Maksim Banev




 

Introduction

 

On 1 March president Zelensky made a passionate and poignant speech in front of the European Parliament advocating for an expedient accession of Ukraine into the Union (EU)[1]. The response to this proclamation was a standing ovation by the parliamentarians and the passing of a resolution by a 90% majority calling for the recognition of a candidate status for Ukraine.[2] However, the question remains whether Ukrainian accession is a reasonable prospect, a delusion, or rather – a public stunt. 

 

Some people may argue that the accession process can be short-tracked[3], however one should be cautious when examining matters of high politics, lest naivete impede on reason and objective realities. As Burke ones famously said: ‘ circumstances give in reality to every political principle its distinguishing colour, and discriminating effect.’ [4] Hence, the old saying: the devil is in the details, applies in full force in the present context. 

 

There are formative, contextual and normative challenges to Ukrainian accession. One of those is the military conflict that has commenced last February and its implications. However, the list is not delimited by the former, there is a plethora of other considerations that undermine Kyiv’s designs on joining the European Union in the coming decades, let alone years. Nevertheless, Ukraine might be a special case to be treated differently than the rest. 

 

The author of this article considers that Ukrainian accession to the Union is a distant prospect and it is being invoked by interested parties due to history and symbolic entailments. To grasp the full picture one must look at the historical developments and the geopolitical realities of all three parties directly interested in the matter – Ukraine, the EU and Russia. 

 

History

 

For the last decade Ukraine has been inexorably aligning itself with Europe economically, politically and strategically. In 2017 it signed the privileged political and economical partnership agreements with the EU. It is also a signatory of an Association Agreement. Ukraine is also a member of the Eastern Partnership, being described by some as its most prominent and ambitious one.[5] Saliently, at the turn of the decade the EU officially replaced Russia as Ukraine’s biggest trading partner.[6]This strategic alignment with Europe notwithstanding, the Union has been unwilling to include Ukraine in the enlargement policy and no mutual defence clauses had been envisioned. The former is exemplified by the refusal of the Netherlands in 2016 to endorse the Association Agreement, conditioning its signing on guarantees that it did not represent a basis for considering a membership for Ukraine.[7]

 

The implications of this half-way approach were experienced for the first time in 2014. The fact remains that before this watershed moment Ukraine did not have any problems with its territorial integrity. For almost a decade adhesion to the 1994 Budapest Memorandum ensured peace in the region However, western interventionalism offset the precarious balance. The 2008 NATO summit has been considered a turning point in Russo-Western relations.[8] Testament to that is the outbreak of the Russo-Georgian conflict only a few months later.[9] The Yanukovich administration (2010-2014) tried to diffuse tensions by taking a neutral stance by suspending the decision to sign the strategic partnership agreements.[10] As a consequence, pro-EU protests - supported by the EU itself– erupted, overturning the current regime. As a response the Russians backed the secessionist movements in the Donbas region and annexed the Crimean Peninsula. The justification of these actions is not a subject of this article. On their part, the new Ukrainian administration was invited to sign the advanced association agreement in Brussels.[11]

 

The problematic point here is that the EU kept pulling Ukraine towards its sphere of influence and at the same time when the expected Russian retaliation came it was not willing to support this hapless country in any materially substantive way. Therefore, an argument may be made that the Union should bear political responsibility for its actions and expedite Ukrainian accession. However, such a train of thought would be one-sided and give too much credit on the Ukrainian side. It is this author’s conviction that irrespective of the current military conflict, Ukraine would still be ineligible for joining the Union. At this point it is necessary to examine the accession procedure and the perspective of the EU on this issue. 

 

Accession

 

Procedure

 

Under Article 49 of the Treaty on European Union (TEU)[12] any European State which respects the common values of the Member States is eligible to apply for membership. The said values are enumerated in Article 2 TEU[13]. Saliently, Article 21 of the Charter of Fundamental Rights of the European Union prohibits any discrimination, inter alia, ethnic or social origin, language or membership of a national minority. Other conditions that need to be fulfilled include: 

 

1. Unanimous support from all 27 Member States;

2. Fulfilment of the Copenhagen Criteria[14] ;

3. The EU need to have the absorption capacity to admit a new member[15];

4. In the case of the Western Balkans (WB) a new criterion was introduced entitled: “Stabilisation and Association Process” entailing the improvement of regional relations[16]

 

To demonstrate the arduousness of the accession procedure the case of the Western Balkans will be taken. The filing of membership applications ensued a comprehensive questionnaire by the Commission. Following the issuing of the opinion of the Commission, the Council needed to take a unanimous vote in favour. In the case of Bosnia and Herzegovina no resolution has been reached after 6 years of the filing of the application. Thereafter, a team of experts needs to navigate the country through the legal and technical process vis-à-vis administrative changes, meeting the common market criteria, etc.[17]

 

On the formative side, firstly, Ukraine is not part of the Union’s enlargement policy. The latter includes Turkey and other European nations specified under the Thessaloniki summit of 2003.[18] This shows that some WB countries have been on the waiting list for almost two decades. Secondly, there is no legal ground for demands of a more expedient accession. Furthermore, Dutch requirements vis-à-vis the Association Agreement is authority to the contrary. Thirdly, the EU Parliament resolution mentioned in the introduction has no binding force. However, still only 11 Member States showed willingness to grant Ukraine candidate status[19], whereas unanimity is required. Comments made by German Foreign Policy Minster Annalena Baerbock[20] are an indication that Germany is not willing to grant Ukraine its wishes in the foreseeable future. Other Western States hold the same sentiments. 

