Ukraine on the way to the European Union – German foreign policy perspective

Authors: Zorica Maric Djordjevic, Senior Peace Fellow, Public International Law & Policy Group, and Dr. Lina H. Alami and Marvin Noussayaba Ambi Aideyan, attorneys from Orrick, Herrington & Sutcliffe LLP

The European Union (EU) is one of today’s most progressive political and economic institutions. Created as a peace project after World War II, it evolved into the monetary union in 1993 (The Treaty of Maastricht) and advanced political and institutional integration in 2009 (Treaty on the Functioning of the European Union – TFEU). EU currently consists of 27 member states, implying over 447 million inhabitants. The EU is seen as a cornerstone of European stability and prosperity, and the creation of the EU itself has been a revolutionary act never encountered before, creating the conditions for the longest period of peace the continent has ever experienced.

Enlargement has been one of the most powerful means of the European Union’s policy. The enlargement policy serves the strategic interests of the EU as it is intended to promote stability, peace, security, and conflict prevention. Moreover, this strategic policy further promotes the fundamental postulate of creating the EU in general. There are seven recognized candidates for membership of the EU: Turkey (applied in 1987), North Macedonia (2004), Montenegro (2008), Albania (2009), Serbia (2009), Ukraine (2022), and Moldova (2022).

The institutional ties between Ukraine and the EU began back in 2009 with the establishment of the Eastern Partnership Program – a framework for collaboration between the EU and its eastern neighbors Ukraine, Georgia, Moldova, Armenia, Azerbaijan, and Belarus. As a result, an Association Agreement and Deep Comprehensive Free Trade Area Agreement (DCFTA) were initiated with Ukraine, Georgia, and Moldova in 2014. The agreements establish a pathway for significant reforms in the EU partner states that aim to bring the states close to EU standards and legislative norms. Since then, the EU and Ukraine have been steadily moving towards closer and more integrated cooperation on political, social, security and defense, and economic matters. A significant move to establishing a closer relationship between the EU and Ukraine was in 2017 with the visa liberalization scheme.

On 28 February 2022, President Zelenskyy signed an official request for Ukraine to join the EU, which was subsequently presented to the Presidency of the Council of the EU. The EU has been receptive to the move with Ursula von der Leyen, acting President of the European Commission, declaring that “Ukraine is one of us and we want them in the European Union.” On 1 March 2022, an overwhelming majority of 637 of 676 members of the European Parliament (MEPs) present voted in favour of granting an EU candidate status to Ukraine in line with Article 49 of the Treaty of the European Union.

These highly relevant movements on such a fundamental question give rise to once again considering the pros and cons arguments around Ukraine’s accession to the EU. In particular, this blog post will focus on how the contra arguments should not bar Ukraine’s eventual accession to the European Union.

Argument No. 1: Due to its history, Ukraine belongs to the Russian Federation rather than the European territory. Together with Belarus, Ukraine belonged to the former territory of “Kievan Rus”

Any European state may apply for membership. The characteristic “European” is not only to be understood geographically as the Association Agreement between EU and Ukraine notes: „TAKING ACCOUNT of the close historical relationship and progressively closer links between the Parties as well as their desire to strengthen and widen relations in an ambitious and innovative way; […] RECOGNISING that Ukraine as a European country shares a common history and common values with the Member States of the European Union (EU) and is committed to promoting those values; NOTING the importance Ukraine attaches to its European identity; […] CONFIRMING that the European Union acknowledges the European aspirations of Ukraine and welcomes its European choice, including its commitment to building a deep and sustainable democracy and a market economy;“. These are clear indications that both the EU and Ukraine assume that Ukraine has a strong European history and identity.  Moreover, the term “European state” in Article 49 TEU coincides with the designation of Ukraine as a “European state” in the preamble to the Association Agreement and Article 2 TEU defines the values of the EU that member states must possess, which are based on respect to human dignity, freedom, democracy, equality, rule of law, and human rights that characterize a territory as European. 

Situated between Central Europe, Russia, and the Middle East, Ukraine was shaped by the empires that used it as a strategic gateway between East and West—from the Roman and Ottoman empires to the Third Reich and the Soviet Union. For centuries, Ukraine has been a place for meeting various cultures. As such, Ukraine’s history is inherently linked to that of Europe and, since the early 2000s, Ukraine has been on a steady path to closer integration into the European Union. The voting patterns of the Ukrainian population and the opinion polls conducted in Ukraine demonstrate the long-standing pro-European orientation sentiment in Ukraine, which is further emphasized by the 2013/2014 Euromaidan protests whereby large numbers of the Ukrainian population expressed support for the conclusion of the Association Agreement with the European Union.

