But what if the Association Agreement gets signed?

Much has been said and written about the EU-Ukrainian Association Agreement and DCFTA.  Much has been said and written about how it would necessarily anchor Ukrainian policy within the EU normative.  Much has been said and written about whether – or not – the Association Agreement will be signed in November.

But what if it does get signed – apart from the much repeated long term economic benefits to Ukraine – not to mention short term geopolitical victory for the EU (and perhaps Ukraine depending on your point of view) – where does democracy fit into this equation in a relationship with an EU in flux which seems to simply add layers of complexity where they are not needed but ignoring necessary layers of complexity where they are required?

There are already nations outside the EU that are in the European Economic Area (EEA) such as Switzerland and Norway which in short are effectively regulated and somewhat controlled by the EU through decisions relating to the single market, without having the voting or veto rights of full EU membership – EU-Lite for want of a better expression.

Debate rages in the UK over EU withdrawal – or not – and a much mentioned issue is the de facto issue that by leaving it would put the UK in a very similar position to the EEA nations – whereby a certain amount of arbitrary compliance will be necessary for trade without any voting rights over the rules and regulations that come with compliance.

And so, taking that issue one constituency further from the centre, to the most ambitious agreement ever attempted between the EU and an external State (Ukraine) – where does that leave Ukraine should the Association Agreement and DCFTA get signed?  A position that is likely to be effectively EU Lite-lite or EEA-Lite.

It will be left to implement EU and EEA rules and regulations without any voting rights whatsoever over EU or EEA decisions.

It is hardly likely when lobbying the Ukrainian cause without any robust voting or veto rights, that Ukraine will change EU minds when future decisions change the EU internal political/trading/economic environment to which it may have signed up to.  28 internal nations will have already agreed – what chance an EU Lite-lite nation making any impact on that decision?

If the decision is made that all bread sold within the EU must be coloured green, then any Ukrainian bread imports into the EU would have to be green, whether Ukraine can make green bread or not – or whether it can do so cost-effectively – to make a point in a rather juvenile way.

Basically, if the EEA (EU-Lite) is a constituency without democratic normative tools to influence the EU, then what is equivalent to being EU-Lite-lite – should the agreements be signed – is no different.

Should these documents be signed and all content within effectively implemented by Ukraine, it will be as close to being an EEA nation without being an EEA nation as is possible – part of a constituency with no effective democratic tool box or representation within the EU.

The more integrated it becomes in that EEA or EU constituency, the more Brussels decisions with impact within Ukraine will seem undemocratic to the Ukrainian society – a society already desperately clinging on to democratic ideology despite seeing absolutely nothing delivered by the democratic system since 1991.

How can this be overcome when there are no explicit promises of accepting Ukraine into the EU other than vague references to Article 49 of the Treaty of the European Union?

An EU-Ukrainian council in which, should no agreement be reached, a third party with a decisive vote in case of deadlock – the EEA nations perhaps, in the form of the EEA Council – can settle matters?

If not that way, or in cases of appeal, who would act as the final court if legal challenges were made?  The ECJ or another jurisdiction?

How do you deal with an effectively enlarged constituency when denying it the basic rights of the democratic tool box and representation to rules and regulations are made by the core?

After all this is not a simple matter of bilateral relations – nothing is simple when it comes the EU foreign policy!

A day with the “Beeb”

A very short entry today as I have spent the day filming with the BBC talking drug and human trafficking, smuggling and counterfeit goods in Odessa – naturally I will eagerly await my BAFTA nomination!

So having spent the day talking trafficking routes in and out of Odessa and more broadly Ukraine – and basically stating the obvious, in that serious and organised crime will always choose the route of least resistance – and Ukraine is probably not as robust as the EU States when it comes to preventing entry or egress of illicit “goods” on the European continent, it is perhaps good timing that today, an announcement of the opening of Odessa Port’s new terminal will be in Autumn 2013 – an absolutely necessary economic infrastructure addition in respect of legitimate trade – but also another point of weakness in a somewhat porous and very large international land and sea Odessa border.

