Papers by Cindy Wittke (former Daase)
Verfassungsblog. On Matters Constitutional, 2022
In the framework of protecting Russian compatriots abroad, one of the tools Russia used to justif... more In the framework of protecting Russian compatriots abroad, one of the tools Russia used to justify its political and military engagement in the post-Soviet space has been “passportization.” Passportization is a fast-track extraterritorial naturalization en masse of citizens residing in contested territories of a third country. This policy effectively created Russian citizens in the contested territories of neighbouring states, like in Georgia and Ukraine, in the context of protracted conflicts of secession. In Ukraine, Russia initially justified this policy on humanitarian grounds and as a temporary measure until the resolution of the conflict in Donbas.
TCUP Report, 2022
Executive Summary
PASSPORTIZATION
Referring in this paper to the extraterritorial naturalizatio... more Executive Summary
PASSPORTIZATION
Referring in this paper to the extraterritorial naturalization of Donbas residents en masse, passportization is one of Russia’s preeminent foreign policy tools to deepen the potentially explosive deadlock in the implementation of the Minsk Agreements. In this deadlock, passportization can serve as a tool of ambiguous Russian extraterritorial governance over the Donbas while keeping violence at a comparatively low level, or as a tool to justify a full-scale Russian military intervention to “protect” its citizens from, for example, a purported “genocide.”
RUSSIA’S GOAL
Russia does not necessarily want more citizens or territories: Russia’s ultimate goals are far-ranging security guarantees to prevent Ukraine’s further integration or membership with NATO. Passportization is one of the instruments to achieve this overarching goal.
SECOND-CLASS CITIZENS
Passportization of residents of the non-government-controlled areas of the Donbas does not endow these Ukrainians with full membership of the Russian state; they are “second-class citizens” with diminished rights. This becomes especially apparent with regard to not only international non-recognition, but also pensions, social benefits, and voting rights.
LEGITIMACY DEFICIT
Due to this “diminished citizenship,” Russia suffers from a legitimacy deficit in the self-proclaimed “People’s Republics” of Donetsk and Luhansk—the “DPR” and “LPR.” Enforcing voting rights for Donbas residents in the 2021 Duma elections therefore served the purpose of legitimizing Russia in the residents’ eyes: It suggested that integration with Russia is continuously advancing.
DONBAS VOTERS SUPPORT UNITED RUSSIA
Donbas voters are pro-Russian: They have much more favorable views toward United Russia than Russians in the Rostov region. On average, the presence of Donbas residents at respective Rostov polling stations, and at the seven Rostov electoral districts, adds 25 percent to the United Russia result. This is paradoxical, as United Russia follows the official Russian reading of the Minsk Agreements—reintegration of the Donbas with Ukraine on Russian terms—while Donbas residents voted for integration with Russia. But the official results give a distorted picture of support for United Russia, as workplace mobilization and electoral manipulations were widely reported.
FAST-TRACKED PASSPORTS NOT RECOGNIZED
Ukraine’s policy to counteract passportization and the involvement of Ukrainian citizens in Russian elections has a legal foundation: Ukraine does not allow dual citizenship. The fast-track passports are not recognized, and passportized Donbas residents are still considered Ukrainian—and not Russian—citizens. Russian elections with the involvement of Donbas residents are declared illegal and the Russian parliament illegitimate. But beyond this legal foundation, Ukraine lacks a coherent, long-term strategy on how to reintegrate Ukrainians in the “DPR” and“LPR.”
U.S. AND EU SHOULD SUPPORT UKRAINIAN SOVEREIGNTY
The reaction of the United States and the EU to Russia’s passportization has been weak; a mere non-recognition of these passports is not sufficient. Instead, the West should acknowledge that passportization and the development of Russian electoral infrastructure in the Donbas fundamentally erodes the political part of the Minsk Agreements by undermining the possibility of having free and fair local elections according to OSCE standards. The U.S. and the EU should reinvigorate their support of Ukrainian sovereignty without pushing Ukraine deeper into the “sequency trap” with political concessions.
