How Ukraine Might Blow Its Historic Opportunity

February 22, 2013 Topic: European UnionGlobal Governance Region: Ukraine

How Ukraine Might Blow Its Historic Opportunity

Kiev has a chance to move toward the European Union, but its political closure could prevent that.

After five years of intense negotiations, Ukraine and the European Union are on the verge of taking their relations to a new level.

In March 2012, Kiev and the EU initialed an elaborate association agreement providing for close political cooperation, as well as a deep and comprehensive free-trade area. Now, Kiev is merely a small step away from the treaty’s signing, which is scheduled to take place at the November 2013 Eastern Partnership summit in Vilnius. The agreement would, if confirmed, be the largest international pact that Ukraine has ever concluded. This exceptionally large accord—its 906-page main text is now freely available on the websites of the Kiev Post and Kiev Weekly—would also be the biggest contract that the EU has ever entered into with a nonmember state.

Should it be signed, ratified and implemented, the agreement would largely integrate Ukraine into the EU market, as well as politically bind Kiev to Brussels. It is more than an ordinary treaty: The Association Agreement constitutes a detailed plan for a deep restructuring—or “Europeanization”—of the Ukrainian economy, society and state. Once fully realized, it would put Ukraine’s relations to the EU on an entirely different footing.

Moreover, the new reality the agreement would eventually create will make it difficult, if not impossible, for Brussels to continue withholding an explicit EU membership prospect for Ukraine. Today, the Union is purposefully avoiding discussions of a possible future entry of Ukraine, and keeps repeating that, for European countries like Ukraine, “the door is neither open nor closed.”

Yet Brussels will hardly be able to carry on with this vague stance once major provisions of the agreement have been fulfilled. At that stage, Ukraine’s economy will be already part and parcel of the EU economy, and her legislation partially adapted to EU standards. Once all aspects of the new association take full force, it will become illegitimate for Brussels, to further postpone the start of accession negotiations. Article 49 of the Treaty on European Union states that “any European state which respects the principles [of the EU] may apply to become a member of the Union.” In the moment in which Ukraine demonstrates such respect, Kiev can and, presumably, will apply. As a result, eventually, Europe’s largest country may become a full member of the European community.

The Association Agreement is thus the best chance that the Ukrainians ever had to become a nation fully taking part in the European unification process. Apart from far-reaching political, geopolitical and socioeconomic implications, the Agreement has a historical dimension. Once ratified, it will become Ukraine’s primary means of settling her international position, defining her identity as a European nation, and thus determining her future. To be sure, the gradual execution of the agreement will by itself not be a panacea for all of Ukraine’s many problems. But once signed, the Agreement would provide a yardstick for Ukraine’s reforms, an agenda for immediate action, as well as a compass for her development. It could provide the Ukrainian nation with what it may need most today—a clear direction, a sense of purpose, and an attractive future.

Yet while Kiev is today only a stride away from starting this process, the agreement may never be signed. As is well-known to Eastern Europe watchers, Ukraine’s political development took a U-turn three years ago. Since his inauguration in February 2010, Ukraine’s current president, Viktor Yanukovich, has led his country back into to grey zone of domestic semiauthoritarianism and international nonalignment. To be sure, before Yanukovich’s assumption of power in 2010, Ukraine’s post-Soviet development had been proceeding with many zigzags. However, the recent regressions in both domestic and foreign policies go beyond the meanderings of Ukraine’s previous presidents, and constitute a full-scale abolition of many of the democratic gains made since the country gained independence in 1991 and renewed its democratic commitment during the Orange Revolution of 2004. As a result, Brussels had to put the signing of the already initialed Association Agreement on hold. That happened in spite of the fact that there is, across many political camps and countries of the EU, substantial interest in getting the agreement concluded, as it would stabilize its eastern border.

Alas, the Union has had, in order not to lose its face as a community of democratic states, to put forward a number of conditions to be fulfilled by Ukraine before conclusion of the agreement. These include, above all, certain changes in Ukraine’s legal system (e.g. electoral and procurement legislation) as well as a stop of the misuse of courts for persecuting political-opposition leaders. For months now, dozens of representatives of the EU and its member countries have been appealing, on a weekly basis, to Yanukovich and his government to observe at least some elementary rules of law and basic democratic standards in order to make Brussels’ signature on the agreement legitimate.

