Where there is no law, but every man does what is right in his own eyes, there is the least of real liberty
Henry M. Robert

We need clear guidelines

The Verkhovna Rada is to consider a bill on the restoration of sovereignty of Ukraine on January 16
16 January, 2018 - 11:06
Photo by Mykola TYMCHENKO, The Day

This Tuesday, the Verkhovna Rada is to consider the bill No. 7163, dealing with the restoration of Ukraine’s sovereignty. This document is sometimes referred to as the “reintegration” bill, although its very title clearly points to the fact of occupation. This draft law has seen many changes over the long time it has been in preparation. However, are the Ukrainian government and public really aware of all the subtle and painful nuances associated with the very process of restoring the territorial integrity of our nation?

Let us recall that the Verkhovna Rada passed the bill, initiated by President of Ukraine Petro Poroshenko, in the first reading on October 6, 2017. This document, in particular, regulates the legal basis for the use of the Ukrainian Armed Forces in the east of the country and officially labels the Russian Federation as the aggressor.

In turn, the Verkhovna Rada Committee on National Security and Defense inserted 238 amendments into the bill back on November 15, 2017. Importantly, the MPs stressed the need to emphasize not only the issue of the occupied Donbas, but that of Crimea as well. Thus, the committee decided to insert into the document the mention of Russian-annexed Crimea and to add to the preamble a reference to the date of occupation, which is considered to start on February 20, 2014. Also, a mention of the Minsk Agreements has been erased from the bill, since, according to experts, it could have come to be treated as a legal recognition of their legitimacy.

On January 10, President Poroshenko met with representatives of Ukraine in the Trilateral Contact Group on the Peaceful Settlement of the Donbas Crisis. It is indicative that such a meeting took place just before the vote on the draft law on de-occupation. Leonid Kuchma, Iryna Herashchenko, Yevhen Marchuk, Volodymyr Horbulin, and other figures took part in the event.

THE DAY AFTER ANOTHER SHELLING. AVDIIVKA, FEBRUARY 2, 2017 / Photo by Yevhen MALOLIETKA

Herashchenko stresses that for the humanitarian group, the second wave of hostage release is a key priority for the near future. Let us recall that former Prime Minister of Ukraine, Head of the SBU, Minister of Defense and Secretary of the National Security and Defense Council Yevhen MARCHUK, currently serving as a representative of Ukraine in the Tripartite Contact Group in Minsk, noted at the International Conference on Maritime Security last December that Ukraine and the rest of the world needed to seize every opportunity for maintaining dialog with the Russian Federation. Marchuk then compared a totally isolated Russia to a black hole. Such a state of affairs, in his opinion, may have much too negative consequences.

“WE HAVE NO PRESCRIBED MECHANISM FOR THE RETURN OF OUR LAND”

“I can clearly say that the draft law on de-occupation must be adopted, no ifs or buts about it,” The Day heard from member of the coordination council of The Power of Law NGO, former head of the Luhansk Oblast State Administration Iryna VERYHINA. “We need it, if only to finally call the war a war. From this term, everything else is derived, including in the legal field. I emphasize, we are not conducting some anti-terrorist operation (ATO), but waging a real war. And we also have to determine in the legal field that a part of our territory is occupied. I emphasize that it is occupation of Ukrainian territory by the Russian Federation, which should carry the corresponding legal consequences. The only thing that worries me is that we have no prescribed mechanism for the return of our land. That is why we in the Power of Law NGO have created an appropriate public platform for de-occupation and reintegration of our territories. Together with the public, we have to find the appropriate ways of restoring our sovereignty. As we have seen, the public is often more active than state institutions. Perhaps the process of returning the territories will not happen as quickly as we would like. But this will surely happen. And here it is important not to forget that the occupiers must compensate for damages suffered by Ukrainians. After all, it is Russia that is to blame for material and moral losses suffered by millions of Ukrainians. And that is why Russia should compensate them in full. I would like to emphasize that Crimea and the Donbas cannot be treated separately. The sovereignty of our state is held sacred by Ukrainians. It affects not only certain territories, but also the integrity of the state as a whole. Therefore, this bill should have been passed a long time ago. Unfortunately, there are certain political speculations around it. It should have been enacted as early as last year, but we see that political horse-trading is continuing. Everything depends on the will of the president. If he makes a decision, then the bill will be passed into law. It turns out that we can trade with the occupier nation, but cannot call the war a war. And it is internally displaced persons (IDPs), once again, who become hostages of such a policy. I would like to emphasize separately that I want to see IDPs getting back their voting rights at the legislative level. This is a big problem, because we have a lot of Ukrainian citizens who are effectively barred from influencing the nation’s politics.”

