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Ukrainian plan

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Igor Botan / May 22, 2005
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“Ukrainian” plan is also Moldovan

The “Plan for resolving Transdnistrian conflict proposed by Ukraine” published on May 20, 2005 together with the comments that followed from Minister of Reintegration, Vasile Sova, shall generate many more debates in the future.

A closer look at the Plan, the context in which it was made public, collateral events, domestic and international reactions to the document both critical and more “balanced” ones, gives the impression of a show with actors playing their parts. Those left aside have been taken by surprise and are the mere spectators of the show.

The way “Ukrainian plan” was developed is reminiscent of Moldovan authorities approach after 2001 when it used to ask mediators to come up with propositions that would be acceptable to Republic of Moldova (RM). The benefit for the mediators was evident — reaping the laurels of regional leaders able to come up with solutions for the entire region.

Up to late 2003 Russian Federation had been RM’s strategic partner that is why 2002 Kiev OSCE plan to a large extent reproduced federative model outlined in the Constitution of the Russian Federation. Diplomats hinted that Moldovan authorities requested the release of the document under OSCE auspices. It is known for a fact that when President Voronin decided to introduce the “asymmetric” elements into the federative plan, he asked his Russian counterpart Vladimir Putin to develop a new plan. After refusing to sign the “Kozak Memorandum” in November 2003, President Voronin publicly acknowledged that about 70% of the document had been written in Chisinau, while the rest 30% had been coordinated with Moscow and Tiraspol in view of reaching a comprise.

The same holds true for the Ukrainian plan. It is very unlikely Ukraine to have developed a plan without being asked by Chisinau first. Undoubtedly, prior to being made public the Plan’s provisions have been carefully coordinated between Chisinau and Kiev. By doing so, Chisinau attempts to end the stalemate and create a new framework for the resolution of the Transdniestrian conflict. The benefits for Ukraine are numerous, ambition to become a regional leader, but also the need to resolve a conflict at its borders.

Moldovan authorities’ stake on the “Ukrainian Plan” is understandable, given that Kiev holds real levers to influence the situation by means of its customs policy at its border with Transdniestria. Still, it is not less important how other strategic actors are dealt with. Under those circumstances Moscow’s role morphed from a pro-active to a defensive one, of defending its own interests and the interests of secessionist regime it has been supporting. Having said that, Russia and Transdniestria have practically the same interests — to reject the Plan.

US and EU positions have been taken into account in as far as they are committed to protect their interests in the region. Rejection of the “Kozak Memorandum” in November 2003 has shown that their interests resume to political stability in the region and not allowing proliferation of Russian military presence in the region. As for the rest, it is less relevant for US or EU whether a federative model or any other would be chosen.

The gist of “Ukrainian Plan”

The “Ukrainian Plan” gives the impression that what the authors wanted is very difficult to achieve. On the one hand, the main provisions of the plan reiterate the recent statements made by Moldovan authorities, i.e. giving up on federative model and renewing negotiation format.

On the other hand, the document clearly shows that its authors did not give up on previous engagements, ideas and even fears as regards Transdniestrian conflict, however these are worded differently in the “Ukrainian Plan”. Indeed, this new approach seeks to avoid antagonizing Russian Federation even further, that already threatened to impose economic sanctions against Moldova.

As it was mentioned, in choosing the partner to propose the plan to resolve Transdniestrian conflict, Chisinau in fact chose the method of resolving the conflict. That was the case of the plans developed by the Russian Federation envisaging federalist models of resolving the conflict, methods which Transdnestrian authorities tended to turn into confederalist ones (similar to agreement between Serbia and Montenegro). Those models implied amending the Constitution of the Republic of Moldova, with all the ensuing consequences.

The same holds true for the Ukrainian Plan that greatly resembles the model applied in Crimean Autonomous Republic. Thus according to the “Ukrainian Plan” Republic of Moldova is a sovereign, independent, and territorially integral state, the single subject of international law. Transdniestria is granted the status of autonomous republic within the framework of the current Constitution of the Republic of Moldova. Under the plan common areas would include: law, economy, defense, social field, customs, humanitarian, etc. Under “Ukrainian Plan” Transdniestrian region is to be “administrative-territorial entity in the form of a republic within the Republic of Moldova” entitled to its own Constitution and symbols along the state ones which is definitely taken from the Crimean model. Certainly, “Ukrainian Plan” contains provisions from other previous documents, from Primakov Memoradum of May 1997 to the most recent Stability and Security Pact for the Republic of Moldova. Of course there is more or less shift in accents.

