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Kovács Viktória: The process of European integration in Ukraine – Pacta sunt servanda – Concluded contracts must be respected

Introduction

Examining the process of Ukraine’s approach to the European Union, we get an idea of how the young state, forced into the collision zone of the great powers due to its geopolitical situation, shapes the legal and political framework that – according to their hopes – is needed in order to join the European Union. Due to the war taking place next door to Hungary, it is especially important to be familiar with the country which is receiving increased attention due to the social, political, and humanitarian aspects of the events. As far as we are concerned, the outcome of the war is also crucial in view of the large number of Hungarians living there.

1. Initial steps – Status quo ante bellum

The Kyiv Parliament adopted the Declaration of Independence on August 24, 1991, which was confirmed by a referendum on December 1, 1991. The fact that Hungary was the first to recognize Ukraine as an independent state was an important step that defined Ukrainian-Hungarian relations.[1] Ukraine became the European state with the largest area and population, and due to its natural features, it was able to start its independent life with decent chances. The broadening of international political-economic relations began. Due to the country’s special geopolitical situation, looking for opportunities both in the West and the East became necessary,[2] and strengthening national identity became extremely important.

The young Ukraine, which had just gained independence, ha d to create its national history and build the nation itself upon a territorially divided identity. The regional differences caused difficulties in the formation of a unified identity, Ukrainian nationalist movements mainly operated in the central and western areas of the country, while Eastern Ukraine has always been connected to the Russians both culturally and economically, as well as in terms of historical memory.[3]

In multicultural Ukraine, until the outbreak of the war on February 24, 2022, a unified political nation only existed in theory, its supporters and opponents could equally be found in the sphere of public power.[4]

After the dissolution of the Soviet Union, the Commonwealth of Independent States (hereinafter CIS) was established, which Ukraine also joined as a former Soviet republic. However, Ukraine did not sign the CIS Charter and left the CIS in 2018. After the CIS became obsolete, Russia established the Eurasian Economic Union with Belarus and Kazakhstan in 2014, to which Ukraine no longer was a party. The idea that Ukraine, as a buffer zone between East and West, should trade with both the European Union and the Russian Federation is difficult to implement and cannot be considered viable in the long term.

“The EU’s Eastern Partnership policy established in 2009 covers six Soviet successor states: Armenia, Azerbaijan, Belarus, Georgia, Moldova, and Ukraine. The aim of the partnership is to support the political, social, and economic reform efforts of these countries in order to enhance democratization and good governance, energy security, environmental protection, and economic and social development.”[5] In 2009, Ukraine began negotiations with the European Union on the Association Agreement, and negotiations on the establishment of the Deep and Comprehensive Free Trade Area began.[6]

The EU Association Agreement concluded with Ukraine would have been considered a milestone for both parties, which is why the European elite looked forward to the signing of the agreement in Vilnius, planned for November 2013 with great anticipation. The Ukrainian government backed down on the eve of the summit and decided to suspend the signing process. The move of the Ukrainian leadership can be explained by the fact that the European Union objected to the detention of former Prime Minister Yulia Tymoshenko and the former Home Secretary. Having their case assessed according to European standards was determined as a condition for signing the association agreement. Hundreds of thousands took to the streets in Ukraine upon the news of the Agreement not going through, and the cause-and-effect relationships of the events at that time continue to have an effect on the country’s political and social situation to this day. The Ukrainian government’s violent response to the series of demonstrations led to the Euromaidan revolution, and then to the removal of the head of state, Viktor Yanukovych, in February 2014. Among other things, the rash narrowing of political, language, and nationality rights resulted in the annexation of the Crimean Peninsula by Russia and escalated the separatist movement into an armed conflict in the Donetsk and Luhansk counties of eastern Ukraine. In the parliamentary elections held in October 2014, pro-Europe and pro-reform leaders came to power.

2. Milestones – Non progredi est regredi

Let us review what landmark moments and milestones can be found in the process of Ukraine’s European integration after 2014.