“THE GOVERNMENT IS JUST FAKING ATTEMPTS TO RESTORE THE TERRITORIAL INTEGRITY OF OUR STATE”

In his turn, Candidate of Law, senior research fellow of the Koretsky Institute of State and Law of the National Academy of Sciences of Ukraine Mykola SIRYI emphasized in his comments for The Day the basic conceptual tasks associated with the restoration of state sovereignty: “Even if we are talking about a purely legal aspect of the issue, we still have to proceed from the objective of restoring the territorial integrity of this country,” Siryi said. “This is the basic question from which all other means of its implementation should derive. So far, I do not see an answer to this question being offered. We often talk about the international community now, which seems to be the guarantor of this objective being reached. Of course, this is an important tool, but it cannot be, so to speak, the principal one. The real basis is our desire to restore sovereignty. Therefore, any talk of reintegration without a clear strategy for the restoration of sovereignty is somewhat meaningless. The only goal that this bill can achieve is the recognition of the fact of occupation of our territory. The Ukrainian state should establish the nature of relations with Ukrainians who have found themselves in the occupied territory, which would bring us closer to restoring the territorial integrity of our state. This is the crux of the matter, and it is in this context that legislative and executive decisions should be made. So far, it seems that the government is just faking attempts to restore the territorial integrity of our state. They are making waves in the media space, but it does nothing to restore the abovementioned integrity. We must clearly understand that we have now two levels of relations – with the aggressor and with the people who live under occupation. This requires a clear strategy at the national level and principles that need to be unfailingly respected. The aggressor will abandon our territories when it really feels our strength. And we must demonstrate our ability to protect ourselves in every possible way. Ukrainians who find themselves in the occupied territory, in turn, should feel that the greater Ukraine has not forgotten about them. Their connections with the greater Ukraine should not weaken, but, on the contrary, grow stronger. For example, the question arises: where will children who remain in the occupied territory go to study? We must also give a thought to the situation where people are forced to go to the occupied territory because of family circumstances. In which hospitals should they be treated, Ukrainian or Russian ones? All these questions should be answered by the Ukrainian state. And the context for these answers, I emphasize, should be making Russia to perceive Ukraine as a serious military adversary.”

“WHILE PERFECTING THE DRAFT LAW ‘ON DE-OCCUPATION,’ NOBODY HAS CROSSED THE RED LINE”

International lawyer Volodymyr VASYLENKO, who has been directly involved with drafting the bill “On the Peculiarities of State Policy on the Restoration of the State Sovereignty of Ukraine over the Temporarily Occupied Territory of the Donetsk and Luhansk Regions of Ukraine,” has noted that, despite attempts to radically remake the bill, it has not undergone any major changes.

“Talking about the draft law on de-occupation, which has been published on the website of the Verkhovna Rada, I should say that it is acceptable in principle,” Vasylenko commented for The Day. “However, it needs some cosmetic clarifications that should improve the legal technique on the issue. The fact that this bill has been met with unconstructive noise means that Russian agents in Ukraine are working at full capacity. For them, the adoption of this bill is a thorn in their side, because it is this bill that, if adopted, will effectively protect the interests of Ukraine. After all, this bill clearly defines the real state of affairs, namely the reality of the war and the occupation of Ukrainian territories. Prior to this, there was a fog of definitions in which it was unknown who fought whom, and the Russian Federation in general seemed to have nothing to do with it. Worse still, the Russian Federation is artificially positioning itself as a peacekeeper who only seeks to help Ukraine. This is wrong, and we have to make it clear on all levels, including in the legal dimension. As for the draft law itself, in fact, there have been many amendments proposed to it. Those passing the common sense test have been inserted into it. A lot of compromise proposals have made it to the text as well. There is nothing strange about this, and this work does not contradict the essence of the law. I hope that the draft law will be adopted on January 16. It should be noted separately that the just-mentioned bill makes no mention of the Minsk Agreements. But this does not mean that Ukraine refuses to comply with its obligations. At the same time, we must understand that the security issue must be resolved first and foremost in the framework of the Minsk Agreements. The second point is that all political issues should be dealt with on the basis of universally accepted principles of international law. In the process of drafting the bill, I have really had to persuade some politicians of the need for appropriate wording. I have also had to make certain compromises, but nobody has crossed the ‘red line.’”

Thus, this week, the Verkhovna Rada will have an opportunity to put an end to the abstract definitions that have plagued Ukraine since 2014. The ATO will then be officially called a war, and the de facto occupation will be de jure recognized as such. This, in turn, should also affect the legal aspect of the matter, since the wording and definitions used determine the consequences in terms of bringing claims of damage against the aggressor. As practice shows, NGOs take initiative and come ahead of government representatives in this field.

By Valentyn TORBA, The Day
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