean Tatars struggled for recog-
nition during the Soviet era. Largely in view of Crimean Tatars’ mass
deportation from Crimea in 1944, their memory and rights were severely
suppressed during the Soviet era. The memory of deportation, the
Crimean Tatar language, the Crimean Tatar heritage in Crimea, topon-
ymy, and other elements that constitute a national identity were banned.
Thus, in addition to obliterating the very physical presence of the people
by deporting them, the Soviet authorities also blurred their symbolic and
historical presence. There were no references to the Crimean Tatars in the
Soviet education program. The ethnic composition of post-1944 Crimea
also changed: Slavic peasantry and retirees from the Soviet Navy were
welcomed to stay in “leisure Crimea” (Shevel 2001; Sasse 2007; Williams
2016). After the disintegration of the Soviet Union, many Crimean Tatars
returned to Crimea. This was the largest migration in the history of the
Crimean Tatars, consisting of approximately 259,000 returnees—more
than half of the entire nation (Williams 2016, 147).
92  A. ZUBKOVYCH

For Crimean Tatars, the 1990s were marked by a continuous struggle


for the restoration of collective rights, oppressed memory, and property
rights (mainly with regard to the sale of land, rather than a restitution per
se). Notably, the struggle for restoring Crimean Tatars’ property rights
was additionally aggravated by the emergence of stigmatization mecha-
nisms, aiming at preserving ownership by “post-Soviet” inhabitants of
Crimea and, to this end, excluding Crimean Tatars from the legal possibil-
ity to buy land in Crimea (Allworth 1998; Wilson 1998). The 2014
annexation of Crimea by the Russian Federation significantly changed an
image of “Crimean Tatar,” turning it into a designation of the main pro-
ponents of Ukrainian integrity in the peninsula (Uehling 2016).
Against this background, the self-perceptions of Crimean Tatars with
regard to the categories of “ethnicity” and “nationality” were the central
theme of our conversations with Crimean Tatars. We conducted 25 semi-­
structured, in-depth interviews with Crimean Tatars of different ages,
occupations, and gender in Lviv (10 interviews) and Kyiv (15 interviews)
between March 2017 and January 2018. There were 13 female and 12
male respondents. All were guaranteed anonymity. Ninety percent of the
respondents had higher education and were involved into active Crimea-­
related initiatives as volunteers, directors of NGOs, or journalists,
includingdirectors of Crimean Tatar media outlets and organizations that
are now based in Kyiv or Lviv.
The selection was based on snowball sampling. In order to ensure the
respondents’ anonymity, all their names or places of their employment or
study were removed. Instead, we applied a codification encompassing
their sex, age, occupation, and place of residence. Each interview lasted
around one hour. In some cases, conversation exceeded this time frame
when there were advantageous conditions for that. Respondents shared
their opinion on a set of questions that included such blocks as a reflection
on self-identification, ethnicity, and national belonging, and thoughts on
life in Crimea and regions of current settlement.9 At first, I started with
how respondents understood what it means for them to be Ukrainians.
After the question was articulated in a similar manner, many of my respon-
dents decoded the phrase “to be Ukrainian” as “to be a citizen of Ukraine.”
Such reaction contributed to the aforementioned statement on the

9
 All quotations from the respondents provided further in this chapter are translations from
Ukrainian or Russian, the languages in which the interviews were conducted.
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  93

perception of the category “being Ukrainian” as merely ethnic. National


belonging was reflected through the category of citizenship:

I am a citizen of Ukraine. I live where it is convenient for me. I like Ukrainians,


they are mentally similar (ментально близки). (Female, 43, self-­
employed, Kyiv)

Reflection on citizenship is also strongly connected to the experience of


the Maidan protests in 2014:

For me, at that time [before 2014], it was inseparable: both to be the Crimean
Tatar and the citizen of Ukraine. Politically, I perceived myself as a Ukrainian,
ethnically I understood that I was a Crimean Tatar, but to be honest, there was
no sentiment to the land on which I lived. I was considering the development of
my career abroad. My entire perception changed in 2013, when the Maidan
started. I came from Finland and stayed in Kyiv. I was in the night of dispersal
of students, half an hour before dispersal, I went to sleep at some friends’ house.
In the morning, after I woke up, I saw an incredible pile of SMS and calls, and
realized that something had gone wrong in this country. The same day I started
working as a volunteer at the Hromadske10 as an editor, and was on the square
during the nights. Then I began to understand what the flag, the land, lan-
guage, hymn meant to me. (Female, journalist, 31, Lviv)

One should notice the double meaning here: “there was no sentiment
to the land on which I lived.” “Land” carries both connotations united
together: Crimea and Ukraine.

I was on Maidan in Kyiv. I didn’t throw any Molotov cocktails, I didn’t per-
form any feats, but I had to be there with the [Crimean] Tatar flag (I keep it
here; I will show it to you). I exercised my civil rights there simply as a citizen of
Ukraine, it was not connected to our Crimean Tatar movement. (Male, 48,
entrepreneur, Kyiv)

Being Ukrainian in the majority of the responses means, first of all, to


be a citizen, secondly, the respondents aged under 40 who were educated
in Crimean schools, especially those who went through middle school and
high school, also cited the Ukrainian language as an obvious determinant
of their national belonging:
10
 Hromadske is the Ukrainian media outlet. It was heavily involved in streaming the
Maidan protests of 2013–2014.
94  A. ZUBKOVYCH

I am 21 years old, I was born in Crimea, in Simferopol, and I lived there all
my life, never left for a long time, all my childhood I lived in Crimea, only
occasionally [my childhood] took place in Turkey. The environment was
Crimean Tatar and Ukrainian, because I studied at the Ukrainian gymna-
sium. [It was an] ordinary average family that is engaged in small business
(we had a small hotel by the sea). (Female, 21, student, Lviv)

It is worth mentioning that the university education did not have such
impact in relation to language and national identity as school education
had. Also, reference to “Ukrainian schools” was made often by those who
were less than 25 years, as well as parents who talked about their children
of that age category. A “Ukrainian school” in this regard means that the
educational program was conducted fully or partially in Ukrainian.
Reflection on national identity was sometimes mentioned in relation to
religious background:

My mom taught me to honor all religions. I light a candle in the temple, and I
read my prayer, if we say that God is one. I always considered myself a
Ukrainian. A Crimean Tatar, a Muslim and a Ukrainian. Elementary—I
have a Ukrainian citizenship. But six months ago I thought and did not know
how to attribute myself. I do not know. Time must pass and I will understand
who I am. (Female, 21, student, Lviv)
There are some conservative Tatars in Crimea. Many of them are covered in
headscarves. This is a movement of Islam—the Crimean Tatars did not look
like that, but they [adepts of the movement] believe that this is a return to reli-
gion. I celebrate Easter, last year I lit up the basket.11 (Female, 21, stu-
dent, Lviv)
Well, of course, I feel like a Crimean Tatar and, again, my religion is an inher-
ent part of me, it is a part of my nationality. Here in Lviv I probably began to
appreciate it more [Islam], because back in Crimea it was just a natural
thing. (Male, 37, manager, Lviv)

A vision on the future of Ukraine’s de-occupied Crimea in relation to


the Crimean Tatars is repeatedly reflected through the idea of special pri-
ority for the indigenous population. These special rights are meant to
strengthen Ukrainian–-Crimean Tatar relations and secure the peninsula
from different forms of separatism.

11
 The respondent used the word “koshik,” the Ukrainian word for the basket used during
the celebration of Easter by Christians. The original phrase was “Осветить кошик.”
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  95

Ukraine is a big homeland and Crimea is a small one. We must be full masters
(хозяева) in our small homeland. We must determine names of the villages, all
of those that were completely renamed: Veselyye, Grushevki, Sadovyye and all
other such names.12 There should be our toponymy. We will be studying and
restoring our language. Russian [language] is not under the threat, Ukrainian
is protected by Ukraine and that is a right thing to do [to protect Ukrainian
language]. In Crimea, the priority should be for the Crimean Tatars. Now if
we become the owners there, we will be even greater patriots of Ukraine. If we
would have access to the law enforcement system, judicial, to the state authori-
ties [we would be greater patriots]. If we had this in the 1990s, believe me, such
a situation would not have happened with Crimea. All this is because we had
no one in the courts, no one in the armed forces. At the same time, we clearly
position ourselves: we don’t want to have a separate state, because it creates
danger of situations when one would encroach on us and attack us all the time.
We must live with mom Ukraine in one family and then you own what is your
and understand that one should serve Ukraine and take the oath to Ukraine.
(Male, 48, entrepreneur, Kyiv)

Certain images are being suggested in the quoted paragraph and call
for particular attention: “mom Ukraine,” “small and big homeland”
(Crimea and Ukraine), “masters of [small] land.” They help to explain the
symbolic relations between the Crimean Tatar and the Ukrainian identi-
ties. Such metaphors construct an image of the Ukrainian Crimean Tatar
identity. These symbolic constructs were repeatedly mentioned by a num-
ber of respondents; such repetition indicates they are a part of the existing
discourse on the self-identification and perception of Crimea.
The vision of self is also being constructed in relation to a distinction
from others. Especially, when the distinction is projected by the Other to
the Self. Collective prejudice is legitimized as a certain form of knowledge
through the school system. The respondents, especially those aged 30 and
older, mentioned cases from their childhood when they were stigmatized
because of their ethnicity. The younger generation (20–30) did not recall
such cases. That does not necessarily mean that such situations did not
occur with them, but I expect that the intensity and a “normality” of such
behavior declined aftere the 2000s. Also, those who were finishing high
school in Crimea around 2014 might have developed stronger attachment

12
 The original phrase, “хер поймеш какие,” is an obscene expression. Stylistically it was
applied by the respondent to emphasize the village names’ bankruptcy and his disagreement
with the previously prevailing memory discourse in Crimea.
96  A. ZUBKOVYCH

to the re-emerged Ukrainian identity and therefore were more reluctant to


recall conflict situations. However, one 30-year-old respondent mentioned
several cases that I believe reveal the few important aspects that should be
properly considered today by the policy makers and influencers.
In the following quotation, the respondent refers to the period of her
matriculation in the mid-2000s:

[…]about Lviv […] we stood in line at the dean’s office to submit the docu-
ments, we were not yet studying, I met a boy from Volhynia in a dormitory, but
[what I intend to present] this is not discrimination and xenophobia, but
rather “prejudice” [the term “prejudice” was said in English]. My mom and I
stood in line and this boy from Volhynia [name and surname] stayed nearby
and then he said to me [respondent switches to Ukrainian]: “And so, are you
from Crimea, right? Are you Muslim? And I say “yes.” He continues: “Do you
know that all Muslims are terrorists? (Female, 31, photographer, Lviv)

This translation into English unifies the statements. Notably, original


dialogues had rich multilingual switches, used by respondents to empha-
size certain points (they not necessarily being aware of it). This phenom-
enon is especially visible in the response, quoted above. An interesting
situation occurs when both sides of the conversation do not notice such
multiple language switches and expect others to understand meanings of
phrases said in different languages. More importantly, they expect others
to share a similar knowledge of the contexts—i.e. of the common ground
that brings together collective memories—and, hence, not to require
additional reflection on why the entire conversation is not homogenized
and is not reproduced through a single language. Explained by the rich-
ness of different contexts and a detailed nature of the rules an individual
learns, reproduces, and transforms through being involved in a context,
this phenomenon can be labelled as “banal multilingualism.” The ratio-
nale for this is that a perception of some actions as “self-obvious” and
“natural” implies a clear reference to the “banal nationalism” concept.
Michael Billig (1995) shed light on the existence of rituals and practice
in Western democracies that became part of a nation’s daily routines and,
thus, turned to easily noticeable markers of the continuous performance
of shared collective belonging. In its turn, “banal multilingualism” enables
a researcher to trace complex dynamics of sociocultural processes in
Ukraine, whereby the use of different languages reveals the multiplicity of
performed identities.
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  97

The aforementioned aspect of stigmatization, rooted in the differences


in religious background (even if neither side is a practicing believer) is
mentioned as a strong prejudice of the pre-annexation era, when there was
limited inter-regional cultural exchange. Another issue that was repeatedly
referred to and requires reconsideration in collective memory terms deals
with history education in Ukraine. One of respondents illustrated a prob-
lem of the inconsistency of the history education in a very clear way:

I had a discussion with the dean, he taught us history of Ukraine—the Cossack


period. We had a discussion with him about the participation of the Crimean
Khanate in Ukrainian history, because history was written very one-sidedly,
and in general, Crimea or the Crimean Khanate in history books written by
scholars is not perceived as an entity of the Ukrainian state. It is perceived as an
enemy, an alien state, which was located on the territory of Crimea […].Yeah,
perhaps it was so because there were different alliances. However, history should
not be simply judged from what was “good” and what was “bad.”[…] and all
that narrative about the Tatars as invaders and barbarians who were raping
women… Why are we not writing in the history schoolbooks about Cossacks who
were raping women and robbing villages? (Female, journalist, 31, Lviv)

Another respondent who expressed similar thoughts on the inconsis-


tency of history books and history curricula, more generally, that lack criti-
cal reflection on Ukrainian Crimean Tatar history pointed out some
progress since the annexation:

I am glad that interest [in learning more about Crimean Tatars] increases
and intensifies. What impresses me is that there are more and more Ukrainians
who start understanding that history of Crimea and Crimean Tatars is part
of the history of the Ukrainians themselves. I am glad that Soviet historiography
that existed before starts disappearing […]. Unfortunately, there are not
enough specialists today. We need specialists who read Arabic, Crimean Tatar,
especially Old Crimean Tatar. There are so many moments when we do not
know much about Crimean Tatar culture and heritage because everything was
prohibited—such a nation simply did not exist [in the official discourse].We
cannot find in any source a ceramic vessel that was widespread among Crimean
Tatars. Here, you have the object (vessel) but it does not have a name because it
has not been studied. We should study all this.
Now I contribute to one of such projects, I hope that it will be implemented
by Eurovision [2017 […]] We expect to demonstrate that we [Ukrainians and
Crimean Tatars] are not enemies as we were usually presented earlier, that we
had a common past. We had a lot of trade and other types of relations, or look
98  A. ZUBKOVYCH

at the etymology of the “Maidan” word…Or why are 80 percent of the weapons
from the Cossackhood era of Crimean Tatar origin? Or why did Cossacks use
Turkic words for it[weapon]: they exchanged it. (Male, 41, artist, Kyiv)

Here, it should be also mentioned that the respondents were unani-


mous in their evaluations of the situation when speaking about current life
in Crimea and then opportunity to return there. Although using different
words, all of them described post-annexation life in Crimea as marked by
insecurity, censorship, self-censorship, a lack of freedom, and captivity. In
this vein, one of the respondents talked about events that happened to his
relatives following the annexation, consonant with multiple confessions,
narratives, and reports on the use of law enforcement actions and actors
for threats and intimidation:

While in Ukraine it was not “sweet” either—a lot of roads were constructed
there, a lot was done for the city, not for people but for window dressing. Anyway,
at least it became easier to get there. However, it remains difficult and danger-
ous for us—Crimean Tatar activists, representatives of the Crimean Tatar
people, their families who have someone in Kyiv—to come there. Searches of
houses do not stop for a very long time. They [local authorities] no longer pay
attention to Ukrainian words, but at the level of power, they do not stop searches.
This is scary. This is a tremendous stress for the people: you can be taken to jail
at any moment for nothing! Personally to us, they came home twice, but my
father was not at home. Once there was a grandfather, (He was an old man, 92
years old. He died this year and I went to the funeral). He told dad that he was
so scared that he did not open the door and thought they would break it down.
Dad looked at the camera and, in fact, they almost broke down the door. Such
aggression in people. We will have to live with this for a long time. (Female,
Lviv, student, 21)

The respondent also emphasized the role of self-censorship:

One can start business there, one can make money on war. If you control yourself
and say nothing, censor yourself in public life you can continue making money
there. Life goes on, you can earn money. My aunt’s spouse has a window business
and it went up: the season lasts longer, the Russian market has opened, a lot of
buildings are being built. What one should do? Children need to be fed.
Nevertheless, their patriotism [to Ukraine] remains, they remain Ukrainians.
(Female, Lviv, student, 21)
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  99

The following quotation resonates with the previous one in terms of an


emphasis on the pervasive controlling role of the police and at the same
time it sheds light on some interesting nuances in the way the respondent
becomes aware of the constructed images (prejudice) of others to her col-
lective identity of “being Crimean Tatar” and uses the same constructed
role to protect herself:

My father worked at a construction site. Something was making noise and a


nasty Russian grandmother went to call the police. When the police came to my
father, he came out with an axe and started saying something in Tatar. She
angrily started saying: “According to the laws of the Russian Federation, you
must speak the state language!” And my father, who looks so formidable, con-
tinues his talk in Tatar and brandishes an axe.” The respondent laughs and
continues: “He is hot-headed, he won’t do anything, but he can scare one [with
his look][…]We lived in a Russian district and they scoffed at us all the time.
[…] (Female, 43, entrepreneur, Lviv)

In this case, it is noticeable that the father made use of an image of an


alien, a “barbaric medieval Tatar‚” a non-local person with whom com-
munication is impossible due to different communication codes and col-
lective norms. The Crimean Tatar’s father had played with the harshest
prejudice by performing as a stranger who could easily kill anyone with his
axe—all this to prevent the local distrusted police performing their learned
scenario. Such a logic of argumentation and interpretation is rooted in the
ethno-methodological approach of Harold Garfinkel (1991), who made a
significant contribution to the study of social order and the forms of ratio-
nality that help individuals to communicate. Hence, the Crimean Tatar
father’s attempt to “break” the orderliness of social life highlights the
non-declared social norms shared by some of the local population and
authorities in Crimea (the fear of Tatar-speaking persons).
In view of the decrease in freedom, distrust towards the post-­annexation
local authorities, and the prominence of politically motivated threats, our
last set of questions dealt with respondents’ reasons for remaining in
Crimea and their plans for life, especially in relation to the geographies of
life they envision for themselves. Reflection their responses enabled us to
distinguish a couple of trends. Firstly, many Crimean Tatars believe that
they ought to stay in Crimea. Whilst the current situation is labeled as “a
hybrid deportation” (a definition recalling the 1944 deportation experi-
ence), remaining in Crimea is being considered to be a manifestation of a
100  A. ZUBKOVYCH

long-term struggle against occupation and neglected collective memory.


Secondly, the vast majority of respondents expressed a wish to return to
Crimea after de-occupation, with some of them proclaiming return as an
irrevocable decision and others viewing it as one of several possibilities.
Hence, an ideological necessity to stay in (or return to) Crimea can be
articulated in different terms (yet, justified by similar values):

You know, our ancestors, our grandfathers, were not returning back to Crimea in
order to leave from there en masse! My parents believe that they should remain in
Crimea. Even my brother thinks so!13 He had the opportunity to leave, but he chose
to stay. We are with all our hearts in Crimea, wherever we are [located]. Crimea
is the most important thing for us. Of course, [it is the most important] after par-
ents and family[…] I will definitely return to Crimea! This is about my family,
my parents. I plan to build my family only with a Crimean Tatar and I want to
live in Crimea. (Female, journalist, 25, Kyiv)

I asked another respondent about his plans, as he strongly linked them


to the de-occupation of Crimea.

I’m just thinking about that all the time. Staying here, I begin to grow into ties,
deeds. They[ties] are also useful [to have] and they influence me. If it is neces-
sary, I will be “a guide.” If it is necessary, I will be here. Everything that we
have done all this time there [in Crimea], works there and extols the annexa-
tion. Everything is been appropriated […], everything becomes Russian cul-
ture.[…] Here is an example. There is a mazanka14 in a village, a Ukrainian
village near Simferopol. An ethnographic expedition comes along and records
some rituals—a funeral, if I am not mistaken. The ethnographer writes down
everything and then asks [people]: “Whose traditions are these?” And they
answer: “Russian.” My respondent continues angrily: “How can it be Russian
if you were singing in Ukrainian?! […] Ukrainians have lost their traditions
and identify themselves as Russians.” (Male, 41, artist, Kyiv)

It also should be mentioned that it is a considerable (and potentially


highly misleading) oversimplification to consider IDPs in Ukraine and
Crimean Tatar inhabitants in Crimea as stable groups. Our interviews dem-
onstrated that Crimean Tatars’ personal geographies are dynamic. All of our
respondents reported being in contact with relatives and friends who are in

13
 The reference to the brother is very important here because at the time of our conversa-
tion he was under arrest in Crimea as a result of a fabricated case.
14
 “Mazanka” is a Ukrainian word that refers to a house made of clay, bricks, or shrub
covered with clay. Houses built in this way were widespread in the territories of steppe and
forest-steppe Ukraine.
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  101

Crimea. Many tend to visit Crimea to see their friends and relatives; who in
return visit them in mainland Ukraine. This dynamic, and the consequent
complexity of possibilities can be traced in the following response:

I believe that there is no need to leave [Crimea]. If I had not needed to obtain
higher education, I would not have left. If mom had not had a job issue—she
would not have moved. It is not difficult to [physically] leave, but we are losing
ourselves, our identity. But now [as I left] I do not know if I want to return.
Yes, I want to come back, but to MY Crimea. I am now living here [in main-
land Ukraine] for the fifth year; other opportunities have appeared, and other
horizons have expanded. […] Once I was thinking about Crimea and imag-
ined: I am in a car, surrounded by the mountains and nature—it is just magi-
cal. There is no magical nature like Crimea’s! It is mine and everyone who lives
there feels that it is his/hers. I do not have such feeling anywhere else, not in Lviv
or in other places. Probably this can be called a feeling for the Motherland.
(Female, Lviv, student, 21)
Previously, we, unfortunately, knew very little about each other, Crimea and
Lviv are so far apart. When someone was coming to Crimea, it was to visit the
sea, to swim, to sunbathe, and therefore they [inhabitants of Lviv] knew little
about us. But here they began to learn more about it [Crimea and Crimean
Tatars]. I know that now there exist about five music bands that enriched their
repertoire by adopting Crimean Tatar songs. Hence, more people are starting
to know more about us, of course. (Male, 39, manager, Lviv)

Conclusions
This analysis of the dynamics and challenges of Crimean Tatars’ self-­
identification, their views on the current situation in Crimea, and its future
is illustrative for the study of ethnic and national identities in flux in post-
Euromaidan Ukraine. The interviews revealed that Crimean Tatars use
different factors and experiences to construct their identities, including
ethnicity, language, and educational experiences. These findings con-
firmed our theoretical assumption, according to which national identity is
more fitted to capturing the complexities of one’s self-identification, as
compared to ethnic identity, since it enables respondents to refer to a
broader range of categories. Thus, largely in consequence of the experi-
ences of Euromaidan, the annexation, and subsequent intimidation by the
occupation authorities, the category of “being Ukrainian” in Crimea is
reflected not only in ethnonational terms, but also through citizenship,
language, and “Ukrainian schools” experiences. Notably, the interviews
enabled us to coin a concept of “banal multilingualism,” signifying a
102  A. ZUBKOVYCH

communication practice that uses a switch from one language to another


to underline particularities of the context, known to all participants of the
conversation. In our view, “banal multilingualism” is illustrative of the
contemporary sociocultural processes in Ukraine, when the use of multi-
ple languages reflects the multiplicity of performed identities.
Importantly, in mainland Ukraine, Crimean Tatars are currently viewed
as key proponents of Ukraine’s territorial integrity, whereas Russian dis-
course in the annexed peninsula remains based on a rigid image of Crimean
Tatars as “Tatar invaders,” a perception inherited from early post-Soviet
textbooks. Such an image is highly beneficial for the occupation authori-
ties who continue to use collectively maintained prejudices to legitimize
pressure on Crimean Tatars and any other inhabitants of the peninsula
who do not support the annexation.
Even though the respondents unanimously characterize occupied
Crimea as an insecure place, many of them link their identity to remaining
at the peninsula or returning there after its de-occupation. Reflecting on
the future of de-occupied Crimea, Crimean Tatars emphasize special (i.e.
self-governance) rights to be granted to the indigenous population in
order to strengthen Ukrainian–Crimean Tatar relations and secure the
peninsula from different forms of separatism. In this regard, the metaphor
of two types of homeland was reproduced, with Ukraine as a “big” home-
land and Crimea as a “small” one.
In respondents’ view, even though the Euromaidan, followed by the
Russian Federation’s annexation of Crimea, promoted the broadening
and consolidation of “being Ukrainian” as a category, more effort is
needed to ensure the consistency of history education in Ukraine. In par-
ticular, they advocate a more consistent conceptual reflection of the role of
Crimea and Crimean Tatars in Ukraine’s history, as part of a more ambi-
tious effort to reconsider the politics of belonging in Ukraine. Many of the
respondents have already actively engaged in developing platforms for
public discussions of the above issues, as well as cultural initiatives. Under
the general trend towards consolidation of the Ukrainian identity, interest
by Crimea and Crimean Tatars is increasing, and manifests itself through
the rise of cross-regional and cross-ethnic cultural cooperation, facilitated
by the fact that Crimean Tatars in mainland Ukraine maintain active links
with Crimea.
4  CRIMEAN TATARS AND THE QUESTION OF NATIONAL AND ETHNIC…  103

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PART II

The “Crisis In and Around Ukraine”,


Occupied Territories and their
Reintegration: The Legal Dimension
CHAPTER 5

The Domestic Dimension of Defining


Uncontrolled Territories and Its Value
for Conflict Transformation in Moldova,
Georgia, and Ukraine

Maryna Rabinovych

Introduction
Legal practitioners, politicians, or scholars seek to characterize the type of
control exercised over territory or population by unrecognized political
entities and develop and/or evaluate conflict transformation and resolu-
tion strategies (Coppieters 2018, 343). Hence, the violent conflict in east-
ern Ukraine that eventually led to the proclamation of the so-called
Donetsk People’s Republic (“DPR”) and Luhansk People’s Republic
(“LPR”) in 2014 gave rise to an intense debate on the conflict’s standing

M. Rabinovych (*)
University of Hamburg, Hamburg, Germany

© The Author(s) 2020 107


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_5
108  M. RABINOVYCH

under international law,1 as well as a legally accurate way to define such


People’s Republics. So far, the UN Security Council (SC) has been very
cautious when addressing the nature of the conflict and avoided defining
it in its official documents (UNSC 2014, 2015, 2018). By referring to the
conflict as the “crisis in and around Ukraine,” the OSCE hinted about the
two-dimensional nature of the conflict without, however, specifying what
the “around” dimension means (OSCE 2015). The International Criminal
Court (ICC), for the present the only international adjudicator to opine
on the events in eastern Ukraine from an international humanitarian law
perspective, pointed to the parallel existence of “direct military engage-
ment between the respective armed forces of the Russian Federation and
Ukraine” and “the non-international armed conflict” in eastern Ukraine
(International Criminal Court 2018, para. 72–73) with this opinion
shared in a number of international law contributions on the conflict in
eastern Ukraine (e.g. Korhonen 2015; Sayapin 2019).
In this context, the abovementioned ICC Report on Preliminary
Examination Activities regarded the “DPR” and “LPR” as “armed
groups,” without referring to the status of uncontrolled territories2 and
their contested statehood (International Criminal Court 2018, para.
72–73). In our view, such a situation is most likely to be determined by
the established practice of states’ bilateral recognition of new members of
the international community and the high degree of politicization of the
recognition-related issues. However, the lawfulness of a new state’s cre-
ation is “the first test of [its] ability to be recognized by other states” and
the non-applicability of the “duty not to ‘recognize as lawful’” under
international law (Korotkyi and Hendel 2018, 148). Notably, determin-
ing the lawfulness of a new state’s creation or, alternatively, the legal status
of entities that exercise control over particular territory and population,
requires, inter alia, an insight into the legislation of a “maternal state”
(ibid.). Furthermore, examining the definitions of uncontrolled territories
and political entities exercising factual control over them, recognition of
control or influence by “maternal” states is an essential (and frequently
overlooked) precondition for the international community to promote

1
 For the examples of international law-centered contributions on the conflict and the legal
status of the “LPR” and “DPR,” see, for instance: Korhonen (2015), Fabry (2017) and
Korotkyi and Hendel (2018).
2
 For the purposes of this paper, we will use the term “uncontrolled territories,” indicating
that the governments of Moldova, Georgia, and Ukraine cannot exercise “effective control”
over the whole of their territories in international humanitarian law (IHL) terms.
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  109

conflict transformation and resolution. The proliferation of unrecognized


states in the post-Soviet space, extensively supported by the Russian
Federation, makes comparative insights into the domestic legal definitions
of uncontrolled territories and respective political entities especially valu-
able for the international community’s efforts to transform such conflicts.
Against this background, this chapter is a comparative analysis of the
domestic dimension of defining uncontrolled territories and political enti-
ties that control them in Moldova (Transnistria), Georgia (Abkhazia and
South Ossetia), and Ukraine (“DPR” and “LPR”) and its value for con-
flict transformation. Since Moldova and Georgia have lengthier experi-
ences in dealing with uncontrolled territories, we will look at the lessons
Ukraine can learn from them. The chapter has two substantial parts.
Section “The ‘Domestic Dimension’ of Defining Uncontrolled Territories
and Its Value for Conflict Transformation: The Cases of Moldova and
Georgia” aims to trace the dynamics of defining uncontrolled territories
and related political entities in Moldova and Georgia, and addresses the
role of international actors in conflict transformation activities. Section
“The ‘Domestic Dimension’ of Defining ‘DPR’ and ‘LPR’—a Hybrid
Model, Conflict Transformation and Lessons to Learn from Moldova and
Georgia” focuses on Ukraine’s domestic legislation pertaining to uncon-
trolled territories, the lessons it has learnt or may learn from the experi-
ence of Moldova and Georgia, and their value for conflict transformation.
This discussion will incorporate a reflection on the recent “Steinmeier
Formula” debate, illustrative of the role the domestic dimension may play
in conflict transformation. The chapter concludes by emphasizing the
importance of insights into “maternal” countries’ domestic legislation for
researching into unrecognized states and transforming conflicts underly-
ing their establishment.

I. The “Domestic Dimension” of Defining


Uncontrolled Territories and Its Value
for Conflict Transformation: The Cases of Moldova
and Georgia

Russia’s foreign policy as it seeks to ensure the endurance of non-­


recognized states in the region has been receiving changed coverage in
“maternal” countries’ legislation over time. Firstly, as convincingly argued
by Allison (2008), German (2009), and Souleimanov et  al. (2018),
110  M. RABINOVYCH

unrecognized states are a crucial tool in Russia’s “coercive diplomacy,”


exercised towards Georgia, Moldova, and Ukraine. There is ample proof
of Russia’s military presence in all the unrecognized states in question
(Souleimanov et al. 2018, 73–74). In addition, extensive political and eco-
nomic support is being channeled to state structures in non-recognized
states. As confirmed by recent events in eastern Ukraine, a crucial compo-
nent of Russia’s strategy in unrecognized states is passportization (i.e.
granting Russian citizenship to residents of the uncontrolled territories)
(Ukraine Crisis Media Center 2019). Last but not least, in line with the
literature on the dynamics of Russia’s foreign policy, Russia’s support to
unrecognized states is a “moving target,” difficult to “capture” in domes-
tic legislation (e.g. Souleimanov et al. 2018, 73–74).

1. The Dynamics of Defining Transnistria and Its Regime


in the Legislation of Moldova
Transnistria declared independence from the Republic of Moldova in
September of 1990 (more than a year before the collapse of the USSR in
December 1991) and proclaimed the Transnistrian Moldovan Republic
(TMR). Rooted in the socioeconomic differentiation of the Soviet era and
moderate interethnic cleavages, the confrontation between Moldovan and
secessionist authorities escalated into a violent conflict in summer 1992
(Büscher 2016, 25–27). The ceasefire agreement, signed by the President
of Moldova Mircea Snegur and Russian President Boris Yeltsin in July
1992, envisaged, inter alia, the creation of a trilateral peacekeeping force,
the “Joint Control Commission,” aimed at observing the ceasefire arrange-
ments and demilitarization of the buffer zone (United Nations Security
Council 1992). The ceasefire agreement also gave rise to the process of
political negotiations on the status of Transnistria. According to the OSCE
analysis, the key issues preventing the political settlement of the conflict
included a language issue (despite the legal recognition of Russian as an
interethnic language of communication); an idea of re-unification with
Romania; Russia’s continued military presence in the area; and the chal-
lenge of defining the legal status of Transnistria (OSCE Network 2016,
15–17, 23–24, 33–34).
Moldova’s efforts to cope with the last of these challenges can be fitted
into three periods:
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  111

1. Early period (1993–2005), preceding the adoption of the Law “On


Fundamental Regulations of the Special Legal Status of Settlements
on the Left Bank of the River Nistru (Transnistria)” (the “Moldovan
Framework Law”);
2. The consolidation of Moldova’s domestic position on the legal sta-
tus of Transnistria during the stalemate of the international talks on
the status of Transnistria (2006–2011) and
3. The resumption of “5+2” talks3 and the future of Transnistria’s legal
status (2011–present time).

 .1. Early Period (1993–2005) Preceding the Adoption of the Moldovan


1
Framework Law
According to the OSCE, direct negotiations on the legal status of
Transnistria between the governments of Moldova and the TMR at the
beginning of 1993 could have been a success, if the TMR’s Supreme
Court had not blocked them by proposing a “draft treaty on the separa-
tion of powers between the subjects of the Moldovan confederation”
(OSCE n.d., 5). Since the treaty virtually equated to granting Transnistria
independence, Moldovan authorities opposed it, and requested the
Commission on Security and Cooperation in Europe (CSCE) to launch a
mission to contribute to the political settlement of the conflict (ibid.).
Emphasizing the restoration of Moldova’s territorial integrity as the pri-
mary settlement objective, the CSCE recommended decentralizing
Moldova over the long term, thus rendering Transnistria’s special status
less singular (CSCE Mission to Moldova 1993, 1). At the same time, the
commission pointed to the justifiability of Transnistria’s special status,
“differing from the constitutional condition of other parts of Moldova”
and involving a considerable degree of self-rule” (e.g. the establishment of
Transnistria’s own legislative, executive and judicial bodies) (ibid., 2).
Adopted in 1994, the Constitution of Moldova has, however, only referred
to decentralization in the context of provision of public services (Art.
109). Moldova’s Constitution (Art. 110(1)–111) defined another
region—Gagauzia—as “an autonomous territorial-unit having a special
statute and representing a form of self-determination of the Gagauzian

3
 “5+2” talks on Transnistria involve Moldova, Transnistria, Russia, Ukraine, and the
OSCE, as well as the USA and the EU. Following the talks’ stalemate in 2006, they were
resumed in 2011 in Tiraspol.
112  M. RABINOVYCH

people,” constituting an “integral and inalienable part” of the Republic of


Moldova. As opposed to the case of Gagauzia, the same Art.100 of the
Constitution did not shed much light on the legal status of Transnistria,
providing that “places on the left bank of the Dniester River may be
assigned special forms and conditions of autonomy according to the spe-
cial statutory provisions adopted by organic law.” Notably, the Constitution
also confirmed Moldova’s neutrality (incorporating a prohibition of for-
eign troops’ stationing on its territory) and the status of Moldovan (with
Latin alphabet) as the state language (Art. 11 and Art. 13, respectively)
(Moldova Parliament 2006).
Following the promulgation of Moldova’s Constitution and before
adoption of the respective law, there have been three attempts to define
the status of the TMR: two memoranda proposed by the Russian
Federation, and Joint Proposals by the OSCE, Russia and Ukraine. Signed
by the representatives of Moldova, the Russian Federation and Transnistria
(with Ukraine as a guarantor), the 1997 Memorandum on the Bases for
Normalization of Relations between the Republic of Moldova and
Transnistria (also referred to as the “Moscow” or “Primakov”
Memorandum) confirmed the parties’ commitment to the continuation of
establishing state legal relationships between them (OSCE 1997).
According to the 1997 memorandum, the document defining such rela-
tions and the legal status of Transnistria, shall be based “on the principles
of mutually agreed decisions, including the division and delegation of
competences and mutually assured guarantees” (with the Russian
Federation and Ukraine acting as Guarantor States) (ibid.). Despite the
fact that the Moscow Memorandum envisaged that the parties would pro-
ceed with the elaboration of the respective document immediately after
the signing of the Memorandum, it never saw the light of day. The next
loop of the labyrinth was the Memorandum on the Basic Principles of the
State Structure of the United State (the “Kozak Memorandum”), sug-
gested by the Russian Federation in 2003. According to this, “the final
resolution of the Transnistrian problem should be realized through the
transformation of the state structure of the Republic of Moldova with the
goal of creating a united, independent, democratic state based on the fed-
eral principles with the borders of the Moldovan SSR on the 1 January
1990” (Regnum 2005). Notably, the “Kozak Memorandum” provided
for Moldova’s neutrality and demilitarization. It was envisaged that the
Transnistrian Moldovan Republic would become a subject of the federa-
tion, authorized to form its own legislature (Supreme Council of the
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  113

TMR), executive (President and Government of the TMR) and judiciary.


As opposed to the “Moscow Memorandum,” the “Kozak Memorandum”
defined the competencies of the federation and its subjects, as well as the
foundations of the formation of federal and state budgets. Notwithstanding
its elaborateness and Moldovan authorities’ initial intention to sign it, the
memorandum was rejected by the then President of Moldova, Vladimir
Voronin, who argued that its adoption would contradict the Constitution
of Moldova (Vahl and Emerson 2004, 173). The actual reason for the
rejection is thought to be a lack of consensus among the key Western
actors (the EU, the USA and the OSCE) about both the contents of the
memorandum and the manner in which it was proposed (ibid.).
Subsequently, the idea of Moldova’s federalization was also reflected in
the 2004, “Proposals and Recommendations of the Mediators from the
OSCE, the Russian Federation and Ukraine” (OSCE 2004). Despite the
fact that the proposals envisaged a far broader range of competencies for
the federal state, as compared to “Kozak Memorandum,” they were also
rejected by the Moldova’s leadership.
The first thirteen years of the Transnistrian case, after the conflict and
the territory’s factual breakaway from Moldova, went through the “ups
and downs” of international political settlement talks with no domestic
legislation defining the legal status of Transnistria and its relations with
Moldova. This situation only changed in 2005, with the so-called
“Ukrainian Plan” (Ukraine’s proposal “Towards a Settlement through
Democratization”).

 .2. The Consolidation of the Moldovan Domestic Position Vis-à-vis


1
Transnistria Under the Stalemate of International Settlement Talks
(2006–2011)
Introduced by the then President of Ukraine, Victor Yushchenko, follow-
ing intensive Ukraine-–Moldova diplomatic communication at the sum-
mit of the GUAM (Georgia, Ukraine, Azerbaijan, Moldova) Organization
for Democracy and Economic Development in Chisinau in spring 2015,
Ukraine’s proposal suggested solving the Transnistrian issue through
democratizing Transnistria. Its major points addressed the creation of
conditions for the development of democracy, civil society, and a multi-­
party system in Transnistria; the holding of free and democratic elections
to the Transnistrian Supreme Council; the transformation of the peace-
keeping operation in Transnistria into an international mission, composed
of the military and civil observers; and setting up a special mission to
114  M. RABINOVYCH

prevent smuggling at the Moldova–Ukraine border (Protsyk 2004,


726–728). Although, in the view of the Moldovan leadership, the
Ukrainian plan failed to reflect some of the important principles of settle-
ment (e.g. the withdrawal of Russian troops, demilitarization), the
Ukrainian initiative broke the stalemate and resulted in the formalization
of Transnistria’s “special status.” While emphasizing “democratization”
and “demilitarization” as key objectives of Moldova–Transnistria rela-
tions, Art. 1(1) of the Law “On Fundamental Regulations of the Special
Legal Status of Settlements on the Left Bank of the River Nistru
(Transnistria)” referred to the “reintegration policy” of Moldova. With
this, Art. 1(1) positioned reintegration as an inevitable conclusion of
negotiations, though providing for join negotiations on power-sharing. In
this vein, Art. 3(1)(2) provided for the “setting” of Transnistria as a “spe-
cial autonomous unit,” constituting an “integral, component part” of the
Republic of Moldova. Pursuant to Art. 4 of the Moldovan Framework
Law, the Supreme legislative body of Transnistria is the Supreme Soviet
(Council), with the elections of the first Supreme Soviet to be conducted
by an International Election Committee (upon the OSCE’s agreement).
Notably, the Law granted Transnistria the right to “establish and maintain
external contacts in economy, science, humanities,” provided that the
manner in which this right is exercised complies with the legislation of the
Republic of Moldova (Parliament of Moldova, Art. 9). With regard to
language, the law also opted for a compromise, nominating Moldovan,
Russian, and Ukrainian as Transnistria’s state languages. Notably, as
opposed to all previous settlement proposals, including the “Ukrainian
Plan,” the 2005 Framework Law did not provide an option for Transnistria’s
secession.
According to Stephan Wolff, a more elaborate and realistic version of
Moldova’s domestic position is found in a 2007 package proposal for a
“Declaration concerning principles and guarantees of the Transnistrian
settlement,” adopted after the 2006 referendum in Transnistria (in which
97 percent of voters opted for independence and “free association” with
Russia (Wolff 2011). Compared to the 2005 Framework Law, the package
proposal is marked by a milder stance towards reintegration and the rise of
legal mechanisms aimed at ensuring adequate power-sharing and the solu-
tion of conflicts between Moldova and Transnistria (ibid.). Hence, the
proposal included provisions on Transnistria’s representation in Moldova’s
legislative and executive bodies, as well as the Constitutional and Supreme
Courts, Security Council, and Prosecutor’s General Office. Furthermore,
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  115

contrary to the 2005 Framework Law, the 2007 package proposal envis-
aged a legal mechanism to solve disputes over competencies between the
Republic of Moldova and Transnistria, as well as defining conditions of
Transnistria’s secession from Moldova (ibid.).
Even though Moldova opted for the rather mild 2007 proposal as a
basis for a draft law on Transnistria’s special status, such a law was never
adopted. Instead, under the stalemate of international negotiations over
Transnistria, the period in question has been marked by the emergence
and consolidation of two “parallel universes” of regulation: the Moldovan,
with Transnistria as its “integral, component part” (Parliament of the
Republic of Moldova 2005), and the Transnistrian, avoiding even refer-
ences to Moldova.

 .3. Resumption of the “5+2” Talks and the Future of Transnistria’s


1
Legal Status
Although a comparative insight into the nexus between the domestic
dimension of defining uncontrolled territories and conflict transformation
will be offered after section “The ‘Domestic Dimension’ of Defining
South Ossetia and Abkhazia in Georgia’s Legislation” analysis of the case
of Georgia, the following paragraphs offer a brief overview of the progress
of the “5+2” talks. As opposed to the “grand” political settlement propos-
als put forward at the end of the 1990s and the beginning of the 2000s,
the concluding official documents of the 2012 “5+2” talks in Vienna
emphasized “solidifying the positive results” achieved to that point in
terms of the talks, building mutual trust and understanding, and small
steps to be taken on the ground (OSCE 2012). Though referring to the
comprehensive settlement agenda (including the clarification of
Transnistria’s legal status), the 2013 Odesa and Kyiv talks once again
stressed “small steps” and focused on confidence-building and the free
movement of people, respectively (OSCE 2013a, b). Confidence-building
remained a focus of negotiations over the period from 2014 to 2016 (e.g.
OSCE 2016). November 2017 was marked by the launch of the “1+1”
Moldova–Transnistria talks that eventually led to the parties’ agreement
on a number of administrative and technical steps. Envisaging an increase
in the capacity of the Gura Bicului–Bychok bridge across the river Dniester,
and ensuring the functioning of Latin-alphabet schools administered by
Moldova and the recognition of Transnistrian educational documents in
Moldova, were beyond doubt measures consonant with the “grand”
objective of political settlement (OSCE 2018). Another development that
116  M. RABINOVYCH

can be viewed as indirectly facilitating the settlement of the Transnistrian


issue has been the breakaway state’s authorities’ decision to join the Deep
and Comprehensive Free Trade Area (DCFTA) as a part of the EU–
Moldova Association Agreement in 2016 after four years of consistently
opposing it (Całus 2016). Although the Transnistrian leadership tried to
advertise this step as the signing of the agreement, “separate from the
DCFTA” (Całus 2016), scholars and analysts point to the implementation
of regulatory changes under the DCFTA and closer links between Moldova
and Transnistria as indications of progress in terms of supporting the suc-
cesses of the “5+2” talks (e.g. Schleifer 2015; Van der Loo 2019).
Ultimately, under the continued existence of the “parallel universes” of
regulation (including the lack of changes to the 2005 Moldovan
Framework Law), the most recent period of conflict settlement efforts has
been characterized as a policy of small steps, carefully shaped to contribute
to the solution of most controversial issues (especially language) and facili-
tate business and people-to-people contacts.

2. The “Domestic Dimension” of Defining South Ossetia


and Abkhazia in Georgia’s Legislation
To elaborate on Georgia’s legal thinking regarding the status of uncon-
trolled territories, we divide its evolution into two periods: (1) prior to the
2008 Russo-Georgian War; and (2) after the Russo-Georgian War, that
eventually led to Russia’s recognition of South Ossetia and Abkhazia as
independent states, the severance of Russia–Georgia diplomatic relations,
and its aftermath.

 .1. Prior to the 2008 Russo-Georgian War


2
South Ossetia declared its independence from Georgia in May 1992 as a
consequence of the 1991–1992 South Ossetia War. The independence of
Abkhazia was declared following its armed conflict with Georgia in
1992–1993. As noted by Dennis Sammut and Nikola Cvetkovski (1996),
and Rachel Clogg (2008) in their papers on the Georgia–South Ossetia
and Georgia-Abkhazia conflicts, both of these conflicts have been charac-
terized by sharp interethnic cleavages, rooted in the pre-Soviet history of
both regions rather than the socioeconomic differentiation of the Soviet
era. Unlike the case of Transnistria, there was little progress towards politi-
cal settlement immediately after a ceasefire under the Yeltsin–Shevarnadze
Sochi Agreement of 1992 (United Nations Peacemaker 1992). Despite
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  117

the fact that the Sochi Agreement provided for the launch of a Joint
Control Commission (JCC) to facilitate political settlement in South
Ossetia, it was only in 1995 that the JCC first met to discuss connectivity
between Georgia and South Ossetia (Sammut and Cvetkovski 1996,
15–16). In contrast to the Sochi Agreement on South Ossetia, the
Declaration on Measures for a Political Settlement of the Georgia–Abkhaz
Conflict of April 4, 1994 stipulated parties’ agreement on a number of
political issues, such as the right of Abkhazia to its own Constitution and
legislation (United Nations Security Council 1994, Annex I). Moreover,
pursuant to the Declaration, “the parties have reached a mutual under-
standing regarding powers for joint action in the following fields: foreign
policy and foreign economic contacts; border guard arrangements; cus-
toms; energy, transport and communication” and agreed “to continue
active efforts to achieve a comprehensive settlement” (ibid.).
Notwithstanding the above, Art. 1 of the 1995 Constitution of Georgia
defined Georgia as “an independent, unified and indivisible state, as con-
firmed by the Referendum of 31 March 1991, held throughout the coun-
try, including the Autonomous Soviet Socialist Republic of Abkhazia and
the Former Autonomous Region of South Ossetia” (The Parliament of
Georgia 1995, Art. 1). Hence, in contrast to the Constitution of Moldova,
the Constitution of Georgia did not provide for the autonomy of break-
away regions, linking the determination of the territorial state structure of
Georgia with “the complete restoration of the jurisdiction of Georgia over
the whole territory of the country” (ibid., Art 2(3)). However, as can be
seen in Georgia’s 2001 draft law on amending the 1999 Constitution of
Abkhazia, by the beginning of 2000s Georgia regarded the breakaway
regions as autonomous, even though they constituted “an inalienable part
of Georgia” (Parliament of Georgia 2001).
Like the 2005 Moldovan Framework Law’s provisions on the Supreme
Council of Transnistria, the 2001 draft law referred to the Supreme
Council of Abkhazia as the legislative body empowered to adopt laws in
terms of the competences defined by the Constitution of Georgia and the
Constitution of Abkhazia (ibid., Art. 8). Respective draft laws also referred
to the Constitution of Georgia and the authorities of Georgia’s higher
state bodies in relation to the application of Abkhazia’s Constitution, the
functioning of the executive branch, and budgetary issues (ibid, Art. 6,
Part B). However, an insight into the Constitutions of Abkhazia and
South Ossetia testifies to the existence of two parallel regulatory universes
in Georgia prior to the start of the Russo-Georgian War (i.e., the
118  M. RABINOVYCH

Constitutions of Abkhazia and South Ossetia not even mentioning


Georgia) (Abkhaz World 2008). Here it should be mentioned that con-
flicts in Abkhazia and South Ossetia have been a much more difficult cases
for international settlement efforts than that in Transnistria, given the
Russian Federation’s comprehensive control over the security sector and
confidence-­building in the breakaway regions.

 .2. The Russo-Georgian War and Its Aftermath


2
Whilst Georgia’s relations with Abkhazia and South Ossetia were marked
by stalemate until 2004, Mikheil Saakashvili’s coming to power as a result
of the Rose Revolution in Georgia in 2005 marked the start of Georgia’s
attempts to reintegrate the breakaway regions. Georgia’s reintegration
efforts had both a diplomatic dimension (e.g. Saakashvili’s suggestion of a
peace settlement to South Ossetia at the Parliamentary Assembly of the
Council of Europe) and a policing/ military dimension (e.g. disarmament
of the paramilitary leader Emzar Kvitsiani and the restoration of Georgian
jurisdiction in Kodori, Abkhazia, in 2006) (Mitchell 2009, 175–176). A
number of factors, including Russian opposition to Georgia’s efforts to
reintegrate the breakaway regions and its aspiration to join NATO, led to
the five-day border conflict in Tskhinval in August 2008 known as the
Russo-Georgian War.
Whilst the question “Who started the war?” is highly politicized and
difficult to answer in the context of the relations between Russia, Georgia,
Abkhazia, and South Ossetia (Cheretian 2009, 155), it is beyond the
doubt that the armed conflict had multiple implications for the future of
Georgia and its breakaway territories. In particular, Georgia’s military
defeat solidified Russia’s power in the breakaway regions (including its
military presence), creating, according to some experts, barely surmount-
able barriers to Georgia’s NATO accession (Friedman 2008). Naturally,
the 2008 war and Georgia’s defeat also led to Georgia’s reconsideration of
its domestic legislation on uncontrolled territories.
Hence, in contrast to Moldovan domestic legislation that never openly
referred to Russia’s role in Transnistria, the 2008 Law of Georgia “On
Occupied Territories” stipulated the aim of defining “the status of territo-
ries that have been occupied as a result of military aggression by the
Russian Federation, and to establish a special legal regime for these terri-
tories” (Parliament of Georgia 2008, Art. 1). According to Art. 3 of this
law, such “emergency rule and special legal regime implies, inter alia,
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  119

restrictions on free movement (primarily applicable to foreign nationals


and stateless persons (Art. 4)), the conduct of transactions relating to real
property and economic activities. Pursuant to Art. 6 of the Law “On
Occupied Territories.” The restriction on the conduct of economic activ-
ity is applicable to a broad range of actions, including all the activities
whose conduct requires obtaining approval documents under Georgian
legislation, or involves the use of public resources, or the arrangement of
money transfer. Furthermore, in line with the Hague Conventions of
1907 and the Fourth Geneva Convention, the law declared all human
rights violations in the occupied territories “the responsibility of the
Russian Federation, as a state carrying out military occupation” (ibid.,
Art. 7). Last but not least, Art. 8 of the law pointed to the illegal nature of
official bodies in the occupied territories, if not created under the Georgian
legislation.
This brief overview of the 2008 Georgia’s Law “On Occupied
Territories” displays a sharp contrast to both Georgia’s pre-conflict legal
framing of uncontrolled territories and the case of Transnistria. Thus, the
law’s definition of South Ossetia and Abkhazia as “occupied territories”
and of Russia as an occupying power, presupposes an application of inter-
national humanitarian law (IHL) that regards a territory occupied, “when
it is placed under the authority of a host army” (Second International
Peace Conference 1907, Art. 42). This, in turn, leads to numerous conse-
quences, such as a “maternal state’s” application of numerous restrictions
vis-à-vis occupied territories and its expectation of the occupation’s con-
demnation and the application of sanctions to an occupying force by its
international partners (as exemplified by Art. 9 (2) of the Law “On
Occupied Territories”). Moreover, as we will demonstrate in section “The
‘Domestic Dimension’ of Defining Uncontrolled Territories and Its Nexus
with Conflict Transformation”, a “maternal state’s” legal definition of
uncontrolled territories as “occupied” has a considerable impact on con-
flict transformation.

3. The “Domestic Dimension” of Defining Uncontrolled


Territories and Its Nexus with Conflict Transformation

 .1. Defining Conflict Transformation


3
As noted by Thania Paffenholz (2009) in her overview of peace-building
theories, “building peace is in itself one of the most intricate enterprises of
120  M. RABINOVYCH

human beings,” giving rise to and, subsequently, embedding numerous


schools of thought, such as conflict resolution, management and transfor-
mation (3–4). As opposed to conflict resolution (aiming to solve a conflict
and rebuild the relationships between the parties) and conflict manage-
ment (limiting negative aspects of the conflict and emphasizing positive
ones), the first step towards conflict transformation lies in comprehending
the conflict as a “socially constructed cultural event” (Lederach 1996, 9).
Hence, from a social constructionist perspective, conflicts emerge
“through an interactive process of the search for and the creation of shared
meaning” (ibid.). Subsequently, the transformation of a conflict requires
transforming perceptions of the conflict itself and a subject matter it refers
to or, in other words, a creation of the new meaning, genuinely shared by
involved stakeholders. Notably, conflict transformation practice envisages
the construction of new meanings at three levels: the top level (state bod-
ies, big business, political parties), the mid range (local government, local
media, research centers and think tanks, and even organized crime net-
works) and grassroots level (family and community-based groups)
(Lederach 1997, 91–92). Moreover, according to the Berghof Foundation
for Peace Support, advocating systemic conflict transformation, successful
transformation of a conflict requires not only the multilevel shaping of a
shared meaning by its parties, but the consolidation of a shared meaning
by the international community (of donors) (Körppen et al. 2008, 22).
The above brushstrokes, drawing the picture of conflict transformation,
also clearly illustrate the reason why we chose to focus on conflict transfor-
mation: debating and construing shared meanings is about definitions.
Hence, a conflict transformation’s focus on the construction of shared
meanings enables one to trace the nexuses between dynamics of different
actors’ positions on conflicts/ uncontrolled territories, a creation of joint
meanings, and practical steps they agree on.
Before proceeding with the analysis of relationship between Moldova’s
and Georgia’s domestic definitions of uncontrolled territories, and respec-
tive conflict transformation processes, we will refer to the conceptions of
conflict transformation utilized by key regional peace and security actors:
the EU and the OSCE. Tending to use the concept of “transformation”
in the context of the promotion of fundamental values (i.e. democracy,
human rights, and the rule of law) and the promotion of regional integra-
tion, EU official documents primarily refer to conflict resolution, rather
than transformation (e.g. Council of the European Union 2018). At the
same time, as can be proved by a number of contributions on the EU’s
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  121

role in dealing with conflicts in its immediate neighborhood (Deiana et al.


2019; Tocci 2008), the EU’s understanding of conflict transformation is
close to its vision of transformation. In particular, it is marked by consider-
ing conflict transformation in a broader context of political development
(transformation) and the deployment of all available EU instruments, as
underlined by the EU Integrated Approach to External Conflicts and
Crises (Council of the European Union 2018). Moreover, driven by its
own experience of using integration as a means to promote peace, the EU
emphasizes cooperation between conflicting parties as a means of trans-
forming conflict (here being close to the conflict-management school of
thought, based on stressing positive aspects of the relationships between
conflict parties; Deiana et al. 2019, 530–533). On top of that, an impor-
tant component of the EU conflict-transformation strategy is the engage-
ment with local civil society that, even though less organized and
professional than the NGOs with which the EU usually works, may have
strong legitimacy in the conflict context (Tocci 2008, 6).
Like the EU, the OSCE characterizes its engagement in conflicts as
“management” and “resolution¨, rather than ¨transformation¨. However,
in comparison to the EU, the OSCE’s approach to dealing with conflicts
links less with political development, broadly defined. It is, instead, more
conflict context-focused, and utilizes “dialogue facilitation, mediation and
confidence-building activities between conflict-affected societies and com-
munities” and the monitoring of security situation and the implementa-
tion of peace arrangements on the ground (OSCE 2017, 9–10).
Based on the above overview, the analysis will continue with an exami-
nation of the role domestic definitions of uncontrolled territories play in
conflict-transformation activities by international actors.