In the foreign policy direction taken by the European Union, Ukraine currently plays a prominent role in several areas: in the European Neighbourhood Policy (ENP), the Black Sea Synergy and the Eastern Partnership[7] (EaP). The goal of the European Neighbourhood Policy is a partnership based on common values, the result of which is prosperity, stability, and security. The Neighbourhood Policy is embellished and enriched by regional cooperation such as the Eastern Partnership. Within the framework of the partnership, it is possible to develop differentiated cooperation with the given country, thus making the process of political association and economic integration faster and more efficient.[8] It is important to separate the Neighbourhood Policy from the enlargement politics since there is no automatic connection between the association agreement and the accession prospects; however, the possibility of an EU accession cannot be ruled out for those participating in it.

In 2011, the parliamentary body of the Eastern Partnership, the Euronest Parliamentary Assembly[9] was established, which is responsible for consultation and supervision within the Partnership.

Important events:

On June 27, 2014, the European Union signed the Association Agreement with Ukraine, the Republic of Moldova and Georgia. Furthermore, the establishment of the Deep and Comprehensive Free Trade Area (DCFTA) facilitated Ukraine’s gradual integration into the EU’s internal market. [10] With this agreement, relations between the EU and the partner countries rose to a new level.

The 2015 summit in Riga was attended by the six countries involved, as well as the EU and the highest-level representatives of its member states, who all agreed to cooperate in four priority areas: the pursuit of stronger governance – including the strengthening of legal institutions and the application of the principles of good governance; promoting economic development and improving market opportunities; developing interstate connections and mobility opportunities, and fostering people-to-people connections for a stronger society.[11]

The EU not only contributes to the development of countries with financial resources and infrastructural investments but also provides a framework for multilateral cooperation.

In the fall of 2014, the European Commission established a Council specifically for supporting Ukraine, which consists of experts from EU institutions and member states and provides coordination and advice to the Ukrainian authorities in key reform sectors. The support group regularly holds meetings at which the progress under the Association Agreement is reviewed and further steps are discussed, of which reports and evaluations are prepared.

With the help of the reform process developed jointly by the EU and Ukraine, there must be constitutional and decentralization reforms made, alongside the reform of the judiciary. Furthermore, the enforcement of the rights of minorities must be ensured, the fight against corruption intensified and the business environment must be improved. However, powerful business groups that have taken advantage of legal loopholes are blocking the Ukrainian government’s efforts at economic reforms.

In 2015, the Association Council proposed ten short-term reform measures in the fields of the constitution, elections, the judiciary, the fight against corruption, public administration, energy, regulatory simplification, public procurement, taxation and external auditing.

Also in 2015, the European Parliament launched a comprehensive capacity-building program for the Ukrainian parliament, the Verkhovna Rada.[12]

On May 11, 2017, the visa liberalisation decree was adopted, according to which Ukrainian citizens can travel to the EU without a visa for a maximum of 90 days.

EU–Ukraine summits are held every two years. At the summit held in Brussels in November 2017, 20 goals were set to be achieved by 2020. The 20 goals include: closer cooperation with civil society, increasing the social role of women, building a stronger economy, supporting regional trade between partner countries and the EU, strengthening good governance, implementing public administration reform, improving connectivity, combating climate change, and investing in human resources.

The new economic opportunities offered by the Association Agreement were beneficial for both the EU and Ukraine. The agreement made the EU the most important trading partner of Ukraine. In 2019, the volume of bilateral trade reached EUR 43.3 billion, which represented more than 40% of Ukraine’s total trade. [13]

The EU was represented by Charles Michel – President of the European Council, Ursula von der Leyen – President of the European Commission, and Ukraine by President Volodymyr Zelenskyy.[14] At the EU–Ukraine summit held in Kyiv on October 12, 2021, the leaders reviewed the results of the EU–Ukraine Association Agreement thus far, provided political guidelines for the further development of the Eastern Partnership, evaluated the effectiveness of the defense against the Covid-19 pandemic, discussed the next steps in the execution of the integration process, and agreed to further strengthen economic cooperation.

On March 16, 2022, the electricity grid of Ukraine and Moldova was successfully synchronized with the continental European grid.

Since 2014, the European Union and European financial institutions have provided Ukraine with more than EUR 17 billion in loans and grants.

3. Possibility and reality – Verba volant, scripta manent

European integration was declared among the most important objectives of the new Ukrainian leadership elected in 2019,[15] so much so that it was included in the preamble of the Constitution of Ukraine. More than just having good relations with the European Union, achieving actual membership in the EU is clearly the real goal of the Ukrainian leadership.

