European Future of Ukraine: Mission Impossible?

Only a year ago Ukrainian analysts agreed that the EU-Ukraine summit, planned for December 2011, would be a historic event. After four years of dynamic negotiations, the Association Agreement, meant to bring the relationship between Ukraine and the EU to a new level, was to be signed during the summit. Last December’s summit, however, ended with only the declaration that the negotiations on the Association Agreement have ended, without it being signed. So what is the future of EU-Ukraine relations? When can Ukraine expect this strategically important document to be finally signed? As of today, the answer to this question is impossible to make.

After four years of dynamic negotiations, the Association Agreement, meant to bring the relationship between Ukraine and the EU to a new level, was to be signed during the December 2011 summit. This agreement itself, which the participants of the negotiations described as being of unprecedented scope and depth, would be like no other in history of EU negotiations.  And it was not only Kyiv that had high expectations for the summit. Polish experts believed that signing the document would be the crown achievement of the Polish Presidency of the Council of the European Union which also came to an end in December 2011.  The completion of the agreement was to be the original (and well-deserved) “reward” for Warsaw as one of the founders and lobbyists of the ambitious Eastern Partnership project and a steadfast supporter of Ukraine's interests in Europe.

And yet, already in the early months of 2011, it became clear that the signing of the Agreement would not take place in 2011 even for purely technical reasons: if the Agreement was to be signed in December, the negotiations regarding its language should have ended in the spring at the latest. Interestingly, even this did not prevent some members of Ukraine’s government from voicing rousing statements about the alleged likely signing of the Agreement at the Kyiv December summit, even though experts familiar with the negotiations didn't consider this possibility seriously. However, the finalisation of the agreement by the summit seemed to be an attainable and absolutely real objective at that time.

Before the summit

For a long time European countries have had legitimate reasons to be concerned with the sincerity of the Ukrainian government in adhering to basic European values: democracy, the rule of law, independent judiciary and freedom of political opinion. The shadiness of the 2010 local government elections, the request for political asylum in the Czech Republic made by Bohdan Danylyshyn, Minister of Economic Affairs in Yulia Tymoshenko’s goverment, suspicion of the political motivation in the trials of a number of former government officials, repeated signs of breaching the freedom of speech and peaceful assembly – all have long played against Kyiv officials and forced European politicians to pay more attention to what was going on in Ukraine.

The situation intensified when “Lady Y” landed in prison. Following the anticipated negative reaction to her imprisonment coming from Western capitals, a number of influential European politicians and ambassadors of EU countries to Kyiv sent a clear and unambiguous message to Ukraine's leadership: “If you don’t release Tymoshenko, don’t expect a positive outcome of the summit.”

In a dialogue with Europe, Kyiv initially tried to cite “domestic” arguments. The first argument of Ukrainian officials was that Tymoshenko’s trial was an internal affair and therefore should not affect the EU negotiation process. The second stated that Ukraine’s judicial branch is independent, hence shifting responsibility for its decision on political leadership was just plain wrong.  Nonetheless, Ukrainian leaders failed to understand that European politicians had a fairly complete understanding of how the Ukrainian state machine operates and especially what is the role of the country’s president in the political and, more importantly, the legal system. Ukrainian officials never seemed to have realized that their European partners were not merely interested in Yulia Tymoshenko as an individual citizen but rather in a broader problem of a politicized judiciary.

Thus Kyiv's argument was not to be accepted by the EU and Yanukovych himself has received a slap from Brussels.  This is how the rescheduling of the October 20th visit of the Ukrainian President to Brussels was interpreted in the Ukrainian capital.  The slap hurt him probably even more given the fact that it was during this visit when the completion of the Association Agreement negotiations was supposed to be announced.

War of words

Thus, the war of words between Ukraine and Brussels began.  First, Viktor Yanukovych surprised everybody declaring that Ukraine would not accept the Association Agreement without the provision stipulating Ukraine's future full membership in the EU. Bewildered European negotiators stated that at the very beginning of negotiations it was decided not to include this provision in the final text of the document. They also noted that such practice had not been seen before in any of the countries which are currently members of the EU. To Ukrainian journalists, the technique behind Kyiv’s demand was clear: it had a simplistic “Europe does not want us” excuse to offer the Ukrainian society should the outcome of the summit be disappointing.