However, more provisions have been taken from Primakov Memorandum. This specifically refers to pentagonal negotiation format (parts — Republic of Moldova, Transdniestria, and mediators — Russia, Ukraine, and OSCE). The innovation is that the latter are to sign the Plan in the presence of US and EU. Moldovan Minister of Reintegration has called this new formula a “floating format”. The document allows for US and EU involvement in the Plan enforcement: a) overseeing elections to Transdniestrian Supreme Soviet; b) assisting the drafting of the law on special legal status of Transdniestrian region; c) taking part in the Counseling Commission entrusted to settle down any disputes in interpreting the law on the special legal status of Transdniestria. Exceptions are “enforcement of international legal measures” in cases when one party or another breaches the plan, right reserved only to mediators — Russia, Ukraine and OSCE. Noteworthy, there is no mention of the type of measures to be applied.

However the most interesting are the terms, stages, and sequence of events provided for in the “Ukrainian Plan”. The conflict is to be settled in three stages, six months each:

  1. at the first stage the “basic principles of the Transdniestrian status within the RM” are to be established. In this respect, the Parliament is to adopt by July 25, 2005 the Law on basic principles of the status of Transdniestrian region of the RM. Under the terms provided in the law, elections to the Transdniestrian Supreme Soviet are to be held in October — November 2005. These are to be held under “international monitoring of EU, OSCE, Council of Europe, US, Russia and other democratic states”. These elections and international monitoring are intended to legitimize the Supreme Soviet that would function under the proposed Law on basic principles of the status of Transdniestrian region. “Ukrainian Plan” remains silent on how Tiraspol administration would act, nor does it say how to make the latter to be more cooperative. It is all-to-clear that this first stage would be implemented only if incumbent Transdnistrian authorities and Russia agree to sign the “Ukrainian Plan”, placing thus the entire settlement process under the proposed Law on the legal principles of the status of Transdniestrian region.

  2. during the second stage the competencies shall be delimitated between the central power and Transdniestrian authorities. This would need the adoption by the Parliament of the Republic of Moldova of the Law on Special Legal Status of the Transdniestrian Region of the Republic of Moldova. Transdnistria’s Supreme Soviet would have to pass a special normative act accepting the “basic principles of the state”. The law shall be jointly drafted. Newly elected Supreme Soviet would have to “designate representatives of the regional legislative body to the RM parliamentary commission in view of drafting the law” outlining the special legal status of Transdniestria. Later on, once the RM Parliament adopts the law delimitating the competencies, Transdniestrian Supreme Soviet would have to pass another normative act ensuring the enforcement of that law.

  3. in the final stage the “final settlement of the Transdniestrian conflict” is to take place via “ensuring the legal status of Transdniestria in the framework of the RM”. The two parties, Republic of Moldova and Transdniestria along with mediators, Russia, Ukraine and OSCE and with the assistance of US and EU would draft the “Treaty on guaranteeing Moldova’s observance of Moldova’s law on the special status of Transnistria.” Once ratified by the RM Parliament the Law on special legal status of Transdnistria would enter in effect, while Supreme Soviet would be able to adopt Transdnistria’s Constitution.

The guarantees granted by “Ukrainian Plan” to Transdnistria are specific to Moldova, as the very same guarantees were provided to Gagauz-Yeri in 1994. This is yet another evidence to the fact that Moldovan side took part in the elaboration of the Plan. Under the “Ukrainian Plan” Transdnistria would be entitled to “leave RM in case the latter decides to join another state” and/or RM looses its status as a subject of international law. Another Moldovan — style guarantee is the “Treaty on guaranteeing Moldova’s observance of Moldova’s law on the special status of Transnistria”, which is nothing but a different Stability and Security Pact for the Republic of Moldova launched by President Voronin one year ago. “Ukrainian Plan’s” provision on Conciliation Committee including representatives of RM, Transdniestria, Russia, Ukraine, OSCE and possibly US and EU, is also a carryover from the Pact. The goal of the Commission would be to settle any disputes between the two parties in case of different interpretation of the Law on Special Status of Transdniestria. One of the major differences between the “Pact and Ukrainian” Plan is the fact that Romania was excluded, while Transdnistria included, whereas US and EU could only assist the drafting of the Treaty.

Context and collateral events

The context in which “Ukrainian Plan” was drafted and made public needs a closer examination. Firstly, this is the first document coming after the European Court on Human Rights’ judgement on “Ilascu case” clearly indicated that from a military, political, and economic point of view Transdniestrian region had been accountable to Russian Federation. Albeit the latter disapproved of the ECHR’s judgment, it still complied. Having said that, for more than a year now there have been premises for a new approach to resolving Transdniestrian conflict. Indeed, “Ukrainian Plan” ensues from this new context, however Moldova refrains from making the necessary adjustments, giving thus Russia a chance to save face and withdraw honorably from the region.

