Thursday, May 29, 2014

What Comes after Non-Recognition?

Published in New Eastern Europe on 28th May 2014

After the election of a new president with a clear democratic mandate, there is much talk of Ukraine turning a corner, despite the turmoil in the east of the country. Indeed, the focus is now largely on those regions and whether they can remain a part of Ukraine, as well as the challenge of keeping the country from the edge of the economic precipice.
In the case of Crimea, two months since Russia’s annexation of the peninsula, there appears a widespread acceptance of the “facts on the ground” of Russian rule. The issue is already fading into the background amid fears of an even worse outcome.
In just over one month’s time, however, Europe will remember the 40th anniversary of an event which it has never accepted – the Turkish occupation of Northern Cyprus. Turkish Cypriots at the time feared coming under the rule of the Greek military junta. Russian speaking Crimeans, in contrast, were under no real threat and Moscow’s attempt to characterise the Kyiv authorities itself as a junta now look all the more absurd in the aftermath of the democratic election.
A new Northern Cyprus?
Northern Cyprus has many of the same “facts on the ground” – Turkish military bases, a language and culture distinct from the Greek-speaking south and an independent Republic of Northern Cyprus which was declared in 1983 and whose flag is ubiquitous, even from across the UN line of control. But in fact in 2004, 30 years after the Turkish intervention, Turkish Cypriots voted for a union with the Greek Cypriots in the south. Although this deal was rebuffed by the people of the south, it would have meant the wilful abandonment of the separatist project there, a paradigm shift from 30 years earlier.
To some extent therefore, the international policy of non-recognition of Northern Cyprus might be considered a success. To this day, the state of Northern Cyprus does not appear on maps and the serious prospect of international recognition of its statehood appears dead. This non-recognition manifests itself in a number of ways. Airlines are not permitted to fly to Northern Cyprus without touching down in Turkey first and major airlines do not fly there at all. Northern Cyprus passports are not recognised by any country other than Turkey, meaning that many Turkish Cypriots in fact travel on passports issued by the Republic of Cyprus. There is no official sporting recognition of the territory.
In Crimea’s case, the dust has yet to fully settle. The narrative in Moscow is of grand ceremonies and triumphalism. The head of Burger King in Russia jumped the gun by announcing they would expand into Crimea at some point, his enthusiasm most likely tempered by the head office in the United States. In sport, the Russian Football Federation has already proposed to hold this year’s Russian Super Cup in Simferopol and one of the peninsula’s two Ukrainian football league teams, FK Sevastopol, talks brazenly about switching from the Ukrainian to the Russian league. National Geographic and Google have already roused anger for showing the region as Russian territory, or disputed.
Day-to-day life tells a different story, as empty supermarket shelves, almost reminiscent of the Soviet era, and eight-hour-long queues for cash machines testify. Life for the indigenous Tatars looks to be getting progressively worse as the ban on the recent commemoration of their 1944 deportation by Stalin illustrates. The exiled Mustafa Dzhemilev, former head of the Crimean Tatar Mejlis and a figurehead for the Tatar community, already looks like a kind of Dalai Lama figure. Meanwhile plans are afoot to confiscate Tatar property in prime locations. The issue of flights in and out of the territory remains unsettled. Ukrainian Railways however, far from halting train services to the peninsula, recently started taking advanced payment for the summer season.
What should non-recognition entail?
If Ukraine and the international community are serious about upholding the non-recognition of Crimea as part of the Russian Federation, serious thought needs to be given as to how this will be done in practice or it will have little meaning and Russia will be emboldened to take similar action elsewhere. Crimea may appear a lost cause now, but looking to a future post-Putin epoch, the situation could be very different. Non-recognition policy is by its nature a tricky and inconsistent area as the balance between damaging the occupier and risking harming those occupied is difficult to strike.
