Secessionism and Separatism Monthly Series: “When Separatists Don’t Separate: The Case of Eastern Ukraine” by Andre Liebich

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H-Nationalism is proud to publish here the eighth post of its “Secessionism and Separatism Monthly Series”, which looks at issues of fragmentation, sovereignty, and self-determination in a multi-disciplinary perspective. Today’s contribution, by Professor Andre Liebich (Graduate Institute of International and Development Studies, Geneva), deals with Ukraine as the second in our series of case studies.

In spring 2014 militants in Eastern Ukraine proclaimed the People’s Republic of Donetsk and soon thereafter the People’s Republic of Luhansk.  Western media refer to these entities as “separatist” (the official Ukrainian designation is “terrorist”).  Yet, after more than two years of existence, they have not separated.  Why not?

In the first flush of excitement, the authorities of the two breakaway republics loudly proclaimed their intention of following a “Crimean scenario.”  They would first declare their independence from Ukraine and then petition to join Russia.  They were further encouraged to envision expanding their scope by evidence of unrest in other Ukrainian regions and by the weakness of Ukrainian military means.  Donetsk and Luhansk united in proclaiming a union that it named Novorossiya, endowed with a flag consisting of a red St. Andrew’s cross with white borders against a blue background.  Although the flag drew on a little remembered tsarist precedent it bore an uncanny resemblance to the flag of the Confederate States of America.  In the spring and summer of 2014, Novorossiya prepared to extend its authority over Southern Ukraine, including the port city of Odessa, and reaching up to the Moldovan breakaway region of Transnistria.  The name adopted, Novorossiya, was a historic construction that dated back to the nineteenth century imperial tsarist project of colonizing Russia’s southern territories covering much of what is presently Ukraine and extending unto the shores of the Black Sea.  Putin himself briefly used the term “Novorossiya” but the project of a new “Novorossiya,” never came to fruition.  Local resistance, as well as strong opposition from irregular Ukrainian forces, obliged the partisans of Novorossiya to abandon their ambitious project.  In the late summer of 2014, Ukrainian military units pushed back the “separatist” (or, in their vocabulary, “terrorist”) armies thus threatening the very existence of the self-proclaimed peoples’ republics in Eastern Ukraine.  It was only direct Russian military intervention that more or less re-established the status quo ante even as it put an end to dreams of Novorossiya.  The Union of Donetsk and Luhansk that was the vehicle of this concept was quietly dissolved in 2015.

The People’s Republics of Donetsk and Luhansk continued to exist, however.  Polls undertaken by the Pew Research Centre in May 2014 showed that, whatever the thinking of the leadership that had seized power, the great majority of the population (70%) wanted to remain in Ukraine.  This was true even for a majority (58%) of those in the East who defined themselves as Russian.[1]  Their quarrel was with the new nationalist government in Kyiv whom Russian media, prevalent in Eastern Ukraine, were describing as “fascist.”  Even those skeptical of the Russian presentation of events were moved by images of far-right demonstrations in Kyiv commemorating such villains (in Russian eyes) as Stepan Bandera, the head of an ultranationalist movement (OUN) in wartime Western Ukraine and the spiritual leader of Ukrainian partisans (UPA) who collaborated with Nazi Germany, murdered Jews and Poles, and continued the struggle against Soviet power after the war. Eastern Ukraine shared the Russian cult of the “Great Fatherland War” and that of liberation by the Soviet Army to such an extent that contrary views were seen as sacrilegious.[2]  Moreover,  after more than twenty years of living in an independent Ukraine that recognized only one official language, Ukrainian, in spite of the existence of a substantial Russian-speaking minority (officially, estimated at 17%) and the prevalence of Russian in all walks of life, Eastern Ukraine had finally benefited from the recent recognition of Russian as a regional language, a much contested disposition adopted to bring Ukraine into conformity with its commitments to the Council of Europe under the terms of the Charter for Minority and Regional Languages.[3]  It was this disposition that the new Ukrainian parliament sought to abolish and, even though the abolition failed to obtain presidential assent, it confirmed Eastern Ukraine’s suspicion of the new régime in Kyiv.  In short, there was widespread sympathy for the spirit in which the “separatist” authorities defied Kyiv but little desire to break ties definitively with Ukraine.