Moreover, Ukraine already has a deep cooperative relationship with the EU as part of the Eastern Partnership. This further confirms the inherently European-leaning perspective among Ukrainians, which explicitly rejected their association with Russia in 2014.

What is more important, the Copenhagen criteria that set out the conditions for becoming an EU member state do not discriminate against states based on their “belonging to a certain territory,” but rather, require certain qualitative criteria to be fulfilled to join the Union. These criteria relate to a state’s political and economic commitments. In fact, the Copenhagen criteria explicitly mention the European Council is interested in expanding cooperation with Ukraine and Eastern and Central European states, as well as its observance of these states being deserving of becoming members of the Union once they fulfill the political and economic conditions.

Argument No. 2. The EU is currently already overburdened with the pending Western Balkan enlargements.

Each candidate country must be considered individually and according to objective criteria. All candidate countries need to negotiate 35 accession Chapters related to different policy fields to bring their legislation in line with the EU acquis – the accumulated legislation, legal acts, and court decisions that form the body of the law governing the 27-member states. The only decisive factor is whether Ukraine meets the accession requirements set out in Art. 49 TEU, observes the values and constitutional principles set out in Art. 2 TEU, and fulfills the Copenhagen criteria. These are:

• “stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
• a functioning market economy and the ability to cope with competitive pressure and market forces within the EU;
• the ability to take on the obligations of membership, including the capacity to effectively implement the rules, standards and policies that make up the body of EU law (the ‘ acquis ’), and adherence to the aims of political, economic and monetary union.”

Hurdles of other states during the respective accession procedures must not be considered to Ukraine’s disadvantage. Fair treatment is required by the democratic principle of equal treatment and, as such, Ukraine’s possible accession should be measured against the criteria above rather than against accession progress achieved by Western Balkan states.

In fact, the Association Agreement between Ukraine and the European Union is designed with more comprehensive provisions in terms of scope of commitments than the Stabilization and Association Agreements with the Western Balkan states, which already moves it closer to achieving the Copenhagen criteria.

Argument No. 3. Ukraine is an unstable democracy that has problems with the rule of law, corruption, and dealing with minorities.

While corruption problems in Ukraine persist, the situation has substantially improved in recent years, with the adoption of almost 127 anti-corruption acts and the creation of or a number law enforcement agencies (the National Anti-Corruption Bureau, the High Anti-Corruption Court, the National Agency on Corruption Prevention, the Asset Recovery and Management Agency, and the Specialized Anti-Corruption Prosecutor’s Office), focusing only on corruption. From 2019 to 2021, a total of 381 charges of high-level corruption were filed and in 57 cases, the defendants were found guilty. In addition, a Unified State Register of Declarations for individuals was implemented to increase the transparency of asset declarations by politicians and civil servants in 2017 and prevent corruption in this area. In addition, Ukraine has been instituted judicial reform since 2017, establishing an open selection process to appoint 120 judges to the new Supreme Court.

Shortly before and during the Russian invasion, Ukraine made further steps at fighting corruption by signing the so-called “de-oligarchization” law, which took effect in 2022. The law aims to impose restrictions on oligarchs in Ukraine to impose their financial interests and political agenda. Similar measures are being taken in the area of antitrust law to limit the operations of oligarch-controlled monopolies.

Perhaps to most critical and response to potential EU concerns, Ukraine confirmed the experienced investigator Oleksandr Klymenko as the head of its Specialised Anti-Corruption Prosecutor’s Office in July 2022, responding to a European Union request as it seeks EU membership. These successful reforms should be acknowledged accordingly. Thus, an EU accession process would be a strong incentive to push for further pro-European reforms.

Argument No. 4. Preferential, accelerated EU accession of Ukraine – despite the democratic deficits – would upset other accession candidates

The accession procedure for EU membership is standardized and applies equally to each candidate country. The historical, political, and economic arguments in favor of enlargement are still compelling. This is particularly so in the case of those states that are in the process of accession negotiations.