 .2. Domestic Definitions of Uncontrolled Territories and Conflict


3
Transformation in Transnistria, and Abkhazia and South Ossetia
It is clear that the conflicts in Transnistria, Abkhazia, and South Ossetia
share numerous characteristics, such as their outburst in the post-Soviet
space, the pivotal role of language and identity issues, Russian military
engagement and support of one of the parties to the conflict, and the
eventual emergence of the de facto states. However, since the ceasefires of
the 1990s, the transformation of conflicts in Transnistria, and Abkhazia
and South Ossetia have taken different trajectories.
Foremost, as has been explained, prior to the adoption of the Moldovan
Framework Law in 2005, the Russian Federation, Ukraine, and the OSCE
122  M. RABINOVYCH

repeatedly suggested plans that envisaged a comprehensive political settle-


ment of the Transnistrian situation. As noted by the OSCE, the situation
has been quite different for South Ossetia and Abkhazia, where “there
have never been substantive discussions between the sides on concrete
options for a political resolution,” but only the Geneva International
Discussions (GID), dealing with risk-reduction and humanitarian issues,
rather than the politics of conflict (OSCE Network 2016, 12). Whilst the
OSCE does not offer an explanation of this “no-talks” phenomenon, it
seems reasonable to assume that it has its origin in the more radical nature
of the confrontation in the South Ossetian and Abkhazian cases, and the
contiguity of Russia with Abkhazia and South Ossetia, facilitating its
immediate control over their foreign and security policies.
Subsequently, following a stalemate in international efforts to resolve
the Transnistrian conflict in 2006–2011, the resumption of the “5+2”
talks and direct Moldova–Transnistria talks has led to progress. As was
mentioned when analyzing the case of Transnistria, progress encompasses
a number of “small steps,” consonant with the “grand” political settle-
ment objective (e.g. the improvement of connectivity between Chisinau
and Tiraspol, the recognition of Transnistrian educational documents in
Moldova) and the very fact of direct talks between the parties (OSCE
2018). Despite being characterized as small, respective steps can be defi-
nitely attributed to the change in the parties’ social construction of the
conflict from a perception of a situation of the stalemate and no-dialogue
to its perception as one being addressed through dialogue on specific steps
and facilitating cooperation. Here it has to be noted that, participating in
the “5+2” format and making best use of its political and economic lever-
age, and “soft” power in Moldova, the EU has played a considerable role
in the transformation; further, the conflict transformation is being exten-
sively supported by the OSCE (Beyer and Wolff 2016, 335–336).
Referring to the “domestic dimension” of defining uncontrolled terri-
tories, it can and should be argued that it has been of significant impor-
tance at different stages of the conflict and its transformation. Over the
period from 1992 until 2005 (the introduction of the Moldovan
Framework Law), the lack of Moldovan domestic legislation on the status
of uncontrolled territories left open a space for many varied political settle-
ment suggestions, each of which would have required specific changes to
be introduced into Moldovan legislation. Also, as convincingly illustrated
by John Beyer and Stefan Wolff (2016), the notorious “Kozak Plan” was
very close to being approved due to the absence of detailed regulations on
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  123

the legal status of uncontrolled territories in Moldovan legislation (340).


Hence, in view of the proliferation of “grand” settlement scenarios
between 1992 and 2005, an important function fulfilled by the Moldovan
Framework Law has been a “solidification” of the status-quo and
Moldova’s attitude to it. Later on, the rather soft stance of the Moldovan
Framework Law, and its absence of any reference to Russia’s role in the
conflict, has served as one of the factors enabling the parties to launch
talks on “small steps.” Whilst the talks would be hardly possible without
the relatively low level of societal radicalization in the Transnistrian case,
parties’ political commitment, and international support, one role of the
Moldovan Framework Law has been to provide Moldova’s and interna-
tional observers’ and mediators’ positions in negotiations with legal back-
ing and, most probably, set the “red lines” beyond which Moldova will
not go in political settlement negotiations.
As noted above, the trajectory of the conflict and its transformation in
South Ossetia and Abkhazia has been very different from the Transnistrian
scenario; similarly, striking differences can be distinguished in the role
played by respective domestic regulations in conflict transformation. While
in the Moldovan case the absence of framework regulations on Transnistria
has created favorable ground for multiple settlement proposals, this was
not the case for Georgia, where “no substantive discussions” were held.
Moldova’s “soft” stance in domestic legislation and cooperation between
Moldova and breakaway regions were favorable to the resumption of
political settlement talks, whereas the 2008 Georgian Law “On
Occupation” cemented political stalemate. Hence, as noted by Madalina
Dobrescu and Tobias Schumacher (2020), and Julian Bergmann (2020),
the conflicts in South Ossetia and Abkhazia are challenging for interna-
tional transformation and management efforts. It should be emphasized
that the challenge does not arise from the 2008 Law “On Occupation,”
but from the situation it addresses, exemplified by the extraordinary depth
of South Ossetia’s and Abkhazia’s “economic, intergovernmental, techno-
cratic and social links with Russia,” which undermine their autonomy
(Gerrits and Bader 2016).
According to the 2019 US Statement at the GID on the conflict in
Georgia, the lack of cooperation by the Abkhazian and South Ossetian de
facto authorities remains a crucial concern, especially in light of the par-
ties’ “failure to fully implement the ceasefire agreement” (U.S. Mission to
International Organizations in Geneva 2019). Hence, the GID currently
focus on ensuring the non-use of force and humanitarian issues, rather
124  M. RABINOVYCH

than a political settlement or even small steps towards cooperation. At the


same time, whilst informal trade between Georgia and its breakaway
regions and between Abkhazia and third states is on the rise, there is a
belief that the talks on mutually beneficial commerce between Georgia
and its breakaway regions “could open the lines of communication long
cemented shut” (International Crisis Group 2019). The opening of such
talks and the formalization of respective commercial activities would,
however, evidently require changes to the 2008 Law “On Occupation”
that currently imposes numerous restrictions on movement, economic
activity, and property titles in the occupied territories (Art. 4–6) (Parliament
of Georgia 2008). Therefore, the example of trade talks illustrates that,
despite its importance for applying IHL to qualify the conflict, the provi-
sions of the 2008 Law “On Occupation” may constitute an obstacle to
conflict transformation through cooperation.
Ultimately, analysis reveals that the transformation of conflicts in
Transnistria, and South Ossetia and Abkhazia went in different directions,
with much more progress on transformation, i.e. the creation of new
meanings, achieved in Transnistria. It also transpires that domestic regula-
tions on uncontrolled territories (as well as their absence) may fulfil several
functions with regard to conflict transformation: leaving the space open or
opening up space for international talks on conflict settlement; defining
the “red lines” a “maternal state” may not cross in the context of interna-
tional peace talks; promoting a particular qualification of the conflict and
uncontrolled territories under international law (e.g. occupation); and
promoting or hindering conflict transformation through different forms
of cooperation, such as trade and investment.

II. The “Domestic Dimension” of Defining “DPR”


and “LPR”—a Hybrid Model, Conflict
Transformation and Lessons to Learn from Moldova
and Georgia

The history of the “DPR” and “LPR” dates back to Russian-sponsored


protests in southeastern Ukraine in early 2014, with protesters claiming
threats to Russian-speaking population were being exerted by Ukraine’s
post-Euromaidan authorities. A crucial impetus to the protests was given
by the 2014 decision of the Verkhovna Rada of Ukraine to repeal the Law
of Ukraine “On the Foundations of State Language Policy” (also known
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  125

as the “Kivalov–Kolesnichenko Law”)4 that provided for the broad appli-


cation of the so-called “regional languages” (Verkhovna Rada 2012).
Even though this decision was eventually vetoed by the acting President of
Ukraine, the protesters refused to acknowledge the new authorities in
Kyiv and demanded Ukraine’s federalization. Importantly, as demon-
strated by empirical research into identities in Donbas by Elise Giuliano
(2018) and Gwendolyn Sasse and Alice Lackner (2018), the protesters
were motivated by their feeling of abandonment from Kyiv and Kyiv’s
lacking attention towards local concerns, rather than by the language
problem.
Against this background, the sequence of events preceding the declara-
tion of independence by the “People’s Republics” was as follows. Starting
in February 2014, rallies were followed by protesters’ seizure of public
buildings in March–April 2014 (e.g. the seizure of the Donetsk Oblast
Council and the Security Service of Ukraine (SBU) in Luhansk on April 6,
2014). In Donetsk, protesters formed a “Supreme Council” on April 7,
2014 that on the same date adopted a Declaration of Sovereignty of the
“Donetsk People’s Republic,” an Act Declaring Independence of the
“Donetsk People’s Republic,” and an Appeal to the President of the
Russian Federation, Vladimir Putin.5 It is of interest that, substantiating
the “DPR’s” move for independence, these documents referred to two
groups of reasons: the illegal nature of the new authorities in Kyiv and the
way they came to power; and foreign policy issues, namely “the factual
leadership of the country by the USA and Europe” and the deterioration
of “century-long relations with Slavic peoples, the peoples that comprise
the Commonwealth of Independent States (CIS)” (Komitet Izbiratelei
Donbasa 2014). Such a strong emphasis on foreign policy issues distin-
guishes the conflict in eastern Ukraine from the cases of South Ossetia and
Abkhazia, and is largely explicable by more than two decades of Ukraine’s
independent foreign policy experience prior to the start of the Donbas–
Kyiv standoff. As compared to South Ossetia, Abkhazia, and Transnistria,
a peculiarity of the declarations of independence by the “DPR” and “LPR”
has been the inclusion of an Appeal to the President of the Russian

4
 The Kivalov–Kolesnichenko Law was eventually declared unconstitutional, based on the
decision of the Constitutional Court of Ukraine of February 28, 2018 in case 1-1/2018.
5
 To access the abovementioned documents (in Russian), visit: http://komitet.net.ua/
article/120042/.
126  M. RABINOVYCH

Federation, reflecting an initial ambition (or hope) to eventually join the


Russian Federation (ibid.).
The non-recognition of the new Kyiv authorities, disagreement with
Kyiv’s foreign policy vector, and demands for federalization and close ties
with the Russian Federation were also cited by separatist leaders to sub-
stantiate their seizure of public buildings in Yenakiive, Mariupol, Sloviansk,
Gorlivka, and Kramatorsk. In May 2014, the creation of the “DPR” and
“LPR” was consolidated by “referenda” on the self-determination of the
republics, with 89 percent of voters supporting self-determination in the
“DPR” and 96.2 percent in “LPR” (with a claimed voter turnout of
around 75 percent in both) (BBC 2014). Importantly, such “referenda”
were illegal a priori in light of Ukrainian domestic legislation that did not
provide for local referenda (Verkhovna Rada 2013). Additionally, the
legally void status of the “referenda” can be substantiated by multiple
flaws in their organization and conduct, such as the non-systemic nature
of the voting, and threats, reported by pro-Ukrainian inhabitants of the
Donetsk and Luhansk oblasts. As subsequent sections of the chapter will
highlight, the seizure of public buildings across Donbas in April 2014 and
the “referenda” on the self-determination of the “DPR” and “LPR”
marked the advent of a highly complex conflict, notably in the context of
its regulation in domestic legislation.

2. Ukraine’s Domestic Regulations on the Conflict


and Uncontrolled Territories: A Hybrid Model and its Nexus
with Conflict Transformation (2014–2019)
Based on comparative legal analysis, this section characterizes Ukraine’s
domestic regulations on uncontrolled territories as both sharing some of
the approaches with Georgian and Moldovan models but featuring a
number of important legislative novelties. As will be illustrated later, such
novelties are inextricably linked to ongoing international conflict-trans-
formation efforts (importantly, as opposed to the cases of Transnistria,
Abkhazia, and South Ossetia, the case of eastern Ukraine is marked by the
existence of an international agreement on comprehensive political settle-
ment, adopted in Minsk in February 2015 (UN Peacemaker 2015).

 .1. Two Groups of Regulations on Uncontrolled Territories


2
The complexity and “hybridity” of Ukraine’s domestic regulations on
uncontrolled territories is determined by the simultaneous operation of
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  127

two intertwined groups of legal acts, regulating the “special status” of the
uncontrolled territories in the context of the Minsk Agreements, and their
“reintegration,” involving action by the Armed Forces of Ukraine. The
first group of legal acts comprises the Law of Ukraine “On the Special
Order of Local Self-Government in Certain Districts of Donetsk and
Luhansk Oblasts” of September 16, 2014 (with multiple amendments,
further referred to as the “Special Status” Law) (Verkhovna Rada 2014a),
the Law of Ukraine “On the Creation of the Necessary Conditions for the
Peaceful Resolution of Situation in Certain Areas of Donetsk and Luhansk
Oblasts” of October 6, 2017 (prolonging the period of application of the
former Law by a year) (Verkhovna Rada 2017) and the Law of Ukraine
“On the Amendments to Art. 1 of the Law of Ukraine ‘Interim Self-
Government Order in Certain Areas of Donetsk and Luhansk Oblasts” of
October 4, 2018 (Verkhovna Rada 2018a).
In its turn, the “reintegration” group encompasses the Law of Ukraine
“On Peculiarities of the State Policy on Guaranteeing State Sovereignty of
Ukraine on the Temporarily Occupied Territories of Donetsk and Luhansk
Oblasts” of January 18, 2018 (Verkhovna Rada 2018b) and the Law of
Ukraine “On Ensuring the Rights and Freedoms of Citizens and the Legal
Regime on the Temporarily Occupied Territory of Ukraine” of April 15,
2014 that the former Law refers to (Verkhovna Rada 2014b). The simul-
taneous existence of respective groups of legislation, reflecting the dual
(and potentially contradictory) Ukrainian domestic policy vis-à-vis uncon-
trolled territories can be attributed to the long-lasting stalemate in the
implementation of the 2015 Minsk-II Agreement that repeatedly referred
to the Law of Ukraine “On Interim Self-Government Order in Certain
Areas of Donetsk and Luhansk Oblasts” (e.g. with regard to conducting
local elections in the uncontrolled territories (UN Peacemaker 2015).

 .2. The “Special Status Group and the Minsk-II Agreement


2
The 2014 Law of Ukraine “On Interim Self-Government Order in Certain
Areas of Donetsk and Luhansk Oblasts” highlights details of the “special
self-government order” in certain areas of Donetsk and Luhansk oblasts to
be ensured following the fulfilment of a number of conditions, in line with
the Minsk Agreements (Verkhovna Rada 2014b). Hence, pursuant to Art.
10(4) of the Law of Ukraine in question, such conditions encompass, inter
alia, the conduct of snap, general, equal, free, and transparent local elec-
tions, based on the Ukrainian Constitution and international agreements
entered into by Ukraine; the engagement of international impartial
128  M. RABINOVYCH

observers (including the OSCE and the Congress of Local and Regional
Authorities of the Council of Europe), and the “complete withdrawal of
all illegal armed groups, their military equipment, militants and mercenar-
ies” (ibid.).
Despite sharing the key message/ task of the 2005 Moldovan
Framework Law, i.e. a peaceful transfer from a de facto statehood to an
autonomy/ special status within a “maternal” state, a “special self-­
government order” for certain areas of Donetsk and Luhansk oblasts is
quite different to “autonomy” under Moldovan Framework Law. The key
difference lies in the fact that, while the autonomy of Transnistria under
the 2005 Framework Law envisages election of a Supreme Council and a
negotiation of its competencies with the authorities of Moldova (Parliament
of Moldova, Art. 4), a “special status” only applies to the local self-­
government bodies. Moreover, according to Art. 5 of the Law of Ukraine
“On Interim Self-Government Order in Certain Areas of Donetsk and
Luhansk Oblasts,” the local-self-government bodies are to observe the
Constitution and legislation of Ukraine. In contrast, Transnistria’s auton-
omy under the 2005 Framework Law included the adoption of
Transnistria’s own Fundamental Law (that cannot, however, contradict
the Constitution of the Republic of Moldova) and own legislation in
respective areas of competence (ibid., Art. 4(3)). Importantly, whilst the
2005 Framework Law granted the Russian language official status in
Transnistria, along with Moldovan, Ukraine’s 2014 “Special Status” Law
referred to the “right of linguistic self-determination” of each citizen in
certain areas of Donetsk and Luhansk areas and “free use of Russian or any
other language in societal or private life,” but with Ukrainian remaining
the only official language in the country (Verkhovna Rada 2014a, Art.
4(3)). Finally, yet importantly, initially conceived as a part of ‘grand’ polit-
ical settlement, the Law of Ukraine “On Interim Self-Government Order
in Certain Areas of Donetsk and Luhansk Oblasts” provides for the non-­
application of criminal prosecution measures to participants in the conflict
(ibid., Art. 3).
The analysis reveals that, as compared to the case of Moldova’s domes-
tic regulations, Ukraine’s 2014 “Special Status” Law reflects Ukrainian
authorities’ ambition to reintegrate the breakaway territories under a lesser
degree of their autonomy. Notwithstanding the above, the “Special
Status” Law fulfils at least four functions pertaining to conflict transforma-
tion in terms of the Minsk-II process. Firstly, repeatedly referred to by the
Minsk-II Agreement, the Law sets the legal framework for Ukraine’s
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  129

fulfilment of (at least a part of) its commitments under the agreement and,
thus, serves as a point of reference in international negotiations. Secondly,
being a part of comprehensive political settlement efforts, the law stipu-
lates that, according to Ukraine’s official position, transforming the con-
flict and ensuring the breakaway regions’ transfer from the de facto
statehood to a “special status” under Ukraine’s jurisdiction (ibid., Art. 10)
will be allowed. Thirdly, this allows the law setting “red lines” that Ukraine
may not cross when agreeing to the new settlement scenarios, as well as
providing any opposition or civil society with a point of reference, if such
changes take place. In general, it can be argued that, providing for the
contested territories’ “special status” and different forms of the govern-
ment’s support to them, the law is conducive to the dialogue on conflict
transformation.
Before we proceed with analyzing the “reintegration category of
Ukraine’s domestic legislation, two remarks have to be made. First of all,
since Minsk II initially obliged Ukraine to conduct the decentralization-­
cantered constitutional reform by 2015, the adoption of the “Special
Status” Law cannot be alone regarded as Ukraine’s fulfilment of its obliga-
tions under the Minsk-II Agreement (UN Peacemaker 2015). Secondly,
as is currently being proven by the debate on the implementation of
Minsk-II and the notorious “Steinmeier Formula,”6 the settlement of the
ongoing conflict remains highly politicized and, subsequently, the value of
domestic legislation vis-à-vis new grand deals must not be overestimated.

2.3. Legislation on “Reintegration” and Conflict Transformation


Another reason why the value of Ukraine’s 2014 “Special Status” Law
ought not to be overestimated is the parallel application of the 2018 Law
of Ukraine “On Peculiarities of the State Policy on Guaranteeing State
Sovereignty of Ukraine on the Temporarily Occupied Territories in
Donetsk and Luhansk Oblasts” (also known as the “Reintegration” or
“De-occupation” Law). Since the “Reintegration” Law refers to uncon-
trolled territories as “temporarily occupied by the Russian Federation”
(Verkhovna Rada 2018b, Preamble, Art. 1), both its spirit and substance
are much closer to the previously analyzed 2008 Law of Georgia “On
Occupation,” than to the 2014 “Special Status” Law or 2005 Moldova’s

6
 For the controversies surrounding the “Steinmeier Formula” see, for instance: Surnacheva
and Homenko (2019) and Deutsche Welle (2019).
130  M. RABINOVYCH

Framework Law. Adopted in the context of continued armed conflict and


Ukraine’s officially expressed disillusionment with the progress of interna-
tional political settlement, the “Reintegration Law” does not refer to
either the Minsk Agreement or the “Special Status” law. Notwithstanding
the above, when introducing the newly signed “De-occupation” Law, the
then President of Ukraine, Petro Poroshenko, claimed the law’s full com-
pliance with Ukraine’s international obligations, including the Minsk
Agreements (Ukrayinska Pravda 2018a). The law was, however, criticized
by the Ukraine’s Opposition Block party and the Russian Federation as
respectively undermining the implementation of the Minsk Agreements
and leading to the escalation of the conflict (Ukrayinska Pravda 2018b).
The “Reintegration Law” also received much criticism from human rights
organizations, arguing that, under Russia’s sole responsibility for the situ-
ation at the uncontrolled territories, citizens would be deprived of assis-
tance and any kind of compensation granted by Ukrainian authorities
(Zmina 2018). Furthermore, human rights organizations were reported
as being against the expansion of authorities of the military personnel and
law enforcement agencies (ibid.). The observation of human rights in the
uncontrolled territories remains a grave concern.
Referring to the substance of the legal document, it is worth stressing
that the law manifests a transfer from a legal uncertainty about the current
regime of the uncontrolled territories (generated by the “Special Status”
Law due to the non-fulfilment of requirements, stipulated by its Art. 10)
to their regime as “temporarily occupied territories.” Despite the official
statements of President Poroshenko, lawyers have debated whether such a
change of uncontrolled territories’ legal regime is in line with the Minsk
Agreements, the “Special Status” Law, and whether it would impede the
conflict settlement (e.g. Gromad’ske Radio 2018). In our view, for the
interests of the legal certainty and a stronger interplay between interna-
tional and domestic law, it would have been useful for the “Reintegration”
Law to refer to the Minsk Agreements and the “Special Status” Law and
to clarify its relation to them. However, the “Special Status” Law provides
not for the actual, but the potential (aspired) legal regime of these territo-
ries, conditional upon the fulfilment of specific conditions by a number of
actors (Verkhovna Rada 2018b, Art. 10). Hence, since the respective con-
ditions have not been fulfilled to date, it can be argued that the
“Reintegration” Law filled the existing lacuna, rather than coming into
contradiction with the Minsk Agreements or the “Special Status” Law.
Moreover, it should not be forgotten that the Minsk Agreements do not
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  131

represent an international treaty in the sense of Art. 2(1)(a) of the Vienna


Convention on the Law of Treaties (United Nations 1969), and, thus,
cannot be viewed as prevailing on Ukraine’s domestic legislation as allowed
by the Constitution. What can, however, be deemed to be unclear from a
lawyer’s viewpoint is the relation between the “Reintegration” Law and
martial law to be introduced by the President of Ukraine in line with the
Constitution of Ukraine and the Law of Ukraine “On the Legal Status of
Martial Law” in the event of a threat to Ukraine’s independence or terri-
torial integrity (Verkhovna Rada 2015).
Given the “Reintegration” Law’s strong stance on Russia’s involve-
ment in the conflict, many voices argued that it would negatively affect
conflict transformation in line with the Minsk Agreements by provoking
Russian retaliatory measures. However, apart from the Russian Federation’s
immediate official reactions, the “Reintegration” Law has not been much
referred to in press releases pertaining to the Minsk process (Ukrayinska
Pravda 2018b). Furthermore, as opposed to the Georgia’s Law “On
Occupation,” the “Reintegration” Law does not provide for restrictions
that may legally impede cooperation between Ukraine and its breakaway
territories as a means of conflict transformation. On the contrary, Art. 6 of
the “Reintegration” Law stipulates a number of aspects of protecting civil-
ians’ rights in the occupied territories, including the provision of humani-
tarian and legal assistance and the promotion of the preservation of cultural
links. Moreover, virtually equating territories in eastern Ukraine with
Crimea, annexed by the Russian Federation, the “Reintegration” Law
provides for expanding the scope of application of the Ukrainian Law “On
Ensuring the Rights and Freedoms of Citizens and the Legal Regime on
the Temporarily Occupied Territory of Ukraine” to uncontrolled territo-
ries in eastern Ukraine (Verkhovna Rada 2014b). In turn, the law provides
for both Ukraine’s “taking all necessary measures” to ensure observance
of the rights of Ukrainian citizens living in the occupied territories, and its
obligation to preserve and ensure economic, financial, political, social,
information, and cultural links with the citizens of occupied territories
(ibid., Art. 5). However, since both the “Reintegration” Law and the Law
of Ukraine “On Ensuring the Rights and Freedoms of Citizens and the
Legal Regime on the Temporarily Occupied Territory of Ukraine” stipu-
late Russia’s sole responsibility for occupation in line with international
law (Verkhovna Rada 2018b, Art. 2; Verkhovna Rada 2014b, Art. 3),
Ukrainian citizens living in the occupied territories are not entitled to any
monetary compensation from the Ukrainian side for the infringement of
132  M. RABINOVYCH

their rights. Together with significant authorities of the military and law
enforcement agencies, an absence of a legal pathway or acquiring compen-
sation for human rights’ violations in the occupied territories from Ukraine
is viewed by human rights organizations as the key problem of the “rein-
tegration” legal regime (Zmina 2018).
Ultimately, the analysis substantiates the “hybridity” of the domestic
dimension of defining the legal status of contested territories in Ukraine,
caused by the parallel application of the “Special Status” Law and the
“Reintegration” Law. Even though the spirit and substance of the “Special
Status” Law is close to the 2005 Moldova Framework Law, while the
“Reintegration” Law is comparable to the 2008 Georgia’s Law “On
Occupation,” the laws on both the special status and reintegration are
marked by peculiarities, absent in both Georgia’s and Moldova’s legisla-
tion. In particular, the uniqueness of the “Special Status” Law lies in stipu-
lating conditions to be fulfilled by other international actors to make this
“special status” functional. Thus, apart from promoting conflict transfor-
mation by the very fact of its existence, the “Special Status” Law presents
certain “red lines” Ukraine would not cross in terms of international polit-
ical settlement. In turn, despite multiple concerns regarding its impact on
implementation of the Minsk Agreements, the “Reintegration” Law does
not seem to have impeded the international peace processes. A potential
source of legal uncertainty is, however, the lack of provisions highlighting
the relation between the Minsk Agreements, the “Reintegration” Law,
and the “Special Status” Law.

3. Ukraine’s Domestic Legislation and the “Steinmeier Formula”


This section focus on the nexus between Ukraine’s domestic legislation on
the legal status of uncontrolled territories and the so-called “Steinmeier
Formula” that occupied international and Ukrainian newspapers’ head-
lines in autumn 2019. Before proceeding with the analysis, the highly
politicized and controversial nature of the situation surrounding the
“Steinmeier Formula” should be stressed. It envisages that a special status
can start functioning after the OSCE confirms the legitimacy of elections
in the uncontrolled territories, and the possibility of its incorporation into
the “Special Status” Law, including stakeholders’ highly divergent percep-
tions of its meaning and consequences. The analysis here concerns solely
the developments that took place before October 25, 2019, and acknowl-
edges the situation’s proneness to further changes, also in light of the
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  133

upcoming Normandy Four summit. At this stage, it may be argued that,


as presented in the letter from Ukraine’s representative on the Trilateral
Contact Group (TCG), Leonid Kuchma, to the OSCE Special
Representative, Martin Sajdik (112 UA 2019), the “Steinmeier Formula¨
brightly exemplifies the importance of domestic regulations for conflict
transformation.
As published on October 2, 2019, “Steinmeier Formula” suggests
amending the “Special Status” Law, so that it [provisionally] enters into
force “at 20:00 local time of the day of voting in elections in certain areas
of Donetsk and Luhansk regions, scheduled and held in accordance with
the Constitution of Ukraine and the special law of Ukraine regulating the
holding of elections in the mentioned districts” (ibid.). It is envisaged that
the “Special Status” Law will act on a provisional basis until the publica-
tion of the final report of the OSCE/ODIHR [Office for Democratic
Institutions and Human Rights] Election Observation Mission, in accor-
dance with established OSCE/ODIHR practice (ibid.). It will continue
acting on a regular basis, if the OSCE/ODIHR Report “concludes in
accordance with established OSCE/ODIHR practice that early local elec-
tions in certain areas of Donetsk and Luhansk regions were generally held
in accordance with the OSCE and Ukrainian standards” (ibid.). Notably,
while not referring to the withdrawal of troops and exchange of prisoners,
provided for in the Minsk Agreements and Art. 10 of the “Special Status”
Law, the text of the “Steinmeier Formula¨ attributes several crucial func-
tions to Ukraine’s domestic legislation. Firstly, the very fact that the
“Formula” was conceived as a modification of final clauses of the “Special
Status Law,” rather than the international law document, testifies to the
pivotal role domestic legislation is to play in defining the status of uncon-
trolled territories. Secondly, pointing to the Constitution of Ukraine and
“the special law of Ukraine regulating the holding of elections in the men-
tioned districts” as benchmarks for deciding on the regular application of
the “Special Status” Law, Ukraine’s domestic legislation lies at the heart of
the transfer from the ongoing conflict to the territories’ “special status.”
Notably, the incorporation of the “Steinmeier Formula¨ into the new
“Special Status” Law to start operating in 2020 led to intense debate and
protests in Ukraine, with participants blaming current President of
Ukraine, Volodymyr Zelenskyy, of “capitulation” and “betrayal”
(Surnacheva and Homenko 2019). In this vein, the most common con-
cern about the “Steinmeier Formula¨ has been the sequencing of the dis-
engagement, withdrawal of troops, and transfer of control over the border
134  M. RABINOVYCH

to Ukraine, on the one hand, and the incorporation of the “Steinmeier


Formula¨ into the legislation of Ukraine. Whilst Art. 10 of the current
version of the “Special Status” Law referred the removal of all unlawful
armed formations and the prevention of armed formations’ intrusion into
the election processes as preconditions of “special status,” such precondi-
tions are not envisaged by the “Steinmeier Formula.” Another important
concern about the “Formula” is its recourse to “the special law of Ukraine
regulating the holding of elections in the mentioned districts,” the reasons
for non-applying current Ukraine’s legislation on elections and the extent
to which such a “special law” would be different from existing legislation
(ibid.).
Moving beyond the solely legal concerns, surrounding the “Formula,”
it is crucial to point to its diverse and contradictory reflections in dis-
courses of the key actors, engaged in the conflict in eastern Ukraine and its
transformation. In his explanation of the suggested “Formula,” German
President Walter Steinmeier emphasized the importance of small steps,
such as granting uncontrolled territories temporary “special status” before
the results of early elections are determined (Ukrinform 2019). Even
though referring to the adoption of the “Steinmeier Formula¨ as a “tech-
nical step” on the way to comprehensive political settlement, President
Zelenskyy stressed a ceasefire and prisoner exchange as political conditions
of its incorporation (TSN UA 2019). Kremlin welcomed the signing of
the “Formula,” though expressing concerns about the opposition forces’
reaction to it (Surnacheva and Homenko 2019). Hence, in its recent
statement, the political party “European Solidarity,” led by the former
president Petro Poroshenko, pointed to the danger of inverting the “secu-
rity” and “political” blocks of the Minsk Agreements (European Solidarity
2019). Last but not least, the leaders of the so–called “DPR” and “LPR”
equated signature of the “Steinmeier Formula” to Ukraine’s “acknowl-
edging the special right of Donbas people to the independent determina-
tion of its destiny,” (TASS 2019). Arguing that “we will define ourselves,
which language to speak, how our economy will look like, how our court
system will form…and how we will integrate with Russia,” the leaders of
“DPR” and “LPR” evidently overestimated both the power of the
“Steinmeier Formula” and the scope of the “Special Status Law”
(TASS 2019).
To sum up, conceived as an amendment to the Ukraine’s “Special
Status” Law, the “Steinmeier Formula” attributes a crucial role to
Ukraine’s domestic legislation in both defining “special status” and
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  135

conducting conflict transformation. At the same time, the case of the


“Steinmeier Formula” testifies to the fact that, tightly intertwined with
the complex political settlement process, a domestic law on “contested
territories” may become a crucial source of controversy, as well as political
and legal uncertainty in conflict transformation.

Conclusion
Against the background of the predominance of international law perspec-
tive in the analysis of the so-called post-Soviet conflicts and a legal status
of the “contested territories,” the aim of this chapter has been threefold.
Firstly, it aimed to analyze the “domestic dimension” of defining a status
of the “contested territories.” Secondly, it looked at the role domestic
rules actually or potentially may play with regard to conflict transforma-
tion. Based on the above insights, the analysis proceeded with the case of
Ukraine, including the novel debate on the “Steinmeier Formula.”
We found that the 2005 Moldovan Framework Law and the 2008
Georgian Law “On Occupied Territories” adopt very different approaches
to determining the legal status of the “contested territories,” reflecting
opposite trends in the transformation of conflicts in Transnistria, Abkhazia,
and South Ossetia, respectively. Hence, the 2005 Moldovan Framework
Law introduces Transnistria as an “autonomy,” enjoying a broad array of
rights, without referring to the role the Russian Federation continues to
play in the region. On the contrary, the 2008 Georgian Law “On Occupied
Territories” regards Abkhazia and South Ossetia as territories occupied by
the Russian Federation, and introduces numerous restrictions pertaining
to free movement and conducting economic activities there. In this vein,
we found the Moldovan Framework Law to be conducive to conflict
transformation through cooperation in terms of “5+2” and “1+1” talks.
In its turn, the stipulation of multiple restrictions in the 2008 Georgia’s
Law “On Occupied Territories” impedes the application of such an
approach, along with the ongoing Geneva International Discussions.
Being shaped by numerous factors (e.g., the degree of radicalization of
a particular conflict, the status quo of the international political settlement
efforts), domestic laws on a status of the contested territories may fulfil
several functions with regard to conflict transformation. They include,
among others, leaving the space open or opening up the space for interna-
tional talks on conflict settlement; defining “red lines” a “maternal state”
may not cross in the context of international peace talks; promoting a
136  M. RABINOVYCH

particular qualification of the conflict and contested territories under


international law; and promoting or hindering conflict transformation
through different forms of cooperation, such as trade and investment.
Applying the above insights to the case of Ukraine, the chapter estab-
lished that the “domestic dimension” of defining uncontrolled territories
in Ukraine is marked by a “hybridity.” Such a “hybridity” is manifested by
the parallel application of “Special Status” and “Reintegration” legislation
that, in turn, stems from Ukraine’s profound disillusionment with the
progress of the Minsk process in 2018. It was established that, even
though the “Special Status” Law is rather close to the 2005 Moldovan
Framework Law, and the spirit of the “Reintegration” Law is close to the
2008 Georgia’s Law “On Occupation,” both legal acts of Ukraine are
considerably different from the respective legislation of Moldova and
Georgia. Such differences include, amongst others, much narrower com-
petencies of local political entities under the “Special Status” Law, com-
pared to the Transnistria’s autonomy; the conditional nature of “special
status”; and an absence of cooperation-related restrictions in the
“Reintegration” Law. The “Special Status” Law was shown to be condu-
cive to conflict transformation, since it demonstrates Ukraine’s readiness
to compromise with the breakaway territories. Sequentially, despite such
allegations in the media, the “Reintegration” Law appears to impede con-
flict transformation, with the key threat to it created not by the provisions
of the “Reintegration” Law itself, but legal uncertainty surrounding its
interplay with the Minsk Agreements and the “Special Status” Law. The
chapter’s insight into the substance of the “Steinmeier Formula,” con-
ceived as an amendment to the “Special Status” Law, detected and made
manifest a significant role attributed to Ukraine’s domestic law in defining
the status of these territories and accompanying the conflict-­transformation
process, within the international peace process. This case also illustrated
the high degree of political controversy and legal uncertainty domestic
legislation is prone to create, being highly intertwined with the dynamics
of political settlement.
Overall, the analysis testifies to the multiplicity of nexuses between the
“domestic dimension” of the defining uncontrolled territories, on the one
hand, and international political settlement and conflict transformation
efforts, on the other. Thus, we call for researchers’ to pay particular atten-
tion to the legislation of “maternal” states and its role in, and interplay
with international settlement talks and the overall dynamics of conflict
transformation.
5  THE DOMESTIC DIMENSION OF DEFINING UNCONTROLLED…  137

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———. 2015. Resolution 2202, Adopted by the Security Council at Its 7384th
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———. 2018. Statement by the President of the Security Council, 6 June. S/
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———. 2013. Pro Vseukrainc’kyi Referendum [On a Ukraine-wide Referendum],
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———. 2014a. Pro Osoblyvzj Poryadok Miscevogo Samovryaduvannya v
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———. 2014b. Pro Zabezpechennya Prav i Svobod Gromadyan ta Pravovyj
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———. 2015. Pro Pravovyj Rezhym Voyennogo Stanu [On the Legal Status of
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———. 2018b. Pro Osoblyvosti Derzhavnoyi Polityky iz Zabezpechennya
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CHAPTER 6

The Reintegration of Donbas Through


Reconstruction and Accountability.
An International Law Perspective

Tomasz Lachowski

Introduction
The Ukrainian Revolution of Dignity (2013/2014), also known as the
Euromaidan Revolution (Wynnyckyj 2019), resulted not only in the
ousting of president Viktor Yanukovych and changes in the internal and
foreign politics of Kyiv—becoming more pro-Western—but also led to the
Russian aggression against the  Ukrainian state  and the outbreak of an
ongoing armed conflict in and around Ukraine (Bertelsen 2017). As a
result, the Russian Federation annexed Crimea and provided military and
financial assistance for the creation of unlawful proto-states within
Ukrainian territory—the “Donetsk People’s Republic” (DPR) and the
“Luhansk People’s Republic” (LPR).
This chapter analyzes the extent to which the peace-building and tran-
sitional justice approaches under international law can set “normative”

T. Lachowski (*)
Department of International Law and International Relations, University of
Lodz, Łódź, Poland
e-mail: [email protected]

© The Author(s) 2020 145


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_6
146  T. LACHOWSKI

and “policy” frameworks (Koskenniemi 1990, 10–11) for the reintegra-


tion efforts of the authorities in Kyiv (as well as the international commu-
nity), aimed at restoring Ukraine’s jurisdiction over its territories in
Donbas. In this vein, this chapter will revolve around a number of key
international law issues pertaining to the conflict, such as the Russian
Federation’s legal responsibility for  its military aggression, creating and
supporting DPR/LPR; individual accountability for crimes committed
during the bloodshed in the Donets Basin; and extra-judicial instruments
for ensuring truth and reconciliation in a (post-)violence society.
Importantly, the chapter covers the period between 2014 and 2019—
just slightly touching on the post-2019 presidential and parliamentary
elections in Ukraine. The analysis is based on legal methodology (norma-
tive and explanatory approaches, and—to some extent—the legal dogmat-
ics model), supplemented by field research, including expert interviews
conducted by the author.

I. “Donetsk” and the “Luhansk People’s Republic(s)”


as New Quasi-states in the Post-Soviet Space

“Donetsk” and “Luhansk People’s Republic(s)” are new examples of so-­


called quasi-states, named also de facto regimes, proto-states, or unrecog-
nized states in post-Soviet space (Pegg 1998; Kolstø 2006, 747). Since
their formation in 2014, DPR and LPR “joined the club” of other pro-­
Russian de facto regimes in the former Soviet Union like Transnistria
(Moldova), Abkhazia, South Ossetia (Georgia) or Nagorno-Karabakh
(Azerbaijan, factually an Armenian-backed proto-state). These de facto
states emerged in the early 1990s during the dissolution of the USSR. It
is important to note that the issue of unrecognized regimes is not limited
solely to the post-USSR region. The Ankara-backed Turkish Republic of
Northern Cyprus and Somaliland in the northeast of Africa are partly rel-
evant in the analysis of the current Ukrainian case, and the Republic of
Serbian Krajina in eastern Croatia, which existed between 1991 and 1995
during the armed conflict in the territory of the former Yugoslavia, is
another good example (Kolstø 2006, 750).
Undoubtedly, there are common features that unite these examples of
de facto states and they might be divided into two interrelated groups
based on legal and political factors.
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  147

Concerning the legal category, unrecognized states are located beyond


any normative legal system, and thus are not international law subjects.
Moreover, even though quasi-states base their factual, (semi-)independent
existence on the claim of a right to self-determination, international law
does not provide a unilateral right to secede without the clear consent of
the de iure state. As de facto states’ very appearance on the international
arena is, hence, unlawful, de facto regimes tend to be classified as an inte-
gral part of the respective maternal state. Furthermore, as can be argued
from a legal point of view, the reference to “remedial secession” (Buckheit
1978, 222), which is based on the claim that secession “remedies” the
violation of a people’s right to (internal) self-determination as an instru-
ment of last resort, cannot be applied to the above-mentioned examples of
quasi-states (see Supreme Court of Canada 1998).1
Given the cause of their formation—an armed conflict, supported in most
of the cited cases by a third state, leading to the infringement of another
state’s territorial integrity—there is an argument to be made that Russia’s
support for DPR/LPR or Turkey’s backing of the Turkish Republic of
Northern Cyprus should be treated as acts of aggression. International law
sets a clear obligation of non-recognition of an unlawful situation. In other
words, legal rights cannot derive from illegal acts (ex iniuria ius non oritur;
ICJ 1971; Dawidowicz 2010, 676–686). In this regard, an act of aggression
constitutes a violation of the fundamental norms of the international legal
system (ius cogens). Such norms bind states to refrain from any formal act of
recognition (such as the illegal annexation of Crimea by the Russian
Federation; ILC 2001, Article 41 (2)). As a result, proto-states infringing the
territorial integrity or sovereignty of a given state must not be recognized by
any subject of international law (Caspersen 2013, 77–101). Nonetheless,

1
 A valuable legal framework was established by the Supreme Court of Canada in 1998,
regarding the legality of the possible secession of Quebec from the Canadian state. The
Supreme Court in Ottawa held that in order to recognize the right to self-determination
beyond the colonial sense, Quebec, as any other entity, would have to meet the requirements
of three inter-related prerequisites: (1) people living in a such entity form a “nation”; (2) this
nation is subjected to human rights violations and repressive policies by the de iure state; and
(3) there is no other possible way to secure the rights of a “nation” than the creation of an
independent state. DPR and LPR do not represent any other nation than Ukraine or Russia
(which already possess their own states). Moreover, it cannot be proven that Ukraine has
violated fundamental human rights of Donbas’s residents, especially in a structural or system-
atic way. Lastly, a military response and a subsequent creation of the de facto regime without
Kyiv’s consent cannot be said to be the only possible way of “securing the rights” of people
living in the Donets Basin.
148  T. LACHOWSKI

treating the existence of unrecognized regimes as a state of occupation is still


problematic. Firstly, according to international humanitarian law, a state of
occupation is linked to a situation of an ongoing international armed con-
flict. How do we reconcile this phrase with the notion of “frozen conflict”
associated with quasi-states in the post-Soviet region? Secondly, on the basis
of Article 2 common to all four Geneva Conventions of 1949, occupation is
conducted by a state on the territory of another state. This principle does not
mention the role of non-state actors (as a proto-state’s representatives will be
characterized in this chapter). Therefore, in order to be able to define the
above-mentioned cases as cases of occupation by another state, we need to
refer to the direct presence of a third state in the form of illegal stationing of
Russian troops in Transnistria, Abkhazia, South Ossetia, or DPR/LPR
against the will of Moldova, Georgia, or Ukraine.
As for the political features of quasi-states, British scholar Scott Pegg
offered one of the first definitions. In particular, he stressed the factual
capacity of de facto authorities to govern a certain territory with the sup-
port of local people. This state of affairs enables the formation of a seces-
sionist entity, but with no chance of getting legitimacy irrespectively of its
effectiveness (Pegg 1998). Undoubtedly, unrecognized regimes do look
like normal states, possessing an identified territory, population and a cen-
ter of power. Such resemblance underpins Pål Kolstø’s (2006) notion of
“state-like entities” (751–752). That being said, such entities lack the abil-
ity to enter into relations with other members of the international com-
munity (Bryant 2014, 125). Most importantly, all de facto regimes would
not be sustainable without a strong protector state, providing military,
political, and financial assistance (i.e. the Russian Federation in the cases of
Transnistria, Abkhazia, South Ossetia, and both “Donbas republics”).
Significantly, a protector state (especially in Russia’s case) attempts to posi-
tion itself as a “mediator” trying to “solve a dispute,” thereby presenting
the conflict as an “internal conflict” between a legal government and
secessionist “authorities.” Last but not least, a powerful protector state—if
needed from the political point of view to destabilize the de iure state—
can easily freeze a conflict in order to form “a situation in which active
armed conflict has ended but there is no possibility to solve the root of the
conflict” (Legucka 2017, 82).
DPR and LPR fit the above definition of quasi-states. In short, they are
de facto exercising sovereignty, but at the same time lack sovereignty de
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  149

iure. Both proto-states emerged on the wave of the so-called “Russian


spring” in 2014, often understood as a response of the pro-Russian resi-
dents in Eastern Ukraine to the outcomes of the Revolution of Dignity
and a new post-Maidan government in Kyiv. However, this interpretation
is deeply flawed, as it overlooks the role of the Kremlin in inspiring, stimu-
lating, and supporting the separatist revolt, which brings us to the conclu-
sion that “the problem of separatism in the East” was artificially created by
the Russian Federation (Kravchenko 2019b).2 Interestingly, this factor has
been emphasized even by scholars who assert the internal character of the
conflict in Donbas (Katchanovski 2016, 480).
On April 7, 2014, the DPR proclaimed its independence. On April 27,
2014, leaders of the LPR emulated their counterparts in Donetsk. Two
“referenda,” held on May 11, 2014, resulted in almost 90 percent of the
votes in DPR and 96 percent in LPR being cast in favor of secession from
Ukraine. On May 24, 2014, in Donetsk’s Hotel Shakhtar, leaders of both
breakaway republics signed a document founding “Novorossiya” (New
Russia), a confederation consisting of DPR and LPR, aiming to join the
Russian Federation (Nemtsova 2014; Coyle 2018, 112–113). However,
for now “Novorossiya” remains more a theoretical and ideological project
than a real political entity, while Russia is not willing to “openly” absorb
the eastern part of Ukraine (O’Loughlin et al. 2017, 124–144). Thanks to
Moscow’s support, DPR and LPR have succeeded in consolidating their
factual presence with durable de facto authority and borders shaped by
constant military actions (Mitrokhin 2015, 221–242; Legucka 2017, 81).
As in the cases of Transnistria, Abkhazia, and South Ossetia, Russia’s inter-
est is to maintain the status quo and freeze an armed conflict without a
clear intention of incorporating DPR/LPR into the Russian Federation.3
Essentially, the Kremlin seeks to destabilize the internal politics of Kyiv
and deepen social polarization among Ukrainians, which would facilitate
Ukraine’s return to Russia’s sphere of influence (Malyarenko and
Wolff 2018).

2
 What is more, the Russian aggression contributed to consolidating Ukrainian society in
spite of cultural differences (e.g. linguistic). For instance, the Ukrainian voluntary units on
the front line comprised mostly Russophone Ukrainians (Riabchuk 2015, 138–156).
3
 Clearly, the annexation of Crimea constitutes an exception. It is noteworthy that in April
2019 the Kremlin offered a facilitated process for residents in the seized parts of Donbas to
obtain Russian citizenship. Arguably, this might be seen as a step towards Russia’s ‘creeping
annexation’ of Ukraine’s eastern regions.
150  T. LACHOWSKI

II. Ukraine’s Response to the Establishment of DPR/


LPR in a War-torn Environment
Soon after the outbreak of the armed conflict in Donbas, Ukrainian
authorities adopted a number of diplomatic and judicial measures aimed
at, firstly, ending the hostilities, and secondly, establishing the official nar-
rative of Ukraine being a victim of Russian aggression.
Importantly, this narrative, directly based on arguments derived from
international law, was especially prominent during Petro Poroshenko’s
term as President of Ukraine. He managed to consolidate the interna-
tional coalition of states supporting Kyiv, for instance, through the appli-
cation of sanctions against the Russian Federation by, inter alia, the United
States and the European Union (EU). Sanctions were perceived as means
of bringing the Kremlin to face responsibility for its violations of interna-
tional law in its relations with Ukraine, and as restrictive measures that put
political and economic pressure on the Russian President, Vladimir Putin,
to stop infringing the territorial integrity and sovereignty of Ukraine
(Zadorozhnii 2016, 313–315). Post-2014 diplomatic actions undertaken
by the Ukrainian authorities resulted in the adoption of numerous resolu-
tions by different international organizations and institutions (i.e. the
Parliamentary Assembly of the Council of Europe (PACE); the EU; the
OSCE Parliamentary Assembly) that qualified the situation in Ukraine as
“Russian military aggression in Ukraine,” “the ongoing Russian war
against Ukraine,” and “and the occupation of the territory of Ukraine by
the Russian Federation” (a list of these documents can be found in Sayapin
2019). In addition, in 2014 the Russian Federation was suspended from
PACE as a result of its illegal annexation of Crimea. Bearing in mind the
fact that the Russian Federation is a permanent member of the United
Nations Security Council (UNSC), the adoption of a similar resolution in
the forum of the UNSC was impossible. Nevertheless, according to the
UN Charter of 1945, a UNSC resolution determining an act of aggres-
sion is merely of declaratory, not constitutive, character. In spite of its
quite successful efforts in the field of foreign politics, Ukraine adopted a
binding normative act in its domestic legislation naming the Russian
Federation as an “aggressor” and “occupier” only on January 18, 2018
(when the Verkhovna Rada enacted the law “On the peculiarities of state
policy on ensuring Ukraine’s state sovereignty over temporarily occupied
territories in Donetsk and Luhansk regions,” hereinafter called “the law
on de-occupation and reintegration of Donbas into Ukraine”). This law
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  151

was the legal basis for the transformation of the Anti-Terrorist Operation
(ATO), launched by the Ukrainian authorities on April 13, 2014, into the
Joint Forces Operation (JFO) on April 30, 2018.
It is important to underline that the limited, though visible, success in the
area of diplomatic efforts in maintaining the interest of the world in the
“Ukrainian case” did not result in ending the armed conflict in Donbas. The
“Normandy format” (with the participation of Ukraine, Russia, France, and
Germany), together with the Tripartite Contact Group (Ukraine, Russia, the
OSCE, joined by the so-called leaders of DPR/LPR), led to the adoption of
two “Minsk accords”—“Minsk-I” on September 5, 2014 and “Minsk-II”
on February 12, 2015. The two accords, however, did not manage to finally
end the hostilities. “Minsk-II,” a political instrument, not a binding interna-
tional treaty, is now perceived as far from perfect, though it was the main
measure securing a ceasefire and bringing peace in the eastern Ukraine
(Wittke 2019). Needless to say, since it calls for the de-escalation of hostili-
ties, disarmament, unconditional amnesty for all (pro-Russian) “protesters,”
as well as further constitutional and national dialogue in Ukraine,4 it is often
seen as a necessary evil by different scholars (Hurak 2015, 124–140).
The current Head of the Ukrainian state, Volodymyr Zelenskyy, is
more reluctant to openly name Russia as an aggressor, which affects the
modalities of diplomatic negotiations over the “Donbas issue,” particu-
larly the “Normandy format” (Pifer 2019).5 On October 1, 2019,
Zelenskyy announced that Ukraine had agreed on a road map to ending
armed conflict, the so-called “Steinmeier Formula,” This calls for the
organization of local elections and the special status of the Donbas
region—fully in the spirit of the “Minsk accords.” Even so, Ukrainian
representatives argue that in the case of the failure of implementation of
the peace road map, the “Steinmeier Formula” should be abandoned, as
it may strongly affect the reintegration process and functioning of Ukraine
in the aftermath of the conflict (Lynch 2019) in two important ways.
Firstly, by the inclusion of all illegal militants and the so-called leaders of
DPR/LPR, covered by blanket amnesty provisions, into post-conflict
Ukrainian society. Secondly, the special status of the Donbas region,
4
 The question remains: “with whom?” The illegal entities of DPR/LPR? Such a presump-
tion is definitely in line with the interests of the Kremlin, not Kyiv.
5
 The strongest speech of Volodymyr Zelenskyy about the Russian Federation seems to be
the one he delivered at the 74th session of the UN General Assembly in September 2019,
when he called out “Russian aggression” and “occupation of Ukrainian territories” by the
Kremlin (President of Ukraine 2019).
152  T. LACHOWSKI

which the formula requires to be granted by Ukrainian legislation, may


create a pro-Russian “Trojan horse” within the state, permanently oppos-
ing the pro-European aspirations of Kyiv. Nonetheless, the discussions of
the “Steinmeier Formula” clearly demonstrate the growing expectations
of Western states (mainly Germany and France) of an end to the conflict
in Donbas and the re-opening of their relations with the Kremlin. What
is more, Russia was reintegrated into PACE on June 24, 2019, as Szymon
Kardaś and Jadwiga Rogoěa rightly point out (2019), “without having
made any concessions, including any modification of its aggressive policy
towards Ukraine.” The decision of PACE needs to be recognized as a
political success for the Kremlin and another sign of a possible turn in the
politics of several European states towards Russia.
With regard to judicial means, Ukraine has resorted to different inter-
national courts to counter the outcomes of Russia’s aggression and the
ongoing armed conflict. It is important to pay particular attention to the
Ukrainian application against the Russian Federation lodged in 2017 in
the International Court of Justice (ICJ 2019), and the eight interstate
complaints against Russia lodged in the period between 2014 and 2018
before the European Court of Human Rights (ECtHR) over numerous
violations of the European Convention on Human Rights (ECHR) by the
Kremlin.6 Moreover, the Verkhovna Rada issued two ad hoc resolutions
on the basis of Article 12 (3) of the International Criminal Court (ICC)
Rome Statute to pursue individual accountability for crimes under inter-
national law committed in Donbas (and Crimea) since the beginning of
hostilities (Marchuk 2016).7 Finally, as a result of an incident in the Kerch
Strait (connecting the Black Sea and the Sea of Azov) on 25 November
2018,8 when Russia for the first time openly attacked and seized three

6
 The ECtHR has associated itself with complaints concerning the events in Crimea. The
same has been done with complaints regarding possible human rights violations in Donbas.
One complaint was withdrawn by the Ukrainian authorities.
7
 The first, of February 25, 2014, was related to the “Maidan events” (already dropped by
the ICC Prosecutor; ICC 2015, para. 95), while the second, from February 4, 2015,
accepted the jurisdiction of the Hague-based Court over crimes against humanity and war
crimes allegedly committed in Crimea and Donbas, starting from February 20, 2014 (with
no closing date). The ICC Prosecutor decided to open a preliminary examination. Ukraine
is still not a party to the Rome Statute, although this may change in coming years, at least
according to debates in the Verkhovna Rada.
8
 As a result of the events in the Kerch Strait, the Ukrainian parliament approved a presi-
dential decree to introduce martial law in ten oblasts of Ukraine for a period of 30 days last-
ing until December 26, 2018. In spite of the political discussions, experts underlined that the
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  153

Ukrainian military vessels, Ukraine brought an action against the Russian


Federation before the International Tribunal for the Law of the Sea
(ITLOS).
It has to be stressed that in its actions on the “judicial frontline” Ukraine
is limited by the specifics of each legal instrument applied. As an example,
Kyiv has brought an action before the ICJ claiming that the Russian
Federation has violated the International Convention on the Elimination
of All Forms of Racial Discrimination of 1965 (by infringing the rights of
the Crimean Tatars) as well as the International Convention for the
Suppression of the Financing of Terrorism of 1999 (by supporting the acts
of terrorism committed by pro-Russian separatists in Donbas).
Interestingly, in its complaint, Ukraine does not request the Hague-based
Court to rule on the issue of the Russian aggression or unlawful occupa-
tion (likewise, the status of Crimea); nonetheless, the ICJ may still define
Russia’s responsibility for its illegal interference in the domestic affairs of
a sovereign country.9 Similarly, the ECtHR can deliver a judgment deter-
mining the “effective control” exercised by Kremlin over the seized parts
of Donbas (likewise the illegal administration of DPR/LPR). However,
most probably it would not refer to the issue of “aggression” or “occupa-
tion” per se, a consequence of the structure of the human rights system
under the ECHR.
Last but not least, the Kremlin arbitrarily refuses to enforce the judg-
ments of international tribunals—for instance, in April 2017 the ICJ
issued provisional measures, obliging Russia to refrain from violating the
rights of Crimean Tatars; however, the Russian Federation failed to imple-
ment the ICJ order. Moreover, in 2016 the Russian Constitutional Court
issued a first judgment stating that any decision of the ECtHR which
stands in contradiction to the constitution of the Russian Federation shall
not be executed by the Russian authorities. This approach is assessed as
the violation of international law, namely the Vienna Convention on the
Law of Treaties of 1969 (Fleig-Goldstein 2017). As might be expected,
any judgment of the ECtHR that determines Russian responsibility for
human rights violations in Donbas would be blocked from enforcement
by the authorities in Moscow. Even when the Kremlin agrees to comply

martial law was a useful instrument to enhance the combat readiness and mobility of the
Ukrainian army in anticipation of a possible open attack by Russian forces (Tymchuk 2018).
9
 In the judgment of November 8, 2019, the ICJ determined its jurisdiction in the case and
declared the Ukrainian application admissible (ICJ 2019).
154  T. LACHOWSKI

with the order of an international tribunal, it does so solely for strictly


political reasons. Such was the case for the return of captured vessels and
Ukrainian sailors (in accordance with the order of the ITLOS of May 25,
2019), paving the way to the next meeting of the “Normandy format” at
the end of 2019.

