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.

No deadline extension for Ukraine – Fule

Yesterday, Stefan Fule EU Commissioner for Enlargement and Nighbourhood Policy, clearly stated that the EU will not extend the time it has given for Ukraine to address the issues of serious concern to the EU when it comes to the signing – or not – of the Association Agreement and DCFTA.

“First of all, we have never postponed the deadline for Kyiv. Foreign ministers of the EU countries in December clearly stated that they would be ready to sign the association agreement at a summit in Vilnius in November. However, they specified three sectors, in which they expect decisions from Ukraine through consistent and obvious efforts,in particular selective justice, the program of reforms and flawed electoral laws.

We see some progress the Ukrainian side made in all the three sectors, including politically motivated proceedings. The release of Lutsenko and Fylypchuk  is a step in the right direction. However, much is to be done, including the guarantee that this phenomenon won’t happen again.”

A statement they may seem rather bullish – but in reality is actually dictated by the electoral timetables of several EU Member States and European Parliament elections due to occur in late 2013, 2014 and 2015, events that naturally divert attention away from issues Ukrainian and concentrate EU attention of “the self” and its component parts.

Simply put, no matter how bullish the statement of Fule may appear,  if the agreement is not signed in November, the European political calendar simply dos not allow for any such signing until 2015 at the earliest.  Any later than November and there will be significant political actors that if not at the end of a legitimate domestic mandate, are just finding their feet under a recently acquired domestic public mandate – issues of legitimacy and all that!

However, all that aside, I am not aware of any serious requests from Ukraine to extend the November deadline anyway – which causes one to ponder the need for such a statement from Fule – other than keeping the pressure for reform momentum on, and forcing the majority and minority in parliament to work together at least over matters EU.

Closed door meeting over Ukraine – Strasbourg 18th April

Not for the first time there is to be an official and rather important closed door meeting over Ukraine amongst EU leaders to discuss reports by the Cox-Kwasniewski mission to Ukraine.

The last such meeting occurred on 2nd October 2012 and neither the report nor the minutes of that meeting have ever been made public.

Whether the latest report or minutes of the meeting on the 18th April will be made public is unclear, but if it follows the precedent of the last report then it will remain something the public are not deemed  suitable for inclusion – despite the fact this report will quite clearly be a key document in the decision or not to sign the AA and DCFTA in Vilnius in November.

Further, a decision on whether to extend to Cox-Kwasniewski mission to Ukraine will be taken.

Adamantly against its extension is Elmar Brok the head of the Foreign Affairs Committee for the European Parliament and Rebecca Harms of the Green Party – both German if that means anything.

However there are those adamantly in favour of extending the mission until the Vilnius Summit.  It is likely to be a fractious affair – and with every man and his dog keen to take the credit for the release of Lutsenko and Filipchuk, no doubt the supporters for the extension of the Cox-Kwasniewski mission will claim (possibly quite rightly) that it is they, rather than the claims of the United Opposition and those of civil society that were most effective in engineering their release.

After all, the word “effective” can be associated with very few in civil society or the United Opposition when it comes to influencing the views and decisions of President Yanukovych.

Ergo, the Cox-Kwasneiwski mission has brought results – albeit eventually – the lack of which had been a major criticism of (the rather inflated egotistically, by way of ability and quite literally) Elmar Brok.  A major argument to end the mission now, due to lack of headway, if not removed from his arsenal then far less potent.

With Vilnius seen (even if not entirely accurately) as make or break for EU/Ukrainian relations for the next few years, the question has to be asked, conceding that some momentum has been gathered and results achieved, is it wise, literally for the sake of an additional 6 months, to disengage their mission now?

What signals would either continuing or ending their mission give considering there is little hope that their key report is unlikely to be seen by the public?

Perhaps the most important question, regardless of whether these agreements are signed or not, is how to keep any momentum going in the immediate period after the Vilnius Summit with major elections in 2014 and 2015 in the European Parliament and several influential nations driving EU/Ukrainian relations – including of course – Ukraine?

