EU-Ukraine: Time for a Real Strategy

So far 2012 has been quite a tough year for EU-Ukraine relations. The entire relationship became politicized as a consequence of the imprisonment of former Prime Minister, Yulia Tymoshenko and her former Minister of Interior, Yuri Lutsenko, which is viewed as politically motivated, with Ukraine’s leadership also being accused of eroding democracy in the country. In fact, there is hardly a single area these days where the EU and Ukraine cooperate which is not becoming affected by this politicization one way or another even if it is counter-productive to the EU’s own interests or those of the region. An example of this is Ukraine being politically sidelined in the negotiations for a settlement of the Transnistria conflict, an area where Ukraine has always played an important and traditionally constructive role.

EU leaders decided to put on hold the Association Agreement and Deep and Comprehensive Free Trade Agreement (DCFTA), which Ukraine and the EU spend almost five years negotiating and which was initialed earlier this year, until Ukraine improves democratic values. This approach has been labeled by its architects as “tough love”. There seems to be a belief that by leaving Ukraine to stew, it will increase the chance of a successful outcome, although this approach is certainly not shared by all member states which fear the consequences of increasingly pushing Ukraine away. I would say that by putting the association agreement on hold the EU missed an opportunity to bind Ukraine to the EU. Thereby this strategy could lead the EU into a dead-end, reducing its influence on Ukraine’s decision-makers and pulling the carpet from under Ukraine’s reformers. In fact the signature of the association agreement is in the strategic interest of the country and should be seen as a tool to help modernize and transform Ukraine. Ditto for the DCFTA which at first glance may look less attractive than Russia’s Custom’s Union which would immediately give Ukraine economic benefits including cutting the price of gas by almost 50%. However in the longer term the DCFTA will be more beneficial for Ukraine including making the country more competitive on the world market.

Interestingly, having to pay more for gas has actually forced Ukraine to begin to give more focus to diversifying its energy resources as well as start to take steps to modernize its energy sector, in order to save money.

Signature of the AA and DCFTA has been supported by all Ukraine’s political forces, including the jailed Mrs. Tymoshenko. However as time has passed broad support from the business community has started to drip away. This is in part a consequence of a proactive campaign by Russia, criticizing the DCFTA and flagging up the economic benefits of its Eurasian Union as a better deal. As far as I am aware there has been no communication campaign from the EU side flagging the benefits of the DCFTA. This is another indicator of the EU’s somewhat “take it or leave it, it makes no difference to us” approach.

Unfortunately the EU’s approach is starting to affect Ukrainian society as a whole, which has now become a sort of hostage to the situation. One of the latest examples of this was the decision of the European Parliament to refuse to ratify changes to Ukraine’s visa facilitation agreement with the EU, until after the 28 October Parliamentary elections.

The conduct of these elections as well as the pre and post-election periods are viewed as a litmus test for democracy in the country with Ukraine’s further EU integration heavily tied to the result. Ukraine’s leadership has declared it wants to do everything to make sure these elections are free, fair and transparent; meanwhile the united opposition, as well as a number of civil society organization, cites numerous problems from vote buying to media restrictions. In order to have a clearer picture, Ukraine’s Foreign Minister, Konstantyn Gryshchenko, invited more than five thousand international short and long term election monitors to assess the situation. He is also now travelling to EU capitals to try to convince his counterparts that the EU’s wait and see approach is counterproductive. At a recent roundtable on EU – Ukraine relations in Vienna he stated the best way to deal with all of today’s current challenges in the troubled relationship is by positive engagement.

Meanwhile, First Deputy Prime Minister, Valeriy Khoroshkovsky, who is responsible for EU Integration, has asked a number of independent NGO’s including the Soros Foundation to hold an independent Media Monitoring mission to assess the media access of all candidates. This mission was launched last week and is expected to produce regular reports on the ongoing electoral campaign.