UKRAINE URGENTLY NEEDS A LONG-TERM STRATEGY
Ukraine urgently needs a coherent long-term policy toward its citizens in the non-government-controlled territories. Policy suggestions from various actors range from hawkish (stripping Donbas residents with Russian passports of Ukrainian citizenship) to conciliatory (de facto recognition of some documents issued by the “DPR” and “LPR”). This hodgepodge of proposed policy responses unmistakably sends the wrong signals to Donbas residents. Instead, Ukraine should deepen its engagement with Donbas residents by making public services more accessible, including by a speedy digital transformation of state services. Better Ukrainian public services would be a powerful tool to counteract Russia’s creeping passportization of the Donbas.
Relying on the example of the Governance and Economic Management Assistance Programme for Liberia... more Relying on the example of the Governance and Economic Management Assistance Programme for Liberia (GEMAP) this article analyses whether and under which conditions a shared sovereignty arrangement can serve as a veritable tool of international involvement to create a sustainable (socio)economic development in a state emerging from conflict. The article outlines milestones and obstacles of the Liberian peace process and economic transformation after the signing of the Accra Peace Agreement in 2003. Focusing on (socio)economic and fiscal problems as a threat to the peace process the article analyses the GEMAP Agreement of 2005 which was negotiated between the National Transitional Government of Liberia (NTGL) and international donor organisations. The paper argues that GEMAP is an example of a far-reaching shared sovereignty arrangement that could serve as a (role)model for future co-operations between external donors and post-conflict countries. Furthermore, the article concludes that...
Review of Central and East European Law, 2017
German Abstract: Das mit Sicherheitsratsresolution 1244 erteilte Mandat zur Einsetzung einer zivi... more German Abstract: Das mit Sicherheitsratsresolution 1244 erteilte Mandat zur Einsetzung einer zivilen Ubergangsverwaltung der Vereinten Nationen im Kosovo (UNMIK) beauftrage diese mit nicht weniger als dem umfassenden Aufbau staatlicher Strukturen. Der Beitrag fragt nach aus dem Volkerrecht ableitbaren Standards fur state-building Masnahmen durch eine internationale Ubergangsverwaltung. Unter Ruckgriff auf universelle und regionale Menschenrechtsvertrage werden Demokratie, Gewaltenteilung und Rechtsstaatlichkeit als solche Standards identifiziert. Im Anschluss an die Untersuchung der Bindungswirkung dieser Standards fur die UNMIK und deren internationalem Personal wird ihre Umsetzung im Zeitraum von 1999 bis 2008 betrachtet. Dabei wird auch die Frage aufgeworfen, unter welchen Umstanden Einschrankungen dieser Standards zulassig sind. English Abstract: The article focuses on the Security Council Resolution 1244 mandate to install the United Nations Interim Administration Mission in Ko...
The (illegal) exploitation and (bad) management of high value resources like timber, diamonds, go... more The (illegal) exploitation and (bad) management of high value resources like timber, diamonds, gold, minerals and oil constitute key-factors for the inflammation, continuation and termination of numerous intra-state conflicts. Since the 1990s these conflicts have been increasingly settled by the conclusion of comprehensive peace agreements between the conflicted state and belligerent non-state parties. At the example of the Lome, Accra and Ouagadougou Agreement, which were negotiated to terminate the conflicts in Sierra Leone, Liberia and Cote d’Ivoire, the paper describes and analyzes whether and how these agreements addressed the redistribution of conflict-resources during the peace process. In the course of this documentation, the paper finds a strong involvement of the UN Security Council when it comes to the redistribution of resources and the implementation of all three agreements that goes beyond addressing an immediate threat to peace and security. Focusing on this involveme...