The most important factor behind Donetsk’s and Luhansk’s failure to carry through on their leaderships’ project of separation from Ukraine and adherence to Russia was Russia itself.  Moscow was surprised by the vehemence of international reaction to its annexation of Crimea.  Whereas the Kremlin had compared this move to the declaration of independence of Kosovo, world opinion saw it as a flagrant violation of international norms, the forceful seizure of territory that belonged to another state in direct contradiction not only to general principles of respect for the integrity of state territory but to Russia’s specific commitment to Ukrainian integrity as embodied in the Budapest Declaration of 1994 according to which Russia (as well as the United States and the United Kingdom) guaranteed Ukrainian borders in return for Ukraine’s adherence to the Treaty on Non-Proliferation of Nuclear Weapons.  Many observers acknowledged that most inhabitants of Crimea would have voted for adherence to Russia in a free referendum but non-Russian media managed to sweep aside the referendum held in Crimea as fraudulent and held under duress.  Russia’s appeals to the principle of “self-determination of peoples,” (the argument that had prevailed in the West during the break-up of Yugoslavia in the 1990s) made no impact.  Indeed, the members of the United Nations Security Council all (with the exception of Russia, of course) voted to condemn the Russian move, with even Russia’s ally, China, abstaining.  Such a reaction certainly gave Russia pause.  It underlay Russia’s reluctance to pursue the Novorossiya project and it explains, in part, Russia’s unwillingness to welcome Donetsk and Luhansk into the Russian Federation, as it had welcomed Crimea.

Even more important, however, is the role that Russia seeks to have Eastern Ukraine play with regard to Ukraine itself.  Sober minds in Russia acknowledge that, for a long time to come, Ukraine would not be the “little brother” to Russia that it once was seen to be (at least in Russia).  Ukrainian identity has now coalesced around anti-Russianism, a sentiment that was once prevalent only in Western Ukraine but now has spread throughout most of Ukraine.  Russia no longer has realistic hopes of integrating Ukraine into its Eurasian Union, an Eastern response to the EU, thus perhaps dealing a fatal blow to the future of the Eurasian Union.  Russia does, however, count on attaining its overwhelmingly important goal:  maintaining Ukraine outside NATO.  The prospect of this important neighbor entering an alliance that Moscow considers as anti-Russian as it had once been anti-Soviet is a nightmare for the Kremlin.  In its eyes, NATO is bent on reducing Russia to the status of a compliant minor power, through all possible means including internal subversion and fragmentation, military threat, and economic pressure.  Absorption of Ukraine into NATO would be a significant step in that direction.  The existence of the Donetsk and Luhansk Peoples’ Republics, under the influence of Moscow, is thus the most important card that Russia has to play with regard to Ukraine’s future alliance strategy.  These entities would only return to the authority of Kyiv if the latter makes a firm commitment to remain outside the NATO sphere and adherence to this commitment would be vouchsafed by giving Eastern Ukraine a veto over Ukraine future alignments.  It is this reasoning which explains both the adoption of the Minsk agreements, in September 2014 and February 2015, and the difficulties of their implementation.  Whereas Moscow calls for Ukraine to adopt measures which would, effectively, tie Kyiv’s hands with regard to its international position, Ukraine, and specifically the Ukrainian Parliament, is unwilling to make such concessions to those whom it sees as agents of an enemy foreign power.

For Russia, annexation of Donetsk and Luhansk would thus serve no purpose and would even make likely the scenario that Russia fears most:  Ukraine’s total alignment with the West culminating in its entry into NATO, now prevented by Kyiv’s hopes of recovering Eastern Ukraine and the objections of NATO members who fear the added responsibilities and dangers (vis-à-vis Russia) that an Ukrainian NATO would imply.  Russia is already the largest country in the world.  It does not need more territory, as it has shown by establishing Abkhazia and Southern Ossetia as independent states rather than annexing them.  In this respect, Crimea is the exception that confirms the rule. Whereas Crimea has strategic significance because of the Russian naval base located there and because of the access it provides to the Black Sea, Eastern Ukraine plays no such role.  It does represent an industrial heartland which produces much of what Russia imports from Ukraine, particularly arms, but it is also a “rust belt” whose economic future is uncertain.  Nevertheless, Russia cannot abandon the Eastern Ukrainian people’s republics.  The enormous popularity of Crimea’s “return to the motherland” among virtually all Russians demonstrates that the Kremlin is well-advised to take account of popular sentiment, much of which is more radically nationalist than the version of nationalism that Putin espouses.  Western opinion has made much of the Bolotnaya demonstrations that began in late 2011, seeing in them an expression of liberal opposition to Putin.  Not only did these demonstrations include an important nationalist presence but the radical xenophobic demonstrations at the Manezh Square the previous year attracted far more participants.  Putin is already criticized for providing insufficient support to “compatriots” in Eastern Ukraine.  He cannot be seen as doing less or, worse still, betraying them.

