Accession Through War? Ukraine and the EU: In Conversation with Roman Petrov

The war in Ukraine continues into its second year. In recent weeks President Volodymyr Zelenskyy has undertaken a European tour to drum up support ahead of a counter-offensive against Russia. In the background Ukraine continues as a candidate state subject to the Copenhagen criteria process.

In this podcast, Oliver Garner speaks to Professor Roman Petrov on this subject of “accession through war”. Professor Petrov is the Jean Monney Chair in EU Law and Head of the Centre of Excellence in EU Studies at the National University of Kyiv-Mohyla Academy. He is currently a British Academy Research Fellow at the British Institute of International and Comparative Law.

Oliver Garner: Ukraine was granted candidate status of the European Union in June 2022 following an application soon after Russia’s invasion in February 2022. You have referred to this process evocatively as “integration through war” as a play of words on “integration through law”. Do you think that the war must end before Ukraine accedes? Or could the precedent of Cyprus not having full control over its territory mean that membership could happen even whilst Russia remains an occupying force?

Roman Petrov: This is an interesting and provocative question. I appreciate that you referred to my latest article, which is precisely on the notion of “accession through war”. “Integration through war” can mean a very general process that can span over quite a long time. But when we talk of “accession through war”, the notion that we try to advocate, it refers to the specific process that involves Ukraine – or that Ukraine is hopefully going to face very soon.

Ukraine is the first membership candidate embarking on this journey after suffering the most bloody, unpredictable and costly military conflict on the European continent since World War Two. This premise, of course, complicates everything. Both parties, meaning Ukraine and the EU, need to adjust to these extraordinary circumstances. The accession procedure that the country might undergo – along with Georgia and possibly Moldova – has been articulated and mastered by the EU institutions. Candidate countries are quite aware of what to expect from it, as well as what they must do following the lead of the European Commission.

However, there is a dilemma that concerns me as an academic, which I would like to be widely discussed: in these extraordinary circumstances of military conflict, in which the country is pursuing the major objective of survival, should Ukraine undergo the so-called classical accession procedure?

Frankly, I believe that, under these circumstances, we are in the right position to discuss whether something different is possible. This could be so-called “accession through war”. Essentially, I would like experts and academics to reflect on whether a country – such as Ukraine – which is engaged in warfare on an open battlefield, with a clear objective not only to defend its sovereignty and territorial integrity but to protect European common values as they are described in Article 2 of the Treaty on the European Union, is not entitled to a simpler procedure. An “accession through war”, for instance, could mean speeding up the process, or postponing certain stages of the accession to a later moment. The debate is still open. Therefore, it is difficult to develop a template for such a peculiar accession. But we know the issue must be discussed. 

You made a very important reference to the case of the Republic of Cyprus and whether this situation could be used as a template for Ukraine. Frankly, I hope not. As history tells us, the particular case of the Republic of Cyprus did not entail much of a choice, because the conflict was already there and a sort of “frozen peace” settlement had already been reached. Unfortunately, or fortunately, we don’t have such a situation in the case of Ukraine.

Essentially, without reaching a peace deal, or at least understanding what kind of settlement between Ukraine and Russia – and possibly the international community – is going to be reached, it will be difficult to have a fast-track or quick accession for Ukraine.

Indeed, the peace deal means a lot not only for Ukraine but also for a new Russia, and for the entire EU and the broader international community. 

This notion of accession through war is very intriguing. It reminds me of a topic we discussed on RevDem with Dimitry Kochenov: the idea that most of the EU’s accession law is customary law that has been built up over time and it has been flexible to context. So that could well be the case here as well.

You referred to the classical process of accession to the EU that means that Ukraine will be subject to the ‘Copenhagen Criteria’. If Ukraine were subject to this classical process, what do you think would be the major challenges to ensure that Ukraine is able to adopt the EU’s acquis communautaire?