Russland-Analysen, Nov 16, 2018
Zusammenfassung Russlands Völkerrechtsverständnis ist paradox: Die Regierung spricht viel über di... more Zusammenfassung Russlands Völkerrechtsverständnis ist paradox: Die Regierung spricht viel über die Bedeutung völkerrechtlicher Normen, wird jedoch in Ländern wie der Ukraine und Georgien als Verletzter ebendieser Normen wahrgenommen. Russlands Völkerrechtsverständnis ist durch einige Besonderheiten gekennzeichnet, die einerseits auf die Geschichte des Landes als Großmacht, andererseits auf die relative Schwäche des öffentlichen Rechts als Einhegungsinstrument der Exekutive zurückzuführen sind. In diesem Beitrag werden einige Aspekte diskutiert, die Russlands heutige Einstellung zum Völkerrecht erklären könnten. Die Völkerrechtsrhetorik Den offiziellen Äußerungen des russischen Präsidenten, des Außenministers und dem Wortlaut der Nationalen Sicherheitsstrategie nach zu urteilen, spielt das Völkerrecht für Russland eine wichtige Rolle. Selbstverständlich kann Völkerrecht in unterschiedlichen Kontexten unterschiedliche Bedeutungen haben. Was jedoch einen konkreten Aspekt angeht-nämlich das Verbot der Gewaltanwendung in der internationalen Politik-sagte Präsident Wladimir Putin am 18. Oktober 2018 bei der Akkreditierung ausländischer Botschafter in Moskau: »Als ständiges Mitglied des UN-Sicherheitsrates verteidigt Russland die Grundsätze der UN-Charta: Souveränität und Gleichheit souveräner Staaten sowie die Nichteinmischung in ihre inneren Angelegenheiten. Wir sind kategorisch gegen politisch motivierte protektionistische Maßnahmen und das Diktat der Macht, die den Völkerrechtsnormen zuwiderlaufen«. Das ist nur ein Bespiel eines Diskurses über die Rolle Russlands als »Verteidiger« des Völkerrechts; in den letzten Jahren gab es viele weitere. Aus Sicht solcher Staaten wie der Ukraine und Georgien könnte nichts weiter von der Realität entfernt sein. Im sogenannten Tagliavini-Bericht [Bericht der vom Europäischen Rat eingesetzten unabhängigen Untersuchungskommission zum Konflikt in Georgien-Anm. d. Red.] wurde festgestellt, dass Russland im Zuge des russisch-georgischen Krieges vom August 2008 mehrere Völkerrechtsverstöße in Reaktion auf oder in Erwartung der Schritte Georgiens begangen hatte. Darunter fallen die Aushändigung russischer Pässe an die Anwohner Abchasiens und Südossetiens sowie die russischen Militäraktionen, die weit über die Grenzen vernünftiger Selbstverteidigung hinausgingen. Russlands Vorwurf, das georgische Militär habe in Südossetien einen Völkermord geplant, war so unverhältnismäßig und propagandistisch, dass er Fragen hinsichtlich Russlands Einstellung zum »Verbrechen der Verbrechen« im internationalen Strafrecht aufwarf. Die Ukraine betreffend, unterstrich Resolution 68/262 der UN-Generalversammlung, dass die (nicht anerkannte) Volksab
East European Politics
Five years after the annexation of Crimea and the outbreak of violent conflict in the eastern reg... more Five years after the annexation of Crimea and the outbreak of violent conflict in the eastern regions of Ukraine – often addressed as “Ukraine Crisis” – it is time for evaluating the past and analysing the present of these conflict constellations, and for assessing their potential future(s). In order to give such an account and outlook we deem it essential to turn the analytical focus to exploring changing role(s) of various external actors in the Ukraine Crisis since 2014. The Symposium Five Years After: The Role of International Actors in the “Ukraine Crisis” puts a focus on the roles of external institutional actors (e.g. the European Union – EU, or the United Nations – UN) as well as individual states (e.g. the United States of America – USA, or Russia) and the international community of states (e.g. in the so-called Normandy Format) in the Ukraine Crisis since 2014. The following collection of articles brings together scholars, who offer analysis from different disciplinary perspectives. Yet in their analysis they also highlight the limits posed by narrow disciplinary and sub-disciplinary approaches. In combination the contributions suggest viewing the ongoing conflicts in and around Ukraine from the analytical intersections between International Relations (IR), Foreign Policy Analysis (FPA), International Law, and Peace and Conflict Studies. This Symposium offers new accounts of the roles and influences that different external actors, their policies, and their participation in various negotiation formats have had, and might continue to have and therewith bridges gaps between and blind spots at the intersections of IR, FPA, and the Peace and Conflict Studies literatures. The annexation of Crimea and the violent conflict in Eastern Ukraine have been the focus of numerous scholarly analyses since 2014. The existing literature can be roughly divided into two strands: analyses that focus either on the internal/domestic roots and dimensions of the conflict constellations in and around Ukraine, like regional diversity and intra-societal divides (see e.g. Wanner 2014; Kulyk 2016, 2019; Sasse and Lackner 2018), or studies that are concerned with the geopolitical dimensions of the Ukraine Crisis (see e.g. Götz 2015; Haukkala 2015; Youngs 2017). The latter tend to conceptualise the Ukraine Crisis as a culmination of a lengthy geopolitical standoff and alleged antagonism between Russia and “the West”
Europe-Asia Studies , 2020
Since the Soviet Union’s collapse, Ukraine, Georgia and Russia have faced the challenge of taking... more Since the Soviet Union’s collapse, Ukraine, Georgia and Russia have faced the challenge of taking their positions in the politics of international law as part of their transformation processes. Strong dynamics of conflict have shaped these states’ politico-legal actions and interactions, for example, the Russo–Georgian War, the annexation of Crimea and the armed conflict in East Ukraine. This essay explores whether, how and why Georgia, Ukraine and Russia ‘speak’ international law in international politics differently. It discusses conceptual approaches to empirically analysing the processes of translating political preferences into legal arguments as well as how ‘communicators of international law’ in the post-Soviet region use the language of international law differently.