New model for Ukrainian judiciary sent to Venice Commission

Not that long ago I wrote an entry relating to the almost forgotten entity that is the Constitutional Assembly of Ukraine.

Well, the Constitutional Assembly has now sent the Venice Commission its draft for amendments to Chapter VIII (Justice) of the Constitution of Ukraine, a draft that proposes a new judicial model – a model that takes into account most of the previous recommendations of the Venice Commission – apparently.

Of particular note, not to say importance, is the creation of a body to be called the “High Council of Justice”, created from within the judicial system, with members appointed by the members of the judiciary, rather than by parliament or president.

A major step towards a truly independent judiciary – not withstanding the dark and foreboding shadow relating to the fact that politicians in Ukraine currently still appoint and dismiss judges – a fact that necessarily undermines judicial independence – and that any members of this new body will be there, initially at least, due to the political patriarchy that has placed them where they are today.

Another major inclusion is the removal of immunity (and de facto impunity) of judges.  They will be subject to the  laws they interpret and service, just like every other citizen in Ukraine (except the politicians who are yet to vote to remove their own immunity (and de facto impunity)).

Let us hope that the Venice Commission is swift in its appraisal of the submitted draft, finds the vast majority of it acceptable – if not all of it – and returns it for RADA consideration expeditiously whilst there remains some political  momentum to try and appease EU sensibilities.

Italy to open Consulate in Odessa soon

A very short and sweet entry today.

Yet another diplomatic mission will soon open in Odessa – this time Italian - which will please the good woman if it has the ability to produce Visas, as Italy is a nation that particularly attracts her for reasons of history, architecture, food and of course fashion.

Very good.  That makes half a dozen Consulates opened in Odessa in as many years and leaves Odessa housing close to 20 diplomatic missions.

Naturally the UK isn’t one of them – not even an Honorary Consul, despite an ever growing and vibrant local diplomatic community – but I have come to expect nothing less.

Great expectations? – Errr No! (EU/Ukraine summit)

OK, having employed a Dickens title within this post title, I will now quote from a Tale of Two Cities – just to keep you Dickens fans on your toes.

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way – in short, the period was so far like the present period, that some of its noisiest authorities insisted on its being received, for good or for evil, in the superlative degree of comparison only.”

And so it is with Ukraine both domestically and further afield.

On 25th February, Ukraine and the EU have a summit.  Summits when they occur usually like to produce signed agreements to show they were worthwhile in the eyes of a usually disinterested or politics weary public who foot the bill for such events.

Signed agreements are a politicians, bureaucrats, technocrats and occasionally diplomats way of apparently justifying such events to anybody who will listen.

So what of the EU/Ukraine summit?  Well if anything gets signed, it will be a case having “something” to sign – anything – so whist they disagree and make very little headway over these serious and complex issues, they did agree on these minor and irrelevant points- and signed an agreement to prove it – despite its irrelevance and despite such agreements would otherwise be signed by far lesser beings than Presidents.

This undoubtedly will be the case on 25th February – at least as far as signed agreements go.

Of far more significants, is what headway if any, will be made over the issues that are difficult (for one side or the other), that do have entrenched positions, and that have publicised those positions to the extent that there is very little wiggle room for any party in either  re-framing demands, or accepting some form of movement – but not quite enough.

Can we realistically have great expectations from the next EU/Ukrainian summit that will take relations forwards to the satisfaction of both sides?  I very much doubt it.

What I expect, aside from the signing of a few agreements of irrelevance, is the search for wiggle room on both sides in order to make some progress, possibly enough, to make the signing of the EU DCFTA and AA documents a reality in November.

Certainly there will not be anything like the significant movement to make ratification of those signed agreements possible this year or next – and even if there were – ratification is still unlikely due to elections in the European Parliament and Germany to name but two where the outcomes of which may have significant implications for ratification.