III. Legal Qualification of Russia’s Incursion


into Ukraine

According to the 2019 report issued by the Office of the High Commissioner
for Human Rights (OHCHR), since the beginning of the bloodshed more
than 13,000 people have been killed (at least 3,321 civilians) and around
27,500–30,000 have been injured. In addition, we can point to over 1.3
million registered internally displaced persons (IDPs). Needless to say,
these numbers are still growing (OHCHR 2019). It has to be stressed that
international public perception of the armed conflict in and around Ukraine
remains rather blurred due to the effective policy of disinformation con-
ducted by the Kremlin, especially in Western European societies (i.e. the
notion of a “civil war” in Ukraine), based on the so-­called hybridity of the
conflict aimed at discrediting Ukraine in the eyes of Western partners as a
“failed state” (Mahda 2018, 179–202; Tymchuk 2018).
It is important to note that a state of war against Russia has never been
declared by Kyiv; just the ATO (and JFO later on) (see Romanchuk 2017).
Interestingly, in the aftermath of World War II the notion of “war” was
generally abandoned by international law. Different post-war treaties
replaced it with the term “use of force,” embodied in the UN Charter
(Sassòli 2007, 241–264), and the phrase of “armed conflict” that might
be either “international” (interstate) or “non-international” (intrastate;
with government forces fighting against an organized armed group; ICTY
1995, para.70). The possibility of a subsequent internationalization fol-
lowing third-state interference began to be regulated by humanitarian law
(the four Geneva Conventions of 1949).
International law does not set a formal condition for the official decla-
ration of a “state of war” issued by one state against another state to clas-
sify ongoing hostilities as an example of “use of force” and/or an “armed
conflict.” Moreover, both indicated notions have a broader scope than the
concept of “war.” They refer to different aspects of military activities: ius
ad bellum, which sets the legal criteria for entering into war (“use of
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  155

force”) and ius in bello, concerning the question whether military actions
are being conducted justly or unlawfully. An infringement of the criteria
set out by ius ad bellum may constitute an act of aggression. By contrast,
ius in bello relates to the possible commitment of war crimes or flagrant
violations of humanitarian law in a situation of an “international” or “non-­
international armed conflict.” As Marco Sassòli remarks, “[a]lthough
international armed conflicts are prohibited (ius ad bellum perspective),
they still occur (ius in bello framework).” Thus, the separation of these two
branches of international law is still relevant (Sassòli 2007, 244).
From the perspective of ius ad bellum, Russia’s activities in Crimea and
Donbas infringed Article 2(4) of the UN Charter, which sets a prohibition
on the use of force. Moreover, such activities constitute an act of aggres-
sion in the light of international law, as stipulated by UN General Assembly
(UNGA) Resolution No. 3314 of 1974 (even though a resolution itself is
not binding, it should be construed as a reflection of binding norms of
customary international law, one of the primary sources of international
law (Czapliński et al. 2017). The UNGA Resolution defines aggression as
“the use of armed force by a State against the sovereignty, territorial integ-
rity or political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations” (Article 1), which
clearly corresponded to the Russian conduct towards Ukraine in the after-
math of the Revolution of Dignity, especially the illegal annexation of
Crimea. Moreover, the Russian Federation violated the 1994 Budapest
Memorandum on Security Assurances. This memorandum was supposed
to provide an additional guarantee of the sovereignty, political indepen-
dence, and territorial integrity of the Ukrainian state in “exchange for”
Kyiv’s abandoning the nuclear arsenal. The memorandum itself was
“merely” a non-binding document (not an international treaty); however,
interpreted in the light of Article 2(4) of the UN Charter (setting a clear
prohibition of the use of force “against the territorial integrity or political
independence of any state”), it constitutes a fully binding norm of inter-
national law. What is more, in 1970 the UNGA adopted its “Declaration
on Principles of International Law concerning Friendly Relations and
Co-operation among States,” which can be characterized as “the main
source of generally accepted international law that codifies its principles”
(Zadorozhnii 2016, 224). Russia’s activities in Ukraine were openly
against the most fundamental principles of international order binding all
members of the international community on the ground of customary
international law.
156  T. LACHOWSKI

By supporting the illegal referendum held in Crimea on March 16,


2014, Russia also violated the provisions of the Ukrainian–Russian bilat-
eral international treaties concluded in 1997 and 2010 securing the
Russian presence in Crimea (likewise the Treaty on Friendship,
Cooperation, and Partnership between Ukraine and the Russian Federation
of 1997 that eventually expired in April 2019). Inter alia, these treaties
concerned the division of the Black Sea Fleet and the principle of non-­
interference in domestic affairs. Eventually, the conduct of the so-called
“little green men” (unmasked soldiers, in fact members of the Russian
Special Forces) may be attributed to Russia on the grounds of Article 8 of
the Draft Articles on the Responsibility of States for Internationally
Wrongful Acts (DARSIWA) of 2001 (reflecting the binding customary
international law on the matter). Similarly, the military operations observed
in Donbas can be also assessed using the same paradigm—as a combina-
tion of direct aggression and indirect aggression. Direct aggression is
reflected in all the documented cases of bombardment of Ukrainian terri-
tory and in the direct presence of Russian troops in Ukraine without the
country’s consent. Indirect aggression relates to the fact that pro-Russian
militants act under the direction or control of Russian military leaders.
Last but not least, the incident observed in Kerch Strait should be con-
strued as an another example of an ongoing act of aggression. This is
because the 1974 UNGA resolution stipulates that “the first use of armed
force by a State in contravention of the (UN) Charter shall constitute
prima facie evidence of an act of aggression.” This is exactly what hap-
pened on February 26, 2014, when Russian troops and militants started
to control the area of Sevastopol (Sayapin 2019). As a consequence, an act
of aggression of the Russian Federation triggered Ukraine’s inherent right
of self-defense, enshrined in Article 51 of the UN Charter and customary
international law.
The Russian leadership tried to justify the use of force on the basis of
alleged threats to ethnic Russians and Russian-speakers, and on the
grounds of supporting the right to self-determination of the Crimean
Peninsula. In particular, it framed its actions through the principle of
intervention by invitation and the “responsibility to protect” (R2P) doc-
trine to protect “Russkiy mir’s” (the “Russian world’s”) residents from the
“oppressive Ukrainian state” (Yakubova 2018). As convincingly argued by
Veronika Bílková, all such arguments “either have an unclear status under
international law or the conditions for their application were not met in
Crimea” (Bílková 2015, 49). Undeniably, the same can be said about the
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  157

Russian-speaking residents of Donbas, who have never been systematically


persecuted by Ukrainian authorities (Kersten 2014).
Agnieszka Szpak suggests that we should distinguish the situation wit-
nessed in Crimea after the annexation from the one observed in Donbas
on the basis of international humanitarian law (Szpak 2017, 261). Article
2(2) common to the four Geneva Conventions of 1949 says: “the present
Convention shall apply to all cases of declared war or of any other armed
conflict which may arise between two or more of the High Contracting
Parties, even if the state of war is not recognized by one of them. The
Convention shall also apply to all cases of partial or total occupation of the
territory of a High Contracting Party, even if the said occupation meets
with no armed resistance.” Undoubtedly, this provision, irrespective of
the lack of military resistance or low intensity of hostilities, is applicable to
the situation of Crimea (Szpak 2017, 272–273) since the very beginning
of the Russian special operation in Crimea, February 26, 2014 (ICC
2018). By incorporating the Crimean Peninsula, Russia violated Article 43
of the Annex to the IV Hague Convention (Laws and Customs of War on
Land) of 1907, which imposed an obligation on the occupying power to
“respect the laws in force in the country” and to preserve the status quo
of the occupied territory.
As for the situation in Donbas, the hostilities met the requirements set
by Article 3, common to all four Geneva Conventions of 1949, which
stipulates a situation of non-international armed conflict (a state of affairs
existing in the Donets Basin since April 30, 2014, at the earliest; (ICC
2018)). As a matter of fact, pro-Russian militants can be identified as well-
organized armed group with a hierarchical structure. Furthermore, to the
extent that it can be proven that there are Russian troops on Ukraine’s
territory, and that pro-Russian separatists’ actions are being conducted
under the control or instructions of Russian military leaders (as during the
Battle of Ilovaisk in August 2014; see Mitrokhin 2015; Tymchuk et  al.
2016; Coyle 2018, 96–100), then the situation amounts to an interna-
tional armed conflict and a corresponding state of occupation exercised by
the Russian Federation. As a consequence, all examples of Russo-Ukrainian
relations covered by the provisions of international humanitarian law, such
as the event in the Kerch Strait, are clear emanations of an international
armed conflict (Korotkyy 2019, 139). None the less, from the strictly legal
point of view (especially in the light of an issue of legal responsibility), the
situation of an international armed conflict—with the Russian troops or
Russian military leaders directly involved in hostilities—needs to be
158  T. LACHOWSKI

distinguished from all clashes of pro-Russian militants, acting without (or


beyond) any instructions or control of the Russian military leadership, and
the Ukrainian army. Therefore, the situation of international armed con-
flict in Donbas exists in parallel to a non-­international armed conflict,
which may be assessed in detail only on a case-by-case basis by a relevant
court, for instance the ICC. While this assessment can be found in three
annual reports by the ICC Prosecutor (2016–2018), the text did not refer
to the situation observed in Donbas as a state of occupation (ICC 2018,
paras 68; 72–73).
To sum up this section, it has to be underlined that the legal classifica-
tion of Russia’s unlawful incursion into Ukraine has several implications
for the process of reintegration of Donbas exercised through the means of
post-conflict justice and accountability. First of all, since February 26,
2014, we have observed an act of aggression by the Russian Federation
against Ukraine—that is why, legally speaking, all its outcomes, including
the establishment of DPR/LPR, are null and void, therefore they cannot
be recognized by the international community. Secondly, in the light of
international humanitarian law, Russian activities in the Ukrainian terri-
tory, witnessed not only in the illegally annexed Crimea, but also in
Donbas, should be named as a situation of international armed conflict.
Therefore, it precludes the validity of the Kremlin argument of a “civil
war” in Ukraine. Lastly, from the political point of view, the international
character of hostilities justifies the internationalization of the process lead-
ing to the solution of “the Donbas issue,” for instance by the deployment
of a UN peacekeeping mission.

IV. Responsibility for the “Donbas Events” under


International Law
Setting the responsibility for an unlawful act or omission and, as a result,
clarifying the duty to repair the prior violation of a legal obligation, are the
immanent features of each normative system (PCIJ 1928). As for the main
research question, on the Ukrainian efforts to reintegrate the seized parts
of Donbas after the armed conflict comes to an end, setting the responsi-
bility for “the Donbas events” directly affects the modalities of process
leading to the restoration of a full jurisdiction of Kyiv over the temporarily
lost parts of the Donets Basin.
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  159

There are two key conditions of the process: Firstly, exclude the perpe-
trators of international crimes (coming either from DPR/LPR or Russia)
from the peace negotiations process and the subsequent reintegration
strategy. Such individuals shall be held accountable by an Ukrainian
domestic court, or the ICC. Secondly, it has to be underlined that if the
Russian Federation is officially held responsible for its unlawful acts com-
mitted on the Ukrainian soil by a relevant international tribunal, it shall
not be treated as a neutral mediator invited to solve the issue, but as a
party to the international armed conflict. As a result, a legal path is opened
for Kyiv to seek reparations from Russia on the grounds of international
law and so not be obliged to bear all costs of the reintegration of Donbas.
Therefore, considering the human rights violations and grave breaches
of international humanitarian law that have occurred in Donbas (and are
still being witnessed at the time of writing), committed either by Russia,
or by pro-Russian militants, and the necessity to define the parallel obliga-
tions of the Ukrainian state, it is essential to provide a three-fold legal
analysis on the basis of: general international law; international human
rights law; and international criminal law.
With reference to the first dimension, activities of a quasi-state (i.e. a
non-state actor) cannot be assessed as actions of organs of a state protector
de iure or de facto, unless the complete dependence of a quasi-state on a
supporting third state can be proven (Milanović 2009, 310–311). In order
to attribute acts committed by representatives of the unrecognized regimes
of DPR/LPR to Russia, it is necessary to demonstrate that their conduct
meets the requirements stipulated by Article 8 of DARSIWA (“the person
or group of persons is in fact acting on the instructions of, or under the
direction or control of, that State in carrying out the conduct”). In this
respect, it is worth recalling the International Court of Justice (ICJ) judg-
ment in the case of Nicaragua v. USA (ICJ 1986), regarding the potential
US responsibility for the violations committed by Washington-­backed con-
tras (guerrillas) in Nicaragua, in which the Court set a test of an “effective
control.” This test was repeated later on by the ICJ in the case of Bosnia v.
Serbia (ICJ 2007), which concerned, inter alia, the Srebrenica massacre.
In in the eyes of the Court, “effective control” assumes that a third state
must exercise a significant degree of control over non-state actors’ concrete
operations leading to the violation of international law. From this perspec-
tive, military, financial, or logistical support is not sufficient to attribute
militants’ conduct to a state protector. It should be underlined that this
approach was criticized by some scholars, who argued that the ICJ wrongly
160  T. LACHOWSKI

applied Article 8 of DARSIWA. For instance, Griebel and Plücken claim


that a non-state actor, whose acts or omissions are attributable to a certain
state (protector), shall be automatically treated as an organ thereof de facto
(2008, 601–622). Some other experts underline the problem of “the
responsibility gap” by adopting this approach and propose to broaden the
scope of the attribution of a conduct of a non-­state actor to a state on the
additional ground of “complicity” (Lanovoy 2017, 563–585). Otherwise,
it might be problematic to successfully apply a test of an “effective con-
trol” in practice. As a result, Griebel and Plücken emphasize, the ICJ fails
to satisfy the present needs of the international community, which can
have some implications also for the analyzed “Donbas events.” Having in
mind Ukraine’s application filed against the Russian Federation before the
ICJ in 2017—part of which is related to the possible support by the
Kremlin of the acts of terrorism committed by pro-Russian separatists in
Donbas, including the shooting-down of Malaysia Airlines Flight MH17
and the shelling of civilians in several Ukrainian cities—in assessing the
possible attribution of the rebels’ conduct to Russia, the Court would
most probably rely again on its “effective control” test.
Taking into consideration the human rights paradigm and the system of
the European Convention on Human Rights (ECHR), the European
Court of Human Rights (ECtHR) repeatedly ruled that a primary obliga-
tion of a member state to protect human rights must be exercised within
its territory (ECtHR 2001). None the less, in special circumstances the
scope of this duty may be broadened beyond its territorial jurisdiction
(ECtHR 2005). Needless to say, a jurisdiction is a first step in setting the
responsibility of a state party for violation of an international obligation
derived from the Convention. However, these two notions cannot be con-
sidered as synonyms (Orakhelashvili 2003, 545). Moreover, states’ obliga-
tions under ECHR are divided into two categories, “negative” and
“positive,” meaning that a state is not only obliged not to violate human
rights by its own conduct, but also to create an efficient system of securing
people’s rights and freedoms against infringement by non-state actors
(including a legal duty to investigate, prosecute, and punish all cases of
rights violations). What is significant for the “Donbas events,” is that
human rights are still applicable in the situation of an armed conflict or a
state of occupation; this has become an immanent feature of the relevant
case-law of the ICJ (see the 2004 Israeli Wall Advisory Opinion) or ECtHR
(Isayeva v. the Russian Federation of 2005).
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  161

The first time the ECtHR was confronted with the issue of a state pro-
tector’s responsibility for a quasi-state’s conduct resulting in the violation
of the ECHR was with the Turkish Republic of Northern Cyprus. In
Loizidou v. Turkey (ECtHR 1995) and Cyprus v. Turkey (ECtHR 2005)
the Court in Strasbourg determined Turkey’s jurisdiction, thereby finding
the country responsible for numerous violations of human rights. In par-
ticular, Turkey’s military presence and strong political support created a
situation of “effective overall control” exercised by Turkey over a quasi-­
state’s conduct infringing the ECHR.
It is necessary to stress that the “effective overall control” test crafted
by the ECtHR does not require a state protector to directly control every
action leading to the concrete violation. In this regard, its threshold is
much lower than in the “effective control” test shaped by the ICJ, ana-
lyzed above. Furthermore, the Court in Strasbourg is very pragmatic in its
attitude towards the protection of human rights guaranteed by the
ECHR. Therefore, the control of a state over a certain territory is a matter
of fact rather than law (i. official determination of a state of occupation is
not necessary). This is what matters for admitting the jurisdiction and
further responsibility of the Russian Federation for its activities in Donbas
under ECHR (in the light of humanitarian law, “‘effective control’ is a
conditio sine qua non of belligerent occupation”; Dinstein 2019, 48).
Later on, in the cases of Ilașcu v. Moldova and Russia (ECtHR 2004)
and Catan v. Moldova and Russia (ECtHR 2012), the ECtHR determined
the parallel jurisdiction of Moldova (state de iure) and the Russian
Federation (a state protector) over the conduct of the de facto regime of
Transnistria leading to the violations of the ECHR. The court reiterated
the basic principle of securing people’s human rights under the territorial
jurisdiction of a member state. The latter, however, may be limited as a
result of the lack of factual control exercised over some part of its territory
(although not fully excluded). The ECtHR stated that Moldova “still has
a positive obligation under Article 1 of the Convention to take the diplo-
matic, economic, judicial or other measures that are in its power to take
and are in accordance with international law to secure to the applicants the
rights guaranteed by the Convention” (ECtHR 2004, para.331).
Nevertheless, the examination of responsibility of the de iure state shall be
always conducted on a case-by-case basis. In parallel, the court found that,
by exercising control over the de facto regime, the Russian Federation pos-
sessed (extraterritorial) jurisdiction and might be held responsible for the
human rights violations in Transnistria. Next, concerning the human
162  T. LACHOWSKI

rights violations witnessed in Nagorno-Karabakh in two cases of Sargsyan


v. Azerbaijan and Chiragov v. Armenia (ECtHR 2015a, b), the ECtHR
found that Azerbaijan as the state de iure is still obliged to protect rights
on its territory, while Armenia—exercising overall control over Nagorno-­
Karabakh (jurisdiction)—may be also responsible for human rights viola-
tions in the quasi-state.
The ECtHR has already examined Ukraine’s potential responsibility
concerning human rights violations observed in DPR/LPR. In the cases
of Khlebik v. Ukraine (concerning the Luhansk district; ECtHR 2017)
and Tsezar v. Ukraine (concerning Donetsk; ECtHR 2017)), the Court
found no violation of the ECHR, since “the domestic (Ukrainian) author-
ities have done all in their power under the circumstances to address the
applicant’s situation” (ECtHR 2017, para.79). The ECtHR stated also
that the DPR/LPR are not controlled by Ukraine. As a result, authorities
in Kyiv have no negative obligations with reference to this territory.
Nonetheless, under different circumstances, a potentially inadequate
Ukrainian response towards the infringement of rights occurring in DPR/
LPR, the ECtHR may still find Ukraine responsible under ECHR (the
“positive obligations” principle; see Grant 2014).10 It is necessary to
remember that there are currently more than 4,360 individual complaints
concerning the events in Donbas (and Crimea), of which just 150 have
been communicated by the ECtHR.  Moreover, 3,000 cases are filed
against Ukraine (mostly by the Ukrainian soldiers who were captured in
the aftermath of the Battle of Ilovaisk in August 2014 and held unlawfully
by the DPR “administration”), about 1,000 against the Russian Federation
and Ukraine, and around 400 just against Russia (Lishchyna 2018). The
first applications considering Russia’s possible jurisdiction and subsequent
responsibility, lodged in 2014, were communicated by the Court in
Strasburg on 9 January 2018. They are still under examination at the time
of writing (ECtHR 2018a, b).
Last but not least, as a result of the ICC involvement in Ukraine, the
Hague-based court may determine the individual criminal accountability

10
 On June 10, 2015, Ukraine officially notified the Secretary General of the Council of
Europe that due to the armed conflict in Donbas it was derogating from certain obligations
coming from the ECHR. Kyiv took similar action with reference to obligations under the
International Covenant on Civil and Political Rights (ICCPR) on May 21, 2015. However,
firstly, these derogations cannot be applied retrospectively, and, secondly, most of the rights
and freedoms guaranteed by the ECHR or the ICCPR, such as freedom from torture, are
non-derogable rights (Milanović 2015).
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  163

of persons who committed crimes against humanity or war crimes on


Ukraine’s territory (in the form of, inter alia, killings, destruction of civil-
ian objects, torture/ ill-treatment or disappearances, as indicated in ICC
2017, paras. 104–110), starting from February 20, 2014 (set by the
Verkhovna Rada in its ad hoc resolution of September 8, 2015), regardless
of their nationality or official positions held within a given state structure.
However, in order to prosecute and punish the representatives of the
Russian Federation, the ICC needs to classify hostilities observed in the
east of Ukraine as an international armed conflict (in reports of 2016,
2017 and 2018, the ICC Prosecutor has noticed such a possibility). The
process whereby an internal conflict becomes internationalized takes place
under the “overall control” test, formulated in the case of Tadić by the
Appeal Chamber of the International Criminal Tribunal for the former
Yugoslavia (ICTY) in its judgment of 1999. The ICTY stated that in addi-
tion to financial or military aid, a state protector had to play an important
role in the coordination or management of the factual functioning of a
non-state actor. However, there is no requirement of commanding the
concrete operation of a guerrilla movement as was ruled by the ICJ in the
“effective control” test (Cassese 2007, 649–668). Moreover, in order to
prosecute the pro-Russian rebels for international crimes, there is no need
to legally determine a situation of an international armed conflict. On the
contrary, a situation of a non-international armed conflict is sufficient to
bring to justice pro-Russian militants before the ICC (which is much eas-
ier from the strictly evidential point of view). Furthermore, the ICC (or
the Ukrainian domestic courts) may also prosecute members of the
Ukrainian forces (either the regular army, or military voluntary units) for
committing war crimes or crimes against humanity (Amnesty International
2014). However, the ICC adheres to the principle of complementarity in
its work. In this respect, it cannot assess the situation as a substitute for the
Ukrainian authorities. That being said, it worth stressing that the Ukrainian
state does not possess enough institutional capacity and experience in
prosecuting international crimes by domestic means (Polunina 2016, 6).
Nonetheless, in April 2015 the parliament adopted an amendment to the
Criminal Code of Ukraine, increasing the state’s legal responsibility for
war crimes. Undoubtedly, the strict cooperation of the Ukrainian prosecu-
tors and the ICC will improve the domestic justice system in Ukraine and
serve as a guarantee that perpetrators of the most heinous crimes will be
brought to justice.
164  T. LACHOWSKI

This analysis demonstrates possible legal paths to setting the responsi-


bility of the Russian Federation for the “Donbas events,” as well as the
individual accountability of either the representatives of Russia, or the pro-­
Russian militants for international crimes committed on the Ukrainian ter-
ritory. It is important to recall that the Ukrainian authorities decided to
use most of the existing instruments under international law. As a result, it
can be argued that Kyiv has tried to adopt a comprehensive strategy on the
“judicial frontline,” most visible in the field of human rights. Undoubtedly,
a binding judgment of a relevant international tribunal finding Russia to
have violated international law in relation to events and actions in Ukraine
can lead to at least two inter-related effects that can contribute to the suc-
cessful reintegration of Donbas into Ukraine (Lachowski 2018, 48–51).
Firstly, strictly normatively, such a decision would open the possibility of
Kyiv seeking reparations (including financial compensation, but also satis-
faction as a form of remedy) from the Kremlin. Secondly, from a non-­
normative standpoint, such a decision would be a powerful weapon to
counter Russia’s policy of propaganda and disinformation on the “Donbas
events” (Zolotukhin 2018).

V. Reintegration of Donbas into Ukraine—


Peacebuilding and Transitional Justice Perspectives
This section attempts to determine the mechanisms for the possible rein-
tegration of the seized parts of the Donets Basin into Ukraine, which at
the same time would entail the dismantlingof the illegal entities of DPR/
LPR. It takes into consideration a two-fold approach: a peacebuilding
approach (including the potential establishment of a UN peacekeeping
mission) and a transitional justice perspective that acknowleges the regional
diversity of Ukrainian citizens.
The adoption of a satisfactory solution to the ongoing armed conflict
in and around Ukraine and the illegal annexation of Crimea remains one
of the most important challenges for Ukrainian authorities. Needless to
say, even though a majority of Ukrainians agree on the necessity of settling
the conflict in Donbas, most surveys reveal a lack of consensus among
Ukrainian citizens on the shape of Ukraine’s policy towards the seized ter-
ritories (Lyubashenko 2017, 119–125; Razumkov Centre 2019; Sasse
2019). For example, particularly controversial are issues such as whether
the restoration of Ukraine’s jurisdiction over Donbas should be exercised
through military means (supported mostly in western and central regions
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  165

of the country) or via a peaceful resolution, federalization, and blanket


amnesties (which is unpopular even in southern and eastern regions), or a
strong retributive policy towards pro-Russian militants with no compro-
mises (which tends to be rejected in the south and east of Ukraine).
According to one recent survey, support for the establishment of an inter-
national peacekeeping mission in Donbas is generally high (60 percent).
The same survey confirmed that the highest percentage of support in
south is gained by the variant “Successful restoration of prosperous life in
the Ukraine-controlled areas of Donbas” (41.7 percent), as an action that
should be taken to establish peace in Donbas. However, there are signifi-
cant regional divergences, with almost 80 percent of the positive attitude
concentrated in western regions compared to just 33 percent in the east,
where almost 40 percent of respondents expressed a negative attitude to
the introduction of international peacekeeping forces in Donbas (Ilko
Kucheriv 2018). Moreover, the majority of Ukrainians (56 percent) are
against a special status for Donbas (just 10 percent opt for autonomy) and
the implementation of the so-called Steinmeier Formula as an element of
the peace process covered by the Minsk accords (Razumkov Centre 2019).
What is interesting, according to the recent surveys, most of the residents
of DPR/LPR are in favor of staying within Ukraine (55 percent, in com-
parison with 45 percent who want to join the Russian Federation), how-
ever just 31 percent call for a special status for Donbas (Sasse 2019).11

1. Post-Conflict Peacebuilding with Regard to Donbas


Since the 1992 Agenda for Peace issued by former UN Secretary-General,
Boutros Boutros-Ghali, the organization’s role in peacekeeping (or peace-
building), alongside its roles in preventive diplomacy and peace-making
efforts, has been constantly revised (Boutros-Ghali 1992, paras. 20–22).
As a result, these days UN missions in conflict or post-conflict zones tend
to be equipped with more robust mandates than in the past. Such man-
dates may include the active promotion of human rights, capacity-building
efforts to strengthen local institutions, and the reintegration of former
combatants into society (UNSG 1998, para. 63). Other tasks include con-
ducting investigations into serious violations of human rights, which are

11
 Moreover, the majority of people currently living in the self-proclaimed republics still
define themselves as residents of Donets Basin with a mixed Russian–-Ukrainian ethnic and
regional identity, just as was the case prior to the 2014 events (Sasse 2017).
166  T. LACHOWSKI

treated not only as a means to delivering justice in a criminal law case, but
also as a peacebuilding tool (UNSG 2000, para.13; Jenkins 2012).
With this in mind, the UN Security Council (SC) under Chapter VII of
the UN Charter (which implies a legally binding status) have established
UN transitional administrations. Unlike “classic” peacekeeping opera-
tions, such transitional administration are not formed in response to a
given state’s consent. In particular, the main function of such international
interim administrations is to assist a (post-)conflict society in strengthen-
ing the capacity of state institutions and eventually transferring full sover-
eignty to a given community (Stahn 2008, 44). The most influential
transitional administrations in recent history—such as those established
for Cambodia (UNTAC) in 1992, Eastern Slavonia, Baranja, and Western
Sirmium (UNTAES) in 1996, Timor-Leste (UNTAET) and Kosovo
(UNMIK) in 1999—possessed mandates which included a variety of activ-
ities related to post-conflict reconciliation and transitional justice. To give
a few examples, the retributive special panels in Kosovo were responsible
for prosecuting and punishing war criminals. The same applies to the
restorative Truth and Reconciliation Commission in East Timor (Stahn
2001, 105–183). Significantly, these experiences might provide valuable
models for Ukraine.
Among different peacebuilding operations established in (post-)con-
flict environments, UNTAES seems to offer the most fitting experience
that could apply to the Ukrainian case. First of all, it functioned in a (post-)
conflict zone, where a self-proclaimed proto-state (Republic of Serbian
Krajina) was established with the political, economic, and military assis-
tance of a third state, namely Serbia (at that time, the Federal Republic of
Yugoslavia). Moreover, the UNTAES had to operate in compliance with
the ICTY, which may be compared with ICC interference in the “Ukrainian
situation” and the possible cooperation of the Hague-based court with a
peacekeeping mission in Donbas (Gowan 2015, 519–531). The process of
reintegration of Eastern Slavonia, Baranja, and Western Sirmium included
some components of the institutional reform toolkit, namely the reform of
police so that the force operated on the basis of dualism (consisting of
representatives of both communities: Croats and Serbs). Nonetheless, the
(geo)political conditions for UNTAES and a potential mission in Donbas
differ greatly, thus presenting important limitations largely of a political
character: pro-Russian militants in Donbas are being supported by a
UNSC permanent member, and Ukraine does not possess a the kind of
strong military position towards separatists that the Croatian army did vis-­
à-­vis Serbs in Eastern Slavonia (Gowan 2018, 9–10). In sum, without the
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  167

strong support of the international community Ukraine cannot deploy


military or political resources strong enough to force the Russian
Federation to cease its ongoing act of aggression.
Since the beginning of the conflict, authorities in Kyiv made an effort
to convince the international community of the significant contribution
that a UN peacekeeping mission could make toward stopping the vio-
lence, enforcing a ceasefire, and creating a framework for the subsequent
reintegration of Donbas into Ukraine (Coyle 2018, 91). Despite initial
hesitation, in September 2017 Vladimir Putin announced his possible
agreement to the creation of such peacekeeping mission. However, his
consent would be conditional upon including a Russian contingent as part
of the mission. Moreover, by limiting the peacekeepers’ mandate to the
demarcation line, Moscow’s proposal effectively would exclude the
Russia–Ukraine border from the jurisdiction of the UN mission. Clearly,
this perspective is at odds with Kyiv’s interest (Strzelecki et al. 2017).
In February 2018 a report on the creation of a peacekeeping mission in
Donbas was prepared by UN expert Richard Gowan. He emphasized the
necessity of crafting a robust mandate for the mission in eastern Ukraine.
In his view, such mission should include at least 20,000 personnel and be
divided into military, police, and civilian components. Moreover, the mis-
sion should be administered by non-NATO European states, such as
Sweden, Finland or Austria, as well as countries with close ties with Russia
such as Belarus or Kazakhstan. Finally, the mission as a whole should be
monitored by the EU, through the creation of a Special Representative
(Gowan 2018).

2. Transitional Justice in Post-Maidan Ukraine in the Light


of an Ongoing Armed Conflict
A successful resolution of the conflict in Donbas and completion of the
post-conflict reconciliation process requires that post-Maidan Ukrainian
authorities assemble and apply a broader transitional justice toolkit
(Lyubashenko 2017; Martynenko 2018). Needless to say, Ukraine prob-
ably serves as the first example in history of a state that simultaneously
adopts transitional justice mechanisms aimed at rejecting the Soviet legacy
(and likewise the legacy of Viktor Yanukovych’s regime) while being
forced—as a result of Russian external aggression—to shape its politics
towards the application of post-conflict justice and reconciliation in the
process of reintegration of previously lost territory (Donbas). These two
dimensions are inter-related, so instruments directed at dealing with the
168  T. LACHOWSKI

past as decommunization or lustration while strengthening national iden-


tity, as via the Ukrainian language law of 2019, affect the pillars of post-­
conflict justice and reconciliation and cannot be treated as separate.
Transitional justice refers to the introduction of a combination of both
judicial and non-judicial instruments, such as individual criminal prosecu-
tions (conducted either on an international, or purely domestic level),
truth-seeking and truth-telling mechanisms, institutional reforms, vetting,
and dismissals or reparations, by post-authoritarian or post-conflict societ-
ies to address historical injustices and deal with massive structural histori-
cal abuses (“a backward-looking justice”; UNSG 2004, para. 8; Teitel
2000, 6–9). In post-communist (or post-Soviet) Central and Eastern
European states, such instruments as decommunization and lustration
became the visible core of transitional justice efforts (Stan 2009). From
the very start, transitional justice was rooted in international law and the
human rights paradigm by the presumption that transition from an
authoritarian rule to democracy, or from war to peace, should lead to the
establishment of a democratic state based on rule of law principles, and
not a political revenge against the representatives of the ancien régime
(Arthur 2009). In the last two decades, transitional justice has started to
be implemented not only in the aftermath of a conflict, but also during
bloodshed. The ultimate goal is to create a future framework capable of
increasing accountability, building civic trust in state institutions, and
ensuring an official truth and reconciliation process that could potentially
be accepted by the conflicting parts of a divided society (“a forward-­
looking justice”; Engstrom 2013, 59). In other words, the standard tran-
sitional justice toolkit as a comprehensive strategy may need to be slightly
changed to fit the Ukrainian case.
Taking into account the regional diversity of Ukrainian citizens and
their attitude towards the interpretation of Ukraine’s history, some
researchers opt for the adoption of truth-telling or truth-seeking mecha-
nisms (Kemp and Lyubashenko 2018, 349–350), potentially set in a
framework of a truth and reconciliation commission, in the post-conflict
reconstruction of Donbas (Nuzov 2017, 150–153). Mykola Riabchuk
draws attention to the fact that in 1991 independent Ukraine emerged as
a common state of both “Soviet” and “non-Soviet Ukrainians,” with dif-
ferent historical experiences and expectations for the future of their own
state (Riabchuk 2015, 142). According to Riabchuk, the biggest failure of
the post-1991 Ukrainian authorities (regardless of their concrete political
fractions) was “the inability of consecutive national governments to
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  169

address the problem of and offer a comprehensive policy for national inte-
gration” (2015, 144). From this perspective, all internal “divisions” (e.g.
Ukrainophones/ Russophones)12 are a consequence, not the root cause,
of the “different” (complex) Ukrainian identities. Bearing in mind, for
instance, the post-Maidan Ukrainian politics of history (a backward-­
looking justice), it is clear that the activities promoted by the Ukrainian
Institute of National Remembrance (UINR) were definitely based on the
“non-Soviet Ukrainians” legacy, which implied a complete rejection of
Russian (“Russkiy mir”) dominion over Ukraine. In turn, this approach
based on the policy of decommunization directly affected the modalities
of the reintegration process (a forward-looking justice), as it was rejected
not only by residents of DPR/LPR but also a part of the Ukrainian society
remaining in the territory controlled by Kyiv (Kasianov 2018, 147–152).
Nonetheless, treating the regional diversity of Ukrainian citizens as an
obstacle to implement transitional justice in the aftermath of the Revolution
of Dignity and the context of an ongoing armed conflict, is a false assump-
tion. On the contrary, a properly crafted transitional justice strategy might
contribute to the consolidation of the diverse Ukrainian society. The
regional diversity of Ukraine might be reflected, for instance, in a more
open way of conducting politics of memory (not “nationalist-centered” as
is the charge sometimes laid against UINR), although still strictly in com-
pliance with the current post-Maidan policy of decommunization
(Kozyrska 2016) that would cover Donbas and Crimea both de iure and
de facto after their reintegration. The UINR seems to understand the situ-
ation, since its proposals, for instance, to rename various locations covered
by the scope of the decommunization laws (cities, streets, squares etc.) are
often based on the historical names of such locations (prior to the Soviet
era) or refer to the neutral names without any political context—this is
also an example to the seized parts of Donbas (Shpak 2019). Nonetheless,
the concept of decommunization itself, the central instrument of the
“dealing with the past” compartment of the transitional justice toolkit, is
a sovereign choice of post-Maidan Ukraine trying to come to terms with
its totalitarian Soviet past. It is even more defensible when one bears in
mind the ongoing external aggression of the Russian Federation—the
continuation state of the USSR and the executor of the “Russkiy mir”
ideology—against Ukraine.

12
 The “traditional,” but not necessarily correct, division of Ukrainians into Ukrainophones
and Russophones, or the more Western-oriented west and pro-Russian east, are mostly out-
dated in the aftermath of the Russian aggression, as Riabchuk argues convincingly (2015,
139–140).
170  T. LACHOWSKI

The same applies to the issue of language policy. The newly adopted
law of April 25, 2019 securing Ukrainian as the state language (Verkhovna
Rada 2019) cannot be seen as an instrument of oppression directed against
the Russian-speaking or ethnic Russian population in Ukraine. Rather, it
should be treated as a nation-building tool in a war-torn environment. (...)
what was noticed by the Venice Commission. Experts of the Commission
underlined: “the language policy is an extremely complex, sensitive and
highly politicized issue in Ukraine, especially in the context of the ongoing
conflict with Russia. In view of the particular place of the Russian language
in Ukraine, as well as the oppression of the Ukrainian language in the past,
the Venice Commission fully understands the need to promote the use of
Ukrainian as the State language” (Venice Commission 2019). Therefore,
in the specific situation of Ukraine, the language law may be assessed as a
part of the transitional justice efforts observed in the post-­Maidan era.
Although some voices that identify the current language policy as a new
instrument of dividing Ukrainians might be noticed too (Huba 2019),
according to various experts their objections can be overcome by the cre-
ation of a State Institute of Ukrainian Russian (Hnatovsky 2019) that
would “take full control of Ukrainian Russian (…) that reflects the coun-
try’s cultural, political and social specificities” (Kamusella 2019). By these
actions, the Ukrainian authorities may fully secure the rights of minorities,
comply with human rights standards, and consolidate the diverse society
of Ukrainian citizens.
Nonetheless, as it was stated before, transitional justice, with its “nor-
mative anchor” obliging states to prosecute and punish the perpetrators of
the most heinous crimes, cannot be limited solely to extra-judicial means
of reconciliation. Therefore, criminal response is a necessary measure
applied in a transitional (post-conflict) justice strategy, if a state is willing
to act fully in compliance with international law. With regard to criminal
prosecutions of “Donbas crimes,” it is worth stressing that these were
proceeded solely in domestic courts in Ukraine (in spite of ICC interfer-
ence). Several hundred cases of “terrorism” are being investigated or have
been already transferred to Ukrainian courts since the outbreak of conflict
(Bachmann and Lyubashenko 2017, 310). Occasionally, proceedings have
also dealt with the crime of aggression committed by the representatives
of the Russian Federation (Sayapin 2018, 1093–1104). Additionally,
Ukrainian authorities are planning to put in place instruments aimed at
reintegrating into Ukrainian society ex-combatants from Donbas. Amnesty
is one such instrument, although blanket amnesties are prohibited by
international law. However, allegedly perpetrators of war crimes will be
exempted from amnesty and held accountable either before Ukrainian
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  171

courts, or the ICC (Lachowski 2017, 41–43), which may be assessed as


fully lawful under international law.
Last but not least, restoration of full jurisdiction and control over the
seized parts of Donbas should be included in the wider process of decen-
tralization in Ukraine. This process implies a transfer of government power
and funds from the central level to the level of local communities, a means
of enhancing self-rule (Pryshchepa 2019, 89–95). This might satisfy the
needs of regional diversity without a federalization of Ukraine, a policy
which Russia has actively promoted as a part of its foreign policy towards
its nearest neighbors (Dascalu 2019). Undeniably, institutional pro-­
democratic reforms and strengthening rule of law in Ukraine may attract
people living in the so-called DPR/LPR. Residents in Eastern Ukraine are
being exposed to Kremlin propaganda of a “neo-Nazi junta in Kyiv”
(Tymchuk 2018; Yakubova 2018). Pro-democratic reforms may contrib-
ute to convincing residents in Donbas that only in a democratic Ukraine
they will be able to fully exercise their rights and freedoms (Kravchenko
2019a, b). Lastly, it is worth mentioning that the law on special status of
Donbas of September 16, 2014 (Verkhovna Rada 2014), adopted in the
aftermath of “Minsk-I,” has formally entered into force (and is constantly
prolonged by the Ukrainian authorities), without any real legal effect on
changing the situation of Donbas in Ukrainian legislation. This is a direct
consequence of the conduct of DPR/LPR against the “Minsk accords,”
for instance, by organizing illegal elections in the two self-proclaimed
republics without Kyiv’s consent. The current discussions of the imple-
mentation of the “Steinmeier Formula” and, as a result, granting Donbas
special status in the aftermath of hostilities seem to be an example of an
attempt to federalize Ukraine, against the interest of Kyiv.

3. Ukrainian Attempts to Form a Strategy of Post-conflict


Peace-­building and Transitional Justice
The liquidation of DPR/LPR requires the decisive response and proposals
issued by the government and expert circles. In this respect, the legacy of
other post-violence societies appears invaluable (for example, the experi-
ence of reintegrating former IRA-fighters in Northern Ireland; Tuka
2018). On 18 January 2018 the Verkhovna Rada enacted the law on de-­
occupation and reintegration of Donbas, which came into force on 24
February 2018 (Verkhovna Rada 2018). In addition to its primary goals
of regaining the full control over the lost territories, first, the law named
the Russian Federation as the aggressor and occupant (according to the
law, this would entail having to bear the responsibility for all damages that
172  T. LACHOWSKI

occurred during the conflict in Donbas). Secondly, it abandoned the for-


mula of ATO (transformed into the JFO). Thirdly, it vested the president
with additional powers regarding the format of military operations, con-
ducted under the united command of Ukraine’s Armed Forces Joint
Operative Headquarters. The law on de-occupation and reintegration of
Donbas strengthened the position of Ukrainian authorities towards not
only the pro-Russian separatists, but also the Kremlin itself, however as
Mykola Hnatovsky convinces, rather in a form of securing the (right) nar-
rative of Ukraine being a victim of the Russian external aggression than in
a strictly legal manner (2019). In this respect, it is worth mentioning the
“Waiting for You Home” program, run by the Secret Service of Ukraine
(SBU). The latter assists pro-Russian militants or DPR/LPR “authorities”
in returning to a peaceful life under the condition of reporting the com-
mitted offences. However, as already mentioned, the perpetrators of seri-
ous violations of human rights or grave breaches of humanitarian law
cannot be released from the criminal liability (SBU 2018).
All further ideas to formulate a comprehensive reintegration strategy—
like Arsen Avakov’s (Minister of Internal Affairs) “Small steps mechanism”
(Avakov 2018) or the report by the Centre for Research of Donbas Social
Perspectives (2018)—call for the establishment of the UN peacekeeping
mission and a broad policy of transitional justice. These include the crimi-
nal responsibility of DPR/LPR leaders, conditional amnesties to reinte-
grate ex-militants into Ukrainian society and the law on collaboration,
which restricts the right to be elected or hold public office for all those
“who held key positions in the quasi-public bodies in the occupied terri-
tories of the Donetsk and Luhansk oblasts after April 14, 2014” (CRDSP
2018). In the aftermath of the 2019 early parliamentary elections, a group
of Ukrainian NGOs issued an open letter to the newly elected deputies of
the Verkhovna Rada to form a common strategy leading to reintegration
of Donbas and Crimea. This strategy envisaged an establishment of a new
ministry of reintegration and national identity, created through the amal-
gamation of the Ministries of Temporarily Occupied Territories, of
Information Policy and Veterans, supposed to closely cooperate with the
civil society organizations (Ilko Kucheriv 2018, 2019). What is more, the
Ukrainian NGOs are putting a constant pressure on the state authorities
to finally ratify the ICC Rome Statute and adopt a law that harmonizes the
criminal legislation with the provisions of international law to ensure the
domestic efforts in prosecuting the wrongdoers under Ukrainian law
(what corresponds to the “complementarity principle” set in the Rome
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  173

Statute; Zmina 2019). Eventually, on 30 October 2019, President


Volodymyr Zelenskyy called for the creation of the comprehensive transi-
tional justice strategy for post-conflict Ukraine at the state level (Ukrainian
News 2019).
The above-mentioned efforts are a noticeable step in the process of
formulating an all-embracing strategy of ending the armed conflict and
implementing post-war reconstruction. Nonetheless, some crucial ele-
ments—like the balance between retributive and restorative response
towards the atrocities witnessed in Donbas or the inclusion of truth-telling
and truth-seeking initiatives—still require additional improvements by the
authorities in Kyiv.

Conclusion
Undoubtedly, the conduct of the Russian Federation leading to the illegal
annexation of Crimea and the outbreak of an armed conflict in Donbas
can be classified as an act of aggression under international law. Therefore,
all members of the international community must refrain from any act of
formal recognition of such unlawful situation, including the existence of
the unrecognized regimes of DPR/LPR (including, for instance, “pass-
portization” in the seized parts of Donbas by the Russian Federation in
April 2019). Increasing Russia’s responsibility under international law
would definitely support Ukraine’s claim on the international character of
the conflict and strengthen its position in coping with the effects of
Kremlin’s propaganda. Eventually, it can contribute to the strategy of de-­
occupation and reintegration of Donbas at the end of hostilities.
In sum, this chapter attempted to present the possible legal and politi-
cal instruments available to Ukrainian authorities to facilitate the process
of reintegrating Donbas into Ukraine. Therefore, Ukraine’s reintegration
efforts should be based on the following parallel aspects under interna-
tional law. First of all, the so-called leaders of DPR/LPR shall be held
accountable by a relevant domestic court, or the ICC, but not covered by
the blanket amnesty provisions proposed by the “Minsk accords.” Thus, it
is necessary for Ukraine to ultimately ratify the Rome Statute, since the
ICC interference can enhance the reform of the Ukrainian judicial system
and strengthen the capacity of domestic courts in prosecuting the cases of
international crimes. Secondly, in order to consolidate a post-violence
society in the aftermath of a conflict, Kyiv should create conditions for
those pro-Russian militants who did not commit war crimes or other grave
174  T. LACHOWSKI

breaches of humanitarian law to reintegrate within Ukrainian society, for


instance, on the basis of conditional amnesties or other non-judicial rem-
edies. At the same time, it would entail the final liquidation of DPR/
LPR. Thirdly, in shaping its reintegration strategy, the Ukrainian authori-
ties shall take into consideration the inclusion of the different regional
perspectives, which should be incorporated into the decentralization pro-
cess, while rejecting Kremlin-sponsored proposals of federalization.
Moreover, a strong transitional justice pillar inclusive of a retributive and
a restorative character (eg. truth-seeking and truth-telling mechanisms)—
alongside significant cooperation of the government with civil society
organizations—can contribute to the process of restoring the Ukrainian
jurisdiction over the seized parts of the Donets Basin. Lastly, the analyzed
process of reintegration may become internationalized, for instance,
through the establishment of a UN peacekeeping mission. However, no
leading role should be given to the Russian Federation, which needs to be
defined not as a mediator, but as an aggressor and a party to the ongoing
international armed conflict in and around Ukraine, and, as a result, held
responsible for its violations of international law by a relevant international
tribunal.

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Interviews
With Hnatovsky, Mykola. 2019. The First Vice-President of the Ukrainian
Association of International Law and Chairman of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment, August
27, Kyiv.
With Lishchyna, Ivan. 2018. Deputy Minister of Justice of Ukraine—Government
Commissioner for European Court of Human Rights, June 1, Kyiv.
6  THE REINTEGRATION OF DONBAS THROUGH RECONSTRUCTION…  183

With Martynenko, Oleg. 2018. Chief of the Analytical Department of Ukrainian


Helsinki Human Rights Union, November 28, Kyiv.
With Tuka, Heorhiy. 2018. Deputy Minister for the Temporarily Occupied
Territories and Internally Displaced Persons of Ukraine, January 18, Kyiv.
With Tymchuk, Dmytro. 2018. A military Expert, the Coordinator of the
“Information Resistance”, November 28, Kyiv.
With Zolotukhin, Dmytro, 2018. Deputy Minister of Information Policy of
Ukraine, November 27, Kyiv.
PART III

Federalization / Decentralization as a
Tool of Conflict Resolution:
Discursive and Foreign Policy
Perspectives
CHAPTER 7

Three Faces of Federalism in the Foreign


Policy: Russian and German Approaches
to the “Ukraine Crisis”

Nadiia Koval

Introduction
Since the end of the Cold War and even more in the 2000s, “the boom in
the study of federalism is accompanied by growth in its applied side” (Erk
and Anderson 2009, 1). International organizations often propose feder-
alism as a remedy for ethnic divisions and internal conflict. Sometimes, the
federal system of government is deemed conducive to less aggressive
behavior of the state both in internal politics and internationally. Further,
federalism is also believed to be an instrument of good governance that
contributes to a prosperous, just, and democratic society. Thus, the belief
in federalism as a universal recipe for political improvement explains its
important place in the political debate, especially for countries going
through a transition and/or a conflict.
During the independence period, an open-ended post-Soviet transi-
tion, federalism clearly was not on the governmental agenda in

N. Koval (*)
Foreign Policy Council “Ukrainian Prism”, Kyiv, Ukraine

© The Author(s) 2020 187


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_7
188  N. KOVAL

Ukraine—“unitarianism has proved to be the most popular credo among


Ukraine’s elites” (Kuzio 1998, 69). The unitary post-Soviet state was very
resistant to any loosening of centralization, so a few attempts for the so-
called “administrative reform” were weak and half-hearted. In general,
Ukraine has survived two and a half decades as a unitary state with the
only autonomous republic—the Autonomous Republic of Crimea.
Nevertheless, since the conflict with Russia in 2014 started with an
occupation and an illegal annexation of the very autonomous republic, the
topic of federalism came to the fore in the international arena—be it direct
ultimata of the Russian government, an elaborated reform advocated by
partners, or sophisticated conflict-resolution plans advanced by various
think tanks and commentators. Using to the full the variability of federal-
ism theory and practice, “federalism,” “federalization,” or “decentraliza-
tion” were suddenly being touted as the most effective cure for most of
Ukraine’s problems—achieving internal stability, implementing democra-
tization and a reform agenda, or even treating it as the first step to build-
ing the new regional/ world order.
In order to understand how different facets of federalism theory and
practice are interconnected in the context of hybrid war waged by Russia
against Ukraine, the chapter will focus on foreign policy uses and abuses
of federalism. It will first turn to the theoretical background, identifying
three relevant narratives in federalism theory, and then explore their usage
in discourse of two key external actors—Russia and Germany. The choice
of Russia is obvious, as this state put the federalization of Ukraine in the
center of its strategy and launched federalization-related discourse inter-
nationally. Germany, on the other hand, is one of the most important
international partners involved in conflict resolution, one with a long tra-
dition of federalism who sought to include some federalism-related instru-
ments into its conflict-resolution strategy and actively supported
decentralization reform. The key data for this chapter are speeches, arti-
cles, and positions of the ministries of foreign affairs of the two countries,
supplemented by the texts from other governmental institutions.

I. Three Faces and One Paradox: Exploring


Federalism Theory
Federalism theory most often distinguishes between federalism, the prin-
ciple or ideological inclination, and a federation, the institutional arrange-
ment of a given state. In the discourse around Ukraine, however, the most
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  189

frequently used term is “federalization,” the process of turning a unitary


state into a federal one. In other words, the Ukrainian case is about so-­
called “devolutionary federalism” or, employing the distinction proposed
by A. Stepan, a model of creating a “holding together” federation (1999).
In the setting of political transition and conflict resolution, it is possible
to outline three dimensions of devolutionary federalism in the interna-
tional context. First, devolutionary federalism has been imposed by exter-
nal players as a means to pacify a defeated aggressor and to prevent it from
aggressive behavior in the future. The classical example is that of Nazi
Germany and the solution, introduced at the Yalta Conference and
beyond, was to give significantly more power to the regions (the initial
idea was to dismember Germany into many small states). A more recent
case would be a federalization of Iraq, enshrined in the 2005 Iraqi
Constitution as an alternative to a highly centralized, oppressive, and
aggressive regime of Saddam Hussein.
The 1940s and 1950s witnessed attempts by failing empires to achieve
a more favorable settlement in post-colonial nation-states, a movement
which engendered suspicion towards federalism even in ethnically diverse
states like Indonesia. Michael Collins defines post-1945 British initiatives
for federal governments in former colonies “as a way of maintaining British
influence in particular parts of the empire, a way of reconfiguring the poli-
tics of collaboration so as to defy the logic of nationalism with its fetishisa-
tion of sovereign territoriality, and hence to maintain key British spheres
of influence” (2013, 24). The key reason for imposing federalism would
be something that Kenneth Wheare noted long ago: “federalism and a
spirited foreign policy go ill together” (1953, 196). In other words, the
adoption of federalism could limit a state’s foreign policy options.
Second, and probably a much more common situation since the end of
the Cold War, is the attempt to apply federalism as an instrument of (post-)
conflict resolution in the aftermath of internal conflicts, especially in the
case of strongly displayed ethnic diversity. In this case, federalization is
used as a substitute for secession and is associated with power sharing and
the empowerment of distinct ethnic or national communities. The norma-
tive inviolability of borders in a post-colonial world after World War II,
and the exponential rise of intrastate conflicts in multiethnic societies, con-
tributed to making federalism a popular solution for taming conflicts and
avoiding outright secession.
This kind of federalism is actively encouraged by international organi-
zations. “It is often international development and peacebuilding
190  N. KOVAL

practitioners that offer up federalism as an option for state-building in


post-conflict contexts, rather than the citizens of those post-conflict coun-
tries,” states an analytical report on federalism as peace model, referring to
institutions like the United Nations Department of Political Affairs
(UNDPA) and the UN Development Programme (UNDP). The report
also concedes that “of all the policy choices available, federalism tends to
be the most popular among policymakers” (Salisbury 2015, 5). The
emblematic case in which federalism intended for conflict resolution has
been directly imposed with diverse international sponsorship, is that of
Bosnia and Herzegovina.
The key to employing federalism as a conflict-resolution instrument is
identity. It is applicable when some ethnic group is geographically concen-
trated, and/or the society is deeply divided along linguistic, ethnic, or
sectarian lines. Anderson and Keil (2017) speak of plurinational countries
as prone to “holding together” federalism and they elaborate a theory of
multinational federalism (another term in use is ethnofederalism).
As regards identity-based conflicts, the paradox of federalism, however,
remains unresolved. The essence of the paradox is that on the one hand,
federalism is used to prevent secession and create stability, and on the
other, applying federal solutions may, in fact, provoke further secession
(Anderson 2010). The reasons for this are that radical reforms of gover-
nance can provoke further unrest, and introducing independent institu-
tional and infrastructural arrangements, e.g. local militias or taxation
systems, may provide further opportunities to secessionist groups to
impose their agenda on a population through the local state apparatus. All
in all, not only does federalism protect identities, it also amplifies and even
constructs them. This makes the practical problem-solving impact of
identity-­driven federalism rather ambiguous.
The third dimension of federalism is its relation to the promotion of
democracy, which was concisely formulated by Ivo Duchacek as “federal-
ism is simply a territorial twin of democracy” (1991, 3). Thus, devolution
is reported to be conducive to good governance, subsidiarization, and
thriving local communities. This process can be internally driven: limited
decentralization reform is a path many unitary states, such as Poland or
France, have taken in recent decades. It is even more common in develop-
ing or transitioning states with the help and support of international play-
ers. In the case of decentralization, identity issues are rather irrelevant and
the whole process can be more technical and symmetrical.
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  191

A number of works make a clear distinction between federalism and


decentralization, up to the point that the processes can even be stated to
be unrelated (there are some very centralized federations and some
extremely decentralized unitary states). However, others use the terms
interchangeably, The latter is often strikingly true in the case of political
discourse. In the “Ukraine crisis” case, the confusion of federalization and
decentralization is deliberate and exploited by the different players. While
Russia generally advocates deep federal solution via constitution/ referen-
dum, it underlines that the term itself is of secondary importance; the
Minsk Agreements contain clear elements of asymmetrical federalism, but
use the decentralization denominator; Ukraine itself, while acknowledg-
ing the Minsk Agreements, concentrates predominantly on the decentral-
ization reform agenda devoid of compromises on the unitary nature of the
state; and Germany, too, speaks mostly of decentralization, though it sup-
ports elements of a federal solution as well.
This deliberate lack of terminological clarity is further assisted by the
fact that the distinction between the three dimensions of federalism is
purely analytical, and they are often intertwined in the real world. The link
between federalism as an internal instrument of conflict resolution and
federalism as promotion of good governance is that decentralized and
democratic societies are believed to be not only more striving but also
more stable and peaceful than the centralized ones. There is a “[w]idely
shared belief that centralised systems of government make autocratic and
anti-democratic behaviour easier, while federalism ‘protects liberalism and
enhances markets’ by fostering political and economic competition”
(Salisbury 2015, 5). Thus, decentralization is supposed to bring about
both peace and prosperity, whereas centralization leads to more aggressive
behavior, ineffective use of resources, and lack of democratic control.
While the first dimension of federalism in the international framework
is related to realpolitik thinking (e. g. weakening a state and/or creating
instruments to influence its politics) and is mostly presented as a pragmatic
policy solution, the two other dimensions are hugely influenced by a nor-
mative approach, given the desirability of both internal peace and func-
tional democracy. This more plausible normative meaning becomes a
favorite explanation even for realpolitik cases: when defending German
federalism, emphasis is more often given to the “coming together” history
of the German state in the nineteenth century, than to the calculations of
the great powers in the 1940s. In Iraq, the democratization agenda and
the empowering of minorities are no less important explanation than
192  N. KOVAL

prevention of further conflict. In Indonesia, the initial non-acceptance of


an imposed federal system has gradually shifted to a discussion about the
most just and effective state structure.
A final observation is that the effect of federalism in any given case is
highly context-dependent, yielding illustrations both of stunning success
and complete failure. Of course, the failures can be explained by the argu-
ment that federalism’s prerequisites were not met, or that it is less federal-
ism per se that achieves its goals but more so the structure it creates that
makes those goals achievable (Neumann 1955). Still, the scholars who
tried to study the conducive contexts have found neither statistically sig-
nificant correlations nor robust regularities. For this reason, many research-
ers and practitioners emphasize that rather than a rigorously proven
consequential theory federalism is a political belief, a “promise of striking
a balance between unity and diversity”(Hueglin and Fenna 2015, 1) or a
very general principle, claiming there are as many federalisms as there are
federations (Salisbury 2015, 4). Whether federalism can actually deliver
on the promise of conflict stabilization or it does the opposite remains an
open question. Notwithstanding this ambiguity, federalism persists as
“everybody’s second choice of institutionalized conflict management in
cases of deeply divided societies” (Elazar 1994, 21–25; Cameron 2009, 1).
Being both versatile and encompassing, the concept of federalism grows
even more problematic if combined with the concept of hybrid war. To
begin with, “hybrid war” is under-conceptualized, to the extent that some
authors (Van Puyvelde 2015) even think that the phenomenon does not
exist. Indeed, the most general definition of hybrid warfare—combining
military and non-military actions in order to achieve certain political
aims—is vague and can be applied to the widest range of conflicts through-
out the history of humanity (Williamson and Mansoor 2012). Studying
the instruments of the hybrid war is also tricky as they are constantly evolv-
ing and context tailored in each and every circumstance (McCulloh and
Johnson 2013, 3), using the specific weaknesses of the attacked and
exploiting to the most the strengths of the attacker, thus resisting plausible
generalizations.
Consequently, it is more promising to study hybrid war through the
prism of the aims that one state is trying to achieve over the other. Here I
follow Alexander Lanoszka, who regards hybrid warfare as a strategy
rather than a new type of warfare: “it is a strategy because it deliberately
integrates the use of various instruments of national power so as to achieve
foreign policy objectives in the light of the believed goals and capabilities
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  193

of the adversary (2016, 178).” Similarly, Bettina Renz and Hanna Smith
argue that “the idea that Russia is conducting ‘hybrid warfare’ against the
West is highly problematic, as it tells us nothing about the possible goals
and intentions of such a presumed approach. The idea also overemphasises
change and novelty in Russian intentions and capabilities, whilst at the
same time underestimating continuity”; they propose a “complex study of
Russian goals and intentions instead” (2016, 1). In this vein, the follow-
ing section treats the federalization of Ukraine as one of Russia’s foreign
policy aims, and the following analysis intends to explain why Russia is so
adamant about it and how federalism is used by Russia to achieve its big-
ger political goals in the post-Soviet area. Section “Roaming Between
Deterrence, Dialogue and Reform Agenda: The German Case” looks into
how Germany, a key international player involved in conflict resolution,
reacts to this Russian agenda and how it frames three conceptual dimen-
sions of federalism to shift the conflict dynamics. Section “Conclusions:
Ukraine and International Uses of Federalism: A Shadow of Limited
Sovereignty” draws conclusions on the larger consequences for Ukraine of
the multifaceted usage of federalism in the international arena.

