Russia upping the anti (anti-Ukraine anyway)

Well what can you say. New Russian president, old Russian tactics.

Since Mr Putin has reinstalled himself in the Kremlin, and I have nothing against that per se, he probably was the most popular politician even if it is not necessarily a good thing for Russia, several interesting events have occurred in relation to Ukraine.

Russia ended its “cheese war” with Ukraine just prior to his inauguration which was seen as a generally positive move. Ukrainian cheese can now be imported into in Russia again. A welcoming carrot from the new Russian President prior to taking office it seemed. Now however, maybe it was a goodbye carrot offered by the out-going Mr Medevedev.

Why do I say that? Well since Mr Putin’s taking office (again), the only Ukrainian oil rig currently being moved around the Black Sea, was banned from Russian waters, despite in doing so it meant a far more hazardous route via Turkish waters. Not an especially nice gesture from the “new” Kremlin administration.

Ah – It’s energy politics and just Russia showing its displeasure at Ukraine finding its own (and alternative) sources of oil and gas, I hear you say. Well yes maybe so.

Only a few days ago, President Yanukovych was invited to an “informal” meeting of the CIS nations by Mr Putin. Once again the Ukrainian president pooh-poohed the idea of any form of consortium involving the Ukrainian gas transport system that did not involve the EU as well. In effect if there is to be foreign involvement and investment in the Ukrainian GTS, it is going to involve producer (Russia), transporter (Ukraine) and end user (EU). To be fair to President Yanukovych, that has been his position since taking office and it has not altered despite intense Russian pressure.

Once again at this “informal” meeting, President Yanukovych repeated the Ukrainian position, reaffirming it had not changed. Neither had Ukraine’s position relating to an EU rather than Eurasia Union direction changed either. To be quite honest, without Ukraine I fail to see just how Mr Putin’s Eurasian Union will actually become a reality in anything other than name.

So, having met with the “new” Russian President and stated once again (and it is a record that the Russians must be tired of hearing by now), the Ukrainian position on various subjects, President Yanukovych returned to Kyiv having given very little good news to Mr Putin over his major projects and ideas when it came to Ukrainian inclusion.

Rather unsurprisingly then, on Friday 18th May, Russia’s Supreme Court decided to ban all Ukrainian Associations, (a Ukrainian NGO in Russia) from lawfully existing.  Now there is one month to appeal this ruling, or should I say there is one month for Ukraine to submit to Mr Putin’s will, or Ukrainian NGOs in Russia will suffer.

This puts Kyiv in a difficult position.  It cannot simply allow Russia to close a Ukrainian NGO like the Ukrainian Association.  To do so will upset a lot of voters (who probably wouldn’t vote for the current majority anyway, but you never know) in the run up to the Ukrainian parliamentary elections in October.  The nationalists and opposition parties simply won’t allow it to go unnoticed that Ukrainian culture and Ukrainian NGOs are under severe pressure in Russia and the current government are doing nothing about it.

Also the current government do not want to appear weak.  However they also do not want to appear to bend to Mr Putin’s will.  The question Kyiv now faces is how to pacify Mr Putin without compromising Ukrainian interests abroad, in particular in a neighbouring nation.  If the price to pacify Mr Putin is simply too great, then Ukraine will have to take some retaliatory action.  Simply doing nothing is not an option given an election on the horizon.

Retaliation however, may (or may not) upset a large number of the Russian speaking Ukrainians in the East who generally vote for the current government and not the opposition.

A difficult position for Kyiv given both the domestic politics here and Ukrainian/Russian relations already mired with gas problems on numerous fronts.

This issue could well turn into a bellwether for bilateral relations in the next month.  If the Russian Supreme Court changes its decision, we have to ask why?  If it doesn’t, we have to see how Ukraine reacts and what the consequences of that retaliatory action will be.

Will Ukraine/Belarus relations suddenly take a turn for the worse when Mr Putin makes Belarus his first official visit abroad as President of Russia?  For sure Belarus has nothing left to sell/give to Russia by way of State owned infrastructure, but it does have a border and does trade with Ukraine.

Keep an eye on this story as it has the potential to be far more important that it initially seems!

The opaqueness of transparency. EU and Ukraine‏

Sometimes life can appear somewhat bizarre.
As Ukraine takes slow and stumbling, often misplaced steps towards legal parity with the EU Member States, amongst the myriad of laws that have passed through the RADA and received Presidential signature recently, there have been laws on such matters as data protection and freedom of information.

Freedom of information is supposed to be a presumption within the EU machine under Article 9 and is also enshrined in sovereign law in many EU nations as well. The current Ukrainian government’s law on access to information goes a fair way to meeting this particular integration issue and thus national and EU laws would seem to have little conflict in this area now.