Ergo anybody with a modicum of sense will know that there will have been a presidential election in Ukraine in 2015 before ratification of this agreement even becomes close to reality, or another attempt to muster the political will on either side is found to try and sign it again – no matter what happens in Vilnius in November this year.

The question is then only whether Ukraine will stand firm against the ever increasing Russian pressure it is under.

Whatever diplomatic and political wriggle room remains, will be a precious thing indeed to both sides for this forthcoming encounter in preparation for November.  Look not to the fluff that may be signed, but the the efforts of the staff in the boiler rooms to expand and exploit any wiggle room within both entities as November moves ever closer.

How best to play the interests verses values matrix with such overt Russian pressure as a complicating factor?

Thus we must also watch the hand of the Kremlin as it attempts to win this geopolitical battle – if not by getting Ukraine to join the Customs Union, then by at the very least, forcing it to abandon the EU – or the EU to abandon Ukraine – temporarily or permanently.

Can enough wiggle room be found within the EU/Ukrainian camps to allow for signing if the specter of Moscow’s shadow looms too great – regardless of progress?

We will soon find out – but not on 25th February.

Prophetic and too hopeful – A reassessment of an earlier post “5+2 Lviv meeting – Frozen Conflict progress?”

Only six days ago, I wrote this entry entitled “5+2 Lviv meeting – Frozen Conflict progress?“

It relates to a conversation I had with several people over lunch from Moldova and Ukraine in Odessa, and the prospects of some positive momentum in the protracted issues on the Ukrainian border between Moldova and Trasnistria.

Two days ago, I received an email from a reader drawing my attention to the very last line of that entry – “assuming the Moldavian government can hold it together that long! ” – Something quite prophetic considering within the last six days, we have indeed seen the Moldavian government collapse.

The question in the email was simply how did I know?  The simple and honest answer is I didn’t know – but given the amount of political turmoil Moldova forever seems to find itself in, it appeared to be a caveat worthy of inclusion regardless of the chances of any collapse occurring before the Lviv 5+2 meeting.

Thus prophetic I am not – wise enough to consider any possible collapse and include in the entry, well maybe so.

To prove just how blind to the future I am, I would suggest you, dear readers, take a moment to reread the above entry via the link, and then read what I am about to write – which will probably bring my rather hopeful post crashing back down to reality with an unceremonious and rather abrupt bump.

Firstly, despite the glee of the Moldavian Communist opposition party at the collapse of the pro-EU ruling coalition, does the government’s collapse actually change the position of Moldova relating to Transnistria?  After all, it was still an issue for the Communists when they were in power in Moldova – despite both the Communists and the leadership of Transnistria having a prima facie preference for the Kremlin rather than the EU.

That said, as the EU will be very unwilling to have Moldova enter its ranks with an on-going protracted conflict -  (lessons learned from the Cypriot entry one hopes) – thus the real political will to resolve the issue under Communist rule may very well have be missing despite any rhetoric.

None of that however, seems equal to the very recent and significant spanner that Russia has seemingly thrown into the works – undoubtedly with the limited real purpose – in part – of insuring Ukraine fails to achieve what is one of its headline OSCE chairmanship issues – progress in the OSCE regional frozen conflicts.

One more stick to beat Ukraine with and cause international embarrassment in failing to make progress with a Ukrainian nominated headline OSCE issue.

What is the said spanner I write of?  Well, as I wrote in the afore linked post, there were issues I was not prepared to write about – then.  Some I considered too sensitive.  However with the subsequent fall of the Moldavian government a few days ago and where that leaves the Lviv 5+2 talks, it seems right to enlighten readers on one or two matters.

Russia has tried, with no success, to open a Russian consulate in Transnistria historically.  Something that would have complicated matters greatly as it would at the very least, diplomatically and politically be an overt recognition of Transnistria’s absolute autonomy from Moldova by Russia.

