The Yalta Line

The Ukraine-EU summit, to be held on October 7-8 in Yalta, will be a kind of midway mark in the relations between Kyiv and Brussels. The next meeting of this level will take place under conditions such that the EU will be something absolutely different from what it is today: it will have 25 member states and a constitution of its own, which in itself will create an entirely different situation on the continent. Yalta is expected to receive Silvio Berlusconi, Prime Minister of Italy and current EU president; Franco Frattini, Foreign Minister of Italy; Javier Solana, EU High Representative for the Common Foreign and Security Policy; and Chris Patten, EU Commissioner for External Relations. President Leonid Kuchma will head the Ukrainian delegation. Although no documents are slated to be signed, this will be by no means an occasion for idle talk. European matters will also be in the focus of the official visit to Ukraine of German Vice Chancellor and Foreign Minister Joschka Fischer, who is will be in Kyiv on October 7-8 to open a Week of Germany in Ukraine.

The two sides are packaging today absolutely different ideas of how their relations should develop after the EU enlargement. As long ago as last year Brussels proposed the Enlarged Europe—New Neighborhood concept whereby not only Ukraine but also Russia, Moldova, Belarus, and North Africa countries are to be considered “new neighbors.” Kyiv has taken rather a dim view of this. Both government and opposition representatives have incessantly wondered why Ukraine is being put on par with Russia, which has never declared EU membership as its goal and has been saying it is not making any such plans, Belarus which is in fact a dictatorship, and Moldova which has not yet reached a political settlement. Especially irksome was being lumped together with the North African states that can in no way lay claims to EU membership. The Enlarged Europe concept does not offer any of the “neighboring” countries any status in their relations with the EU and says absolutely nothing about the prospects of their European choice. Yet, as was noted both in Brussels and Kyiv, the document contains several absolutely positive points, such as providing access to EU markets and applying the principle of the so-called four fundamental EU freedoms (the free movement of people, goods, capital, and services across the borders) to the “new neighbors.” The document calls for extending the European Investment Bank’s jurisdiction to the new neighbors as well as for integrating these neighbors into Europe’s transportation, power- supply, and telecommunications networks. The trouble is all this is so far a chimera. The hopes for the EU-style four freedoms and the extension of the European Investment Bank’s jurisdiction to the neighbors were thwarted at last June’s EU summit in Salonika. Too many older EU member states strongly oppose these ideas. Even if the situation were different, it would take many years to implement these intentions.

It is thus far difficult to understand the differentiated approach the EU promised to take concerning each of the “neighboring” countries. Perhaps, this will be done by way of the Action Plans the EU intends to map out for each “neighbor.” European Union Commissioner Guenter Verheugen, in charge of devising this kind of plan, said during his September visit to Kyiv that such a document could be drawn up within six months. This plan is supposed to pursue purely economic goals, above all, access to markets and free trade.

Ukraine has a slightly different vision of the Action Plan: it should provide for not only free access to markets but also granting Ukraine EU associate member status and signing an agreement comparable to the so-called European accords the EU has concluded with the Czech Republic, Poland, Hungary, Slovakia, Slovenia, Latvia, Lithuania, Estonia, Bulgaria, and Rumania.

The EU studiously avoids discussing this question. EU functionaries say it is premature to put this issue on the agenda, and it is quite possible to make do without associate membership, as was the case with Austria. They cautiously note that the EU door is not closed to any European countries that meet the so-called Copenhagen criteria. Incidentally, these criteria are not very clear: one can always declare at any juncture that a given country does or does not satisfy them. Yet, in the case of Ukraine, Brussels categorically refuses to include the words, Copenhagen criteria and even integration, in documents it signs with Kyiv. Addressing an international conference, Borys Tarasiuk, chairman of the Verkhovna Rada Committee for European Integration, asked quite a reasonable question, much to the chagrin of EU officials: why did the EU make an unambiguous political decision on the possible EU future membership of some war-ravaged Balkan states where Ukraine helped to achieve stability, but refuses to make a similar decision on Ukraine?

