1- International sovereignty
The Minsk affair stressed the urgency, for Novorussia, to define its international status.
All Novorussia actors agreed that from now on, they must never sign any agreement within the Ukrainian legal frame and constitutional order (if there is one). Therefore, any new agreement will necessarily be international.
The contact group summit, by the way, was supposed to be international, and the theme of the meeting, if it was the project announced two days earlier by Putin, was definitely an international matter, precisely a ceasefire (an inadequate term for internal public order), proposing, among other things, an all-for-all exchange of prisoners, something that is only conceivable in an equal-to-equal relationship: same status for the prisoners of each pack and same legal capacity for the two actors holding and exchanging them. Nevertheless even a simple temporary ceasefire, even limited in space (to one sole front of the theater) is an international treaty contracted between two sides equally capable of signing an agreement, like an armistice that doesn’t name any victor. Even a capitulation, where one of the warring parties recognises its defeat, can only be signed between existing and reciprocally recognised authorities; for example, the last Yugoslavia (Serbia and Montenegro) signed such an act in 1999, which is obviously impossible when any state entity has been destroyed in the defeated country, as for example in Iraq in 2003 (unlike 1991) or in Libya in 2011.
[Please click below to continue reading]
The international character of Putin’s project was clear since it was dealing with the treatment reserved to prisoners (implicitly “of war”) and did of course not mention any amnesty, that domestic guarantee of impunity conceded by a government to incite an insurgent faction or a terrorist group to lay down its weapons, as for example in 1999 the amnesty that put a final end to the Algerian civil war by forgiving the offense of insurrection (having taken arms) but not the blood crimes (rapes, murders and bombings). Obviously, a criminal can be amnestied, but not a combatant or a military unit, own or enemy, who merely performed his civic duty (not considering here the case of war crimes). A war prisoner is a soldier presumably innocent, and the (international) Geneva Convention that formalised his protection defines the conditions for being covered by this protection, for example uniform and distinctive sign.
So the question that must know be resolved before the signature of any new agreement is the definition of the international actor.
One possibility is that the Donetsk Republic and the Lugansk Republic be both subjects of international law, Novorussia being in the case no more than an international organisation coordinating some sovereign members, like the Community of Independent States, the Council of Europe, the Mercosur or the Francophonie. The inconvenience is that if tomorrow Zaporozhie, Kharkov or a Commonwealth of Finally Liberated North-Lugansk join Novorussia, discussions between small republics will turn into cacophony and the negotiations between those and the biggest remaining chunk of ex-Ukraine will be unequal. This has already been seen, when Republika Srpska and Krajina believed that the former internal administrative limits of Yugoslavia predetermined them to fight within separate and isolated worlds, of when the governments of Republika Srpska and Herceg-Bosna missed the historic opportunity to confederate into a union of majority Christian peoples of former Bosnia & Herzegovina, remaining divided and ultimately ending up subjugated to the Muslim minority). The only advantage of maintaining, after emancipation, a division born from the internal administrative boundaries of ex-Ukraine (and ex-USSR), would be to make the coming fragmentation of the whole ex-Ukraine more obvious and to facilitate for example the declared secession of Transcarpathia and the coming secession of Galicia, which have obviously no predisposition to join Novorussia. But this complete division would not serve anybody other than the usual northern american chaos-monger. It would dilute the secessionist affirmation and break its interlocutor into pieces, and make the direct intervention of neighbouring countries (Poland, Hungary and Romania) more likely.
Another possibility is that Novorussia be the subject of international law and that its constituent republics don’t have this competency. This doesn’t absolutely require the institutional construction of a strong central state (see the case of the Helvetic Confederation), and could even be defined, while waiting for a definitive constitution, by a temporary agreement for the time of war. There are some instances of a rotating presidency between federated provinces, some other instances where a mandate is given to the most important (or most competent in one specific area) province, and some other instances where the federal level minister is chosen among his provincial pairs and cumulates two portfolios, federal and provincial, in the same area. The system of the United Arab Emirates, for example, combines the efficiency of the federal level with the respect of the emirate level and tribal sensitivities. The advantage of such a system is to speak with one voice, which facilitates international visibility, this voice becoming louder as more new republics join Novorussia.
To affirm its respectability, reassure its neighbours (current and future) and facilitate its recognition, this international subject must refrain from any external territorial revindication. At the level of its institutional communication (official maps and internet sites) as well as of informal communication (speeches by its political leaders), Novorussia must avoid proclaiming that it is destined or has the mission to regroup seven, eight or nine republics. It must forget the maps that show Crimea as attached to it, ban references to artificial former limits of ex-Soviet or ex-Ukrainian oblasts, and stop anticipating the intentions of peoples and governments from Transdniestria, Zaporozhie, Budjak and even from northern Lugansk. Clovis would not have lasted long if he had announced in 486 that France had a mission from Tananarive to Tahiti passing through Genèvre and the Butte Malheur… It is necessary, though, that the federal or confederal constitution of Novorussia allows the admission of new members without any revision of the texts, as in 1990 in the case of the Federal Republic of Germany. Today there are two constituent entities, and as other cities, regions or entities liberate themselves (nobody can ask the ghost regiment of Lugansk to go and free Odessa) they will join in, without necessarily exerting their sovereignty over the exact territory of a former oblast (which today is not the case of either Donetsk or Lugansk).
