To consult, or not consult, that is (not) the question

On March 11, Trilateral Contact Group (TCG) in Minsk provisionally agreed on setting up a “consultative council” with a view to facilitating implementation of the Minsk Agreements (see point 4 below).

Note that the council has not been established yet — the decision (see below) is to be signed at the next TCG meeting, scheduled for March 25.

The council is to be set up within the TCG political sub-group, and its main purpose is going to be “dialogue, consultations and working out proposals for draft political and legal decisions regarding the conflict resolution”.

The council is to consist of 24 members:
-10 representatives of Ukraine, with a right to vote;
-10 representatives of “DPR/LPR” [so-called Donetsk & Luhansk People’s Republics-dsz], with a right to vote;
-1 representative of OSCE + 1 of Russia + 1 of Germany + 1 of France, all 4 of them without a right to vote.

The council’s decisions are to be “of recommendation character” (non-binding), and shall be taken with majority of 3/4 of members with a right to vote, that is with majority of 15 members.

Now, what is actually going on and is there a reason to be worried?

To start with, the Minsk Agreements oblige Ukraine to consult and agree upon [1] the modalities of local elections in Donbas (I am simplifying a bit, as the elections should be held in the occupied territories only, but this is of second importance here), [2] special status of the “certain areas of the Donetsk and Luhansk regions”, as well as [3] the constitutional reform with “the representatives of the certain areas of the Donetsk and Luhansk regions” within the Trilateral Contact Group (see points 9, 11 & 12 below).

As agreed during the Normandy format summit in Paris, December 2019:

The sides express interest in agreeing within the Normandy format (N4) and the Trilateral Contact Group on all the legal aspects of the Special Order of Local Self-Government — special status — of Certain Areas of the Donetsk and Luhansk Regions — as outlined in the Package of Measures for the Implementation of the Minsk Agreements from 2015 — in order to ensure its functioning on a permanent basis (see below).

Even — no matter how controversial — wording of “comprehensive political settlement of the conflict”, which is present in the March 11 TCG’s protocol, was taken directly from the Minsk Agreements (see below).

So, basically, creation of the council seems to be a logical step on a path to the full implementation of the Minsk Agreements.

BUT

This is a novum as, so far, the Ukrainian authorities — there are some differences between Zelensky and Poroshenko on this particular issue, yet still — have rejected the possibility of direct consultations/negotiations with “DPR/LPR representatives”. Ukraine has engaged directly with Russia instead, so as to make sure Moscow does not escape its responsibility for the aggression. One may even say that the Ukrainian authorities — largely Poroshenko, to a lesser extent Zelensky — have been reluctant to implement the Minsk Agreements at all, and rightly so, since this will result in huge internal turmoil in Ukraine, which consequences would be even more serious than the ongoing fighting along the frontline in Donbas.

That is going to be the case no matter what German and French officials tell you — they cannot admit they brokered a deal, which is suicidal for Ukraine. Minsk is simply non-implementable, unless one wants Ukraine to implode. Surely, Russia does want it, and this is why each and every time Putin & Lavrov threaten that Russia would quit Minsk, they mean exactly the opposite and expect that Berlin and Paris would push Kyiv for further concessions. And it works.

Now, for this very reason of Minsk trap, an idea of setting up the council has been heavily criticised in Ukraine — for example, more than 60 deputies of the ruling Servant of the People party, which is Zelensky’s own party, have signed up a petition to Zelensky, calling him to abandon the plans to establish the council (see: https://docs.google.com/document/d/1PyZ324RW1uFhuNjClT9naQBGgcjf9PmsEco7dHnJspk/edit, although it looks like several of them have already changed their mind).

Of course, so long as the council is still not in place, the problem does not exist. But it looks like Zelensky is really keen on that particular idea, and even ca. 5000k protesters near the presidential administration cannot convince him otherwise (though I may be mistaken here).

And there is a good explanation for Zelensky’s position —according to Razumkov Centre’s opinion poll from February 2020, as much as 41% of Ukrainians support direct negotiations with “DPR/LPR”, and while 40% are against, this is the “compromise” most acceptable for the public. Well, in fact, this is the only “compromise” acceptable for the public (see below, I combined Razumkov’s data).

So, again, is there a reason to be worry?

Well, both YES and NO.

Setting up the council does not, de iure, legitimise “DPR/LPR”. But here comes an interesting thing — the Ukrainian side of the TCG has just signed a document with an extraordinary wording. Both “foreign ministers” of “DPR/LPR” are mentioned as “plenipotentiary [authorised-dsz] representatives” of the certain areas of the Donetsk and Luhansk regions (see below). I have not seen a thing like that before — correct me if I am wrong and such wording has already been in use.

This means the Ukrainian side of the TCG has approved that “DPR/LPR” structures represent the “certain areas of the Donetsk and Luhansk regions”. While theoretically this may be obvious, it is not. Here we assume that “DPR/LPR” and “certain areas of the Donetsk and Luhansk regions” are the same things, but it does not necessarily have to be like that. Exercising an effective control over the particular territory, which is the case with Russia via “DPR/LPR” in Donbas, does not have to be considered tantamount to being authorised to represent the local population. Why do not assume that IDPs, instead of self-proclaimed “authorities”, are representatives of both regions?

So here we have another, and this time a significant one, concession on behalf of Ukraine. Again, without reciprocity from the Russian side.