Current polls, from a number of different sources, show the Party of Regions is presently leading with some 26-28% of the vote with the United Opposition trailing slightly behind with around 23%. While polls in Ukraine are notoriously unreliable, the fact that the United Opposition seems to have focused their campaign primarily on complaining about Ukraine’s current leadership rather than spending time on explaining their policies, particularly socio-economic ones – combined with the fact that Ukrainian’s are rather fatigued will all political figures, could have contributed to the current outlook.

Quite frankly nobody is expecting these elections to be perfect, which is a shame given that Ukraine has carried out a number of free and fair elections in the past, as well as being the only country in the EU’s Eastern Partnership to carry out a peaceful transfer of power. Yet at the same time nobody expects a total disaster either. And the fact that these elections are proving to be so competitive is a positive point and at least demonstrates that the country is not an autocratic dictatorship as some like to claim. Yet the period after the election will need to be monitored particularly attentively as regards the formation of the new parliament, etc, because this is the time when a lot of horse-trading and funny business could take place.

Apart from holding free and fair elections, the EU also demanded that Ukraine put an end to political justice and get their EU reform process back on track. Ukraine’s leadership claims, something that was underscored by Khoroshkovsky at a meeting with think-tank representatives during his visit to Brussels earlier this week, that the recent criminal procedural code reform, means the law under which the Tymoshenko and Lutsenko charges were proceeded, has been done away with, with a new criminal procedural code starting in November. In theory this should mean no more such cases should be expected. He also stated that Ukraine would respect the ruling of the ECHR on the Tymoshenko case. Let’s hope this will be the case.

After a long period of inactivity Ukraine has relaunched its reform process, something that has been confirmed by the EEAS. Yet, it is something of a mixed picture. While there have been positive steps such as the new criminal procedural code, which used Council of Europe recommendation, other initiatives such as the recent Prosecutors law, which was rushed through without any consultation with Council of Europe, was a total flop. Ukraine needs to focus more on the quality of the reforms rather than the quantity. Moreover, many reforms fall at the first hurdle because of the corrupt state of Ukraine’s judicial system which needs a total overhaul, something Khoroshkovsy said would be a priority after the elections.

And while some steps had been taken to improve the business climate (customs, VAT reimbursement), Khoroshkovsky admitted that a number of difficult problems remain including law enforcement bodies pressure on business, corruption in judiciary, overregulation. Implementing the DCFTA would help to push reforms in these areas.

On visa, while there has been a slowdown in progress as lawmakers have focused their attention on the elections, some outstanding pieces of legislation necessary for implementation of the EU visa action plan have been adopted, including for biometric passports, personal data protection, fight against discrimination. The second hearing for laws on biometrics, personal data protection and legal status of foreigners is expected in October. If successfully passed the first chapter of EU visa action plan will be closed.

Yet Ukraine keeps shooting itself in the foot. The case against TVi for example and more recently the crisis over the defamation law. The law, which has the potential to seriously harm freedom of the media in Ukraine, was adopted last week in the first reading. It causes a massive outcry in the country and was subsequently recalled.

Sometimes Ukraine is a difficult country to understand, particularly when it comes to it politics and there can be no doubt Ukraine’s leadership has dug itself into something of a hole. To a large degree the ball is now in Ukraine’s court, and it is in Ukraine’s interests to cooperate over EU concerns. Yet at the same time the EU also needs to act in a proactive and responsive way. The EU has a responsibility to the people of Ukraine to support the country in its transformation, yet unfortunately until now the EU has been using long-term strategy in order to obtain  short term results which has clearly not worked and, which could eventually lead to an implosion in the country. It is time for the EU to develop a real strategy for its engagement and relationship with Ukraine.

On 14 November it seems EU Foreign Ministers will meet to assess developments in Ukraine, including the election result and the conclusions of the OSCE and other international monitors. It still remains unclear to what extent the ongoing imprisonment of Tymoshenko and Lutsenko will play into the EU’s eventual decision; whether there will an agreement to sign the AA or whether it will be left to gather dust. There is a lot at stake and the outcome of this meeting may prove crucial in defining the next chapter in EU-Ukraine relations.