With such a large international land and sea border, how can Odessa be anything other than porous and a route of least resistance for serious and organised crime?

The symbolic signing of nothing special

There is much to be said for symbolism.

It can be inspiring, it can be unifying, it can be a moment of hope or defiance that ignites the courage of others – in short, it can have impact.

It can also be completely empty of meaning, condescending, devoid of rationale and ultimately, pointless in the extreme.

And so, 18th May brought to an end the 2 month “Rise Ukraine” strategy of the United Opposition – Batkivshchyna, UDAR and Svoboda parties – in Kyiv.

After countless rallies in numerous (opposition friendly) cities drawing crowds of a few thousand people each time – worryingly low numbers if you are an opposition party leader to be blunt – the finale in Kyiv attracted a only few thousands people once again.

I would have expected for 10,000 – 15,000 after months of rallies leading up to a well publicised finale – and even that number would be disappointing.

All the issues I raised in the above link back in March have proven to come to fruition – not that it would take anybody with a modicum of common sense and even the most basic understanding of Ukrainian politics and society any effort to come to that same conclusion.

When adding all the reported attendance numbers from all the rallies over the past 2 months, it doesn’t even get close to the gate numbers of Manchester United playing an average team on a very wet and cold Tuesday night at Old Trafford.

To be quite honest I still have no idea why the opposition embarked on such a strategy that was so clearly doomed to failure.  I still cannot deduce why I was asked to “rise” over the past 2 months just to now sit back down again – possibly until October 2015 when the next presidential elections are due.

There has certainly been no impact or identifiable causal effect from the “Rise Ukraine” campaign, other than to identify just how few people the opposition parties have managed to turn out during this time.

Hmmm.

Anyway, back to today’s “Rise Ukraine” (anti)climax of the 2 month campaign, which saw the opposition party leaders sign a joint agreement in front of a pitiful crowd of about 4,ooo people relating to the presidential elections in 2015.

This agreement states that all opposition parties will support any opposition candidate that makes it to the second round of voting in the presidential elections.

That is a significant change in rhetoric from the past few months where is has been consistently claimed that a single nominee from the United Opposition would run.

Now it seems rather than a single opposition candidate to run against the current incumbent from the very beginning of any presidential election campaign (in the first round), the opposition leaders have failed (unsurprisingly) to agree on one of them running for the top job with the unified support of the others from the off.

Thus the plan after the least popular two have been eliminated in the first round of voting, leaving one to go head to head with Yanukovych, is to then unite behind their last man standing for the second round of voting.  A cozy little agreement granted – but will the opposition voters turn out in sufficient number in the second round to vote for a candidate that is not the man they voted for, not from a party they voted for, and does not share the same ideology as the man and party they voted for in the first round only a few weeks previously?

As Klitschko never seems to tire of saying, there are ideological differences between himself, Yatseniuk and Tyahnybok, and the parties they lead.  That is also true of their supporters differing ideologies.

Time will tell if opposition unification around a single presidential candidate after the first round of voting, rather than prior to any voting, will prove to be a sound strategy – I have serious doubts that it is a good strategy, although I also have serious doubts (at the time of writing), that Yatseniuk, Klitschko or Tyahnybok will beat Yanukovych anyway (even with full transparency and on a level playing field – which they may not get).

And so to the impact and underlying realities of the symbolic signing of the joint statement of opposition leaders,  pledging to support each – other only when they themselves have been eliminated from the presidential race.

The underlying  and sad reality is, there is little genuine unity amongst the opposition.  The impact of this agreement is almost zero, given that when all is said and done, ultimately, the public will be faced with the choice between Yanukovych or another in the second round of voting – opposition agreement or not.

* * * * *

On a completely different subject, there will probably be nothing from me tomorrow as I am doing something for the BBC – and their filming may take some time as I am not a great fan of being on camera, so single takes are very unlikely.   Thus I doubt I will have the time or interest to blog after being “Beeb’d” all day.

Asylum, Schengen and proportional representation

Now here is an interesting little story – somewhat comical to a degree – which leads nicely into Ukrainian voting systems.

