What else could we have done? Ukraine after Vilnius

What else could we have done? Ukraine after Vilnius

Commentary


© European External Action Service

In its 63-year long history, the European Union has seen many odd summits – but even against that background, 28 November 2013 in Vilnius must have stood out as something profoundly strange. The 28 leaders of the world’s largest economic bloc stood face to face with the man whom, by then, most of them had already come to despise: Viktor Yanukovych, the deceitful president of the corrupt and nearly bankrupt economy, Ukraine. In vain they begged him to sign an Association Agreement that would have given his impoverished country access to their lucrative market. He demanded billions in return and, when the money was not forthcoming, he refused to sign.

By the time he got home to Kyiv, the protests against his decision had already begun. In less than three months, the president was out of his job and out of his country. One more month, and the country had been badly disfigured by annexation and invasion by its neighbour. 

The EU is still struggling to make sense of what happened.

The EU is still struggling to make sense of what happened. The list of supposed mistakes is long. Allegedly, the EU tried to force Ukraine to choose between the East and the West, thereby splitting the diverse country and putting its leadership in an impossible situation. The EU is said to have ignored Russia’s economic interests in Ukraine and underestimated the political importance of Ukraine for Russia, thereby miscalculating the latter’s reaction. Some still claim that the fall of Yanukovych in February was a coup that brought to power far-right, ultranationalist, or anti-Semitic forces.

How much of this is fair criticism, and how much is not? What could the EU have done differently? For the future of the EU’s Eastern policies, it is extremely important that the lessons of the Vilnius Summit, its run-up, and its aftermath, are properly understood and internalised.

Imaginary trade dilemmas

Let’s start from the economic basics: the popular claim that the EU’s Association Agreement (AA) and the Deep and Comprehensive Free Trade Area (DCFTA) that it foresaw would have compelled Ukraine to abandon its trade links with Russia and reorient towards Europe. This is simply not true. Free trade areas are not exclusive. Nothing prevents a country from being part of several different free trade arrangements – and that is exactly what Ukraine was hoping to do, to remain part of the CIS free trade agreement while adopting the EU DCFTA. Nothing in either of the treaties would have made that impossible. The CIS FTA explicitly states that “the current Agreement does not prevent the parties from participating in customs unions, other free trade or border trade arrangements provided they comply with the rules of WTO.” Ukraine would not even have been the first country to have free trade with both Russia and the EU: Serbia has the very same arrangement, and Israel is hoping to make a similar deal. 

The truth is that it was Russia who introduced the zero-sum either-or choice, when it decided that it wanted Ukraine to be a member of its Customs Union and its about-to-be launched Eurasian Economic Union. Customs unions foresee harmonisation of external tariffs among their members and are therefore exclusive arrangements. Their members cannot enter into other free trade agreements individually, but only as constituent parts of a union. 

Before July 2013, Russia had no major complaints about the DCFTA.

Another frequent claim is that Ukraine was about to join the Russia-led customs union when the EU swooped in and, by force of the lucrativeness of the DCFTA, dragged it away. This is not true – Ukraine had never intended to join the Customs Union, and it had been negotiating the DCFTA for years. And before July 2013, Russia had no major complaints about the DCFTA.

It is also not the case that the EU DCFTA would automatically have put Russia in a disadvantaged position in its trade relations with Ukraine. Russia’s often-repeated claim is that “cheap European goods” coming through Ukraine would have flooded the Russian market, making use of the CIS FTA. This argument does not hold up. Goods that cross borders are governed by the “rules of origin” clauses of the WTO. Nothing that does not have a substantial Ukrainian component can be re-exported as a Ukrainian product. If Russia had concerns, it would simply have needed to enforce these rules at its borders.

Ukraine, having adapted to European standards, would not have lost the ability to export its own goods to the Russian market. It could have continued producing for the Russian market using the standards that are used in Russia. And in any case, Russia itself is moving towards harmonising its standards with those of Europe.

The only trade-related claim that has some merit concerns Russian goods exported to the Ukrainian market.

The only trade-related claim that has some merit concerns Russian goods exported to the Ukrainian market. Ukraine’s adherence to the EU standards might have reduced the competitiveness of Russian goods – certainly as components of products designed for the European market, but gradually maybe also on Ukrainian supermarket shelves. However, the scale of this trade is miniscule. Russia’s exports to Ukraine consist overwhelmingly of raw materials to which the standards involved do not apply.