We need only look at the Baltic states as an example. Forty years after their occupation by the Soviet Union, few were anticipating their independence.  In this case, as countries rather than just regions, the trappings of the state were an important manifestation of non-recognition. As Baltic analyst Mel Huang explains, the United States maintained this policy throughout, continuing to fly their flags in the State Department and keeping legations open. Upon their regaining independence, the United Kingdom was able to return the gold reserves to Estonia which had been shipped out as a contingency in the late 1930s. Others dropped the ball, handing to the Soviet Union gold reserves and keys to their embassies. The newly independent states in the 1990s received compensation or return of property from some, but from others nothing.
Although state symbols don’t apply in the case of Crimea, President-elect Petro Poroshenko’s proposed Ministry for Crimean Affairs might perform a function akin to a government in exile. With the situation continuing to deteriorate for the Tatars, Ukraine should be ready to provide the means for the continuation of Tatar civil society. If the Tatar council, the Mejlis, becomes unable to function, Ukraine should be ready to host a Mejlis in exile. Ukraine should also think more broadly about how to ensure Crimeans (as well as eastern Ukrainians) maintain a stake in Ukraine’s political life. One way to do this would be to continue to maintain a proportion of seats in the Verkhovna Rada (Ukraine’s Parliament) as constituency mandates, representing all the internationally recognised regions of Ukraine.
Ukraine will undoubtedly continue to pursue a ruling on the Crimea annexation from the International Court of Justice. In the Northern Cyprus case, according to Ilke G├╝rdal of the Eastern Mediterranean University, the UN’s 1984 denouncement of its declaration of independence in 1983 seemed to make things worse for Northern Cyprus. The trade blockade of the territory intensified in its aftermath, thus dealing a blow to the separatist project at an early stage. The Crimea case may face fundamental difficulties as neither Russia nor Ukraine recognises the ICJ on a standing basis and Russia is unlikely to agree to the second mechanism of a case-by-case basis. Ukraine may decide to recognise its universal jurisdiction in the near future and, as Crimea is still theoretically Ukraine, this may be enough for the case to be heard.
The symbolic importance of sport should also not be underestimated. The move of Crimea’s two Ukrainian league teams to the Russian league should not be permitted by UEFA and FIFA (although in practice it may be sneaked through during this summer’s World Cup). This may be a vain hope. Gazprom sponsors UEFA’s lucrative Champions League whilst FIFA has not entertained talk of stripping Russia of the right to host the 2018 World Cup. At the very least Crimean venues should not be used as host cities or training bases at the tournament. It takes the action of individual member countries to make a fuss, much as, for example, Spain did in preventing Gibraltar’s accession to UEFA for many years.
What is the endgame?
Whether or not we ever see Crimea fully reincorporated into Ukraine, Ukraine is the lynchpin of a legitimate solution. Whether Crimea is part of Russia or Ukraine, the region must have genuine autonomy. The region’s autonomy within Ukraine failed to deliver this. The use of Ukrainian on official signage belied the region’s special status, whilst the Crimean Tatar language was rarely to be seen. In the Russian case, as the Russian Federation is a federation in name only, there is little hope or evidence that Crimea will achieve true autonomy that takes into account the diversity of the region. The closure of Ukrainian language schools there is not a good start. Another option in the long term could even be independence, a scenario in which the different ethnic groups would be required to work together. As in Northern Cyprus, Crimea now faces having to confront the issue of property restitution down the line (on top of the fact that the Tatars have still not been properly compensated for their 1944 expulsion).
If Ukraine is to ever regain the territory, much will depend on what it does now, the success of its reform programme and the ability to build a viable economy and investment climate. The capacity of Ukrainians to build a successful country might weaken the will of Crimeans to remain a part of Russia. If the EU follows through and grants visa free travel to Ukrainians, as it has now done for Moldova, the idea of holding a Russian passport rather than a Ukrainian one begins to lose its appeal. For Crimea, it might be the beginning of a long road back.
Jonathan Hibberd, based in Warsaw, is an alumni of Sussex European Institute in the UK and works part time with the Foreign Policy Research Institute in Ukraine, having previously lectured in European Studies at Kyiv-Mohyla Academy.