Andriy Shkil, a former Batkivshchnya (BYuT) MP of the previous parliament, has been refused asylum by the Czech Republic, a nation well known for granting asylum via the historical legacy of Vaclav Havel who rarely turned an application down.

Why did the Czech Republic refuse his application for asylum?

The answer lays within the Schengen Visa system.

Although free to travel anywhere within the Schengen area once a Ukrainian has a Schengen Visa, they have to enter and egress the Schengen zone via the specific nation that granted the Visa.  If Poland granted the Visa, a Ukrainian who wanted to visit Italy for example, would have to travel there and back via Poland.

Personally I don’t know a Ukrainian who isn’t aware of the rules – although undoubtedly there will be some.

Logic would dictate, following on from such basic rules, that if an individual is going to claim asylum somewhere within the EU, that also will necessarily need to occur in the nation that issued the Visa, rather than seeking asylum in any EU nation an individual may take a fancy to.  Ultimately, a nation issuing a Schengen Visa must have some responsibility for their decision to grant – or not – an individual entry, for it is their decision and not that of any other Schengen area state who may well have made a different decision.

And so, in a way, it is rather comical that a one-time parliamentarian – an individual supposedly bright enough to have been trusted in creating and supporting – or not – Ukrainian legislature, has tried to claim asylum in the Czech Republic on a Schengen Visa issued by France.

Naturally, had Mr Shkil been reelected to the current parliament, he would not be seeking asylum anywhere but enjoying the immunity and impunity being an MP brings – and the fact he is not in parliament today it is not because he was beaten in any constituency seat, but rather due to his very lowly place on the Batkivshchnya Party list when it comes to proportional representation.

The Ukrainian electoral system is a mixed electoral system where 50% of MPs are those who take office through what is officially called Single Member District Plurality (or First Past The Post as most would recognise it), and 50% of MP seats are in parliament due to how high they are placed on their party list vis a vis the percentage of the vote their party gets.

Naturally all the top places on party lists go to the leaders to insure their place in parliament without having to go through the rigors of actually standing against another in the first past the post system in a constituency seat – as they may lose and that would never do!

Placed at 87 on the Batkivshchyna Party list, either Mr Shkil was not willing to pay enough to those who make the party lists to be placed higher, or he was such a poor performer during his tenure that his placing was deliberately done to insure he would not return to parliament.  Given the high number of poor performers on most party lists, he was either simply out bid or truly useless beyond comprehension.

Anybody on party lists lower than position 50 are in a precarious position and are certainly not assured of representing a party in parliament.  87th on a party list is a clear signal you will not get your nose in the RADA trough.

Even if we look at the ways of manipulating the proportional representation part of the vote, 87th place would simply not have been high enough to reasonably expect a return to the RADA.

If we look at the independent form of mixed electoral systems, then the 50% of first past the post seats run completely separately and in parallel to the proportional representation 50%.  This system can lead, for example, to a party winning all the constituency seats and then half of the 50% of seats allocated by proportional representation – thus giving a party 75% of the parliamentary seats.

Alternatively there is the dependent mixed electoral system, whereby proportional representation places parameters on the system, thus is therefore somewhat dominant over first past the post.  For example if a party wins 40% of the national vote, then their party members who win their seats through the first past the post constituency elections take their seats, followed by a remainder from the party list until it reaches the 40% of the popular vote it won.

Yes there are occasions under the dependent system whereby a party may win more seats in the first past the post constituency seat elections, than it should hold under its share of the proportional vote count.  Should that be the case, these “overhanging” seats in excess of the proportional vote are honoured and the parliament extends to accommodate the additional MPs for that session – whilst everybody else is represented by their proportional share of the vote.

None of this would have helped Mr Shkil at such a lowly place on the Batkivshchnya Party list – and neither would manipulating the size of voting districts – as Ukraine, for the purposes of its proportional representation, is seen as one big district rather than allocations on a proportional basis by Oblast (county) level.