It is this uncertainty that caused President Kuchma’s emotional outburst at his press conference last Tuesday: the refusal to grant Ukraine the status of an associate member and a market economy country is a politically motivated decision, Ukraine is tired of waiting for the EU to take positive steps toward integrating the former into Europe, and nobody has said the EU wants Ukraine to join it. On the other hand, the head of state thinks that now is the time to try to achieve European standards instead of just declaring our intention to join the EU. “If Ukraine were invited to join the European Union today, I would refuse,” he said, because, he is convinced that Ukraine could not withstand competition with European producers for even a month. He thinks we have to save face. As far as can be remembered, the West also strongly advised Ukraine several years ago to cease its never-ending declarations about its European choice and desire for EU membership.

The European Union was also hurt very much by the claim that it was not doing enough for Ukraine. The truth is that the technical assistance Ukraine has received from the EU is twice what it has got from the United States, but this assistance is still smaller than the funds the EU has allotted for the candidate members as well as the countries of North Africa. It is also true that the goal of this assistance, as part of the TACIS (Technical Assistance to the CIS) program, runs counter to that of the PHARE program (first devised to help Poland and Hungary bring their legislation, institutions and many other things into line with EU standards at all levels, was later extended to all the Central European candidate states). It is technical assistance on PHARE principles that Ukraine has been trying to receive from the EU, especially since the TACIS program is due to expire in 2007. The EU has announced that a new instrument of technical assistance to the neighbor countries should be worked out, but this process will also take some time to materialize. What will happen in the meantime, only the EU can guess. The European Union suggests that Ukraine concentrate on fulfilling the Partnership and Cooperation Agreement (many of the provisions of which are already obsolete) and deepen cooperation without any political statements and warnings. As First Deputy Foreign Minister Oleksandr Chaly noted, Ukraine in turn believes it should benefit from the ratification of this agreement by the new EU members.

In addition, Ukraine thinks it should insist on some compensation for losses it sustains from EU enlargement. This is also right in a way, because this country will not get immediate access to EU markets. Meanwhile, there will be radical changes in customs declaration rules and in the movement of people, goods, and services owing to the new visa requirements. On the other hand, the EU’s ever-growing share in Ukraine’s foreign trade even now accounts for one third of its total volume. Taking into account the new members, this share will rise further, which could be a positive thing in the long term.

There are also problems created by Ukraine itself, such as the reverse mode of the Odesa-Brody oil pipeline. October 8 is the deadline of a virtual ultimatum Ukraine received from the Russian government and the TNC Company on this matter. As various sources claim, the inauguration of this pipeline, scheduled for October 30 in the presence of Vice Premiers Haiduk of Ukraine and Pol of Poland and EU Commissioner de Palacio, is now under serious threat. Should Ukraine finally opt for the reverse mode, it will lose out at least twice: first, it will get no access to the transit of Caspian oil and, as an unreliable partner, to other promising European projects; second, this will solve no problems (oil supply, etc.). Conversely, this could raise the spirits of those who do business — not always openly — with Russia.

Another problem is the Single Economic Space (SES). European Union functionaries have already made it clear they do not consider this a problem today — on the contrary, they support any kind of regional cooperation. Yet, they warn that the formation of a customs union would make it impossible to liberalize the Ukraine-EU trade relations and will put Ukraine’s WTO membership on hold. Moreover, in this case it is Russia, not Ukraine, that will set pace in relations with the EU.

Among the still-unsolved problems is also readmission accompanied by the liberalization of the visa regime, broader involvement in the overall European security policy, and combating illegal migration (here there are some clearly unsubstantiated Western claims). The Yalta meeting will not solve this. All it can do is create a favorable climate for both sides to be able to reach mutual understanding if, naturally, they want this instead of some unexpected instant magic. Progress can only be achieved if the entire society makes a great effort even under the proposed format, whereby the EU in fact offers Ukraine and other “neighbors” the formula “everything but formal membership as well as participation in political structures.” This is why it still remains a big question whether Ukraine needs the SES. As far as Brussels’s current proposals are concerned, EU bodies and member states must, first of all, radically change their ideas and approaches and cast aside the old stereotypes provided, of course, that the enlarged West and East have finally dropped the idea of putting up a wall, even an imaginary one, between them.