 

All things considered, even if somehow consensus is reached, precedent broken, and Ukraine granted a candidate status, that would send the wrong message in the wrong circles. Such an action would be straight-up discriminatory towards WB countries and bring needless agitation to an inflammable region. Additionally, other countries signatories of the Eastern Partnership would feel emboldened and decide to file their own application, which is undesirable from the Union’s perspective. 

 

 

Undesirable externalities of a fast-trach Ukrainian accession

 

A strong ground for not acquiescing to Kyiv’s wishes is Article 42(7) TEU[21]. The article entails that by virtue of the ongoing territorial and sovereignty problems of Ukraine all Member States will be obliged to directly engage in conflict with Russia. There have been authorities provided, averring that in many quarters this is not desirable. This author considers that the case of Ukraine is imperfectly similar to that of Belgium – nations covet it but knowing the inherent isntability to the balance of power that grasping conduct would bring about, they exercise moderation to one extent or another. A realist offensive approach would dictate that if the power of one side overweighs the power and will of the other than more aggressive actions could be taken. However, in military terms the EU is undoubtedly a paper tiger which is to a large extent dependent on Washington for protection. Thereby, the only way for Ukraine to prosper and stay peaceful is either for it to remain neutral or for there to be a shift in the balance of power in Europe and maybe the world. This line of reasoning brings us to the following conclusion – realistically there are three outcomes here: 

1. For Ukraine to retain a neutral status similar to that of Austria during the Cold War;

2. For Russia to annex Ukraine in its sphere of influence or;

3. For Europe to retain and assimilate Ukraine in the Union.

 

The first option seems the most sensible because the second is undesirable for the West and because the third is unsustainable at the moment. In a couple of decades the geopolitical climate might change and a safer Ukrainian accession be made possible. 

Lastly, even if we disregard the time-consuming nature of the accession procedure and the realities of military conflict, currently Ukraine is clearly not in conformity with the conditions required for accession. The brightest and most overlooked example would be Ukraine’s violations of human rights and more specifically that of minorities. 

 

Human Rights Violations

 

In 2017 the Ukrainian Parliament adopted the new Law on Education which stipulates, inter alia, that citizens must study subjects in Ukrainian starting from the fifth grade of primary school.[22] Additionally, in 2019 the Verkhovna Rada adopted the State Language Law whose aim was to expand the reach of the Ukrainian language in all spheres of public life.[23] It is reported that now minority languages can be spoken only privately or at religious events.[24] Prima facie, these measures are taken to repress Russian minorities and thereby Russian influence in Ukraine. The rightfulness of such actions are debatable, however, it is not unlikely for the EU to gloss over such meagre problems in light of the adversarial nature of Russo-Western relations. More problematic are the effects on other European minorities. For example, it has been reported that Ruthenians (Hungarians) in the Transcarpathia region are suffering atrocities and persecutions of a nationalistic character.[25]

 

Behaviour on the part of Ukraine as just described is clearly in violation with the Copenhagen Criteria, Article 49 TEU and the Charter of Fundamental Rights. In theory, huge constitutional and legislative reforms need to be taken by this state to conform with accession requirements. In practice, this is not so certain as Western Nations have indicated their disinterest to the oppression of minorities by failing to bring Kyiv to uphold the Minsk Agreements.[26]

 

Conclusion

 

In this article it has been demonstrated that there are textual (legalistic), circumstantial and substantial challenges to Ukraine’s accession to the European Union. It is a fact the West has been escalating tensions with Russia over Ukraine for the last two or so decades, however, the former has neither the power, willingness or intent to support its hapless partner in any way that Ukraine might wish for. Realities are that as things stand, immediate, short and long-term accession (or even the granting of candidate status) of Ukraine is virtually impossible. However, it is admitted that all the fuss in relation to this issue is more for the purposes of mutual recognition and the intent on the side of Ukrainians to remind EU leaders of the commitment that they have made toward their nation. 