Quite simply, the smaller the district, the smaller the number of proportional seats available, and thus the higher the percentage of the vote needed to win a seat.  The larger the district, the more proportional seats available, the lower the percentage of the vote needed to win a seat – not rocket science (albeit political science summed up by the formula X  1/(X+1)).

Anyway, enough of that academic waffle – Mr Shkil is now in France duly seeking asylum there.  The question is, will France grant it given that it is not normally that accommodating compared to the Czech Republic – a nation that was obviously Mr Shkil’s first choice when submitting his asylum application.

A mixed day for the Ukrainian Ministry of Health

A day of contrasts for the Ukrainian Ministry of Health on Wednesday – albeit one with symptoms that runs through the current government.

Firstly and in a move lauded by Human Rights Watch, the decision to approve easier access and dispensing of pain killing drugs such as morphine to terminally ill people was approved.

“This is a major advance, ensuring that Ukraine’s drug policy addresses the legitimate needs for medical opiates for pain relief.  Tens of thousands of patients who are in pain will benefit from this reform.” – Diederik Loham, Human Rights Watch

Some pain relief for a nation all too often decried for its human rights issues.

Thus it should have been a good day for those within the Health Ministry, and in particular the Health Minister Raisa Bogatyryova.

Raisa Bogatyryova

However whilst Human Rights Watch was quite properly lauding the aforementioned decision, the cancer called corruption, a systemic disease that cannot have the pain dulled by morphine, was simultaneously being called to account in relation to the Health Ministry by the RADA.

With the Communist Party unusually siding with the opposition, a vote was taken and passed to create a parliamentary committee and inquiry into corruption within the Health Ministry and opaque purchases of UAH 203.48 million of drugs from certain companies.

One has to strongly suspect that once the biopsy of the opaque drug purchases has been made, more than a hint of corruption will be found in the system of the Health Ministry.

The question then arises over whether the infected parts can or will be efficiently surgically removed and if so, whether remission will be a long lasting result.

Sadly, I fear not!

European Commission takes the next step in allowing for Ukrainian Association

Not at all surprisingly, on Wednesday 15th May, the European Commission took the necessary steps to draw up the documentation allowing for the Commission and Member States to sign the Association Agreement (and DCFTA) during the Vilnius Summit in November.

Such things do indeed take time when 28 nations have to agree to every word, phrase and punctuation mark on any document such as this.  Failing to do this now, and still have all national capitals agree with what is stated in time for November, would be something of an ask considering just how unwieldy the EU machinery is.

Naturally Ukraine is nowhere near dealing with all the issues that the EU institutions have demanded – but it has made some progress and may possibly address in their entirety, or significantly advance, many if not all of them prior to Vilnius in November – possibly to a degree where signing could be accomplished.

That is not withstanding the media headline issue of Ms Tymoshenko, who looks set to still be in prison by November.

The question is really whether the issue surrounding her will prevent any signing.

It is, after all, not that the EU or its Member States consider her innocent – nobody has commented on her guilt or innocence (officially) – but an issue of “selectivity”.

Now, there are those within the EU who feel that the Tymoshenko issue should not prevent the signing of this document – particularly given the year or two (minimum) it will take to ratify throughout all Member States – and thus a political lever of “ratification” can still be used against Kyiv over the Tymoshenko issue.

For example, it is becoming quite clear that influential States such as Poland and Sweden want the agreement signed whether Ms Tymoshenko is in jail or not – and it seems their lobbying on this issue is having some effect in Berlin over recent weeks.

There is also the old problem of interests verses values to consider – and with almost all EU economies in recession once more – and Germany only posting a +0.1% growth rate for the first quarter of 2013, opening up parts of the DCFTA on the basis of a signed agreement (if not ratified) will not do Europe any harm when it comes to easier trade and lower customs tariffs, thus increasing access and lowering prices respectively, with 46 million potential customers.

Will EU economic interests trump EU values as far as Ms Tymoshenko is concerned – even for a percentage point bump in economic fortune?

Is Berlin’s apparent softening due to Swedish and Polish lobbying, or the dire current German economic growth rate – or both?