Now, not to be defeated, Russia has a different plan which will be equally as problematic when it comes to any solution other than, at the very least, the absolute autonomy of Transnistria.

The Transinistria government has property within the capital of Moldova, Chisinau.  It has given a small building to the Russian government who plan to open what is in effect going to be a consulate on what will probably be seen as Trasnistrian soil in the Moldavian capital.

This office is due to officially open, I now understand, at the end of the month and at least four Russian diplomats are already in place with the express aim of creating parity between Transistrian and Russian laws and regulations.

Thus it is quite clear that any hopeful scribblings I wrote only a week ago, are very likely to turn to dust as Russia sets out to scuttle any form of progress – and indeed probably complicate matters further – in what undoubtedly is in whole or in part, a deliberate sabotaging (one of many, and likely to increase in force and number this year) of Ukrainian policies, for refusing the Customs Union and still loudly shouting pro-EU rhetoric – even if that all turns to dust before November’s Vilnius summit – and it may very well turn to dust too!

Another summit with no progress, together with the collapse of the pro-EU coalition government is also likely to have implications for the signing of a DCFTA between the EU and Moldova.

Russia, it would appear, has, and is taking, the opportunity to undermine and increase pressure on two FSU nations who, currently at least, continue to make favourable pro-EU statements about their direction rather than favourable statements about heading into the Customs Union.

That Russian pressure will only increase between now and November for both Ukraine and Moldova.  It’s going to be a long, diplomatically and politically fraught summer in this part of Europe for sure!

Pushing against an ajar door – Ukraine and the Rome Statute

Amongst the 100,000 or so readers this blog gets each year, there are readers of many backgrounds and of many varied interests.  They range from those chasing the fantasies purported by marriage agencies, those considering retiring to Ukraine, those seeking business opportunities here etc, to the other end of the spectrum of diplomats, politicians, civil society and academics engaged in, or with a serious professional interest in, Ukraine.

Outside of this blog, I have indeed contributed to several research papers, academic essays, books et al., for those who have asked for my input in relation to Ukraine.  In recent years many such requests have been a direct consequence of my ruminations appearing on search engines and grabbing the would-be author’s attention.

Thus I try to refrain from writing in “Academese” and losing one part of the readership, whilst also keeping the blog fairly well written and giving the impression to those more academically qualified that I am not a complete dullard.  Occasionally I fail both camps – but this is free and something I do as a hobby for 20 minutes a day.  Professional and high quality work is something you pay for – and nobody pays me.

Anyway, a few days ago I received an email from Kirsten Meersschaert Duchens, the Regional Coordinator for Europe for the international organisation Coalition for the International Criminal Court.  Kristen, it appears, has been a follower of the blog for about a year.

In short, an attempt to rally the politicians, civil society, academia and media in Ukraine will occur in the near future to try and provide momentum in Ukraine to become a ratified signatory to the Rome Statute.

To save you a long read, in a very brief nutshell, the Rome Statute created the International Criminal Court to deal with the most abhorrent large scale crimes humanity inflicts upon itself.  Namely the crimes of genocide, crimes against humanity, war crimes and the crimes of aggression – I will return to “crimes of aggression”!

So what’s the problem for Ukraine here?  It has not engaged in war crimes, crimes against humanity or genocide and neither has it committed any crimes of aggression since the ICC was founded – and the ICC has no jurisdiction over acts committed prior to its creation as per the Rome Statute.

Despite all its faults, Ukraine has, and still does, take its commitments to the UN very seriously – as you would expect from a founding member state – and the UN occasionally refers cases to the International Criminal Court.

Well, the problem is that the Ukrainian door is only ajar as far as the ICC is concerned and cannot be fully opened under the current circumstances.

On 20th January 2000, Ukraine signed the Rome Statute and on 27th January 2007 it acceded to an agreement on the privileges and immunities of the ICC – however it has never ratified its signing of the Rome Statute in 2000 – prevented in doing so by a Ukrainian Constitutional Court ruling on 12th July 2001, that stated amendments to the Ukrainian Constitution would be required to do so.