At the same time, Yanukovych consciously did not take the opportunity to solve the Tymoshenko case with little damage to his image. A parliamentary fraction of his own Party of Regions did not support the law aimed at penalizing economic crimes which could pave the way to Tymoshenko’s release.

The Ukrainian government also, awkwardly and rudely, tried blackmail with the EU. Yanukovych spoke of the willingness to “pause the European integration of Ukraine” shocking everybody involved in the preparation of the Agreement.  Off-record information was coming to the press that Yanukovych had no plans to attend the EU-Ukraine summit and instead visit Moscow to participate in a summit of the Russian-led Eurasian Economic Community. The President himself was trying to “prolong the suspense” making ambiguous statements that on December 19th he would be “where he should be”.

The situation did not keep European politicians at bay. In an anonymous statement a representative of the Polish Presidency of the EU Council declared, to Kyiv’s dismay, that the summit with Ukraine might be cancelled due to the unfavourable political situation in the country.  The imprisoned Tymoshenko, adding to the drama, called on Brussels to sign the Association Agreement with Ukraine without regard for her fate.

A very small victory

The summit has resulted in the declaration made by the leaders of Ukraine and the EU stating that the negotiations over the Association Agreement have ended and the completion of the document will take place as soon as possible, regardless of changes in the domestic political situation in Ukraine. However, the final text of the agreement still lacked a reference to the EU membership for Ukraine. As for now the only small victory of Ukrainian diplomacy was the passage on the EU's recognition of Ukraine’s “European identity”. Ukrainian media, covering the summit, found a peculiar compensation for this limited success in a statement made by Jose Manuel Barroso, President of the European Commission, who said to representatives of Ukrainian NGOs: “Yes, we'll be together … We believe that Ukraine is a member of the European family”.

As expected, representatives of different political parties assessing the results of the summit were far more radical. After the summit, President Yanukovych said that Ukraine was satisfied with its results and considered it a milestone in the development of relations between Ukraine and the EU. His view was shared by Leonid Kozhara, deputy head of the Party of Regions, who believed that the completion of the preparation of the agreement was reached in Ukraine exclusively thanks “to the unity of the three branches of government, above all the legislative and executive”.

Yulia Tymoshenko expressed her reaction to the summit’s results on her party’s website. In the tone of her statement, criticism towards the government was clearly noticeable. She wrote: “The Ukraine-EU summit, unfortunately, has become yet another lost strategic opportunity for the renewal and the Europeanization of Ukraine … Yanukovych did not take into account the will of his own people and sacrificed the future of the country to please his selfish interests, unhealthy ambitions and a personal vendetta  … The leadership has betrayed the people. There will be no real European integration under such leadership … The European future of Ukraine is in our hands, dear Ukrainians, and we will certainly build it. But when we are without Yanukovych and his minions.”

What now?

So what is the future of EU-Ukraine relations? When can Ukraine expect this strategically important document to be completed and signed? As of today, the answer to this question is impossible to make. In Ukraine, many still believe that completion of the agreement will take place over the next few months, no later than the end of March 2012 (some Ukrainian media even state a specific date: February 15th 2012). It will happen, most likely, without much pathos, behind closed doors. The European Union simply does not want to become a backdrop for the run-up to the parliamentary elections scheduled for October 2012. The future of the agreement depends on many factors, which makes the predictions even more difficult. Thus, by the autumn of 2012 the agreement could be signed, and the parliaments of the EU member states could begin the ratification procedure.