Europe-Asia Studies, 2020
East European Politics, 2019
The implementation of the Minsk Agreements has been flawed and failure-prone, but they remain the... more The implementation of the Minsk Agreements has been flawed and failure-prone, but they remain the key politico-legal frameworks of reference for addressing conflict transformation and settlement in East Ukraine. This article investigates how and why the Minsk Agreements’ troubled implementation has been shaped by typical or non- typical characteristics of contemporary internationalised and legalised peace agreements. It helps to unpack the Minsk Agreements’ “limbo between failing and the imperative of not failing”, leading to a discussion of ways to approach the negotiation and implementation of peace agreements from pragmatic perspectives beyond the binary distinction between success and failure.
A Sudanese proverb says that Abyei is the ‘eye’ of the Sudans. The Ngok Dinka, a pastoralist trib... more A Sudanese proverb says that Abyei is the ‘eye’ of the Sudans. The Ngok Dinka, a pastoralist tribe loyal to the Sudan People's Liberation Movement/Army (SPLM/A), settles in the Area. The Misseriya, Arab nomads with close ties to the Government of Sudan (GoS), drive their cattle through this land. That the Abyei Area turned out to be rich with oil further intensified the dispute between the central government and the secessionist movement in the south.
To address this complex conflict the Comprehensive Peace Agreement (CPA) of 2005 and its Additional Protocols established the Abyei Boundaries Commission (ABC). Based on scientific research and evidence, this group of experts was meant to delimit the Area to enable its demarcation and, in the end, a referendum about its status. The GoS, however, did not accept the ABC’s Report arguing that it had exceeded its mandate.
Facing the failure of the entire peace process and a back step into war, the GoS and the SPLM/A submitted an arbitration agreement with the Permanent Court for Arbitration (PCA). In a unique fast track procedure, an international arbitral tribunal had to determine in accordance with the CPA, the Abyei Protocol and Abyei Appendix, the Interim National Constitution and general principles of law, whether the ABC had exceeded its mandate. In case of excess, the parties entrusted the Tribunal of international lawyers with redefining the boundaries of the disputed territory based on their submissions.
The Abyei Arbitration is widely considered to be a remarkable legal procedure concerning the interpretation and implementation of a peace agreement in which a state’s government and a secessionist movement sought the delimitation of an area which could potentially become an inter-state border. Observers assumed that while the parties were unable to enter into new negotiations or to accept a mediated settlement they would be able to respect a decision of an independent, neutral international legal body. Yet, the status of Abyei, i.e. the delimitation and demarcation of its boundaries, and the determination of who is a resident and therefore entitled to vote in a referendum as to whether or not the Abyei Area should join the now independent Republic of South Sudan, are still pending.
Against this background the article gives an overview of the Abyei dispute and the developments that led to the Abyei Arbitration before entering into a discussion on some arguments that were raised by the parties during the arbitration procedure and the Abyei Award delivered by the Tribunal on 22 July 2009. At this example the second part discusses problems, advantages and disadvantages of international arbitration as a mean to settle disputes concerning the interpretation and implementation of peace agreements between state and non-state parties. In a last step it summarises whether and under what conditions international arbitration could serve as framework for dealing with disputes between state and non-state parties to peace agreements in the future.