Ukraine too has hardened its position vis-à-vis Eastern Ukraine.  Even as it has continued to affirm that Donetsk and Luhansk are integral parts of Ukraine “temporarily” under hostile occupation, it has walled off the area from the rest of Ukraine, for instance, ceasing to pay salaries and pensions there.  Some beneficiaries cross the border to collect what is their due; others depend on subsidies from Moscow.  In all cases, ties with Kyiv are fraying.  There have not been reliable recent polls in Eastern Ukraine, such as the ones cited earlier, but it is likely that the number of Eastern Ukrainians who see no future for themselves in a united Ukraine has grown.  Meanwhile, the authorities in Donetsk and Luhansk, aware of the constraints under which Moscow is operating, are increasingly pursuing self-regarding policies, enjoying their ability to disregard Moscow’s wishes, even as they flaunt their dependence upon their Russian protector.

The Donetsk and Luhansk People’s Republics are, with Transnistria, examples of separatist movements in the former Soviet Union which have not crossed the line towards actual separation.  Maintaining the prospect of separation without separating is a delicate game.  Who is to say that it may not end badly for the parties concerned?

 

[1] “Despite Concerns about Governance Ukrainians want to Remain One Country,” Pew Research Center, 8 May 2014, http://www.pewglobal.org/2014/05/08/ last consulted 11 May 2016.

[2] Andre Liebich, “La minoranza russa e la crisi ucraina,” Il Ponte LXXI nrs. 8-9, August-September 2015, pp. 32-35

[3] See O. Myslovska, “Deconstructing the Ukrainian Nation-State : Myths and Realities of the Ukrainian-Russian Encounter in Independent Ukraine” in J. Eisenberg and D. Rodogno, (eds.) Ideas and Identities: A Festschrift for Andre Liebich, Berne: Peter Lang: 2014, pp, 171-192.

 

This is a most interesting and informative survey of the variety of policies followed by the separatist authorities in the two separatist entities and by the current Russian government (with an occasional reference to the unnamed "sober minds in Russia" but with no reference to their counterparts in the USA or the EU).

Professor Liebich maintains that the separatist movements in Ukraine have not "crossed the line towards actual separation" ? What is that line and what is needed to cross it? The authorities of the Donetsk People's Republic declared independence on 7 April 2014 and those of Lugansk People's Republic declared independence on 12 May 2014 (according to their official sources). In June 2015, the head of the former was quoted in Russian media that his republic will never become part of Ukraine and in March 2016 (according to the Atlantic Council website) the authorities in this entity began to issue their own passport, distinct but similar to the Russian one. Of course, these two entities have no international recognition (except from South Ossetia, itself only partially recognized). Would the Russia's recognition of their independence - similar to that of South Ossetia and Abhkazia - be the line necessary to cross towards actual separation? As Professor Liebich points out, this is at present not likely. But apart from the recognition (which is not in their power to obtain) what what do the authorities in these two entities need to do in order to cross that or any other line that separates them from actual separation? Of course, I raise these questions as theoretical questions which would possibly help us to construct criteria for attempts at secession ("actual separation"); these questions are not requests for policy advice to the separatist authorities (or to various 'minds' in Russia and the US).

The International Court of Justice ruled, in the case of Kosovo, that it is not illegal to declare independence. Professor Pavkovic and I can stand on the streets of Geneva or Sydney and declare the independence of our towns without breaking any laws. In the same vein, the Donbass authorities can proclaim independence and issue their own passports (there is, apparently, a passport for “citizens of the world” though I would not try to present it to border authorities). We know that the “will of the people” is not necessary to make separation effective; if it were Czechoslovakia would still be in existence. Control of territory and people is sometimes considered necessary but never sufficient (who recognizes ISIS?). What does count is recognition and this is something that the Donbass Republics have failed to obtain (with the exception, noted by Professor Pavkovic, of one other unrecognized republic). The Minsk agreements, to which Russia is a party, assume without further discussion that Donetsk and Luhansk are constituent parts of Ukraine.