 

[1] Volodymyr Zelensky speech: full transcript of Ukraine president’s statement to European Parliament; https://www.nationalworld.com/news/world/volodymyr-zelensky-speech-today-full-transcript-of-ukraine-presidents-statement-to-european-parliament-3592244, < accessed 27 November 2022> 

[2] European Parliament. 2022. “Press release: Invasion of Ukraine: MEPs call for tougher response to Russia”. European Parliament.. https://www.europarl.europa.eu/news/en/press-room/20220227IPR24205/ invasion-of-ukraine-meps-call-for-tougher-response-to-russia. <accessed 27 November 2022> 

[3] Gerald Knaus, ‘Ukraine, Europe and a second Treaty of Rome’, ESI Newsletter 5/2022; https://www.esiweb.org/sites/default/files/newsletter/pdf/ESI%20-%20Ukraine%20Europe%20and%20a%20second%20Treaty%20of%20Rome%20-%2016%20June%202022.pdf; <last accessed 27 November 2022>

[4] Edmund Burke, ‘Reflections on the Revolution in France’, Penguin Classics, 2004; [90]

[5] Miloš Petrovic , “European union and Ukraine: the strategic partnership leading to (some)where?”; UDC 327(061.1EU)(477); 29 March 2022

[6] European Commission. 2021. “Countries and regions: Ukraine”. European Commission. https://ec.europa.eu/trade/policy/ countries-and-regions/countries/ukraine/#:~:text=EU%20exports%20to%20 Ukraine%20have,to%20over%2014%2C500%20in%202019.<accessed 25 November 2022>

[7] Zhabotynska, Svitlana and Velivchenko, Valentina, “New media and strategic narratives: the Dutch referendum on Ukraine – EU Association Agreement in Ukrainian and Russian Internet blogs”. European Security 28 (3); 2019, p. 360-381. 

[8] Congressional Research Service, CRS Report for Congress: Enlargement Issues at NATO’s Bucharest Summit. Washington D.C: Congressional Research Service. Council of Europe. 2022. “1426th me; 2008

[9] Miloš Petrovic , “European union and Ukraine: the strategic partnership leading to (some)where?”; UDC 327(061.1EU)(477); 29 March 2022

[10] The Council of the European Union, “Joint Declaration of the Eastern Partnership Summit, Vilnius, 28-29 November 2013 - Eastern Partnership: the way ahead”. The Council of the European Union.; 2013 https://www.consilium.europa.eu/media/31799/2013_eap-11-28-joint- declaration.pdf, p. 3. <accessed 27 November 2022> 

[11] Miloš Petrovic , “European union and Ukraine: the strategic partnership leading to (some)where?”; UDC 327(061.1EU)(477); 29 March 2022

[12] Treaty on European Union (CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION); C 326/13, Art. 49

[13] Treaty on European Union (CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION); C 326/13, Art. 2; Those values include:  respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. 

[14] Accession criteria (Copenhagen criteria), https://eur-lex.europa.eu/EN/legal-content/glossary/accession-criteria-copenhagen-criteria.html, <accessed 23 November 2022> 

[15] ENPEN – European Neighbourhood Policy and Enlargement Negotiations. 2022a. “Accession criteria”. European Commission. https://ec. europa.eu/neighbourhood-enlargement/enlargement-policy/glossary/ accession-criteria_en.  <accessed 23 November 2022>

[16] ENPEN – European Neighbourhood Policy and Enlargement Negotiations. 2022c. “Conditions for membership”. European Commission; https://ec.europa.eu/neighbourhood-enlargement/enlargement-policy/ conditions-membership_en; <accessed 23 November 2022> 

[17] Grabbe, Heather and Kirova, Iskra;  “A new Versailles declaration for Ukraine”, European Council on Foreign Relations, https://ecfr.eu/article/a-new- versailles-declaration-for-ukraine/ <accessed 20 November>

[18] Eu-Western Balkans Summit Thessaloniki, 21 June 2003; https://ec.europa.eu/commission/presscorner/detail/en/PRES_03_163 <accessed 27 November 2022>

[19] Makszimov, Vlagyiszlav, “EU promises to ‘seriously’ look into Ukraine’s membership appeal”, EurActiv,2022. https://www.euractiv.com/section/ europe-s-east/news/eu-promises-to-seriously-look-into-ukraines-membership- appeal/ <accessed 20 November 2022>

Mayr, Jakob. 

[20] Riegert, Bernd;  “Wie schnell kann die Ukraine EU-Mitglied werden?” [in German], Deutsche Welle, 2022. https://www.dw.com/de/wie-schnell- kann-die-ukraine-eu-mitglied-werden/a-60961132; <accessed 27 November 2022>

[21] Treaty on European Union (CONSOLIDATED VERSION OF THE TREATY ON EUROPEAN UNION); C 326/13, Art.42(7)

[22] Council of Europe Venice Commission: Ukraine. The Law on Education. Opinion No. 902/2017, Strasbourg, 15 November 2017

[23] Council of Europe Venice Commission: Ukraine. Law on Supporting the Functioning of the Ukrainian Language as the State Language. Opinion No. 960/2019, Strasbourg, 18 November 2019.

[24] Balázs Tárnok; “European Commission: Ukraine Must Respect the Rights of National Minorities”; A szerkesztőség címe: 1083 Budapest, Ludovika tér 2.

[25] Ibid 

[26] Package of measures for the Implementation of the Minsk agreements; https://peacemaker.un.org/sites/peacemaker.un.org/files/UA_150212_MinskAgreement_en.pdf, <accessed 26 November 2022>