In April 2022, Ursula von der Leyen, President of the European Commission, officially handed over a questionnaire to President Volodymyr Zelenskyy, which was a necessary step for Ukraine to be granted EU candidate status. In May 2022, Ukraine completed the second part of the accession questionnaire.

But what are the requirements for Ukraine to become an official member of the European Union? The framework rules for EU enlargement were formulated at the European Council meetings in Copenhagen in 1993 and in Madrid in 1995; additionally, the criteria were also defined in the period between the two meetings.[16]

The Treaty on the European Union contains the conditions (Article 49) and principles (Article 6, paragraph 1) that a country wishing to join the European Union must meet. The applicant country can receive candidate status from the European Council based on the opinion of the European Commission. During the thorough procedure, the Commission examines the application for accession according to the accession criteria (the so-called Copenhagen criteria), and in order to start the process, the European Council must make a unanimous decision to launch negotiations. However, obtaining candidate status does not automatically grant the right to join the European Union, and the process itself can take years.

The process of accession

Any European country that wants to join and has met the criteria:

      • must submit an official request to the President of the Council;
      • after consultation with the Council of the EU, the Commission comments on the request;
      • the Council unanimously decides on the nomination of members;
      • negotiations begin.

An important element of the process is the preparatory phase of the accession negotiations: the candidate state is vetted, i.e. it is examined whether the applicable EU legislation is in accordance with the laws and standards of the given country. This is because during the accession process, the candidate member must transfer the EU legislation into the existing domestic legal framework and develop the necessary institutions and administrative systems to function as a member state. The vetting process is divided into 35 chapters and it is possible that minority protection will receive a separate chapter in the near future. In order to effectively prepare for membership, the EU provides financial and technical support to the candidate country.

An important element of the accession criteria is the stability of institutions guaranteeing democracy, the rule of law and the enforcement of human rights, as well as the respect and protection of minority rights.[17]

4. Obstacles and mistakes – Res nulla consilio nocentior malo

So far, we have talked about milestones, visions, goals and opportunities. Below we mention some decisions and criticisms that may hinder the achievement of Ukraine’s European integration goals, and detail which areas we find erroneous, rights-restricting provisions and laws to appear concurrently with the integration processes.

Narrowing rights of nationalities

2017 – Law on Education[18] – extremely disadvantageous and represents a step back compared to the rights provided earlier. It goes against the Ukrainian-Hungarian agreement and Ukraine’s international commitments. Until the adoption of the new Law on Education in 2017, all Ukrainian citizens had the right to study in their mother tongue at all levels of education.

The Law on Education is the first in which the legislator differentiates de facto and de jure between national minorities and indigenous peoples.[19] The law classifies citizens of Ukraine into four categories:

    1. Ukrainians;
    2. indigenous peoples: practically only the Crimean Tatars, Krimchaks and Karaims can be classified as belonging to this category;
    3. national minorities speaking one of the official languages of the European Union – the rules of this third category apply to the Hungarian nationality;
    4. speakers of non-EU languages. The distinction is of practical importance: for example, Russians can only study their mother tongue as a school subject.[20]

2019 – State Language Act[21] – The State Language Act mandates the use of the state language in all areas where previously the languages of national minorities could also be used, and infringement proceedings may be initiated for its violation.

2016–2020 – Public administration reform[22] – Linguistic and ethnic characteristics were not taken into account when defining the administrative boundaries, and therefore the Hungarian communities were also disadvantaged.

2021 – Law on indigenous peoples[23] – Provides comprehensive protection for Crimean Tatars, Krimchaks, and Karaims. Minorities without a homeland fall under the scope of the law.

2021 – Amendment of the State Language Act on the language of services – Article 30 of the State Language Act made strict provisions on language use in the service industry.

5. Critical voices – Vita communis maxima crux

In its opinion issued in December 2017,[24] the Venice Commission strongly condemned the discrimination of national minorities based on whether their mother tongue is an official language in the EU or not. This position is also emphasized in the opinion issued by the international legal body in December 2019 in connection with the 2019 State Language Act.[25] They also criticized the fact that representatives of national minorities were not consulted during the creation of the law.