It was Russia, not the EU, that presented Ukraine with a zero-sum choice and tried to force it into arrangements that the country was not prepared to accept. Any alternative impression has been dreamed up either by Moscow’s information campaign or, maybe, accidentally, by the rhetoric of the EU’s Baltic member states, who suggested that Ukraine reorient its trade towards Europe the way the Baltics had done in the 1990s. This kind of reorientation would be a natural reaction to an abusive neighbour’s policies – and therefore likely to happen in Ukraine as it has happened in Georgia. But it was not a condition or a necessary implication of the AA and DCFTA.

What divided society?

It is a myth that Ukrainian society was split in its sympathies, with the pro-European West longing to join the EU and the Russian-speaking East keeping its allegiance to Russia. In reality, all of Ukraine wanted to move to Europe. True, it was split in how it understood Europe, but this faultline ran not so much between the East and the West of the country as between the society and the elites, the rulers and the ruled.

What Ukrainian society wanted was a rule-based and corruption-free political culture – the sort of political culture that Europe also sees as its ideal. This wish for “civilisational Europe” was shared throughout the whole country, although in different places it was likely articulated very differently: at a Lviv University probably by quotes from Aristotle, at the Donetsk mines most likely as a rant about corrupt officials and their ways. Lviv probably associated civilisational Europe more closely with geographical Europe, Donbas certainly less so. But the exhaustion with corruption and the wish for change was the same everywhere. And no one had more than lukewarm feelings, whether positive or negative, about “institutional Europe” and the EU with its rules and regulations.

Counterintuitively, it was the elites (possibly with the sole exception of the pro-Russian operator Viktor Medvedchuk) who wanted links with institutional Europe. They needed it as a means to hedge against Russia. Joining civilisational Europe was not part of their plan – on the contrary, the elites were beneficiaries of the corrupt system, so their plan was to sign the Association Agreement, but never really to implement it in full. 

The rejection of the Association Agreement was an almost accidental trigger for an uprising that was waiting to happen.

The EU was astonished and touched to see Kyiv’s Maidan Nezalezhnosti (Independence Square) fill up with EU flags. That served as a sort of compensation for the cold shower of the Vilnius summit. However, in reality, the rejection of the Association Agreement was an almost accidental trigger for an uprising that was waiting to happen. Ukraine did not need Europe for that – the gunpowder keg was there, and anything could have been the spark.

Does it still need to be said that the government that came to power as a result of that revolution was not anti-Semitic or neo-Nazi, but simply lost and helpless, trying, largely in vain, to regain control of the eroded state structures and functions? This government was surely legitimate, although not perfectly representative – it was comprised of members of the old elites that had lost their legitimacy and some Maidan leaders who had not yet managed to make theirs official. True, one of their first decisions – to overturn the language law that allowed Russian to be used as a second official language – was probably a misstep that was misinterpreted in the East and fuelled fears in a tense situation. However, the older law that was about to be reinstated had functioned without any problems until 2012, when Yanukovych overturned it for political gain.

Of the hundreds of speeches given at the Maidan, just one and a half could have been interpreted as anti-Semitic.

Even so, the government as well as the whole Maidan movement were light years away from being far-right nationalists or neo-Nazis. Even less were they anti-Semitic. It was touching to hear, at a meeting between Ukraine’s Jewish organisations and European think tankers in Kyiv on 16 May 2014, the leaders of Ukrainian Jewish organisations, outraged by the myth of anti-Semitism, point out that of the hundreds of speeches given at the Maidan, just one and a half could have been interpreted as anti-Semitic. When asked whether more anti-Semitic incidents occurred in the country’s East or the West, they replied that the overall number of incidents (four) was not a sufficient basis for generalisations – but of the recorded incidents, two happened in the East, one in the West, and one in central Ukraine.

Still, the fact that Ukraine’s awakening as a political nation happened to take place under European flags had consequences. First, it made the EU see itself as duty-bound to remain part of the unfolding drama – even if a reluctant and helpless part. Secondly, if Moscow still needed persuading, it was now convinced that the events in Ukraine were part of a Western-manipulated geopolitical plot. And thirdly, in combination with the annexation of Crimea and the war in the East, it ensured that Russia’s fears became a self-fulfilling prophecy. Now Ukrainians do indeed want to join Europe – institutional as well as civilisational. And support for NATO membership is consistently rising, already standing at more than 50 percent.