It inter alia finds that arbitration is an appealing method of dispute settlement, mainly because of its flexibility. At the same time, the parties can expect the procedure to be in accordance with legal principles specified by them. When it comes to the (non-)compliance of the parties, it finds that arbitration can only be effective if the parties genuinely desire a final and legally binding resolution to their (political) dispute, if the tribunal is given an appropriate mandate to address what is at stake between them, and if the implementation of the award is secured by mechanisms, ideally already agreed upon in the arbitration agreement.
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Papers by Cindy Wittke (former Daase)
PASSPORTIZATION
Referring in this paper to the extraterritorial naturalization of Donbas residents en masse, passportization is one of Russia’s preeminent foreign policy tools to deepen the potentially explosive deadlock in the implementation of the Minsk Agreements. In this deadlock, passportization can serve as a tool of ambiguous Russian extraterritorial governance over the Donbas while keeping violence at a comparatively low level, or as a tool to justify a full-scale Russian military intervention to “protect” its citizens from, for example, a purported “genocide.”
RUSSIA’S GOAL
Russia does not necessarily want more citizens or territories: Russia’s ultimate goals are far-ranging security guarantees to prevent Ukraine’s further integration or membership with NATO. Passportization is one of the instruments to achieve this overarching goal.
SECOND-CLASS CITIZENS
Passportization of residents of the non-government-controlled areas of the Donbas does not endow these Ukrainians with full membership of the Russian state; they are “second-class citizens” with diminished rights. This becomes especially apparent with regard to not only international non-recognition, but also pensions, social benefits, and voting rights.
LEGITIMACY DEFICIT
Due to this “diminished citizenship,” Russia suffers from a legitimacy deficit in the self-proclaimed “People’s Republics” of Donetsk and Luhansk—the “DPR” and “LPR.” Enforcing voting rights for Donbas residents in the 2021 Duma elections therefore served the purpose of legitimizing Russia in the residents’ eyes: It suggested that integration with Russia is continuously advancing.
DONBAS VOTERS SUPPORT UNITED RUSSIA
Donbas voters are pro-Russian: They have much more favorable views toward United Russia than Russians in the Rostov region. On average, the presence of Donbas residents at respective Rostov polling stations, and at the seven Rostov electoral districts, adds 25 percent to the United Russia result. This is paradoxical, as United Russia follows the official Russian reading of the Minsk Agreements—reintegration of the Donbas with Ukraine on Russian terms—while Donbas residents voted for integration with Russia. But the official results give a distorted picture of support for United Russia, as workplace mobilization and electoral manipulations were widely reported.
FAST-TRACKED PASSPORTS NOT RECOGNIZED
Ukraine’s policy to counteract passportization and the involvement of Ukrainian citizens in Russian elections has a legal foundation: Ukraine does not allow dual citizenship. The fast-track passports are not recognized, and passportized Donbas residents are still considered Ukrainian—and not Russian—citizens. Russian elections with the involvement of Donbas residents are declared illegal and the Russian parliament illegitimate. But beyond this legal foundation, Ukraine lacks a coherent, long-term strategy on how to reintegrate Ukrainians in the “DPR” and“LPR.”
U.S. AND EU SHOULD SUPPORT UKRAINIAN SOVEREIGNTY
The reaction of the United States and the EU to Russia’s passportization has been weak; a mere non-recognition of these passports is not sufficient. Instead, the West should acknowledge that passportization and the development of Russian electoral infrastructure in the Donbas fundamentally erodes the political part of the Minsk Agreements by undermining the possibility of having free and fair local elections according to OSCE standards. The U.S. and the EU should reinvigorate their support of Ukrainian sovereignty without pushing Ukraine deeper into the “sequency trap” with political concessions.
UKRAINE URGENTLY NEEDS A LONG-TERM STRATEGY
Ukraine urgently needs a coherent long-term policy toward its citizens in the non-government-controlled territories. Policy suggestions from various actors range from hawkish (stripping Donbas residents with Russian passports of Ukrainian citizenship) to conciliatory (de facto recognition of some documents issued by the “DPR” and “LPR”). This hodgepodge of proposed policy responses unmistakably sends the wrong signals to Donbas residents. Instead, Ukraine should deepen its engagement with Donbas residents by making public services more accessible, including by a speedy digital transformation of state services. Better Ukrainian public services would be a powerful tool to counteract Russia’s creeping passportization of the Donbas.