II. Imposed Federalism and the Case for Neutrality:


The Russian Approach
While more or less unequivocal examples of Russian demands for federal-
ization have been observed throughout the history of independent
Ukraine,1 never have they been as persistent, vocal, and even central to
Russian policy towards Ukraine, as around and after the attack on Crimea
in February 2014. A statement on the necessity of Ukrainian federaliza-
tion by the representative of the Russian Ministry of Foreign Affairs
(MFA) at a conference in Kyiv on February 14, 2014 was sufficiently blunt
to elicit an official protest from President Yanukovych’s administration
(MFA 2014a). In addition, a number of related statements and publica-
tions were issued at this point by various Russian politicians (e.g.
Glaziev 2014).

1
 An eminent Ukrainian strategist, Volodymyr Horbulin, notes that the first official sce-
nario for the federalization for some of the states of the Commonwealth of Independent
States was published in a report by the Russian Foreign Intelligence Service “Russia-CIS:
Should the Position of the West be Corrected?” (“Россия—СНГ: Нуждаетсялив
к орректировкепозиция Запада?”) back in 1994 (Horbulin 2016).
194  N. KOVAL

Immediately after the invasion and occupation of Crimea, Russian


federalization discourse moved into the international limelight. On
March 10, 2014 the Russian MFA distributed a paper to international
partners, including the BRICS states, explicitly stating a set of demands
to Ukraine that were to be implemented through an all-encompassing
constitutional reform, recounted and detailed on numerous occasions
throughout the first half of 2014 (MFA 2014f, h, q). They were publi-
cized on the MFA website, mentioned in multiple interviews of Foreign
Minister Lavrov, and via individual government-oriented expert contri-
butions (Migranyan 2014).
Summarizing the Russian vision as presented by MFA, the desired state
of affairs for Ukraine was as follows:

1. Ukraine to become a federal state with its constituencies having


broad competences in the spheres of economy, finance, culture, lan-
guage, education, foreign economic relations, cultural ties with the
neighboring regions and minorities’ rights. Every region was to
elect both its executive and legislative institutions, to drastically limit
Kyiv’s control. A key demand in this regard had been traditionally,
and remained, for Ukraine to give an official, preferably state, status
for the Russian language (MFA 2014d, h, i).
2. Ukraine to become an officially neutral state in the widest possible
interpretation. The usual starting point was denying any rapproche-
ment with Western security organizations. After all, the extremely
hostile attitude of Russia to Ukraine’s pro-NATO course and the
EU’s eastern enlargement had been apparent for years, and there
was a predictable line about threats arising from Ukraine’s non-­
neutrality for current conflict resolution (MFA 2014j, k) or even the
whole system of European security (MFA 2014q). Even more
important was Russian opposition to Ukraine’s participation in
European political and economic integration, characterizing the
whole Eastern partnership project as “an instrument of fevered
exploitation of the geopolitical space,” ignoring the “legitimate
interests” of Russia (MFA 2014c), or “unrestrained impulse… to
irrevocably involve Ukraine in the ‘Western orbit’” (MFA 2014d).
Thus, the desire to prevent the signing of the Association Agreement
and establish the Deep and Comprehensive Free Trade Area
(DCFTA) between the EU and Ukraine, to renegotiate its condi-
tions or to delay ratification, became an important part of the
Russian agenda after late 2013.
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  195

Federalism and neutrality, in the Russian view, were to be adopted con-


stitutionally via a referendum, followed by countrywide presidential and
parliamentary elections as well as by direct elections of regional councils
and governors, resetting the whole Ukrainian political system. A referen-
dum would be needed to guarantee that the changes would be permanent.
On March 17, the day after a bogus “referendum” in Crimea, the Russian
MFA issued a statement in which it demanded from Ukraine the establish-
ment of a constitutional assembly with equal representation of all regions
to formulate and unanimously endorse a federation- and neutrality-themed
draft constitution, and to put it to a referendum (MFA 2014b). The
demand was rejected both by Ukraine and its international partners.
For this double scenario to gain ground, the Kremlin simultaneously
created and supported two different discourses for the needs of their
hybrid strategy.
Pushing for the federalization agenda, it strove to present the conflict
as a solely internal Ukrainian crisis, and Russia as a benevolent power with
special interests, reframing the Crimean annexation as an act of assistance
rather than as a self-interested military-political action. Thus, Russia
brushed off the Western idea of negotiating with Ukraine in the frame-
work of a “contact group,” suggesting instead the creation of a support
group of Russia, the United States and the European Union to assist
Ukraine to conduct a national dialogue, which would eventually produce
a new constitution of a neutral federated state, guaranteeing the rights of
the Russian language (MFA 2014d, e, q). The idea was to induce
Ukrainians to endorse the “national dialogue and constitutional process”
concurrently avoiding describing the conflict as a Russo-Ukrainian one
(MFA 2014h, j, k), and to promote federalization in a second sense—as a
conflict-resolution mechanism.
At the same time, introducing the neutrality discourse Russia (once
again) strove to initiate a discussion on future European (or Eurasian)
security order, or even creating a kind of multilateral world order. While in
the initial phase of the conflict, Russia concentrated on criticism of sup-
posed Western infringement—military, political, economic—into its per-
ceived sphere of influence, it gradually switched to proposals and ideas on
how to rework regional arrangements and overall positioning on the inter-
national arena (President of Russia 2014; Financial Times 2019). Those
proposals included negotiating arrangements with the EU about the
“common neighborhood,” reviving the discourse of a common security
196  N. KOVAL

architecture, and rebalancing global powers via, for example, by introduc-


ing China and India into the G7–G10 formats.
While contradictory, both lines of reasoning were intended to severely
limit the sovereignty of Ukraine both in its domestic (unobstructed choice
of the state organization) and foreign affairs (freedom to form alliances).
The seriousness of the claim was backed up by the positive vote for the
“right” of the Russian army to interfere, passed in the Russian parliament
on March 1, 2014, and threats to attack Ukraine repeated on some further
occasions (Lavrov 2014). A few weeks later, though, the stakes rose
higher: the inciting and support for the fighting in Ukraine’s east began.
Russia started to supplant the general logic—Ukraine needs to federalize
and become neutral as a unitary state, and a pro-Western orientation is
unacceptable—with a more specific logic—presenting the fighting as an
uprising of “federalization supporters,” whom the central government did
not listen to and severely repressed (MFA 2014n, o). Russia tried to pres-
ent these ideas as emanating from the Ukrainian Party of the Regions,
unsuccessfully striving to involve its representatives in international nego-
tiations (MFA 2014h, j, k).
In parallel, Russia worked on international recognition of its idea of
federalization as a conflict-resolution instrument in different forums,
starting with the talks in Geneva on April 17, where the final statement,
agreed by all the parties, stated that “The announced constitutional pro-
cess will be inclusive, transparent and accountable. It will include the
immediate establishment of a broad national dialogue, with outreach of all
of Ukraine’s regions and political constituencies.” Russia insisted that all
regions of Ukraine should be monitored and indeed, the OSCE Special
Monitoring Mission (SMM) was established in nine regions in May 2014
(Interestingly, Russia bemoaned that OSCE SMM would allegedly hide
the facts on the true on-the-ground support for federalization (MFA
2014s). Russia insisted that both the Geneva statement and the OSCE
roadmap share its view as to federalization. To further this agenda, “refer-
enda” were held in the occupied parts of Donetsk and Luhansk regions in
mid-May 2014 and military support continued. At the same time, Russia
insisted that all Ukraine’s decentralization attempts, launched since April
2014, were insufficient, non-inclusive, secret, non-­transparent, and did
not involve the “representatives of the regions” in the process (MFA
2014d, e, m; Permanent Mission of the RF to the UN 2016, etc.).
Nevertheless, while Russia succeeded in promoting part of its pro-federal-
ism thinking into international discourse, it failed to achieve its immediate
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  197

aim, namely a change to Ukraine’s Constitution and a referendum before


the 2014 presidential and parliamentary elections, which the Kremlin had
declared indispensable on several occasions (MFA 2014l; Lavrov 2014).
The next important developments for Ukraine’s federalization agenda
were brought by mediated agreements: Minsk-I (Protocol on the Results
of Consultations of the Trilateral Contact Group, September 5, 2014) and
Minsk-II (Package of Measures for the Implementation of the Minsk
Agreements, February 12, 2015), which codified political demands for
conflict resolution and were validated by UN SC resolution 2202 (2015).
Both were adopted after direct interventions by the Russian army in
August 2014 and in January–February 2015 respectively, and put the
emphasis on the special status for parts of Donetsk and Luhansk regions,
thus laying the ground for the asymmetrical federalization. As the
“Minsk-II” text states:

Carrying out constitutional reform in Ukraine with a new Constitution enter-


ing into force by the end of 2015, providing for decentralization as a key ele-
ment (including a reference to the specificities of certain areas in Donetsk and
Lugansk regions, agreed with the representatives of these areas), as well as
adopting permanent legislation on the special status of certain areas of the
Donetsk and Lugansk regions in line with measures as set out in the footnote
until the end of 2015.

The mentioned footnote referred to “linguistic self-determination,”


“participation of organs of local self-government in the appointment of
heads of public prosecution offices and courts,” “creation of the local
people’s police,” etc.
While the Minsk Agreements hardly speculated about neutrality, the
Minsk-II footnote referred to “support by central government authorities
of cross-border cooperation in certain areas of Donetsk and Lugansk
regions with districts of the Russian Federation,” creating the clear link
with the first dimension of federalization as discussed in this chapter—
influencing foreign policy choices. Neither of the Minsk Agreements men-
tioned Crimea, thus dividing the conflict into sub-conflicts, weakening its
international dimension, and framing it as an internally Ukrainian conflict
that could, therefore, be resolved through federalization mechanisms.
Since then, “Minsk” has become the key framework for the conflict
resolution, and Russia has insisted that the “political” part of Minsk
(namely, the decentralization/ federalization agenda) should precede the
198  N. KOVAL

“security” part (military disengagement) and regards the agreements as


marking the onset of federalization onset. In 2018, when the international
peacekeeping force was discussed as a way to guarantee security, Lavrov
fumed about the unacceptability of the proposal:

[…]having a status that guarantees (this is literally written in the Minsk


Agreements) the Russian language, culture, special ties with Russia, […] their
own voice in appointing judges, prosecutors, having their own people’s police
[…] That is, federalisation in the normal sense. You can call it decentralisa-
tion, as everyone is afraid of the word “federalisation.” But when they tell us
that they will do all this—grant an amnesty, give special status, organize elec-
tions, but first it is necessary to give the entire region to this international force
to run the show, this will not work. (MFA 2018)

All in all, while the Minsk-centered approach has gradually become the
primary conflict-resolution method in theory, but has stumbled in prac-
tice, Moscow has begun to invest in developing better relations with the
key countries of the EU and worldwide, in order to renegotiate the
regional and (hopefully) world order. Thus, the Russian approach could
be characterized as the one hugely exploiting the realpolitik cause for fed-
eralization, with the strategic aim of regaining power and influence in the
former Soviet republics, which is supported by its policy of suggesting
federalization in the cases of Moldova and Georgia, coming most closely
to the post-colonial framework of imposed federalism. The continuity of
the Russian policies in different parts of the post-Soviet space, suggesting
similar federalization-related guidelines and direct military pressure, as
well as an intensive negotiating track with key Western powers leaves no
doubt as to the primacy of foreign policy considerations. In this case, fed-
eralization of Ukraine plays rather a tactical role, with a blocking vote for
the devolved regions being able to prevent Ukraine’s geopolitical realign-
ment. Finally, the democratization agenda of federalization has virtually
no place in Russian discourse, and non-federalizing, symmetrical decen-
tralization of the country is regarded as contrary to the coveted form of
federalism.
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  199

III. Roaming Between Deterrence, Dialogue


and Reform Agenda: The German Case

From the very beginning of the conflict the position of international part-
ners had two well-defined tracks. The first track was that of deterrence. In
March 2014, most leaders of the Western states strongly condemned
Russian behavior, insisting on its unacceptability. In her Bundestag speech
in March 2014 German Chancellor Angela Merkel expressed one of
Germany’s strongest objections to Russia’s actions in the entire course of
the conflict:

It is in this context, fellow members of this House, first in Georgia back in 2008
and now in the heart of Europe, in Ukraine, that we are witnessing a conflict
about spheres of influence and territorial claims, such as those we know from the
19th and 20th century but thought we had put behind us. […] The law of the
strong is being pitted against the strength of the law, and one-sided geopolitical
interests are being placed ahead of efforts to reach agreement and cooperation.
(FFO 2014a)

Not only did Merkel note the continuity of Russian deeds, but she also
underlined the readiness of the EU to sign the Association Agreement
with Ukraine in the near future, thus limiting Russian claim to decide
about the “common neighborhood.” Yet, in the same speech, she reiter-
ated that the Eastern Partnership is not directed against anyone, and
invited Russia to discuss the issues of trade in the triangle the EU–Russia–
Ukraine, opening the path for limited political compromise. That laid
ground for the second, dialogue track, which gained ground throughout
the conflict.
While in Germany most political players tried to combine deterrence
and dialogue, the partners within the ruling coalition had explicitly differ-
ent emphases. Chancellor Merkel, representing the CDU/CSU conserva-
tive block, was advocating a more hardline approach, whereas the Social
Democratic Party, especially its Foreign Affairs Minister (2013–2017)
Frank-Walter Steinmeier, espoused a more conciliatory attitude towards
Russia. He was an early advocate of keeping the dialogue and communica-
tion lines with Russia open in order to reach political solution of the con-
flict, which, in his view, would spare Germany and the EU from military
hostilities, a new Cold War, and would help to uphold the newly fragile
European security order. Steinmeier justified his approach as follows:
200  N. KOVAL

Seventy years after the end of the Second World War in Europe, we cannot start
revising Europe’s borders. This cannot be allowed to happen. And 25 years after
German and European reunification, we must not pave the way for a new divi-
sion in Europe either. […] The two things go hand in hand: political and eco-
nomic pressure, where necessary, along with keeping the channels of
communication open and returning to the negotiating table. (FFO 2014d)

As the evolution of Steinmeier’s discourse in spring and summer 2014


shows, the dialogue component in dealing with Russia was about a more
cautionary approach in sanctions policy, declaring diplomacy and politics
the only possible solution to the crisis, and putting increasing emphasis on
initiatives related to federalization and/or decentralization in Ukraine.
While the very word federalization was not often uttered, with the course
of time German attention to Russian arguments on the political resolution
of the conflict became apparent, supported by traditional German percep-
tions of the benefits of decentralization in general.
Thus, as early as May 2014, Steinmeier stated (FFO 2014b) that
national dialogue was “absolutely vital” for the proper conduct of elec-
tions in Ukraine, and could be organized in the form of the conferences of
mayors and governors from all the parts of Ukraine, supplemented by
round-table discussions mediated by the OSCE (former German diplomat
Wolfgang Ischinger was appointed as a co-facilitator for these round
tables). Steinmeier stated “we need to launch a process of a constitutional
reform, in which all regions of the country feel properly represented within
the institutions debating it.” Even in August 2014, the German foreign
minister was still talking about national dialogue, the need to resume the
round tables and that “constitutional reform on decentralisation and the
rights of linguistic minorities needs to take shape” (Steinmeier 2014b).
What also facilitated his acceptance of the mixed conflict-resolution
mechanisms was a specific interpretation of Ukraine’s past and present, as
a country internally prone to conflict. According to Steinmeier, “in 1991,
Ukraine inherited a difficult legacy with its independence. It lies on the
border between East and West, with regions that have completely differ-
ent histories, with a plethora of unresolved ethnic, religious, social and
economic conflicts. It does not surprise me that when the pressure in the
pot rises, it would erupt” (Steinmeier 2014a).
The closest the German government approached open support for
Ukraine’s federalization at this point was an interview of the vice-­
chancellor, Sigmar Gabriel (also a SDP member): “The territorial integrity
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  201

of Ukraine can only be maintained if an offer is made to the areas with a


Russian majority […] A clever concept of federalization seems to be the
only practicable way” (Chambers 2014). After a great deal of negative
response to the interview in Ukraine, chancellor Merkel tried to explain in
a press conference that federalization has different meanings in Germany
and Ukraine, and that vice-chancellor Gabriel had been referring to
“decentralization.” This explanation, however, was barely convincing.
The distinction between federalization and decentralization in German
discourse was indeed blurred, as this case exemplified. Often, the one
meant the other, and conflict resolution was treated as a logical continua-
tion of the promotion of good governance.
With the signing of the Minsk Agreements, especially the “Protocol” of
February 2015, German discourse became firmly Minsk-centered: the
agreements were routinely proclaimed “the only viable way for the coun-
try to regain sovereignty over its territory” (Steinmeier and Ayrault 2016).
The key innovation was the linking of sanctions to advancement in the
Minsk process, creating predictability and sense of control over the situa-
tion on the ground and shifting the resolution mechanisms to the internal
political situation in Ukraine. Since then, giving life and impetus to the
Minsk process has become the key objective of conflict resolution as
viewed by Germany. Local elections in the occupied territories as well as
constitutional amendments “paving the way for special arrangements for
local self-government in eastern Ukraine” were a crucial policy objective
of German mediation in the crisis (FFO 2015). Another idea was the grad-
ual removal of sanctions against Russia in response to small steps in the
progress toward a political settlement along Minsk lines, or at least design-
ing criteria for easing of those sanctions (Steinmeier 2014c).
In October 2016, the so-called “Steinmeier formula” was introduced
with the sponsorship of the German foreign minister in order to relaunch
the stalled Minsk process via a small-steps approach. The key element here
was the swift legislative approval of “special status” for the occupied parts
of Donetsk and Luhansk oblasts, first provisionally and later on a perma-
nent basis, provided that subsequent elections in the area would be con-
sidered to be free and fair by the OSCE ODIHR.  An agreement
incorporating this formula was officially signed in Minsk on October
1, 2019.
Finally, since 2014, supporting decentralization reform sensu stricto has
officially been touted as a priority area for German–Ukrainian coopera-
tion. As in the case of the round tables in May 2014, Germany appointed
202  N. KOVAL

a reform envoy—Georg Milbradt—to support changes in this sphere


(FFO 2019a; Milbradt 2019). And indeed, in five years Germany has
invested considerable resources in decentralization-related initiatives.2 All
in all, the five most important points as to peace and stability in Ukraine
defined by the German government were: (1) implementing the Minsk
Agreements; (2) not tolerating infringements of international law; (3)
strengthening and protecting OSCE observers; (4) assessing deployment
of blue helmet troops; and (5) supporting reforms in Ukraine, including
“greater decentralisation” (FFO 2018). Thus, the double federalism/
decentralization track could be considered as the linchpin of German for-
eign policy towards Ukraine.
As to the foreign policy dimension of the federalization process, it is
almost non-existent in official German discourse, as is direct support for
Ukraine’s neutrality. Still, with the dialogue trend gradually gaining
ground (supported by lobbying ambitious German-Russian projects such
as Nord Stream 2 pipeline, demands for the lessening of sanctions, and the
renewal of economic and security cooperation) the idea of constructive
relations with Russia, including some compromises about “common
neighborhood” gained a place. The election of Donald Trump to the post
of US president, which gradually put severe strain on the transatlantic
relationship, only induced a desire to cooperate with Russia on the wide
range of economic and security questions. Steinmeier and Gabriel had
already initiated intensification of economic and civic ties between
Germany and Russia despite sanctions, reasoning that Russia is a very
important player to deal with problems on the world stage and for regional
security. This dialogue trend peaked under the current minister of foreign
affairs, Heiko Maas. In speeches in 2019, in stark contrast to the Merkel
speech cited at the beginning of this section, he spoke of “trust,” “shared
interests,” and “joint action,” claiming that “Germany and Russia—
despite some differing interests—are collaborating constructively.” He has
met with Russian minister of foreign affairs Lavrov intensively, celebrated
the strengthening of economic cooperation and contributed to renewal or
initiating of different bilateral formats with Russia. He even announced a
new European Ostpolitik, of which the core element “is, naturally, our
relationship with Russia” (FFO 2019b).

2
 See for example: Support to the decentralisation reform in Ukraine. https://www.giz.
de/en/worldwide/39855.html.
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  203

Because of that and the policy of avoiding a too-provocative stance


towards Russia, Germany frames and actively supports the pro-European
policy of the Ukrainian government much more as an attempt at modern-
ization and reform, rather than integration into the EU. Germany is also
traditionally unenthusiastic about not only Ukraine’s NATO membership,
but also the increased military presence of NATO in Central European
member states since 2016, labeled by Steinmeier as “saber-rattling,”
meaning excessively provocative towards Russia. Thus, while a very impor-
tant partner, Germany has also been one of the key European states
restraining Ukraine’s aspirations for rapid European integration once
agreements strengthening links with the EU (the Association Agreement,
free trade area, liberalized visa regime) had materialized. This has been
reflected in its position of including a phrase about Ukraine’s European
aspirations in common EU–Ukraine documents, or the explicitly limited
ambitions of the Eastern Partnership since the Riga Summit in 2015,
which resulted in the total absence of a 10th anniversary Eastern
Partnership summit in 2019 (now expected in 2020 in Berlin). Surely, this
cannot be solely attributed to partial accommodation to Russian demands:
the consequences of the refugee crisis and the call for internal EU reform
before further enlargement were no less important. However some signs
of more openness to Russian ideas of new security architecture for Europe
can be detected here.
Interestingly, the largely non-existent federalism–neutrality link in offi-
cial government discourse occupies an important place in the German
think tank community, which often treats federalism and neutrality as a
solution for Ukraine in a highly detailed manner. Two examples among
plenty are very telling. In late March 2014, Gwendolyn Sasse, currently
the director of the Center for East European and International Studies
(ZOiS), published a text under the bold title “The Crimea Crisis Should
Mark the Beginning of a Federal State for Ukraine” (Sasse 2014) and has
continued to research related questions ever since. The second example
would be “Foresight Ukraine” (2017), a project by the regional office in
Vienna of the Friedrich Ebert Stiftung (a German foundation linked to
the Social Democratic Party). The authors aimed to resolve “the crisis of
international dialogue with Russia” via drafting four scenarios for the
future development of Ukraine; the only two positive scenarios combine
decentralization and neutrality.
All in all, the German support for federalism in Ukraine remains appar-
ent, in both the conflict resolution dimension, and in support for
204  N. KOVAL

decentralization reform. The international dimension of federalization


appears to have had lesser importance for Germany, officially, though it
remains a topic of research in expert circles.

Conclusions: Ukraine and International Uses


of Federalism: A Shadow of Limited Sovereignty

This chapter has described the three ideas of federalism as applied to the
first five years of the hybrid conflict between Russia and Ukraine, described
officially by OSCE as “conflict in and around Ukraine.” The chapter con-
siders the “around” part, paying particular attention to Russian and
German visions, analyzing their official discourse as to the three dimen-
sions of imposed/ sponsored federalism: federalism as a means of influenc-
ing a country’s foreign policy choice; federalism as a means of resolving
internal conflicts; and federalization/ decentralization as a way to create a
just and democratic political system in a given state.
For Russia the federalization of Ukraine is a long-term primary strate-
gic goal, regarded as a means of regaining lost influence in the post-Soviet
states; at minimum limiting their integration into Western political and
security institutions. Russia entered the conflict with a prepared set of
demands to Ukraine, corresponding to the tactics earlier employed in
other post-Soviet states, like Georgia and Moldova. Playing on the first
two dimensions, it generally ignored promotion of good governance via
federalization, or even criticized it as irrelevant and distracting.
Germany did not have any ready-made plans for Ukraine’s federaliza-
tion, but having a historic legacy of federalism, strong belief into non-­
military methods of conflict resolution, and its own vision of regional
security, it invested heavily in federalism as a conflict-resolution mecha-
nism and decentralization as a means to promote democracy in Ukraine.
At the same time, aiming to further deepen relations with Russia, out of
strategic concerns, Germany is contributing indirectly to the fulfilment of
the Russian aim of creating a grey zone of security and economic coopera-
tion in Eastern Europe. It also tends to ignore the continuity of federalism
instruments in Russian policy and prefers to separate the question of
Crimea (a non-recognition policy) from that of Donbas (a political resolu-
tion with elements of federalism).
This international promotion or imposition of federalism has several
consequences for Ukraine. First, federalism is perceived extremely
7  THREE FACES OF FEDERALISM IN THE FOREIGN POLICY: RUSSIAN…  205

negatively both by the country’s elites and the general public, as Russian
attempts to impose a form of federalism have irreparably corrupted the
idea. Second, the links between federalization and neutrality further spoil
the prospects of the idea, as does the absence of Crimea in any federaliza-
tion equations. Thirdly, it raises the question of limited sovereignty, as its
employment by international actors has already been sufficiently extensive
to cross this line. These are the factors that academics and analysts who
study federalism for Ukraine in an internal policy framework need to take
into account.

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CHAPTER 8

The Dark Side of Decentralization Reform


in Ukraine: Deterring or Facilitating Russia-
Sponsored Separatism?

Jaroslava Barbieri

Introduction
Over the last 15 years, the Kremlin has consistently stoked separatist senti-
ment as a destabilizing tool in Ukraine. The most common tactic has been
the instrumentalization of the ethnic Russian and/or Russian-speaking
population, often through passportization policies (Grigas 2016, 42). To
this end, as far back in the late 1990s the Russian leadership created the
legal basis for cementing its stronghold in the post-Soviet region. Shevel
(2011) showed that by eclectically combining ethnic, linguistic, civic, reli-
gious, and historical-cultural connotations, the deliberately “fuzzy” defi-
nition of “compatriots” [sootechestvenniki] incorporated into the 1999

J. Barbieri (*)
University of Birmingham, Birmingham, UK

© The Author(s) 2020 211


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_8
212  J. BARBIERI

citizenship law1 enabled the Russian leadership to promote simultaneously


a number of ad-hoc policies targeting various groups residing in the terri-
tory of the former Soviet Union. Critically, such ambiguity allowed post-
Soviet Russian leaders to avoid fully committing to a nation-building
agenda defined either in territorial or ethnic terms, thereby opening the
door to potential irredentism at their discretion (ibid., 180).
Against this background, in order to justify its “deniable” intervention
in Ukraine in 2014 the Kremlin framed its actions as a case of humanitar-
ian intervention on the basis of alleged threats to ethnic Russians and
Russian speakers (Allison 2014, 1259). By creating artificial divisions and
fueling internal discord, this tactic has proved to be successful in impairing
Ukraine’s state capacity. At its core is the attempt to portray Ukraine’s
regional differences as an insurmountable impediment to its viability as a
state. Further, as argued below, Russia’s attempts to destabilize its neigh-
bor from within are not confined to this tactic.
With this in mind, the aim of this chapter is to gauge the extent to
which the ongoing decentralization reform in Ukraine has been effective
so far in curbing Russia-sponsored separatism. The latter includes activities
deliberately intended to undermine Ukraine’s constitutional order that
rely on the mobilization of economic grievances and/or historical-cultural
narratives by regional and local elites with the assistance of Kremlin-linked
individuals. In particular, I look at the destabilizing effect produced by
so-called “fake” territorial communities (henceforth fake terhromady) and
“special economic zones” (SEZs) as symptomatic of the failure of the
decentralization reform thus far to contain Russia-sponsored separatism.
Existing publicly available investigations show that since the beginning
of the conflict in the east and the launch of decentralization reform in
2014,“fake” terhromady have been established all over the country.
Essentially, these entities appropriate and twist the vocabulary and tools
derived from decentralization reform to put in place a parallel system of
power. In fact, they operate alongside, but in opposition to, the official

1
 “Compatriots” are defined as: first, citizens of the Russian Federation permanently resid-
ing abroad; second, individuals and their descendants who live outside its territory and are
connected to peoples that have historically resided on the territory of the Russian Federation;
third, individuals who made a free choice in favor of a spiritual, cultural, and legal connection
with Russia; fourth, individuals whose direct ancestors used to be residents of the USSR or
are currently residing in states that were part of the USSR; and finally, émigrés who either
became citizens of another state or became stateless persons (President of the Russian
Federation 1999).
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  213

territorial communities established as part of the ongoing reform (hence


their denomination as “fake”). At the same time, by demanding regional
autonomy to some degree, the promotion of SEZs risks consolidating
trends that the decentralization reform is supposed to combat in the first
place. Critically, these entities have been promoted with the assistance of
individuals linked to Viktor Medvedchuk2 and Russian security services.
As shown below, Medvedchuk, leader of the NGO “Ukrainian Choice”
and co-chairman of the pro-Russian party of the “Opposition Platform—
For Life,”3 has been an unwavering advocate of federalization in Ukraine
for years.4 These connections have led observers to believe that while rely-
ing on self-serving local and regional elites, these separatist projects have
the Kremlin’s blessing, if not its direct involvement. More critically, I
argue that the Russian leadership will find fertile ground for promoting
separatist projects during the transition period leading up to the comple-
tion of the decentralization reform.
In the context of the Minsk peace talks, given the link created between
the decentralization process and the implementation of a “special status”
(i.e. autonomy) in Donbas, I also analyze the potential threats to Ukraine’s
national security derived from the latter. Fake terhromady, SEZs, and
“special status” in Donbas are treated as different yet inter-related projects
reflecting Russia’s effort to recruit regional and local elites in order to
stoke separatist sentiment and, ultimately, weaken Ukrainian statehood in
the post-2014 period. In fact, these projects are given legitimacy through
the discreditation of national-level institutions and the dismissal of the
viability of Ukraine as an independent state. In light of these consider-
ations, I argue that the devolution of powers to the local level in the form
promoted by Kyiv (with the West’s blessing) can carry as many risks to the
unity of the state as Moscow’s ambition to federalize the country.
So far, there has been little academic debate on the implications of these
three phenomena to Ukraine’s territorial sovereignty and social cohesion.
For this reason, this chapter relies extensively on non-academic sources.
After this introduction, the chapter is structured in five sections. In Section
“Background Before 2014”, I examine how the domestic debate in Ukraine
2
 As is well known, the Russian President is godfather to Medvedchuk’s daughter.
3
 In the 2019 parliamentary election, the party came second in the vote with 13.05 percent
through party lists, gaining 37 seats (plus six in single-mandate electoral districts) (24
Kanal 2019).
4
 In March 2014, the movement announced on its website the launch of the “Concept”
for federalization reform in Ukraine (Ukrayins′kyi Vybir 2014).
214  J. BARBIERI

on alternative territorial-administrative systems evolved over time. Here I


also highlight the most important separatist projects of the pre-2014
period. Section “Russia’s Exploitation of Ukraine’s Weak National
Institutions and Existing Cracks in the Decentralization Process After
2014” illustrates why the decentralization reform launched in 2014 has
failed to contain Russia-sponsored separatism. Section “Decentralization:
A Faulty Panacea to Russia-Sponsored Separatism” has three sub-sections:
first, an overview of the legislation behind the reform; second, an account
of the instruments adopted by fake terhromady to undermine Ukraine’s
constitutional order and thus promote separatism; third, an account of the
same undermining in relation to SEZs. In section “Granting ‘Special
Status’ to Donbas: A threat to Ukraine’s National Security”, I offer a sum-
mary of Ukraine’s legislation towards the non–government-controlled
areas (NGCAs) and show how offering autonomy might exacerbate rather
than solve Russia-sponsored separatism in the east. Finally, I provide some
concluding remarks in light of President Volodymyr Zelenskyy’s coming
to power.

I. Background Before 2014


In order to make the argument that the ongoing decentralization process
can carry as many risks to Ukraine’s territorial sovereignty as Moscow’s
calls for federalizing its neighbor, a point of clarification is required. The
model of federalization promoted by Russian President Vladimir Putin
and his close associate Medvedchuk envisages a type of redistribution of
powers aimed at irreversibly weakening the Ukrainian state by fragment-
ing the country into several “quasi-states.” According to this model,
Ukraine’s southern and eastern regions should be allowed to pursue inde-
pendent foreign and trade policies, have autonomy on matters such as
education and language, and hold referenda to decide on these issues (a
prerogative ideally to be extended to all regions).5 This model underlies
Moscow’s request to grant “special status” to Donbas. Critics perceive

5
 As noted by both Western and Russian commentators, Putin’s model prescribes the tran-
sition towards a confederation rather than a federation. In fact, a federal arrangement envis-
ages power-sharing between the national government and subnational units, while foreign
and trade policy remain a prerogative of the former. In this respect, Putin’s notion that
subnational units should be entitled to have political leverage over the central government
misrepresents how federal states are conventionally organized. See Youngs (2014) and
Ryzhkov (2014).
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  215

such federative arrangement as a deliberate instrument aimed at neutral-


izing the country’s Euro-Atlantic aspirations and a catalyst for the even-
tual dismantling of the Ukrainian state (Samokhvalova 2012).
In contrast, the ongoing decentralization reform started in Ukraine in
2014 envisages the distribution of decision-making across levels of govern-
ment. Specifically, the combination of territorial-administrative reorgani-
zation and fiscal decentralization is presented as a “vaccination” against
Kremlin-sponsored separatism (Sultanova 2015). In support of this claim,
two aspects stand out.
The first aspect relates to the gradual diffusion of political and fiscal
influence. Prior to the reform, political and financial resources were con-
centrated at the regional level. This state of affairs led to the consolidation
of regional “fiefdoms” in the hands of powerful oligarchs and their clien-
telistic networks, whose resources provided the incentives to fuel seces-
sionist aspirations. In this respect, the lack of a strong state policy
precipitated centrifugal tendencies easily exploitable by the Kremlin (espe-
cially in Ukraine’s southern and eastern regions). Against this background,
the opportunity for district [rayon] and local community [hromada]
authorities to establish a direct relationship with the central government
and no longer be dependent on regional [oblast′] authorities should act as
a deterrent to secessionism.6 Supposedly, the empowerment of lower lev-
els of government facilitates the dismantling of existing avenues for rent-
seeking, thereby hindering Russia’s ability to drive wedges in Ukrainian
society.
The second aspect is more straightforward and relates to size. Compared
to oblasts, hromadas cover a much smaller territorial area. In theory, their
separatist ambitions should shrink accordingly.7 At the same time, this new
administrative map of Ukraine would prevent the Kremlin from carving
out entire regions for the creation of separatist entities with “credible” and
“sustainable” autonomist claims.

6
 This point was emphasized by Volodymyr Parkhomenko, Deputy Direction of the Analytical
Centre for the Association of Ukrainian Cities, and Anatoliy Tkachuk, Director of Science and
Development at the Civil Society Institute. See “Vostok + Zapad: Detsentralizatsiya—‘Mify o
Detsentralizatsii’ [East + West: Decentralization—“Myths about Decentralisation”], YouTube
video, “Unian,” 10.00 and 17.48, February 28, 2015, https://www.youtube.com/watch?v=b
7bXiM2XA4I&list=PLW_5Md4I65ArL5ja_Vhrhx9XVXiWQDjXs&index=1.
7
 This argument was presented by Yuriy Hanushchak, Director of Territorial Development.
Ibid., 19.45.
216  J. BARBIERI

There appears to be consensus among political elites in Ukraine and the


West that the combined effect of these two developments is to “gradually
eliminat[e] effective entry points for Russian subversive measures aimed at
destabilization and separation of entire regions” (Umland 2019). This
chapter presents empirical evidence that fundamentally questions this
overly optimistic premise. As already mentioned, since the launch of the
decentralization reform Russian “curators” have successfully managed to
exploit local elites’ vested interests to promote projects such as “fake”
terhromady, SEZs, and autonomy in Donbas. What these separatist proj-
ects have in common is an effort to weaken Ukraine’s territorial sover-
eignty, cripple its economy, and disseminate the idea that the formation of
Ukraine as an independent state was an historical accident. The idea of
federalizing Ukraine is presented as the optimal territorial-administrative
structure for “holding” the country together.
That said, it would be inaccurate to portray the idea of federalization as
an exclusively Russia-driven process. In fact, after the collapse of the Soviet
Union Ukraine’s future territorial-administrative model became the sub-
ject of intense domestic debate. Contrary to the highly centralized system
inherited from Soviet times, Ukraine’s pre-Soviet historical legacy included
federalism and decentralization (Wolczuk 2002, 69). Against this back-
ground, with the emergence of the new Ukrainian state national demo-
crats viewed federalism as a viable (and even preferable) alternative to a
more centralized model. In particular, Viacheslav Chornovil, the leader of
the national democratic movement, Rukh, was convinced that it would be
economically beneficial over the long run for Ukraine to adopt a federal
system in the form of “regional-land self-government” [regional′ne-
zemel′ne samoupravlinnya]. His model envisaged, nonetheless, the preser-
vation of a unitary Ukrainian state, thereby rejecting the prospect of giving
these “lands” [zemli] state-like prerogatives.8 In this respect, Chornovil’s
federalist model considerably differs from Medvedchuk’s proposals.
It is worth mentioning that national democrats’ initial advocacy for a
federal model was based on perhaps naïve but understandable assump-
tions. First, in post-communist countries unitarism has had a negative
connotation, as it evoked the Soviet legacy of centralization; second, in
the eyes of regional elites, a more centralized system carried the risk of

8

“Ukrayinu Mohla Vryatuvaty Federalizatsiya [Federalization Could Have Saved
Ukraine]/ Vyacheslav Chornovil,” YouTube video, “ukrmemorial UA,” 1.30, January 25,
2015, https://www.youtube.com/watch?v=y5h8lubkedk.
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  217

simply transferring the all-powerful authority from Moscow to Kyiv; third,


a federal arrangement could accommodate Ukraine’s economic and cul-
tural regional differences, thus providing a panacea against centrifugal ten-
dencies (Androshchuk 2010, 23). However, separatist tendencies in
Crimea and Donbas9 over the period 1991–1994 exposed the weakness of
Kyiv’s control over peripheral regions, thereby discrediting the idea of
federalism once and for all (Sasse 2001, 80). As a result, national demo-
crats fell back on the notion that only a strong center would act as “an
engine of the state-building project” (Wolczuk 2002, 82). These tensions
in the early stages of Ukraine’s independence are reflected in the eventual
adoption of “a hybrid territorial-administrative system—a unitary state
with a federal component, Crimea” (ibid., 78). Here it is important to
emphasize that Chornovil criticized the political autonomy offered to the
Crimean Peninsula.10 In his view, this move gave legitimacy to the separat-
ist tendencies promoted by Russia-supported local communists while
aggravating the isolation of Crimean Tatars (Derevinskyy 2018, 48).
Russia’s active support of separatist projects in eastern Ukraine gained
momentum during the Orange Revolution in 2004 (Honchar 2016, 74).
In reaction to the annulment of the results of the second round of the
presidential election by the Ukrainian parliament, local authorities in east-
ern Ukraine organized rallies in support of the pro-Russian candidate
Viktor Yanukovych. On November 28, 2004, the First All-Ukrainian
assembly of members of parliament and deputies of local councils was
organized in Severodonetsk (Luhansk oblast) on the initiative of the oblast
councils of Crimea, Dnipropetrovsk, Donetsk, Kharkiv, Kherson, Luhansk,
Mykolaïv, Odesa and Zaporizzhya, plus the Sevastopol City Council. A
prominent role was played by Yevhen Kushnariov, the Governor of Kharkiv
oblast. On this occasion, participants floated the idea of creating a “South-
East Ukrainian Autonomous Republic.” However, the project was aborted
shortly after (Todorov 2019). Ukrainian analysts pointed to the participa-
tion of then Moscow mayor, Yuriy Luzhkov, as an indicator of the
Kremlin’s direct involvement (Vynohradov 2016).

9
 In March 1994, a local referendum was held in Donets′k and Luhans′k oblasts in parallel
with the parliamentary elections. Reportedly, 80 percent of the local population voted in
favor of federalization (Kazanskyi 2014).
10
 For a detailed overview of the events leading to the institutionalization of Crimean
autonomy in the early 1990s, see Sasse (2001, 91–94).
218  J. BARBIERI

A second assembly took place in Severodonetsk in March 2008.


Alongside Luzhkov, the Russian delegation also included Konstantin
Zatulin, then First Deputy Chairman of the Russian State Duma
Committee for CIS Affairs and Relations with Compatriots and head of
the Institute of CIS Countries. The Institute has been considered a key
platform for Russia’s soft power projection in the post-Soviet region
(Polegkyi 2011, 17). On this occasion, Zatulin called for the federaliza-
tion of Ukraine and, while addressing the local audience using the term
“compatriots,” he reportedly declared that “Russia has always been, is and
will be with you” (quoted in Moser 2013, 192). Interestingly, in 2010 the
Institute of CIS Countries organized an international conference in Odesa
in which representatives from the institute and the Russian nationalist
party “Rodina” urged the city to become “the center of Ukrainian feder-
alism” (Censor.net 2010). These few examples manifest the presence of
recurrent Russian individuals and institutions tasked with establishing
contacts with local and regional elites in Ukraine. Most importantly, they
point to the Kremlin’s direct involvement in the promotion of separatist
projects in Ukraine.
That said, there is an argument to be made that at that point in time
Russia was not “ready” to resort to military action. As a result, irredentist
scenarios were confined to the rhetoric of Russian nationalist elite circles.
To give an example, during an online press conference on the website of
Putin’s “United Russia” party in January 2009, Zatulin reportedly
declared that “when the time is right,” Russia would just have to “send
the signal” and Ukraine’s southern and eastern regions would take the
decision to join the Russian Federation (Unian 2009). Overall, prior to
Putin’s third presidential term, Russia lacked the willingness and capacity
to intervene militarily in Ukraine. Supporting separatist sentiment among
the local elite was considered a sufficiently effective destabilizing tool to
maintain Ukraine within its sphere of influence.

II. Russia’s Exploitation of Ukraine’s Weak National


Institutions and Existing Cracks
in the Decentralization Process After 2014

The events of 2014 were a tragic demonstration of how Ukraine’s central


institutions are strong more on paper than in reality. Early on, observers
emphasized that in light of the loss of control over Crimea and parts of
Donetsk and Luhansk oblasts, rapid decentralization posed non-negligible
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  219

risks, as the state appears “too fragile to bear any such process” (Youngs
2014). From this perspective, an exclusive focus on decentralization lack-
ing a parallel effort to strengthen national-level institutions in a country as
large and diverse as Ukraine “could inadvertently increase the risk of
break-up” (Bond 2014).
Nonetheless, the Ukrainian government dismissed such concerns as
misplaced, while portraying the reform as an unequivocal “success story.”
In August 2019, an article was published on the official website dedicated
to the reform with the intention of reassuring those who saw the required
constitutional changes as “dangerous” “in the face of war, political instabil-
ity and immaturity, [and a] fragmented society” (Decentralization 2019).
According to the article, such fears were overblown as the country would
necessarily go through a “transition period” lasting for years, which would
require “align[ing] the legislation with the new [constitutional] rules.”
However, one could argue that precisely this unavoidable transition period
could offer a window of opportunity for the Kremlin to promote separatist
projects by exploiting existing cracks in the decentralization process.
The institution of prefects, which is supposed to progressively replace
regional and district state administrations, is a case in point. This institu-
tion adopts the French model, in which prefects embody the role of state
oversight over local government bodies. In order to avoid the old risk of
clientelistic networks and political favors between local political and busi-
ness elites, the prefects will rotate every three years. However, prefects can
formally be established only following the elimination of local state admin-
istrations and the adoption of decentralization-related constitutional
amendments (Minregion 2015).
In this respect, the merging of the decentralization process with the
request to grant “special status” to the occupied areas as part of the Minsk
peace process indefinitely postpones decentralization-related constitu-
tional amendments (including the institution of prefects). This delay leaves
a situation of ambiguity, which can be exploited by Russia’s hybrid aggres-
sion to threaten Ukraine’s national security (Fluri and Badrack 2017, 25).
As pointed out by Ivan Lukeriya, an expert from the Reanimation Reform
Package, for the time being “there is no comprehensive legal control over
decisions made by local authorities” (Holub 2019). As prefects would be
tasked with notifying the President of acts adopted by local authorities
that might threaten Ukraine’s territorial integrity or national security, the
risk of separatism cannot be overstated.
220  J. BARBIERI

Hennadiy Zubko, Ukraine’s former Minister of Regional Development


and Deputy Prime Minister, warned that even if the relevant constitutional
amendments were to be passed, the creation of a training program for new
prefects would require a long period of time (Skorokhod 2019). As a
result, it remains unclear how state authorities will be able to monitor local
government bodies to make sure that they comply with Ukraine’s laws and
Constitution. This lack of state oversight during the transition period raises
concerns about possible external attempts to instigate separatist sentiment.
This possibility suggests that there is a “dark side” to decentralization
reform, which has been unduly neglected. While failing to recognize the
legitimacy of local and national authorities, the self-proclaimed “represen-
tatives” [upovnovazheni] or “registrators” [reyestratory] of fake terhro-
mady unlawfully act on behalf of entire villages, cities, or even oblasts,
through illegitimate practices involving the appropriation of state author-
ity. These include issuing so-called “passports of persons” [pasporty lyu-
dyny], vehicle registration number plates, certificates to so-called “national
entrepreneurs” [narodni  pidpryyemsti] (who refuse to pay taxes), occa-
sionally even their own currency. Fake terhromady have also been accused
of confiscating communal property and establishing local courts and law-
enforcement agencies. While preaching populist ideas on “self-govern-
ment” with the assistance of Kremlin-connected individuals, the promoters
of fake terhromady rely on arbitrary interpretations of Ukraine’s
Constitution to justify these unlawful activities.
During a press conference dedicated to the phenomenon of fake terhro-
mady understood as a “threat to national security,” Anatoliy Tkachuk
argued that these individuals seek to sow chaos with the ultimate goal of
corroding Ukraine’s social fabric and unravelling Ukraine as a state (UCMC
2017). As a result, fake terhromady have become an important target for
the Security Service of Ukraine (SBU). As emphasized by Andriy Levus,
former Deputy Chief of the SBU, at their core these illegitimate practices
aim to subvert Ukraine’s constitutional order (Texty.org.ua 2016a).
At the same time, the demand for regional autonomy underlying the
promotion of SEZs contradicts the goal of the decentralization reform to
contain centrifugal tendencies. A distinct, yet related issue is the granting
of “special status” to the occupied areas in Donbas. Significantly, Russia
portrays divisions within Ukrainian society as home-grown and pre-exist-
ing the conflict in and around Ukraine rather than being artificially ampli-
fied by Moscow to destabilize the country. As argued in section “Granting
‘Special Status’ to Donbas: A threat to Ukraine’s National Security”, such
framing allows the Kremlin to promote local self-governance as a way to
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  221

contain (if not solve) those allegedly long-neglected divisions, while de


facto consolidating local pro-Russian sentiment.

II. Decentralization: A Faulty Panacea


to Russia-Sponsored Separatism

1. Ukraine’s Decentralization Reform: Key Legislation


One common misunderstanding is that the decentralization reform started
under Western pressure within the framework of the Minsk Agreements.
This is inaccurate, as there had been earlier attempts (see Leitch 2015).
However, it was only after the Euromaidan revolution and President Petro
Poroshenko’s coming to power that the process was set into motion in a
systematic way.
As explained in a recent report by the German Institute for International
and Security Affairs, the territorial-administrative structure inherited from
the Soviet times suffered from a number of problems. First, it faced an
“accountability deficit.” Although local councilors were elected, they for-
mally shared power with centrally appointed administrators at the district
and regional level, who, de facto, set the agenda. Significantly, state admin-
istrators were accountable to the central government rather than to the
local electorate. The same applied to elected councilors in settlements
below the district level (Dudley 2019, 7–8). Second, in light of this formal
power-sharing, “duplication of responsibilities” between state administra-
tors and local councilors was a recurrent problem. Such overlapping of
tasks led to inefficient provision of local services (ibid., 8). Third, the old
system relied on a “trickle-down system of fiscal transfers,” whereby the
capital negotiated and dispensed budgets exclusively to regions, each of
which arbitrarily decided how to allocate the funds to various districts,
which gave out the remaining resources to the villages and settlements
within their remit. As a result, communities at the lowest level were left
with very scarce resources (ibid., 9).11 The ongoing decentralization
reform is meant to rectify these important shortcomings.

11
 It is worth mentioning that Cities of Regional Significance (CRSs) represented an excep-
tion. In fact, their mayors and councils were democratically elected and directly accountable
to their electorate. Moreover, a separate portion of the state budget was allocated to and
directly negotiated with CRSs, whose councils enjoyed some degree of fiscal autonomy.
However, these privileges also enabled local political elites in cahoots with local business
tycoons to capture key assets in CRSs in exchange for political loyalty to the capital
(ibid., 8, 10).
222  J. BARBIERI

Ukraine’s decentralization process kicked off in April 2014 with the


adoption of the “Concept of the Reform of Local Government and
Territorial Organization of Power” (Verkhovna Rada 2014a). This text set
out the main target goals of the reform, namely, to create and sustain
genuine living conditions for citizens, provide high-quality and accessible
public services, establish institutions of direct democracy, and align the
interests of the government with those of territorial communities. To the
extent that communities have a better sense of local issues and citizens’
needs on the ground, the transfer of administrative and budgetary respon-
sibilities from national and regional authorities to the community level is
seen as an unequivocally positive development.
Thus, the Ukrainian Parliament [Verkhovna Rada] approved the Law
“On Cooperation of Territorial Communities” in mid-June 2014
(Verkhovna Rada 2014b) and the Law “On Voluntary Amalgamation of
Territorial Communities”(ATCs) in February 2015 (Verkhovna Rada
2015a). The first bill clarified the issues on which these new entities would
cooperate. The second bill enabled the incorporation on a voluntary basis
of several settlements into the territorial communities. As of January 2020,
1029 ATCs have been created, corresponding to 33.3 percent of the total
Ukrainian population and covering 44.2 percent of the total territory of
Ukraine (excluding the occupied territories) (Decentralization 2020).
In April 2015, the government approved the “methodology” which
would provide the “mechanisms and conditions” for the formation of
capable territorial communities. Interestingly, the text specifies that the
amalgamation process must take into consideration the “historical, geo-
graphical, socio-economic, cultural characteristics” of the administrative
and territorial units in question (Cabinet of Ministers 2015). A later
amendment added additional criteria, namely “natural, ecological, ethnic”
characteristics (Cabinet of Ministers 2017). This is a very important point
when discussing the potential of the decentralization process for contain-
ing secessionist aspirations. In this respect, Zubko pointed out that the
amalgamation of communities from different ethnic backgrounds would
create a “preventing mechanism against separatist sentiment”
(Skorokhod 2019).
The amalgamation process increases not only the institutional, but also
the financial capacity of local self-government bodies. To this end, in
November 2015 the Rada passed amendments to the budget and the tax
codes (Verkhovna Rada 2015b). This was a necessary step to proceed with
fiscal decentralization, which is said to have already brought about positive
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  223

results. Hromadas now receive additional tax payments and are entitled to
directly manage their budget to improve local infrastructure, healthcare,
and education.
It is worth noting that Ukraine is still formally using an administrative-
territorial system established back in 1981. As of April 2020, the basic law
on the territorial-administrative structure of Ukraine had not entered into
force.12The new structure would envisage a three-tier system: regional
level [oblasts plus the Autonomous Republic of Crimea], district level
[rayons] and basic level [hromadas]. As explained by Zubko, the bill aims
to eliminate duplication of powers and improve the quality of service pro-
vision by increasing the funding of local self-government budgets, with
education and healthcare progressively becoming an exclusive function of
the ATCs (TSN 2018). The minister expected the draft law to be passed
by the end of 2019 (Ukrinform 2019).
As already mentioned, the implementation of the provisions outlined in
the concept required constitutional amendments. These concerned espe-
cially the definition of the community [hromada] as a legitimate political-
administrative sub-level, namely the “primary unit” [pervynna odynytsya]
in Ukraine’s administrative-territorial structure (article 133); the estab-
lishment of executive bodies accountable to district and regional councils
(article 140); and the transformation of state administrations at lower lev-
els of government into a watchdog and supervisory authority (i.e. pre-
fects), responsible for ensuring that local self-government bodies comply
with the laws and the Constitution (article 118–9) (Verkhovna Rada 2015c).
At the end of August 2015, the Rada passed amendments in the first
reading following the approval of the Constitutional Court of Ukraine
and the Venice Commission (Council of Europe 2014). However, a con-
troversial provision (“[s]pecifics of local self-government in certain dis-
tricts of Donetsk and Luhansk regions are determined by a separate law”)
was swiftly added to the amendments. This provision caused violent pro-
tests to erupt outside the parliament building, which led to the death of
four guardsmen in a grenade attack. Opponents feared that the amend-
ments would give political legitimacy to Moscow-supported separatist
forces and, ultimately, veto power over Kyiv’s decisions. In the face of a
lack of domestic consensus around this topic, the process was halted
(Korrespondent 2015).

 The draft law was submitted to parliament in February 2018 (Verkhovna Rada 2018a).
12
224  J. BARBIERI

As emphasized by the German government’s special envoy for decen-


tralization and good governance, the decentralization reform thus contin-
ued in the absence of constitutional amendments “because it was mixed up
with the Minsk process” (Sologoub et al. 2019). For the time being, prog-
ress with the decentralization reform remains fragile. In the absence of
constitutional changes, “decentralization will always be an unfinished
reform” (Cabinet of Ministers 2019), as the latter proceeds on the basis of
simple laws that could be reversed at any time.