Saturday, May 24, 2014

Ukraine voters can put Ukraine on the path to democratic legitimacy

Ukraine's presidential election is the first step to solving its government's legitimacy problem

It has not been an easy start for Ukraine's new authorities, who have had to deal with annexation, armed insurgency, rescuing the national economy from the precipice and organising a presidential election no less. A baptism of fire by anyone's standards. The annexation of Crimea came when the new incumbents had barely sat at their desks. The violent provocations in the east and south of the country are unprecedented in Ukraine's 23 years of independence, whilst Russia has a 23 year track record of violence in the Caucasus and terrorism in its cities. Draw your own conclusions about where this outbreak of 'civil war' in Ukraine has in fact come from. 
To add to that, the current authorities have absurdly and maliciously been labeled a 'junta' by pro-Moscow tweeters and bloggers scratching around for a smear term (the only true junta that has ever existed in Eastern Europe was the early 80s junta in Poland, which was backed by the USSR), part of a well worn tradition of concept stretching by Russia. Kiev is not a 'junta' any more than Greenpeace activists are 'pirates' or 'hooligans', or indeed gay rights campaigners 'propagandists'. Despite this however, it is true enough to say that the government since its traumatic beginnings has lacked true democratic legitimacy, and therefore Sunday's presidential elections are the crucial first step in solving a legitimacy problem with Ukraine's governance which in fact goes back to 2010.
When Viktor Yanukovych was elected President in early 2010, parliament was still under the mandate of the 'orange parties' of Prime Minister Tymoshenko and former President Yushchenko. What then followed was a spectacular capitulation of the whole constitutional order. The Constitutional Court, re-stuffed with judges loyal to Yanukovych, ruled that parliamentary deputies could now switch sides, the problem being that, with Ukraine's closed list electoral system, this is  tantamount to your vote growing legs and walking away from you. The defectors were dubbed 'tushki', a term meaning animal corpse. The standard of parliamentarianism thereafter soon became abysmal, with 'piano playing' (deputies pressing the voting buttons of absent members), as in the Russian Duma, becoming standard practice, and even savage beatings meted out to Yanukovych opponents. Votes were sometimes registered for MPs who were not even in the country at the time. The 2012 parliamentary elections followed electoral reforms designed to favour the President's Party of Regions. The introduction of a proportion of constituency MPs favoured the ruling parties, and electoral commissions were staffed by personnel from these same ruling parties. Unlike the previous three national elections (two parliamentary, one presidential, the election was not judged internationally to have been free and fair.
Fast forward to February this year, and whilst the voice of the people was finally being heard, the speed with which MPs hurriedly switched sides again following Yanukovych's exit in February was, constitutionally speaking, little better than the 'tushki' of four years earlier. Just as in 2010 a 'winner takes all' mentality saw now vulnerable deputies scrambling to save their careers and positions. There was of course a huge difference however. The new authorities from the outset took power on the promise of elections. We must remember that if not for Euromaidan, Ukraine might now have been looking ahead to years or decades without such free elections, the situation which predominates in the countries of the Customs Union that Yanukovych would have taken them into, Belarus, Russia and Kazakhstan 
What must follow these elections is constitutional reform that will guard against the monopolisation and abuse of power of the past several years. Ukraine should adopt a parliamentary system, the kind which has lead successful reforms in the likes of Poland or Czech Republic, and resist the urge to revert to the presidential model which has in contrast failed its citizens so miserably in the post-Soviet space. Ukraine must also figure out how it manages its multiculturalism without allowing the country to disintegrate. There is scope for delegating local language and schooling policy to muncipal level, as well as the dvisive issue of historical commemorations, but Ukraine lacks the political maturity for full blown federalism, so this should wait for now. Fears about Ukraine becoming a series of fiefdoms under that scenario are well founded.
It is also a sobering reality that they will have to face their challenges largely without the backing of the international community. Whilst the European Union has rightly put on the table a deal to allow Ukraine to access the internal market, there is plenty from member states to suggest that the EU's backing can't be relied upon, owing to the EU member states' deep ties to Russia. Whether it be German industry, French warships, Spanish ports or London's financial sector, there is little suggest that these countries will do very much to support the freedom of Ukrainians. Ukraine's road ahead looks a lonely one. The new President will need all the collective wisdom he can muster.
The presidential election must be followed as soon as possible by a parliamentary one. A proportion of constituency mandates must be maintained to represent occupied Crimea and the districts currently ravaged by the Russian-sponsored insurgency. The new parliament must adhere to new standards of parliamentarianism so that the abuses of the past four years cannot be repeated. If it does this, the legitimacy problem can finally be consigned to history.