Kozak Memorandum: Russia’s failed proposal for a Federal Republic of Moldova
The
strategic, geo-political future of Moldova is on the table of the Maastricht meeting of the
OSCE foreign ministers on 1-2 December. Literally on the table is a draft
constitution of a Federal Republic of Moldova proposed by Russia,
following years of unfruitful negotiations sponsored by the OSCE to resolve the
problem of Transnistria’s unrecognised secession. The text is being promoted
diplomatically by Dmitri Kozak, a senior figure on President Putin’s staff. The
proposal is in parts passable professionalism in the writing of federal
constitutions, except that it is distorted by a blatant attempt at power
politics to secure for Russia leverage over the whole of Moldova via the proxy
role of little Transnistria. The Russian initiative also blatantly bypasses the
OSCE, which was meant to have a key mediating role.
Moldova, Bessarabia and Transnistria
Bessarabia is usually understood to be the territory bounded by two big rivers
flowing into the Black Sea, the Dniestr to the
north and the Prut to the south. In 1812 Bessarabia was annexed by Russia, but in the wake of the
Russian revolution it was able to declare independence in 1918 and unite with Romania. In
1940 the USSR
annexed Bessarabia and united it today’s
Transnistria – a very thin piece of land stretching over 200 kilometres along
the left bank of the Dniestr - to form the Moldovan Soviet
Socialist Republic.
The Stalin regime deported about 500,000 Moldovans in the period 1944-1959,
while bringing in about 300,00 Russians, the majority settling in Transnistria.
In August 1991 Moldova
declared its independence upon the collapse of the USSR with, but Transnistria was at
the same time seceding from Moldova
to remain loyal to collapsing USSR,
or at least Russia.
This led to a short war in 1991-1992, in which the 14th
Soviet/Russian army prevailed over the weaker Moldovan forces. Russian troops
have protected Transnistria’s de facto secession ever since, despite
commitments made to the OSCE to withdraw them.
Russia’s proposal
for a Federal Republic of Moldova
This
Russian text proposes the basic principles of a new constitution for what would
become the Federal Republic of Moldova, consisting of a federal territory and
two ‘subjects’ of the Federation – the Transnistrian Moldovan Republic
(Transnistria) and Gagauzia. The federal territory would consist of the rest of
Moldova,
excluding these two subjects[2].
The term ‘asymmetric federation’ is being used to describe this proposal, since
the federal territory and the two subjects would not have equal status. The
federal government would be responsible for both the federation’s competences
and government of the federal territory.
The
idea of an asymmetric federation is plausible where the entities are of very
unequal size. One can consider as other examples of asymmetric federations the
cases of Spain
and the United Kingdom,
where Catalonia
and Scotland
respectively have special autonomy compared to the rest of Spain or England. By contrast
Belgium
is a symmetrical federation, with equal status for the two main communities and
regions, and with separate federal and regional tiers of government.
Transnistria has in the past argued for equal status with the rest of Moldova, like Northern Cyprus also, but the Russian proposal has
shifted Transnistria off this position.
For
the Federal Republic of Moldova it is proposed that the competences of
government be divided into three categories: those of the federation, those of
the subjects, and joint competences. There are a large number of important
joint competences, as opposed to exclusive competences for each tier of
government. This large number of joint competences is a recipe for indecisive
or blocked governance, and must be considered a weakness in the proposal.
However
this weakness is all the more serious when taken together with the electoral
and voting rules proposed for the senate. The legislature would have two
houses. An orthodox lower house, elected by proportional representation, would
pass legislation by simple majority. However all laws would also need the
assent of the senate, whose representation would be highly disproportionate: 13
senators elected by the federal lower house, 9 by Transnistria and 4 by
Gagauzia. An alliance of the two subjects could block any law. However the
voting strength of Transnistria would be even stronger since its
representatives in the federal parliament could use their votes to elect some
more senators from Transnistria.
This
disproportion would be even more serious still during a transitional period
lasting until 2015, before which federal ‘organic laws’ could only be passed
with a ¾ majority in the senate, where Transniestria would have 34% of the
seats, and therefore an outright blocking minority.
There
is a similar story for the Federal
Consitutional Court, which would have 6 judges
appointed by the lower house, 4 by Transnistria and 1 by Gagauzia. Until 2015
decisions by the court would require no less than 9 votes, giving again an
outright blocking minority to Transnistria.
