Archive for August 11th, 2013

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EU-Ukraine Association Agreement – questions of law, leverage and expectations

August 11, 2013

A few days ago I wrote this relating to “what next” and exploring some options as to events relating to the signing – or not – of the EU-Ukraine Association Agreement and Deep and Comprehensive Free Trade Agreement.

It painted a rather somber picture.

Within that entry I wrote “….the signing of this agreement should it occur, is no panacea for Ukraine. A lot of hard work, effective implementation and hard choices will still need to be made to move matters from the signing of this agreement to ratification by the Member States. That will take a number of years even if unified and determined political will formulates across the entirety of the Ukrainian political class – and anybody will any knowledge of the political class of Ukraine will be well aware that it will pick and choose what to implement and what to drag its feet over, regardless of who is in power.

So, in the fairly unlikely scenario (certainly whilst Tymoshenko remains incarcerated) that all 28 EU Member States and the relevant EU institutions sign the Association Agreement (and it needs signatures from all), it is perhaps necessary to demonstrate – with one of several examples that will come to light should the agreement be signed – just how difficult it remains for Ukraine to actually fully meet the requirements of what it may soon sign up to – and ratification is hardly likely to be forthcoming from all EU institutions and Member States until Ukraine does fully meet its commitments within the Association Agreement.

Back in February this year I wrote this relating to The Rome Statute, and the fact that although this Statute has been signed by Ukraine, it has not been ratified – because the Ukrainian Constitution, unless it gets amended, prohibits the ratification.

Amending the Constitution is a necessarily difficult thing to do – quite rightly, as the degree of difficulty was deliberately inserted to insure against political expediency of those in power at any particular time.

But what has The Rome Statute got to do with the signing of the Association Agreement with the EU?

Well, Article 8 of the Association Agreement between the EU and Ukraine states that Ukraine must ratify The Rome Statue, thus subjecting its citizens to the jurisdiction of international courts – contrary to Article 124 of the Constitution of Ukraine, the same Article that has prevented Ukraine ratifying their signature to the Statute in 2000.

This problem (and others of similar nature) will not have been unknown to either side when the Association Agreement was negotiated and sealed.  Thus neither side can realistically be expecting a rapid implementation process even if the agreement does get signed.

That is not to say Ukraine signing the Association Agreement with the EU is unconstitutional any more than its signing of The Rome Statute was in 2000 – but the ratification of it would be – unless changes to the Constitution are made prior to any ratification attempts.

This singular example – of which there are others – takes me nicely back to my statement  “A lot of hard work, effective implementation and hard choices will still need to be made to move matters from the signing of this agreement to ratification by the Member States.”

It will take years for such constitutional changes to occur as there needs to be a unified political will across the vast majority of MPs of all parties to muster the 300 necessary votes – which is hardly likely to happen before a presidential election in March 2015, and may not happen quickly thereafter either.

This leads us to the question of EU leverage with Ukraine.

Is it going to be lessened by signing the agreement in November – or does that leverage remain just as strong pending full ratification of the agreements?

Perhaps if the signing of the agreement is re-framed in the media and public perception as a “clear intent with regards direction” and nothing more – and then latterly/eventually, if/when ratification does occur with Ukraine having met the clauses within the agreement in full, then and only then, should the term “EU integration” be freely used, in an effort to better manage expectations?

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