The State Language Act was also criticized by Lamberto Zannier, OSCE High Commissioner for Minorities (2017–2020). In his opinion, it is a cause for concern that the new language law does not cover the protection of minority languages and that the legislation would respond to the problems arising during the use of the state language with strict sanctions. In addition to all this, the new law does not respect the provisions of the Ukrainian Constitution (Articles 10 and 92) and ignores Ukraine’s international commitments: the Ukrainian–Hungarian Basic Treaty, the European Charter of Regional or Minority Languages (Part 1, Article 7, Point D), the Framework Agreement on the Protection of National Minorities (Article 10), and the provisions of the Association Agreement between the EU and Ukraine in 2017. The current law-making process practically disregards the Constitution, Article 22 of which states: “The content and scope of existing rights and freedoms shall not be diminished in the adoption of new laws or in the amendment of laws that are in force.”

Between 2014 and 2019, the European Parliament adopted 19 resolutions concerning Ukraine. On February 11, 2021, a key report on the implementation of the Association Agreement was adopted, which places a strong emphasis on the ongoing reform process and the anti-corruption structure.[26] The report acknowledges Ukraine’s efforts to implement the commitments contained in the Association Agreement, but there are still many reforms to be completed in relation to the rule of law, good governance, and the fight against corruption. It cites the unstable operation of institutions, the limited resources, the pandemic, the lack of independence of judicial and economic institutions, and the controversial use of justice all as factors hindering the reforms. The report mentions the statement issued by the NATO-Ukraine Committee on October 31, 2019, which calls on Ukraine to respect human and minority rights, as well as fully take into account the Venice Commission’s conclusions and implement its recommendations regarding the Law on Education. According to the report, although Ukraine has ratified the most important international legal documents, it still does not apply them. In 2019, only 37% of the tasks related to the implementation of the Association Agreement were completed.

The document highlights significant achievements in the reform process, such as the historic opening of the agricultural land market. The report emphasises that the European Union makes the amount of support at different levels dependent on the progress of Ukraine’s reform process, respect for human rights, and compliance with its commitments regarding minorities. In the resolution, the EU reaffirmed its unwavering support for the independence, sovereignty and territorial integrity of Ukraine.[27]

6. The future of integration – Nil medium est?

An important area of priority for the European Union is integration and the neighbourhood policy, with the development of which, valuable and fruitful cooperation can be established between the partner states at different levels and measures. Based on the status of the relations and the implemented reforms, the cooperation can even lead to becoming a candidate state. It is very important that the candidate states maintain good relations with their partners and their immediate neighbours. It cannot be disputed that the creation of an EU-level minority protection framework could be an essential tool for peaceful coexistence.

Before the war, a part of the citizens living in the eastern half of Ukraine would rather have closer national, cultural, political, and economic relations with the Russians. Today, however, it seems clear that the entire country considers the European path to be the only solution; however, without respecting common values and the rights of national minorities, the integration of Ukraine in the political, economic, and legal fields of the EU will not be possible.[28]