The
voting rules are differentiated as between ‘organic laws’, which regulate joint
competences and ‘ordinary laws’, which regulate federal competences. Both types
of laws may be passed by simple majorities of the two houses. Vetos by the
senate of ordinary laws may be overridden by a two-thirds majority in the lower
house, but vetos of organic laws may not be overridden. Changes in the
constitution would require a 4/5 majority in the senate.
Problem
The potential blocking
power of the Transnistrian minority is the essential issue. It is usual for
constitutions dealing with problems of secession to give a strongly protected
position to the minority groups. It is invariably a highly delicate matter to
find a workable balance between the
majoritarian principle and that of consensus, or veto powers. However the
Russian proposal manifestly goes much too far in giving blocking powers to
Transnistria. The problem is all the more serious given that the leadership of
Transnistria is an authoritarian regime, backed by omnipresent secret services,
which has also acquired an extremely bad reputation for illegal trafficking
business of all kinds (drugs, weapons, people).
It not usual in asymmetric
federations to grant extensive blocking powers to autonomous entities that
represent only a small fraction of the total population. For example neither Catalonia nor Scotland can
block legislation in the Spanish or UK legislatures, where there is no
doubt over the democratic credentials of these autonomies. The normal model is
that autonomies enjoy the free exercise of their exceptional powers within
their territory, and for their autonomy to be constitutionally guaranteed, but
not otherwise to have special powers over federal legislation. Even in the case
of Belgium,
with absolute political equality between the two main communities, there is
only a restricted category of legislation that requires more than a simple
majority, and allowing for a veto by one community.
One way of improving the
present proposal would be to reduce drastically the number of joint
competences, and thus the scope of the blocking power of the minorities. This
would be crucial for Moldova’s
European perspectives, since integration with the EU ultimately involves a
large amount of legislation in domains that would be joint competences
according to the Russian proposal. If Transnistria wanted to block Moldova’s
European integration ambitions it could easily do so.
A complementary method
would be to have a much less disproportionate representation in the senate,
and/or to have less high qualified majority voting threshholds.
It would be more
appropriate to reverse the logic of the proposed transition period that gives
Transnistria exceptional blocking powers until 2015. The alternative would be
for Transnistria not to have exceptional minority powers in the federal
legislation until and unless the regime had become sufficiently democratic,
which the OSCE might monitor.
Reactions
President
Smirnov of Transnistria has characterised the document as a compromise able to
normalise relations between Moldova
and Transnistria. However he also wants military guarantees, which are not
mentioned in the proposal[3].
He wants a Treaty providing for a Russian military deployment in Moldova for 30
years[4].
President
Voronin of Moldova
was initially been quoted as giving qualified support for the proposal:
“Moldovan society will succeed in finding the optimal solution after studying,
discussion and improvement of this document”[5].
However
several Moldovan opposition parties held an extraordinary session of their
Permanent Round Table on 24 November, advocating rejection of the Russian
proposal, insisting on unconditional withdrawal of Russian troops from
Transnistria, and on EU, US, Romanian and Ukrainian participation in the
process. A group of 20 non-government organisations and think tanks signed
on 21 November an appeal to the EU, US,
Romania and Ukraine to use their influence to stop the Russian proposal, which
“purporting to ‘resolve’ the Transnistria conflict … would destroy our state
and the existing feeble elements of democracy here”. Students have been
demonstrating in the streets of Chisinau, brandishing banners such as ‘Putin,
don’t forget, Bessarabia is not yours’[6].
The
OSCE did not participate in the drafting of the proposal and saw it for the
first time on 14 November, before it was formally presented to the principal
parties on 17 November. On 24 November a press release of the OSCE indicated
that its Chairman-in-Office, the Dutch foreign minister, had told President
Voronin that there was no consensus among OSEC member states to support the
Russian proposal, which could be an understatement.
Dmitri
Kozak for Russia
has said that “leaders of the Republic
of Moldova and of
Transnistria are to approve, as soon as possible, the draft of the memorandum”.
However he has added that “not all points from the memorandum are ideal and
acceptable”[7]. Kozak
also disingenuously sought to clothe his proposal with the European flag.
“Without settlement of the Transnistrian problem, the Republic of Moldova
will be unable to integrate with the European Union. If the country will unify,
then this perspective will appear”[8].
