If the EU is serious about helping Ukraine, both parties should focus on the country’s most glaring problem, and the Maidan’s principal demands – justice and the rule of law.
|Suggested Reading||Conflict Background||GCCT|
By Devin Ackles
Ukraine has long been at work building closer ties with the European Union and its member states. In a sense, Ukraine is already very well integrated into Europe. Beyond developing its own economic interests with the EU, Ukraine is a member of the Council of Europe (1995), the OSCE (1992), the Energy Community (2011) and has been subject to the European Human Rights Court’s rulings since it ratified the European Convention of Human Rights in 1997.
For all its ties to Russia – and indeed like Russia itself – Ukraine is highly integrated with the West, and with the EU in particular. This can be seen most clearly in its trade ties with the EU, Ukraine’s number one overall trading partner and source of foreign direct investment. Ukraine’s financial sector is deeply integrated with the West, its importance as a hub of energy transportation for the EU is undeniable, and its regional economic significance dwarfs that of any other country in the EU’s Eastern Partnership programme.
But there are different types and degrees of integration. The EU and its member states, to varying extents, have long been engaged in promoting closer economic ties with Ukraine. This policy of economic engagement has been the cornerstone of the EU’s appeal to many of its neighbours, often enticing them to appeal for even closer ties and even full membership.
But by privileging the economic benefits of doing business with Ukraine, the EU has consistently overlooked the quality of its democracy and institutions. It is precisely this policy that has led, in part, to the situation we see today. Since the 1990s, Ukraine’s wealthy elite has thrived off its ability to collect rents from the state budget, sell goods to Europe (and elsewhere) on the cheap, all the while squirreling away its wealth in European bank accounts and real estate without fear of reprisal.
The Association Agreement signed in 2014 between Ukraine and the EU represents a significant shift in bilateral relations. These ties have grown even stronger as a result of German chancellor, Angela Merkel, taking the lead on EU policy for Ukraine following Russia’s annexation of Crimea, and its role in supporting the self-proclaimed separatist republics in the east of the country.
It was the previous government’s decision to indefinitely postpone the signing of the Association Agreement with Ukraine that prompted a handful of students and Kyiv’s intelligentsia to take to the Maidan in the beginning. Protestors on the Maidan were not fighting for the right to simply sign an Association Agreement with the EU. The EuroMaidan movement was always about something much bigger, a vague idea that commentators have begun to call a ‘civilisation choice’, or the difference between Russian practices and ways of doing business and those of the EU.
President Petro Poroshenko’s vision of Ukraine applying for EU membership in 2020, alongside the Association Agreement itself, has taken a backseat lately as the conflict in the east simmers and the country’s economy hangs on by a thread.
And while the Verkhovna Rada, Ukraine’s parliament, has passed a number of sweeping reforms in the past year, a good portion of them have been aimed primarily at securing funds from the IMF and other donors in order to fill the state’s depleted coffers. Other laws, such as the so-called ‘lustration law’ and a package of anti-corruption laws that were passed last October have yet to really come into force almost half a year later.
The absence of substantive reforms and persistently high levels of corruption has led to a number of local groups of highly-educated professionals, like the Reanimation Package of Reforms, to pressure the government to follow through on their reform promises.
Prioritising once more the Association Agreement
At present, the prospects of Ukraine being ready to apply for EU membership in 2020, much less becoming a member in the near future, are grim. Despite the European Parliament and Verkhovna Rada ratifying the Association Agreement in 2014, it still needs to be ratified by all 28 EU member states. So far, only six have done so.
Ukraine is already beginning to see a number of benefits from its closer ties with the EU. Talks between the EU and Ukraine on visa liberalisation are still underway, with Kyiv officially hoping to finalise the agreement at the Eastern Partnership Riga Summit this May. The EU recently extended its unilateral trade agreement with Ukraine until the end of 2015, which gives the latter’s battered economy one-way preferential access to EU markets without either the Association Agreement or Deep and Comprehensive Free Trade Agreement’s ratification by all EU member states.
Unresolved issues and unsecured borders
Still, the issue of security will undoubtedly play a large factor in whether or not the EU would consider granting Ukraine membership. At present, this seems highly unlikely. Crimea may well develop into a decades-long legal and political dispute, but whatever the outcome, it is unlikely to be resolved on the battlefield. To put it differently, discord that is both predictable and manageable thanks to the absence of potential armed conflict, would be more amenable to the EU.