Will Berlin actually soften enough to allow the signing by November – and how will the German elections in September change matters if at all?

There are also two sides to every “values” coin.  Should Ukraine as a nation be held at arms length over the singular issue of Ms Tymoshenko where it seems likely little progress will be made?  Will the Ukrainian public turn its back on the EU if that happens, considering themselves abandoned by the EU?  What of all the millions of Ukrainians who believe her guilty regardless of the standard of the trial or the selectivity of the prosecution?  The mass mobilisation of the public in her support has been noticeable by its absence.

Even the Untied Opposition, UDAR and Svoboda make only scant reference to her these days – albeit with on eye on the presidential election horizon, one suspects they would see her release as something of a fly in their ointment for several reasons.

It really is quite tough to call regarding the signing – or not – of these documents.  At the moment I am inclined to say they won’t get signed, although it would not take much to tip me over to a more positive view – and if 24 hours is said to be a long time in politics, then 6 months hence is  still too hard to forecast.

Transparency in political fortune – Bill 2837

It is and has never been a secret that Ukrainian politicians have always, and still do, see politics as a way not only of insuring the retention of their personal interests against others who may like the look of them, but also to use their position within the most elite business club in Ukraine to expand their interests, often across party lines – after all why let political party lines stand in the way of personal interest.

There has to be a reason to pay up to $5 million to get onto the “party list” and allocated a seat in the RADA after all – and $5 million is the price of a RADA seat offered to my good lady by BYuT in 2007, despite her absolute loathing and complete and utter disinterest in politics.

That $5 million, the sales pitch goes, will be quadrupled at least during a 5 year parliamentary term – an excellent return on investment.  A mere $100,000 would buy a seat in the regional legislature, which although not adding multiple millions in return for your investment, would certainly leave her a $ millionaire at the end of any term.

Naturally anything she did not want to declare could be assigned to my name and the usual annual income return for public officials farce would continue with all declaring an absolute pittance in comparison to the real incomes – something that still happens today due to hiding wealth, assets and income via family members amongst other shenanigans.

However, this may well be about to change.

Bill 2837 was submitted on 14th April 2013 which will go some considerable way to changing and limiting the ways of hiding real earnings and personal worth for politicians and state officials.

Granted it may not stop the shenanigans any more than tax avoidance laws gather in more tax – avoidance systems simply become more complex.

However, this bill is jointly drafted by Petrenko, Chumak, Tigipko and Mahnitski – 4 MPs form different parties amongst the 5 of relevance in the RADA.  Thus with cross-party authors there should be enough cross-party support to get this bill through its first reading which is due immanently.

It is quite a radical bill in terms of the transparency it may bring about in comparison to the current opaque methodology.

There is a citizens corruption  register (open to all citizens), big changes in the amount of, and reporting methods relating to, expenses paid for by the public purse, and perhaps most interestingly, the incomes and assets of public officials and their family members must be reported – including those family members who do not live with the public officials a favoured way of hiding personal worth of the officialdom.

Now it maybe that this bill will not change much in respect to actual transparency once ways to circumvent it have been discovered and organised – however it will be interesting to see if the bill will be adopted given the spirit in which it has obviously been drafted and the attempt at transparency it intends to install.

I expect it to pass, despite the fact it is not perfect having read it.

Klitschko talks of time running out and personal sanctions

Only a few days ago, I mentioned a statement from Stefan Fule relating to no time extension for Ukraine to meet EU expectations in November.

As I stated, despite the bullish tone, this has far more to do with the European political calendar preventing any extension, rather than Stefan Fule developing a rigid, rather than flexible, backbone.

Let’s be quite honest, after 7 difficult years of negotiation for both sides – including some serious concessions by Ukraine – the EU would not normally throw that away for the sake of a few months if there were a few additional months in the political calendar to play with.

The fact is, due to national elections in very influential member states, notwithstanding the European parliamentary elections during the next 2 years, quite simply there is not much room, if any, to allow any political deadlines to slide for a few months.  A few years – yes.  Look to 2016 at the earliest after German, European parliament, French and UK elections to name but a few – including Ukrainian presidential elections.

