Will sophisticated diplomacy and shrewd lobbying make the EU sign an Association Agreement, with Kyiv?

The current Ukrainian authorities feed the illusion that Ukraine can join the European integration project without getting the country’s fundamentals right. Sweet talk, topic shifting and self-praise will not absolve, however, Kyiv from fulfilling at least some significant preconditions set out by the EU for signing the Association Agreement. During the next months, Ukraine should not distract itself with public relations campaigns and foreign policy maneuvers, but, instead, carry out substantive reforms in Ukraine’s domestic politics and national legislation, in accordance with the priorities set by Brussels.

After five years of intense negotiations, Ukraine and the European Union initialed, in 2012, the text of an elaborate Association Agreement providing for both close political cooperation as well as a Deep and Comprehensive Free Trade Area. Today, Kyiv is merely a small step away from the treaty’s signing scheduled to take place, at the November 2013 Eastern Partnership summit in Vilnius. The Agreement would, if indeed confirmed, be not only 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 “Kyiv Post” and “Kyiv Weekly” – would also be the biggest contract that the EU has ever entered with a non-member state. Should it be signed, ratified and implemented, the Agreement would largely integrate Ukraine into the EU market, as well as politically bind Kyiv 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.

From Association to Membership

Moreover, at some point in the future, the new reality that the Agreement’s gradual enactment would eventually create will make it difficult, if not impossible for Brussels to continue withholding an explicit EU membership perspective 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 doing so, once major Association Agreement provisions have been implemented. 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 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, Kyiv 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 socio-economic implications, the Agreement has, thus, a historical dimension. Once signed, it will become Ukraine’s primary instrument to settling her international position, defining her identity as a European nation, and 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 current state of reforms, an agenda for immediate action, as well as a compass for her future development. It could provide the Ukrainian nation with what it may need most today – a clear direction, a sense of purpose, and an attractive prospect.

Ukraine’s European Deadlock

While Kyiv is today only a stride away from starting this process, the Agreement may never be signed. That is because – as is well-known to Eastern Europe watchers – Ukraine’s political development took a U-turn three years ago. Since his inauguration on February 25th, 2010, Ukraine’s current President Viktor Yanukovych has led his country back into to grey zone of domestic semi-authoritarianism and international non-alignment. To be sure, before Yanukovchych’s assumption of power in 2010, Ukraine’s post-Soviet development had been proceeding with many zigzags too. However, the recent regressions in both domestic and foreign policies are going beyond the meanderings of Ukraine’s previous presidents, and constitute a full-scale abolition of many of the democratic gains, 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 all relevant political camps and countries of the EU, substantial interest in getting the Agreement concluded. Not only would Ukraine benefit from the treaty, but the EU can use the Agreement for stabilizing 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, and outlined in a list of 19 benchmarks to be met 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 Yanukovych and his government, to observe at least some elementary rules of law and basic democratic standards, in order to make Brussels’s signature under the Agreement legitimate.

Not much has improved, however, since it has become clear that the postponement of the Agreement’s conclusion has not any longer anything to do with technical issues. By late 2012, it had become obvious to all observers that the deferment of Brussels’s signature under the treaty is based on principal differences concerning the assessment of the new political and legal order created by Yanukovych. Until his assumption of power in 2010, Ukraine could have been classified as a defect democracy, i.e., as a fundamentally pluralistic order with, however, some substantial flaws. This incomplete yet already emboldening state of Ukraine’s young democracy was the background against which, in 2007, negotiations for a new fundamental treaty between Brussels and Kyiv started. Moreover, in 2008, the title “Association Agreement” for the accord designed to replace the 1994 Partnership and Cooperation Agreement was agreed upon. As of now, however, Ukraine is not any longer merely a defect, but rather a “semi-” or even “pseudo-democracy.” 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 its largest external accord in its entire history with a country that does not follow even basic rules of the game.

Kyiv’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 respectively 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 what needs to be done to overcome the deadlock, some high officials in Kyiv 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 who seem to be uneager or even unwilling to fulfill the prerequisites set out by the EU for signing the Association Agreement.

Sometimes, Ukrainian officials react with disregard and even sarcasm to questions about how Ukraine will meet the challenge of meeting the preconditions for entering the large accord with the EU. For instance, in the popular political talk show “Freedom of the Word” on Ukraine’s ICTV channel on January 28th, 2013, Ukraine’s new Minister of Foreign Affairs Leonid Kozhara reacted to a question about the political problems of signing the Association Agreement by initially acknowledging their existence. He added, however, that he hopes that the European countries will solve these problems among themselves, until the November 2013 Vilnius summit. Kozhara thus reinterpreted the political challenge concerning the Agreement as being located within the EU rather than as a fundamental problem haunting Kyiv’s relations to Brussels. Behind such purposeful misunderstandings, one suspects unwillingness to actually conclude the Agreement, and future attempts to shift responsibility for a failure to get the treaty signed, to the EU.

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