To address this complex conflict the Comprehensive Peace Agreement (CPA) of 2005 and its Additional Protocols established the Abyei Boundaries Commission (ABC). Based on scientific research and evidence, this group of experts was meant to delimit the Area to enable its demarcation and, in the end, a referendum about its status. The GoS, however, did not accept the ABC’s Report arguing that it had exceeded its mandate.
Facing the failure of the entire peace process and a back step into war, the GoS and the SPLM/A submitted an arbitration agreement with the Permanent Court for Arbitration (PCA). In a unique fast track procedure, an international arbitral tribunal had to determine in accordance with the CPA, the Abyei Protocol and Abyei Appendix, the Interim National Constitution and general principles of law, whether the ABC had exceeded its mandate. In case of excess, the parties entrusted the Tribunal of international lawyers with redefining the boundaries of the disputed territory based on their submissions.
The Abyei Arbitration is widely considered to be a remarkable legal procedure concerning the interpretation and implementation of a peace agreement in which a state’s government and a secessionist movement sought the delimitation of an area which could potentially become an inter-state border. Observers assumed that while the parties were unable to enter into new negotiations or to accept a mediated settlement they would be able to respect a decision of an independent, neutral international legal body. Yet, the status of Abyei, i.e. the delimitation and demarcation of its boundaries, and the determination of who is a resident and therefore entitled to vote in a referendum as to whether or not the Abyei Area should join the now independent Republic of South Sudan, are still pending.
Against this background the article gives an overview of the Abyei dispute and the developments that led to the Abyei Arbitration before entering into a discussion on some arguments that were raised by the parties during the arbitration procedure and the Abyei Award delivered by the Tribunal on 22 July 2009. At this example the second part discusses problems, advantages and disadvantages of international arbitration as a mean to settle disputes concerning the interpretation and implementation of peace agreements between state and non-state parties. In a last step it summarises whether and under what conditions international arbitration could serve as framework for dealing with disputes between state and non-state parties to peace agreements in the future.
It inter alia finds that arbitration is an appealing method of dispute settlement, mainly because of its flexibility. At the same time, the parties can expect the procedure to be in accordance with legal principles specified by them. When it comes to the (non-)compliance of the parties, it finds that arbitration can only be effective if the parties genuinely desire a final and legally binding resolution to their (political) dispute, if the tribunal is given an appropriate mandate to address what is at stake between them, and if the implementation of the award is secured by mechanisms, ideally already agreed upon in the arbitration agreement.
PASSPORTIZATION
Referring in this paper to the extraterritorial naturalization of Donbas residents en masse, passportization is one of Russia’s preeminent foreign policy tools to deepen the potentially explosive deadlock in the implementation of the Minsk Agreements. In this deadlock, passportization can serve as a tool of ambiguous Russian extraterritorial governance over the Donbas while keeping violence at a comparatively low level, or as a tool to justify a full-scale Russian military intervention to “protect” its citizens from, for example, a purported “genocide.”
RUSSIA’S GOAL
Russia does not necessarily want more citizens or territories: Russia’s ultimate goals are far-ranging security guarantees to prevent Ukraine’s further integration or membership with NATO. Passportization is one of the instruments to achieve this overarching goal.
SECOND-CLASS CITIZENS
Passportization of residents of the non-government-controlled areas of the Donbas does not endow these Ukrainians with full membership of the Russian state; they are “second-class citizens” with diminished rights. This becomes especially apparent with regard to not only international non-recognition, but also pensions, social benefits, and voting rights.
LEGITIMACY DEFICIT
Due to this “diminished citizenship,” Russia suffers from a legitimacy deficit in the self-proclaimed “People’s Republics” of Donetsk and Luhansk—the “DPR” and “LPR.” Enforcing voting rights for Donbas residents in the 2021 Duma elections therefore served the purpose of legitimizing Russia in the residents’ eyes: It suggested that integration with Russia is continuously advancing.
DONBAS VOTERS SUPPORT UNITED RUSSIA
Donbas voters are pro-Russian: They have much more favorable views toward United Russia than Russians in the Rostov region. On average, the presence of Donbas residents at respective Rostov polling stations, and at the seven Rostov electoral districts, adds 25 percent to the United Russia result. This is paradoxical, as United Russia follows the official Russian reading of the Minsk Agreements—reintegration of the Donbas with Ukraine on Russian terms—while Donbas residents voted for integration with Russia. But the official results give a distorted picture of support for United Russia, as workplace mobilization and electoral manipulations were widely reported.