With its hundreds of kilometres of unsecured borders, eastern and southeastern Ukraine presents a very different challenge. Its solution is, and has been, one that combines intense diplomatic pressure and armed defence. Following the events of the past year, the Kremlin has lost its ability to create a strong political lobby in Kyiv, likely forever.
In the aftermath of Crimea’s annexation, and the now numerous falsehoods on public record emanating from its most senior officials, Russia has left itself with few means by which to advance its interests through established international institutions and conventions. Instead, it will continue to rely on using the conflict in eastern Ukraine, or the potential for further conflict, as one of its principle means of negotiating.
With no clear objective coming out of its support for separatist forces other than maintaining its role as an arbiter of the fate of Ukraine, Russia is not likely to so easily toss away its most convincing negotiation tool (the threat of full-scale war), and risk having the international community begin focusing on Crimea.
Under the threat of further damage to Ukraine’s economy and infrastructure, and the absence of at least a frozen conflict like that in Transnistria, the considerable investment of resources, financial and otherwise that come with EU membership, it is hard to imagine Ukraine being offered membership under the threat of war from its neighbour to the east.
Rule of law
There is, however, one area where the EU could provide Ukraine with substantial support, one which could, in effect, fundamentally change the way the country functions and bring tangible results that its citizens would certainly take notice of – the rule of law.
The absence of strong, independent state institutions has plagued Ukraine since independence. The country’s highly politicised and corrupt judiciary and law enforcement agencies are at the root of many of the country’s woes, whether endemic corruption, low level of foreign investment or the absence of civil rights.
By cleaning up the judicial system from top to bottom and radically reforming Ukraine’s law enforcement agencies, citizens would have a sense of confidence in the state and its institutions – many for the first time.
By levelling the playing field, chronic abuses of power by national and local government officials and bureaucrats would lead to a substantially improved business environment, where courts would make their rulings based on the law, not on potential personal financial benefits or career consequences that one ruling might have over another.
As is the case in many other former Soviet republics, Ukraine has struggled to attract foreign direct investment due to the risks of doing business. Until investors can feel truly confident that they will be granted equal protection under the law and have access to full legal recourse, investment will remain low, regardless of the conflict in the east.
Establishing the rule of law would also take the teeth out of one the nation’s most pernicious informal institutions – its political-oligarchical clans. One of the main concerns about Kyiv’s push to decentralise the government and provide more power to the regions is that these clans will simply entrench their fiefdoms in regions where they will control the local courts, police and government.
Properly functioning courts and law enforcement agencies at both the national and local level can go a long way towards dismantling this harmful aspect of Ukrainian politics and could serve as part of a system of checks and balances — virtually non-existent at present.
This would entail long-term concerted effort and a great deal of technical support from the EU to help Ukraine reconstruct its still heavily ‘sovietised’ judicial system and law enforcement agencies from scratch, a move that would also likely include some constitutional changes.
This assistance could also help eliminate some of the more controversial moves to ‘clean up the government’ by bringing Ukraine closer to EU standards while depoliticising the reforms. Accordingly, a new generation of judges, prosecutors and law enforcement officers would need to be trained and hired.
These changes would take years to prepare and implement, though the financial cost to both Ukraine and the EU would be minimal when compared to major infrastructure projects and future economic stabilisation packages. The dividends would reach all segments of society, help Ukraine attract foreign investment, and avoid touching on some of the more sensitive issues surrounding EU-Ukraine-Russia relations.
And in order to entice the Ukrainian government to get on board, the EU could ensure that the reforms would meet some (though not all) key elements of the Copenhagen Criteria, an essential set of criteria that any country interested in being an EU member must meet. In time, if both parties are interested, EU membership prospects could be honestly assessed and the partnerships and trust needed to start down that long road would already be established.
The gains to be made from such a comprehensive series of reforms, be they economic development or an effectively functioning democracy with strong institutions, could extend well beyond Ukraine, all the while realising one of the Maidan’s key demands: justice.
Devin Ackles is an analyst at CASE Ukraine and Editor at Belarus Digest. Follow him on Twitter at @DevinAckles
This article was originally published by OpenDemocracy and is available by clicking here.