2. Fake Terhromady: A Bottom-up Model to Bring


the Ukrainian State Down
Supporters of the reform claim that by disempowering regions and dis-
tricts, the decentralization process weakens the traditional target of
Russia’s subversive operations. While providing original insights, this
argument fails to address the danger represented by actors who distort the
vocabulary and tools derived from decentralization reform to promote
separatist activities against the Ukrainian state.
The phenomenon of “national entrepreneurs” is particularly notewor-
thy. The so-called “representatives” of terhromady effectively seize tax
powers and divert tax revenues from Ukraine’s state coffers, whereas indi-
viduals “registered” as “national entrepreneurs” engage in tax evasion.
More critically, this unlawful practice may be “weaponized” against
Ukrainian institutions. There is concern among Ukrainian security ser-
vices that “registrators” might store a “dossier” for each “national entre-
preneur” in a given terhromada. Should there be a desire to replicate the
scenario that led to the creation of the so-called “Donetsk and Luhansk
People’s Republics” (“DPR”/“LPR”) elsewhere, Tkachuk argued in an
interview, these dossiers could be used to blackmail tax evaders, forcing
them to “storm” local state administrative buildings in hopes of heading
off criminal prosecution (Protsyuk 2016).
What most of these cases have in common is their leaders’ connection
to Medvedchuk’s NGO “Ukrainian Choice.” It is worth mentioning that
in February 2019, the Prosecutor General’s Office of Ukraine opened
criminal proceedings against Medvedchuk for “treason” and “encroach-
ment on the territorial integrity and inviolability of Ukraine” (RFE/RL
2019). The phenomenon was aptly captured by journalist Kataryna
Handzyuk. In her article “Medvedchuk Hides in the Details” she describes
activities behind the terhromada in the village of Stara Zburivka in
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  225

southern Kherson oblast. Her investigation illustrates how self-appointed


“representatives” informed locals that carrying a “person’s passport”
would give them immunity against Ukraine’s laws and grant them tax
exemption (Handzyuk 2016). The self-proclaimed “representative” of
this terhromada was Sergey Ryabov,13 a former supporter of anti-Maidan
protests.
An important thing to note is that these entities have been emerging
before the beginning of the decentralization reform and are not confined to
Ukraine’s southern and eastern regions, which are usually associated with
separatist sentiment. One of the oldest reported cases dates back to 2007.
At the time, an “independent state” under the name of “Chernihiv
Southern Realm” [Chernihivs′ke Pivdenne Sudarstvo] had been created in
Bakayivka village in Chernihiv oblast in the north of the country. The
entity was established by two residents, who announced the creation of
“the Titular Sovereign People of Ukraine” [tytul′nyy suverennyy narod
Ukrayiny] (Potapchuk 2016). According to one Ukrainian investigation,
its leader proclaimed himself “emperor,” whilst his two main collaborators
were former Russian citizens and graduates from two Russian military
academies.14 In 2016, the SBU opened criminal proceedings against the
members of the organization. The evidence found suggests that they had
refused to comply with Ukrainian conscription laws and managed to
establish local self-government bodies, courts, law enforcement agencies,
even financial institutions. The self-proclaimed “realm” issued banknotes,
driving licenses, car registration number plates, and so-called “passports of
the indigenous people of Ukraine.” Whoever possessed this identity docu-
ment allegedly gained immunity from Ukraine’s judicial authorities and
was granted exemption from paying taxes and utility bills (Texty.org.
ua 2016b).
Perhaps the most cited case with regards to “national entrepreneurs” is
the terhromada created in Khmelnytskyy (Western Ukraine) by Pavlo

13

“Zibrannya Starozbur’yivchan 03.11.2013” [Meeting of StaraZburivka Residents
November 3, 2013], “paysonkrays,” 58.28, November 7, 2013, https://www.youtube.
com/watch?v=4gP6uHZAnW4.
14
 “Separatysts′kyy Proekt Medvedchuka. Rozsliduvannya Diyal′nosti ‘Terytorial′nykh
Hromad’ (Video)” [Medvedchuk’s Separatist Project. Investigation of ‘Territorial Communities’
(Video)], “Censor.net,” 23.31, December 12, 2016, https://censor.net.ua/blogs/1103928/
separatistskiyi_proekt_medvedchuka_rozslduvannya_dyalnost_teritoralnih_gromad_vdeo.
226  J. BARBIERI

Bilets′kyy, a local entrepreneur, and Ol′ha Uhrak,15 former assistant to


Communist MP Volodymyr Novak (2002–2006). Reportedly, Bilets′kyy
gave out car registration plates, while encouraging local residents not to
register their car in the state vehicle register or pay taxes (Kazanskyi 2019).
In order to obtain a certificate granting the status of “national entrepre-
neur,” apparently it was sufficient to sign a contract with the community
in question on condition of withdrawing one’s name from state fiscal
records (Terhromada.blogspot.com 2016). In March 2017, the local
court arrested Bilets′kyy and Uhrak’s property. The police found copies of
the certificates distributed to so-called “national enterprises,” “passports
of persons,” and seals with the inscription “Territorial community of
Khmelnytskyy city” (Depo.ua 2017).
Back in 2016, then Prosecutor General Ihor Lutsenko explicitly accused
Medvedchuk of orchestrating the registration of such terhromady and
declared that the self-proclaimed “representative” of Khmelnytskyy would
be charged with treason (Ukrayins′ka Pravda 2016). In response,
Medvedchuk’s “Ukrainian Choice” published a statement on its website
in which it rejected all accusations. Against all evidence of its involvement,
the movement took the opportunity to present a constitutionally enshrined
federal structure as the only solution to the separatist sentiment of which
terhromady is an obvious symptom (Ukrayinskyi Vybir 2016). This is an
interesting twist: the NGO instigates these secessionist entities and then
exploits their destabilizing potential as an argument to promote federal-
ization as a panacea.
Liudmyla Lyubovetska also appears as one of the self-proclaimed “rep-
resentatives” of the terhromada in Khmelnytskyy.16 According to one
investigation, Lyubovetska supports the “Union of Creators of Holy
Russia,” a Russian nationalist organization advocating the creation of the

15
 In this documentary, in her speech in front of the Khmelnytskyi City Council, Uhrak
relies on a populist reading of Article 5 of the Constitution of Ukraine to justify the establish-
ment of terhromada in Khmelnytskyi: “In Ukraine people are the transmitter of sovereignty
and the unique source of power. People carry out power directly and through public authori-
ties and organs of local self-government”. See “Separatysts′kyy Proekt Medvedchuka,” 6.07.
16
 “Pravookhorontsi Prodovzhuyut′ Shukaty Dokazy Nezakonnoyi Diyal′nosti Narodnykh
Pidpryyemtsiv” [Law enforcement Agencies Continue to Look for Evidence of Illegal
Activity of National Entrepreneurs], YouTube video, “UA:PODILLYA,” 0.50, May 25,
2016, https://www.youtube.com/watch?v=6phCg9RmY9A.
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  227

“Divine Monarchy of Holy Russia” in Ukraine, Belarus, and Russia.17In a


video uploaded on the website of “Ukrainian choice,” Lyubovetska refers
to Article 69 of the Constitution of Ukraine: “The expression of the will
of the people shall be exercised through elections, referenda and other
forms of direct democracy.” Through use of populist rhetoric, this Article
is being exploited to give an appearance of legitimacy to the creation of
terhromady as an example of such alternative forms of direct democracy.
Interestingly, Lyubovetska displays the signed agreement which allegedly
established the terhromada.18 At the end of her speech, she claims that
should a “person of the Ukrainian people” be unsatisfied with national
state institutions or local government bodies, then the Ukrainian
Constitution grants this person the opportunity to exert power directly
through the creation of a terhromada based on such an agreement.19 From
this perspective, terhromady represent a particular type of separatism, one
that cultivates disloyalty to national-level institutions in the name of “the
sovereign people.”
In this respect, one investigation shows that self-appointed “representa-
tives” found a clever way of circumventing the law on the voluntary amal-
gamation of hromadas. All they needed to do was find three residents in a
single community and ask them to sign an “Agreement” (Texty.org.ua
2016a). As noted by Anatoliy Tkachuk, current Ukrainian legislation does
not list “territorial communities” as a legal entity of public law (by law,
such legal entities cannot be arbitrarily established by private citizens).20

17
 “Feykovaya Detsentralizatsiya: Novyy Plan Separatistov—Sekretnyi Front” [Fake
Decentralization: Separatists’ New Plan—Secret Front], YouTube video, “Telekanal ICTV,”
5.50, December 14, 2016, https://www.youtube.com/watch?v=O6L9Tj6nEas.
18
 “‘Ukrayins′kyyVybir’ u Khmel′nyts′komu Proviv Zustrich z Predstavnykamy
Terytorial′noyi Hromady Mista” [Ukrainian Choice in Khmel′nytskyy Met with
Representatives of the Territorial Community of the City], “Ukrayinskyi Vybor,” 3:27,
January 27, 2014, http://vybor.ua/video/grazhdanskoe_obschestvo/ukrayinskiy-vibir-u-
hmelnickomu-proviv-zustrich-z-predstavnikami-teritorialnih-gromad-mista.html. In the
same video, Vasyl′ Nimchenko, a representative from Medvedchuk’s NGO “Ukrainian
Choice,” argues that the amalgamation process among communities will “enable them to
protect their property rights over the land” (1:26). According to this narrative, the state
“usurped” power because at no point was the land “transferred” to the state—the people
“own” the land (1.50).
19
 Ibid., 6.15.
20
 “Feykovi Hromady—Nova Zahroza Natsional′niy Bezpetsi Ukrayiny? UKMTS
23.05.2017” [Fake Terhromady—New Threat to Ukraine’s National Security? UCMC May
23, 2017],” YouTube video, “Ukraine Crisis Media Center,” 10.01, May 23, 2017, https://
www.youtube.com/watch?v=8AoWYFX2vik.
228  J. BARBIERI

Yet another case was registered in the city of Ternopil in western


Ukraine. Reportedly, by September 2019 the terhromada had illegally
seized local lands and issued as many as 150 certificates of “national entre-
preneurs,” all effectively engaging in tax evasion (Chasopys 2019).
According to Ihor Huskov, advisor to the central command of Ukraine’s
SBU, there is evidence indicating that Russian security services are behind
these entities (Segodnya 2017). In April 2017, the SBU liquidated the
terhromada that had been operating in Sumy, a northern city close to the
border with Russia. Allegedly, its organizers had attempted to establish
illegal governing bodies, take over the functions of the local state authori-
ties and get hold of buildings owned by the municipality. They had also
registered around thirty “national entrepreneurs” (Sluzhba Bezspeky
2017). According to a local investigation, the terhromada’s page on the
Russian social network “Vkontakte” had a direct link to the Russian move-
ment “Kursom Pravdy i Yedineniya”21 [The Course of Truth and Unity],
which advocates the re-establishment of the USSR.22According to another
investigation, representatives from “Kursom Pravdy i  Yedineniya” had
been organizing events all around the country, calling for the seizure of
power in Ukraine.23 Interestingly, there is a homonymous party in Russia,
which on its website mentions the “Public Safety Concept” [Kontseptsiya
obshchestvennoy bezopasnosti], published on the Kremlin’s website on
November 20, 2013 during the outbreak of the Euromaidan protests
(Kremlin 2013). On his Vkontakte page, the self-proclaimed “representa-
tive” of Sumy, Volodymyr Oliynyk, also refers to the “Public Safety
Concept.”24 In an interview, Oliynyk mentioned that their coordinates are
known to someone named Serhiy Danilov,25 who is now a member of the
“working group” advising the so-called “DPR authorities.”26 Such

21
 Its website is no longer accessible.
22
 “Separatyzm u Sumakh | Pid Prytsilom” [Separatism in Sumy | Under fire], YouTube
video, “UA: Sumy,” 1.06, May 5, 2017, https://www.youtube.com/watch?v=faww6SWV-
DA. Allegedly, all references to “Kursom Pravdy I Yedineniya” had been taken down after
the end of the investigation in June 2015 (ibid., 5.20). Interestingly, the Ukrayins′kyy Vybir
website published an article on the nature of these (fake) terhromady (ibid., 4.43). However,
the article is no longer accessible.
23
 “Separatysts′kyy Proekt Medvedchuka,” 29.55.
24
 Separatyzm u Sumakh | PidPrytsilom” [Separatism in Sumy | Under fire], Youtube
video, “UA: Sumy,” 1.06, May 5, 2017, https://www.youtube.com/watch?v=faww6SWV-
DA, 2.22.
25
 Ibid., 3.15.
26
 “Separatysts′kyy Proekt Medvedchuka,” 29.55.
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  229

networks indicate that the various fake terhromady reflect a systematic


effort to challenge Ukraine’s territorial sovereignty by putting in place a
parallel system of power and spreading separatist sentiment among the
local population.

3. “Special Economic Zones”: Russia-sponsored Federalization


in Disguise
In addition to terhromady, the promotion of so-called SEZs is also being
suspected of covering up subversive operations. This phenomenon has
been identified in Dnipropetrovsk (renamed Dnipro since 2016) and
Kharkiv (eastern Ukraine), Zaporizzhya and Odesa (southeastern and
southwestern Ukraine respectively), and Zakarpattya (western Ukraine).
It is worth mentioning that the phenomenon of SEZs is far from new.
In the early 1990s, the Rada introduced legislation that allowed for the
creation of so-called “Free Economic Zones” (FEZs). The aim was to
attract foreign investment and promote local infrastructure and socioeco-
nomic development. As a result, a number of FEZs were established across
the country. Overall, SEZs and FEZs produced mixed and often subopti-
mal results and were seen to serve the interests of local and regional busi-
ness and political elites rather than the national interest, which is why the
International Monetary Fund pressurized Ukrainian authorities into liqui-
dating them as a condition for renewing its financial assistance (UCIPR
2000). The establishment of SEZs and so-called “territories of priority
development” in Donetsk and Luhansk oblasts in 1999 is a case in point.
At that time, the Donetsk “clan” demanded favorable legislative regimes
from the central authorities in exchange for approving the closure of coal
mines as part of a World Bank restructuring program (Swain and
Mykhnenko 2007, 39; see also Kuromiya 2002, 473). In fact, mines were
a major source of revenues for local business tycoons and provided employ-
ment to the local population. In this respect, miners also constituted the
electoral basis of local political elites.
What distinguishes these first experiments from the recently resumed
demands in favor of SEZs across Ukraine is the involvement of Russian
“curators” on a wave of reaction to the creation of the “DPR”/“LPR” in
Donbas. A recent report on The Surkov Leaks provided evidence of how
Putin’s former top aide and spin-doctor, Vladislav Surkov, had been man-
aging networks of activists and politicians to destabilize Ukraine. Critically,
the authors showed how the leaked emails point to Russia’s direct
230  J. BARBIERI

involvement in the projects in Zakarpattya, Odesa Dnipro, Zaporizzhya,


and Kharkiv (Shandra and Seely 2019, 56–62).
In September 2015, the so-called “Public Council of Dnipropetrovsk
Region” was created on the initiative of members of local councils. Their
mandate was to develop legislation aimed at strengthening the region’s
powers (112.ua 2015). In a promotional video,27 its leader, Serhiy Shapran,
advocated the creation of the “Dnipropetrovsk People’s Economic
Republic” [Dnipropetrovs′ka Narodno-Ekonomichna Respublika]. The
name dangerously echoed the “DPR”/“LPR” in the east of Ukraine.
Formally, the Dnipropetrovsk Republic would seek “economic auton-
omy” for the region to escape the country’s dire economic situation
(Dyachenko 2015). It is important to stress that Shapran was the leader of
Medvedchuk’s “Ukrainian Choice” office in Dnipro.28
Around the same time, Serhiy Kivalov, the head of the Ukrainian
Maritime Party and former MP for the Party of Regions, submitted an
electronic petition on the President’s website.29 The petition proposed the
creation of a “free economic zone” (“Porto-Franco”) in Odesa which
would introduce duty-free import and export of goods as well as extend
prerogatives for the Odesa City Council (Electronic petitions 2015).30
According to a local activist, the proposal aimed to destabilize the situa-
tion not only in Odesa but also in Mykolaïv and Kherson (Depo.Odesa
2016a). First, Ukraine’s state coffers would take a hit, as all the maritime
trade passing through the Odesa port would be tax-free. Second, local
officials would consolidate Odesa as a regional fiefdom increasingly iso-
lated from the capital and thus vulnerable to Russia-sponsored separatist
activities (Depo.Odesa 2016b).
For a while, it seemed that the project had been abandoned. However,
in April 2019 Odesa’s mayor, Hennadiy Trukhanov, posted on the city
27
 “Otkrytiye Priyemnoy GRD” [Opening of the Reception of PCD]. YouTube video,
“Rada Dnepropetrovsk,” November 22, 2015, https://www.youtube.com/
watch?v=AKOm8OeVu5U.
28
 In an interview on the “Ukrainian Choice” website, Shapran parrots Medvedchuk’s idea
that federalization will help keep the country together: “Komanda Viktora Medvedchuka.
Sergey Shapran” [Viktor Medvedchuk’s Team: Sergey Shapran], “Ukrayinskyy Vybor,” 3.30,
May 1, 2015, http://vybor.ua/video/Persons_and_personalities/komanda-viktora-med-
vedchuka-sergey-shapran.html.
29
 It is worth noting that Kivalov lost the 2019 parliamentary election to a representative
of the Party of the Servant of the People.
30
 Interestingly, students from the National University “Odesa Law Academy” complained
of being forced to sign Kivalov’s petition (Depo.Odesa 2015).
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  231

council’s website an amendment to an existing order on the creation of a


working group in charge of expanding the SEZ.31 According to a local
journalist, the problem with the proposal is that it seeks to expand this
special regime to the entire Odesa oblast (Mazur 2019). An additional risk
is that Ukraine’s Law on SEZs, to which the updated order refers, also
grants enormous prerogatives to local authorities.32 Most importantly, any
resulting secessionist attempts may cost Ukraine access to Odesa ports, a
vital economic and strategic asset (Kolibelkin 2016).
The co-chair of the revived working group is Sergiy Grinevetsky, for-
mer Governor of Odesa Region (1998–2005). In 2015, Grinevetsky
advocated fiscal autonomy when he wrote that SEZs would be successful
provided that local authorities were solely responsible for considering and
approving investment projects. Moreover, his original proposal to the
Azarov government on reviving the special regime was accompanied by a
draft bill which sought to expand the territory of the SEZ
(Grinevetsky 2015).33
It is worth mentioning that back in April 2016, parents of school pupils
in Odesa complained about the handbook on the history of Odesa spon-
sored by Trukhanov. In it, Odesa is referred to as the “capital of
Novorossiya,” and an important part of the text is dedicated to the “Porto-
Franco” experience dating back to the nineteenth century. Interestingly,
among the authors we find Oleh Bryndak, the current deputy chairman of
the “Porto-Franco” working group and a member of Odesa City Council.
The founders of the publishing house are the Mazurenky brothers:
Volodymyr Mazurenky used to be a member of Medvedchuk’s Social
Democratic Party of Ukraine, while Valentyn Mazurenky was associated
with the same party as a member of Odesa City Council  (Depo.
Odesa 2016c).
In December 2015, Alla Aleksandrovskaya, leader of the
“Slobozhanshchina” movement and former MP for the (now banned)
Communist Party, organized a round table in Kyiv to discuss a bill on the
establishment of a “special region of Slobozhanshchina” in Kharkiv oblast.
This special regime envisaged the establishment of strong trade relations
with Russia. Two other issues were raised: first, increasing the region’s
budget and, second, electing governors in Ukraine. At the meeting,

31
 https://omr.gov.ua/ua/acts/mayor/173243/.
32
 See articles 9–11 (Verkhovna Rada 2006).
33
 The proposal was largely ignored by the Azarov and Yatsenyuk governments.
232  J. BARBIERI

Aleksandrovskaya commented that “if a ‘special regime’ is being consid-


ered for Odesa then why not consider it also for Kharkiv region?” (Golos.
ua 2015). The proposal was also supported by Vasyl Nimchenko, Deputy
Chairman of Medvedchuk’s NGO “Ukrainian Choice,” an MP from
Medvedchuk’s “Opposition Platform,” and First Deputy Head of the
Parliamentary Committee on Legal Policy. It is worth mentioning that he
was also present at the event set up by “Ukrainian Choice” dedicated to
the terhromada in Khmelnytskyy.34 In June 2016, the SBU detained
Aleksandrovskaya for allegedly attempting to bribe local deputies in
Kharkiv to vote in favor of federalization (Prestupnosti.NET 2016).
Around the same time, the SBU disbanded a prospective meeting in the
southern city of Zaporizzhya, where allegedly it was planned to announce
a “special status” for the region (TSN 2015). The event was put together
by the organization “Sotsial′noe Zaporozzhya” [Social Zaporizzhya],
which former SBU director Vasyl Hrytsak listed as one of the entities
bankrolled by Moscow’s “curators” involved in promoting “hidden feder-
alization” (Ukrayins′ka Pravda 2017).
Hrytsak’s list included also the NGO “Zakarpats′kyi Kray” [Zakarpattya
region]. Significantly, in mid-February 2016, its leader conducted a
roundtable discussion in which he described the existing overly centralized
system in Ukraine as the major source of the economic crisis in the region.
He advocated granting the entire region “special status” to attract invest-
ment. To this end, the NGO claimed to be preparing relevant amend-
ments to Ukraine’s legislation and Constitution. Participants supported
the idea of having an elected governor accountable to the local population
rather than centrally appointed prefects (Ihnat 2016). Significantly, these
proposals echoed those already presented in the context of the Kharkiv
experiment.
As argued by Russia observer Lilia Shevtsova, by 2015, it became clear
to the Kremlin that it had overestimated its ability to successfully fuel pro-
Russian secessionist movements in other regions beyond Donbas. The
realization of this miscalculation caused Russian officials to bury the
“Novorossiya” projecting Donetsk and Luhansk oblasts (news.online.ua
2016). However, there is an argument to be made that the prospect of
autonomy for the occupied areas in Donbas offers Russia new venues to
destabilize Ukraine from within.

 See note 18.


34
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  233

III. Granting “Special Status” to Donbas: A threat


to Ukraine’s National Security

1. Ukraine’s Legislation on Donbas under President Poroshenko


From the onset of the peace process, granting “special status” to non-
government-controlled areas (NGCAs) has been a key political provision
in the Minsk Agreements (Financial Times 2015). Signed in February
2015 by the Trilateral Contact Group (TCG), which brought to the table
Ukraine, Russia, and the Organization for Security and Cooperation in
Europe (OSCE) (plus the “representatives” of “DPR”/“LPR”), the
agreements were intended to revive the Minsk Protocol ceasefire signed in
September 2014, but which failed in early 2015.
The 2015 version proposed implementing an immediate ceasefire, to
be followed by the withdrawal of heavy weaponry by both sides. Then
Ukraine would have to authorize local elections to be held in the occupied
territories “in accordance with Ukrainian legislation.” Crucially, provision
9 states that Ukraine would regain full control of its state border only the
day after local elections. According to provision 11, by the end of 2015
Ukraine would be required to implement constitutional amendments to
allow for decentralization (including a reference to the “special status” of
the occupied territories) and to adopt permanent legislation on the “spe-
cial status” of these areas.
Provisions 11 and 12 state that Ukraine must agree the special regime
and issues related to local elections “with representatives of certain areas
of the Donetsk and Luhansk regions.” From the beginning of the conflict,
Russia has insisted on promoting direct negotiations between the
Ukrainian central authorities and the self-proclaimed leaders of
“DPR”/“LPR.” Fundamentally, this strategy aims to legitimize the role
of separatists at the negotiating table as autonomous actors and that of
Russia as a mediator rather than a direct party to the conflict.
In analyzing potential threats to Ukraine’s national security derived
from granting “special status” to Donbas, two additional provisions are
particularly noteworthy. Ukraine must adopt an amnesty law for individu-
als fighting on the side of Russia-backed militants (provision 5). Moreover,
both sides are required to pull out all foreign armed formations (including
mercenaries) and disarm illegal groups (provision 10). Neither of these
provisions indicates an explicit timeframe for their implementation.
234  J. BARBIERI

On September 16, 2014, Ukrainian lawmakers adopted the law “On


the Special Order of Local Self-Government in Certain Districts of
Donetsk and Luhansk oblasts” (often referred to as the “law on special
status”)  (Verkhovna Rada 2014c). Although for the limited period of
three years, the law identified the necessary steps for organizing local self-
government with the aim of stabilizing the situation, restoring the rule of
law and citizens’ constitutional rights and freedoms, facilitating the return
and reintegration of internally displaced people, and enabling the resump-
tion of normal life in the NGCAs. These steps included granting amnesty
to those who fought on the side of Russia-supported separatists (article
3),35 the right to linguistic self-determination (article 4), the participation
of local representatives in appointing the heads of courts and prosecutors’
offices (article 5), a special economic regime (article 7), “cross-border
cooperation” with Russia (article 8), and the power by local councils to
create “people’s militia” units, to be formed “on a voluntary basis” and
tasked with protecting public order (article 9).
Among the amendments adopted on March 17, 2015 (Verkhovna Rada
2015d), Article 10 laid out a list of preconditions before the special regime
can enter into force: presence of and safe working conditions for interna-
tional electoral observers during local elections; withdrawal of all illegal
armed formations, weaponry, and mercenaries from Ukraine’s territory;
prohibition of illegal interference in  local elections (including by illegal
armed formations); ensuring political pluralism and a multi-partisan sys-
tem; restoration of Ukrainian television, radio broadcasting, and printed
media in the NGCAs; guarantees for free expression of will and secret bal-
lot; right to vote for internally displaced people; transparency in the vote
count and declaration of electoral results. To this day, these preconditions
have not been satisfied.

35
 On the same day, the Rada also passed the law “On Preventing Persecution and
Punishment of Participants of Events on the Territories of Donetsk and Luhansk Oblasts”
(Verkhovna Rada 2014d). The law was meant to pardon “members of armed groups” and
those who “participated in the activities of the self-proclaimed bodies”. Yet, it was not
extended to individuals involved in the downing of the MH17 flight in July 2014. In the
end, the law never entered into force. At the time, legal experts pointed out that it would be
impossible to enforce the law in practice (Bludsha 2014). Moreover, Amnesty International
warned that the law risked enabling people guilty of torturing prisoners to avoid criminal
responsibility (Interfax 2014). It is worth mentioning that in late August 2019, deputies
from the Opposition Bloc presented a new draft law on amnesty (Verkhovna Rada 2019a).
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  235

On October 5, 2017, President Petro Poroshenko submitted two bills


to the Rada. The draft law “On Creating the Necessary Conditions for the
Peaceful Resolution of the Situation in Certain Districts of Donetsk and
Luhansk Oblasts” mentioned the request to the UN Security Council and
Council of the European Union to establish an international peacekeeping
operation (Verkhovna Rada 2015e) and extended by one year the effect of
the above-mentioned “law on special status” originally adopted on
September 16, 2014 (which would have expired on October 18, 2017).
The next day the bill was adopted (Verkhovna Rada 2017).
The draft law “On the Aspects of State Policy on the Restoration of the
State Sovereignty of Ukraine over the Temporarily Occupied Territory of
Donetsk and Luhansk Oblasts” is more commonly known as the “Donbas
reintegration bill.” The text declared Russia to be an “aggressor state” and
gave the NGCAs the official status of “occupied territories.” The law was
adopted on January 18, 2018 (Verkhovna Rada 2018b). The final version
describes Russian military aggression as relying on the assistance of Russian
regular troops, special formations, advisors, instructors, illegal armed
forces, armed gangs, and mercenaries. “DPR”/“LPR” are referred to as
representatives of the “occupying administration of the Russian
Federation.” Moreover, several MPs insisted on setting the annexation of
Crimea as the starting date of the occupation of Ukraine. While no specific
date is mentioned, the text makes reference to the 2014 Crimean law,
which dates the annexation to February 20, 2014 (Verkhovna Rada 2015f).
This bill is significant because hitherto there had been no law that
explicitly referred to Russia as an aggressor state. According to one com-
mentator, Western partners might have talked Kyiv out of enshrining into
law such an explicit accusation, as this would have further obstructed the
already difficult negotiations (Hromadske 2017). Unsurprisingly, Russian
Foreign Minister Sergei Lavrov accused the Donbas reintegration bill of
violating the Minsk Agreements (Unian 2018a). The Russian Ministry
insinuated that the overlap between the approval of the law and the US
decision to supply Ukraine with lethal weapons36 was not coincidental
(Unian 2018b).

36
 In December 2017, the US administration approved the largest sale of weapons to
Ukraine since 2014. While Congress had authorized such sales back in 2014 with the
Ukraine Freedom Support Act, the Obama administration refrained from actively supplying
the Ukrainian military with lethal weapons (Rogin 2017).
236  J. BARBIERI

2. The Steinmeier Formula: A Tool to Legalize Russian-Installed


Separatist Entities?
From a legal point of view, strictly speaking the Minsk Agreements should
be considered nothing more than a declaration of intent.37 The resulting
ambiguity gave rise to incompatible interpretations on the Russian and
Ukrainian side with regards to the sequencing for implementing the rele-
vant security and political provisions. Such a clash of interpretations trans-
lated into ill-defined commitments for the negotiating parties, providing
the opportunity to avoid responsibilities (Peters and Shapkina 2019, 3;
Sargsyan 2019, 3). The Kremlin demands that Ukrainian authorities pri-
oritize decentralization and local elections in the NGCAs, whereas Kyiv
maintains that the stabilization of the security situation (namely full demil-
itarization and restoration of control over the state border) must precede
the implementation of the political provisions.
In theory, the so-called Steinmeier Formula was meant to provide a
solution to such a stalemate. At the Normandy summit (which brought
together the leaders of France, Germany, Russia, and Ukraine) on October
2, 2015, then German Foreign Minister Walter Steinmeier advanced a
proposal which was intended to clarify exclusively the steps for the imple-
mentation of the special regime for the NGCAs. According to the for-
mula, as a first step Ukraine was required to adopt a special law on holding
local elections in the NCGAs. In this respect, observers have emphasized
that this proposal unequivocally favored Russia’s interpretation of the
Minsk Agreements, as it envisaged the implementation of the political
provisions prior to stabilizing the security situation.
Unsurprisingly, this version was never accepted under Poroshenko’s
presidency. For a few years, it seemed that the negotiating parties had
abandoned the original formula. However, Ukraine’s new Foreign
Minister, Volodymyr Prystayko, caused public outcry when he announced
that on September 2, 2019 Normandy Four advisers had reached an
agreement on the wording of the Steinmeier Formula, later to be dis-
cussed by the TCG (Unian 2019). Significantly, Moscow had demanded
Ukraine’s commitment to the Steinmeier Formula in written form as a

37
 In both Ukrainian and Russian legislation, only the head of state has the prerogative to
sign legally binding international treaties on behalf of the state (Peters and Shapkina 2019,
3). However, the Minsk Agreements do not bear the signatures of the heads of states, but
rather those of diplomats representing the participants in the TCG.
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  237

precondition for holding the next Normandy summit (Korrespondent


2019a).38
Initially, the spokesperson for Leonid Kuchma (former President and
Ukraine’s current representative to the TCG) declared that although in
principle Ukraine has no objections to the formula, Ukraine’s acceptance
of local elections would be conditional upon the realization of a number
of points, which essentially echoed those listed under article 10 of the law
“on special status.” These include allowing the participation of interna-
tional electoral observers, withdrawing all illegal armed formations, weap-
onry, and mercenaries from Ukraine’s territory, prohibiting illegal
interference and vote rigging in local elections, ensuring political plural-
ism and free expression, restoring Ukrainian media in the NGCAs, and
guaranteeing voting rights to internally displaced people
(Korrespondent 2019b).
Despite these initial tensions, on October 1, 2019 Russian media circu-
lated the final text with the signatures of the TCG members plus the “rep-
resentatives” of “DPR”/“LPR” (Kommersant 2019). Unlike the original
version from 2015–2016, the updated version of the Steinmeier Formula
mentions that elections must “comply with Ukraine’s Constitution and
law on special status” (Ukrainian Weekly 2019). The text specifies that the
law “on special status” would enter provisionally into effect at 20:00 on
the election day. It would enter into force on a permanent basis if and only
if the official report of the OSCE’s election observation mission (EOM)
confirms that the elections complied with the OSCE’s standards.
The law “on special status” was due to expire on December 31, 2019;
on December 12, 2019 the Rada extended it for another year, to December
31, 2020. The Rada is currently drafting a new law, the text of which, at
the time of writing, has not been made publicly available. At a press brief-
ing, Zelenskyy stated that the new law would “not cross any red lines”39
and would put in place effective “preventing mechanisms”40 to ensure that
full demilitarization and restoration of control over the border remain
preconditions for elections to be held.
As a result, a number of Ukrainian experts argue that the main respon-
sibility for avoiding Ukraine’s “capitulation” to Russia’s demands based

38
 The last meeting of the Normandy format was on October 2016.
39
 “Ekstrennyi Bryfinh Volodymyra Zelens′koho 01.10.2019” [Emergency Briefing by
Vladimir Zelenskyy 01.10.2019], 3.15, “Ukrayins′ka Pravda,” October 1, 2019, https://
www.youtube.com/watch?v=XSW0g1ON1KM.
40
 Ibid., 8.25.
238  J. BARBIERI

on the Steinmeier Formula lies with the Rada. In fact, only the law “on
special status” can regulate the modality of holding elections and estab-
lishing local self-governance (Nayem 2019; Zholobovych 2019).
Significantly, the formula itself does not mention the withdrawal of Russian
troops and restoration of control over the border as necessary require-
ments for the organization of local elections. As already mentioned, the
formula is meant to specify exclusively the steps for the implementation of
the law “on special status.” All the other provisions listed in the Minsk
Agreements remain fundamentally disputed. In this respect, it is up to the
Rada to enshrine in the new law the “preventive mechanisms” already in
place under article 10 of the existing law (Polishchuk 2019).
Unlike the 2014 Minsk Protocol and the 2015 Minsk Agreements, the
updated version of the Steinmeier Formula does not envisage a single doc-
ument inclusive of all the TCG members’ signatures. Instead, the formula
was agreed by all the parties with separate letters to the OSCE.  Once
again, this allows the various negotiating parties to apply their own arbi-
trary interpretation to the text. In this respect, the formula replicates the
ambiguity it was supposed to solve.

3. Risks Associated with Granting “Special Status”


to Russia-Occupied Territories
Some skeptical observers have dismissed public concerns over the
Steinmeier Formula as exaggerated. Arguably, the latter has no legal obli-
gations attached to it and hardly adds anything new to existing legislation
(Spirin 2019). Nonetheless, there is an argument to be made that unless
the Rada establishes strong preventive mechanisms in the new legislation,
the formalization of “special status” to the NGCAs may foster rather than
contain secessionist tendencies in Donbas (Kompaniiets 2018, 7). It is
important to note that the “representatives” of “DPR”/“LPR” immedi-
ately qualified the agreed formula as being synonymous with obtaining
formal recognition of their right to autonomy and thus with legalizing
their power: “We will decide by ourselves which language to speak, what
our economy will look like, how our judicial system will be formed, how
our people’s militia will protect our citizens and how we will integrate
with Russia” (RBK 2017).
Under the present circumstances, the implementation of a special
regime in the NGCAs following the Steinmeier Formula presents a num-
ber of risks to Ukraine’s national security.
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  239

First, should local elections fail to meet the OSCE’s standards, the law
on special status would nonetheless still temporarily apply to the NGCAs
for the period leading up to the release of the OSCE’s report. This means
that the central government would be formally obliged to recognize and
interact with the new local “government.” One non-negligible risk is that
the OSCE’s EOM may choose to downplay electoral violations that
occurred in constituencies to which access was denied, thereby allowing
the law “on special status” to enter into force on a permanent basis in
order to achieve formal progress in the peace negotiations (Zolkina and
Sydorenko 2019). To reduce such danger, the mission of international
observers deployed in Donbas should have the mandate and the capabili-
ties to not only engage in electoral monitoring, but also manage local
militias and demand access to the entire occupied territory (ibid.). In fact,
“DPR”/“LPR” militias have consistently denied the OSCE’s Special
Monitoring Mission access to certain parts of the NGCAs.
Second, the existing self-proclaimed “authorities” in “DPR”/“LPR”
will be allowed to hold office and therefore be legalized if amnesty is
granted to individuals who contributed to creating these entities. The
reintegration of Donbas under these conditions would potentially turn
Russia-backed separatist forces into veto players in the Rada, obstructing
the country’s Euro-Atlantic aspirations.
Third, if local elections are held prior to completing the demilitariza-
tion process, the presence of illegal armed formations currently on the
ground would be legitimized. Once again, in the absence of timely inves-
tigations, amnesty would only facilitate this process. On multiple occa-
sions Ukrainian authorities have stressed that amnesty will not be extended
to individuals who have engaged in war crimes. However, if elections are
held before any meaningful investigations are carried out (which may take
years) then individuals who have committed war crimes might end up
in local government. More critically, article 9 of the existing law “on spe-
cial status” could transform these illegal armed formations into local police
(Peters and Shapkina 2019, 5). Essentially, local government would be
able to create its own power structures which would operate outside the
control of central authorities (Fluri and Badrack 2017, 33), thereby creat-
ing a “Russian enclave” within Ukraine (ibid., 35).
Fourth, once “DPR”/“LPR” authorities’ control of these areas is legit-
imized, it is difficult to imagine that Russia would allow Ukraine to regain
control over the border. As already mentioned, the Minsk Agreements
state that Ukraine would regain control over the border on the first day
240  J. BARBIERI

following elections and the implementation of constitutional amendments.


Unsurprisingly, Medvedchuk argued that Zelenskyy’s promise to hold
local elections only after the restoration of control over the border contra-
dicts the Minsk Agreements (Censor.net 2019). Moreover, Russia is
unlikely to withdraw its troops, as doing so would equate to admitting its
direct involvement in the conflict, something that the Kremlin denies to
this day.
Fifth, as a result of the loss of control over the border, the central gov-
ernment’s inability to monitor the flow of weapons into Ukraine’s terri-
tory would persist. This would create additional risks for public safety
across the country. Arguably, “special status” risks amplifying illicit cross-
border trade under the guise of “cross-border cooperation” with Russia.
Sixth, autonomy in language and education risks radicalizing secession-
ist sentiment. It has been reported that since 2015, Ukrainian language
has been progressively sidelined in schools in NGCAs and Russia has been
transporting in its “humanitarian convoys” tons of Russian school text-
books which target the new generation with pro-Russian patriotic senti-
ment (Durnev 2019). More recently, the self-proclaimed leader of “DNR”
suggested introducing amendments to the “DNR Constitution” in order
to strip Ukrainian of the status of state language and declare Russian “the
only state language in the republic” as part of the “intensive integration
process of the DPR into the Russian Federation” (TASS 2019). Critically,
such initiatives betray local elites’ intention to attribute state-like proper-
ties to the rebel regions and thus undermine Ukraine’s territorial sover-
eignty. This is also exemplified by the law “On the State Border of the
DPR” adopted in late November 2019. The law defines the new “state
border” of the self-proclaimed republic along the pre-2014 administrative
boundaries of the entire Donetsk oblast, thus incorporating the govern-
ment-controlled areas into “DPR” (RIA Novosti 2019).
Seventh, the Minsk Agreements and the existing law “on special status”
place the exclusive burden of post-conflict reconstruction onto Kyiv.41

41
 Interestingly, the Russian Ministry of Finances has excluded from the 2018 federal bud-
get as well as the 2019–2020 budget cycle “humanitarian support” to “separate territories,”
which allegedly is a term Surkov came up with to refer to entities such as “DPR”/“LPR”
without having to mention them explicitly (RBK 2017). Although it remains unclear what
“humanitarian support” exactly stands for (thus suggesting that there might be alternative
channels of Russian assistance that need not be suspended), Moscow is trying to find an
uneasy balance between making these regions politically loyal to Moscow and economically
dependent on Kyiv.
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  241

Even if the transformation of the occupied territories into “quasi-states”


were to fail, their reintegration would add prohibitive costs to Ukraine’s
state coffers for demining the area and addressing a number of environ-
mental hazards created by the war (Hamilton 2019).42
Eighth, it would be unwise to underestimate the impact that pardoning
people who had a direct involvement in combat operations would have on
Ukrainian society at large. As stressed by Roman Bezsmertnyy, former
Ukraine’s representative in the Minsk political subgroup, Russia is benefit-
ting from the growing tensions within Ukrainian society created by
Zelenskyy’s acceptance of the Steinmeier Formula (Novosti 2019). Public
outrage might increase the risk of lynching [samosud]. Russian propa-
ganda has consistently portrayed the conflict as a “civil war” to cover up
its military aggression and confuse people’s understanding of the situation
on the ground. Paradoxically, the literal implementation of the Minsk
Agreements in Russia’s favor might throw the country into a “real civil
war” (Brunson 2019).
Ninth, selling autonomy to Donbas as a conflict-resolution tool legiti-
mizes Russia’s narrative of the conflict. The general assumption is that
granting autonomy can settle competing (territorial) claims in an internal
ethnic conflict (Wolff and Weller 2005). However, it would be inaccurate
to portray the war in eastern Ukraine as an internal conflict triggered by
grievances along ethnic lines. As pointed out by Wilson (2016), identity
factors, economic interdependence with Russia, and a long-simmering
alienation from the capital since the 2004 Orange revolution were neces-
sary but not sufficient conditions for the outbreak of the conflict in
Donbas. Ultimately, a fully-fledged war would have not been possible
without Russia’s military and financial assistance as well as the support of
Russia-oriented local elites. In this respect, granting “special status” to
Donbas de-responsibilizes Russia for its role in escalating the conflict.
Last but not least, we should not underestimate the destabilizing impact
on Ukraine’s sovereignty resulting from a possible “domino effect.” As
noted by one Ukrainian analyst, it is entirely possible that cities such as
Kharkiv or Odesa might wish to imitate the Donbas scenario and demand
a similar “special status.” In turn, this would increase the risk of “unravel-
ling” the Ukrainian state (Minakov 2019). Under Zelenskyy’s leadership,

42
 These include the contamination of water supply to the region as a result of flooded
mines, dumped radioactive waste, chemical pollution of the soil, air contamination, and
deforestation.
242  J. BARBIERI

the Rada’s recent approval in its first reading of the “law on the city of
Kyiv” is a case in point (Verkhovna Rada 2019b). Here Kyiv City Council
is given prerogatives that are typical of a federalist unit: it would have its
own electoral system as well as the ability to sign international treaties,
while members of Kyiv City Council would work on a permanent basis (at
present, only members of parliament earn a salary, whereas deputies
in local councils work on a voluntary basis) (Honcharenko 2019). If per-
manently adopted, other cities may wish to emulate the capital’s example,
thereby creating a domino effect with detrimental implications for the
unity of the state.

Conclusion
This aim of this chapter was to challenge the prevailing argument that the
ongoing decentralization reform in Ukraine can act as a powerful deter-
rent to Russia-sponsored separatism. It can be debated whether the prolif-
eration of fake terhromady and SEZs with the assistance of individuals
linked to Viktor Medvedchuk reflects clumsy and largely inconsequential
destabilizing attempts or systematic efforts orchestrated by Russian “cura-
tors” to undermine Ukraine’s constitutional order. That said, it is hardly
deniable that the absence of appropriate state oversight of local govern-
ment bodies (i.e. “prefects”) during the transition period leading up to
the completion of the decentralization process creates favorable condi-
tions for the promotion of destabilizing activities.
Due to the connection established between the decentralization reform
and “special status in Donbas” as part of the Minsk peace process, this
chapter also addressed the potential risks to Ukraine’s national security
associated with offering autonomy to the occupied territories. In opposi-
tion to Poroshenko’s militaristic rhetoric, Zelenskyy’s commitment to
reach significant progress opened a window of opportunity for the Russian
leadership to reboot the Minsk process to its own advantage. In particular,
Moscow is capitalizing on the new Ukrainian leadership’s inexperience on
the one hand, and a growing desire in Western Europe to “normalize”
relations with Russia on the other (Socor 2019). Possibly, formal progress
in the Minsk talks might put Russia in a positive light and lead to the lift-
ing of a portion of the sanctions currently in operation.
Essentially, everything will depend on the ability of Zelenskyy’s leader-
ship to uphold its promises. However, one element of concern is that thus
far Zelenskyy’s government style has shown a propensity to take decisions
8  THE DARK SIDE OF DECENTRALIZATION REFORM IN UKRAINE…  243

behind closed doors. Regardless of Russia’s destabilizing operations, this


leaves observers wonder whether Ukraine’s sovereignty might be endan-
gered from within as well. In one scene from Zelenskyy’s “Servant of the
People” TV series, the new “President” was confronted with a map of
Ukraine, fragmented into several “independent states.”43 It remains to be
seen whether the TV series was meant to be a parody or a premonition.

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ta Luhans′koyi Oblastey’ [The Verkhovna Rada of Ukraine Adopted the Law
“On Prevention of Persecution and Punishment of Individuals Who Participated
in the events in the Donets′k and Luhans′k Regions”], September 16. https://
www.rada.gov.ua/news/Novyny/Povidomlennya/97812.html.
———. 2015a. Pro Dobrovil′ne Ob’yednannya Terytorial′nykh Hromad [On
Voluntary Amalgamation of Territorial Communities], February 5. https://
zakon.rada.gov.ua/laws/show/157-19/ed20150205.
———. 2015b. Pro Vnesennya Zmin do Byudzhetnoho Kodeksu Ukrayiny
Shchodo Osoblyvostey Formuvannya ta Vykonannya Byudzhetiv Ob’yednanykh
Terytorial′nykh Hromad [On Amendments to the Budget Code of Ukraine on
Features of Formation and Execution of Budgets of United Territorial
Communities], November 26. https://zakon.rada.gov.ua/laws/
show/837-19.
———. 2015c. Proekt Zakonu pro Vnesennya Zmin do Konstytutsiyi Ukrayiny
(shchodo Detsentralizatsiyi Vlady) [Draft Law on Amendments to the
Constitution of Ukraine (on Decentralization of Power)], July 1. http://
w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf3511=55812.
———. 2015d. Pro Vnesennya Zminy do Statti 10 Zakonu Ukrayiny ‘Pro
Osoblyvyi Poryadok Mistsevoho Samovryaduvannya v Okremykh Rayonakh
Donets′koyi ta Luhans′koyi Oblastey [On Amendment to Article 10 of the Law
of Ukraine “On Special Order of Local Self-Government in Separate Districts
of the Donetsk and Luhansk Regions”], March 17. https://zakon.rada.gov.
ua/laws/show/256-19/ed20150321#n2.
———. 2015e. Pro Skhvalennya Zvernen′ vid Imeni Ukrayiny do Rady Bezpeky
Orhanizatsiy i Ob’yednanykh Natsiy ta Rady Yevropeys′koho Soyuzu Stosovno
Rozhortannyana Terytoriy i Ukrayiny Mizhnarodnoyi Operatsiyi z
Pidtrymannya Myrui Bezpeky [On the Approval of the Application on Behalf
of Ukraine to the United Nations Security Council and the Council of the
European Union Concerning the Deployment of An International Peace and
Security Operation in Ukraine], March 17. https://zakon3.rada.gov.ua/laws/
show/253-19/paran2#n2.
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———. 2015f. Pro Vnesennya Zmin do Deyakykh Zakoniv Ukrayiny shchodo


Vyznachennya Daty Pochatku Tymchasovoyi Okupatsiyi [On Amendments to
Some Laws of Ukraine on Establishing the Starting Date of the Temporary
Occupation], September 15. https://zakon.rada.gov.ua/laws/
show/685-19#n7.
———. 2017. Proekt Zakonu pro Stvorennya Neobkhidnykh Umovd dlya
Myrnoho Vrehulyuvannya Sytuatsiyi v Okremykh Rayonakh Donetskoyi ta
Luhanskoyi Oblastey [Draft Law on Creating the Necessary Conditions for
the Peaceful Resolution of the Situation in Certain Districts of the Donetsk
and Luhansk Regions], October 6. https://zakon.rada.gov.ua/laws/
show/2167-viii.
———. 2018a. Proekt Zakonu pro Zasady Administratyvno-Terytorial′noho
Ustroyu Ukrayiny [On the Principles of the Administrative and Territorial
Structure of Ukraine], February 22. http://w1.c1.rada.gov.ua/pls/zweb2/
webproc4_1?pf3511=63508.
———. 2018b. Pro Osoblyvosti Derzhavnoyi Politykyiz Zabezpechennya
Derzhavnoho Suverenitetu Ukrayiny na Tymchasovo Okupovanykh
Terytoriyakh u Donets′kiy ta Luhans′kiy Oblastyakh [On the Aspects of State
Policy on the Restoration of the State Sovereignty of Ukraine over the
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Peresliduvannya, Prytyahnennya do Kryminal′noyi, Administratyvnoyi
Vidpovidal′nosti ta Pokarannya Osib- Uchasnykiv Podiy na Terytoriyi
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Criminal Prosecution, Administrative Responsibility and Punishment of
Individuals Who Participated in the Events in Donetsk, Luhansk Regions],
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the City of Kyiv—Capital of Ukraine], September 24. http://w1.c1.rada.gov.
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PART IV

Decentralization, Its Perceptions and


Linkage to Democratization,
Modernization, and European
Integration of Ukraine
CHAPTER 9

Decentralization and a Risk of Local Elite


Capture in Ukraine

Max Bader

Introduction
The decentralization of government has been one of the most compre-
hensive and consequential of Ukraine’s reforms since the Euromaidan
Revolution. It is poised to stimulate economic development outside the
major cities, increase the quality of governance at the subnational level,
and strengthen accountability and popular participation in  local and
regional politics. Most existing accounts of the effects of decentralization
so far describe the reform as a success, emphasizing in particular the
increased budgets of local communities and their greater financial
autonomy.
Less attention has been paid to other effects of the reform, including its
effects on the practice of local government. In the theoretical literature on
decentralization, there are several arguments for why it is related to
democratization. Decentralization in particular is asserted to give a boost
to popular participation in political processes, and to strengthen

M. Bader (*)
Leiden University, Leiden, The Netherlands
e-mail: [email protected]

© The Author(s) 2020 259


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_9
260  M. BADER

accountability mechanisms by bringing government closer to people. The


theoretical research on decentralization, however, also warns of certain
risks, including that of local elites exploiting decentralization reform to
further their personal interests at the expense of the public good.
This study considers the risk of local elite capture in the ongoing decen-
tralization reform in Ukraine. Drawing on empirical evidence, it finds a
number of reasons to assume that the implementation of the decentraliza-
tion reform in a range of places has likely created opportunities for local
elite capture. Data for this study have been collected through extensive
fieldwork in Kharkiv Oblast and Odesa Oblast and analysis of reports in
(mostly) local Ukrainian media. In Kharkiv Oblast and Odesa Oblast, 149
interviews were conducted with representatives of the newly formed amal-
gamated territorial communities of these regions, as well as with local civic
activists, between March 2017 and April 2018. The insights gained from
fieldwork in Kharkiv Oblast and Odesa Oblast serve as an illustration of
broader consequences and potential consequences of decentralization in
Ukraine.
Section “The Promise and Flaws of Decentralization in Ukraine” dis-
cusses elements of the decentralization reform that are relevant for the
subsequent discussion. Section “Decentralization and Democracy” looks
at the relationship between decentralization and democratization as
described and analyzed in academic and non-academic theoretical litera-
ture, and outlines the benefits and risks for democracy and the quality of
local government that are associated with decentralization. Section “The
Risk of Local Elite Capture”, the main section, looks at the available evi-
dence that points to the risk of local elite capture in current decentraliza-
tion reform.

I. The Promise and Flaws of Decentralization


in Ukraine

Government at the sub-national level in Ukraine comprises elements of


state administration in the form of governors and district (rayon) heads,
both appointed by the central authorities, as well as elements of self-­
government, represented by respective councils at the regional, district,
and municipal level and by elected municipality heads. In this “dual model
of authority” (Aasland and Lyska 2016, 4), state administration has tradi-
tionally been much more powerful than self-government. At the munici-
pal level, executive heads are directly elected, along with legislative
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  261

councils, but appointed governors and district heads in practice wield


great influence over the affairs of the municipalities. This status quo has
long been viewed as one of the biggest flaws of governance in Ukraine.
The dominant influence of higher-level authorities on municipalities has
disempowered local communities and has violated the principle of subsid-
iarity (Tkachuk 2012, 7). In addition, the weakness of self-government
has likely impeded economic development and negatively affected the
quality of government in municipalities (Hanushchak 2013, 12).

1. Decentralization Reform in Ukraine: The Essentials


The Euromaidan Revolution of 2013–2014 provided new impetus to the
objective of decentralizing government. Soon after the Revolution, on
April 1, 2014, the Verkhovna Rada adopted the order “On the Approval
of the Reform Concept of Local Self-Government and the Territorial
Organization of Power in Ukraine,” which set out the basic principles of
the new government’s decentralization reform.1 This reform essentially
has two tracks. The first concerns a comprehensive overhaul of sub-­
national government, requiring a set of amendments to the Constitution.2
As a consequence of the overhaul of subnational government, three types
of sub-national administrative entities are slated to remain: regions, dis-
tricts, and communities. State administrations at the regional and district
levels will be abolished, and instead district legislatures and regional legis-
latures will form executive bodies. Centrally appointed prefects will moni-
tor compliance with the constitution by subnational administrations and
coordinate the work of state institutions at the subnational level. The con-
stitutional amendments are highly controversial and, as of March 2020,
have not been adopted.
The second track of the decentralization reform, which is more relevant
to this study, concerns the merging of municipalities into so-called
amalgamated territorial communities (ATCs), coupled with a devolution
of powers and resources from districts to the newly formed ATCs. The
creation of larger municipalities is intended to remedy two existing obsta-
cles of local self-government in Ukraine. The first of these is the inability

1
 The reform concept can be consulted here: http://zakon5.rada.gov.ua/laws/
show/333-2014-%D1%80.
2
 The proposed constitutional amendments can be consulted here: http://w1.c1.rada.gov.
ua/pls/zweb2/webproc4_1?pf3511=55812.
262  M. BADER

of most municipalities to generate substantial revenues. Before the decen-


tralization reform, the biggest share of municipal budgets generally con-
sisted of transfers from higher-level state administrations (Chumak and
Shevliakov 2009, 8). Municipal authorities, moreover, largely lacked the
power to decide on how funds were disbursed inside the municipality
(Sydorchuk 2015, 2). The shortage of self-generated resources and lim-
ited financial autonomy are seen as a reason for the low quality of service
delivery in the municipalities (Chumak and Shevliakov 2009, 6). The sec-
ond obstacle to effective self-government that the creation of larger
municipalities addresses is the lack of qualified professional staff at munici-
palities’ executive level (Chumak and Shevliakov 2009, 21; Tkachuk
2017). Many rural communities in Ukraine are confronted with depopu-
lation, as young people in particular move away, and many of the over
10,000 rural municipalities, half of which had fewer than 1,000 residents,
existed before the start of the reform, and suffered from a shortage of
qualified professional staff.
Two pieces of legislation have been crucial for the implementation of
the second track of the decentralization reform. Amendments to the tax
and budget codes of Ukraine, which were adopted in December 2014,
stipulate that a larger share of taxes is to be transferred to local budgets
and that municipalities, including ATCs, receive greater opportunities to
levy taxes locally (Sydorchuk 2015, 3). ATCs gain additional powers,
responsibilities, and resources once they are recognized by the regional
authorities as sufficiently capable. Altogether, the newly formed ATCs
should both have larger budgets and enjoy greater financial autonomy.
The Law of Ukraine “On Voluntary Amalgamation of Territorial
Communities,” adopted in February 2015, opened a way for the process
of the ATC formation,3 which, in its turn, follows a number of fixed steps,
including public hearings in all municipalities that would unite in a pro-
spective ATC, a vote in the relevant municipality councils, and a decision
by regional authorities on whether the formation of the ATC meets legal
requirements. Crucially, the amalgamation of municipalities must be vol-
untary, meaning that it is initiated from within the municipalities,
supported by the municipal councils of all relevant municipalities, and free
from coercion by external forces. At the same time, regional authorities
draw up a so-called “prospective plan” outlining the borders of

3
 The Law of Ukraine “On Voluntary Amalgamation of Territorial Communities” can be
consulted here: http://zakon5.rada.gov.ua/laws/show/15719/print1457728359241365.
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  263

prospective ATCs in the region. These “prospective plans,” however, are


not binding and cannot be imposed.

2. Decentralization and Its Discontents


From the moment when a substantial number of ATCs had been formed,
the decentralization reform has often been hailed as a success story.
President Poroshenko, for instance, in December 2017, described decen-
tralization as one of the most successful reforms undertaken during his
presidency.4 Whenever the decentralization reform is presented as a suc-
cess story, reference is typically made to the larger budgets and greater
financial autonomy of ATCs.5 According to figures mentioned by presi-
dent Poroshenko, the budget of all municipalities had increased from 69
billion hryvnia to 171 billion hryvnia (approximately 6 billion euros) by
2017. There are many reports of newly formed ATCs which have con-
structed new public facilities, built roads, and taken on long-overdue
repair works.
The decentralization reform process, however, is not without prob-
lems. ATC formation is to a great extent uneven and uncoordinated.
According to the draft constitutional amendments of the first track of
decentralization, all municipalities that existed before the start of the
decentralization reform should join ATCs. The prospective plans envision
that altogether around 1,500 ATCs will be formed. By the end of 2019,
the number of ATCs stood at 662.6 While this may suggest that a substan-
tial share of the prospective ATCs had already been formed by the end of
2017, only 3,094 of the almost 12,000 municipalities had been amalgam-
ated.7 Many newly formed ATCs comprise fewer former municipalities
than planned. Most ATCs, moreover, are not formed in accordance with
the prospective plans that were developed by the regional authorities. It is

4
 See “Petro Poroshenko: Detsentralizatsiya stala odnieiu z nayuspishnishykh,
nayrezul′tatyvnishykh reform” [Decentralization became one of most successful reforms,
reforms with best results,” December 4, 2017, https://prm.ua/petro-poroshenko-detsen-
tralizatsiya-stala-odniyeyu-z-nayuspishnishih-nayrezultativnishih-reform/.
5
 E.g. Ministry of Regional Development, Detsentralizatsiya. Vykonannya dokhodiv mist-
sevykh byudzhetiv za 10 mesiatsiv 2016 roku [Decentralization. Execution of the revenue of
local budgets during the first 10 months of 2016], http://old.decentralization.gov.ua/pics/
attachments/MinReg_December-mini_(DRUK).pdf.
6
 By the end of 2019, the number of newly formed ATCs had increased to 995.
7
 Calculations made on the basis of data from https://gromada.info/.
264  M. BADER

not clear how the process of ATC formation will be completed. In some
regions, such as the Bessarabia region of Odesa Oblast, there seems to be
little appetite for ATC formation. In other regions, ATCs have formed but
many municipalities have been left out. Provisions for municipalities to
join already formed ATCs are in place, but there are relatively few places
where this has happened. There has been widespread speculation that at
some point “remaining” municipalities would be forcibly joined to already
existing ATCs, but it is not clear how this would be done.
There are a number of explanations why more ATCs have not yet been
formed, and why the ATCs that have been formed comprise relatively few
former municipalities. The most common explanation offered is that
stakeholders at different levels, from municipalities to the national legisla-
ture, resist the formation of ATCs. Municipality heads and members of the
executive committees of municipalities which would be located outside
the center of a prospective ATC are in many cases likely to lose their posi-
tions; hence, they are often reluctant to join an ATC. Municipality heads
whose settlement is in the center of a prospective ATC face the likelihood
of having to compete in and win an election to become the head of the
new ATC, so they, too, have an incentive to hold back ATC formation.
District authorities, in their turn, face an uncertain future because of the
decentralization reform. When ATCs are formed, substantial powers and
resources are devolved from the districts to the ATCs. After the first track
of the reform is finally implemented, the number of districts will be
reduced, and district heads, members of the executive staff in the districts,
and members of district legislatures may lose their positions. Thus in many
regions they seek to block ATC formation or to lobby for the formation
of ATCs whose borders coincide with those of currently existing districts.
Yet other actors with strong motives to resist ATC formation are lawmak-
ers in regional legislatures and the Verkhovna Rada, because they may fear
losing influence over their districts (constituencies).8
Another problem generated by decentralization is new tensions in local
communities arising from decentralization processes (e.g. Diprose and
Ukiwo 2008). There are many instances where ATC formation has sparked
8
Elena Dospekhova, “Anatolyi Tkachuk: Vtoraya volna dobrovol′nogo ob′ edineniya

obshchin nachnyotsya vo vtorom polugodii 2016 g., nezavisimo ot togo, kho-
chet etogo politikum ili net.” [Anatolyi Tkachuk: Second wave of communities’ vol-
untary amalgamation will start in the second half of 2016, independent of whether
politicians want it or not], June 5, 2016, http://www.dsnews.ua/temy_nomerov/
anatoliy-tkachuk-vtoraya-volna-dobrovolnogo-obedineniya-05062016212800.
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  265

a conflict among residents of municipality, between residents of different


municipalities, and between residents of municipalities and higher-level
authorities. Such conflicts come about because the formation of an ATC
can go ahead despite resistance from a significant part of the population of
affected municipalities. Although there is a fixed set of procedures through
which municipalities have to pass, including the conducting of public
hearings, the decision to join an ATC ultimately requires a mere simple
majority vote in the municipality council. Where a council is split between
those for and against ATC formation, or where residents are opposed to
ATC formation, conflicts may arise. ATC formation has proved especially
difficult in areas with an ethnically diverse population, such as Bessarabia
and parts of Zakarpattya. It is likely that in the coming years regional
authorities will increasingly push municipalities to undertake ATC forma-
tion, meaning that the decentralization reform could upset the delicate
balance of peaceful relations in some areas, instigating conflicts in the local
population or between citizens and local authorities.