Not much has improved, however, since it has become clear that the postponement of the agreement’s conclusion no longer has anything to do with technical issues. By late 2012, it became obvious to all observers that the deferment of Brussels’ signature is based on differing assessments of the new political and legal order created by Yanukovich. Until his assumption of power in 2010, Ukraine could have been classified as a defective democracy, as a fundamentally pluralistic order with some substantial flaws. This incomplete, yet already emboldening state of Ukraine’s young democracy was the background against which, in 2007, negotiations of a new fundamental treaty between Brussels and Kiev started. Moreover, in 2008, the title of “Association Agreement” was designed to replace the 1994 Partnership and Cooperation Agreement. Now, however, Ukraine is no longer merely defective, but rather semi- or even pseudodemocratic. In other words, it has a partially authoritarian regime. While the EU may, in certain instances, engage in partnership relations with half-autocracies, it cannot enter a close association and sign the largest external accord in its entire history with a country that does not follow even basic democratic norms.

Kiev’s reaction to the EU’s hardening stance has been paradoxical. Instead of listening to the voices from Brussels as well as many other European capitals and responding by changing its political and legal order, it has become more and more prone to self-deception and escapism. Rather than engaging in a constructive dialogue with the EU about what needs to be done to overcome the deadlock, some high officials in Kiev feed the illusion that Ukrainians can join the European project without getting their country’s fundamentals right. Sweet talk, topic shifting and self-praise is becoming increasingly popular among Ukrainian officials.

Some people in Kiev hope that they can get a signature by playing up differences among European politicians on the relevance of the treaty and the necessity of getting it signed soon. But the decision to sign the Association Agreement will still have to be taken through consensus of all twenty-seven member countries. Some countries—for instance, those who have a security interest in Ukraine’s affiliation with the EU—may indeed decide that a signature is imperative now, no matter what the domestic situation in Ukraine is. But others will be worried about the reputation of the EU as a community of law-based states, and the credibility of Brussels’ worldwide democracy promotion. Signing the agreement with the kind of country Ukraine is today would subvert the EU’s normative foundation as a commonwealth of democratic states, and its attempts to spread postwar European values, in other parts of the world.

Against this background, Ukrainian society will have to make an extra effort not to miss this window of opportunity, which will close in November 2013. It is unclear whether the chance to sign a similar agreement will ever emerge again.

The Ukrainian people should get their current government out of its self-made bubble. The authorities should not be left to distract themselves with public relations campaigns, political technology, or diplomatic trickery. Instead, Ukraine’s civil, economic, intellectual and political sectors should make sure that concrete and substantive changes in Ukraine’s domestic politics and national legislation are implemented within the next few months. Unless the European public gets the impression that things are changing for the better in Ukraine, the EU will not be able to sign the agreement—even if its leaders wanted to. The EU’s decision makers are first and foremost domestic politicians. With as bad an image as Ukraine’s political system has today, they will not be able to justify a close association before their national voters.

The freeing of Yulia Tymoshenko, a former prime minister controversially convicted for transgression of competencies, will have to be part of Ukraine’s image-improvement campaign. One could even argue that for reasons of state this should happen whether Tymoshenko is guilty or not. Her imprisonment is a risky endeavor and political poker game, as it further polarizes an already divided country and sets a dangerous precedent of political losers ending up in prison. Tymoshenko’s incarceration has, for many Europeans, become the major symbol of Ukraine’s clinging to the Soviet past. To the average European, putting a country’s major opposition leader—especially a female one—behind bars is by itself unacceptable. It looks even more dubious when seen in combination with various other regressions of Yanukovich’s regime, like the change of constitution or formation of a turncoats’ coalition, both in the newly elected President’s favor, in 2010. Some Western observers, to be sure, have claimed that Tymoshenko’s behavior may not have always been impeccable. Yet, even among these critics, there would be hardly any who doubt that the opposition leader’s arrest, trial and imprisonment are manifestations of Ukraine’s authoritarianism rather than rule of law.