Keywords

1 Introduction

In the autumn and early winter of 2021, the leading European and American mass media sources mentioned, for the first time, the threat of a Russian invasion of the territory of Ukraine (Nardelli et al., 2021; Röpcke, 2021; Sonne et al., 2021; Thumann, 2021). This information raised a wave of discussions among the representatives of the international community and in the domestic political environment of Ukraine.

On 24 February 2022, Russian President Vladimir Putin announced the start of the so-called “special military operation” on the territory of Ukraine, which de jure and de facto was nothing but an armed conflict under the definition of Article 2Footnote 1 common to all four Geneva Conventions (Geneva Convention, 1949). However, qualifying the illegal actions of the Russian Federation since 2014, including the unlawful annexation and the occupation of Crimea and the military actions in the Donetsk and Luhansk regions, is the task of international adjudication bodies (Korynevych, 2014) and beyond the scope of this study. This chapter aims to determine the political and legal consequences of Ukraine obtaining the status of a candidate for EU membership.

Launching the military aggression on behalf of the Russian Federation marked an irreversible and full-fledged orientation of Ukraine’s foreign policy towards the European Union. The further intensification of Ukraine’s foreign policy ties with the EU will mean, inter alia, continuing the process of reforming Ukraine's legal system as an essential condition for future EU membership. It is important to note that Ukraine receives support on its integration path. After Ukraine has obtained candidate status, it is already possible to assess the type of support the EU provides to the country, both in the short- and long term. The EU’s support packages aim to rebuild critical infrastructure and provide initial assistance for sustainable post-war reconstruction. It is also important to mention that Ukraine has gained access to financial instruments like the Instrument for Pre-Accession Assistance (IPA). The purpose of the Instrument is to support necessary reforms by providing financial and technical assistance. In the long run, it further promotes Ukraine's integration and reform.

Since its independence in 1991, Ukraine has faced difficult choices of strategic cooperation. With the start of the full-scale invasion of Ukrainian territories by the Russian Federation, it became possible to move away from the brittle policy of balancing Russian and EU interests. The European vector of Ukraine’s integration has been a priority since Ukraine became independent. Nevertheless, the Revolution of Dignity (2013–2014) was triggered by the refusal of the former Ukrainian President Viktor Yanukovych to continue preparations for the signing of the EU-Ukraine Association Agreement. Furthermore, it demonstrated the Ukrainian people's endorsement of a trajectory towards European integration. Russia’s invasion of the country has convinced even more people among the Ukrainian electorate of the advantages of pursuing this course. This chapter deals with the potential new challenges faced by Ukraine since it obtained EU candidate status, such as implementing the seven recommendations made by the European Commission, which is a prerequisite for the start of accession negotiations. Special attention will be paid to the process of harmonization of the actual legislation as well as to the economic consequences of the new strategic course characterizing Ukraine’s relationship with the EU. The chapter shows that Ukraine’s candidate status for EU membership is not merely a symbolic gesture of solidarity but a catalyst for change regarding Ukraine’s strategic orientation towards the EU as a priority partner.

2 The Legal Framework of Ukraine’s Cooperation with the EU

The legal system of Ukraine is currently being reformed to create the legal conditions necessary for applying the norms, directives, and regulations of the European Union. This process encompasses adaptation and harmonizing the national legislation to EU legal standards. These and other related questions could be addressed through a legal framework regulating the relations between Ukraine and the EU within the context of an unprecedentedly comprehensive list of areas of cooperation between the Parties.

At this point, a short historical digression is necessary to understand this chapter's subject fully. A significant and, at the same time, symbolic event was the signing of the Declaration on State Sovereignty of Ukraine on 16 July 1990,Footnote 2 that is, shortly before Ukraine gained independence. Chapter X, International Relations, proclaims:

The Ukrainian SSR acts as an equal participant in international affairs, actively promotes the reinforcement of general peace and international security, and directly participates in the general European process and European structures (Declaration of State Sovereignty of Ukraine, 1990).