I am glad to hear that one can declare independence of Geneva without breaking any laws. I am not so sure about Sydney. ICJ gave an advisory opinion regarding international law: in its view, an individual's declaring of independence of Geneva, Sydney or, for that matter, of the Hague - would not be a breach of any international law. And why would it? Why would international law or ICJ care about individuals' declaration of independence? But UN member states may care - and may indeed care so deeply so as to try those independence-declaring individuals for treason.

So it all boils down to recognition by other recognized States. And Professor Liebich is suggesting that the Minsk agreements bind Russia not to recognize the independence of those two self-declared republics. Only the future will tell us whether this is so or not.

But if it all boils down to recognition, the authorities of these two entities can do very little to get themselves recognized as independent. So it is really not upon them to cross the line - which Professor Lieblich mentioned in his first post - that separates them from full separation, that is, successful secession. Others, that is, other States, have do that crossing.

Meanwhile, there is the limbo of the unrecognized or partially recognized: those who have crossed all the lines but are now waiting for others to do their crossing and to make them independent de jure. Will it be ready now to accept new entrants, for example Kurdistan? And has ISIS already entered it, without really wanting to do so? (because it does not recognize this division into degrees of statehood or perhaps even statehood)

I understand the ICJ advisory opinion applied to collectivities as well as to individuals. So if Professor Pavkovic has a few friends who would care to proclaim the independence of Sydney together, that should not be a problem. Unless Australia has a specific article in the criminal code prohibiting this, which would be a most illiberal provision violating freedom of speech and assembly.
Recognition is key, as we both seem to agree, but there is a “catch-22.” To be recognized as a state a body has to first proclaim itself to be state. Proclamation without follow up from outside is like a joke that falls flat. Hence, prudence requires those who want to proclaim statehood to test the waters. In the case of Donbas, which is where this discussion began, those in charge have been told indirectly through the Minsk Agreements and, no doubt, directly from the Kremlin that they will not win recognition from their main supporter. Russia has already experienced the embarrassing precedent of having fostered the independence of South Ossetia and Abkhazia but then finding that no country of significance was willing to follow. In the case of Kosovo, not only were local leaders given to understand that they would be recognized by the United States and most of its allies but they were probably encouraged to declare independence. Still, even though more than one hundred states now recognize Kosovo, if one looks at a world map there are more areas of non-recognition than recognition. Being admitted by FIFA is not (yet?) admission to the UN. Other countries, notably, Macedonia have accepted the humiliation of sitting under an awkward name, the Former Yugoslav Republic of Macedonia, in order to obtain the ultimate recognition that UN membership offers.
So, recognition by others is still key, though there has to be a state proclaimed to be recognized. It takes two to tango. But who is leading the dance?

I can only hope that readers of our debate can learn something from our disagreements - which at first sight seem to be minor or perhaps boil down to different views on jokes and humour in general.

First, I do not think that proclamation of independence without immediate recognition is like a joke that falls flat. The reasons for proclaiming independence may be various but they are not analogous to entertaining audiences with jokes. When a joke falls flat, the person who is making it may feel embarrassed or (she or he) may also feel that the audience has no sense of humour. Secessionists who proclaim independence and do not get immediate recognition do not feel anything of the kind. They may or may not feel humiliated - but that is something that they had already to learn to live with, since they had lived in a state which is not their own - a sufficiently humiliating experience by itself. Most importantly, they would not think that their humiliation is the worst thing about this outcome of non-recognition.

Second, I think that secessionists do declare independence even if they have not "tested the waters" previously about recognition. For example, Fretlin declared independence of East Timor in 1975 and Kosovo Albanian deputies declared independence of Kosovo for the second time in 1991 without doing this testing (the latter probably knowing that only Albania will recognize their Independence but not EU member states). When the Bengali leader declared independence of Bangladesh in March 1971 he and his colleagues had no idea that India will militarily intervene in December 1971 and recognize its independence. Many other declarations are made without much expectation of wide recognition. After all, the two republics in Donbass have declared independence, allegedly "without testing the waters."

Third, I do not think that the Russian government (or the Kremlin in the Cold War jargon) expected much wider recognition of the independence of South Ossetia and Abhkazia. At least I do not know of any source showing that there was such an expectation. I think that this government is quite realistic about the limits of its current world influence and power and that is not much prone to embarrassment. Recognizing the independence in this case - as in most others - was a signal that at least this government is ready to defend the independence of the two bordering states by force. One could argue that USA's recognition of Kosovo sent the same signal. If at some point in the future the Russian government needs to send the same signal regarding Donbass it may ready to recognize its independence (in such a case, the Russian government would obviously argue that the other side had already broken the Minsk agreements and that it is consequently not bound by them). This is not my attempt to predict what this government would or will do (I have no special access to Kremlin) but only to explain why it would recognize independence of this region.