But that would depend also upon seriously amending his proposal for the
Moldovan constitution, which Mr Kozak presumably appreciates.
On
24 November the Moldovan presidential press service announced that President
Putin would be visiting Moldova
on Tuesday 25 December, expecting that the Kozak memorandum would be signed
that day with President Voronin. On 25 November it was announced that President
Putin’s visit had been cancelled.
President
Voronin issued a statement on 25 November that: “The plan proposed by the Russian federation
is a response to a true compromise between the sides. … However the document is
of such strategic importance cannot be adopted against the resistance of one or
another side. … Obviously, Moldova’s
European integration option requires the support of the European organizations,
in particular of the OSCE for this settlement plan. … Under these conditions Moldova’s
leadership describes the signing of this memorandum as premature before the
coordination of its text with the European organizations”[9].
Mr
Kozak was reported on 25 November as describing Voronin's refusal to give green
light to the memorandum as “illogical”, and “lacking in political courage"
and "political irresponsibility".
Options for Moldova
There
are choices to be made by all interested parties, first of all by President Voronin
of Moldova,
who might be reflecting on three possible scenarios.
A/
The first one would be to accept the Russian proposal without significant
improvement, only to find his country becoming political hostage to the veto
powers of an undemocratic Transnistria indefinitely, or at least until 2015. In
this case he would be overriding strong opposition at home, which is of course
highly undesirable for any such constitutional act.
B/
The second scenario would be to succeed in getting sufficient improvements in
the memorandum, and then go ahead with re-unification, which could be supported
then by all the international community as well.
C/
The third scenario would start with an attempt to try to get the essential
improvements, which however Russia
and/or Transnistria do not agree to. In this case Moldova would suspend the
negotiations and aim instead at an accelerated Europeanisation, making an
agreement with the European Union to join seriously the South East European
integration train without Transnistria. This should lead to improving
perspectives for Moldova
(Chisinau). The Transnistria regime, which is already in a desperate condition,
would further decline and ultimately, maybe in a few years time, collapse.
Thereafter re-unification negotiations could resume under more favourable
conditions for Moldova
with a new and maybe democratic Transnistrian regime.
The
EU, US and Russia
may also be reflecting on these three main possibilities. The EU could do well
to make its position clear and credible. Its argument could be in two steps.
First, essential improvements to the Russian proposal are necessary for Moldova to have
a future in Europe. Second, if the Russian and
Transnistrian sides are unreasonable in resisting these, the EU would offer to
Moldova (i.e. Chisinau alone) an immediate step into the Stabilisation and
Association Agreement process, with perspectives of ultimate EU membership
equal to those already extended to the rest of South East Europe, and without
preconditions over reunification of Moldova. The EU would also offer
conditional incentives to Transnistria, but the conditions would amount to a
regime change there. The US
would presumably support this proposed EU strategy.
The
choice is also for Russia,
whether to persist in backing a biased and defective constitution, or rather
support a democratising, modernising and Europeanising concept for the whole of
Moldova
with a better proposal, and so to enter into a new phase of cooperation with
the EU, the US
and the OSCE as a whole in the overlapping near abroads. Already the story is
one of Russia having grossly overplayed its hand in trying to bulldozer through
a proposal that meets serious opposition in Moldova itself, and dismay in the
West over both the method and content of its diplomacy.
25 November 2003
[1]
Associate Senior Research Fellow, Centre for European Policy Studies (CEPS).
[2]
Uptodate population figures are not available. The 1989 census gave a total
population for all of Moldova
(including Transnistria and Gagauzia) of 4,335,000, of which 13% were Russian.
Transnistria is estimated to have a population today somewhere between 500,000
and 700,000, of which 40-45% are Moldovan, 25% Russian, and 25% Ukrainian. The
population of Gagauzia is thought to be about 155,000. Since 1989 the total
population is estimated to have declined by about 500,000.
[3]
OSCE Mission to
Moldova,
News Digest, 18 November
2003.
[4]
OSCE Mission to
Moldova,
News Digest, 21 November
2003.
[5]
OSCE Mission to
Moldova,
News Digest, 20 November
2003.
[6] OACE Mission to Moldova, News
Digest, 25 November 2003
[7]
OSCE Mission to
Moldova,
News Digest, 18 November
2003.
[9] OSCE Mission to Moscow, News Digest, 25 November 2003
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