The Declaration of State Sovereignty is one of the first official documents that records Ukraine’s aspirations to cooperate with the European Union (at the time of the signing of the Declaration, the European Communities). Notably, the European Communities were among the first to establish official relations with Ukraine (Tragniuk, 2016). In the Declaration on Ukraine, the European Communities noted the democratic nature of the All-Ukrainian Referendum. They called on Ukraine to maintain an open and constructive dialogue with the EU.

Later, cooperation between Ukraine and the EU intensified further. On 14 June 1994, the Partnership and Cooperation Agreement (PCA) (The European Communities and their Member States and Ukraine, 1994) was signed. This agreement effectively regulated Ukraine’s relations with the EU since it covered the cooperation's political, economic, and socio-cultural aspects, clarifying the collaboration's legal features and specifics. Thus, the PCA created prerequisites for Ukraine’s transition to the subsequent integration stage with the EU (Reznichuk, 2020).

Unlike the PCA, the Association Agreement (AA) (European Union, 2014) provides for different economic integration and political association levels. More precisely, the contractual mechanism provides for several legal obligations on the part of the state, which Ukraine has undertaken to fulfill by harmonizing its legislation and joining the international agreements specified in the AA.

Ukraine’s current legislation directly related to European integration policy consists of the Constitution of Ukraine, which was amended, inter alia, on 7 February 2019 through the Law of Ukraine No. 2680-VIII. The law confirms the irreversibility of Ukraine's European and Euro-Atlantic course in acquiring a full-fledged membership in the European Union and joining the North Atlantic Treaty Organization (NATO) (Constitution of Ukraine, 1996). Apart from the Constitution of Ukraine, one should note the AA between Ukraine and the European Union, the European Atomic Energy Community, and its Member States, which establishes an association between Ukraine and the EU, as a central source of European integration legislation of Ukraine.

This agreement defines a qualitatively new format of relations between Ukraine and the EU on the principles of “political association and economic integration”. It serves as a strategic guideline for systemic socio-economic reforms in Ukraine (Information note, Cabinet of Ministers of Ukraine, n.d.). The economic aspects have been implemented in force in the Deep and Comprehensive Free Trade Area (DCFTA) since 1 January 2016 (European Commission, 2016). The DCFTA is an integral part of the Association Agreement. The AA further contains forty-four Annexes, three Protocols and the General Declaration. The Annexes function as an instruction of sorts for the main body of the AA, and at the same time form the basis for cooperation and the implementation of reforms aimed not only at regulating trade relations between Ukraine and the EU but also at establishing the successful functioning of the zone of free trade. Furthermore, they contain schedules and timeframes for approximating the country’s legislation to the EU standards in areas mostly related to business and trade (Title IV of the AA).

Apart from the above-mentioned sources of Ukrainian legislation concerning European integration, one should also consider the normative legal acts that regulate cooperation with the EU within the framework of bilateral bodies established based on the AA. Notably, these are decisions the Association Council takes, binding for the Parties (paragraph 1 of Art. 463 of the AA). In addition to the Association Council, the Association Committee is empowered to make decisions in the cases provided for within the AA and in the areas where the Association Council has delegated its authority to the Committee (paragraph 2 of Art. 465 of the AA).

A separate framework regulating the European integration policy of Ukraine is constituted by the normative legal acts that take the successful coordination of European integration as their task. One such act is the Law of Ukraine on the National Program for Adapting Ukrainian Legislation to the Legislation of the European Union. There are also several resolutions, such as the Resolution of the Cabinet of Ministers of Ukraine on the establishment of a Commission for the Coordination of the Implementation of the Association Agreement, the Resolution of the Cabinet of Ministers of Ukraine on the Government Office for the Coordination of European and Euro-Atlantic Integration, and the Resolution of the Cabinet of Ministers of Ukraine on the Implementation of the Association Agreement between Ukraine as one of the Parties and the European Union, the European Atomic Energy Community, and their Member States as the other of the Parties.

In obtaining the new candidate status for EU membership, Ukraine also received new obligations to adopt further legislation and amend current laws contained in the Opinion of the European Commission of 17 June 2022 (European Commission, 2022). This opinion took note of Ukraine’s significant successes in reforming institutions that guarantee democracy, the rule of law, human rights, respect and protection of minorities, and the country’s economic performance. Nevertheless, further steps need to be taken in various areas that include strengthening the fight against corruption, reformation of the Constitutional Court of Ukraine, a continuation of judicial reform in Ukraine, implementation of legislation on strengthening measures to counter money laundering, adoption of an anti-oligarch law and of the so-called Media Law, and amendment of the bill on national minorities.