That was until 4 May 2011. Unbeknown to the majority of the EU public and indeed the majority of EU parliamentarians who were not even consulted as the issue falls outside of their parliamentary remit, (the EU is a complex structure and a place where EU parliamentarians often have no say despite being the only elected representatives in the EU) the 27 EU Ambassadors from the 27 member states signed an agreement that would seem to put pressure of the presumption of access to information under Article 9.

Article 9 protected only documents classified as “Confidential”, “Secret” and “Top Secret” before. There was no “Restricted” classification of information that is a routine fourth classification in the UK for example.

So what is the definition of “Restricted” as per this newly signed-off agreement?

The definition is applied to any information of which the disclosure could be “disadvantageous to the interests of the European Union or one or more of the Member States.”

That is an extremely broad definition.

Would Greek finances have been classified as “Restricted” and never released to the public to prevent the current Euro turmoil? Would the never signed-off EU accounts be restricted as they not only display corruption and a severe lack of audit accountability, but also strategic investment in specific nations that would have implications for security of various types.

What happens if there is a freedom of information request granted in a sovereign nation and then an injunction placed against it because the information that would willingly be released by a sovereign nation is “disadvantageous to the interests of the European Union or one or more of the Member States”?

Thus far the agreement, whilst not law per se, has been signed-off by the 27 EU Member States, but what of the broader EU associations, such as that which Ukraine and the EU currently expect to initial by the end of the year?

Ukraine may well have, and indeed need, access to “Restricted” information from the EU and likewise the EU from Ukraine particularly in the areas of defence, having just joined an EU Battle Group, and especially in the area of trade due to the DCFTA. There is just as much sensitivity in matters of business as in matters of government and many negotiations and subsequent deals will be of a “Restricted” nature. Non-disclosure and non-circumvent (NCND) contracts or particularly sensitive bilateral agreements between Ukraine and a particular EU state to the detriment of another EU state?

In some circumstances a mere acknowledgement of an issue could theoretically break the nature of “Restricted” under such a broad definition that has been given to “Restricted” under the new agreement. There seems to be guaranteed friction between sovereign freedom of information requests which involve more than one EU nation and the publics right to know what their nation is doing within the EU.

The definition is so broad that issues relating to a single EU nation’s interaction with a non-EU nations would also be covered if it was classified as “Restricted”, which would directly relate to Ukraine and any EU involvement today, be it as “The EU” or simply with an EU Member State.

The question then is how does the EU expect restricted access to information when Ukraine is not a signatory and now has, at EU expectation, passed freedom of information laws? Will it come down to a test of the voting publics desire to know verses international/EU diplomatic pressure to keep any “Restricted” information restricted? Not exactly a satisfactory state of affairs for either Ukraine or the EU.

As it is an agreement and not an EU Law, are we to now have to hope for parliamentarians across the EU nations to raise “Restricted” matters in parliament using their parliamentary privilege in order for the media and the public to know what is happening?

Does this new and quietly signed agreement deal with such matters? Hardly!

Within the new agreement, Article 3.2 states:

“Nothing in this Agreement shall cause prejudice to the national laws and regulations of the Parties regarding public access to documents, the protection of personal data or the protection of classified information.”

However, Article 3.1 within the same agreement states this:

“The Parties shall take all appropriate measures in accordance with their respective national laws and regulations to ensure that the level of protection afforded to classified information subject to this Agreement is equivalent to that afforded by the security rules of the Council of the European Union for protecting EU classified information bearing a corresponding classification marking as set out in the Annex.”

So which is it? Is there an erosion of Article 9 and the presumption of access to information or not?

As matters involving Ukraine will have a direct and clear affect on all things EU and bilateral matters between Ukraine and any specific EU Member State will also be covered, how does Ukraine, whilst not even a signatory to the agreement (yet anyway) interpret the above clauses should it wish to voluntarily comply until challenged under its own newly created freedom of information sovereign laws?

Now having been involved in “intelligence” on and off for numerous years, the last thing any intelligence officer appreciates is over-classification, namely classifying what should be “Restricted” as “Confidential” to set an unnecessarily high bar as far as release of information or access to it. Over-classification is just as much of an operational problem in intelligence as the failure to review and down-grade classifications when the information contained is no longer justified at its current classified level.

“Restricted” whilst a the lowest classification (discounting Unclassified, free for all) does have a necessary role in the system however there needs to be some clarity as to the definition of “disadvantageous” in the definition now applied to the newly created “Restricted” category of EU information access.

It presents a clear opportunity to mask the most minor human error, embarrassment or mistake that inadvertently cost the public one way or another and any subsequent accountability, particularly if those confessing internally to an error of judgment also classify such a confession as “Restricted” to mitigate wider scrutiny from those outside their circle.

It seems that the only way this new category and definition will be clarified is through legal precedent and stated cases. Hardly a good way to spend tax payers money over such a minor security classification or indeed a good way to spend the time of the courts.

Hmmm.