Between Politics and Law: The EU, NATO, PACE, and Modern Ukraine

In addition to the format of Ukraine’s delegation’s participation in PACE, our country continues to face challenges in its interactions with other European organizations.

On September 18, 2019, a landmark event took place in the Ukrainian parliament that went almost unnoticed by the media. This was a joint meeting of two Verkhovna Rada committees: the Committee on Foreign Policy and Interparliamentary Cooperation and the Committee on Ukraine’s Integration with the European Union, attended by the relevant Deputy Prime Minister, the Minister of Foreign Affairs, and key officials from the Office of the President. Although the event focused on defining the prospects for cooperation with three institutions— the Council of Europe, the European Union, and NATO, the public focused primarily on the decision—apparently adopted following the meeting—for Ukraine to refrain from sending its own parliamentarians to the PACE. But of course, given the current circumstances, there are more than enough pressing issues in our country’s relations with European and Euro-Atlantic organizations—and not just with specific bodies of the Council of Europe. I will try to briefly outline my thoughts on possible areas for Ukraine’s urgent action regarding the three key organizations that currently unite most of the world’s civilized nations.

Regarding the European Union

The main challenge in relations between Ukraine and the European Union (EU) remains the implementation of the Association Agreement between Ukraine, on the one hand, and the EU, the European Atomic Energy Community, and their member states, on the other hand, on Association (hereinafter referred to as the Agreement), which entered into force between the parties in 2017. During the period from 2014 to 2017, when the Agreement was being implemented, during which substantial changes to Ukrainian legislation were to be initiated to align with EU regulations and directives, and the issue of official translations of most of the necessary EU acts was to be resolved, was not effectively utilized.

The 8th convocation of the Ukrainian Parliament proved unable, amid intense lobbying by major financial and industrial groups, to approve the relevant legislative changes. In particular, the components of the Plan for Legislative Support of Reforms in Ukraine, approved by Resolution No. 509-VIII of the Verkhovna Rada of Ukraine on June 4, 2015, which provided for the implementation of the Agreement through the adoption of specific draft laws, were largely not implemented.

Moreover, from 2014 to the present, Ukraine has still not acceded to a number of universal and regional international agreements, participation in which the Agreement identified as the primary basis for its own implementation. At the government level, the plan for implementing the Agreement was approved by Order of the Cabinet of Ministers of Ukraine No. 847 dated September 17, 2014, and later, by the summer of 2015, government resolutions had approved more than 30 plans for implementing the Agreement within the purview of more than 10 ministries and other central executive bodies. As of 2017, these acts had not been implemented; the measures they provided for were carried out only to a limited extent and with significant delays. No special budgetary funds were allocated for the implementation of these plans.

After the Agreement entered into force, Resolution No. 1106 of the Cabinet of Ministers of Ukraine dated October 25, 2017, approved a new general Action Plan for the implementation of the Agreement, and Government Order No. 847 of 2014 was repealed, thereby covering up the failure to implement the 2014 plan. At the same time, as of September 2019, it is already evident that the 2017 Action Plan—whose schedule called for the widespread implementation of the provisions in 2018–2019— was also derailed in terms of its implementation timeline by the very government that had approved it. The 2017 Plan also did not provide for the allocation of special funds for its own implementation.

A separate problem has been the translation of EU regulations and directives, as provided for in the Association Agreement and government plans. Indeed, in addition to falling behind schedule, the legal status of such translations remains unresolved under Ukrainian law, which complicates their practical application in judicial and administrative proceedings.

In fact, the situation has led to a scenario where EU acts in the areas covered by the Agreement are adopted and transposed within the EU much faster than Ukraine can ensure not only their implementation in national legislation but even their translation; the resulting lag is constantly growing. Ukraine’s continued pretense of complying with the Agreement, given that it is in force and that complaints and lawsuits may be filed against Ukraine citing its unfulfilled provisions, poses a real threat to all future European integration processes in Ukraine.

It is necessary to recommend that the Government of Ukraine immediately set deadlines and designate those responsible for the accelerated implementation of the 2017 Action Plan, while simultaneously allocating additional budgetary funds to ensure the immediate elimination of the backlog in implementing its measures, based on cost estimates submitted without delay by the ministries. It is recommended that the relevant parliamentary committees step up oversight of the Agreement’s implementation and make this a permanent item on the agenda of their meetings, including monitoring the status of draft laws submitted regarding the Agreement’s implementation and reviewing quarterly government reports on the Agreement’s implementation.

A separate issue remains the United Kingdom’s withdrawal from the EU and the consequences of that country’s termination of the Agreement, which currently serves as a treaty between the UK and Ukraine. This situation poses threats of both significant harm to Ukraine’s economic interests at present and damage to bilateral political relations between Ukraine and the United Kingdom in the future. It is becoming extremely important for the Ministry of Foreign Affairs of Ukraine and the relevant parliamentary committee to analyze the parties’ experience in implementing association agreements similar to the Agreement, concluded between the EU and Georgia and Moldova, respectively.

Regarding the North Atlantic Treaty Organization

Unlike with the EU, Ukraine does not have a comprehensive bilateral agreement on cooperation with the North Atlantic Treaty Organization (NATO). From 2011 to 2017, the Euro-Atlantic direction of Ukraine’s policy was defined by the Annual National Programs for Ukraine–NATO Cooperation, which were approved by presidential decrees (except for 2014, when no annual program was approved).