II. Decentralization and Democracy
On the face of it, decentralization reform in Ukraine should strengthen
local democracy. Before decentralization reform, unelected politicians,
especially governors and district heads, had great influence over munici-
palities. As a result of the decentralization reform, directly elected ATC
heads and ATC councils gain power and influence, and can be held more
directly accountable by ATC residents. This is one of a number of reasons
why decentralization, on average, is conducive to democratization. Most
of the positive arguments revolve around participation (Blair 1998; Crook
and Manor 1998). Decentralization creates incentives to run for public
office because elected officials and politicians now have greater powers.
Decentralization stimulates voting because voters now have the opportu-
nity to interact more directly with elected representatives about issues that
are familiar to them and, moreover, address a level of government that is
physically and mentally closer to them (Azfar et al. 2001; Seddon 2002,
15–18). Participation in democracy is often viewed as intrinsically desir-
able and is associated with desirable outcomes (Meinzen-Dick and Knox
1999, 5). Increased participation includes that of minority groups who
previously may have been under-represented or disenfranchised. The
increased participation of minorities may help repair historical injustices,
improve democratic representation, and decrease the potential for local
conflict (Diamond and Tsalik 1999).
266  M. BADER

Increased participation also strengthens elements of a civic culture,


including social capital and interpersonal trust, which are beneficial to the
quality of democracy (De Mello 2004). A further benefit of increased
participation lies in its contribution to political education and leadership
recruitment. Through participation in local politics, citizens gain a greater
understanding of democratic processes and are prepared to participate in
these processes at higher levels of government. Local politics in that sense
is a training ground for potential future leaders. Local politicians, who
prove especially adept, can, for instance, be recruited by central govern-
ment or political parties to work in the central state administration or
compete in national elections (Blair 1998; Brinkerhoff and Azfar 2006).
In addition to increasing political participation, decentralization is
widely considered to make local government more accountable and
responsive (Conyers 2000; Webster 1993, 129). To understand why local
government becomes more accountable as a result of decentralization, it
is useful to invoke the image of a free market, in which citizens purchase
good governance and local administrations sell good governance. At the
local level, administrations are better able to signal to voters what they
have to offer, and citizens are better able to signal what they want. Citizens
who are unhappy with their purchase can choose to switch to different
service-providers by voting local politicians out of office (Blair 1998, 7).
In order to avoid being voted out of office, local politicians have to be
responsive to voters’ preferences. Thus, they should become more respon-
sive to the needs of citizens because they will tend to have better insight
into those needs than politicians with less proximity to their constituents
(Seddon 2002). When local government is more responsive to the needs
and preferences of citizens, the quality and efficiency of services it provides
tend to improve. Decentralization, therefore, is also associated with
higher-quality governance (Ostrom et al. 1993).
While decentralization may be a boon to participation, accountability,
and responsiveness, this is far from certain to occur in practice. The main
risk of decentralization undermining rather than strengthening democracy
is local elites exploiting decentralization reform to further their personal
interests at the expense of the public good (Bardhan 1997; Brinkerhoff
and Azfar 2006; Crook and Manor 1998; Migdal 1998). When local gov-
ernments in places with a weak democratic culture acquire more power as
a result of decentralization, the reform may result in the entrenchment of
existing networks of vested interests. The corruption and patronage held
in place by those networks inhibits responsive, accountable government,
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  267

thereby decreasing the quality of governance (Brinkerhoff and Goldsmith


2004; Migdal 1998). In addition, minorities may be poorly protected
against the powerful if the latter are not monitored by higher-­level author-
ities (Bardhan and Mookherjee 2000, 135).
There is substantial empirical evidence supporting this more somber
view of decentralization. A study of fiscal federalism in Uganda, for
instance, finds that optimistic expectations of the benefits of decentraliza-
tion were dashed, and that local governments were instead captured by
elites (Azfar and Livingston 2002). Other studies on decentralization in
Africa similarly conclude that decentralization did not break the power of
local elites who were unresponsive to the general interest (Crook 2003),
and that local leaders turned out to be no more accountable to the local
population than representatives of higher-level authorities (Ribot 2002).
The main explanation offered in the academic literature as to why decen-
tralization often leads to local elite capture rather than increased participa-
tion and accountability points to specific features of local government.
Local levels of government in democratic countries tend to lack many of
the institutional checks and balances that operate at the national level.
Elites at the local level, consequently, have greater opportunities to abuse
power (Bardhan 2002). In large part, this is a matter of economy of scale.
While in democratic states there is often a diverse landscape of media
reporting on national affairs, there are, typically, fewer media outlets
engaged in critical reporting at the local level. Similarly, local politics is
often less pluralist than national politics because there are fewer political
forces present at the local level. In the absence of political pluralism and
press scrutiny, abuse of power is more likely to go unchecked, and long-­
standing practices of elite collusion are more likely to persist (Cammack
et al. 2007). In local communities, people are also more often connected
through kinship and other personal relations, or are employed in one or
only a small number of enterprises. Where this is the case, there is a bigger
chance that elections are characterized by clientelism and intimidation,
and that patronage becomes a stable feature of government (Brinkerhoff
and Goldsmith 2004). To the extent that there is greater participation
in local politics when government is decentralized, this can be a result of
clientelist mobilization rather than vigorous political pluralism
(Hetland 2008).
Even in cases where decentralization generally contributes to a greater
accountability and citizen participation, authoritarian enclaves may still
exist in some areas. Conversely, even in the most inhospitable
268  M. BADER

environments for democracy, it is not inevitable that elites will capture


local government. It is, in other words, unlikely that decentralization will
have similar political consequences across all local communities: political
practices and governance practices vary widely both in most democracies
and in most autocracies (Hutchcroft 2001). Whether decentralization
leads to greater participation and accountability or to local elite capture
depends on a range of factors, including levels of inequality within com-
munities, local state capacity, and political traditions (Bardhan 2002).

III. The Risk of Local Elite Capture


During the years since the Euromaidan Revolution, Ukraine has been a
flawed democracy in which neo-patrimonialism has remained an organiz-
ing principle in politics and public administration (Fisun 2015). In
Ukraine, politics at the local level is in some ways a microcosm of national
politics. As in national politics, wealthy individuals at the local level attempt
to influence political processes by capturing elements of the state. Aided
by the small size of many communities, informal and corrupt practices
in local government are common. And in the absence of national political
forces, alliances in local politics tend to change quickly and often. There is
great diversity in local government. Many municipalities feature a healthy
degree of political pluralism, citizen participation, and accountability
through elections and functioning checks and balances. There are also
municipalities, however, that can fairly be described as fiefdoms because
the municipality head, or a “clan,” rules without much opposition or
accountability.9 In practice most municipalities in Ukraine represent nei-
ther model democracies nor outright fiefdoms, but are in a grey zone
where pluralism and accountability are lacking to various degrees.
A structural problem of local government in Ukraine is the lack of an
effective separation of powers.10 Municipality heads and members of the
municipality council are elected in simultaneous elections. Following the
election, the municipality head issues proposals regarding a composition

9
 An example is the Zarichansk village in the Zakarpattya Oblast, which, according to one
account, “reminds one of a separate principality which exists outside the democratic state and
acts according to its own laws” under its autocratic village head. See Mila Serheeva, “Sil′rada
chi udil′ne kniazivstvo” [Council of the village or the local principality], August 5, 2010,
http://archive.mistovechirne.in.ua/content/archive/989-2010-08-05-08-04-19.
10
 Executive–legislative relations on self-government are determined through the 1997
Law of Ukraine “On Local Self-Government in Ukraine.”
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  269

of the municipality’s executive committee, which are approved or rejected


by the municipality council. The municipality head personally chairs the
executive committee and in addition organizes the work of the municipal-
ity council and presides over its meetings. These executive–legislative rela-
tions, which are still largely based on the Soviet model of local government,
remain unchanged as a result of current decentralization reform. Translated
into national politics, executive–legislative relations in  local government
would be characterized as resembling those of presidential rule, with con-
comitant perils of personalization of politics and a winner-take-all mental-
ity. The problem of a true lack of separation of powers in local government
in Ukraine is compounded by shortcomings typical of government at a
small scale, such as a lack of press scrutiny and the prevalence of patron–
client relations and clientelism.
In addition to the provisions of the 1997 Law on Local Self-Government,
there are other explanations for the lack of separation of powers in
Ukraine’s local government. One explanation that is relevant here is the
use of the majoritarian principle in most elections for municipal councils.
Of the 662 ATCs that formed by the end of 2017, 583 are comprised of
villages (sela) or centered on a town (selishche). While elections to munici-
pal councils in cities use a proportional formula, council members in other
municipalities are elected from single-member districts with often just a
few hundred registered voters. A great majority of council members in vil-
lages and towns do not represent political parties but instead run as self-­
nominated candidates.11 Council members without a political party
affiliation are likely to be more susceptible to manipulation or control by
powerful individuals.
A related explanation for the poor quality of democracy at the local
level is the existence of often sharp horizontal inequalities in local com-
munities. Comparatively wealthy entrepreneurs, or local “oligarchs,” often
seek to control local politics by running for public office themselves or
through controlling those already in office. Members of a municipal coun-
cil who are controlled by outsiders are commonly referred to as “pocket
deputies.” Through their control of members of the executive committee,
including the municipality head or members of the municipal council,
powerful local “oligarchs” can succeed in capturing elements of local gov-
ernment, and in extreme cases turn a municipality into a personal fiefdom.

11
 The affiliation of candidates in the local legislative council elections of 2015 and 2016
can be consulted on the website of the Central Election Commission: http://www.cvk.gov.
ua/pls/vm2015/wm001.
270  M. BADER

Altogether, a substantial share of municipalities across Ukraine do not


have a political culture in which representative institutions are commonly
held accountable. These municipalities also lack an organized civil society
with the capacity to influence a decision-making and hold local govern-
ment to account. As one analyst has noted, “[a]n active, responsible, criti-
cally thinking community, which truly holds the authorities accountable,
has yet to be formed” (Avksent′ev 2017c). Granting a greater degree of
self-government to municipalities with serious flaws in their exercise of
democracy may exacerbate the existing problems of local government in
Ukraine, with negative consequences for its citizens. In the remainder of
this section we outline why it is likely that some degree of local elite cap-
ture is common in many newly formed ATCs.

1. Elite-driven Amalgamation
The formation of an ATC is supposed to follow a number of fixed, manda-
tory steps, including the organization of public hearings in all municipali-
ties that will unite in the prospective ATC, a vote in the relevant municipality
councils, an elaboration of plans by a working group for the formation of
the ATC, and a decision by regional authorities on whether the formation
of an ATC meets legal requirements. A crucial element in ATC formation
is that the process must be voluntary: the municipality councils of all
involved municipalities must agree to the amalgamation, which, more-
over, should take place free of coercion by external forces. The initiative
for the formation of an ATC, according to the law, must come from within
one of the municipalities of the future ATC. Four different entities can act
as an initiator of the process: a municipality head, at least one-third of
members of the municipality council, a group of citizens through the
launch of a “local initiative,” and existing bodies of self-organization.12
According to one study, an initiative for ATC formation was taken in three
out of four cases by the head of the municipality which sought to become
the center of the newly formed ATC (Krupnik et al. 2016). This finding
has been corroborated by our interviews in twenty ATCs in Odesa and
Kharkiv regions.
ATC formation, consequently, often does not so much result from
communities coming together and agreeing through a deliberative

12
 See article 5 of the Law of Ukraine “On Voluntary Amalgamation of Territorial
Communities,” Vidomosti Verkhovnoi Rady, 2015, no. 13
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  271

process that they need to join forces, but from the considerations of elite
actors.13 These can be local elite actors, such as a municipality head and
colleagues in the executive committee of the municipality, or local “oli-
garchs” or politicians and officials from higher-level authorities.
Municipality heads in numerous cases have been accused of pushing
through ATC formation to advance their personal ambition. The mayor of
Irpin in Kyiv Oblast, for instance, has been criticized for aiming to “expand
his dominion” to a range of surrounding villages.14 The head of Polyana
municipality in Zakarpattya Oblast, similarly, has been accused of seeking,
through the formation of a large ATC, to “realize his life-long dream of
being a high-ranking official with unlimited powers.”15 There are also alle-
gations that some ATCs have been formed in the interests of large land-
owners or agricultural enterprises. One analyst, for example, claims that
“in the meantime the ATCs transform into organized crime groups,
headed by some type of a large landowner of agricultural magnate with a
deputy’s mandate in his pocket or with an affiliation to the executive
authorities” (Pozhyvanov 2017). An alleged example of such a “feudal
estate” controlled by the owners of an agricultural enterprise is Khrestovska
ATC in Kherson Oblast, where the ATC head and 15 out of 22 members
of the ATC council are affiliated with the biggest agricultural enterprise of
the ATC (Kopyt′ko 2017). Another type of actor involved in ATC forma-
tion is a member of a regional council and of the national parliament.
Examples of Verkhovna Rada members who allegedly have a defining vote
over ATC formation in their respective districts are Bohdan Dubnevych,
the “unofficial ruler” of Pustomytsivskiy district in Lviv oblast, and his
brother Yaroslav Dubnevych, whose district, Sambir, is also in Lviv oblast.16

13
 E.g. “Dve storony detsentralizatsii v Ukraine” [Two sides of decentralization in
Ukraine], June 30, 2017, http://hvylya.net/analytics/politics/dve-storonyi-detsentralizat-
sii-v-ukraine.html.
14
 “Stalo vidomo, yak mer Irpenia Karpliuk khoche rozshyryty svoi volodinnia do
Zhytomyrskoi trasy” [It becomes known how the mayor of Irpin Karpliuk wants to
broaden his land up to Zhytomyr road”], February 26, 2017, http://mykyivregion.com.
ua/2017/02/26/stali-vidomo-yak-mer-irpenya-karplyuk-hoche-rozshiriti-svoyi-volodin-
nya-do-zhitomirskoyi-trasi/.
15
 “Ob′ ednana terirotorial′na hromada chy Polianc′ ka huberniia (Lyst u reda-
ktsiiu)” [Amalgamated territorial community or Polianc′ka province, Letter
to the editorial office], September 13, 2016, from: https://zakarpattya.net/
Обєднана-територіальна-громада-чи-П/.
16
 “Lial′kovodstvo Dubnevychiv ta parad samovysuvantsiv: vybory u 8 OTG L′vivshchyny
29 zhovtnia” [Puppeteer Dubnevychiv and the parade of self-nominated: elections in eight
272  M. BADER

Regional councils have the authority to ratify ATC formation, and they are
expected to use this authority to prevent the formation of ATCs which are
clearly unviable, or in cases where procedures for ATC formation have not
been followed. Yuriy Hanushchak, one of the country’s main experts on
decentralization, argues that members of regional parliaments often abuse
this authority by increasing their control over prospective ATCs in their
own electoral district.17
As noted, ATCs are supposed to be formed according to a “prospective
plan” that is developed by the regional authorities. When they take into
account the interests of powerful stakeholders at the regional level, the
prospective plans themselves may turn out to be an outcome of “elite
games.” Otherwise, and preferably, the prospective plans can play an
important role in preventing the formation of ATCs that are guided by the
interests of municipality heads or other powerful local actors. In fact, how-
ever, most ATCs are not formed in accordance with prospective plans. Of
the 25 ATCs that were formed in Odesa Oblast up to the end of 2017,
only six followed the region’s prospective plan (Zatishanska, Tsebrivska,
Znamenska, Novokalchevska, Rozkvitinska, and Tairovska ATCs).18 Of
the twelve ATCs that had formed in Kharkiv Oblast by the end of 2017,
only two were in accordance with the region’s prospective plan. The first
of these is Rohanska ATC, in which a small rural municipality has been
amalgamated with the city of Rohan, just outside Kharkiv. In the case of
Kolomatska ATC, the second ATC in Kharkiv Oblast to follow the pro-
spective plan, the ATC comprised all of Kolomatsksa district.19
Considering that for many newly formed ATCs the process of ATC
formation has been driven by elite interests, and has proceeded without
the explicit consent of local residents, it is clear that the process risks being
tainted by conflict. This is even more visible in cases where newly formed
ATCs display a clear asymmetry between settlements in the ATC in terms

ATCs of Lviv region on October 29], October 8, 2017, http://varta.com.ua/news/


ukraine/1143485.
17
 “Formirovanie territoryy gromad: nel′zya dat′ oblsovetam sozdavat′ votchiny—ekspert”
[The formation of communities’ territory: oblast councils shall not be allowed to create
principalities,” February 9, 2018, https://www.ukrinform.ru/rubric-regions/2400149-
formirovanie-territorij-gromad-nelza-dat-oblsovetam-sozdavat-votciny-ekspert.html.
18
 The prospective plan of Odesa Oblast can be consulted at: http://ofis.odessa.gov.ua/
wp-content/uploads/2016/04/protokol-10.pdf.
19
 The prospective plan of Kharkiv Oblast can be consulted at: http://old.kharkivoda.gov.
ua/uk/article/static/id/802.
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  273

of size or resources (Asotsiatsiya Spriyannya Samoorhanizatsii Naselennya


2016). Villages that previously were the central settlement of a municipal-
ity had a municipality head, executive committee, and village council. In
the new situation, where they are now on the periphery of a newly formed
ATC, the residents of such villages elect a number of representatives to the
ATC council and a chief (starosta), who is supposed to represent the vil-
lage’s interests in the ATC executive committee. While this may not be a
nationwide phenomenon, there are many reports of residents of settle-
ments that find themselves outside the center of a newly formed ATC
claiming that their interests are being ignored to the benefit of the central
settlement.20

2. Entrenched Leaders
Municipality heads from settlements which are unlikely to become a cen-
ter of an ATC often resist the amalgamation of their settlement. By con-
trast, ATC formation is generally seen as attractive by municipality heads
from settlements which, according to the ATC formation plan, are to
become centrally positioned. These municipality heads, however, still have
to compete in the first ATC election in order to retain (and expand) their
power. We should expect, therefore, that primarily municipality heads who
are confident of electoral victory, take the initiative or support the initia-
tive for ATC formation. Indeed, the overwhelming majority of heads of
newly formed ATCs are former heads of the central municipality of the
new ATC: this is the case in 71 out of 89 city ATCs (80 percent), 148 out
of 196 town ATCs (76 percent), and 292 out of 377 village ATCs (77
percent).21 These high percentages are remarkable: after all, the ATCs are
new administrative entities, and anyone, including the former heads of the
municipalities outside the center of the ATC, can compete in the ATC
elections. Altogether 511 ATC heads out of 662 (77 percent) are the for-
mer heads of the central municipality of the ATC. Of the remaining 151

20
 E.g. “Detsentralizatsiia na Kharkovshchine: tsel′ opravdyvaet sredstva?” [Decentralization
at Kharkiv region: End justifies the means], July 14, 2017, http://insidernews.info/decen-
tralizaciya-na-xarkovshhine-cel-opravdyvaet-sredstva/; “U Holobs′kiy OTG—Skandal
cherez lyst z pidroblenymy pidpysamy” [In Holobs′kiy ATC there is a scandal due to a letter
with fake signatures], November 29, 2016, Retrieved from https://www.volynnews.com/
news/authority/u-holobskiy-oth-skandal-cherez-lyst-z-pidroblenymy-pidpysamy.
21
 Information about the candidates in the ATC elections can be found on the website of
Ukraine’s Central Election Commission, http://www.cvk.gov.ua.
274  M. BADER

ATC heads, 20 were previously heads of the district council in which the
ATC is located. Most of these are from districts where the borders of the
ATC coincide with that of the district, i.e. where all municipalities of the
district have been amalgamated.
In Kharkiv Oblast, ten out of the twelve heads of ATCs that had been
formed by the end of 2017 were formerly head of the central settlement
of the ATC. In Zolochivska ATC, the head of the central settlement of the
ATC (Zolochiv) lost the election to the head of the district council, Leonid
Kanivets, who was helped by the fact that only one-third of voters in
Zolochivska ATC live in Zolochiv (Avksent′ev 2017a). In Starosaltivska
ATC, the head of the central settlement of the ATC had been in his posi-
tion only since 2015, and lost to Eduard Konovalov, who was supported
by the regional administration and a powerful local figure and member of
the regional council (Zelenina 2017). Many of the ATC heads have served
as head of the central settlement of the ATC for a long time. Extreme
examples include Fedir Shevchenko, mayor of Rohan (now part of
Rohanska ATC) who has served since 1980, and Mykola Maydebura, vil-
lage head of Krasnosilka (now part of Krasnosilska ATC) who has served
since 1986.
A long tenure for municipality heads is common in Ukraine. Unlike the
president, who can serve only two consecutive terms, there are no term
limits for municipality heads in Ukraine. The lack of term limits allows
municipality heads to cement their position in power, thereby increasing
the likelihood of reelection. Many municipality heads in Ukraine are
entrenched: benefitting from the lack of effective separation of powers in
many municipalities, they have built patronage networks over time and
now face minimal opposition. Reflecting this lack of political competition,
elections for the head of the ATC in many new amalgamations have fea-
tured only the minimum number of candidates (two), with the second
candidate fulfilling merely a nominal role. In Zachepylivska ATC in
Kharkiv Oblast, for instance, the former municipality head of Zachepylivka,
Yuri Kryvenko, won the elections against his single opponent with a 54
percent margin of victory. Hennadyy Zahoruyko, head of Oskilska ATC,
also in Kharkiv oblast, was re-elected municipality head of Chervonyy
Oskil in 2015 in an elections in which he was the sole candidate. In the
2017 ATC head elections, he faced off against one candidate, winning 81
percent of the vote, according to official results.
In part because of the lack of serious competition in many ATC elec-
tions, turnout tends to be low. In Novovodolazska ATC (Kharkiv Oblast),
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  275

for instance, the current ATC head Oleksandr Esin won 81 percent of the
vote, but on a turnout of only 27 percent. The 2016 elections in
Merefyanska ATC (Kharkiv Oblast) featured eleven candidates, but the
incumbent mayor of Merefa won with a 48 percent margin on a turnout
of 30 percent. Elections in a minority of newly formed ATCs have, on the
other hand, been highly competitive. Some particularly competitive ATC
elections have been marred by allegations of fraud. In Shabska ATC in
Odesa Oblast, the elections, won (by a 4 percent margin) by the former
head of a municipality that became part of the ATC, was surrounded by
allegations of vote-buying.22 In the highly competitive and contentious
elections in Tairovska ATC (Odesa Oblast), people were allegedly brought
in from outside the ATC to vote for one of the candidates.23
In sum, the formation of ATCs, rather than bringing change to the
personnel composition of local government in Ukraine, has in most cases
entrenched incumbent authorities, and in particular the former municipal-
ity heads, who have repositioned themselves as ATC heads. These ATC
heads have often built up patronage networks and so face little opposition.
In many cases they are themselves part of patronage networks headed by
politicians and officials at higher levels of government. The previously
mentioned Dubnevych brothers, who had been members of the Petro
Poroshenko Bloc (BPP) faction in the Verkhovna Rada until 2019, for
instance, wield control over two districts in Lviv Oblast through their ties
with local politicians. Patronage networks are also fostered by political
parties. The political force affiliated with President Poroshenko in some
regions in particular, including Kharkiv Oblast, has co-opted municipality
heads into the party. Through these forms of patronage, the heads of the
newly formed ATCs further strengthen their position, and political plural-
ism at the local level is further undermined.

22
 “Na Odeshchinyni holosami vybortsiv torhuyut′ u mahazinakh” [In Odesa region peo-
ple’s votes are traded in shops], October 27, 2017, http://podrobnosti.ua/2207161-na-
odeschin-golosami-vibortsv-torgujut-u-magazinah-vdeo.html.
23
 “Vyboroy v Tairovskiy OTG: psevdovybortsi ta vydalennia z dit′nytsi kandi-
data i sposterihacha” [Elections in Tairovskiy ATC: Fake voters and the removal
of a candidate and observer from the polling station], December 24, 2017,
https://izbirkom.org.ua/news/vybor y-2016-26/2017/vibori-v-tayirovskii-otg-
psevdovibortsi-ta-vidalennia-z-dilnitsi-kandidata-i-sposterigacha.
276  M. BADER

3. Lacking Pluralism
There is a limited degree of pluralism in the politics of most ATCs, espe-
cially in those that are centered on a town or a village (as opposed to
ATCs in cities). This has in part to do with the type of people who par-
ticipate in the ATC council elections as candidates. Candidates in local
elections in Ukraine are often recruited from among those whose salaries
are paid by the local government, such as schoolteachers, doctors, and
communal service workers. Considering that the local authorities man-
age the finances of local state institutions, ATC council members tend to
be loyal to the municipal authorities. They also disproportionately often
represent the same political force as the ATC head. In Kharkiv Oblast,
for example, in eight of the twelve ATCs that had formed by the end of
2017, a majority of council members represented the same political party
as the ATC head. In ten ATCs in Kharkiv Oblast, the ATC head had
been co-opted by President Poroshenko’s political force, BPP (Avksent′ev
2017b). While it is extremely common in Ukraine for local council
members not to be a member of a political party and run on a non-par-
tisan ticket, in eight of the ten ATCs with an ATC head co-opted by BPP
(Kolomatska, Malodanylivska, Oskilska, Natalinska, Novovodolazska,
Malynivska, Zachepilovska, Zolochivska ATCs), the majority of, and in
some cases almost all council members represent BPP. In the two remain-
ing ATCs (Rohanska and Starosaltivska ATCs), BPP representatives con-
stitute a plurality of council members. There are two ATCs in the region
whose heads have not been co-opted by BPP: in Merefyanska ATC, the
ATC head represents the Vidrodzhennia party, as do a plurality of coun-
cil members; in Chkalovska ATC, the ATC head ran as an independent
candidate, and all but four of the council members were elected on a
non-partisan ticket.
The fact that the political affiliation of council members so often paral-
lels that of the ATC head cannot be explained by historical trajectories, as
both BPP and Vidrodzhennia are recent creations. It is more likely that
candidates for ATC councils follow the example of the prospective ATC
head. The consequence of this, of course, is that, at least formally, there is
little political opposition within the ATC council to act as a counterweight
to the ATC head and the executive committee. In interviews with council
members in a range of ATCs in Kharkiv Oblast and Odesa Oblast, they
confirmed that there was no sustained opposition faction within the
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  277

council. The consequent collegial mode of operation of their ATC council


was generally assessed by them as a positive.24
A factor which contributes to the lack of political pluralism in many
ATCs is their small size. As noted in section “Decentralization and
Democracy”, in small communities people are often connected through
kinship and other personal relations or employed in one or only a small
number of enterprises. Where this is the case, candidates for council elec-
tions are more likely to be recruited through patron–client relations, and
national political parties may find it hard to gain a foothold in local com-
munities. Together, these circumstances work against pluralism.
Early prognoses of decentralization reform envisioned that, upon its
completion, there would be around 1,500 ATCs.25 As there were close to
12,000 municipalities before the start of decentralization reform, this
means that the average ATC should comprise some eight former munici-
palities. Of the 662 ATCS that had formed by the end of 2017, most were
significantly smaller. Table 9.1 shows, for the three types of ATCs (city,
town, and village), the number of former municipalities per ATC.
The average number of former municipalities per ATC, at 4.7, is well
below the expected figure of eight. The median value of number of former
municipalities per ATC is five for city ATCs, four for town ATCs, and
three for village ATCs. Moreover. Table  9.1 shows that there are many

Table 9.1  The number of former municipalities in newly formed ATCsa


Number of municipalities per ATC

2 (%) 3 (%) 4 (%) 5 (%) 6 (%) 7 (%) 8 (%) 9 (%) 10 or


more (%)

City (misto) (N = 89) 19 17 4 12 6 7 4 3 27


Town (selishche) 23 22 10 10 8 7 4 3 14
(N = 195)
Village (selo) 36 23 18 11 6 2 1 1 2
(N = 376)

Quantitative data on all ATCs were retrieved from https://gromada.info/


a

24
 Interviews with ATC heads, other executive committee members, and council members
in Konoplyane ATC, Krasnosilska ATC, Marazliivka ATC, Rozkvit ATC, Velyka Mykhaylivka
ATC, Rohan′ ATC, Nova Vodolaha ATC, and Staryi Saltiv ATC.
25
 Yurii Hanushchak, one of the main experts on decentralization in Ukraine, for instance,
drafted a model of ATC creation according to which 1,408 ATCs would be formed. See
http://despro.org.ua/media/articles/dodatok1.pdf.
278  M. BADER

ATCs comprising only two former municipalities, giving the impression


that in many cases only the minimum requirement was fulfilled for ATC
formation. The 662 ATCs that had been formed by the end of 2017 had
a total number of some 6.3 million residents, or 9,366 on average. The
average number of residents was 19,894 residents for city ATCs, 10,892
for town ATCs, and 6,233 for village ATCs. There are many town and
village ATCs that are so small that they are unlikely to form a pluralistic
political community.

Conclusion
Since the start of decentralization reform, the Ukrainian media have fea-
tured many positive reports on its effects, highlighting in most cases the
increased budgets of local communities and their greater financial auton-
omy. While these are real and important accomplishments, decentraliza-
tion reform has also been accompanied by its fair share of failures and
drawbacks. The adoption of constitutional amendments which would pro-
vide a comprehensive overhaul of subnational government has been
delayed. ATC formation has been slower in many regions than anticipated,
and the ATCs that have formed generally incorporate fewer municipalities
than envisioned. In a significant number of places, conflicts have arisen
among municipality residents and between municipality residents and
authorities at different levels. The implementation of ATC creation, finally,
has provided opportunities for local elite capture.
In a romantic view of ATC creation, citizens come together to decide,
through a deliberative process, for or against the amalgamation of their
municipality with others. In reality, the formation of ATCs has predomi-
nantly been driven by elites. In most cases, these have been incumbent
municipality heads who have either acted autonomously and repositioned
themselves as a head of a newly formed ATC, or acted in tandem with
other powerful actors such as wealthy businesspeople or politicians at
higher levels of government. Rather than bringing change to the person-
nel composition of local government in Ukraine, ATC formation has in
most cases entrenched those already in positions of authority. The old–
new ATC heads and their clients have often built up patronage networks
over time, as a result of which they now face little opposition. This is
apparent in the lack of competition in many of the elections for ATC head,
and in the lack of political pluralism among ATC council members.
9  DECENTRALIZATION AND A RISK OF LOCAL ELITE CAPTURE…  279

Local elite capture often undermines the legitimacy of local govern-


ment and reduces the quality of governance at the local level in Ukraine.
Now that entrenched and often unaccountable municipal authorities con-
trol bigger budgets and have greater powers, the problems related to local
elite capture in Ukraine may grow. Experts on decentralization in Ukraine
agree that some degree of oversight over the process is necessary. As one
analyst has hyperbolically stated, “without control by the state, decentral-
ization may transform into feudalization” (Levchenko 2017). Another
analyst has argued that one ministry should have monitored and guided
the implementation of the reform, as has been the case in other countries
(Tkachuk 2017). One measure which may yet mitigate the problem of
local elite capture is the appointment of prefects as foreseen by the pack-
age of constitutional amendments of the first track of decentralization.
Prefects, once operational, may execute state oversight over local self-­
government bodies and, where the constitution or other laws are violated,
suspend the decisions of local councils. For the prefects or a similar institu-
tion to start becoming operational, however, the parliament of Ukraine
has to finally move ahead with adopting the necessary constitutional
amendments.

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CHAPTER 10

Signs of Progress: Local Democracy


Developments in Ukrainian Cities

Aadne Aasland and Oleksii Lyska

Introduction
The effective functioning of local self-government is considered a key fac-
tor of democracy (Melo and Baiocchi 2006). From the breakup of the
Soviet Union in 1991 and until the so-called Euromaidan revolution in
2013–2014, when the infamous Yanukovych regime fell, Ukrainian
authorities were not eager to do away with the centralized governance
structure inherited from the Soviet period. The political color of the gov-
ernment or the president was hardly significant: Those in power did noth-
ing or very little to decentralize. Power was further recentralized when

This chapter has benefited from financial support from the Ministry of Foreign
Affairs of Norway and the Research Council of Norway (NORRUSS Plus
program, project no. 287620).

A. Aasland (*)
OsloMet – Oslo Metropolitan University, Oslo, Norway
e-mail: [email protected]
O. Lyska
Independent Researcher, Kharkiv, Ukraine

© The Author(s) 2020 283


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_10
284  A. AASLAND AND O. LYSKA

Yanukovych took office in 2010, when important responsibilities were


transferred back from regions (oblasti) and districts (rayony) to central
ministries (Jarábik and Yesmukhanova 2017).
However, after the Maidan popular uprising and demands for democ-
ratization, the new authorities responded by introducing more fundamen-
tal decentralization reforms (Chaisty and Whitefield 2017). The reform
was also meant to be a tool to mitigate the conflict in Donbas and restrict
the expressions of separatism. Instead of a federal model, which, it was
feared, could lead to demands for enhanced regional autonomy and pos-
sibly further disintegration, the authorities instead have chosen a model
where power and resources are being transferred to the local, municipal
level. Simultaneously, in the new set-up the relative influence of oblasti
and rayony is being reduced (Levitas and Djikic 2017).
For proper local democracy to develop, however, it is not enough that
meaningful authority is devolved to local units of governance. A condition
for a good local democracy is that the local authorities1 (hereafter LAs) are
accessible and accountable to the local citizenry (Blair 2000). This requires
active citizens who make their voices heard, as well as LAs that are respon-
sive to citizens’ concerns. Such interaction between citizen participation in
political processes at the local level, and the perceived responsiveness of
LAs toward their concerns, is the topic of this chapter.
A nationwide local democracy survey carried out in 20 Ukrainian cities
in the summer of 2014 found that people in general had a rather negative
perception of the responsiveness of their local authorities. Also, the survey
showed relatively low levels of activity among ordinary Ukrainian citizens,
in terms of their political involvement, participation in civil society organi-
zations, or perceived influence on local politics. Differences between indi-
vidual cities, however, were striking: some cities displayed much better
quality of interaction between citizens and local authorities than others
(Aasland and Lyska 2016).
Since that survey was conducted, a long awaited decentralization
reform was initiated. Its implementation has not been straightforward,
however. So far, the reform has been deprived of a proper legal
foundation, since the inclusion of controversial provisions from the Minsk

1
 Since members of the public are not always able to distinguish between appointed offi-
cials of local self-government bodies and elected council members at the local level, in this
chapter (and in the two surveys that the chapter builds on) we do not make a strict distinc-
tion between them. We use the concept of Local Authorities (LA) to combine the two.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  285

Agreements about the special status of Donetsk and Luhansk has resulted
in a failure to pass the necessary amendments to the Constitution. Thus,
the reform is still precarious and can be changed or revoked by a simple
majority in parliament. Strong regional elites are fighting to preserve their
power status and trying to influence reform outcomes. In addition, more
poorly developed areas with low levels of income from taxes have so far
seen few benefits from the reform (Aasland and Larsen 2018).
On the other hand, municipalities can now keep much more of the tax
income generated in their territory and are also in a position where they
have much more autonomy over their budgets. Thus, a preliminary ver-
dict by both national and international experts is that decentralization is
among the more successful reforms undertaken in Ukraine since the
Maidan revolution (Makarenko 2017). Ukrainian cities of oblast signifi-
cance are said to be the greatest beneficiaries of the reform process (Levitas
and Djikic 2017, 3).
It is probably too early to assess the effects of the ongoing decentraliza-
tion reform on the quality of local democracy. In addition, citizens’ percep-
tion of local democracy is also influenced by several other factors, such as
developments in living conditions, the fight against corruption, the rule of
law, and the interaction with national politics. Still, we believe it is worth-
while to examine how people perceive whether and how local democracy
has developed in the period from the turbulent time just after the Maidan
revolution to the present. Do people recognize progress compared to the
rather bleak picture revealed by the 2014 survey? Or have unfulfilled expec-
tations and, for many, no improvement in economic well-­being resulted in
a further negative trend? To provide an answer, a new survey was con-
ducted at the end of 2017 in the same cities as the 2014 survey.

I. Data and Methods
This chapter builds on results of two nation-wide opinion surveys on local
democracy carried out in July 2014 and November–December 2017
respectively.2 Professional pollsters conducted the interviews, with local

2
 The surveys were initiated by the Association of Ukrainian Cities (AUC) and orga-
nized in collaboration with the Norwegian Association of Local and Regional Authorities
(KS) and the Norwegian Institute for Urban and Regional Research at Oslo Metropolitan
University within the framework of the project “Evidence-Based Local Government Policy
Development in Ukraine,” financed by the Ministry of Foreign Affairs of Norway. The
project home page with more details on the project and links to its publication is http://
286  A. AASLAND AND O. LYSKA

interview corps throughout Ukraine.3 The data were collected in the form
of personal interviews in the respondents’ homes, using questionnaires
that could be answered in Ukrainian or in Russian. On average, an inter-
view took about 30 minutes. The data were transformed into computer-­
readable form using advanced statistical software (SPSS).
The two-stage samples were based, first, on purposeful selection of 20
Ukrainian cities, chosen to provide variation in terms of geographic loca-
tion, population size, and administrative status. The sample included the
capital, ten cities of oblast significance, and nine cities of rayon signifi-
cance. Of the latter nine cities, seven have more than 100,000 inhabitants.
Second, a total of at least 100 respondents were then interviewed in each
city. The respondents were randomly selected, but to ensure representa-
tive data we applied quotas for age and gender groups, as well as geo-
graphical distribution in the city. In total, 2,000 (in 2014) and 2,120 (in
2017) respondents were interviewed. Though not fully representative of
Ukraine as a whole, due to the large number and variation of cities as well
as the large number of respondents included, we feel confident that much
of the variation among the Ukrainian urban population has been covered.
Several identical questions were asked in a national telephone survey
among 1,074 respondents conducted by the same pollster in parallel with
the city surveys in 2017; the survey results can thus be compared to the
national average.
As in any survey, data reliability is also affected by the response rate. For
this survey, the response rate was 37 percent in 2014 and 38 percent in
2017. Overall, there is good reason to assume that the survey provides a
fairly reliable picture of how urban residents in Ukraine perceived local
governance at two different points in time. However, we cannot rule out
a certain bias for univariate distributions on key dependent variables,
although such bias is much less of an issue when examining relationships
in multivariate analyses where, as in this chapter, a variety of background
variables is controlled for (Rindfuss et al. 2015).
The collection, storage, and analysis of the survey data are based on
compliance with ethical standards and protection of the rights of the sur-
vey participants regarding voluntary participation, anonymity, and
confidentiality.

www.ks.no/fagomrader/samfunn-og-demokrati/internasjonalt-samarbeid/prosjekter/
cooperation-project-in-ukraine/.
3
 In 2014 the survey was carried out by Socio Consulting (based in Kyiv), while in 2017
OperativnaSotsiologia (Dnipro) conducted the survey.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  287

II. Perceptions of Local Authority Responsiveness:


Trust Is the Key Factor
Responsiveness presupposes that elected representatives are accountable
to the local population (Smith 2007, 105). The survey respondents were
presented a series of statements about the responsiveness of the LAs to
citizens and asked to what extent they agree with each of the statements
according to a four-point scale ranging from “Fully disagree” to “Fully
agree.” Figure 10.1 shows the average responses in the 20 surveyed cities
in respectively 2014 and 2017.
Taking into account that a neutral average for each item would have
been 2.5, the level of responsiveness of Ukrainian local authorities in 2017
as assessed by urban citizens can still be considered to be rather toward the
negative side of the scale. The most positive assessments are given for gen-
eral satisfaction with the performance of LA and for LAs’ ability to inform
citizens about relevant questions. The most negative response is given for
people’s assessment of their own ability to influence LA decisions.
Despite the rather negative picture, there are also some promising
signs. For most items we can observe slow progress over the 2014–2017
period. This is particularly the case when it comes to LAs’ ability to inform
citizens about relevant questions and especially about the use of taxpayers’
money. There is also increased positivity in citizens’ assessment of LAs’

People can influence decisions of local authorities

Local authorities efficiently provide foundation for decisions

In general I am happy with performance of local authorities

Usually one can trust the promises of our local authorities

Local authorities listen to the opinion of citizens

Local authorities inform citizens about relevant questions

Local authorities distribute resources efficiently

Local authorities inform citizens about how tax-payer money is used

1.0 1.5 2.0 2.5 3.0 3.5 4.0

Citizens 2017 Citizens 2014

Fig. 10.1  Responses to statements about local authorities’ responsiveness among


citizens of 20 Ukrainian cities in 2014 and 2017. Average level of agreement on a
scale from 1 (Fully disagree) to 4 (Fully agree). Responses “Do not know” and
“Refuse to answer” (between 7 percent and 25 percent for individual items) have
been removed. (Source: AUC Local Democracy Surveys 2014 and 2017.)
288  A. AASLAND AND O. LYSKA

efficiency in the distribution of resources.4 One item stands out as having


significantly worse results in 2017 than in 2014—citizens’ assessment of
the possibility of influencing LA decisions.
When comparing results in the surveyed cities in 2017 with results
from the telephone survey at the national level that took place in parallel,
we find that results are quite similar. However, there is a tendency fort
respondents nationally to be somewhat more satisfied with their local
authorities than respondents in the surveyed cities when it comes to distri-
bution of funds and listening to the opinion of citizens. Mean responses
for the statements for which there were identical questions are presented
in Table 10.1.
Further analysis (reliability analysis) confirmed a very high correlation
between the eight items,5 making it reasonable to assume that the battery
of questions provides a robust and reliable measurement of respondents’
perceptions of the responsiveness of LAs. An index was made, the “LA
Responsiveness Index,” ranging from 1 (respondent fully disagrees with
all eight statements) to 4 (full agreement with all items).6 The mean index
score was respectively 2.06 (2014) and 2.11 (2017), which is a statistically
significant difference (p < 0.05). For both years we observe the average
tendency of partial disagreement with the listed items in both surveys.

Table 10.1 Responses
20 cities National
to statements about local survey
authorities’ responsive-
ness among citizens of People can influence decisions 1.58 1.57
20 Ukrainian cities and of LA
the national aver- LA listen to the opinion of 2.25 2.53
age in 2017 citizens
LA inform citizens about 2.34 2.43
relevant questions
LA distribute funds effectively 2.11 2.30
Information about tax money 2.02 2.00

Average level of agreement on a scale from 1 (Fully disagree) to


4 (Fully agree)

4
 Another sign of progress is an answer to the question whether people need to pay under
the table for services locally: while 53 percent acknowledged this to be the case in 2014, in
2017 this had fallen to 46 percent.
5
 Chronbach’s Alpha of respectively 0.90 (2014) and 0.87 (2017).
6
 Only those with at least four valid responses (excluding “Do not know” and “Refuse to
answer”) were included in the index.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  289

Table 10.2  Local Authority Responsiveness Index in 20 Ukrainian Cities, 2014


and 2017, and difference between the two years. (Mean index score.)
2014 2017 Difference

Kharkiv 1.79 2.23 0.44


Mykolaiv 1.65 2.04 0.40
Ivano-Frankivsk 1.86 2.24 0.38
Chuhuiv 2.08 2.42 0.34
KryvyiRih 1.89 2.19 0.30
Chernigiv 1.85 2.12 0.27
Korosten 2.08 2.33 0.25
Pavlograd 1.95 2.18 0.23
Kyiv 1.84 2.02 0.18
Cherkasy 1.83 1.97 0.14
Lutsk 2.10 2.11 0.00
Lviv 2.14 2.10 −0.04
Dnipro 2.05 1.95 −0.10
Kamianets-Podilski 2.37 2.26 −0.11
Vinnytsya 2.28 2.17 −0.12
Rivne 2.08 1.87 −0.21
Kremenchug 2.22 1.89 −0.33
Berdiansk 2.75 2.41 −0.34
Boryspil 2.29 1.87 −0.42
Pervomaisk 2.13 1.69 −0.44

Source: AUC Local Democracy Surveys 2014 and 2017


Notes: Responses “Do not know” and “Refuse to answer” (between 7 percent and 25 percent for indi-
vidual items) have been removed

Moving from overall results to results in individual cities, we see some


interesting developments. Table  10.2 shows the results in 20 cities in
respectively 2014 and 2017, sorted by the difference between the two
years. Kharkiv, Mykolaiv, and Ivano-Frankivsk are the cities that have had
most progress in the period between the two surveys, while the largest
regress has been observed in Pervomaisk, Borispyl, and Berdiansk.
Berdiansk, which had an extraordinarily high score in 2014, is still among
the cities that stand out with high scores in 2017, together with Chuhuiv
and Korosten. At the other end of the scale we find Boryspil, Rivne, and
Pervomaisk. Again we stress that the results can only be considered as
indicative since the number of respondents in each city is relatively small
and margins of error therefore considerable. Nevertheless, differences
between cities with a high and a low score are more than large enough to
be statistically significant.
290  A. AASLAND AND O. LYSKA

As can be seen from the table, a high score in 2014 is no guarantee of


a corresponding high score in 2017, and vice versa. Thus, LA responsive-
ness, as perceived by citizens, is not something that is achieved once and
forever, but a quality that needs to be subject to continuous attention
from local authorities.
What factors can explain the individual scores on the index? Regression
analysis provides some hints. We performed a multiple linear regression
with the index score as the dependent variable, and the following indepen-
dent variables that one would expect might have an effect on the outcome
of the dependent variable:

• Year of survey (2014 or 2017)


• Size of city (small; ordinary city; city of regional significance,
capital city)
• East or west Ukraine7
• Gender
• Age (in years)
• Household standard of living, subjective (four-point scale)
• Political activity (index)
• Level of education (four-point scale)
• Interest in local politics (four-point scale)
• Trust in societal institutions (index)

Table 10.3 presents the results of the linear regression analysis. The
explanatory power of the model is rather strong, indicated by an adjusted
R squared of 0.31. This means that close to one-third of the variation on
the index score can be ascribed to the responses to the independent vari-
ables in the model. Several of the independent variables have a statistically
significant correlation with the dependent variable (Responsiveness Index)
when controlling for the other variables in the model.
The level of trust in a variety of societal institutions is clearly the inde-
pendent variable in the model with the strongest correlation with people’
s perception of LAs’ responsiveness, as seen by the value of the standard-
ized coefficients. The more people express trust in these institutions, the
more are they inclined to report that the LAs are responsive to the needs

7
 In line with the division made in the survey 2014, which was an operational definition
based on election preferences, i.e. whether majority voted for Yanukovych or Tymoshenko in
the 2010 presidential elections.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  291

Table 10.3  Multiple linear regression—perceived LA responsiveness


Unstandardized Standard Standardized Significance
coefficient error coefficient

Constant 0.73 0.09 0.000∗∗


Survey year 0.15 0.02 0.12 0.000∗∗
(low = 2014)
Small city (vs. city of 0.13 0.03 0.06 0.000∗∗
regional significance)
Medium city (vs. city of 0.16 0.02 0.12 0.000∗∗
regional significance)
Capital city (vs. city of −0.08 0.05 −0.03 0.062
regional significance)
Eastern or western −0.03 0.02 −0.02 0.157
location (low = east)
Gender (low = women) 0.00 0.02 0.00 0.846
Age (in years) 0.00 0.00 0.01 0.466
Educational level 0.04 0.01 0.06 0.000∗∗
(4-point scale)
Living standard (4-point 0.03 0.01 0.03 0.025∗
scale)
Participation in political 0.02 0.00 0.06 0.000∗∗
activities (index)
Interest in local politics 0.01 0.01 0.02 0.261
(4-point scale)
Institutional trust 0.40 0.01 0.53 0.000∗∗
(index)

Dependent variable: Responsiveness index. High value = perceived high responsiveness


Individuals with responses to less than four of the responsiveness items were not included in the regression
Source: AUC Local Democracy Surveys 2014 and 2017
∗Significant at 0.05 level
∗∗Significant at 0.01 level

of citizens. The link between degree of social trust and evaluation of LAs
is hardly a surprising finding, but it is worth noting that Ukraine is among
the European countries with the lowest levels of trust in institutions and
the government (Zmerli 2012, 120). According to our survey, trust in
institutions has been reduced from an already low level over the
2014–2017 period.
The low level of trust may be one of the explanations of the rather poor
evaluation of LA responsiveness in the survey. What is the cause and what
is the effect may be debated, however, since poor responsiveness on the
292  A. AASLAND AND O. LYSKA

part of government institutions may correspondingly explain the low level


of trust expressed by Ukrainians. Of the eleven institutions listed in our
survey, highest trust levels were expressed in 2017 toward the city mayor,
followed by civil society organizations, local councils, and deputies from
own constituency. At the other end of the scale, we find that lowest trust is
expressed towards the national parliament, to the government, to judges,
and to the president. It is worth noting that the latter enjoyed the highest
level of trust in the post-Maidan 2014 era. In 2017, LAs on average enjoy
considerably higher trust levels than other listed government institutions.
Participation in  local political activities increases the likelihood of
expressing a positive opinion on LA responsiveness. Such civic participa-
tion can, in addition to trust, be considered a dimension of social capital
(Bjørnskov 2006), which appears to have a positive effect on perceptions
of LA responsiveness. However, personal political interest, as expressed
subjectively by survey respondents, does not have a statistically significant
effect on the Responsiveness Index score, as shown in Table 10.3.
The alleged east–west divide in Ukraine has been a recurrent theme in
analyses of Ukrainian politics (Barrington and Herron 2004; Holdar
1995; Kubicek 2000). It is therefore worth noting that our survey results
indicate that residence in the western or eastern part of the country has no
statistically significant effect on the LA responsiveness score. The great
variation among individual cities was shown in Table 10.2, and it is impor-
tant to stress that these differences do not have a systematic east–west
pattern.8 The size of the city, however, appears to matter: inhabitants of
cities of regional significance perceive LA performance to be better than
those without this status. Whether or not this has to do with selection of
cities rather than size is, however, hard to say due to the limited number
of cities in the sample. The finding is, however, in line with the claim that
it is exactly these cities that have benefited most from the decentralization
reform (Levitas and Djikic 2017, 3)
While education and a higher living standard have a positive effect on
the score on the dependent variable (people with more education and bet-
ter living standard give a more positive evaluation of LA performance),
demographic variables such as gender and age do not have statistically
significant effects on the Responsiveness Index score, after controlling for
all the other variables in the model.

8
 The east–west division is a simplification of a more complex regional division which our
survey data do not allow us to control for, a consequence of the limited number of cities in
different regions of the country.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  293

III. Citizens’ Participation Builds on Political


Interest But Not Trust
A good-quality local democracy requires active citizens who make their
voices heard. Citizens’ participation at the local level may take many dif-
ferent forms. It is common to operationalize the concept by differentiat-
ing between community or social participation, usually in the civil society
sphere, on the one hand, and political participation in the form of voting,
political party, and other political activities on the other. Full citizenship
can be realized only if people have opportunities for actual influence on
political processes.
We have chosen to concentrate on two aspects of civic participation
that are relevant for local democracy. First, we look at different forms of
political participation. Second, we examine membership and involvement
in different types of civil society organizations and political parties.
Figure 10.2 shows the percentage of respondents that participated in
various forms of political activity locally during the previous 12 months in
respectively 2014 and 2017. As the figure demonstrates, some types of
activity have become more widespread, particularly various forms of
appeals, proposals, and complaints to local authorities; participation in

Demonstrations, strikes, protests

Meetings with city authorities

Internet discussions of policies of local


authorities

Meetings, public hearings, seminars

Appeals, proposals, complaints etc. to local


authorities

0 5 10 15 20 25 30

2017 2014

Fig. 10.2  Reported participation in different forms of public activities at local


Level in 2014 and 2017
294  A. AASLAND AND O. LYSKA

such activities has almost doubled from 14 to 26 percent of the respon-


dents. Though at a lower level, internet communication has also become
much more widespread (from 6 to 10 percent participation). That differ-
ent types of protest activities have become more rare (from 14 to 9 per-
cent) can probably be explained by the special situation in the months
preceding the survey in 2014 when many people were engaged in Maidan
and post-Maidan demonstrations.
The biggest obstacles that people reported as preventing them from
having an impact on decision making are the belief that their efforts would
anyway be useless (37 percent), lack of time (17 percent), an alleged poor
legislative base (15 percent) and lack of knowledge of the relevant legisla-
tion (12 percent). In addition, 10 percent of the respondents said they
were simply not interested in these types of activity. There were no big
differences in the frequencies of reasons given in 2014 and 2017.
An index was computed based on a more detailed question about par-
ticipation in different types of activity as reported by the respondents.9 We
included only participation items with a high internal correlation to ensure
that we had a robust one-dimensional measurement.10 The index ranges
from 0 (participated in none of the listed activity types) to 16 (participated
in all). While in 2014 66 percent of the respondents had not participated
in any of the activities, this was the case with 58 percent of the respondents
in 2017. Similarly, while the mean number of activity types in 2014 was
0.9, by 2017 it had increased to 1.5. At the same time the variation (as
measured by the standard deviation) between respondents was higher in
2017 than in 2014.
When comparing participation levels in the 20 surveyed cities in the
autumn of 2017 with the results from national survey that was conducted
in parallel, we find that the proportion having participated in demonstra-
tions was very similar (9.1 percent in the surveyed cities and on average
9.3 at national level). Participation in internet discussions was more com-
mon at the national level (20.3 percent vs. 9.9 percent in the surveyed
cities), and so was participation in meetings, public hearings, and seminars
(33.8 percent vs. 23.5 percent respectively). This could have to do with

9
 Examples: appeals, inquiries, petitions, public hearings, political speech, local initiatives,
public discussions, seminars, internet discussions, meetings with mayor or local deputies.
10
 This means that protest activities, which are not correlated with the other items, were
not included in the index. Such activities are, however, included in the correspondence analy-
sis presented below. We were left with an index with a Chronbach’s Alpha of 0.85.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  295

the great activity surrounding discussions on amalgamation of territories


that at the time affected smaller municipalities to a much larger degree
than cities. On the other hand, participation in meetings with city authori-
ties were more common in the 20 surveyed cities (19.9 percent) than the
national average (12.3 percent).
Table 10.4 gives an overview of activity levels in individual cities for the
two survey years, and again we have sorted it according to the difference
between the two years. As was the case with responsiveness, there is con-
siderable variation between the cities when it comes to citizen participa-
tion. The overwhelming majority of cities have seen a positive development,
in the sense that participation has increased considerably in the 2014–2017
period. Only five of the cities have seen a negative development, and most
of them show only a moderate decline. Only Berdiansk has seen a very

Table 10.4  Citizen Participation Index in 20 Ukrainian Cities, 2014 and 2017,
and difference between the two years. (Mean Index Score.)
2014 2017 Difference

Chernigiv 0.51 2.65 2.14


Pervomaisk 0.34 1.95 1.61
Boryspil 0.74 2.27 1.53
Mykolaiv 0.50 1.88 1.38
Kyiv 1.89 2.73 0.84
Vinnytsya 0.58 1.29 0.71
Pavlograd 0.78 1.48 0.70
Chuhuiv 0.77 1.38 0.61
Kamianets-Podilski 0.69 1.28 0.59
KryvyiRih 0.48 1.01 0.53
Dnipro 0.78 1.28 0.50
Korosten 0.83 1.31 0.48
Rivne 1.61 2.08 0.47
Kremenchug 0.62 1.00 0.38
Kharkiv 0.08 0.42 0.34
Cherkasy 0.93 0.91 −0.02
Lviv 1.18 1.12 −0.06
Ivano-Frankivsk 2.01 1.90 −0.11
Lutsk 1.45 1.21 −0.24
Berdiansk 2.03 0.66 −1.37

Source: AUC Local Democracy Surveys 2014 and 2017


Notes: Responses “Do not know” and “Refuse to answer” (between 7 percent and 25 percent for indi-
vidual items) have been removed
296  A. AASLAND AND O. LYSKA

large reduction in citizen participation, and it is noteworthy that this city


was at the top of the list in 2014 but was lowest by 2017. Chernigiv,
Pervomaisk, Boryspil, and Mykolaiv are cities with the largest positive
improvements. It is, however, Kyiv that ranks highest on the Participation
Index in 2017, followed by Chernigiv, while Kharkiv and Berdiansk stand
out at the other end of the scale.
Another observation is that cities that have a high participation score
do not necessarily have a high score on the Responsiveness Index
(Table  10.2). In fact there is a negative correlation between the two
(Pearson’s R = −0.16) which is not, however, large enough to be statisti-
cally significant given the small number of cities included in the study.
Again we are interested in the factors that can help to explain individual
scores on the Participation Index. To help us with providing an answer, we
performed another multiple linear regression, this time with the
Participation Index as dependent variable and the same independent vari-
ables as in the previous regression (exchanging the responsiveness and
participation indices as respectively dependent and independent variables).
Results are shown in Table 10.5.
This regression gives a rather different picture from the one derived on
LA responsiveness (Table 9.3). Initially it should be mentioned that the
strength of this model is considerably lower; with an adjusted R squared
of 0.11, only 11 percent of the variation on participation among respon-
dents can be ascribed to the score on the independent variables. Still, there
are many statistically significant effects. Again, we find that the difference
between the survey years is robust, confirmed in the multivariate analysis:
people participate more in 2017 than in 2014 after controlling for the
other independent variables in the model.
The largest effect (as shown by the unstandardized coefficients) is in
the level of interest in local politics. This is reasonable, given that people
who are interested tend to engage more also in political activities.
A perhaps surprising finding, however, is that institutional trust, which
had a strong and positive effect on LA responsiveness, has a minor nega-
tive effect on participation levels. It seems people participate locally
regardless of their trust in authorities and public institutions. One possible
explanation could be that people seeking to ensure that their voices are
heard see a need to participate more when they do not find public institu-
tions trustworthy. Education as well as subjective living conditions are
both positively associated with participation, though for living conditions
the effects are quite small. The effects of other demographic characteristics
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  297

Table 10.5  Multiple linear regression—participation


Unstandardized Standard Standardized Significance
coefficient error coefficient

Constant −2.25 0.34 0.000∗∗


Survey year 0.58 0.07 0.13 0.000∗∗
(low = 2014)
Small city (vs. city of 0.03 0.12 0.00 0.779
regional significance)
Medium city (vs. city of −0.04 0.09 −0.01 0.669
regional significance)
Capital city (vs. city of 0.93 0.17 0.09 0.000∗∗
regional significance)
Eastern or western 0.36 0.08 0.08 0.000∗∗
location (low = east)
Gender (low = women) −0.02 0.07 0.00 0.798
Age (in years) 0.00 0.00 0.00 0.928
Educational level 0.31 0.05 0.11 0.000∗∗
(4-point scale)
Living standard (4-point 0.11 0.05 0.04 0.021∗
scale)
Perceived LA 0.27 0.06 0.08 0.000∗∗
responsiveness (index)
Interest in local politics 0.55 0.04 0.23 0.000∗
(4-point scale)
Institutional trust −0.10 0.05 −0.04 0.045∗
(index)

Dependent variable: Participation Index. High value = perceived high participation


Individuals with responses to less than four of the responsiveness items were not included in the regression
Source: AUC Local Democracy Surveys 2014 and 2017
∗ Significant at 0.05 level
∗∗ Significant at 0.01 level

(age and gender) are negligible. There is little difference between cities of
different sizes, though people in the capital, Kyiv, participate considerably
more than the average of other city types, also after controlling for the
independent variables. While location in the east or west of the country
was not decisive for a score on the Responsiveness Index, it does count for
participation: respondents living in the west of Ukraine tend to demon-
strate higher levels of political participation than respondents from cities
in the east. Differences in social capital and civic culture between the west
and the southeast of Ukraine could be a likely explanation of this finding,
298  A. AASLAND AND O. LYSKA

analogous to what Putnam (1993) found in southern and northern Italy.