The constitutional “issue” being the provision stating that “an International Criminal Court is complementary to national criminal jurisdictions” (paragraph 10 of the Preamble and Article 1 of the Rome Statute) as eloquently made clear here by Viktor Kryzhanivskyi on 2006, the then Ukrainian Charge D’Affaires to the UN.

That being the only issue within the Rome Statute preventing Ukrainian ratification (despite mention of the loosely worded “crimes of aggression” court competence – a competence which is likely to be in part responsible for US, Chinese and Russian non-ratification. – As an aside a very interesting recent commentary on the US love/hate relationship with the ICC here).

Those few words in the Rome Statute preamble have, and currently still are, preventing Ukraine ratifying a statute it otherwise agrees with and supports – After all, when you are never likely to fall foul of this statute as a nation or national leader, supporting an international court that prosecutes those who do, is not a particularly difficult position to adopt.

Thus Ukraine remains a supporter of the ICC and continues to state it will – eventually – ratify the Rome Statute.

The Ukrainian difficulty is that it is not particularly easy to change the Constitution of Ukraine – necessarily so given past and current self-interests of Ukrainian leaderships I would add – although it would be a simple matter to change the wording of the constitution to allow ratification of the Rome Statute.

And so, what of the Arseniy Yatseniuk suggested and President Yanukovych initiated, Constitutional Assembly created in May 2012, headed by ex-President Kravchuk and Yuri Shemshuchenko?

Well, what indeed?  Who of the supposed 94 academics (not withstanding political party representatives) do you lobby to insure that any changes to the Ukrainian Constitution, if they ever come, will allow for Ukraine to eventually ratify a statute it signed up to 13 years ago (and counting)?  How many on this select panel are outward looking rather than simply looking domestically when working on this document?

How long before the multitude of changes required in the Ukrainian Constitution even leave this academic/political bubble and reach the stage where what is likely to be a long list of recommendations can be debated in the RADA and subsequently actioned?

Which Ukrainian NGOs, academics and civil society personalities will get on board with an issue that has very little effect on the Ukrainian citizen, and if they do how will they reach them from their own exclusive bubble all to often divorced from Ukrainian society?

Which media partners will champion such a cause when there are so many domestic problems in Ukraine – particularly when there is no speedy solution via the Constitutional Assembly in sight and long term issues generally do not sell news.

Food for thought when it comes to who, what, where and when.

Certainly 2013 is a year for impact as far as Ukrainian politicians and diplomats go on the international stage due to the OSCE chair Ukraine currently holds.  It would be remiss not to push the Rome Statute issue during this time – particularly as genocide, war crimes, crimes of aggression and crimes against humanity can all be cast as “security issues” and thus fall under the OSCE remit.

A nation as the current  OSCE chair and founding UN member state that won’t/can’t ratify an international statute for a court dealing with such abhorrent crimes – despite the fact it has never been accused of, and is never likely to commit such crimes (and thus no self-interest to protect)?  Not the kind of issue you want raising loudly and publicly necessarily.

Cynically, a nation with a reputation of having such a politically controlled and malleable judicial and legal system that is always being cast in a nefarious light, you have to ask why, for once, Ukraine cannot “facilitate” another look at the 2001 Constitution Court ruling and emerge with a “different interpretation” and outcome for the greater good – an outcome that would be welcomed by the vast majority of its neighbours?

Maybe the place to start lobbying is the Presidential Administration?  An easy international human rights political win, would seem well within reach should a decision to “revisit” the 2001 Constitution Court decision on the Rome Statute be forthcoming, thus removing the need for any change to the constitution at all in this instance.

Whatever the case, I will lend my wholehearted support to  Kirsten Meersschaert Duchens and the Coalition for the International Criminal Court in its efforts to get Ukraine to ratify the Rome Statute.