There is no “preferred fast-track” or “shortcut” procedure. Ukraine merely expects that the standard procedure – where possible – will be passed quickly, free of delays as in the case of the accession candidates – North Macedonia and Albania. Ukraine affirms its commitment to go through the steps and measures required for its accession in a timely manner and requests the same on the part of the EU, so that its accession procedure does not encounter delays as have been the experience with other candidate states. For example, Ukraine completed the European Commission’s questionnaire necessary to advance the accession procedure within a month, whereas other accession candidates needed several months or even a year.

Moreover, the accession process for Ukraine has already been advancing for several years (since 2014), during which it has concluded and effectively fulfilled its obligations under the Association Agreement with the EU, demonstrating its measurable progress and commitment to EU accession. At the same time, Albania and Northern Macedonia initiated accession negotiations with the EU in July 2022, after the vote by the MEPs in the European Parliament, which allows them to argue that the situation in Ukraine has not hindered the progress of other accession processes.

Argument No. 5. Ukraine’s accession would be a major financial burden for the EU. The EU and the member states are already providing reconstruction assistance.

Ukraine’s accession would not be a burden on the EU, but rather, offers a promising economic potential. With adequate investments in infrastructure, especially to mitigate the destruction from Russia’s war, Ukraine could greatly contribute to the economic development and stability of Europe, especially Eastern Europe. Ukraine, for example, has rich oil and gas reserves (2019 gas reserves estimated at 1.09 trillion cubic meters), surpassed in Europe only by those of Norway (1.53 trillion cubic meters of gas). These oil and gas reserves could support the EU’s aspiration for energy independence, particularly from Russia and the Gulf states. In addition, Ukraine, similarly to the EU and other developed states, has committed to sustainable energy goals with realistic opportunities for achieving them, including because of its large-scale hydrogen production opportunities. Furthermore, Ukraine has developed one of the strongest IT sectors in the world. In 2021, before Russia’s invasion, Ukraine had an estimated 289,000 IT professionals, one of the highest stocks of software developers in Europe, particularly in the IT outsourcing service sector. According to the Tech Ukraine 2021 report, the country performed an estimated $7 billion worth of IT services in the year before the invasion. Regarding agriculture, Ukraine is one of the largest exporters of agricultural products, with a cultivated area of about 32 million hectares per year (equivalent to 24 % of the EU’s total arable land). In 2021, Ukraine exported about 48 million tons of cereals and oilseeds, making it the third or fourth-largest exporter of crops and by far the world’s largest exporter of sunflower and sunflower oil.

Moreover, research by the European Commission has concluded that Ukraine has a strong macroeconomic record, which continued even during the Russian invasion.

Overall Ukraine has presented resilience, financial stability, and well-functioning institutions that have been able to continue operations despite the ongoing war.  Nonetheless, there is room for improvement, particularly on structural reforms to remove corruption, reduce the state and oligarchical footprint, strengthen private property rights, and enhance labor market flexibility, that Ukraine is actively working on and that would require post-war investments in Ukraine.

Lastly, Ukraine is already one of the EU’s most important trading partners. Just by establishing a free trade zone, Ukraine’s agricultural production would grow by 42.8 %. If import tariffs were lowered, exports of grain, meat and other food products would increase by 20 %. Ukraine’s EU accession thus may simultaneously strengthen the EU’s economic power, for example, by strengthening the EU as a geostrategic agricultural and supply actor. With EU enlargement, the global EU export share for wheat exports would be 30 % due to Ukraine’s noteworthy role as a global wheat exporter as has been highly emphasized during Russia’s war in Ukraine.

Argument No. 6. The Ukrainian population is divided on the issue of their country’s accession to the EU. For many years, accession was only approved by about half of the population.

The Ukrainian population is united behind EU membership. At the beginning of March 2022, 86 % and at the end of March 91 % of Ukrainians supported EU accession. This also applies to the traditionally more pro-Russian regions which voted in favor of eastern Ukraine, where around 75 % expressed their approval of a possible accession.

Argument No. 7. Politically, an accession debate is not opportune at the moment, if one does not want to provoke Russia to even worse aggressions in the current war.

Rather than increasing instability and security threats in Europe, Ukraine’s accession to the EU would function as a deterrent for further aggression by Russia. Russia’s successive invasions of Georgia in 2008 and the Crimean Peninsula in 2014, followed by the destructive war against Ukraine in 2022, demonstrate that the strategic rationale of “not provoking Russia” has not worked to deter Russia, but rather, has only encouraged Putin to continue his aggressive acts.