Finally it is no surprise that there is an association between the
Responsiveness Index and the Participation Index, as was pointed out in
the first regression.
The 2014 survey confirmed a low level of organizational membership
in Ukrainian cities, though this is perceived important for development of
local democracy (Putnam 1993). In 2017, we observe positive changes
among all institutions mentioned in the questionnaire (NGO, political
party, condominium, street committee, neighborhood committee, and
public council). The most dramatic changes can be observed for member-
ship in condominiums (increased more than fourfold11), political parties
and NGOs (Fig.  10.3). Moreover, in all categories of organization, the
survey demonstrates an increase not only in the percentage of respondents
who participate in the institutions in a formal way, but also of those who
are actively involved in these organizations. The number of actively

Public council

Street or neighborhood
committee

Condominium

Political party

NGO

0,0 2,0 4,0 6,0 8,0 10,0 12,0

2014 2017

Fig. 10.3  Percentage of respondents reporting membership in organizations.


Responses “Do not know” and “Refuse to answer” (less than 1 percent for indi-
vidual items) have been removed. (Source: AUC Local Democracy Surveys 2014
and 2017)

11
 During the same period (2014–2017) the number of condominiums in Ukraine
increased 1.7 times—from 16,200 to 27,400.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  299

involved persons in 2017 doubled with regard to membership in political


parties (up to 1.5 percent of the respondents) and tripled as regards con-
dominiums (up to 3.1 percent). The percentage of active members of
NGOs increased 1.5 times—up to 3.2 percent of the respondents.
For each city, we calculated the mean scores12 of membership in each
institution, and then calculated differences between 2017 and 2014. It
turned out that the difference between the two years of the citizen
Participation Index has a rather strong and statistically significant positive
correlation with the difference of the mean scores of memberships in
political parties (Pearson’s R = 0.67), street committees (R = 0.67), and
public councils (R  =  0.46). This means that the changes in respective
memberships are associated with the changes in the Participation Index.
On the other hand, the correlations between the difference in the
Participation Index and changes in the membership in NGOs, condomini-
ums, and neighborhood committees are much smaller and not statistically
significant.
Finally, it should be noted that even with rather strong signs of progress
during the 2014–2017 period, the current level of organizational mem-
bership in Ukrainian cities remains quite low.

IV. Correspondence Analysis
A complex picture emerges from regression analysis on citizens’ perception
of local authorities’ responsiveness and their own participation in political
activities at local level. While these are internally correlated, the predictors
of the two phenomena are not the same, and sometimes even contradic-
tory. To obtain a better grasp of the association between the different vari-
ables, and some other variables that we believed could further expand the
picture, we conducted an exploratory correspondence analysis. In order
not to mix the two survey years, we restricted the analysis to the 2017 data.
Correspondence analysis is a data analysis tool that enables underlying
structures in a dataset to be revealed. It summarizes the relationship
among categorical variables in a large table, and provides a visual presenta-
tion that facilitates a holistic interpretation of trends in the data. Categories
with similar distributions are represented as points that are close in space,
whereas categories with very dissimilar distributions are positioned far
apart (Clausen 1998).

 The three-point scale ranges from 0 (no membership) to 2 (active membership).


12
300  A. AASLAND AND O. LYSKA

In addition to the variables included in the regression analysis we


included protest activity to see if protest activity and other types of politi-
cal activities are part of the same dimension or not. We also included orga-
nizational memberships to see how it relates to local political activities.
The results of the correspondence analysis are illustrated in the
Correspondence Analysis Plot (Fig. 10.4). As the plot is at first sight rather
complex, we will go through it step by step.
The correspondence analysis generates two dimensions. The horizontal
dimension we interpret as largely reflecting political engagement and

High trust
1,0

high responsiveness

0,5 some interest


No memberships
Participation in 1-3 activity types little interest
Medium trust
Dimension 2

0,0
medium responsiveness no protest
No civic participation
very much interest
-0,5 no interest

protest Participation in 4+ activity types


Low trust
Member of organisation
-1,0
low responsiveness

-1,5

-2,5 -2,0 -1,5 -1,0 -0,5 0,0 0,5 1,0


Dimension 1
Interest in local politics LA responsiveness
Local politics activity Organisational membership
Trust in authorities Participation in protest activities

Fig. 10.4  Correspondence analysis plot


10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  301

activity levels of the individual. On the right-hand side (the counterintui-


tive direction of the dimension, with low level of engagement associated
with positive values, was produced by our statistical software) are people
who lack interest in local politics, who report no organizational member-
ship, and who have participated in few political activities. On the left-hand
side are politically active (relatively speaking) citizens, with an interest
in local politics, and higher-than-average participation levels. We term this
dimension “Civic participation” (Fig. 10.5). Interestingly, participation in

1,0

0,5 some interest

Participation in 1-3 activity typesno protest


No memberships little interest
0,0
No civic participation

very much interest


no interest
-0,5
protest Participation in 4+ activity types

Member of organisation
-1,0

-1,5

-2,5 -2,0 -1,5 -1,0 -0,5 0,0 0,5 1,0


Civic participation
Interest in local politics Organisational membership
Politics activity level Participation in protest activities

Fig. 10.5  Correspondence analysis plot: civic participation dimension


302  A. AASLAND AND O. LYSKA

protest activities is associated with the same dimension, so that people


who have participated in such activities are located towards the left end of
the plot.
The vertical dimension (Fig. 10.6) can be read as a reflection of the per-
ception of LA responsiveness. In the lower part, we find respondents who
perceive the LAs to be unresponsive to citizens (“do not take ordinary
people’s opinions into account, misuse their powers for personal gains,”
etc.). Those who tend to consider the LAs as being responsive to the
needs the citizenry are located at the top end of the plot. This dimension
is also closely associated with the level of institutional trust—as could have

High trust
1,0

high responsiveness

0,5
Medium trust
LA responsiveness

0,0
medium responsiveness

-0,5

Low trust
-1,0
low responsiveness

-1,5

-2,5 -2,0 -1,5 -1,0 -0,5 0,0 0,5 1,0

Trust in authorities LA responsiveness

Fig. 10.6  Correspondence analysis plot: local authority responsiveness dimension


10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  303

been expected, given the strong association between these variables shown
in the previous regression analysis. This dimension is called “LA respon-
siveness”. The two dimensions look like the dimensions identified in an
analysis of the 2014 results (Aasland and Lyska 2016), confirming the
robustness of the results.
It should be noted that location in the plot gives average positions of
the different groups and categories, and may hide considerable internal
variation among different categories of respondents. Moreover, an appar-
ently high score on one dimension does not necessarily represent a high
score in absolute terms, as both responsiveness and engagement levels are
low in Ukraine, and the plot reflects relative levels. Furthermore, since, as
we showed in the regression analyses, participation and responsiveness are
statistically associated, the categories do not completely match the x- and
y-axes of the two dimensions in the plot.
Based on the score on the two dimensions we can identify four “ideal
types” of citizen, taken from Aasland and Lyska (2016) (see Fig. 10.7):
In the lower right part of the plot, we find “alienated” citizens. These
are people who are dissatisfied with local authorities and have low trust in
institutions. Even so, they do not engage in political or civil society activi-
ties and do not follow politics.
In the lower left part of the plot, we find “protesters”—people with a
high level of political and civil society activity (including protests), but
who tend not to trust the authorities and give a weak assessment of LA
responsiveness.
At top left, we find “interactive” citizens—engaged individuals who
interact with LAs and tend to respond positively to inquiries about their
attitude to LAs.
At top right we find people who we could call “compliant.” They are
not overly unhappy about the performance of local government, but they
are passive and are neither interested nor involved in political or civil soci-
ety activities themselves.
Based on mean scores of inhabitants of individual cities, we have posi-
tioned the cities into a correspondence analysis plot (Fig. 10.8). Five cities
are located in the “alienated” part of the plot: Pervomaisk, Dnipro,
Kremenchug, Cherkasy, and Lviv. Five are “compliant”: Lutsk, Chuhuiv,
KryvyiRih, Berdiansk, and Kharkiv. Then we have five cities of the “pro-
tester” type: Chernihiv, Boryspil, Kyiv, Rivne, and Mykolaiv. The final five
cities fall into the “interactive” category: Vinnytsya, Korosten, Pavlohrad,
Ivano-Frankivsk, and Kamianets-Podilski.
304  A. AASLAND AND O. LYSKA

High trust
1,0

high responsiveness

0,5 some interest


«Interactive» «Complient»
No memberships
Participation in 1-3 activity types little interest
LA responsiveness

Medium trust
0,0
medium responsiveness no protest
No civic participation
very much interest
-0,5 no interest
«Protesters» «Alienated»
protest Participation in 4+ activity types
Low trust
Member of organisation
-1,0
low responsiveness

-1,5

-2,5 -2,0 -1,5 -1,0 -0,5 0,0 0,5 1,0


Civic participation

Interest in local politics LA responsiveness


Local politics activity Organisational membership
Trust in authorities Participation in protest activities

Fig. 10.7  Correspondence analysis plot: typology of cities

It should be stressed that these results are indicative and should be read
with some caution, and we again emphasize the exploratory nature of the
analysis. As shown by the plot, many of the cities have results for one or
both dimensions close to the mean (0), and the relatively low number of
respondents in each city makes our estimates somewhat uncertain. Cities
that are near each other in the plot may be classified in different categories,
often with cities that are positioned further from them in the plot.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  305

1,00

,50

Korosten Chuhuiv
Kamanets-Podilski Berdiansk
LA responsiveness

Vinnytsya Kryvyi Rih


Ivano-Frankivsk Lutsk
Pavlohrad Kharkiv
,00
Mykolaiv
Rivne
Boryspil
Kyiv
Chernihiv Lviv
Onipro
-,50 Cherkasy
Kremenchug
Pervomaisk

-1,00

-1,0 -,5 ,0 ,5 1,0


Civic participation

Fig. 10.8  Correspondence analysis plot: city location in the plot

However, the findings are likely to be robust for the most distinctive cities
within each of the categories, as differences between cities on both dimen-
sions are more than large enough to be statistically significant.
This should also be kept in mind when comparing the results of 2014
with those of 2017. Table 10.6 shows the distribution of cities in the two
survey years. We see that the majority of cities have changed position, only
seven of the 20 surveyed cities have remained in the same position over
the two surveys. None of the “interactive” cities from 2014 has moved
306  A. AASLAND AND O. LYSKA

Table 10.6  Patterns of “citizen types” in 20 Ukrainian cities in 2014 and 2017
surveys, based on correspondence analysis results
2017

Alienated Compliant Protesters Interactive


2014 Alienated Cherkasy Chuhuiv, Chernihiv, Pavlohrad
KryvyiRih Mykolaiv
Compliant Pervomaisk, Kharkiv
Dnipro,
Kremenchug
Protesters Lviv Kyiv, Ivano-Frankivsk
Rivne
Interactive Lutsk, Boryspil Vinnytsya,
Berdiansk Korosten,
Kamianets-­
Podilski

into the “alienated” position, and three of them have remained “interac-
tive”: Vinnytsya, Korosten, and Kamianets-Podilski. Pavlohrad has seem-
ingly had the most dramatic, and arguably positive, move from being
“alienated” to becoming “interactive”. However, when looking at the
plot, this city is close to the mean on both dimensions. Cherkasy is the
only city that has remained “alienated” in the two surveys. However, it
should be noted that the results are relative and that the plots give average
scores in 2014 and 2017, where the mean in both years is 0 on both
dimensions. Thus, the improvement on the two dimensions that has been
recorded in the period between the two survey years is not reflected in the
correspondence plot.
There could be many reasons for the change of position from 2014 to
2017. Cities that have seen an improvement may have targeted the inter-
action between citizens and local authorities as one of the priorities in LA
work and introduced qualitatively new measures to this end. However,
cities where we observe a relative deterioration may have done many of the
right things, but people’s expectations may have risen, resulting in a more
critical assessment. Furthermore, some objective conditions may have
changed, e.g. labor market or economic issues, with an impact on the
public mood. Thus, one should be careful about making a direct link
between LA performance and citizens’ assessments and political
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  307

involvement. While explanations for the results of individual cities vary,


this is outside of the scope of this chapter.13

V. Better or Worse?
What do the results from the local democracy surveys of 2014 and 2017
tell us about local democracy developments during the post-Euromaidan
period? As shown in previous sections, both in terms of citizens’ perceived
responsiveness of local authorities as well as, and in particular, citizen
political participation at local level we have seen signs of progress in most
cities. A caution is that we see improvement mostly in inhabitants’ assess-
ment of the way local authorities distribute resources and information, but
a negative tendency when they evaluate their own possibilities for influ-
encing politics locally. Still, people do participate more actively in politics
according to our survey data. The question then is what they get in return
for their participation.
While differences in citizens’ responses between 2014 and 2017 for
the most part appear as relatively modest, a clear sign of progress is also
reflected in respondents’ answers when they are asked in a direct ques-
tion whether the performance of local government has improved or
deteriorated since the start of decentralization reform in April 2014.
Only 11 percent say that LA performance is worse, 39 percent say that
it is as before, and 41 percent assert that it has improved; the remaining
9 percent are undecided. Again it is trust in authorities that is the stron-
gest predictor of respondents’ assessments. Whether or not people
themselves participate actively has no statistically measurable effect on
the response to this question. It is noteworthy that neither eastern or
western location is relevant for citizens’ opinion on progress. However,
in line with the argument that cities of oblast significance have benefited
the most from the decentralization reforms (Levitas and Djikic 2017),
it is exactly in these cities where people are most satisfied with the LA
post-Euromaidan performance. Older people are more negative than
the younger generation, but gender, educational level, and living condi-
tions are of little relevance.
Another promising sign, at least from the authorities’ perspective, is
that people are positively inclined towards the ongoing Ukrainian

13
 As part of the project, dissemination researchers visited ten of the cities participating in
the survey.
308  A. AASLAND AND O. LYSKA

decentralization reform: 39 percent support it, 30 percent are neutral,


and only 18 percent express opposition; the remaining 13 percent are
undecided or did not want to answer. Again we performed a regression
analysis (not shown here), and the results demonstrate that improve-
ment experienced at local level is the most decisive item for predicting
support for the reform. This is a clear indication that the reform needs
to have a positive impact on people’s local lives to be supported. The
size of the city does not affect the results, perhaps surprisingly given the
claim that the larger cities of regional significance have benefited more
than smaller cities and towns. However, it may be explained by the fact
that the territorial aspects of the reform have until now for the most
part affected smaller geographical units. Neither is east–west location
relevant; people all over the country are equally supportive. Trust in
authorities, not unexpectedly given the previous results, is positively
associated with support to the reform. Women are more positively
inclined towards the decentralization reform than men are, but we do
not observe any strong generational differences. The well-­educated and
those with a higher living standard are the most supportive, perhaps
because they have reaped more benefits of the reform.
Our analysis has shown that even if there have been clear signs of
progress, people at the end of 2017 were still in general more negative
than positive towards LA performance. One should not underestimate
the importance of the fact that decentralization reforms have been
introduced under very difficult circumstances, with an ongoing violent
conflict in the eastern part of the country and with economic setbacks
and turbulence for many. The mass acceptance of and even support for
decentralization reform as indicated in the survey is therefore highly
desirable, and possibly necessary to secure stability. At the same time,
our survey results indicate that the extremely low level of trust expressed
in public institutions, especially at national level, is likely to be a hin-
drance to faster improvement. Ukrainian authorities have the daunting
task of handling the conflict in the east while at the same time proceed-
ing with pressing domestic reforms, including meaningful decentraliza-
tion. To enhance public trust the battle against corruption and arbitrary
exercise of power seems particularly important, as the goals of territorial
and fiscal decentralization are unlikely to be reached unless fundamental
anti-corruption measures are undertaken.
10  SIGNS OF PROGRESS: LOCAL DEMOCRACY DEVELOPMENTS…  309

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CHAPTER 11

Decentralization Reform: An Effective


Vehicle for Modernization
and Democratization in Ukraine?

Olga Oleinikova

Introduction
The link between decentralization and modernization in the post-­
communist transitional societies is “one of the most important theoretical
problems that directly affect practical politics” (Inozemtsev 2010, 7) and
democratic development. The transition process of the last three decades
in Ukraine has refuted the simplified understanding that democratization
inevitably leads to deep social and technological modernization. A num-
ber of issues are delaying visible results of modernization and decentraliza-
tion in Ukraine, a process that has been noticeably hampered since its start
in 2014. These are the conflict in and around Ukraine, centralization of
administrative tasks, an absence of well-defined responsibilities, local
authorities’ lack of organizational, technical and financial resources,

O. Oleinikova (*)
University of Technology Sydney, Sydney, NSW, Australia
e-mail: [email protected]

© The Author(s) 2020 311


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_11
312  O. OLEINIKOVA

duplication of structures and, in some cases, a resultant weakness and


incompetence of local authorities.
A range of theoretical and empirical scholarship has acknowledged
decentralization is strongly associated with democracy (Panizza 1999;
Arzaghi and Henderson 2005; Letelier 2005; Treisman 2006; Canavire-­
Bacarreza et al. 2017). In similar fashion, modernization is argued to have
strong links to democracy (Lerner, 1958; Lipset 1959; Rostow 1960;
Moore 1966; Huntington 1991; Andorka and Spéder 1994; Machonin
1997; Adamski 1998; Zapf 1998; Domański 1999; Zaslavskaia 1999;
Keller and Westerholm 2007; Zapf et al. 2002). The central element of the
process of creating prerequisites for the development of democracy is
modernization.
By “modernization” this chapter means changing social, economic,
and political conditions that foster technological advance, urbanization,
changes in the economy (particularly regional, and moving from rural to
industry-based) and nurture a democratic culture. It is no exaggeration to
say that “modernization and democratization at this stage of history are
almost identical” (Inozemtsev and Dutkiewicz 2013, 9). Success in mod-
ernization inevitably becomes a basis for democratization, failure in it
becomes a basis for the failure of democratic projects. Furthermore, the
history of the twenty-first century has shown how precarious democracy
can be if voters who are dissatisfied and in disbelief when they cast their
votes. The most widely studied theme within the social sciences—the rela-
tion between socioeconomic development and political democracy—has
also been a subject of an immense critique and consideration. Modernization
does not produce democracy, but creates the necessary prerequisites for it,
and it indicates which countries are capable of creating stable democratic
institutions and which are not.
The history of the last 60 years shows that almost all successfully mod-
ernized states either switched from an authoritarian regime to a demo-
cratic one, or significantly expanded the degree of freedom of citizens and
strengthened mechanisms for protecting their rights, that is, they created
the necessary conditions for the development of democracy (Oleinikova
2019; Oleinikova and Bayeh 2019). And, on the contrary, countries that
have come to a halt in their development and were unable to implement a
modernization program and reform ultimately came to experience
strengthened authoritarian tendencies or took the path of building “imita-
tion democracy” (Furman 2008). Nowadays, it is hard to be a democrat
without being a supporter of modernization, as nothing contributes to the
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  313

spread and consolidation of democratic norms as strongly as successful


economic reforms and economic progress as a whole. These are also con-
firmed by global development trends and Ukraine’s accelerated efforts to
democratize and to reform since 2014 Euromaidan protests.
Decentralization, being a significant dimension of political and admin-
istrative reform in many developing countries, rests on the idea that local
self-government promotes democracy, individual liberties, and the right of
citizens to participate in decision-making on a local level. There is a pleth-
ora of definitions surrounding the concept of “decentralization.” This
chapter uses the following working definition of decentralization: the pro-
cess through which central government transfers its powers, functions,
responsibilities, and finances, or a decision-making power, to other entities
away from the center, either to lower levels of government, or dispersed
central state agencies, or the private sector (Olum 2010). Its main assump-
tion is that the assignment of political, fiscal, and administrative responsi-
bilities to actors and institutions at regional and local levels (Litvack et al.
1998, 4) will help achieve balanced economic development and accelerate
modernization across regions.
In Ukraine, decentralization has become a strategic policy for govern-
mental restructuring, and emerged as one of the key priorities in 2014.
After Ukraine’s independence in 1991, discussions and initiatives for
structural transformation of the country’s government have been pursued
at various points in history. However, it was only in 2014 that a reform
plan was considered important, deemed essential for achieving the levels
of balanced and sustainable economic regional development and adminis-
trative capacities that would enable Ukraine to successfully synchronize its
internal market and legislation with that of the European Union (EU) and
further its efforts on the path to eventual eligibility for EU membership.
Surprisingly, given the much-discussed links between democracy and
modernization on the one hand, and democracy and decentralization on
the other, not much exploration has taken place in the theoretical and
empirical field around the direct link between modernization and decen-
tralization. This chapter offers insights from current modernization efforts
in Ukraine as part of its decentralization reform that help to understand
whether decentralization is an effective strategy to promote and achieve
modernization and advance Ukraine’s troubled democracy on its path to
European integration. In particular, it focuses on obstacles facing decen-
tralization from a modernization perspective. It examines how decentral-
ization reform in Ukraine so far has been effective in promoting
314  O. OLEINIKOVA

modernization in the regions. One of the key findings discussed is that the
new attempts at devolving power and responsibilities to the local struc-
tures/ governments should be more flexible, to adapt to local conditions,
rather than being directed by national reform policy and guided in the
traditional central administration manner. The discussion offered in this
chapter suggests that a “middle way” in managing local government and
governance changes should be adopted in order to develop a more prag-
matic localism that will accelerate modernization. This strategy is held to
benefit Ukraine’s democratization.
The chapter is organized as follows: Section “Democracy,
Modernization, and Decentralization: Theorizing Democratic Transition”
explores the conceptualization of the link between modernization, democ-
racy, and decentralization from the view of transition scholarship, and
establishes working definitions for these concepts. Section “Decentralization
Reform in Ukraine: An Effective Way to Promote Modernization?”, rely-
ing on this conceptualization, discusses decentralization reform as a prior-
ity of post-Maidan Ukraine with a focus on the modernization dimension,
before examining the obstacles to modernization and discussing whether
decentralization reform is an effective way to promote modernization in
Ukraine. In conclusion, there is a discussion around necessary conditions
for successful modernization of post-Euromaidan Ukraine, within the
decentralization reform framework.

I. Democracy, Modernization, and Decentralization:


Theorizing Democratic Transition
The present era of democratization as the new social reality, which is
believed to be the dominant trend in current social and political processes
in the advanced and democratically developed West, has advanced differ-
ently in post-Soviet Eastern Europe (Toffler 1981; Bauman 2001;
Sztompka 2001). The fact that the former Soviet states have shifted to
democratic political regimes, and correspondingly to their capitalist eco-
nomic systems, has often been overshadowed by other domestic factors
and is still waiting to receive proper attention in the mainstream literature
and transition scholarship. By the same token, most attempts by the post-­
Soviet Eastern European countries (including Ukraine) to create market
economies, to modernize, and to decentralize have proved problematic.
Thirty years of steady promotion of democratic reforms and efforts to
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  315

repudiate the structural legacies of the communist past have not produced
significant and stable levels of democracy. This is apparent in the merely
semi-democratic forms of decision-making at the state level in Ukraine,
Russia, Belarus, and Moldova, along with a sharp socioeconomic differen-
tiation among regions within the countries and between their social
groups. By “democratization,” I mean not only political transition and
introduction of the democratic system and principles in post-authoritarian
states, but a way of life committed to greater equality and public account-
ability of power that rests on history, civil society, economic development,
and associated individual agency and structural shifts.
Indeed, various studies have questioned whether structural changes
have had any positive outcomes in post-communist eastern European
states (Carothers 2002; Knack 2004; Burnell 2007; Merkel 2010). Given
the limits of current transition research and the lack of a clear paradigm for
understanding what is happening politically, economically, and socially in
these societies, there is a need for a different approach (Oleinikova
2017)—one which would widen our understanding of the current mod-
ernization efforts and decentralization reforms in societies still undergo-
ing transition (Oleinikova 2013). Currently, an approach that would
consider the interplay and the combination between democracy, modern-
ization, and decentralization is rarely applied to understand the empirical
reality of modern post-communist states.

1. Modernization, Democracy, and Decentralization:


From Western to East European Perspective
Over the past two centuries, the theory of modernization has repeatedly
appeared in the center of political, social, and economic discussions. In the
nineteenth and twentieth centuries, the Marxist concept of modernization
inspired the most powerful political parties and movements. In the 1970s,
critics claimed that the theory of modernization had died—but after the
end of the Cold War, modernization theory experienced a revival, as it
became clear that it could be used to understand the processes of democ-
ratization. The concept of modernization is based on the assumption that
economic and technological progress is generated by predictable social
and political changes. Modernization theory has experienced its revival in
the1990s, but remains a controversial model. To understand moderniza-
tion efforts in Ukraine, let us first conceptualize and define the connection
between modernization and democracy.
316  O. OLEINIKOVA

Transition research starts in the early 1950s up to the 1960s in the


West, at a time “when democratic forms of government were the excep-
tion rather than the rule” (Wucherpfennig and Deutsh 2009). Lipset
(1959), an early theorist in the field, introduced what he called the “req-
uisites of democracy.” By doing so, he contributed the first formative
input and laid out the transition research agenda for generations to come.
He established the first theoretical link between the level of development
of a given country and its probability of being democratic. Under “requi-
sites of democracy,” Lipset (1959) described the foundations for success-
ful democratic consolidation, which he saw as variables that create
conditions favorable for democratization and economic development
(modernization)—such as urbanization, wealth, and education.
Concerned with structural and societal conditions conducive to democ-
racy, especially in socioeconomic terms, Lipset (1959) outlined a structure-­
centered framework that analyzed transitions in terms of economic
development and legitimacy. He argued that these two key structural char-
acteristics were necessary to sustain democratic political systems (he used
examples of European and English-speaking nations, and Latin American
nations). Lipset’s (1994) idea that economic modernization leads to
democracy was further developed by Rostow (1960) and Deutsch (1961),
who theorized that the path from economic modernization to democracy
is linear and inevitable. Rostow (1960) was later criticized by Moore
(1966), who formulated a historical analysis and critique, in which struc-
tural transformations caused by socioeconomic development (industrial-
ization) were not necessarily conducive to democracy.
Contrary to the modernization approaches of the 1950s and 1960s
that were concerned with structural transitions, at the beginning of the
1980s Western research on transition was driven by the agency-centered
perspective propagated specifically in the writings of O’Donnell and
Schmitter (1986). The retrospective analysis of transition research under-
taken by O’Donnell and Schmitter (1986) helped scholars to understand
that the incorporation of concepts such as human agency—in addition to
structural factors—bore more fruit. O’Donnell and Schmitter (1986),
identified factors influencing the success or failure of transitions that
revolved around the ruling elite as a driving force in initiating shifts at all
levels. They believed that any type of transition was possible if the relevant
elite groups (ruling and opposition) could agree on common ways of
implementing democracy (O’Donnell and Schmitter 1986). Socioeconomic
conditions, as stressed by the pioneers (Lerner 1958; Lipset 1959; Rostow
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  317

1960; Moore 1966), were now understood to be irrelevant for transition


research (Merkel 2004a, b).
In Eastern Europe in the1980s no similar research was being done, as
few scholars could even conceive of a possible future shift from commu-
nism to democracy that would actually necessitate research on transition.
Any work on Eastern Europe was done in the West. Interestingly though,
around the same time as the end of the USSR, the Western agency per-
spective faced challenges in the form of a wave of “structuralism and the
wave of pessimism” towards democracy (Merkel 2010, 19). The main
focus of Western theoretical explanations of transition shifted from agency
back to structure-centered transition theories, and Eastern European
scholars were part of this rethink. Merkel argued that scholars such as
O’Donnell and Schmitter (1986) overestimated the power of political
elites. The belief that democracy can be promoted, supported or even
imposed from the outside began to dominate (Merkel 2004a). Agency
perspectives in the form of action theory were claimed to have shown
themselves to be deficient in the analysis of the political and socioeco-
nomic system transformations that overwhelmed post-communist Eastern
Europe. The works of Levitsky and Way (2002), Merkel (2004b, 2010),
Nathan (2003), Ottaway (2003) and Carothers (2007) highlight the shift
in the ordinary citizens’ perception of the democratic changes in new
post-Soviet democracies from the optimistic attitudes of the early 1990s to
the more pessimistic attitudes that have been increasingly common since
the 2000s.
Therefore, in the first years after the dissolution of the Soviet Union
and communism’s collapse, most studies of a state transition to market
economy and democracy, which tended to emerge from the West, were
rather formal and structural, as more and more Western scholars, lacking
contextual expertise, identified post-communist Eastern Europe as a natu-
ral laboratory for testing their generalizing transition theories. The authors
of the new wave of Western theories explaining transition (Mansfield and
Snyder 2002; Zakaria 2003; McFaul et al. 2004; Acemoglu and Robinson
2012) tried to take into account some of the features of the post-Soviet
countries. For example, they sought explanations for the development of
modernity in the history of particular countries. These scholars empha-
sized the negative role of the Soviet legacy as a factor that not only inhib-
ited processes of liberal democratization but made it impossible to even
apply general theoretical concepts of democratization to the post-­
communist region. Their assessment of the prevailing state of affairs in the
318  O. OLEINIKOVA

post-Soviet countries was pessimistic, although they did not discount the
possibility of a gradual change towards democratization.
This led to significant debate, especially in the political and social sci-
ences, about the relative value of these Western studies for providing an
explanation of the post-Soviet transition towards democracy. Much of the
contestation hinged upon how much one needed to know about national
and local culture and history to produce a good explanatory framework
that went beyond modernization and economic development dimensions.
The first scholarly works on transition in post-Soviet eastern European
scholarship appeared relatively recently, after 1990, by which time it had
finally become apparent that there was a real need to understand the con-
sequences of reforms and transitions from the inside. The first research on
transition in post-communist countries was determined by the dominant
structural paradigm, which was drawn from existing research in the
Western tradition. Post-Soviet social science in the late 1980s and early
1990s favored the authority of Western theories, and applied them, almost
without adaptation, to explanations of the post-Soviet social reality. These
theories included path dependence theory1 (Collier and Collier 1991;
Mahoney 2000; Pierson 2000), the third wave of democratization theory2
(Huntington 1991), and political mobilization theory.3

1
 “Path dependence” is an important concept for social scientists engaged in studying pro-
cesses of change. Being based on models of technological development used in economics,
the first wave of scholarship in political science and sociology applied the concept of path
dependence to political institutions, emphasizing lock-in and increasing returns (Pierson
2000), self-reinforcing sequences (Mahoney 2000), and the “mechanisms of reproduction”
(Collier and Collier 1991) of particular historical legacies. These works played an important
role in developing arguments about historical causation and interdependency of global devel-
opment, when less-developed countries follow the development logic of more advanced
states with successful democracies. Referring to the social developmental sequences, it was
later labeled “path dependent social dynamics” (Durlauf and Young 2004, 21; Blume and
Durlauf 2006, 15). The path-dependence theory of democracy underwent a harsh critique
for overstating the degree of institutional stability of the exemplar democratic states (Thelen
1999; Alexander 2003; Crouch and Farrell 2004; Hacker 2011).
2
 Huntington (1991) argued that international structural factors during the 1970s were
the causal sources for initiating Third-Wave democracy. Under structural factors he under-
stood the “regional contingency factor” or the Soviet equivalent of the “domino theory,”
where the success of democracy in one country causes other countries to democratize. He
suggested that post-Soviet states are being influenced by democratization effects, most nota-
bly by the efforts to spread democracy by the European Union and the United States.
3
 Political mobilization is a framework utilized to understand political participation in a
transition period.
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  319

Furthermore, theories of modernization were revived to explain demo-


cratic transition in post-Soviet countries, particularly in Ukraine. This
involved dominant discourses such as “catching up” with processes of
modernization and westernization, the need for development, overcom-
ing dependency, and reforming the state. In a search for their own
approach, post-Soviet scholars started to apply and develop early ideas
about the path from economic modernization to democracy and empiri-
cally test the relation between democracy and economic development. As
in the early 1950s to mid-1960s (Lipset 1959; Rostow 1960; Moore
1966), structural factors such as the degree of development of national
economies, the power of social classes, the autonomy of the state, and the
efficiency of its bureaucracy, once again became central to research on
system transformations (Merkel 2010). Despite the fact that the critique
of modernization theory from the Third World was severe (Frank 1969;
Roxborough 1988)—in terms of promoting the paternalism of developed
states over underdeveloped states—Pye (1990) and Lipset (1959) pro-
claimed the renaissance of a series of modernization theories by, Lipset
(1959), Moore (1966), and Roxborough (1979) in the post-Soviet
democratization and transition theoretical discourse. In 1999, Zaslavskaia,
a Russian scholar, under the influence of Roxborough (1979), described
“modernization in post-Soviet countries as contributing to a growing
capacity for social transformations” (Zaslavskaia 1999). In this approach,
the argument was that underdeveloped post-Soviet states, in terms of
democracy and market economy, are subject to social transitions only
through structural modernization effects.
East European scholars argued that a positive feature of modernization
theory was the emphasis on, and concrete analysis of, a wide range of
modernization processes that took place immediately after the collapse of
Soviet rule: urbanization, industrialization, rationalization, secularization,
marketization of the economy, democratization policy, the progress of
education, and other cultural processes. In other words, it suggested a
framework for the interconnected study of all major aspects of social devel-
opment that took place in the post-Soviet countries. An important step in
the development and application of modernization theory in the post-­
socialist countries was undertaken by well-known scientists and sociolo-
gists in Hungary (Andorka and Spéder 1994), Poland (Adamski 1998;
Domański 1999), the Czech Republic (Keller and Westerholm 2007;
Machonin 1997), and Germany (Zapf et  al. 2002; Zapf 1998). These
scholars, applying modernization theory to the post-Soviet context, ended
320  O. OLEINIKOVA

up criticizing it for its failure to reflect the multidimensionality of the tran-


sition process and for its limited explanation of structural and cultural
factors in the development of the post-socialist countries of central and
eastern Europe. Their criticism even extended to the updated and renewed
versions of the “catching-up” and “reflexive” modernization theories pro-
posed by Beck and colleagues (Beck et al. 1994; Keller 2002).
Therefore, the more research was done using modernization theories
to understand social change in the post-Soviet countries, the more chal-
lenges were encountered and the more concerns eastern European schol-
ars had. These critiques of modernization theories and their applicability
to post-Soviet transition context were based on the argument that they
did not sufficiently explain the nature of the structural shifts that were tak-
ing place in the post-Soviet space “simply because the historical vector of
these changes was not objectively set up, not preconditioned” (Yadov
1999, 14).
This growing critique of modernization theory was further escalated
after the release of a provocative series of publications by Przeworski et al.
(2000) in the West, questioning the relationship between development
and the transition to democracy. It was argued that economic factors alone
are not sufficient to account for the fates of democratic and authoritarian
regimes. The theories emphasizing the role of economic growth (Lipset
1994; Przeworski et al. 2000) were replaced in the West as well as in post-­
Soviet scholarship by more moderate concepts. These concepts include
the concept of “gradual transition” (O’Donnell and Schmitter 1986;
Carothers 2007), where transition is understood to gradually develop
from a time of “liberalization” to “democratization,” followed by the
deepening of democracy and its adoption by all social groups at the stage
of socialization. This latter stage provides a transition to a more “stable
democracy” which is the ultimate goal of transition. As Carothers (2002)
suggests, “gradual transition” is based on a recognition of the possibility
and inevitability of constant evolutionary change towards democracy, even
in those countries with strong authoritarian regimes.
In one form or another, Western theories of transition have long been
among the decisive explanations and conceptualizations influencing the
writing of theoreticians and sociologists, economists, and social reformers
in post-Soviet Eastern Europe (Kutsenko 2001; Babenko 2004). Given
the rapidly changing preferences of post-Soviet scholars following Western
research trends in analyzing changes in and prospects for political develop-
ment, it can be argued that the primary post-Soviet research on transition
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  321

was not conducive to a deep understanding and explanation of post-Soviet


development of democracy.
Ukrainian and Russian scholars (Naumova 1995; Zlobina 2003)
argue that, given the limits of the structural transition paradigm of the
1990s for understanding what is happening in post-Soviet societies, and
in Ukraine in particular, there is a need for a different approach with
more of a focus on an agency that would explain the structural shifts
related to changes on the level of agency (micro-level). Naumova explains
that a new theory should be able to widen our understanding of societies
in transition to include deeper, spontaneous shifts in social and individ-
ual consciousness that find expression primarily in the transformation of
a value system and in the formation of new, individual life strategies
(Naumova 1995, 7).
Consequently, by the beginning of the new century, scholars in the
post-Soviet countries had begun to create theories related to the cultural
and historical originality of post-Soviet people to explain the unique his-
torical development of their political tradition, national mentality, and
cultural heritage (Kohn et al. 2008, 141; Titarenko 2008, 23). At the
start of the 2000s, post-Soviet scholars made significant advances in
empirical descriptions and conceptualizations of post-communist transi-
tions. These scholars suggest that the most theoretically pertinent way to
approach the inter-relation between the components of transformation
processes in the post-Soviet space is to focus on: (1) targeted reforms of
basic institutions; (2) decentralization; and (3) semi-natural changes in
the social structure and change in agency (Panina 2002; Kutsenko 2004;
Golovakha and Panina 2006; Kohn et  al. 2008; Zaslavskaia and
Iadov 2008).
This is when the topic of decentralization enters discussions about the
transition to democracy and modernization in post-Soviet countries,
including Ukraine, on both theoretical and empirical levels. In most
democracies there is “often a close connection between decentralization
and democracy, though not necessarily a causal one” (Pandey 2005, 2).
Decentralization can be conceptualized as a multidimensional process,
composed of political, fiscal, and policy reforms. Decentralization strength-
ens private autonomy and political self-government and permits a market-­
like process in political decision-making. Political decisions become more
democratic, processes become more open, and civic freedom expands.
When we refer to processes of decentralization in any democratic political
economy, one question strikes our mind: Does decentralization facilitate
322  O. OLEINIKOVA

modernization and democracy? Analyzing Ukraine’s decentralization


reform, the discussion in section “Decentralization Reform in Ukraine:
An Effective Way to Promote Modernization?” leads to the conclusion
that decentralization does facilitate modernization and democracy.

II. Decentralization Reform in Ukraine:


An Effective Way to Promote Modernization?
There is a widely held assumption that the administrative decentralization
is a precondition for, or connected to, economic growth and social mod-
ernization (Rondinelli 1981). The modernization potential of a country is
determined by the presence of a strong industrial sector. In 2015, countries
adopted the UN 2030 Agenda for Sustainable Development and its 17
Sustainable Development Goals (SDGs) that offered a new road map for
humanity’s development. It serves as evidence that the world is experienc-
ing a renewed interest in the problems of the industrial sector of the econo-
my.4 The new goals have been developed to replace the Millennium
Development Goals, which had been in place for the last fifteen years. SDG
Goal #9—“to build resilient infrastructure, promote inclusive and sustain-
able industrialization and foster innovation” (UNGA 2015)—refers to an
active increase in the share of industrial production in the total employ-
ment index and GDP by 2030. This is envisioned to be achievable through
integration between small industrial enterprises and enterprises from other
sectors, modernization of infrastructure and industries to increase the effi-
ciency of the use of resources, the use of clean and environmentally safe
technologies and industrial processes, expansion of scientific development,
modernization of technological opportunities, and support for innovation.
In the context of industrial development and modernization, decentral-
ization is seen as a reform that has the potential to address a number of
social and economic development problems facing both developed and
less developed economies. Today, Ukraine is a country of paramount
interest for decentralization scholars globally, given its deep process of
devolution granting greater autonomy to regional governments that has
emerged with decentralization reform since 2014. This process dates back
to a strategy of democratization of the centrist post-communist Ukrainian
state as well as a modernization to improve efficiency in delivering public
services and give more power to local authorities and elites.

4
 https://sustainabledevelopment.un.org/post2015/transformingourworld.
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  323

The irrelevance of the previous economic development model (before


2014) in Ukraine, which was mainly focused on the export of raw materi-
als, as well as the lack of consensus among political and economic elites
around the new priorities to meet EU conditions for development and
innovation, indicated the need for a new modernization framework. The
regional and local government architecture of post-Maidan Ukraine con-
tained some of the formal elements of a decentralized and balanced sys-
tem, but in practice functioned in a similar manner to the highly centralized,
top-down structures that characterized the Soviet model of local
governance.
The idea of decentralization in Ukraine emerged in early 2000s. By
2014 the country had accumulated enough theoretical expertise on the
subject of decentralization among civil society and political elites, and suf-
ficient familiarity with challenges of translating European norms of local
self-government into Ukrainian law, to adopt decentralization reform and
draw up an obligatory plan of action. The goal of modernization in mod-
ern Ukraine is to build an economic system that meets the requirements
of today’s democratic society. This system is based on the intensification of
production, promoting the development of innovative and competitive
industries, creating new jobs, significantly increasing the share of high-­
tech products in the national export structure, and working well with EU
legal frameworks.
The rationale for the government’s decentralization strategy was set
out in two central documents, the “Concept of Reforming Local Self-­
Government and Territorial Structure of Power,” approved by the Cabinet
of Ministers in April 2014, and the “State Strategy for Regional
Development 2015—2020,” approved in August 2014. The “Concept of
Reforming Local Self-Government” identified the fragile financial and
material position of Ukraine’s territorial communities (approximately
12,000) as a serious hindrance to economic growth and living standards in
the regions. The reform documents emphasize the need for structural
reforms, which would produce “economic stability” by establishing differ-
ent levels of local self-governance with clear mandates and the financial
and administrative resources to provide quality public services. It is evi-
dent from the foregoing analysis that the amalgamation of territorial com-
munities and their ongoing development into the first port of call for
public services, together with technological innovation, will have pro-
found implications for the economic development and modernization of
the local government system and regions.
324  O. OLEINIKOVA

A number of issues are delaying visible results of decentralization


reform, and as a result modernization has been noticeably hampered since
its start in 2014. The key issues are: the conflict in and around Ukraine,
centralization of administrative tasks, an absence of well-defined responsi-
bilities, local authorities’ lack of organizational, technical, and financial
resources, duplication of structures, and, in some cases a resultant weak-
ness and incompetence in local authorities. Among the numerous obsta-
cles facing decentralization reform, the following have had a significant
slowing effect on modernization processes in Ukraine: (1) de-­
industrialization; (2) lack of a clearly identified national modernization
strategy; (3) absence of necessary constitutional amendments; (4) under-­
resourced local governments and centralization of administrative tasks; (5)
incomplete division of roles and functions between local and central gov-
ernment. Let us explore these five key challenges in more detail below.

1. De-industrialization of Ukraine
The world’s most advanced economies have for some time been character-
ized by a long-term trend of de-industrialization (a long-term decrease in
the importance of manufacturing) (Rodrik 2016; Hamnett 2018). The
steady decline in production is most noticeable in terms of employment.
For this reason, debates about de-industrialization often focus on job
losses. The share of manufacturing in national employment is steadily
declining in many parts of the world. Even in countries such as Republic
of Korea, Turkey, Mexico, and eastern European states, which saw a rise in
industrial production and employment in the 1970s and 1980s, manufac-
turing’s share of total employment is now in decline.
In recent years, de-industrialization processes have been recorded in
Ukraine, showing not only quantitative but also qualitative deterioration
of industrial output. The number of employees in the manufacturing sec-
tor decreased from 2,917,000 in 2000 to 1,511,000 in 2014, that is by 48
percent (State Statistics Service of Ukraine 2014, 131). The proportion of
the labor force in processing industries decreased from 21.3 percent in
2000 (State Statistics Service of Ukraine 2009, 189) to 16.9 percent in
2014. Manufacturing’s share of GDP decreased almost by three times.
Such trends have negative implications on the productivity of the working
age population. The generally declining demographic and employment
trends in the last five years are also consequences of conflict in and around
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  325

Ukraine which has contributed to a growth in death rates, massive emigra-


tion, and a wave of internal and external displacement.
The level of depreciation of fixed assets of processing enterprises is
increasing (67.5 percent in 2010 versus 60.2 percent in 2007). Among
the largest industries the highest depreciation levels are recorded in
mechanical engineering (84.3 percent in 2010 versus 68.9 percent in
2007; State Statistics Service of Ukraine 2010, 75), very bad figures for an
industry that is, worldwide, a driver of innovative economic development.
Labor productivity in manufacturing is declining sharply. Measured by
a labor productivity indicator, Ukraine lags far behind the other former
Soviet republics. Expert opinion attributes this phenomenon to a weaken-
ing of motivation to increase productivity, low education and skills, wage
strain, an increase in recent years in social transfers in the structure of the
population’s incomes compared to wages. Among the important actions
necessary to increase labor productivity are the restructuring of employ-
ment in the direction of increasing the share of innovative positions, which
implies the need for a systematic increase of labor productivity, as opposed
to employment in low-productive forms of economic activity (Lisogor
2010). However, it is impossible to ensure sustained economic growth
without solving the problem of profit sources and the formation of effec-
tive institutional models of profit maximization (Lisogor 2010).

2. No Clearly Outlined National Modernization Strategy


The need for modernization in contemporary Ukraine was first identified
in Heyets (2010). More comprehensive ideas of modernization were fur-
ther developed in the National Aid document prepared by the social sci-
ences and humanities section of the National Academy of Science of
Ukraine. After being scientifically tested, the idea of modernization formed
the basis of the President of Ukraine’s 2014 address to the Verkhovna
Rada “Modernization of Ukraine is Our Strategic Choice.” Various aspects
of modernization are also defined in the State Regional Development
Strategy for the period up to 2020. However, in Ukraine there is still no
clearly outlined national project of modernization, although the decen-
tralization of governance is seen as a reform that addresses a number of
social and economic development and modernization problems.
National industrial policy is the fundamental base in shaping a modern-
ization framework which will enable the transition of the economy to an
innovative model of development. In order to modernize the economy,
326  O. OLEINIKOVA

the priorities for industrial development must be clearly defined and set
out in the laws of Ukraine and in the strategic documents of the Cabinet
of Ministers relating to the development of ministries and departments
and the strategies for socioeconomic development of the regions. In
Ukraine, the process of industrial policy making in previous years was
unsatisfactory. The last State Industrial Development Program was in
place from 2003 to 2011. It was not until 2013 that the concept of a
national targeted economic program for industrial development for the
period up to 2020 was approved. Restoration of the processes of state
regulation of economic development requires the development and adop-
tion of a priority action plan for the development of industrial sector. Its
main directions of reform should be the elimination of resistance to inno-
vative technological modernization of the industrial sector; an adoption of
new technological structures to bring about advanced processing and
manufacturing of final-consumption products; and introduction of energy-­
saving technologies, particularly expansion in the use of non-traditional
and renewable energy sources (Kindzerskyi 2013).

3. Absence of Necessary Constitutional Amendments


The process of local government reform and decentralization often
depends on changes to the Constitution. In Poland, for example, the
decentralization of power began with an introduction of amendments to
the country’s Constitution. The Constitution of the Republic of Poland
was first amended immediately after the election of a Senate (the upper
house of parliament) in June 1989. Further, over the next nine years, a
number of normative acts were adopted aimed at implementing the pro-
cess of decentralization of power in Poland.
Unlike the Polish experience of local self-government reforms, in
Ukraine the draft law on amendments to the Constitution of Ukraine has
not been adopted. As of 2014, the government started the reform within
the framework of the effective Constitution. The major package of new
legislation has been developed and became effective, the priority legisla-
tive initiatives of which legislation are currently being implemented.
However, as of March 2020 Verkhovna Rada (the parliament of Ukraine)
has not introduced the necessary amendments on decentralization to the
Constitution. In the first instance, such amendments had to resolve the
issue of establishment of executive bodies within oblast (regional) and
rayon (district) councils, the re-organization of local state administrations
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  327

into controlling and supervisory bodies, and provide a clear definition of


the united territorial community as a political-administrative subdivision.
Despite the necessary constitutional amendments not having been
adopted, the proposals for such amendments stipulate that the powers of
local self-government bodies should be financed. Local governments
receive a share of national taxes (not just subsidies). Thus, local govern-
ments actually have their own financial resources and will not have a rigid
dependence on the national government apparatus.
Therefore, the process of decentralization requires legislative imple-
mentation in a logical and consistent manner, according to which changes
are first made to the basic law (e.g. Constitution) followed by other nor-
mative acts being adopted accordingly. Only then can local government
reform increase the efficiency of the use of budget funds, improve the
quality and accessibility of public services to the population, create the
basis of regional development, solve a number of infrastructure problems
(transport, garbage and waste disposal, water supply, maintenance and
repair of roads), act to reverse the emergence of depressed territories, and
provide stability, transparency, and other conditions for conducting busi-
ness, improving the inflow of investments, and develop the economy.

4. Under-Resourced Local Governments and Centralization


of Administrative Tasks
As mentioned above, modernization in Ukraine requires there to be con-
ditions under which industrial problems can be solved. One such condi-
tion is the participation of regions and territorial communities in ensuring
the industrial development of their territories. Effective modernization of
industry is not possible without modernization of the state economic pol-
icy associated with the redistribution of powers between national and local
levels of authorities. Such changes occur through decentralization.
The most important principle of the decentralization reform adopted in
2014 is subsidiarity, which implies the transfer of decision-making powers
from central to local organizational levels, with appropriate financial secu-
rity. This principle is applied as a political and an organizational norm of
the European Union, according to which political decisions must be taken
at the level closer to citizens, but with sufficient authority for their effec-
tive implementation. In practice, finding the optimal setting of the
decision-­making center may be the result of arrangements made between
the center and the local government.
328  O. OLEINIKOVA

The principle of subsidiarity is reflected in the Budget Code of Ukraine:


distribution of expenditures between the state budget and local budgets is
based on the need to maximize the provision of guaranteed services to
their direct recipients (Budget Code of Ukraine 2015). At the same time,
however, the principle of subsidiarity is absent from the current Law of
Ukraine “On Local Self-Government in Ukraine.”
The transfer of powers from the state bodies to a lower level of admin-
istrative and territorial structures is ensured by the transfer of necessary
resources for this purpose and by giving the local government authority
the right to decide on delegated powers based on local peculiarities.
Therefore, decentralization is accompanied by increased capacity and
power for local self-government bodies through the consolidation of
administrative-territorial units or through the creation of inter-­
municipal unions.
In 2015, the Law of Ukraine “On Voluntary Amalgamation of
Territorial Communities” (ATCs) was adopted, which aims to unite
neighboring local communities to form and secure their economic, social
and cultural capacity; to establish the order of association of communities
of villages, settlements, and cities; to provide state support to the united
territorial communities.
This law is aimed at supporting the will of ATC residents and giving
them an opportunity to form an economic, social, and cultural environ-
ment of villages, towns and cities on their own. It is believed that the
integration of territorial communities will contribute not only to cultural
and social improvement, but also to economic development, of communi-
ties through integration, as the integration of territorial communities’
budgets will provide an opportunity for the implementation of larger,
innovative projects. To implement this law, a special procedure for form-
ing wealthy territorial communities was developed and approved, contain-
ing practical provisions detailing the process of uniting territorial
communities. The amalgamation process got into full swing in 2016, and
by the beginning of February 2019, 878 ATCs had been established.
These communities were composed of about 4,018 former local councils,
with a population of 9 million (Decentralization Report 2019).
Another Law of Ukraine “On Cooperation of Territorial Communities”
provides an opportunity to address the issues of socioeconomic and cul-
tural development of territories, improving the quality of services pro-
vided to the population based on common interests and goals of
communities. By 2019, the register of co-operation agreements for
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  329

territorial communities contained 325 co-operation agreements


(Decentralization Report 2019), which mainly related to the implementa-
tion of joint projects on environmental protection and the, maintenance
and repair of social and transport infrastructure. In total, 925 communi-
ties had taken advantage of the mechanism (Decentralization Report 2019).
At present, in Ukraine, the state level of economic and administrative
management is still too concentrated in the center; the local level is not
provided with sufficient resources and accordingly the functioning of the
local executive system is not sufficiently dynamic. There are contradictions
in the system of local authorities. Without having to deal with their citi-
zens and failing to address their needs, the authorities are able to launch
only one style of modernization—mobilization, imposed from above and
restricted, eliminating the possibility of citizens making choices and exer-
cising freedom, which means that authorities are unlikely to meet public
needs (Kindzerkyi 2013). Successful modernization of industry within the
ongoing decentralization reform requires a clear definition and distribu-
tion of powers, resources, and responsibilities for conducting the indus-
trial policies assigned to each entity in government. At the same time, local
government must serve to solve the problems of industrial development in
their territories, and not create new administrative and bureaucratic mech-
anisms that will stand in the way of local initiatives. It is recommended
that local authorities draw on the experience of countries which have had
positive industrial policy outcomes in the context of decentralization of
public administration, adapting these experiences to Ukrainian national
and regional characteristics.

5. Incomplete Division of Roles and Functions Between Local


and Central Government
The division and optimization of local government functions has not been
completed yet. The system of distribution of state functions and the com-
petence of each level of government have not been fully established in the
relevant legislative acts. As a result, uncontrolled expansion of the central
state bodies’ functions seems to be the order of the day.

• The roles, functions, and powers of the central and local govern-
ments has not been separated and allocated; a duplication of func-
tions still remains. In certain sectors of government, there is a
noticeable hierarchical pyramid of competence, where functions and
330  O. OLEINIKOVA

responsibilities between local and central management clash. Such


overlap of functions leads to ineffective management and chaos in
terms of responsibility and accountability, wasteful spending of bud-
get funds, and a decrease in the quality of services provided by the
state. As a result, distribution of powers at “oblast–rayon” level has
no uniform, stable character, which results in a failure to change and
modernize in regional territories.
• The current system of central–local budget relations is characterized
by a lack of stability in the medium term, lacking clear and under-
standable principles for the distribution of income. Expenses and
budget transfers between levels are not clearly defined. Uneven dis-
tribution of income between the regions due to the huge variation in
the economic development of territories determines the need for an
active policy of equalizing budgetary provision of the regions and
territorial communities in order to achieve equal access to public
services and modernization.