The Ukrainian government began developing most of the reforms mentioned in the Opinion of the European Commission long before June 2022 (European Commission, n.d.). Nevertheless, political disputes in Parliament between the coalition and the opposition have significantly slowed progress in reaching a political consensus for faster integration and obtaining EU candidate status. For example, the reform of the Constitutional Court of Ukraine (CCU) changing the procedure for the competitive selection of judges based on assessing the integrity and professional skills of candidates was one of the critical issues. The Venice Commission has repeatedly stressed the necessity of improving the current system on the principle of transparency and competitiveness (CDL-PI, 2020; CDL-AD, 2022).

Similarly, the so-called laws on oligarchs and media are areas in which the EU has made it clear that it expects significant developments in harmonizing national legislation with EU standards.

The Law on Oligarchs, officially the “Law on the Prevention of Threats to National Security associated with Excessive Influence of Persons with Significant Economic and Political Weight in Public Life,” was adopted on 23 September 2021, and by June 2022, the President of Ukraine had signed a decree on the Establishment of the Register of Oligarchs. It is worth noting that the Register of Oligarchs is still being formed. It can be argued that until there is no Opinion of the Venice Commission on this law, it is impossible to answer whether this law satisfies the EU requirements.

Nevertheless, considering the speed of the political decision-making process in Ukraine, a political consensus works in the country’s favor when it comes to achieving the goals set to obtain full membership in the EU. Three years ago, Ukrainian parliamentarians tried to adopt the “Law on Media.” A draft Law was registered, but in May 2020, the Verkhovna Rada (parliament of Ukraine) returned the law for revision. Nowadays, however, an unyielding political will is written in this regard. On 30 August 2022, the Ukrainian parliament adopted in its first reading a new draft Law on Media (Verkhovna Rada of Ukraine, 2022a). On 29 December 2022, the President of Ukraine signed the law (Verkhovna Rada of Ukraine, 2022b). This is a significant political development since the law is part of the so-called European integration package, and its adoption will accelerate Ukraine's accession to the EU.

The existing political architecture of the Ukrainian parliament has undergone significant changes since Russia’s full-scale invasion: this has manifested itself in the absence of an opposition wing. Following Presidential Decree No. 153/2022 (President of Ukraine, 2022), a Decision of the National Security and Defense Council of Ukraine of 18 March 2022 to suspend the activities of certain political parties has been enacted. Consequently, the parties specified in the decision have suspended their actions during the legal regime of martial law in Ukraine.

The composition of the parliament has therefore favoured to forming a unified, coherent position regarding Ukraine’s future integration into Europe. Furthermore, the Russian Federation’s invasion of Ukraine contributed to the elimination of pro-Russia-minded Ukrainian political parties that, in one way or another, had lobbied for the interests of the Russian government. The existing political consensus favors harmonizing the national legislation with the EU and facilitates the path toward negotiations on the country’s EU accession.

3 Ukraine`s Europeanization

The concept of Europeanization in the Ukrainian legal doctrine is a relatively new subject of study as Ukraine gained independence quite recently in 1991. Having reformed its legal system, which was composed to a significant part of Soviet legislation, and become an independent and full-fledged subject of international law, Ukraine gained the power to determine its foreign policy regardless of the political desires and whims of its neighbors. The new autonomous vector of Ukraine’s foreign policy and the reform of its legal system is inextricably linked to the process of Europeanization. This process is often defined identically to that of European integration and even that of Euroization. Europeanization is in this chapter conceived of as the process of integration of the EU legislation into the legal order of Ukraine based on the country’s commitment to international legal obligations within the framework of the European integration process. These obligations arise based on agreements between Ukraine and the EU, such as the AA, and Ukraine’s accession to international documents and treaties.