On a personal note — frankly speaking, this acknowledgment was inevitable anyway, but Ukraine could have sold it for a much higher price.

Now let us continue.

While formally TCG consists of three sides — Ukraine, Russia and OSCE, “DPR/LPR” representatives have been present there almost since the very beginning. But they took part in the meetings as observers, and they were also included into the Russian delegation. Therefore, at least officially, they have not been a side of the ongoing negotiations.

If the council is set up, this does not change the modalities of the TCG — “DPR/LPR” are still, theoretically, taken out of the equation. The political sub-group would still consist of Ukraine, Russia and OSCE, with “DPR/LPR” as observers. However, within the council itself, “DPR/LPR” is set to be on equal footing with Ukraine, with Russia being put aside as sort of mediator (surprise, surprise). That is one thing. The other is that, given the requested majority of the council’s 3/4 of members with a right to vote, “DPR/LPR” — de facto Russia — will gain a possibility to block any decision.

Here we have to come up with an additional scenario, which has largely remained on the margins of the discussion, but at some point was seriously considered in the Ukrainian expert community — a theoretical possibility that Ukraine and “DPR/LPR” team up against Russia. In which the Ukrainian authorities, engaging in direct negotiations with “DPR/LPR”, are able to secure an acceptable option of settling the situation in Donbas behind Russia’s back, which comes at a cost of maintaining more-or-less status quo in Donbas, but, at the same time, comes without the changes to the country’s political system. In such a situation, setting up the council would constitute a reasonable step in order to explore the ground for the eventual future deal. However, I do not consider this option viable given several reasons, and therefore I exclude a scenario that the Ukrainian authorities play such a sophisticated game with Russia.

Now, back again to the business.

One may say that the council is to be subordinated to the TCG’s political sub-group, and as such, it is going to be an advisory body without any real significance —remember that its decisions are to be non-binding. But let us not fool ourselves. Ukraine has long been under pressure to strike a deal with Russia, with Germany and France, among the most important parties, considering direct negotiations with “DPR/LPR” as a legitimate mean to achieve this aim. Therefore, one may assume that what comes out of the council is to be much more significant than just “of recommendation character”. In fact, with its formal “regulations”, “procedures” and “decisions”, the council is clearly expected to be much more than just an ordinary advisory body.

In other words — if the decision is taken within the council, where Russia is set to have a blocking option, the very same decision would be, beyond any doubt, considered by the TCG’s political sub-group, as well as the Normandy format, not as a plain recommendation, but as an obligation to be implemented. Ukraine will be under pressure to deliver, while Russia will, again, theoretically, stay aside.

But the council’s subordination to the TCG’s political sub-group is only a point of departure. One may expect the council to grow in importance as the time goes by. Note that the council is set to have an interesting composition of its members — it is to combine both TCG and the Normandy format, with formal inclusion of “DPR/LPR”. Now everyone, literally, is on the very same board. The reason is that Russia has been frustrated with a lack of “progress” in the ongoing talks (namely, Russia has been frustrated with the fact that Ukraine has not yet capitulated). So the council shall be considered as the inception of the completely new negotiation format, which, from the Russian perspective, should allow for doubling down the pressure on Ukraine.

And here we arrive at our destination — at the end of the day, the Ukrainian authorities simply do not have to cave in to the international pressure. No matter how many commissions and councils are there. According to the 2018 law on the occupied territories in Donbas, Ukraine can hold the local elections there only after the Russian troops are withdrawn, and only after the withdrawal is officially confirmed by the president of Ukraine at the joint request of the ministers of defence and internal affairs*, which makes for kind of safety net for Zelensky. Of course, Zelensky may embark on changing that particular piece of legislation, but this would not be so obvious, as many deputies from his party would vote against (although the others, like the Opposition Platform, would surely lend their votes), and this could also spark social unrest throughout Ukraine.

*Note that in February 2017 the possibility of holding a vote in Donbas without prior withdrawal of the Russian troops was mentioned by the German ambassador in Kyiv, Ernst Reichel, which caused widespread indignation in Ukraine.

(See more on the aforementioned law: https://www.pism.pl/publications/Ukraine_s_Law_on_the_Occupied_Territories_in_Donbas).

All of this lead me to the point that the idea of setting up the council is for Ukraine quite a risky endevour, but it does not mean ‘a catastrophe’.

Тобто це ще на зрада, але уже не перемога.

As I wrote in the PISM bulletin in February 2020,

while [the so-called special status for Donbas, or the introduction of the so-called Steinmeier formula, and several other Ukrainian concessions-dsz] would mark a step towards the realisation of the Russian scenario of ending the conflict, it would still not be definitely prejudged

(see: https://www.pism.pl/publications/Further_Lack_of_Progress_in_Settling_the_Situation_in_Donbas).

Much depends on Zelensky’s political will to fulfill Russian demands.

This brings me to the last conclusion, that, at present, any

“progress” in talks on the future status of Donbas can only be made at the cost of further concessions from the Ukrainian side

(again, from the aforementioned PISM bulletin).

Which also brings me to the last, fundamental question — should the Minsk Agreements, which were imposed on Ukraine in the situation of the Russian military offensive in Donbas, remain as the only option on the table?

Article 52 of the 1969 Vienna Convention on the Law of Treaties, known as the treaty on treaties, says that a treaty is void if its conclusion has been procured by the threat or use of force (see: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf).

But I am leaving this particular question unanswered for now.