Steinmeier’s Formula: Its Background and Development in the Normandy and Minsk Processes (Part Two)

*To read Part One, please click here.

The Minsk One and Minsk Two “agreements” (September 2014 and February 2015) dictated to Ukraine to accept a constitutional special status for the Russian-controlled Donetsk-Luhansk territory; to amnesty those criminally involved in seizing local administrations there; and to authorize new local elections to be held in that territory “under Ukrainian law” (i.e., for the existing administrative entities: districts, towns, villages). Those political clauses in the Minsk armistice, aiming first to legitimize and then to legalize Russian control of that territory through local proxies, became the basis for the Steinmeier Formula from 2015 to date (see Part One in EDM, September 24).

Defeated by Russia’s conventional forces in the field and pressured by Germany politically, Ukraine initially complied. On September 16, 2014, the Ukrainian parliament adopted a law on the special status of that territory (time-limited to three years as a concession); and it authorized the holding of new, local-level elections there, under the existing Ukrainian law (for districts, towns, villages). The special status was to take effect, as per Minsk, after those local elections, which were scheduled for December 7, 2014.

Russia, however, preempted those local elections by staging “elections” for a different set of bodies of power in November 2014—namely, the “parliaments” and “presidents” of the Donetsk and Luhansk “people’s republics” (DPR, LPR). Russia and the DPR-LPR again staged “parliamentary and presidential elections” in 2018, thus perpetuating the two “republics” (see EDM, November 15, 26, 27, 2018). Their entrenchment, never authorized by the Minsk “agreements” and breaching Ukraine’s laws, has turned the Steinmeier Formula into a direct tool for legitimizing the two “republics.”

The local-level “elections,” as envisaged by the Steinmeier Formula and demanded by Russia (for districts, towns, villages), would not affect the two “people’s republics’ ” existence. An international validation of the proposed elections would only consolidate the DPR-LPR, make them look “democratic,” and legitimize them for special status. The “people’s republics,” with their institutions and military organizations, would not go away as a result of elections being held for administrative entities below those “republics’ ” level. The claimants to special status are the DPR-LPR, not the municipalities therein.

Russia’s interpretation of the Minsk “agreements” holds that all solutions (special status, elections, border control, etc.) be negotiated between Kyiv and the DPR-LPR leaders, thereby awarding the latter de facto recognition and blocking abilities. The “Normandy” powers Germany and France and the Steinmeier Formula do not challenge that Russian interpretation. Instead, they have relegated the detailed implementation of the Minsk “armistice” and of the Steinmeier Formula for negotiations in the Minsk Contact Group, in which the “DPR-LPR”leaders participate.

To prepare local (municipal-level) “elections” in the Russian-controlled territory while still partly upholding Ukraine’s title to sovereignty in that territory, the Normandy powers—along with the Obama administration in its final phase—proposed a “creative solution.” On October 2, 2015, the Normandy summit in Paris (that in which Steinmeier presented the primordial version of his Formula—see Part One in EDM, September 24) adopted what became known as the Morel Plan. Named after the French diplomat Pierre Morel, whom they tasked with coordinating the details, and closely linked with the Steinmeier Formula, the Morel Plan was to work out a special electoral law, by negotiations between Kyiv and Donetsk-Luhansk, on the modalities of staging “elections” in that territory.

The Steinmeier Formula and the Morel Plan are parts of one single whole, namely special status via elections in the Russian-controlled territory. Under the Morel Plan, those “elections” would supposedly be held “under Ukrainian law.” But this would in fact be a Ukrainian-“DPR/LPR”arrangement, distinct from Ukraine’s own law, and tailored instead to Donetsk-Luhansk. This would compromise, instead of upholding, Ukrainian sovereignty. Originating in the Grigory Karasin–Victoria Nuland bilateral channel that was set up in 2015, the idea that led to the Morel Plan was taken on board by the Normandy summit (see above) and passed down to the Minsk Contact Group to be worked out between Kyiv and Donetsk-Luhansk. Thanks to Ukraine’s skillful resistance, the Morel Plan and the Steinmeier Formula have remained deadlocked in the Minsk Contact Group to date.