Argument No. 8. Realistically, it would inevitably take many years – too many years – before Ukraine is actually admitted to the EU as it passes through the accession stages.

Other member states that have successfully joined the EU in the last 20 years have also taken several years to complete the accession process. For example, the negotiations with Poland, the Czech Republic, Hungary, Slovenia, Estonia, and Cyprus lasted from 1998 to 2003, (the negotiations with Slovakia, Latvia, Lithuania, and Malta lasted from 2000 to 2003; with Romania and Bulgaria from 2000 to 2005; and those with Croatia from 2005 to 2011).  As such, the duration of the accession procedure would merely be a standard process for such negotiations.

Argument No. 9. The admission of Ukraine to the EU would be an additional security threat. The EU would gain another difficult external border with Belarus and would move directly closer to Russia.

Ukraine has one of the strongest armies on the European continent and already possesses close military ties with its allies in the EU and the US. In fact, despite the expectation in Russia, and possibly among some other international actors, Ukraine was able to successfully stop Russia’s invasion of all of Ukraine’s territory and push it back to the Eastern territories where it is frequently gaining success. Before the 2022 invasion, Ukraine has consistently contributed to EU operations and missions, participated in EU Battlegroups, and applied for four PESCO (Permanent Structured Cooperation) projects.

Additionally, a Framework Participation Agreement already governs Ukraine’s involvement in the Common Security and Defence Policy (CSDP) operations, in which Ukraine has participated since the early 2000s. Since 2015, an administrative arrangement with the European Defence Agency (EDA) has governed bilateral relations and offered Kyiv the opportunity to participate in its military-technical projects and programs. In October 2021, EU member states recognized Ukraine’s desire to participate in Permanent Structured Cooperation (SSC) projects. Looking forward to the eventual demobilization of Ukraine after Russia’s invasion, through EU accession for Ukraine, the EU would be able to monitor the demobilization of armed groups in Ukraine, hence mitigating any risk of unrest within Ukraine that could have a spillover effect to the European Union.

Argument No. 10. After the tensions and conflicts between Cyprus and Turkey, the EU does not want to admit another state with unresolved border conflicts and thus bring another source of conflict into the alliance.

Several border disputes within the EU still need to be solved. Cyprus is not the only one. The EU has already dealt with border disputes between other members, even when both are already within the EU, specifically, Slovenia and Croatia. As the border between them had not been determined in detail before independence, several parts of the border were disputed, both on land and at sea, namely in the Gulf of Piran. Only in 2017, the Permanent Court of Arbitration settled the dispute between both states – 4 years after Croatia joined the EU and 13 years after Slovenia.  Following Brexit, the border between Northern Ireland and the Republic of Ireland became an external EU border. EU and United Kingdom negotiated The Northern Ireland Protocol, which has been a source of tension since it came into force at the start of 2021. Technical negotiations between the UK and the EU restarted in October. EU agreed that protecting the Northern Ireland peace deal – the Good Friday Agreement- was an absolute priority.

Admittedly, the import of a new border conflict is of great importance. However, it might have had a longer and more devastating impact if the EU continued to expose Ukraine to prolonged Russian aggression, which could continue to harm the political and economic stability on the European continent and within the EU. In fact, such outcome could incidentally fuel disagreement among existing EU member states as many of the states in the East, including Poland and the Baltic States that have long called for Ukraine’s accession to the EU.

The development of these materials has been made possible through the support of the Public International Law & Policy Group.

Public International Law & Policy Group is a global pro bono law firm specializing in peace negotiations, post-conflict constitutions, and transitional justice.

The Public International Law & Policy Group, a Nobel Peace Prize nominee, operates as a non-profit, global pro bono law firm providing free legal assistance to its clients, which include governments, sub-state entities, and civil society groups worldwide.

PILPG provides pro bono legal counsel to clients on peace negotiation, drafting of post-conflict constitutions, creation and operation of transitional justice mechanisms, and ways to strengthen the rule of law and effective institutions. It was founded in London in 1995, and is currently headquartered in Washington, DC. Since 1995, they have worked with over 40 state and non-state parties and provided legal assistance to all major war crimes tribunals.

The PILPG, a Nobel Peace Prize nominee, is working in Ukraine on documentation and transitional justice.

With over 700 alumni, PILPG continues to train and empower the next generation of peace-builders and public international lawyers.

Photo by Maheshkumar Painam on Unsplash