Secondly, the new context has been shaped by the regional tendencies, i.e. NATO and EU enlargement, the way Russian Federation protects its interests in the region. Recent revitalization of GUUAM and revision of its goal brought about the “Ukrainian Plan”. Accordingly, US support to GUUAM is extremely important.

Thirdly, tensions arisen between Transdnistria’s Supreme Soviet majority and Igor Smirnov’s administration on the Constitution modification in view of reducing the latter’s powers bear both risks and benefits for the Plan. On the one hand those tensions show the vulnerability of the regime functioning like a “fortress under siege” that ought to hold on regardless the price, including the price of maintaining an authoritarian regime headed by Smirnov clan (Maracutsa, Antiufeev, Litskai etc) that generated the conflict in the first place, then lead the regime and now is interested to perpetrate the status quo, of which they are the only ones to befit both politically and economically. Those tensions also highlight the lack of democracy in Transdniestria, an extremely important factor in the new context of GUUAM declared goals. The “Ukrainian Plan” may serve as a good argument for Smirnov clan in “convincing via specific methods” the “reformatory deputies” from Transdniestria to give up on amending Constitution so as to resist the “foreign danger”.

Estimations and possible evolutions

The release of the “Ukrainian Plan” may be seen as a positive event, even if the chances of its enforcement are very slim. At least there is a document that may be submitted to mediators, other interested parties, as well as US and EU, Romania. Except for Russia and Transdnistria, the other parties have no apparent reason to reject it, however they may want to come up with questions and ask for specifications. That is exactly what Chisinau wants.

The mere fact that Russia and Transdnistria voiced criticism and lingering concerns with regard to “Ukrainian Plan” did not take Moldovan authorities by surprise. Anyhow the first stage of the plan totally relies on Moldovan side that should adopt the would-be Law on the Basic Principles of the Status of Transdnistrian Region of RM by July 25, 2005. The adoption of such a law is probably intended to channel any initiative coming from foreign partners into the legal framework of the RM, whose sovereignty they respect. There is nothing more RM could do, everything now is up to the foreign powers. And here the benefits end, so let us consider the pitfalls of the “Ukrainian Plan”.

Firstly, “Ukrainian Plan” does not provide for any measures “to convince” the Transdnistrian side, in case it chooses to ignore the plan. It is all-to-clear that Tiraspol regime has survived only due to Russia’s and Ukraine’s support. Still it would be possible to develop and apply mechanisms that would steer the region away from a humanitarian crisis and at the same time would determine Tiraspol to be more receptive to propositions on resolving Transdnistrian conflict. A starting point would be securing the RM — Ukraine border by establishing joint customs control units. By accepting such measures Ukraine would send a clear message as to its interest to settle Transdnistrian conflict. The failure to enforce such measures leaves room for speculations about an alleged competition between different “groups” in Kiev administration, namely Supreme Security Council Secretary Piotr Poroshenko and Minister of Foreign Affairs, Boris Tarasyuk. If indeed such a competition exists then “Ukrainian Plan” is nothing but a compromise between those “groups”. And this because the Plan is not feasible in the given time without the aforesaid measures. Further, once the deadlines established for three phases expire Ukraine would most probably loose its interest. Under those circumstances, the primary goal for Transdnistria would be to survive up till the deadline, while later upcoming elections in Ukraine would open them new opportunities.

Secondly, the fears of opposition and many pundits that enforcement of the “Ukrainian Plan” would end with legitimizing Transdnistrian Supreme Soviet are quite real. Their argument is that by recommending monitored elections to the Supreme Soviet, “Ukrainian Plan” does not take into account Smirnov administration, a clan interested in perpetrating the secessionist regime, preserve the military, including Russian troops. The Plan does not take into account the structures that really “guarantee” the existence of the secessionist regime. “Ukrainian Plan” provides guarantees to Transdnistria, but none to Moldova in case Tiraspol ceases cooperating immediately after elections to the Supreme Soviet that would legitimize it as a representative body of the “Transdnistrian people”. Technically speaking this could be achieved quite “convincingly”. For instance Transdnistrian Supreme Soviet might adopt a “normative act” as provided by the Plan, thereby it would consent to cooperation with Chisinau within the framework of the would-be Law on Basic Principles of the Status of Transdnistrian Region of the RM, and would allow for international monitoring over elections to Supreme Soviet in order to legitimize election results. However, Smirnov may want to make a well-calculated pause and then strike. Under the Constitution Smirnov might appeal to Constitutional Court of Transdnistria that would rule that “Ukrainian Plan” runs counter to Constitution. Therefore, supposedly not only the Supreme Soviet but the entire regime might get a legitimacy following the formula — who has coercive power to enforce judiciary rulings that one is legitimate. Who would stop the Supreme Soviet from acknowledging their own mistake?