This list of obstacles facing decentralization and effective modernization


in Ukraine makes it clear that all further developments in the ongoing
reform of governance and public administration system must be aimed at
optimizing functions and ensuring their effective distribution and perfor-
mance across all levels of government. The essence of decentralization
should not be the presence of formal legal features, but rather its practical
implementation.
It seems evident that a more decentralized governance system is likely
to be a more democratic and modernized system. As noted, decentraliza-
tion provides more opportunities for civic space and citizen participation
and, consequently, for independent groups to emerge, for new economic
models to appear, for modernization of the old regional systems, for polit-
ical opposition to develop and for individuals to practice and experience
the exercise of free choice in democratic governance. For all those reasons,
decentralization is a significant strategy in the efforts to modernize and
democratize Ukrainian society. However, decentralization reform in
Ukraine needs several more years to bring about visible regional
modernization.
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  331

Conclusion
Decentralization and regionalization have become the guiding principles
in world politics since 1960s, in line with accelerated modernization evi-
denced by foreign experience in managing the development of regions
(Arghiros 2016). While most developing national economies have intel-
lectually accepted the notion of decentralization as an essential condition
for political, economic, and social development, some have not been pre-
pared to take on the costly burden of long-neglected institutional devel-
opment at the local–regional level. Moreover, in some developing countries
political elites at the center have fought to retain their power, while the
elite at the local level, who are generally well-networked with central gov-
ernment authorities and may even have been paid to remain loyal to the
center, have been reluctant to disturb the status quo for fear of losing the
influence and benefits of their position. Despite resistance, policies of
decentralization have appeared in the planning documents and presiden-
tial speeches of developing countries around the world, and some signifi-
cant experiments with decentralization theory have been undertaken
(Crook and Manor 2018).
Ukraine is a good example here. Decentralization reform is one of the
few reforms in Ukraine that has a solid plan, strategy, and a clear concept.
An important feature of this transformation is the implementation of sev-
eral reforms in public administration in the context of decentralization:
reform of the territorial organization of power; reform of local govern-
ment; reform of regional policy. Despite the failure of the government to
introduce the required constitutional amendments in 2014, decentraliza-
tion has arguably been the subject of one of Ukraine’s most successful
reforms since the Maidan Revolution. The government has demonstrated
a genuine commitment to transferring responsibilities and resources to
local government authorities on an unprecedented scale, as reflected in the
extent of fiscal decentralization that has taken place for towns of oblast
significance and the new ATCs. Like Poland, where decentralization
played a significant role in the processes of economic development and
industrial restructuring, in the early 1990s Ukraine faced challenges after
the breakup of the USSR due to the imperative to reorient its exports
from the Soviet market to the European market. According to experts, the
restoration of the old industrial regions in Poland was a success due to the
cooperation of state authorities and local governments. The restructuring
of the economy was the task of the state government, the development of
332  O. OLEINIKOVA

small and medium-sized businesses was the responsibility of local authori-


ties. To attract investment local government provided the necessary infra-
structure, had the authority to offer tax incentives and privileges for utility
bills, had the right to communalize businesses and so on. As a result of
effective local development, Poland has increased its share of high-tech
exports. Ukraine in some ways is following the Polish scenario.
Can we conclude by saying that there is a positive linkage between
decentralization and modernization in Ukraine? How can the goal of
empowering local governments to act as efficient modernizers of the
social, economic, and political environment in their local territories be
achieved? Practical experience indicates several conditions necessary for
successful modernization as a result of decentralization. There is the con-
dition of secure existence and financing. This is a first necessary condition
for strong local government, without which they cannot perform properly
because their existence is in perpetual jeopardy vulnerable to authorities at
higher levels of government having the power to dissolve them easily or to
change their territories. The “middle way” in managing local government
and governance changes to develop a more pragmatic localism will help
accelerate modernization. Then, citizens are more likely to participate
because their participation has greater meaning and practical impact.
The second necessary condition is that the priorities of industrial devel-
opment in Ukraine must be clearly defined and set out in law. Adoption of
a clear modernization strategy for the country at national and regional
levels, which will enable the effective transition of the economy to an
innovative model of development, is crucial. The process of industrial
policy-­making has to be upgraded from the unsatisfactory level of previ-
ous years.
The success of modernization efforts depends largely on the availability
of sufficient resources and the possibility of using these resources autono-
mously for the development of economic and social initiatives in regions.
Autonomy refers here to democratic accountability and accelerated imple-
mentation of local modernization initiatives. It is apparent that although
there might not be a straightforward causal relation between moderniza-
tion and decentralization, the process of decentralization furthers mod-
ernization and democratization. The results of modernization of Ukraine
are not yet visible, as there are still issues, outlined in section
“Decentralization Reform in Ukraine: An Effective Way to Promote
Modernization?”, that are delaying the satisfactory completion of decen-
tralization reform in Ukraine.
11  DECENTRALIZATION REFORM: AN EFFECTIVE VEHICLE…  333

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CHAPTER 12

Decentralization in Ukraine and Bottom-Up


European Integration

Anne Pintsch

Introduction
The ongoing decentralization process in Ukraine is considered one of the
most successful reforms in the country so far. It started in 2014 with the
Concept of the Reform of Local Self-Government and Territorial
Organization of Power in Ukraine (Government of Ukraine 2014),
adopted by the government in the wake of the Euromaidan protests. One
of its main elements is the merging of smaller communities into so-called
Amalgamated Territorial Communities (abbreviated as ATCs in the fol-
lowing) or Ob’yednani Terytorial’ni Hromady. With their voluntary unifi-
cation, these newly established communities obtain more authority and
financial means (Rabinovych et al. 2018).
Political scientists ascribe many positive aspects to decentralization,
including the high responsiveness of public services to people’s needs,
higher levels of citizen participation, and lower levels of corruption (Saito
2011, 486–487). Despite the short lifetime so far of decentralization

A. Pintsch (*)
University of Agder, Kristiansand, Norway
e-mail: [email protected]

© The Author(s) 2020 339


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_12
340  A. PINTSCH

reform in Ukraine, scholars and experts have thoroughly examined the


process, with mixed conclusions (e.g. International Alert and UCIPR
2017; Aasland 2018; OECD 2018; Dudley 2019). In all cases, the authors
report positive developments, but they voice concerns, too. Overall, how-
ever, decentralization reform seems to assist Ukraine’s movement towards
its official goals of good governance, democratization, and overcoming
corruption. The same is reflected in European statements. The EU–
Ukraine Parliamentary Association Committee “[c]onsiders that the
decentralization process has been and continues to be highly beneficial for
Ukrainian citizens, in particular regarding improved quality of services,
the reduction of corruption at local level and the increased ownership of
local decision-making by citizens” (EU–Ukraine Parliamentary Association
Committee 2019, 8).
Given this positive relationship between decentralization and other
domestic reforms, the question arises whether and how the delegation of
power contributes to Ukraine’s strategic foreign policy goal of European
integration. This question can be approached from different perspectives.
Most generally, one can ask whether the successful implementation of
reform would bring the country closer to EU membership, as recently
codified in Ukraine’s Constitution. The answer, however, is clearly nega-
tive: membership is currently not offered by the EU. While there may be
some form of future “procedural entrapment” for the EU should Ukraine
comply with all reform requirements (Sasse 2008), this corresponds more
to a hypothetical than a real scenario. There is currently no EU member-
ship conditionality towards Ukraine. Alternatively, one can also approach
the question by asking whether the successful implementation of the
decentralization agenda could be seen as a sign of Ukraine’s compliance
with the EU–Ukrainian Association Agreement (EU–Ukraine 2014).
However, decentralization reform is not directly related to this agreement
(Hanushchak et  al. 2017), and progress will not directly contribute to
Ukraine’s further inclusion into the EU market or agencies.
Against this background, this chapter follows a sociological approach
and takes a different perspective on the question whether decentralization
fosters Ukraine’s European integration. In doing so, the European inte-
gration of Ukraine is not primarily understood in a formal–institutional
way, i.e. as the country’s inclusion into the EU system of institutions or
regulations. Instead, it draws on the conceptualization of integration in
terms of transnational social relationships. As Langenohl (2019) summa-
rizes: “European integration can thus be understood as a political project
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  341

with a sociological imagination that puts the broadening and deepening of


‘sociation’ (Vergesellschaftung, Georg Simmel) at center stage” (78).
More specifically, the chapter looks at the transnational relations of the
newly established ATCs, in particular at the existence of community twin-
ning partnerships with counterparts abroad and membership in transna-
tional European networks. In doing so, it builds on a literature that stresses
the significance for European integration of transnational cooperation at
local level. Section “Ukraine’s Decentralization Reform” presents some
basic points about Ukraine’s decentralization reform. Section
“Decentralization Reform and Ukraine’s European Integration” reviews
the literature on the relationship of decentralization reform with Ukraine’s
European integration. Section “Sociological Perspective on European
Integration” introduces a sociological perspective on European integra-
tion, and section “Community Twinning, Networks and European
Integration” takes a closer look at the role of community twinning and
networks. Section “The External Relations of Ukrainian ATCs” presents
empirical findings from a survey conducted among the authorities of the
159 ATCs founded in 2015 and analyzes ATCs’ participation in municipal
networks. The chapter closes with some conclusions and prospects.

I. Ukraine’s Decentralization Reform


According to Saito (2011), decentralization “is a process through which
subnational governments increasingly partake in deciding on and admin-
istering essential public policies” (484). Despite previous attempts to
devolve power to local communities in Ukraine, serious and successful
steps were taken by the post-Maidan government only in 2014. On April
1, 2014, it adopted the Concept of the Reform of Local Self-Government
and Territorial Organization of Power in Ukraine and kicked off one of
the most successful reforms (Sologoub et al. 2019). Since then, power has
been transferred from the central authorities to the ATCs, in the fields,
among others, of urban planning, education, and public health (Rabinovych
et al. 2018; Government of Ukraine 2019). However, decentralization in
Ukraine involves more than reallocating competences between different
levels of governance. On the one hand, political decentralization is
matched by fiscal decentralization (Betliy 2018), the second pillar of the
reform; on the other hand, it is interwoven with a seemingly contradictory
process of power concentration. Amalgamation, i.e. the merging of small
communities into ATCs, is the third pillar of the reform. The
342  A. PINTSCH

amalgamation process started in 2015 on a voluntary basis. By 2019, there


were 882 ATCs uniting 4,043 communities (villages, towns, etc.), which
corresponds to 36.7 percent of the total number of local councils that
existed at the beginning of 2015. ATCs accounted for 38 percent of
Ukraine’s territory and about 69 percent of the country’s population in
2019 (Government of Ukraine 2019). The rationale of this process is to
create larger units that are more capable than their smaller predecessors of
policy making and service provision.
The Ukrainian Constitution is the fundamental legal basis of decentral-
ization. Local self-government is guaranteed by Chap. 11. Moreover, in
1997, the country signed the European Charter of Local Self-Government,
which came into force in Ukraine on January 1, 1998. This document is
remarkable because it states the right of local authorities to “external rela-
tions”: according to Article 10 of the Charter, local authorities shall be
entitled to co-operate, to belong to national or international associations,
and “to co-operate with their counterparts in other States” (Council of
Europe 1985). As will become evident in more detail below, this right to
independent transnational relations is at the basis of the relationship
between decentralization and Ukraine’s European integration.

II. Decentralization Reform and Ukraine’s


European Integration
Decentralization reform has a firm place in EU–Ukrainian relations. In
Article 446, the Association Agreement provides that Ukraine and the EU
“shall promote mutual understanding and bilateral cooperation in the
field of regional policy, on methods of formulation and implementation of
regional policies, including multi-level governance and partnership” (EU–
Ukraine 2014).
The 2015 Association Agenda, devised to prepare and facilitate the
implementation of the EU–Ukraine Association Agreement, states that
dialogue and cooperation should cover, among other matters (EU–
Ukraine 2015, 8), “strengthening of the functioning of local and regional
self-government, and legal status of the service in local self-government
bodies, including through a decentralization reform devolving substantial
competences and related financial allocations to them, in line with the
relevant standards contained in the European Charter on Local
Self-Government”.
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  343

In order to substantiate its support of Ukraine’s decentralization


reform, the EU has contributed to it both financially and with the exper-
tise of its Support Group for Ukraine (European Commission 2014,
2019). Still, decentralization and Ukraine’s European integration are
related in an indirect rather than straightforward way. Although the EU
supports and monitors the progress of decentralization in Ukraine
(European Commission and High Representative of the Union for Foreign
Affairs and Security Policy 2018), it does not make its relationship to
Ukraine conditional on it. In contrast to many other reforms in Ukraine,
decentralization “plays a negligible role in the ‘conditionalities’ that gov-
ern Ukraine’s Association Agreement with the EU and the strengthening
of relations between them” (Dudley 2019, 5). The Association Agreement
does not include an obligation for Ukraine to take steps towards decen-
tralization. Consequently, even though it may be successful, decentraliza-
tion in Ukraine cannot be expected to be directly rewarded with a closer
relationship to the EU, let alone a membership perspective.1
Against this background, scholars have outlined some potential indirect
effects that decentralization may have on Ukraine’s European integration.
Andreas Umland (2019) describes two of them. He stresses that a success-
ful reform enhances the compatibility of Ukraine’s internal organization
with existing forms of decentralization in EU member states. In particular,
he points to the principle of subsidiarity as one of the EU’s fundamental
principles, based on Article 5(3) of the Treaty on European Union (TEU)
and a principle implemented in the EU’s member states. Shifting power
from Ukraine’s central government to local communities could therefore
be seen as a precursor to future steps of further integration, up to EU
membership: “The more deconcentrated and subsidiary Ukraine becomes,
the more similar it will thus look to other European nations, and the bet-
ter she will later be prepared for full accession to the EU” (Umland 2019).
This argument can be taken even further. In its present form, it
presupposes an external integration impetus: while decentralization is
valuable as and when Ukraine takes steps towards integrating into the EU,
it does not influence the probability that such steps would happen in the
1
 While the EU has no common institutional model regarding the public administration of
its member states, in 1995 it added an administrative criterion to the Copenhagen Criteria
setting forth the conditions for accession. Furthermore, a regionalized system of administra-
tion is part of the EU’s Acquis Communautaire on regional and cohesion policy, which had
and still has to be adopted and implemented by candidate countries. The EU, however, does
not prescribe a particular model of regional governance (LePlant et al. 2004).
344  A. PINTSCH

first place. One could, however, endogenize European integration in a


rationalist argument stating that the progress of decentralization reform
will have a positive effect on the cost–benefit analyses of EU member
states with regard to closer EU–Ukrainian relations. While the state of
decentralization would most likely be only one factor among many, the
prospect of well-designed and well-implemented intra-Ukrainian gover-
nance arrangements between the central authorities and local communi-
ties could lower the expected future costs of integration and might even
be considered a benefit. Thus, by influencing EU member states’ cost–
benefit calculations, decentralization reform could contribute to Ukraine’s
European integration, even if not decisively.
Apart from the practical benefits stemming from the compatibility of
decentralized systems, Umland identifies a second, ideational contribution
decentralization could make towards Ukraine’s European integration. By
decentralizing decision-making in Ukraine, the country does away with
centralist traditions originating in the Tsarist and Soviet past, and under-
lines its European character. In doing so, Ukraine “demonstrates her
belonging to the Western normative and cultural hemisphere. That in turn
makes Ukraine’s ambition to enter the EU and NATO a more natural
affair than it may have otherwise been” (Umland 2019).
This is an implicitly constructivist argument, according to which a
country strives for membership in organizations that represent the inter-
national community it predominantly identifies with. From this construc-
tivist perspective, it could be added to Umland’s argument that
decentralization reform influences not only Ukraine’s ambitions for EU
membership, but also the perceptions of the recipients of a potential mem-
bership application and, consequently, willingness to accept Ukraine as an
EU member. The more Ukraine is perceived to share the EU’s fundamen-
tal norms, the more closely it will be integrated into the EU’s structures.
A third potential effect decentralization has on Ukraine’s European
integration is mentioned by Dudley (2019), who points to the develop-
mental agenda behind the policy (5–6). Faced with various socioeconomic
problems throughout the country, the government perceives local self-­
government as a tool to address these challenges. If successful, this would
put Ukraine in a position to fulfil the obligations resulting from the
Association Agreement. As Dudley (2019) reports, “decentralization from
the Ukrainian government’s perspective is associated primarily with attain-
ing the level of regional economic development and competitiveness
required for alignment with European standards” (6). As discussed above,
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  345

successful decentralization and, subsequently, successful implementation


of the Association Agreement may have a positive impact on the EU mem-
ber states’ cost–benefit calculations with regard to the further integration
of Ukraine.
What unites the three presented ideas—underlining anticipatory rule
adoption and resulting rule compatibility, ideational similarity, and
enhanced compliance capability—is their focus on formal institutions.
Umland explicitly speaks of Ukraine’s “accession to” or “entering” the
EU, whereas Dudley refers to the terms of the EU–Ukraine Association
Agreement. This has two drawbacks: the EU currently has fundamental
reservations about further enlargement (e.g. Marciacq 2019), so the
mechanisms may be (partly) obsolete in practice. Furthermore, they
neglect the societal basis of European integration, highlighted by socio-
logical approaches. In a country in which 55 percent of the population has
never been abroad and another 16 percent goes abroad every ten years or
less (Interfax-Ukraine 2016), the fundament for European integration
might be rather thin when attention is paid to formal institutions only.

III. Sociological Perspective
on European Integration

Sociological approaches to European integration have long led a shadowy


existence. Recently, however, they have come to the fore again (e.g. the
contributions in Saurugger and Mérand 2010b). In contrast to focusing
on formal political institutions, they turn their attention to European inte-
gration as a societal process. Beyond this fundamental consensus, how-
ever, sociological perspectives on European integration are rather
heterogeneous. While some studies attend to a “European society” more
broadly, others concentrate on individual EU officials and the decisions
they take in Brussels, with particular attention to the decision makers’
social context (Saurugger and Mérand 2010a).
Sociological approaches, furthermore, differ with regard to epistemol-
ogy and the use of qualitative vs. quantitative data. Favell and Guiraudon
(2009) distinguish between research that enquires the “social bases” of
European integration following a bottom-up perspective and research that
identifies the effects of European integration on European society through
a top-down approach. With regard to the latter, they present examples of
studies on social stratification, social class, and identity. With regard to the
former, they list studies on regional ties and social networks created
through student exchanges, projects, and town twinning.
346  A. PINTSCH

It is argued here that such bottom-up sociological approaches are


worth extending to both Ukraine’s relationship with the EU in general
and to the specific question of the relationship between the country’s
decentralization and European integration. As pointed out above, political
science approaches focusing on formal institutions are likely to face limita-
tions when applied in the decentralization–integration case. Furthermore,
a sociological perspective would more closely reflect the opinion of
Ukrainian citizens. For them, successful European integration is not pri-
marily a matter of improved formal relations between the EU and Ukraine.
According to polls, it is mainly connected with “improved service at
social infrastructure facilities (hospitals, kindergartens, or schools)” (38.72
percent), improving “transport infrastructure […] (e.g. rebuilt roads or
comfortable and safe public transportation)” (33.36 percent), and “new
jobs and foreign investors in my city or village” (33.14 percent) (New
Europe Center 2018). All these demands are closely related to decentral-
ization reform, which aims to shift decision-making powers in the fields of
healthcare and education to the community level (Rabinovych et  al.
2018). If decentralization entails significant socioeconomic improvements
for the inhabitants of the ATCs, we can expect an increase in positive
domestic attitudes towards Ukraine’s formal European integration. This
in turn would give more legitimacy to Ukraine’s European agenda.

IV. Community Twinning, Networks


and European Integration

1. History of Community Twinning


According to sociological approaches, there are various ways to advance
European integration “from below.” This section presents two mecha-
nisms that help extend and strengthen regional ties as fundaments of inte-
gration: community twinning and transnational municipal networks. The
former refers to cross-border partnerships between communities, which
rely on formal agreements. These relationships are meant to last for an
unlimited period of time and do not focus on a single, specific objective
(cf. Tausendpfund and Schäfer 2018, 1–2).2 The link between

2
 In order to get a more comprehensive picture, the chapter will deal with informal twin-
ning, too. In this case, cross-border cooperation between communities takes place in the
absence of a formal agreement.
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  347

cross-­border community or town twinning and European unification was


established in the 1950s (Bock 1994, 13) and has been confirmed ever
since. When asked about the value and benefit of community twinning
with a French or German counterpart, French and German respondents
most often refer to its contribution to a united Europe (Keller 2018, 35).
While the integration potential of twinning was initially seen in the
framework of German–French reconciliation, it was later related to func-
tional cooperation, too. Bernhard Köhle detects a shift in Europe from
“partnerships of reconciliation” to “partnerships of integration” (cited in
Joenniemi and Jańczak 2017, 424). This could be observed when ties
between the EU and Central and Eastern Europe mushroomed and a
good deal of administrative know-how was transferred from the West to
the East, not least with a view to EU enlargement (Köhn 2006, 467–469;
Woesler 2006, 423–425). As Richter summarizes, such a functionalist
approach is no less conducive to European integration: “Problem-oriented
cooperation is the impulse that sets processes of integration into motion”
(Richter 1994, 49; own translation). This optimistic view, however, stands
in contrast to more skeptical attitudes to such instrumentalist develop-
ments. As critics warn, there is a danger that this new direction replaces
the intrinsic value of community twinning and squeezes laypersons out of
the twinning exchange (Langenohl 2019, 94). The active involvement of
citizens, however, is essential for the affective identification of Europeans
with Europe and the EU’s cohesion. Twinning has been found to contrib-
ute to pro-European attitudes (Fiedler 2006, 398). In a recent empirical
study, Tausendpfund and Schäfer (2018) found that town twinning pro-
motes citizens’ specific and diffuse support of the EU. More specifically,
they maintain that an individual’s engagement in town twinning activities
correlates with a positive attitude towards the EU.
The EU itself has financially supported town twinning since 1989
(European Commission 1997). This move was justified with a reference to
European integration: “The Community action in favour of town-­
twinning aims to encourage the involvement of ordinary people and their
elected representatives in European integration and to promote their sense
of belonging to the European Union” (European Commission 1997, 12).
Without explicitly referring to sociological approaches to European inte-
gration, the EU seems to expect the same dynamics: “The events orga-
nized by towns and their inhabitants through twinning schemes are a
reproduction in miniature of the process of integration pursued by the
Member States. Each twinning is a mini-Europe in itself …. Our towns
348  A. PINTSCH

really are building an integrated Europe” (European Commission 1997,


11). Interestingly, from the outset, the program was not only open to
towns located in EU member states but deliberately included town-­
twinning schemes with partner communities in “other European coun-
tries” (European Commission 1997, 13).
Around the mid-1980s, an additional process connecting municipali-
ties in Europe started. In the wake of the Single European Act,
Transnational Municipal Networks (TMN) began to emerge (Kern and
Bulkeley 2009, 312). The EU has actively initiated or supported these
networks with a view to transnational knowledge transfer in many cases,
among others on environmental issues (Giest and Howlett 2013, 341).
The EU’s system of “de-centralization and de-concentration of powers”
(Giest and Howlett 2013, 342) has been particularly conducive to the
growth of TMNs, even beyond the EU’s borders. As Kern and Bulkeley
outline, these networks foster communication and cooperation among
municipalities. Among other activities, they facilitate exchange on best
practices, organize study tours, provide funding for joint projects, and
encourage joint bids. Thus, beyond working towards their particular pol-
icy goal, the internal governing of those networks “serves to tie member
municipalities more closely together through day-to-day dealings on proj-
ects and to enhance these cities’ connection to the network” (Kern and
Bulkeley 2009, 321).

2. Community Twinning in Ukraine


Even though the city of Odesa was the first in Europe to be paired with a
transatlantic partner, namely with Vancouver in Canada in 1944 (Brkusanin
and Ellwood 2011, 12), there is no deeply rooted tradition of town twin-
ning in Ukraine. Reflecting the generally weak role local communities
have long had in the division of powers between the territorial levels of
government, twinning was described as “a vodka drinking occasion for
respective mayors” (Bartlett and Popovski 2013, 13). In 2010, Ukraine
counted 799 town twinnings, more than half of which were with com-
munities in Poland. Poland in turn—although comparable in size of popu-
lation and composed of significantly fewer local municipalities—counted
3,508 town twinnings. Slovakia—with a population of about 5.4
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  349

million—counted a comparable number of 801 twinnings (CEMR 2010).3


The reasons for the comparatively low number of Ukrainian communities
involved in town twinning are certainly manifold, but decentralization
reform, and in particular the amalgamation process, may contribute to
increasing the ties between Ukrainian and non-Ukrainian communities. A
too-small size of communities has long been known to be an obstacle to
twinning (European Commission 1997, 12). In the past, many Ukrainian
communities were too small to provide adequate public services to the
residents (Romanova and Umland 2019, 6). In 2014, Ukraine was ranked
32nd among 40 European countries in mean population size of its munic-
ipalities (Swianiewicz et  al. 2017, 10). It can thus be expected that the
creation of larger ATCs through amalgamation enhances the capacities of
Ukrainian communities and, in combination with fiscal decentralization,
gives them sufficient resources to participate in community twinning.

V. The External Relations of Ukrainian ATCs

1. The Survey
In order to study municipal external relations, and in particular the twin-
ning of ATCs with counterparts outside Ukraine, a survey among all ATCs
founded in 2015 was conducted in spring 2019. The decision to restrict
the study to ATCs amalgamated during the first year of the reform was
made under the assumption that it would take some time to establish con-
tacts abroad and set up partnerships. ATCs founded in 2015 are most
likely to have developed a working routine and built relationships with
communities outside Ukraine. This restriction could lead to slightly biased
findings. Given that the process of amalgamation is voluntary, it may be
the case that communities created early on in the reform process are gen-
erally more open to reforms (e.g. by having more reform-minded leaders),
external cooperation, and innovation. Consequently, the findings may be
more optimistic for these communities than for latecomers. On the other
hand, ATCs founded after 2015 may find it easier to set up international
contacts because they can draw on the experiences of older ATCs. As elab-
orated in more detail below, the membership data of thirty-eight ATCs in

3
 Number of local municipalities in 2012: Ukraine: 11,517; Poland 2012: 2,479; Slovakia:
2,930. Council of European Municipalities and Regions (CEMR), Members map, https://
www.ccre.org/pays/map/id:16, 8 November 2019.
350  A. PINTSCH

the transnational Covenant of Mayors network show that age of an ATC


is not correlated with its network activity.4 Thus, no excessive bias is
expected.
Based on recommendations in the methodological literature (Kirchhoff
et  al. 2010; Porst 2014), the questionnaire and the letter of invitation
were developed by the author in German and translated into both
Ukrainian and Russian by a student assistant originally from Ukraine
enrolled in political science studies at the University of Mannheim.5 While
the German version of both documents was checked and commented on
by a survey specialist,6 the Russian version was pre-tested by a Russian
native speaker with a political science background.7 Starting on March 19,
2019, the survey was sent to the e-mail addresses given on the ATC’s
websites. It was addressed to the heads of the respective ATCs (golova hro-
mady), indicated on their websites.8 The e-mail contained two versions of
the questionnaire. First, as Word documents in both Ukrainian and
Russian. These could either be downloaded, filled in and returned by
e-mail or printed, filled in, scanned and returned as an e-mail attachment.
The second option was to follow a link to an online survey set up under
Unipark.9 Users could choose between a Ukrainian and a Russian version
at the start of the survey.
After a couple of days, reminders were sent to the ATCs that had not
responded (or preferred not to indicate their name). In addition, the
author called the ATCs that had not responded after the reminder in order
to ask whether the e-mail was received.10
By May 31, 2019, sixty-six ATC representatives had completed the sur-
vey and returned the questionnaire. Ten ATCs returned the files by e-mail
(two of them in a scanned version, one was a duplicate of the online sur-
vey), whereas fifty-seven ATCs used the online version. In fifty cases, the
survey was started but abandoned before the end. Since many of these

4
 Among the 38 ATCs that are members of the network, ten were founded in 2015, 13 in
2016, 14 in 2017, and one in 2018 (Covenant of Mayors 2019).
5
 I thank Nataliia Larina for her help with the translations.
6
 I thank Christiane Grill for many helpful recommendations with regard to this project.
7
 I thank Timur Koroliuk for his help with the pre-test.
8
 However, it is not possible to ascertain that it was the heads of the ATCs who filled in the
questionnaires. Given the rather hierarchical administrative culture in Ukraine, it can yet be
assumed that the heads were at least informed about the survey.
9
 https://www.unipark.com/.
10
 It turned out, however, that calls were often not answered or only busy signals were
reached.
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  351

dropouts happened early on in the survey, too many answers were missing
and the data could not be used. Still, the overall response rate can be con-
sidered satisfactory. Table  12.1 summarizes the number of ATCs per
region (oblast)11—thus, the maximum number of questionnaires that

Table 12.1  Number and origin of replies (by May 31, 2019)
Name of oblast Number of ATCs founded in Completed questionnaires
the oblast(s) in 2015 from ATCs located in the
oblast(s)

Vinnytsia 2 2
Volyn 5 3
Dnipropetrovsk 15 5
Donetsk 3 1
Zhytomyr 9 2
Zakarpattya 2 1
Zaporizhzhya 6 3
Ivano-Frankivsk 3 2
Kirovohrad 2 1
Luhansk 2 1
Lviv 15 2
Odesa 8 3
Poltava 12 5
Rivne 5 0
Ternopil 26 6
Kharkiv 0 –
Khmelnytsk 22 9
Cherkasy 3 1
Chernivtsi 10 6
Chernihiv 5 0
Oblasts with only one 4 1
ATC founded in 2015:
 • Kyiv
 • Mykolaiv
 • Sumy
 • Kherson
Anonymous – 12
Total 159 66

11
 Since the survey participants were assured of the anonymous presentation of results, only
the oblasts in which the respective ATCs are located are mentioned here. To guarantee the
anonymity of respondents in oblasts where only one ATC was founded in 2015, the results
were aggregated.
352  A. PINTSCH

could be returned from there, and the number of actually completed sur-
veys. Returned questionnaires came from almost all relevant oblasts.
Twelve respondents decided to reveal neither the name of their ATC nor
the oblast in which their ATC was located.

2. Community Twinning
When asked how they generally assess the value of international coopera-
tion for the work of the newly founded ATCs, a large majority of fifty-­
three respondents replied with “very important,” and six more found it
“important.” Figure 12.1 shows all replies.
Experience with international cooperation is spread widely among the
ATCs: fifty-one out of sixty-six replied that they had taken part in some
kind of internationally funded program or project. Many referred to the
EU’s U-LEAD program.12 Eleven ATCs, however, did not report any
involvement in such activities. Four did not reply to the question. Given
the high level of ATCs’ participation in international programs and

3 01
3
6

53

no reply 1 not important at all 2 3 4 5 very important

Fig. 12.1  General value of international cooperation for ATCs

12
 U-LEAD with Europe: Ukraine Local Empowerment, Accountability and Development
Programme, https://eeas.europa.eu/headquarters/headQuarters-homepage/27392/u-
lead-europe-ukraine-local-empowerment-accountability-and-development-programme_en.
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  353

projects, it is surprising to see a general lack of staff responsible for EU or


foreign affairs. Only a few ATCs reported having such specialists. Of sixty-
six ATCs, fifty-one have neither an EU nor a foreign relations-­responsible
employee. Eleven ATCs have at least one of the two, four did not reply.
Staff responsible for general foreign relations are slightly more widespread,
with ten positions. Five ATCs employ personnel who deal with EU affairs,
but only four ATCs have both an EU and a foreign relations officer.
Whereas ATCs’ participation in externally funded assistance programs
is quite high, the same cannot be said for ATCs’ involvement in formal or
informal twinning of cities/ communities beyond Ukraine.13 Only a few
reported such partnerships. Seventeen ATCs have established at least one
formal partnership with a community located outside Ukraine, but forty-­
five ATCs, however, do not have formally established partnerships with
communities abroad, and four did not reply. Thirteen ATCs have partner-
ships not formalized by a written document and forty-nine do not; four
did not reply. Eight communities turned out to be very active networkers
with both formal and informal partnerships abroad. Twenty-two ATCs
have at least one formal or informal external twinning partnership. The
flipside of this number is represented by those thirty-nine communities
that are involved in neither formal nor informal twinning exchange. For
five communities the result cannot be established due to missing data.
Further analysis demonstrates that eleven of the seventeen communi-
ties with formal ties have a twinning relationship with just one foreign
community. Three ATCs have two partner communities each. Finally,
there is one community each with three, five and nine formal partnerships.
Thus, overall, thirty-four formal partnerships were reported. One com-
munity mentioned a formal trilateral twinning relationship, which was
counted as two formal partnerships. The oldest of these partnerships was
established in 2006, the most recent in 2019. Twenty-four of these twin-
ning partnerships were concluded after the start of the decentralization
reform and three before. For seven, the founding date was not mentioned.
The first group includes at least three communities that mentioned a
recent founding date of their twinning partnerships but, in fact, look back
on a previous partnership that was confirmed and extended to the newly
founded ATC. Within the second group, all previously existing twinning
partnerships have been extended to the whole ATC. There is one case in

13
 Please note that this is not identical with the EU’s technical assistance twinning pro-
gram: https://ec.europa.eu/neighbourhood-enlargement/tenders/twinning_en.
354  A. PINTSCH

which a previously established twinning relation of one of the entities that


united to form the ATC remained intact after the amalgamation and was
not extended to the ATC. Four communities mentioned previous partner-
ships that do not exist anymore. These partnerships concern counterparts
in Germany, Poland, Romania, and the Russian Federation.
By far the most twinning relationships were established with communi-
ties in Poland: the country was named twenty times. Other formal part-
nerships exist with communities in Belarus (2), Georgia (2), Romania (2),
Slovakia (2), Czech Republic, Hungary, Latvia, Moldova and Slovenia,
with one reply missing. Given the chapter’s focus on Ukraine’s European
integration, it should be noted that the large majority of partnerships
involves communities in EU member states, with the exception of Belarus,
Georgia and Moldova.
Regarding informal twinning partnerships of thirteen  ATCs, seven
ATCs have just one partner community, one has two, two have three, one
has at least two, and two did not reply. Overall, there are at least seventeen
informal partnerships in place. Given the informal nature of the relation-
ships, only four communities indicated a date when the partnership
started. All of these four partnerships commenced after the launch of the
decentralization reform. As with the formal community twinning, Poland
emerged as the country with most mentions; at least ten partner commu-
nities are located there. The other informal partnerships include commu-
nities in Belarus, Bulgaria, Czech Republic, Estonia, Germany, Hungary
and Romania, with one partnership each. Again, the majority of partners
are located in EU member states. However, as in the case of the formal
partnerships, there is a very strong orientation towards the Central and
Eastern European countries that acceded to the EU in 2004 and 2007.
The only partnership with a community in an EU founding member state
is the one with a German town.
Given the relatively low number of partnerships in general, it is not
surprising that only thirteen ATCs have designated an official for the rela-
tionships with foreign communities. Forty-eight ATCs do not have such a
contact person, and five did not reply. This may be connected to the lack
of specialists some ATCs mentioned when asked about problems in estab-
lishing twinning partnerships. Of the thirty-nine ATCs without any formal
or informal partner communities abroad, eighteen replied to the question
why they have not established any such ties (yet). In addition to the lack
of specialized personnel, several ATCs referred to a lack of experience with
such partnerships and general problems in finding a partner community.
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  355

There may be a variety of reasons for the difficulty in finding a partner


community, including scarcity of information, a lack of responsiveness
from potential partner communities, or long preparatory phases. Several
answers created the impression that the lack of an existing twinning part-
nership represents rather a high hurdle for establishing (further) partner-
ships. Other ATCs asked us to bear in mind that the administrative reform
in the ATCs was still going on. One respondent pointed to unresolved
issues of competences in this regard, and another one stated that there
were (more) urgent problem to solve in the communities at this stage. In
one community, establishing links with neighboring ATCs was given pri-
ority over external partnerships. One respondent traced the lack of part-
nerships back to a limited knowledge of foreign languages, while another
one referred to the geographical distance between the respective commu-
nity and Ukraine’s western border. In one ATC, a lack of awareness of the
opportunity to twin was seen as the main factor impeding such partner-
ships. Another respondent saw missing support as a barrier to new part-
nerships. All these reasons might be seen to be at the root of ATCs’
inactivity in setting up twinning relationships.

3. Transnational Municipal Networks


Exchange between European communities is possible through not only
twinning but also by participating in international associations and trans-
national municipal networks. However, only three instances were men-
tioned in the survey: the Council of European Municipalities and Regions
(CEMR, indirect membership through national association), the Mayors
for Economic Growth (M4EG) Initiative, and the EU Covenant of Mayors
for Climate and Energy. The analysis of the three membership lists revealed
that more ATCs are involved in the networks than had stated in the
responses to our questionnaire.
As the oldest and broadest European association of local and regional
governments, the Council of European Municipalities and Regions
(CEMR) brings together national associations from forty-one countries.
Founded in 1951, CEMR “promotes the construction of a united, peace-
ful and democratic Europe founded on local self-government, respect for
the principle of subsidiarity and the participation of citizens” (CEMR
2019). It is currently active in five issue areas, among them “Governance,
democracy and citizenship,” “Environment, climate and energy,” and
“International engagement and cooperation.” Ukrainian communities are
356  A. PINTSCH

represented through two different associations: the Association of


Ukrainian Cities (Asociaciya Mist Ukrayiny; AUC) and the Ukrainian
Association of District and Regional Councils (Ukrayinska  Asociaciya
Rayonnykh ta Oblasnykh Rad), both based in Kyiv. The latter is not of
direct relevance to ATCs, because it represents councils at higher (rayon
and oblast) levels. The former has 339 ATCs among its 781 members
(AUC 2019). Of the 159 ATCs formed in 2015, sixty-seven are organized
in the AUC (September 2019), which corresponds to 42 percent. Of the
fifty-­
four ATCs that completed the survey in a non-anonymous way,
twenty-­eight are members, i.e. approximately 52 percent. Interestingly,
however, when asked about relationships with international associations,
only one of them referred to the AUC.
One ATC mentioned the Mayors for Economic Growth (M4EG)
Initiative when asked about participation in international networks. This
EU initiative was launched in 2016 and is targeted specifically at local
authorities in Eastern Partnership (EaP) countries. Once communities
have become members of the “M4EG Club,” they receive support for
improving the local business environment in a sustainable and social way.
While much of the support comes from the initiative’s secretariat, the net-
work also aims at “cross-country cooperation between local authorities in
the EaP region” (Mayors for Economic Growth 2017, 9). According to
the initiative’s website, 108 ATCs have become members by September
2019 (Mayors for Economic Growth 2019). Among them, at least ten
were founded in 2015. When considering only the communities that
returned the survey questionnaire, the number shrinks to five.
Finally, another ATC mentioned its accession to the EU Covenant of
Mayors for Climate & Energy. This initiative was launched by the European
Commission in 2008. It aims at local communities that voluntarily agree
to implement EU climate and energy objectives. With the “Covenant of
Mayors East” initiative, the EU has particularly supported the participa-
tion of Eastern Partnership countries from 2011 onwards. After the
merger with the “Compact of Mayors” in 2016, the original initiative
became part of the “Global Covenant of Mayors for Climate and Energy.”
Until September 2019, 270 Ukrainian municipalities joined the “Covenant
community” (Covenant of Mayors 2019). There are 38 ATCs among the
signatories, including ten founded in 2015. Of these, five returned the
survey questionnaire.
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  357

4. Future Prospects
Five years into decentralization reform, the newly founded ATCs have
developed manifold ties to international projects, transnational municipal
networks, and communities beyond Ukraine. A vast majority of ATCs
acknowledge the value these forms of cooperation have for their work.
However, the chapter also reveals some contradictions. The bulk of
exchange takes place in technical assistance projects, involving partners
from the EU, EU member states, the United States or Switzerland. Yet,
only few ATCs have officials who are explicitly responsible for relations
with the EU or other international actors.
Sixty-one of sixty-six ATCs agree that twinning partnerships could
make an important or very important contribution to Ukraine’s European
integration. However, only twenty-two ATCs have at least one formal or
informal twinning partner abroad. At the moment, it is difficult to assess
whether bottom-up European integration through ATCs’ twinning part-
nerships will gain momentum in the future. On the one hand, forty-four
ATCs reported that a new partnership with a foreign community was
planned. Eighteen ATCs do not have plans to establish new partnerships
(four did not reply). Of the twenty-two ATCs that already have at least
one formal or informal partnership, twenty aim to initiate at least one
more, which corresponds to 91 percent. In contrast, only twenty-three
out of thirty-nine ATCs without any twinning partnerships have plans to
become the twinning partner of a foreign community, which corresponds
to 59 percent (one of those communities did not reply). These numbers
reflect one of the problems that respondents mentioned above. Having no
twinning partner yet represents a major obstacle to establishing new part-
nerships. Among ATCs striving for new partnerships, there is a clear trend
towards a twinning community in the EU: forty-three ATCs affirmed this
aim. Ten ATCs replied that they plan to find twinning partners in Europe
beyond the EU (multiple replies were possible). The same number of
ATCs is open towards twinning partnerships throughout the world. Five
ATCs are planning to establish twinning relations with communities in the
EU, within Europe more broadly, and across the world.
When it comes to concrete steps for initiating a new partnership, the
number of ATCs replying positively drops to less than half. Only nineteen
ATCs reported that they have already taken action to set up a new partner-
ship. In accordance with the above-mentioned trend towards partnerships
with communities located in the EU, sixteen ATCs mentioned such
358  A. PINTSCH

communities as addressees of their activities. Two ATCs have taken steps


towards establishing partnerships with European communities beyond the
EU, and three others have started preparations for worldwide twinning
partnerships (multiple replies were possible).
Thus, whereas many ATCs have plans and are optimistic with regard to
the conclusion of new twinning partnership agreements, these plans and
hopes are not necessarily matched by concrete activities. Despite the rela-
tively limited number of concrete activities to create new partnerships, the
majority of ATCs is (very) optimistic that they will found at least one
(more) twinning relation with a community outside Ukraine within the
next five years (Fig. 12.2).
In addition to the somewhat contradictory findings, some method-
ological shortcomings make it difficult to assess the prospects of Ukraine’s
European integration “from below.” For instance, we do not know much
yet about the depth of ATC’s twinning relationships or the strength of
their ties to networks. The fact that some ATCs did not mention their
membership in the Mayors for Economic Growth Initiative or the
Covenant of Mayors could be a sign that these relationships are not rele-
vant in their day-to-day business. This can only be confirmed by further
research. Further studies would be necessary to find out to what degree
citizens take an active part in community twinning. Still, by mapping

0
4
2

22

21

17

no reply 1 very unlikely 2 3 4 5 very likely

Fig. 12.2  Likelihood of establishing a new partnership within the next five years
12  DECENTRALIZATION IN UKRAINE AND BOTTOM-UP EUROPEAN…  359

ATCs’ societal links to European communities and networks, the chapter


substantiates the relevance of a sociological perspective on Ukraine’s
European integration and the role played by decentralization.

Conclusions
The survey revealed that a large majority of respondents see municipal
twinning partnerships as conducive to Ukraine’s European integration.
This opinion coincides with a sociological perspective on European inte-
gration and with empirical studies. Twinning, however, has not yet
unfolded its full potential in Ukraine. On the one hand, the number of
existing twinning relationships is still comparatively low. On the other,
ATCs’ plans to establish new twinning partnerships are often not matched
by concrete steps towards this goal. In order to close this gap, national and
transnational associations such as the AUC and the CEMR could promote
new twinning among their members even more actively.14 Existing part-
nerships could be strengthened by including Ukraine in the EU’s Citizens
for Europe Programme. So far, EU member states, Albania, North
Macedonia, Montenegro, Serbia, Bosnia Herzegovina, and Kosovo par-
ticipate in the program.15 Public bodies and non-profit organizations from
these countries are eligible to apply for funding related to town twinning
and networks of towns. Neither the European Neighbourhood Instrument
Cross-border Cooperation Programme nor the Eastern Partnership
Territorial Cooperation Support Programme represent equivalents because
they are restricted to neighboring regions and fixed-term project cycles.
What is more, the latter program only includes Eastern Partnership coun-
tries and is thus of limited relevance for ATCs planning to establish new
twinning partnerships with communities located in the EU. Community
twinning and community networks could also be included as focus areas
in programs supporting decentralization in Ukraine, such as U-LEAD
with Europe.

14
 Both the AUC and the CEMR already support communities in finding twinning part-
ners, among others by collecting and publishing requests for partnerships under http://2.
auc.org.ua/page/partnerstvo-mist-tvining and http://www.twinning.org/en/request/
ContactDetails#.XdHc8NUxmUk.
15
 Iceland, Liechtenstein, and Norway are potentially participating countries.
360  A. PINTSCH

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CHAPTER 13

Conclusions and Directions for Further


Research

Maryna Rabinovych and Hanna Shelest

Ukraine
In this volume, we have sought to contribute to the debate on territorial
self-governance (TSG) arrangements as a conflict-resolution tool by high-
lighting the complexity of the crisis in and around Ukraine. To demonstrate
this complexity authors have analyzed both historical and contemporary
aspects, legal and political backgrounds that led to the regional diversity and
self-identification of the regions of Ukraine. This particular case was chosen
not only because it is in progress, but also, as chapters of this book demon-
strate, because it gives a good basis for checking positive as well as negative
correlations between a decentralization and conflict resolution.
Myshlovska’s chapter illustrates that the case of Ukraine is characterized
by its vulnerability to the securitization and politicization of regional
diversity issues, rooted in the history of contemporary Ukraine, as well as

M. Rabinovych (*)
University of Hamburg, Hamburg, Germany
H. Shelest
Security Studies Programme, Foreign Policy Council “Ukrainian Prism”,
Odesa/Kyiv, Ukraine

© The Author(s) 2020 365


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9_13
366  M. RABINOVYCH AND H. SHELEST

an insufficient attention to diversity in pre-Euromaidan policies. Moreover,


as underlined by Lachowski, Barbieri, and Rabinovych in their respective
chapters, the conflict in eastern Ukraine should not in any case be regarded
as an internal conflict, determined by ethnic, linguistic, or history-related
cleavages. It is instead marked by an intense yet “hybrid” foreign support
of separatists, promoting narratives based on the securitization of diversity.
Last but not least, such foreign intervention creates multiple pressures for
the settlement process, in general, and on an application of the TSG
arrangements in particular. An insight into the debate surrounding the
implementation of the Minsk Agreements (as a debate, preceding the
recent Normandy Four Summit in December 2019 in Paris, and the sum-
mit communiqué itself) shows that the decentralization of Ukraine is not
only an internal affair of Ukraine, but creates much room for manipulation
by the parties to the conflict and even mediators. Against this background,
the case of regional diversity and decentralization in Ukraine, and the
Russian–Ukrainian conflict, can offer a number of lessons for both policy
makers, engaged in the “making” of regional policy, designing and imple-
menting TSG arrangements, and scholars studying conflicts and TSGs.
The main conclusions of this volume can be grouped as follows. Firstly,
the legacies of complex and overlapping history should not be ignored in
policy making, even if it may seem that ethnic, linguistic, religious, or
cultural differences do not develop a conflict potential. An example of the
long-lasting prevalence of the “Two Ukraines” concept in explaining
diversity in Ukraine also testifies to the fact that catchy, yet simplified
models of diversity bring at least two crucial risks. Foremost, the preva-
lence of such models prevents policy makers and wider society developing
a nuanced understanding of the substance of regional differences, and the
dynamics of diversity and identities, including the impact that policies and
laws have on them. Even more evidently, a general adoption of simplified
constructs and the lack of strategy for accommodating diversity and pass-
ing appropriate legislation creates fertile ground for outsiders to cultivate
a conflict. As perfectly proved by Myshlovska, conflicts emerge not because
of regional differences per se, but because of their interpretations by inter-
nal and external actors, as well as because of their (non)-reflection in cen-
ter–periphery relations and state policies. In this light, the “ringing phrase”
for us has been “the sense of abandonment from Kyiv,” articulated by a
well-known researcher of Ukraine in Berlin, as a decisive factor,
underlying Donbas residents’ support for separatism. Such a sense of
13  CONCLUSIONS AND DIRECTIONS FOR FURTHER RESEARCH  367

abandonment by central government in its executive actions, its policies,


and its legislation seems to generate significant conflict potential.
Secondly, as illustrated by Part I of the volume, there are at least three
“perfect means” for governments to create such a “sense of abandon-
ment.” As mentioned above, the simplest one is to take part in little or no
discourse on regional diversity. The second one is through political manip-
ulations pertaining to regional differences, as demonstrated by Nekoliak
and Pettai, who researched a strategic use of the Constitutional Court of
Ukraine by members of the parliament in language-related issues. Finally,
a crucial source of citizens’ sentiments of abandonment is rooted in the
country’s neo-patrimonial legacy. Excessive centralization, non-­transparent
budget relations, and a lack of funding for socioeconomic development
and infrastructure initiatives hamper regional development and promote
dissatisfaction with a central government that can be manipulatively
exploited by foreign actors seeking to destabilize the state. Therefore, an
important lesson all regionally diverse states with pronounced neo-­
patrimonial legacies can learn from the Ukrainian case is that a preventive
“fixing” of center–periphery relations is better for the state’s and regions’
development than implementation of TSG arrangements in post-conflict
settings.
Thirdly, foreign support tends to play a decisive role in activities of
the  secessionist movements, with autocracies being significantly more
prone than democracies to support such movements. Hence, Russia’s sup-
port for so-called “DPR” and “LPR”, and its initial and continuing mis-
leading appeal to ethnic, linguistic, and memory-related cleavages in
Ukraine, constitute essential factors to be taken into account, when pro-
posing decentralization rights as (part of) the conflict solution. As
Ukrainian case demonstrates, it is necessary to keep in mind that foreign
support for secessionism encompasses the active spread of disinformation
on regional diversity issues, sometimes reaching extremes (e.g. President
Putin’s December 2019 allegations that Donbas can become Srebrenica in
case the control over the Russian-Ukraine border be given back to Ukraine
before separate districts of Donetsk and Luhansk regions get their special
status fully operational). Even if structural reasons for the intrastate dimen-
sion of the conflict are being addressed in terms of the TSG arrangements,
misleading discourses can be used to re-ignite mistrust and serve the inter-
ests of a foreign state.
Next, as it can be substantiated by the case of “fake” territorial com-
munities, investigated by Barbieri in her analysis, foreign “support” is
368  M. RABINOVYCH AND H. SHELEST

difficult to identify and counter, given the extensive networks that a third
state can establish at the regional and local level throughout a “maternal”
state. Furthermore, foreign support for separatism is difficult to qualify
under international law and virtually impossible to address outside the
diplomatic realm. In sum, these findings once again demonstrate the value
of preventive monitoring of regional diversity dynamics, regional policy,
and potential foreign support for separatism in heterogeneous societies.
Fourthly, the Russian Federation’s discourse on Ukraine’s federaliza-
tion, discussed by Koval, testifies to the fact that states that give support to
separatists may manipulate not only through diversity issues, but with TSG
solutions as well. Subsequently, different objectives behind TSG solutions,
as interpreted and advocated by both non-democratic and democratic
actors engaged in conflict resolution, immensely politicize issues of federal-
ization, decentralization, or other TSG arrangements. In other words, in
conflict or post-conflict societies, changes to the administrative-­territorial
structure of the state and a status of government’s sub-national levels
become a matter of international politics, even though they belong to
domestic affairs in societies not affected by the conflict. Such a situation
entails numerous threats to a “maternal” state, such as it being forced to
accept a controversial externally promoted TSG solution in an exchange for
progress on security matters, a lack of local ownership of the new self-­
government design, and, in an extreme cases, a relapse into secessionism.
Thus, while there is no consensus in the literature regarding favorable cir-
cumstances for TSG arrangements’ effectiveness as a means of conflict
resolution, foreign support to one of the conflict sides and related politici-
zation of the choice of the TSG solution is a hindrance to conflict resolu-
tion. Consequently, a “maternal” state needs to exercise extreme caution
when agreeing to the TSG in the framework of the international settlement
talks, including TSG-related obligations to change domestic legislation.
In sum, the case of Ukraine is illustrative of the complex and overlap-
ping nature of themes that arise in relation to conflicts that involve foreign
manipulation over diversity issues and are characterized by both intra- and
interstate contradictions. Such themes include inter alia a historical consti-
tution of diversity and its interpretations, center–periphery relations in
states with neo-patrimonial legacies, a fuel power of foreign support, a legal
qualification of the separatists status, a politicization of the TSG arrange-
ments as a form of influence-seeking, trust-building, and preventing the
relapses of secessionism. Securitization of diversity issues and regional par-
ticularities during international peace talks is dangerous if looked at from
13  CONCLUSIONS AND DIRECTIONS FOR FURTHER RESEARCH  369

the “do no harm” perspective, as provoking construction of division lines,


rather than leading to the reintegration of the conflict-­affected states.
Notwithstanding the prominence and frequency of cases of the TSG appli-
cation as a conflict-resolution/ management tool in different parts of the
world, often proposed by mediators or other third parties involved, an
impact, both positive and negative of such arrangements, remains under-
researched, and deserves further empirical investigation.
Index1

A 88, 89, 91–102, 95n12, 100n13,


Amalgamated Territorial Communities 131, 145, 147, 149n3, 150, 152,
(ATCs), 12, 222, 223, 260–265, 152n6, 152n7, 153, 155–158,
269–278, 272n16, 273n21, 162, 164, 169, 172, 173,
275n23, 277n24, 277n25, 328, 193–195, 197, 203–205, 217,
331, 339, 341, 342, 218, 235
346, 349–352 Crimean Tatars, 8, 27, 28, 36, 37,
81–102, 153, 217
Crisis in and around Ukraine, 4, 6,
C 8–10, 108, 145, 365
Conflict in and around Ukraine, 1–12,
154, 174, 204, 220, 311, 324
Conflict resolution, 2, 5–11, 19–41, D
120, 188–191, 193–198, 200, Decentralization, 1–12, 33, 111, 171,
201, 203, 204, 241, 365, 188, 211–243, 259, 260,
368, 369 311–332, 339–359, 365
Conflict transformation, 9, 107–136 Democracy, 5, 11, 113, 120, 168,
Crimea, 3–6, 8, 20, 21, 26–30, 33, 190, 191, 204, 222, 227, 259,
35–38, 41, 65, 72, 81–84, 86, 260, 265–270, 312–322

 Note: Page numbers followed by ‘n’ refer to notes.


1

© The Author(s) 2020 371


H. Shelest, M. Rabinovych (eds.), Decentralization, Regional
Diversity, and Conflict, Federalism and Internal Conflicts,
https://doi.org/10.1007/978-3-030-41765-9
372  INDEX

Democratization, 6, 11–12, 19, 114, L


188, 191, 198, 259, 260, Language, 3, 7, 8, 19, 20, 22, 23, 25,
265, 311–332 26, 28, 35–37, 39, 41, 49–73,
Donetsk People’s Republic (DPR), 4, 85–87, 91, 92n9, 93–96, 101,
9, 9n3, 107–109, 108n1, 102, 110, 112, 114, 116, 121,
124–126, 145–154, 147n1, 159, 125, 128, 134, 168, 170, 194,
162, 164, 165, 169, 171–174, 195, 198, 214, 238, 240, 355
224, 228–230, 233, 235, Local self-government, 3, 5, 70, 127,
237–240, 240n41, 367 197, 201, 222, 223, 226n15,
234, 259, 261, 268n10, 269,
279, 313, 323, 326, 328, 339,
E 341, 342, 344, 355
Ethnopolitics, 50–52, 60, 68, 69, 72 Luhansk People’s Republic (LPR), 4,
9, 9n3, 107–109, 108n1,
124–126, 145–154, 158, 159,
F 162, 164, 165, 169, 171–174,
Federalism, 10, 187–205, 216, 224, 229, 230, 233, 235,
217, 267 237–239, 240n41
Federalization, 2, 9–11, 30, 31, 40,
113, 125, 126, 165, 171, 174,
188, 189, 191, 193–198, 193n1, M
200–202, 204, 205, 213, 213n4, Minsk II Agreement, 5, 127–129
214, 216, 217n9, 218, 226, Modernization, 6, 11–12, 20, 23,
229–242, 368 203, 311–332

H P
Hybrid war, 8, 188, 192 Power-sharing, 2, 3, 34, 38, 39, 41,
114, 214n5, 221
Putin, 125, 150, 167, 214, 214n5,
I 218, 229, 367
Identity, 1, 7, 8, 19, 25, 28, 29, 32,
37, 50, 61, 62, 72, 82–102, 121,
165n11, 168, 172, 190, R
241, 345 Region, 19, 19n2, 20, 25–29, 31–33,
Internally Displaced Persons (IDPs), 36–38, 41, 52, 65, 72, 84, 109,
86, 91, 100, 154 111, 135, 146, 148, 151, 194,
International law, 4, 9, 50, 59, 108, 198, 211, 218, 230–232,
108n1, 124, 131, 133, 135, 136, 240n41, 263, 264, 272n16,
145–174, 202, 368 273n20, 275n22, 317, 351, 356
 INDEX  373

Regional diversity, 1–12, 19, 34, 36, Special status, 10, 52, 111, 114, 115,
50, 83–84, 87, 164, 168, 169, 127–130, 132–134, 136, 151,
171, 365–368 165, 171, 197, 198, 201, 213,
Reintegration, 8–9, 114, 118, 127, 214, 219, 220, 232–242,
129–132, 136, 145–174, 234, 261, 367
235, 239, 241, 369 Steinmeier Formula, 9, 9n3, 109, 129,
Russian Federation, the, 3–6, 8, 10, 129n6, 132, 135, 136, 151, 152,
38, 81, 83, 86, 88, 92, 99, 102, 165, 171, 201, 236–238, 241
108, 109, 112, 113, 118, 119,
121, 125–126, 129–131, 135,
145–150, 151n5, 152, 153, T
155–165, 167, 169–171, 173, Territorial self-governance (TSG), 2,
174, 197, 212n1, 218, 235, 10, 365–369
240, 368 Transitional justice, 9, 145,
164–165, 174

S
Separatism, 10, 36, 38, 94, 102, Z
149, 211–243, 260, Zelenskyy, Volodymyr, 10, 133, 134,
366, 368 151, 151n5, 173, 214, 240–243

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