Ukraine’s new status as a candidate for EU membership raises the question of whether changes will be introduced in the existing AA or a new agreement will be adopted. Guillem Van der Loo and Peter Van Elsuwege, for example, believe that in combination with financial assistance and new forms of sectoral integration in EU key policy areas (for example, the transition to “green” and digital technologies), the current cooperation agreements remain the most appropriate tools for the further development of these bilateral relations (Van der Loo & Van Elsuwege, 2022). In addition, the dynamic nature of these agreements, combined with the genuine prospect of accession, implies that both the EU and Ukraine can reorient their arrangements to new and more ambitious forms of political association or economic integration and even adapt to the context of pre-accession, employing a staged approach (ibid.).

A change can already be observed in the EU’s approach to its enlargement—for both candidate and full member status—based on the example of Ukraine. On 28 February 2022, Ukraine applied for membership in the European Union. By 7 April, Ukraine had already received the questionnaire required to obtain candidate status for EU membership. Nearly a month later, Ukraine handed the completed second part of the questionnaire to the EU. On 17 June, the European Commission recommended granting Ukraine the status of a candidate for EU membership, and on 23 June at the meeting of the European Council, the status of candidate country was granted (Council of the EU and the European Council, 2023).

It can be cautiously argued that Russia’s full-scale invasion of Ukraine has contributed—if such a word may be appropriate—to this course of events. For the first time in history, the EU has given the status of candidate for EU membership to a country on whose territory a war is taking place and with parts of the territory temporarily occupied. Moreover, this decision was taken as a part of an unprecedentedly accelerated procedure.

Yet, what are the new challenges Ukraine faces after obtaining candidate status? Firstly, Ukraine, as a newly minted candidate for EU membership, needs to reconsider the format of its cooperation with the EU. More precisely, the country needs to take into account the current realities and assess, from a practical point of view, the timing of harmonization of the Ukrainian legislation in accordance with the EU legal system. Furthermore, the implementation of the seven recommendations issued by the European Commission will not automatically lead to the start of the negotiations. To launch these, Ukraine will have to work on building consensus within the EU (Mathernová, 2022). Noteworthy, the process of negotiations remains the main challenge for Ukraine, considering the tragic and extremely unpredictable conflict taking place in its territory. Another factor contributing to the unpredictability of the negotiation process is a change in the procedure introduced by the EU. Indeed, on 5 February 2020, the European Commission proposed changing the EU accession process, indicating that it would be made more credible, dynamic, and predictable (European Commission, 2020). Concerning the Ukrainian case, it is difficult to argue that the accession procedure will be predictable for any Party. Among other things, the lack of predictability stems from the fact that the new procedural design is not being used in the Western Balkans (namely for Albania, Northern Macedonia, Montenegro, and Serbia), for whom this procedure was developed in the first place.

Finally, another major issue concerns the application of the AA between Ukraine and the EU in the territories temporarily occupied by Russian troops—that is, the territorial application of the provisions of this agreement. According to Article 483 of the AA, the territorial application of the Agreement's requirements covers Ukraine's territory. From the point of view of the national legislation, the territory of Ukraine temporarily occupied by the Russian Federation is an integral part of the territory of Ukraine, which is subject to the Constitution and laws of Ukraine, as well as international treaties (Verkhovna Rada of Ukraine, 2014). The European Union and the UN General Assembly have repeatedly affirmed their commitment to Ukraine's sovereignty, political independence, unity, and territorial integrity within its internationally recognized borders. In particular, the UN General Assembly has emphasized both the invalidity of the so-called “referendum” held in Crimea on 16 March 2014 and the invalidity of the pseudo-referendums held on the territory of the so-called Luhansk and Donetsk People's Republics as well as in Kherson and Zaporizhzhia regions (UN General Assembly, 2014, 2022).

4 Ukraine’s EU Candidate Status: A Favor or Well-Deserved Reward?

The possibility of Ukraine obtaining candidate status for EU membership began to appear less illusory and distant with the beginning of Russia’s full-scale invasion on 24 February 2022. Recalling the historical events that preceded the country’s long-awaited signing of the Association Agreement with the EU, questions arise about how fast European integration would have proceeded if Russian troops had left the country in peace, ceasing military aggression on its territory.