Finally, while UN membership is a prize no doubt worth fighting for, there are also lesser prizes of recognition - such as recognition by a neighbouring power which may provide enough protection from the former host state. Somaliland leaders would probably be much happier if they could gain recognition at least comparable to that of these two Russian-recognized states. UN membership looks like a universal insurance policy (or at least it is meant to be that) and states are obviously ready to get it under awkward names, if there is no other choice. Whether their leaders or citizens feel humiliated by these awkward names or not, is of little if any importance. Perhaps South Ossetan leaders would be glad and not much humiliated to get such an insurance policy if offered under the name of "Former Soviet region of South Ossetia" .

In this particular dance, it does take two - the UN and the newly declared independent state - to dance it. But there are other dances and other partners to dance with: in this respect, tango, of which Professor Liebich writes so fondly, is not the only dance in town.

PS No worries: Australia has no criminal penalties banning independence-declaring speech. But it does have criminal penalties for tax avoidance - and thus if a declaration of independence is followed, as it should be, by a refusal to pay taxes then.... but then perhaps Switzerland would let Professor Liebich and his friends, upon their declaration of independence, transfer their tax allegiance to their newly declared independent state?

Andre Liebich and Aleksandar Pavkovic give us food for thought in this very nice exchange and we thank them a lot for this. I would like to enter the discussion by focusing the attention on the key issue of sovereignty. Pavkovic and Liebich have argued that declaration without recognition is a risky game, which can confine the declaring party to the ‘limbo’ of ‘unrecognised’ or ‘partially recognised’ states. The key issue here is, in my opinion, that state and national sovereignty are linked in a way that can stimulate attempts to ‘cross the line’ mentioned in the previous comments.
As suggested by Rogers Brubaker, although virtually no state is a nation-state—in the sense of a totally homogenous whole—virtually all states behave as they would be such. State sovereignty is constantly legitimised with reference to national sovereignty and this is considered to be a basic principle of democracy whereby ‘the people should decide’. Yet, where the coincidence of state and nation is contested, the very insistence of the state on national sovereignty as the main principle of political legitimacy may nourish sovereign demands among minority nations on account of their nature of distinct political communities. The argument is pretty straightforward: ‘if the state legitimises its power by means of its claim to represent the nation, why shouldn’t we exercise the same legitimate power given that we are a different nation?’. This is not to say that such a dynamic would necessarily happen or that we should accept national self-determination as a right, but rather that the claim to sovereignty is a normative principle inherent to the very concept of the nation and therefore that there is such a possibility.
However, sovereignty is a socially constructed status. It needs outside recognition pretty much as individuals need external recognition of certain aspects of their personal identity. A child can claim to be an adult and therefore to be an autonomous subject fully free to decide about his/her own destiny without his/her parents’ infringement. He/she might even find support among a few friends, but he/she will struggle to transform that claim into a social fact—i.e. real in its consequences—outside the circle of his/her intimate acquaintances without a wider approval, especially among adults. In a similar way, national minorities are not considered to be full legitimate ‘subjects’ of international society. Establishing government institutions is the first step towards getting that recognition because collectivities require executive structures to communicate with the outside world and show (or at least pretend) that they exercise control over a specific territory. Yet, it is often an insufficient step since—as individuals in society—states need to interact with their neighbours to be fully functional members of international society and, in a world where land has been completely divided up among states that are jealous of their territorial integrity, there is a virtually universal tendency to oppose such attempts. Of course, there are many intermediate concrete situations between the two poles of total recognition and total lack thereof. Depending on how many and which international actors do recognise the newly established government institutions claiming independence, these latter can enjoy different degrees of ease in their dealings with the outside world.
National sovereignty can of course—and it often is—be abused by radical minorities within the national minority itself. Yet, if these actors can do so is precisely because of the strength of national sovereignty as a principle of political legitimacy. So long as states justify their power on account of the principle of national self-determination, the potential for contestation of such power from national minorities on the basis of the very same principle will exist. This is not to argue that state power should be legitimised with reference to other principles. Also, inclusive definitions of the nation, open to accommodate difference, can certainly contribute to reduce this potential. But the tension between state and national sovereignty in contexts of national heterogeneity remains, in my opinion, a structural contradiction of modern polities.