Bibliography

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References

  1. Csilla, Fedinec (et al.): A független Ukrajna. Államépítés, alkotmányozás és az elsüllyesztett kincsek (The independent Ukraine. State-building, constitution-making and sunken treasures) (HUN), Budapest, MTA Társadalomtudományi Kutatóközpont – Kalligram, 2016, 37. ↑
  2. Ádám, Rixer: Az orosz helyi önkormányzati rendszer. (The Russian system of local self-government.) (HUN), in Adrián, Fábián (ed.), Válogatott európai önkormányzati modellek. (Selected European local government models) (HUN), Budapest, Dialóg Campus Publisher, 2012, 71–79. ↑
  3. Beáta, Varga: Önállóság, nemzeti identitás és külpolitika Ukrajnában a 17. század közepén. (Autonomy, national identity and foreign policy in Ukraine in the middle of the 17th century) (HUN), Világtörténet. 2011/3–4, 151–152. ↑
  4. Csilla, Fedinec: Regionalizmus Ukrajnában. (Regionalism in Ukraine) (HUN), in Nándor, Bárdi – Ágnes, Tóth (ed.): Önazonosság és tagoltság: elemzések a kulturális megosztottságról. (Self-identity and segmentation: analyses of the cultural division) (HUN) (Tér és terep 9.), Budapest, Argumentum, 2013, 341–355. ↑
  5. Three Eastern Partnership neighbours: Ukraine, Moldova and Belarus, Fact Sheets on the European Union, https://www.europarl.europa.eu/factsheets/en/sheet/171/harom-keleti-partnersegi-szomszed-ukrajna-moldova-es-belarusz (Download: 10 of April, 2022) ↑
  6. Ukraine became a member of the WTO in February 2008. ↑
  7. The Eastern Partnership is a joint initiative between the EU, the EU member states, and six post-Soviet Eastern European states: Armenia, Azerbaijan, Belarus, Georgia, the Republic of Moldova, and Ukraine. On June 28, 2021, Belarus suspended its participation in the Eastern Partnership. ↑
  8. The European Neighbourhood Policy, Fact Sheets on the European Union, https://www.europarl.europa.eu/factsheets/en/sheet/170/az-europai-szomszedsagpolitika (10 of April, 2022) ↑
  9. EuroNest Parliamentary Assembly, https://www.europarl.europa.eu/euronest/en/home/highlights (10 of April, 2022) ↑
  10. The Deep and Comprehensive Free Trade Agreements became fully operational on January 1, 2016. ↑
  11. Eastern Partnership summit, Riga, 21–22 May 2015: https://www.consilium.europa.eu/en/meetings/international-summit/2015/05/21-22/ (3 of May, 2022) ↑
  12. Eastern Partnership: https://www.consilium.europa.eu/en/policies/eastern-partnership/ (3 of May, 2022) ↑
  13. Three Eastern Partnership neighbours: Ukraine, Moldova and Belarus ↑
  14. Joint statement following the 23rd EU-Ukraine Summit, 12 October 2021, European Council, https://www.consilium.europa.eu/en/press/press-releases/2021/10/12/joint-statement-following-the-23rd-eu-ukraine-summit-12-october-2021/ (3 of May, 2022) ↑
  15. Volodymyr Zelenskyy has been the President of Ukraine since July 20, 2019 ↑
  16. Copenhagen European Council – June 21–22, 1993 – Presidency conclusions. ↑
  17. Accession criteria (Copenhagen criteria), EUR-Lex, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3Aaccession_criteria_copenhague (3 of May, 2022) ↑
  18. Ukraine’s Law on Education. Закон України, Про освіту ↑
  19. István, Csernicskó – Mihály, Tóth: A kárpátaljai magyar közösség nemzetiségi és nyelvi jogai. (Nationality and language rights of the Transcarpathian Hungarian community) (HUN), Budapest, Nemzetpolitikai Kutatóintézet, 2021. ↑
  20. Csilla, Fedinec: Az őslakos státusz Ukrajnában. (The indigenous status in Ukraine), Fórum Társadalomtudományi Szemle, 2018/2. ↑
  21. Ukraine’s law on Protecting the functioning of the Ukrainian language as the State language, Закон України, Про забезпечення функціонування української мови як державної ↑
  22. Law of Ukraine on Voluntary Creation of Territorial Units, Закон України, Про добровільне об’єднання територіальних громад ↑
  23. Ukraine’s Law on Indigenous Peoples, Закон України, Про корінні народи України ↑
  24. Conclusions and recommendations of the Venice Commission regarding the Ukrainian Law on Education, https://kijev.mfa.gov.hu/news/velencei-bizottsag-szakvelemenye-az-ukran-oktatasi-toerveny-kapcsan (HUN) (3 of May, 2022) ↑
  25. Ukraine. Opinion on the Law on Supporting the Functioning of the Ukrainian Language as the State Language, European Commission for Democracy Through Law (Venice Commission), CDL-AD(2019)032. Opinion No. 960/2019. Strasbourg, 9 December 2019, Para. 139, https://www.venice.coe.int/webforms/documents/?pdf=CDL-AD(2019)032-e (3 of May, 2022) ↑
  26. Resolution of the European Parliament of 11 February 2021 on the implementation of the EU–Ukraine Association Agreement, 2202 (2019)(INI). ↑
  27. EU-Ukraine summit, Kyiv, Ukraine, 12 October 2021, https://www.consilium.europa.eu/en/meetings/international-summit/2021/10/12/ (23 of April, 2022) ↑
  28. At 13 of December 2022 the Supreme Council (Verkhovna Rada) adopted draft law No. 8224 on Ukrainian national minorities (communities), which is one of the conditions for Ukraine’s accession to the European Union. President Volodymyr Zelenskyy signed it at 30 of December 2022. ↑