JURIST Guest Columnists Kambiz Behi of EnterInvest and Edsel Tupaz of Tupaz and Associates discuss the geopolitical issues Ukraine faces in trying to integrate itself in the European Union...
he breakup of the Soviet Union placed Ukraine in a particular geopolitical situation vis-à-vis the European Union
(EU) and the new Russian Federation. Since the formation of an independent Ukraine in 1991, integration with the EU has been the nation's foreign policy priority as it strategically positions itself towards the West.
While the objectives of this policy posture have not changed, it seems that Ukraine's motive for joining the EU is significantly different than what it had been immediately after its independence. A decade ago, Ukraine's desire to join the EU was initially driven by political affiliation, but, in recent years, its motive has shifted to a core economic agenda. Today, Ukraine has shown less enthusiasm for implementing the political conditions that the EU has established as preconditions for further integration. Instead, Ukraine has focused on meeting economic threshold requirements set by the EU.
There are several explanations for these recent developments. First, the European financial crisis has caused the EU to be more cautious about enlargement, a problem that has also been referred to as "enlargement fatigue." Currently, Ukraine is hoping to ratify an association agreement with the EU that includes a Deep and Comprehensive Free Trade Agreement (DCFTA). However, the ratification is conditional on Ukraine taking further steps in political and economic reforms, as well as redirecting itself from its recent lackluster performance if not regression in meeting democratic governance indicators and rule of law criteria for the purposes of ratification.
Relations between Ukraine and the EU began via the European Neighborhood Policy (ENP), specifically under the Eastern Partnership project, which is a policy instrument designed for the eastern EU border countries. The Eastern Partnership was envisioned as an institutionalized forum for discussing visa agreements, free trade deals and other agreements with the EU. The EU initially sought a particularly close relationship with Ukraine following its independence, going beyond state-level cooperation to gradual economic integration and a deepening of political cooperation. Overall, Ukraine was once thought to be a priority partner within the ENP.
Nevertheless, the EU developed a list of strict preconditions for Ukraine's "Europeanization" before further formal engagement. These EU preconditions include the eradication of corruption, changes in public financial management, the establishment of a competitive economic environment, fundamental reform measures for law enforcement and judicial systems, improvements in the domestic criminal code and the rejection of the practice of selective justice. In addition, the EU identified a separate list of improvements related to election laws as being necessary for the improvement of equal opportunity, candidate competitiveness and the exclusion or minimization of electoral fraud.
In recent years, the EU has continually criticized the Ukrainian government for its slow pace of reform. The EU has warned that if all political and economic reforms are not implemented at the domestic plane before November 2013, the EU would refuse to ratify an association agreement and free trade zone with Ukraine.
One action that Kiev had been encouraged to take in order to demonstrate to the EU its seriousness in implementing reforms is releasing one of the representatives of the Orange Revolution, namely former Interior Minister Yuriy Lutsenko. The European Court of Human Rights (ECtHR) considers the verdict placing Lutsenko under arrest and detention an unlawful verdict handed down by Ukrainian courts. In short, the ECtHR views Lutsenko as a political prisoner.
Specifically, the ECtHR ruled that Ukrainian law enforcement agencies violated Article 5 of the European Convention on Human Rights (ECHR) [PDF] by unlawfully detaining Lutsenko. In the ECtHR's view, Lutsenko's arrest was arbitrary in that neither the public nor Lutsenko were given valid reasons for his detention. Moreover, the court made note of the fact that Lutsenko's unlawful arrest and detention have not been properly reviewed by domestic authorities such as appellate bodies or co-equal departments.
While releasing Lutsenko might be viewed as laying a good foundation for progressing forward with the EU, the ECtHR's vote in favor of Lutsenko has already effectuated greater political consequences. The court's ruling sets precedent because it represents the first time that an international court has asserted that political persecution is taking place in Ukraine. Lutsenko's prospects for release are even less likely considering his strong ties to Ukraine's former Prime Minister Yulia Tymoshenko, who is still being detained on various convictions apparently unrelated to politics.
Presently, while the Ukrainian economic elite are interested in establishing free trade areas with the EU, Ukrainian politicians are less willing to execute the block of political changes demanded by the EU. The core economic EU threshold requirements, while challenging to meet, are nonetheless achievable. Conversely, the requested EU political reforms are viewed as excessively risky. From the Ukrainian perspective, joining the EU for economic commitments should not come at the expense of drastically altering the country's political identity.
Although Ukraine's growing ties with the West are stalled because of internal politics, a second option is available: joining the Customs Union of Russia, Belarus and Kazakhstan. In fact, Kiev has hinted that if it does not get what it wants from the Europeans, the Ukrainian government may indeed look to the Customs Union. Ukraine clearly does not want to become subservient to Russia, and it will likely try to continue playing the decades-old political game between Russia and the West.
However, Ukraine may be overestimating its own merits in making a case for full EU integration. It is also hard to imagine that the EU would compromise its core values in order to accept Ukraine's version of democracy. Moreover, although increasingly dominated by Russian politics and economics, the Customs Union should not be conceptualized as a resurgence of the Soviet Union or anything close to the commonwealth of former Russian colonies. That being said, the Customs Union is certainly Russia's most ambitious political and economic reintegration program since the fall of the Soviet Union, and Ukraine could play an important role in rebuilding and strengthening economic ties within this post-Soviet space. In fact, one might argue that, without Ukraine, the Customs Union and similar integration projects may be unsustainable in the long-term.
To this point, Ukraine has decided not to engage in any formal relations with the Customs Union, but it may be ready to consider some form of association less than full membership. However, such an association could raise the issue of whether Ukraine can engage in the free circulation of goods and services while receiving gas at discounted rates from Russia. Ultimately, Ukraine's choice is not insignificant in a milieu where Russia, its Customs Union and the EU may be competing for attention. Either way, the focus of Ukraine's foreign policy direction will have significant economic and political implications for the region.
Kambiz Behi is a consultant in foreign affairs at EnterInvest in Minsk, Belarus and Russia. He holds a Ph.D in Social Anthropology and Masters in Regional Studies from Harvard University, and a Master of Laws (LL.M.) from the University of Pennsylvania Law School.
Edsel Tupaz is owner of Tupaz and Associates and a professor of international and comparative law, based in Manila, Philippines. He is a graduate of Harvard Law School and Ateneo Law School.
Suggested citation: Kambiz Behi and Edsel Tupaz, Economic and Political Reforms: Ukraine and the European Union, JURIST - Hotline, Mar. 21, 2013, http://jurist.org/sidebar/2013/03/kambiz-behi-edsel-tupaz-ukraine-eu.php
This article was prepared for publication by Michael Muha, an assistant editor with JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com