This question has no unequivocal answer. It has to be studied comprehensively, considering the political situation and the existence of a political consensus in the EU regarding the response to the armed aggression of the Russian Federation since 2014. Indeed, only with the beginning of the full-scale invasion and war of agression by the Russian Federation the European Union started forming a unified position. This included condemning the armed aggression of the Russian Federation, imposing sanctions that significantly weakened and continue to weaken the Russian economy, and closing the issue of commissioning the Nord Stream-2 gas pipeline. Thus, obtaining the status of a candidate for EU membership in such a short time can be seen for Ukraine as a “reward” for the courage shown in the war.

Nonetheless, while Ukraine received the status of a candidate country for membership in the European Union on 23 June 2022, this significant historical event resulted from the fact that Ukraine had begun its European integration path long before the AA with the EU. This chapter provided an overview of the acts of national legislation that set down Ukraine’s aspirations to harmonize its laws with the standards of the EU. On 5 September 2022, the EU and Ukraine held the 8th meeting of the Ukraine-EU Association Council in Brussels. The Association Council strongly approved Ukraine’s steps to bring its legal system closer to the EU standards. Among other points, the Association Council appreciated Ukraine’s decision to ratify the Istanbul Convention and the appointment of a new Head of the Specialized Anti-Corruption Prosecutor’s Office. The Association Council also noted the progress achieved through reforms in anti-corruption, anti-fraud, anti-money laundering, and the rule of law (Council of the European Union, 2022).

Ukraine faces a complicated and bureaucratic path toward joining the EU as a full member. However, as mentioned above, the military actions on the country’s territory are unpredictable factors that can both speed up the process of obtaining membership and slow it down. As noted by Olha Stefanishyna in this regard:

We do not want the process of our accession to the EU to be a bureaucratic one. Of course, we, as a state, are demonstrating our ability to go through all the necessary legal procedures related to membership, but we do not want politicians and the EU leaders to reduce this process to bureaucracy. Taking into account the challenges that Ukraine is facing, and the fact that the devotion of the Ukrainian people and Ukraine to the principles of democracy is obvious, as well as the fact that we have fulfilled almost 70% of all obligations under the Association Agreement, gives us the possibility to say that we do not have to be evaluated from zero, that political decisions have to be made instead. And we want to get such political clarity by the end of the year (Stefanishyna, 2022).

5 Conclusion

Emerging from the collapse of the Soviet Union, Ukraine did not act as a separate subject of international law endowed with the ability to determine its country's foreign policy independently. Having acquired independence, Ukraine has changed the vector of its foreign policy more than once, with its geopolitical location counting as a significant determinant. The first normative legal acts adopted by Ukraine as an independent state to define its foreign policy vector were aimed at European integration. Post-Soviet Ukraine has gone through a series of tragic events linked to its citizens’ attempt to defend their right to choose an independent development path. The European Union, Ukraine’s prioritized partner in a significant list of cooperation areas, strongly encouraged European integration. The political instruments that have accelerated Ukraine’s European integration are the European Neighborhood Policy and Eastern Partnership, which aims to strengthen relations with the EU’s eastern neighbors.

The regulatory framework for cooperation between Ukraine and the EU includes the Partnership and Cooperation Agreement and the Association Agreement, among other documents. The latter can be considered a symbol of the Ukrainian people’s struggle to join the European family. After all, the Revolution of Dignity taking place in Ukraine in November 2013 was accompanied by demands to sign the AA with the EU and return to a course of European integration, as well as by demands for the resignation of the government led by the pro-Russian President Yanukovych—the leader who refused to sign the AA and later fled from the country to Russia. It is inevitable to draw a connection between the tragic events of 2013–2014, which resulted in a local military confrontation in eastern Ukraine and the illegal occupation of Crimea, and the beginning of the full-scale army invasion by the Russian Federation of the territory of Ukraine on 24 February 2022.

Despite Russia’s aggression, Ukraine has strengthened its position on EU accession, and the EU responded positively by granting the country the status of candidate for membership. A new form of cooperation has been launched between the Parties, and its results largely depend on Ukraine’s fulfillment of the obligations defined in its AA with the EU.