Helping a country that could not help itself

The discrepancy between the European agenda of Ukraine’s society and the European agenda of Ukraine’s elites made the run-up to and aftermath of Vilnius extremely difficult for the EU. How could they help a country that had a pro-democratic society, but corrupt and self-serving elites, who offered poor leadership and may not have had an optimal grasp of their own country’s situation? 

In hindsight, the EU probably could have done more to help Ukraine to insulate itself economically and make it less vulnerable in the face of Russia’s trade war. Even though the DCFTA did not discriminate against Russia, Ukraine’s economic vulnerability with regard to its neighbour was obvious, and Russia had a long track record of using trade restrictions as a political tool. “Instead of the Cox-Kwasniewski mission we probably should have sent a Rehn-Lagarde mission, and a lot earlier,” says one Brussels insider. True – but “a Rehn-Lagarde mission” could have only been of help if Ukraine had tried to help itself, if it had had vision, willpower, and strategy. The Ukraine led by Yanukovych did not.

The EU, with all its diplomatic missions in Kyiv as well as Moscow, probably could and should have been better informed about the nature of Moscow’s ultimatums.

Some people accuse Europe of not knowing enough about the nature of Ukraine’s contacts with Russia and about Ukraine’s true intentions regarding the AA. Had it been better informed, the embarrassment of Vilnius could have been mitigated by lowering expectations earlier. There is some truth to this: even though the Yanukovych elites were hardly sincere and open with the Europeans, the EU, with all its diplomatic missions in Kyiv as well as Moscow, probably could and should have been better informed about the nature of Moscow’s ultimatums. But it could not have known about the intentions of the Ukrainian government – because the Ukrainian government itself did not properly understand the nature of Moscow’s ultimatums. Until very late in the day, it was in fact – naively – hoping to sign the AA.

More importantly, the EU could be blamed for imposing misplaced conditionality on Ukraine – or maybe even for its inability to choose between normative and geopolitical approaches towards the country. The geopolitical approach that was strongly supported by some member states implied signing the AA with no real conditionality, lest Ukraine were to fall into Russia’s hands. The normative approach – to which all member states nominally adhered – foresaw some conditionality, expressed in the conditions set out by the EU’s Foreign Affairs Council in December 2012. Alarmed by the decline in democratic standards, these conditions were supposed to address the issues of the rule of law and (selective) justice; among other things, they would have required the release of the former Prime Minister Yulia Tymoshenko. This point was almost certainly misconceived. While Tymoshenko was clearly jailed for political reasons, the EU’s demands should not have focused on her release, but on impartial justice.

The Yanukovych factor – the self-serving and strategy-free nature of the leadership – continued to hinder the EU’s ability to make a difference after the Vilnius meeting.

The Yanukovych factor – the self-serving and strategy-free nature of the leadership – continued to hinder the EU’s ability to make a difference after the Vilnius meeting. Some people regret that the EU did not send serious mediators to Kyiv before the fateful February days when the regime was already crumbling. This is not entirely fair – mediation efforts, although maybe less forceful than they could have been, were in fact made, but did not bear fruit. The president was not looking for a real compromise; the opposition leaders, knowing that their authority on Maidan was thin, clearly felt the limits of their action. It is hard to imagine that a deal could have been made with Yanukovych, if not effectively at gunpoint, as on 21 February. His vacillation and inability to choose between different strategies – negotiating, cracking down, or waiting it out – also made it impossible for Moscow to “help solve the situation” in the ways that Moscow preferred. In the end, it ensured his downfall.

However, the agreement that the three Weimar ministers negotiated was probably still a worthy document, despite the fact that one of the signatories fled the scene immediately afterwards. The agreement provided some structure to what followed, making what would otherwise have been a dangerously uncontrolled collapse of the regime into a controlled collapse instead. The steps taken by the Rada – such as the return to the old 2004 constitution – were in fact agreed with the fugitive president. The transfer of power took place in as constitutional a field as was possible under the circumstances.

Anticipating Russia

The hardest set of questions to answer involves Russia’s reaction. Did the EU underestimate Ukraine’s importance to Russia? Could it have foreseen the war? And what could it have done differently in order to avoid it?