The compromise

The realisation of this optimistic scenario depends, however, primarily on Ukraine’s government, namely on its willingness to change these “political circumstances” which, as Herman van Rompuy the President of the European Council said at the summit, determine the signing and ratification of the Association Agreement. In the first place, and this is how this statement is interpreted in Ukraine, this includes the challenge to put an end to the attacks on democracy and the opposition. And this is exactly how European politicians see the trials of Yulia Tymoshenko and others whose cases have signs of politically motivated prosecutions (see the interview with Hans-Gert Pöttering in the print edition of New Eastern Europe 1(II)/2012).

Ukrainian politicians and experts alike believe that Europe’s demands for Tymoshenko’s release are meant to help her run in the next parliamentary elections. For example, Mikhail Pogrebinsky, a well-known political scientist and director of the Centre for Political and Conflict Studies, does not rule out Tymoshenko’s release in the near future and believes that her participation in the elections could even play into the hands of the authorities: Yanukovych is supposedly interested in a stiff competition for the role of undisputed leader of the Ukrainian opposition between Tymoshenko and Arseniy Yatseniuk, another popular opposition figure, the leader of the political party – Front of Changes.

The rumour heard in the  lobbies of the Ukrainian Parliament states that the  European claims for Tymoshenko’s release and return to politics for the next parliamentary elections is, in fact, a starting point for negotiations over the fate of one of the leaders of the Ukrainian opposition. Taras Chornovil, a member of the pro-government parliamentary group “Reforms for the Future” and the first deputy head of the parliamentary committee for foreign affairs puts it this way: “Yanukovych cannot release Tymoshenko and give her complete freedom, as demanded by European politicians. Tymoshenko once promised to put him in jail, and it became his phobia. I think that the only likely option, given the fact that the crime in the actions of Tymoshenko can still be traced, is a bilateral political solution. On the one hand, the Ukrainian government should show its commitment to freeing Tymoshenko by amnesty, pardon or some other way. It should also guarantee that she will not be detained, arrested or jailed on any charges for the crime she committed in the past. On the other hand, the EU must accept the fact the conditions of Tymoshenko’s release do not include her rehabilitation, and, as convict of a serious premeditated crime, she will not be able to participate in the next parliamentary and presidential elections. Unfortunately, I cannot see any other possible compromise.”

Oleksandr Efremov, the head of the pro-presidential parliamentary faction of the Party of Regions, in discussion on changing the criminal code to free Tymoshenko, has said, “The decriminalisation of certain articles for the sake of one person would be unjust and unfair in relation to other people.” However, it is quite obvious that the final decision on Tymoshenko’s fate is within the competence of the political leadership, namely, nobody else but Viktor Yanukovych himself.

In Ukraine, many also understand that solving the “Tymoshenko problem” will not satisfy Ukraine’s European partners. Their claims relate to the general state of the judicial system in Ukraine, the impotence of power in the fight against an extremely high corruption level, the trampling of freedom of speech and peaceful assembly of citizens. It is important for Ukrainian authorities to realize that Tymoshenko’s case is not the only “soft spot” for Europe and that European capitals are awaiting practical steps from Kiyv towards the democratisation of the political and legal systems of the country.

More and more voices are heard in today’s Ukraine on the 2012 elections and how issues such as fairness, transparency and open democracy of the electoral process will have a decisive influence on the EU’s choice of strategy towards Ukraine. Unfortunately, the government in Kyiv is not sending optimistic signals in this regard.

In turn, the holding of free and fair elections, along with practical steps aimed at the democratisation of Ukraine by the president, the executive and legislative branches of government would send a strong signal to Europe about Ukraine’s readiness to adopt European values and the political will towards real European integration. Still, if representatives of the Ukrainian government will only repeat the mantra that “the ball is in Europe’s court”, and declare that Ukraine has done everything it could to make radical rapprochement with the EU a reality – while in practice not changing its present behaviour – the European integration of Ukraine will be postponed indefinitely. The finalised Association Agreement could be waiting in the wings until the change of power in Ukraine, that is, at least until 2015.

Svyatoslav Khomenko is a Ukrainian journalist and Lane Kirkland Scholar at the Jagiellonian University in Krakow, Poland. He has an MA in political science from the National University of Kyiv-Mohyla Academy.

Translated by Olena Dmytryk