Allowing any signing to slide until then, naturally removes the desire for political momentum on either side – raising the question of whether that momentum can be regained several years from now.

Even if the Association Agreement and DCFTA is signed in Vilnius in November, due to the same European  political calendar, ratification will still take years for the same reasons.

All blatantly obvious to anybody with half an eye on the European political electoral calendar.

Unfortunately, this seems to an issue completely overlooked by the opposition in Ukraine if Klitschko’s recent comments are anything to go by:

“Even if the association agreement is negotiated and signed, in order to have it ratified by all the EU countries, Ukraine has to comply with the basic political values and principles of the European Community, such as the rule of law, the absence of selective justice, real reforms, and democratic electoral law. To achieve this, Ukraine has much to do and the time is very short.

For our part, we, as the opposition, are pressing on the authorities to make them meet the commitments so that the country should not lose the chance to join the European community. If the Ukrainian authorities fail to adhere to the commitments, the issue of personal sanctions against officials cannot be avoided.”

Firstly, when looking at these comments, it has to be said that negotiations have concluded some time ago – indeed the agreements were initialed by both sides in March 2012, thereby effectively sealing them to major and significant amendment.  Thus it is a question of singing the already initialed agreements and no longer negotiating as Klitschko states.

The second paragraph in which he makes reference to personal sanctions on members of the existing government should it fail to adhere to those commitments is really not something that the opposition are likely to achieve – and they must surely be aware of that given the interaction they have with th EU and its member states – so why say it?

What are the chances of the EU placing sanctions on Ukrainian officials – seriously?

Not only are the outcomes of sanctions hit and miss and lengthy when it comes to getting any result, they are actually fairly limited in their scope.

Looking at EU sanctions, they consist of arms embargo, economic and financial sanctions and visa/entry restrictions.  No more and no less.

EU sanctions have proven to be of little impact to those individuals within Belarus to whom they are applied.  They are not being very seriously considered as far as a mirror of the US Magnitsky Act in respect of Russia and persons therein.

Applying EU sanctions to individuals within Ukraine, without for example, applying them to fellow EaP nation  Azerbaijan or individuals within government circles there – which has a far worse democratic, human rights, repression of freedoms and electoral manipulation record – would be difficult to justify to the European public.  Particularly so given the lack of impact and results in Belarus.

There is also a lack of EU diplomatic will to raise sanctions on individuals in Ukraine.  Only recently I spoke with somebody in the Brussels bubble (Chatham House Rule applied), and he stated that sanctions are not the way forward.  They are difficult to gain consensus over to implement, and even harder to then garner the consensus to  remove – and Ukraine has its supporters within the EU that would make gaining consensus over sanctions very difficult.

It is somewhere that sufficient numbers of EU bureaucrats do not want to go with regard to Ukraine.

Now if I am reliably informed of this, then surely this must have been made very clear indeed to the likes of Mr Klitschko and the other opposition leaders, who will have undoubtedly raised the issue several times – so why raise the issue again publicly if there is a high probability that it simply won’t happen.

When – as will more likely than not – sanctions against individuals are again publicly called for by the opposition, and again rebuffed by the EU – with a presidential election in Ukraine now on the horizon, how would any refusal reflect on the ability, authority and perception of international influence of any opposition candidate be in the eyes of the Ukrainian electorate?

There is much to be said for timing.  Being right and/or decent is not enough to win an election.  There is the overriding need to be convincing.

Time is indeed running out, not only for Ukraine to have progressed enough to allow the signing of the Association Agreement and DCFTA, but also for the opposition to stop the political showboating and empty rhetoric.

It is now time for the opposition to prepare their own political, economic and social policies ready for an effective delivery to the electorate by whomever is put forward as an opposition presidential candidate.  To frame their election campaign as “We were bad when in power, but they are worse” is really not an inspiring electoral campaign – and yet that is all that is currently on offer.

The first to frame the elections in a better way than that, will probably keep the upper hand.