In addition, Presidential Decree No. 43/2017 of February 21, 2017, approved the Concept for Improving Public Awareness of Ukraine’s Euro-Atlantic Integration for 2017–2020. Since 2017, annual national programs under the auspices of the Ukraine – NATO; for 2019, such a program was approved by the current Presidential Decree No. 117/2019 of April 10, 2019.

The main problem with this policy framework remains its short-term nature, which makes it impossible to effectively monitor the program’s implementation and results in each annual program being largely a replica of the previous one in terms of unfulfilled provisions. Furthermore, the effectiveness of these acts is undermined by the lack of specific budgetary allocations for the measures outlined in the annual programs, as well as their disconnect from the actions of the government (the most recent Action Plan for the Implementation of the Ukraine–NATO Annual Program was approved in 2012) and the parliament.

Under these circumstances, at the national level, the Government should immediately develop, and for the parliament to approve a National Target Program for Ukraine’s Euro-Atlantic Integration with separate, guaranteed budgetary funding, a implementation period of at least five years, a series of implementation phases, and oversight of the program’s implementation by the National Security and Defense Council of Ukraine. This program should be developed jointly by the Government, the Office of the President, and the National Security and Defense Council of Ukraine. Once such a program is approved, the relevant parliamentary committee should be tasked with ongoing oversight of its implementation. Given the specific nature of NATO’s tasks and internal processes, particular attention—from the Government as a whole, and the Ministry of Foreign Affairs in particular, as well as the relevant parliamentary committees, should focus on developing Ukraine’s bilateral relations with its NATO partner states on the basis of reciprocity.

Regarding the Council of Europe

Given that the Council of Europe includes both an aggressor state and a number of countries that have their own understanding of democracy and human rights and/or are political allies of the Russian Federation, the legal, organizational, and procedural framework for Ukraine’s interaction with this organization must differ significantly from its interaction with NATO and the EU. In the medium term, Ukraine’s relations with the Council of Europe will have more in common with our country’s interactions with the UN and the OSCE—organizations that are of paramount importance to Ukraine but are under significant influence from the aggressor state.

A key feature of Ukraine’s engagement with the Council of Europe is its full membership in this organization. Furthermore, unlike the EU—where cooperation with Ukraine is governed by a bilateral programmatic international treaty, the 2014 Agreement—and unlike NATO, where there is no bilateral legal mechanism for integration with Ukraine relations with the Council of Europe are currently governed by the Council of Europe Action Plan for Ukraine for 2018–2021, which was unilaterally adopted by the Committee of Ministers of the Council of Europe on February 21, 2018.

This document is effectively a program of technical assistance to Ukraine from the EU totaling 29.5 million euros, of which 8.7 million is earmarked for human rights initiatives, more than 12 million on the rule of law, and another 6.6 million on strengthening democracy. At the same time, representatives of both the Russian Federation and other pro-Russian states within the Council of Europe will, by definition, be involved in assessing the implementation of this document.

Despite the importance of implementing this already-approved Plan, Ukraine should focus within the Council of Europe not on obtaining technical assistance or on attempts to engage the organization’s political and legal mechanisms (such as the Venice Commission, etc.) to resolve domestic problems and advance domestic interests, but rather on the proactive use of the Council of Europe’s most valuable asset—its body of law in the form of a system of treaties and the practice of treaty bodies, first and foremost the European Court of Human Rights (ECHR).

Currently, such use remains extremely insufficient. Suffice it to say that Ukraine is currently a party to only 117 of the Council of Europe’s 225 intergovernmental treaties, which is significantly lower than the figures for leading Council of Europe member states among EU or NATO countries. For example, the United Kingdom is currently a party to 154 Council of Europe treaties, Sweden to 164, Germany to 181, France to 183, and Luxembourg to 194. At the same time, a significant portion of the Council of Europe agreements to which Ukraine has acceded have not yet been implemented into domestic law.

The most glaring issue is Ukraine’s compliance with ECHR rulings, where, in practice, the only action taken is the payment of compensation to applicants who have won cases against Ukraine and the sporadic rectification of the individual legal situations in which they found themselves. At the same time, Ukraine has not amended its legislation to address the systemic or specific shortcomings identified by the ECHR, which has already led to the catastrophic situation where the ECHR has found entire branches and mechanisms of domestic law to be noncompliant with Council of Europe standards, and thousands of cases lost before the ECHR.

To remedy the situation, the Government must initiate an immediate review of the Council of Europe conventions to which Ukraine’s accession is advisable in the short- and medium-term, and develop a corresponding roadmap. The government must immediately arrange for the official translation of all Council of Europe treaties into Ukrainian and establish a mechanism for the official translation and publication in Ukrainian of all decisions rendered by the ECHR—not just those against Ukraine, as is currently the case— with special funding and organizational resources allocated for these tasks. In addition to the need for Ukraine to make maximum use of the Council of Europe’s body of law, it is necessary to shift the priorities of cooperation with this organization from political and legal (interaction between government officials and members of parliament) to diplomatic ones. This requires significantly expanding the staff and strengthening the institutional capacity of Ukraine’s Mission to the Council of Europe, which must now focus primarily on countering the aggressor state within the Council’s institutions and utilizing the Council’s bodies as platforms for engagement with European countries.