FAST-TRACKED PASSPORTS NOT RECOGNIZED
Ukraine’s policy to counteract passportization and the involvement of Ukrainian citizens in Russian elections has a legal foundation: Ukraine does not allow dual citizenship. The fast-track passports are not recognized, and passportized Donbas residents are still considered Ukrainian—and not Russian—citizens. Russian elections with the involvement of Donbas residents are declared illegal and the Russian parliament illegitimate. But beyond this legal foundation, Ukraine lacks a coherent, long-term strategy on how to reintegrate Ukrainians in the “DPR” and“LPR.”
U.S. AND EU SHOULD SUPPORT UKRAINIAN SOVEREIGNTY
The reaction of the United States and the EU to Russia’s passportization has been weak; a mere non-recognition of these passports is not sufficient. Instead, the West should acknowledge that passportization and the development of Russian electoral infrastructure in the Donbas fundamentally erodes the political part of the Minsk Agreements by undermining the possibility of having free and fair local elections according to OSCE standards. The U.S. and the EU should reinvigorate their support of Ukrainian sovereignty without pushing Ukraine deeper into the “sequency trap” with political concessions.
UKRAINE URGENTLY NEEDS A LONG-TERM STRATEGY
Ukraine urgently needs a coherent long-term policy toward its citizens in the non-government-controlled territories. Policy suggestions from various actors range from hawkish (stripping Donbas residents with Russian passports of Ukrainian citizenship) to conciliatory (de facto recognition of some documents issued by the “DPR” and “LPR”). This hodgepodge of proposed policy responses unmistakably sends the wrong signals to Donbas residents. Instead, Ukraine should deepen its engagement with Donbas residents by making public services more accessible, including by a speedy digital transformation of state services. Better Ukrainian public services would be a powerful tool to counteract Russia’s creeping passportization of the Donbas.
To address this complex conflict the Comprehensive Peace Agreement (CPA) of 2005 and its Additional Protocols established the Abyei Boundaries Commission (ABC). Based on scientific research and evidence, this group of experts was meant to delimit the Area to enable its demarcation and, in the end, a referendum about its status. The GoS, however, did not accept the ABC’s Report arguing that it had exceeded its mandate.
Facing the failure of the entire peace process and a back step into war, the GoS and the SPLM/A submitted an arbitration agreement with the Permanent Court for Arbitration (PCA). In a unique fast track procedure, an international arbitral tribunal had to determine in accordance with the CPA, the Abyei Protocol and Abyei Appendix, the Interim National Constitution and general principles of law, whether the ABC had exceeded its mandate. In case of excess, the parties entrusted the Tribunal of international lawyers with redefining the boundaries of the disputed territory based on their submissions.
The Abyei Arbitration is widely considered to be a remarkable legal procedure concerning the interpretation and implementation of a peace agreement in which a state’s government and a secessionist movement sought the delimitation of an area which could potentially become an inter-state border. Observers assumed that while the parties were unable to enter into new negotiations or to accept a mediated settlement they would be able to respect a decision of an independent, neutral international legal body. Yet, the status of Abyei, i.e. the delimitation and demarcation of its boundaries, and the determination of who is a resident and therefore entitled to vote in a referendum as to whether or not the Abyei Area should join the now independent Republic of South Sudan, are still pending.
Against this background the article gives an overview of the Abyei dispute and the developments that led to the Abyei Arbitration before entering into a discussion on some arguments that were raised by the parties during the arbitration procedure and the Abyei Award delivered by the Tribunal on 22 July 2009. At this example the second part discusses problems, advantages and disadvantages of international arbitration as a mean to settle disputes concerning the interpretation and implementation of peace agreements between state and non-state parties. In a last step it summarises whether and under what conditions international arbitration could serve as framework for dealing with disputes between state and non-state parties to peace agreements in the future.
It inter alia finds that arbitration is an appealing method of dispute settlement, mainly because of its flexibility. At the same time, the parties can expect the procedure to be in accordance with legal principles specified by them. When it comes to the (non-)compliance of the parties, it finds that arbitration can only be effective if the parties genuinely desire a final and legally binding resolution to their (political) dispute, if the tribunal is given an appropriate mandate to address what is at stake between them, and if the implementation of the award is secured by mechanisms, ideally already agreed upon in the arbitration agreement.