Russia’s reactions have been received with astonishment in the EU. The EU bureaucracy says that Russia never raised any concerns. Until July 2013, Russia’s opposition to Ukraine joining the DCFTA was confined to sceptical remarks. At the end of July, after Putin’s visit to Kyiv, Russia suddenly launched a trade war that quickly intensified until Kyiv finally understood the choice that Moscow was putting in front of it. 

The impression in Moscow is that Russia did raise concerns, but Europe did not listen.

Why did Moscow not voice its objections earlier? In fact, the impression in Moscow is that Russia did raise concerns, but Europe did not listen. This may also be true. The way Russian power operates militates against communication – the president is the sole serious decision maker, and he often acts by improvising and keeps the institutions, such as the foreign ministry, in the dark. Moscow delivers its arguments in the shape of legalistic bureaucratic statements, subtle hints, or statements that are so straightforward as to be grotesque to Western ears (“Ukraine is not even a country!”). This contributes to them not being heard or being dismissed. This “translation” problem has plagued the relationship between Russia and the West at least since Putin came to power – and the current standoff can be seen as its peak manifestation. 

Given all that, could Europe have foreseen that Moscow would go to war in Ukraine? That Moscow had already years ago drawn up plans to conquer Crimea was most likely known among the Western special services – as well as among the policy watchers in Moscow who were in the position to know. Still, no one – neither in the West nor in Moscow – foresaw the occupation and annexation of Crimea until days before it happened. It is likely that Putin himself did not know. He and a very small inner circle made the decision to occupy within a few days after the fall of Yanukovych’s regime. The decision to annex may have been made at the same time, or even later, following the “Crimean referendum”. How could this have been foreseen? And if it had, what could have been done differently? Could the EU have negotiated a different treaty with Ukraine? Could it have scrapped the Eastern Partnership policy entirely? The EU’s alternatives were impracticable.

“The Russian-Ukrainian War is a war between the Russian state (with a paralysed Russian people) and the Ukrainian people (with a paralysed Ukrainian state).”

It would be more useful to ask why Moscow drew up the plans in the first place: when and how did it plan to use them? An admission by a Kremlin insider is instructive: “We thought these plans might have been needed during the elections of 2015,” when Yanukovych would likely have struggled to retain power and the danger of new pro-Western elites emerging would have been great.

Another instructive insight comes from the Russian internet: “The Russian-Ukrainian War is a war between the Russian state (with a paralysed Russian people) and the Ukrainian people (with a paralysed Ukrainian state).”

Learning the lessons of Vilnius

We should stop viewing the events in Ukraine solely as a competition between Western-led and Russia-led integrationist projects. In the longer term, this competition is not likely to be the most lasting or most powerful dynamic at play. The friction between pro-democratic societies and corrupt elites is likely to remain the determining force of the struggle, even if NATO and the EU were to erase the Eastern Partnership from their maps and policy books.

Most of the countries in the Eastern Partnership area acquired independence semi-accidentally in 1991. They did not know what to do with it, and so it was hijacked by corrupt elites. Now, 23 years later, the societies are stronger and have begun to set demands. This is a natural evolutionary process that has next to nothing to do with the EU’s policies. Even if the EU did not exist at all, these societies would still strive for “civilisational Europe.” The EU cannot tell them to stop.

Moscow knows that it does not have the upper hand. Plans to occupy Crimea in fact speak of resignation, early acceptance of coming failure, and desire to save what can be saved.

As long as Russia focuses on controlling its neighbours and their policies, this trend is bound to make Moscow uneasy. Democracies cannot be controlled in ways that Moscow finds reliable. So Moscow will continue to fight societies and to defend corrupt elites against them. But Moscow knows that it does not have the upper hand. Plans to occupy Crimea in fact speak of resignation, early acceptance of coming failure, and desire to save what can be saved.

For the EU, scrapping the Eastern Partnership would not stop the maturation and democratisation of the societies in its Eastern Neighbourhood. So it would be better to have a proper policy for the times we face – and that should start with proper discussion of the lessons of Vilnius.

In Brussels, everyone has been surprised by the EU’s unexpected unanimity in imposing and maintaining the sanctions. “This would not have been possible without Vilnius,” suspects one insider. “Vilnius was a sort of cathartic moment for the member states. These common emotions there laid ground for future common policies.” So, even the humiliation of Vilnius finally found its positive purpose. The task for the future is to convert our unity and leverage into suitable policy tools for Ukraine and the rest of the East. 

Read more on: Wider Europe,Russia,EaP,Ukraine,Ukraine Crisis

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