Argument

Constitutional Conquest

Constitutional Conquest

With the threat of a Russian invasion still heavy in the air of eastern Ukraine, it’s understandable that the esoteric subject of constitutional federalism isn’t plastered across the headlines. But if the Ukraine crisis is ever going to subside, Kiev and its backers in the West will need to come up with a viable formula for boosting the power of ethnic Russians in the eastern part of the country without giving Moscow everything it wants.

Last week’s Geneva agreement between Russia, Ukraine, the European Union, and the United States endorsed the concept of greater autonomy in eastern Ukraine, but the all-important details have yet to be worked out. The urgent imperative for Washington and Kiev is to devise a way to devolve power that stems, rather than accelerates, the centrifugal dynamics that are currently destabilizing Ukraine. The stakes couldn’t be higher: A poorly crafted autonomy plan risks helping Russia achieve all of its designs on Ukraine without sending a single tank across the border.

The best place to draw lessons about the risks of autonomy is the Balkans, where a variety of federalization models have been applied to the region’s ethnic conflicts. The biggest federalization failure — and therefore the preferred model for Moscow — is Bosnia’s Dayton Agreement, which provided rebellious Serbs with an autonomous but non-independent entity known as Republika Srpska. Rather than attenuate Serb demands with ironclad security and extensive self-government, this arrangement has had the opposite effect, serving only to reinforce Serb separatism.

Granted both sweeping executive powers and a defined territory over which it has near-wholesale control, Republika Srpska has little incentive to cooperate with the central government in Sarajevo.  Over the last eight years, while the international community’s gaze was trained elsewhere, the leadership of Republika Srpska has worked assiduously to erode painstakingly constructed state-level institutions. Numerous desperately-needed governance reforms have stopped; Bosnia’s progress towards European Union and NATO membership has stalled out. 

At this point, it is hard to envision a solution to the Ukrainian crisis that better serves Russian interests than Bosnia-style federalization.Without a pliable, Russian-oriented autocrat like the departed Viktor Yanukovych in Kiev, Moscow’s imperative is to weaken and delegitimize Ukraine’s central government, stymie its advancement towards Euro-Atlantic institutions, and consolidate Russian influence in the east of the country. Ultimately, of course, Moscow would like to see the new "region" eventually hold a referendum to secede, as Crimea has done. But even the threat of secession serves Russian interests: Bosnian Serb leader Milorad Dodik’s deft use of this tactic is a powerful demonstration of just how pernicious wide, regional autonomy can be. Underscoring the appeal of the Bosnia model, Dodik visited Moscow last month at the height of crisis over Crimea, proclaimed his unabashed support for Russian policy in Ukraine, and left with a commitment for a whopping €270 million credit line for Republika Srpska.

Ukrainian leaders are wise to this danger, and have already rejected the term "federalism" in negotiations. But the real lesson from Bosnia is the need to go beyond semantics and transfer meaningful power away from the center — but to the municipal, rather than provincial level. Doing so would give restive minorities a greater stake in government without simultaneously enhancing their ability to sabotage the state, or worse, secede altogether. In this sense, a far better model from the fractious Balkans is Macedonia, which unlike Bosnia, forged a deal with its once-rebellious ethnic Albanian minority to increase their powers both at the central and local government levels without creating any new "regions" or "entities" at all. Doing so has constrained the ability of would-be Albanian separatists to coalesce in a bid to undermine state authority. On the contrary, to realize their communal rights, Albanians must go to the capital, Skopje, and participate actively in central government institutions, thereby reinforcing the country’s unity.

Steps to boost Albanian power at the local level, meanwhile, have proven popular across the country, including in predominantly Macedonian towns. To be sure, ethnic divisions, mistrust, and misrule still dog Macedonia, but none is institutionalized as all three are in Bosnia. Unlike Bosnia, Macedonia is a divided, but functioning state that has progressed to the doorstep of NATO membership and kept its EU aspirations in view.

Ukraine’s existing constitution provides ample space for local self-government on the Macedonian model. Some western Ukrainian towns like Lviv, for example, are already taking advantage of the arrangement, developing their local economies and increasing their tax revenue independently of the central government. The potentially contested southern town of Odessa, seen as the next Russian domino, has also made moves in this direction. The challenge is to make decentralization at the local level appealing to the east of the country, where a significant segment of the ethnic Russian population has demanded greater autonomy — not as a way of reforming government, but as a way of perpetuating the role of the state as sole the provider.

Breaking this Soviet-style, statist mentality will take more than just reasserting Kiev’s control. If a deal on decentralization is to be struck and implemented, the European Union is going to have to step in with generous programs that reward local self-reliance, and emphasize accountability and transparency in local government. Just as Albanian and Macedonian mayors learned to cooperate with one another in order to wrest powers from the stifling central state, so might Ukraine’s successful mayors in the west work together, under EU auspices, with their colleagues in the east to make decentralization work, cooperating in the popular fight against rapacious corruption at the central level.

The United States should work closely with Kiev and its EU partners to develop a package deal for Ukraine’s ethnic Russians that is grounded in sensible, broad principles, but also specific on concrete EU assistance programs, particularly at the local level. As part of this arrangement, the Ukrainian government should allow the direct election of all provincial officials, not only in the east but all over the country. (Most decentralization provisions should be uniform throughout the country, so as to prevent the exploitation of special privileges — like those enjoyed by Crimea prior to its annexation — to move toward secession.) Language provisions, including the right to use Russian in the national parliament, should be clarified, not just by law but in the constitution. This would amount to an important symbolic commitment to protecting the rights of ethnic Russians. Critically, however, Ukraine should resist efforts to allow the provinces to join together in a formal association like the Serbs in Kosovo have done. Devolving additional power to the provincial, rather than local level, risks deepening divisions and inviting a regional secessionist movement.

Would such a prudent package, backed by serious EU money, have any chance of winning backing from Moscow? Perhaps not at present, but if Washington backs up its tough rhetoric with concrete steps to counter Russian aggression, Ukraine has another card to play: its relationship with NATO. Beyond federalism, Moscow is also demanding that Ukraine promise to remain outside the alliance. The truth is that NATO membership is not in the cards for Ukraine at the moment anyway, given the mountain of reforms that its weak military would need to accomplish and the anxiety many allies feel about bringing in a member with Ukraine’s level of security exposure to Ru
ssia. It is telling that the alliance has evinced no appetite for advancing Georgia’s NATO prospects, even though it is smaller, better organized, and has a stronger military than Ukraine. 

In other words, it is within the realm of possibility to imagine a deal in which Kiev trades its immediate, largely illusory NATO prospects for Moscow’s acceptance of a viable decentralization plan backed by the United States and European Union. The deal, of course, would be expressly conditioned on Russian respect for Ukraine’s territorial integrity. Should a secessionist movement emerge in the future, Kiev would be free to move ahead with NATO membership — providing a real incentive for Moscow to actually honor an agreement with Ukraine.

Naked Russian aggression in Ukraine makes it much harder to address the legitimate concerns of the country’s ethnic Russian citizens. But Kiev and its Western backers should still be exploring a range of options for doing so, from risky federalism to benign decentralization. As they ponder constitutional revisions, however, they would do well to recall the lessons of the Balkans, lest they unwittingly deliver eastern Ukraine to Russia on a platter.