Both Transdnistria and Russia would be quite tempted to halt Tiraspol’s cooperation with Chisinau after elections to Supreme Soviet are recognized legitimate. The thing is that Russian troops would have to be withdrawn once the conflict is settled. There are a number of evidences to the fact that Russia does not want to withdraw its military from the region, the most eloquent of them — its stance towards obligations assumed at Istanbul OSCE Summit. Half-measures that would only legitimize Supreme Soviet leading to end of cooperation with Chisinau would result in fruitless discussions on the synchronizing withdrawal with final resolution of the conflict. Meanwhile, the effects of “economic sanctions” imposed by Russia on Moldova, coupled with a price hike on energy would serve as quite efficient levers in the hands of Russia when dealing with their Moldovan counterparts. One may conclude that democratization of the Transdnistrian regime via internationally monitored elections, without some demilitarization measures and without creating conditions for the departure of the groups responsible for instigating and benefiting from the conflict (as identified in the ECHR judgment), that is decriminalization, bears considerable risks. In fact “Ukrainian Plan” should be improved considering the provisions of the “Declaration on political partnership in view of accession to EU”, unanimously voted by the Moldovan legislators. The document clearly indicates that Transdnistrian conflict should be settled in line with the Constitution of the Republic of Moldova and international law in close cooperation with OSCE, EU, Romania, Russia, US, and Ukraine and according the to the “3D” formula — democratization, demilitarization and decriminalization of the Transdniestrian region.

Out of all these “2D” and Romania felt out. This is quite sad as after Russia imposed economic sanctions on Moldova, Romania has proved to be one of the most useful partners. Nevertheless, “Ukrainian Plan” fails to confer any role whatsoever to Romania in the negotiation process. Moreover, apparently Moldovan authorities are interested in diminishing Romania’s role even further. This has produced some curiosities in the “Ukrainian Plan”, such as “the right of Transdnistrian inhabitants(!) to self-determination” in case Republic of Moldova looses its sovereignty and independence. Albeit situation has changed, Romania being now a member of NATO and is about to join EU, the same wording was used as in 1994 in the case of Gagauz Autonomy (Law on Special Legal Status of Gagauz-Yeri), which at that time provided guarantees that Moldova would not join Romania.

Several things are to be mentioned. Why it didn’t cross the mind of Plan authors that the rights they came up with might be claimed by other communities as well. For instance, how would they like this: “the right of Donbas inhabitants to self-determination” in case they deem Ukrainian central government promotes pro-EU, pro-NATO, and anti-Russian policies? Secondly, asymmetric treatment of the interested parties should be taken into account. On the one hand, Russia recognizing sovereignty, independence and territorial integrity of the RM but de facto controls politically, economically and military 15% of the RM territory; on the top of that adopts laws that would allow other territories (controlled by separatist regimes supported by it) to join Russian Federation, finally it has the status of mediator and guarantor. On the other hand, Romania having a frozen conflict at its borders is totally ignored in the conflict resolution. In this respect, curiously, census data revealing ethnic composition of the RM were made public right before the “Ukrainian Plan”, despite international experts’ advice not to do so. Supposedly, the low figure of Moldovan citizens who identified themselves as Romanians, only 2.1% determined the authors of “Ukrainian Plan” to ignore Romania. If so then things should be made clear: either the number of Romanians in Moldova is so low that the fears that Moldova would join Romania and therefore granted the “right of the Transdnistrian inhabitants to self-determination” are groundless; or the “right of the Transdnistrian inhabitants to self-determination” is justifiable and the census data are rigged. In both cases things are quite sad. Statistics data are not reliable given that they considerably differ from the number of votes in favor of parties, dubbed by official propaganda as pro-Romanian. If they were indeed reliable, then things are even more gloomier. In that case one would say that Moldovan citizens, tens and hundreds of thousands of them who applied for Romanian citizenship are cynics as they did so for obscure interests. Anyway the credibility of Moldovan authorities and the way citizens view them would have a crucial impact on the model of settling Transdnistrian conflict, its collateral effects, European integration, as well as visa regime negotiations with Romania.

Upgrading of GUUAM. Tendencies and perspectives What is the future of the Ukrainian plan on resolving Transdnistrian conflict?