In January 2016, Steinmeier slightly refined his Formula and had it officially endorsed by his French ministerial counterpart for symbolism. A joint letter to the Minsk Contact Group, signed by Steinmeier and Laurent Fabius, specified that Ukraine‘s parliament should bring the constitutional law on Donetsk-Luhansk’s special status into temporary effect at 8:00 p.m., on the day of the local elections to be held there. And it should bring that special status into permanent effect immediately upon the publication of the assessment of those elections by the Organization for Security and Cooperation in Europe’s (OSCE’s) Office for Democratic Institutions and Human Rights. The Kremlin’s envoy in the Minsk Contact Group, Boris Gryzlov, avidly embraced that proposal (TASS, January 27, 2016; RIA Novosti, January 28, 2016).

That proposal sought to eliminate two rings in Ukraine’s defenses. First, if Kyiv is rushed into proclaiming the special status ahead of the vote count and tabulation, simply because elections were physically staged, it would then become politically prohibitive for Kyiv to revoke the special status if significant fraud occurs in the vote count and tabulation. And second, the Steinmeier Formula does not make Donetsk-Luhansk’s eligibility for special status (i.e., legitimization and legalization) conditional on holding free and fair elections. The Minsk “agreements” simply entitle Donetsk-Luhansk to a special status and spell it out. However, the OSCE might be asked to put a half-way democratic cover on “elections” there (see below).

At that stage, the Ukrainian parliament had adopted a constitutional law on Donetsk-Luhansk’s special status in the first reading, but not in the second. Steinmeier’s Formula, however, proceeds from the incorporation of that special status into Ukraine’s constitution, subsequent steps (e.g., how or when the special status takes effect) being derivative. Hence, Gryzlov’s demand (then and since then in the Minsk Contact Group) that Ukraine’s parliament should incorporate the special-status law in the body of the constitution, “according to the Steinmeier Formula” (see above).

On October 19, 2016, the Normandy summit in Berlin (the last one held to date) confirmed the sequenced stages of a road map to implement the Minsk “agreements.” This summit introduced a link between Donetsk-Luhansk’s eligibility for a special status and the OSCE’s evaluation of the “elections” there. Incorporating the Steinmeier Formula, the road map would consist of enshrining Donetsk-Luhansk’s special status in Ukraine’s constitution, amnesty for criminal liabilities in Donetsk-Luhansk, elections there, the temporary then permanent promulgation of the special status immediately upon the OSCE’s assessment of those elections, and, lastly,restoring Ukrainian control on Ukraine’s side of the Ukraine-Russia border in that territory. (This latter point meant, in practice, negotiating some form of shared control of the border by Kyiv and Donetsk-Luhansk, as seen in Victoria Nuland’s final negotiation with Vladislav Surkov that same month of October 2016.) The Normandy Four leaders tasked their foreign affairs ministers, who in turn tasked the Minsk Contact Group, to work out that road map.

On February 7, 2017, Germany’s ambassador to Ukraine, Ernst Reichel, queried about the Steinmeier Formula, told Ukrainian media that local elections in the Dometsk-Luhansk territory could be held, if necessary, in the presence of Russia’s military forces, just as “the last elections [1990] in the ‘German Democratic Republic,’ which were to replace the communist regime, were held in the presence of the Soviet troops and in conditions of a communist regime.” This analogy sparked protests in Ukraine, to which Berlin officially responded that restoration of Ukrainian control at the border (meaning, in practice, the withdrawal of Russia’s military forces) would be the final stage of the whole process, and implicitly leaving room for “DPR-LPR’s”continuation after the municipal-level elections would have been staged and blessed (Ukrinform, February 7, 8, 2017).

*To read Part Three, please click here.