COMMENTARY

Ihor HRYTSIAK, director, Center for Legal and Entrepreneurial Studies:

“The forthcoming Ukraine-EU summit in Yalta is extremely important for Ukraine, taking into account the signing of the SES agreement. This diplomatic action could cushion its impact. Whatever the results, this will enable all those interested in bilateral relations with Ukraine to operate certain information on the debates now underway about the SES. In other words, the summit will make it possible to obtain specific arguments in favor of Ukraine’s further integration into the EU. Although the SES has been adopted politically, this is not the end of it. Our top leaders claim that this is just a form of regional cooperation which will promote, not hinder, further integration into Europe. The Yalta talks should pivot precisely on this key thesis. Ukraine should confirm its desire to continue moving toward the EU, despite having signed the SES agreement.

“Of course, the EU is absorbed in serious thought now that Ukraine actively promotes the SES, for it could in fact lose Ukraine as a lucrative partner and lever of influence in the CIS. For this reason, our SES maneuver has put the EU on its guard to some extent, and emphasis here must be put on the idea that our state has to be reckoned with. This summit should dot all the i’s about the form of Ukraine’s continued cooperation with Europe and show how the latter will intensify its policies toward Ukraine.

“Our desire to obtain the status of EU associate member is a purely political move, for this is impossible from the technical point of view. There are certain mandatory procedures: we must first fulfill the Partnership and Cooperation Agreement (PCA) that was signed in 1994 by Ukraine and the EU and came into force in 1998. A roundtable held by the parliamentary Committee for European Integration confirmed that only about 60% of this agreement’s provisions had been fulfilled as of last year. Some Ukrainian politicians, unaware of strict observation of the law and the principle of the supremacy of law in the West, try to reap political dividends on this subject by crowd-pleasing methods (‘They don’t want us there’). The president was quite right when he said, ‘We must cut down on declaring intentions and, instead, do more real things and meet the standards.’ Only when this country fulfills the agreement by 100% and joins the WTO, which will prove that it has reached the PCA standards, will it be able to lay claim to associate member status. I would like Europe to meet us halfway at this summit also by helping us meet the PCA requirements, while we could pledge to fulfill the agreement’s items within one or two years.

“The summit should confirm the EU’s continuing interest in Ukraine and show that Ukraine remains one of the main objects of its influence. The EU must find a different name for partnership with Ukraine. We deserve a more appropriate status than that of an ordinary neighbor. The European Union, alarmed at Ukraine’s drift toward Russia, should take concrete radical steps. For example, it could allocate its own funds for Ukraine to fulfill the PAC provisions and intensify propaganda work in our society.”

Stanislav SHEVCHUK, director, Center of European and Comparative Law:

“The Yalta summit of Ukraine and the EU should focus on legal cooperation because adapting the Ukrainian law to EU standards is one of the main conditions for our integration into Europe. We hope the Yalta summit will give clear recommendations as to how the adaptation of the Ukrainian law can be speeded up radically. Until recently, this adaptation came down to general requirements or isolated subjects. No one knew concretely how to take an integrated approach to adapting the legislation. Ukraine made a commitment to implement the Partnership and Cooperation Agreement, as far as bridging the gap in the key fields is concerned. Yet, while offering aid, the European Commission confined itself to some low-profile technical assistance projects. The Ukrainian government’s latest initiatives are aimed at raising our cooperation to a higher level. To this end, a Ukraine-EC memorandum has been drawn up on adapting the law. This document indicates the purpose and parameters of adaptation in each of the priority fields. The draft memorandum has already been given to the European Commission. We expect a positive answer from precisely this summit because this will significantly speed up Ukraine’s integration into the EU. On the other hand, the current projects of technical assistance still work in the format of the first years of our independence, when integration into the EU was not so high on the agenda. In other words, Brussels is still waffling. The paradox is that Ukraine is prepared to go further but is getting no signals in reply. The same applies to granting Ukraine the status of an associate member. The summit must also show clearly to what extent the Europeans are prepared to put into practice their own declarations. The impression is that, while we show both the desire and the actions, Brussels is unable to give a meaningful answer. So this will be one of the summit’s main ideas in the field if law.

“After signing the SES documents in Yalta, the president of Ukraine stressed the agreements should be analyzed for correspondence with Ukraine’s Constitution and laws. I often receive phone calls from the Ukrainian diaspora in the USA who fear that Ukraine seems to be losing its sovereignty. When I say that this matter is full of juridical and political undertones, they refer to history and recall the Pereyaslav Rada. They claim the overall perception in those times was the same: this is just not serious...”