Who will represent the legal body of international status abroad does not matter. It can be a Foreign Affairs Minister of Novorussia, it can be the Prime Minister of the Donetsk People’s Republic or the President of Lugansk Municipal Council, temporarily “acting as”. The question of his designation is internal to Novorussia, but it is absolutely necessary to give somebody the mandate to represent the legal body abroad. Competencies, from foreign advisers as well as from students or pensioners among a several million people population, certainly do exist even if they may need to be identified, at a time when other matters seem much more urgent. Anyway, dozens of smaller countries than the Donetsk urban area have managed to build up and impose a diplomacy, as shown by Slovenia, Macedonia and Montenegro as not so old European examples.
Among the first missions of this minister or diplomat will be, of course, the assertion of the sovereignty of the country, and the introduction of admission requests to some international organisations, in the first place the OSCE in order to re-establish parity (ex-Ukraine already being a member) within the institution in charge of monitoring any (true) future ceasefire. By the way, Novorussia did express that its consent was necessary for the deployment of monitors on the Russian-Novorussian border, as well as for the investigation of the remains of the Malaysian plane; obviously, it gave that consent since the presence of foreign witnesses is in its interest. Another mission will be to develop mutual recognition agreements with other countries. This question, contrarily to what is often thought, is distinct from the one of international organisations created by multilateral treaties. To understand it, one just needs to observe that a hundred country members of the United Nations Organisation, among which some permanent members of the Security Council, recognised the “Kosova” regime imposed by force and foreign occupation in the province (Kosovo and Metohia) of a country (Serbia), a member of the same UN, and this despite the fact that a resolution of the UN Security Council solemnly reaffirmed the sovereignty of this country over this very province. About twenty countries recognise Taiwan, which is not a member of the UN (thanks to the Chinese veto), nevertheless 160 out of 193 UN members admitted this country into the WTO; the Holy See is not a member of the UN (nor candidate) but it is a member of the OSCE. The exchange of ambassadors with other countries and the participation in some multilateral organisations remains therefore, at this stage, a secondary question.
Before any future negotiation, which can only be international, it is urgent to determine whether the subject of international law is Novorussia or its constituent republics.
2- National sovereignty
The consequence of the Minsk affair also stressed the usefulness, for Novorussia, of identifying its national sovereignty.
The question may seem more sensitive than the one of the international legal body, but luckily it is less urgent.
In terms of constituent bodies Novorussia is obviously not a unitary state (it may become so some day, like Bielorussia). It can conceive itself as a federal system, with a central authority gathering several entities of equivalent or diverse status, as in the case of the former Astec and Austro-Hungarian empires or the current Russian Federation. As well, it can conceive itself as a confederal system, with sovereign entities contributing some common means, as in the case of the United Provinces of the Plata River (Argentinian Confederation) or the former Confederated States of America. Depending on these two configurations, the national sovereignty will then be central or shared. Chronologically (although it is a very short history), the two republics declared their sovereignty before considering a “common house”; however, from another point of view, the Donetsk Republic was proclaimed by the founder and popular governor of Novorussia. The question is not yet acute, but already on September 9 the Supreme Council of the Donetsk People’s Republic found it necessary to state that from now on, any state power body or official must base any contact with a foreign country or an international organisation on the declaration of sovereignty of the Donetsk People’s Republic. It will, therefore, be necessary to determine, without any ambiguity, whether the sovereignty is provincial (Donetsk and Lugansk) or national (Novorussia).
On that matter, it is useful to remember that although the rule in use in most of Europe and America in the last few centuries has been that the sovereignty is owned by the people (generally expressed in a parliamentary assembly), there are also countries, notably in Asia and Africa, where the sovereignty lies with the monarch, or even with God. In a more practical light, in some countries it is agreed that whatever commitment the government makes towards other countries, it is valid and binding only after having been ratified by the parliament, while in other countries international treaties are valid and opposable (executable) after promulgation by the monarch, precisely called the sovereign. We must also recognise that in some circumstances that the civilised world considers exceptional (although sometimes lasting, as in present-day Burma), the sovereignty of a country is embodied, legitimately or not, in a power that has no other mandate that the one it gave to itself. This does not prevent these regimes from being internationally recognised as holders of the sovereignty of the country, nor unable them to undertake commitments in its stead through international treaties, as in the case of the 20th century Spanish of Chilean dictatorships, or the “provisional government” of France at the end of WWII. This situation is different than the one where a country is considered occupied by a foreign power or by a domestic movement, and its sovereignty is therefore recognised in a body (government or monarch) in exile.
In short, any configuration is possible. But beyond a simple agreement that a military chief can make on the field with his direct enemy (simultaneous withdrawal or temporary ceasefire to go get the wounded between the frontlines or to let a humanitarian convoy pass), and while acknowledging that any representative sent by a country to a negotiation conference has supposedly the mandate to negotiate on its behalf, it would nevertheless be usefull that the authority holding sovereignty in Novorussia states, for its international interlocutors, who holds sovereignty and confirms the validity of the acts passed in its name by its mandatories. But this question of the internal face of sovereignty (who is Novorussia) is less important than the one of its international face: Novorussia is independent and sovereign.
The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of Oceania Saker.