The simple answer to your question would be that all the elements of the Copenhagen criteria would be challenging for Ukraine. Ukraine has always been keen to show to the EU how willing it is to work on the criteria and to implement them. This was true also when there were no clear accession promises, as happened in 2005 after the so-called Orange Revolution, and in 2014 after the so-called Dignity Revolution. In those times, every new Ukrainian government – and the ruling political elites – unequivocally stated that they were ready to comply with the Copenhagen enlargement or accession criteria. In addition, they were ready to welcome any guidelines and assistance under the lead of the EU. 

The situation today is completely different.

Frankly, I’ve been dealing with EU-Ukraine relations for all of my academic career and, until 2022, I was pretty sure that the process of accession could only start in a remote future.

I had some grim expectations about this possibility. But then the Russian invasion and the war has changed everything. When it comes to the Copenhagen criteria, over the course of 2022 we have already witnessed very positive assessments by the European Commission and the European Council. In particular, the former had to issue one or two reports on Ukraine on its ability to join the European Union, while the latter had to vote on granting the “candidate country” status. 

Unfortunately, these assessments were based on the state of affairs – data and monitoring – before 24 February 2022. Those institutions carried out a peculiar bureaucratic exercise and, as a result, they decided to grant Ukraine the status of candidate country. However, that assessment could not factor in the war. Now that we are in 2023, any further monitoring must take into account the current situation in Ukraine, and all the complications caused by the war. Therefore, the EU institutions now have now the difficult task of trying to be objective in their monitoring, and to look at actual data. It is important to meet the needs of the resistance and the war effort of Ukraine.

It should not be hidden that granting the status of “candidate country”, and the EU’s general support to Ukraine, predominantly pursues the objective of strengthening the resistance of the country and thereby enhancing the security on the European continent. 

If we analyze and scrutinize the readiness of Ukraine to comply with the Copenhagen criteria today, we must bear in mind that those criteria – in particular democratic rule of law, justice, fighting corruption on economic, legal and political grounds – are quite difficult to meet for very obvious reasons. The country is engaged in an exhausting war of attrition. 

On that topic of the state of Ukraine before the invasion by Russia, the EU has already made requests to Ukraine regarding its Constitutional Court. This has been reported by the European Policy Centre to be subject to issues such as “frequent constitutional crises and a history of politically appointed judges”. How comparable is the situation in the Ukrainian Constitutional Court to the Polish Constitutional Tribunal? And how likely is a similar phenomenon of Rule of Law backsliding in Ukraine as we have seen in Poland and Hungary?

I sincerely hope that the situation with the Constitutional Court of Ukraine has no direct similarity with the situation of the Constitutional Tribunals in Poland and the Constitutional Court in Hungary.  Indeed, the essence of the crisis hitting the Ukrainian court differs considerably from the Hungarian and Polish cases.

To clarify, the major problem in Ukraine lays in the structure of the court, its mandate, and the conditions of appointment. According to the Ukrainian Constitution, and the law regulating the Constitutional Court, its judges can be appointed only once in their life, with a mandate of about nine years. This is a very long mandate, which can lead the institutional mechanism into stalemate.

For instance, some current judges were appointed by the former President Viktor Yanukovych, who clearly took into account their political views, background, and even geographical origin.

The former head of the Constitutional Court Stanislav Shevchuk, with whom I have the honor to work, was appointed as a judge of the Constitutional Court immediately after the revolution in 2014. This brought the entire court into a very interesting and peculiar situation in which the majority of judges represented the political regime and the generation which existed long time before the events of 2014. Obviously, the old generation of judges confronted the newcomers, namely those who joined the cohort immediately after the political change. This suggests that the current crisis is rooted in the law regulating such a long mandate, which inevitably creates frictions due to its exorbitant length – nine years is almost a generation. Over such a long period, in some democratic countries one could even witness several different governments.

Think of what this means for a country like Ukraine, where politics is so volatile. Judges of the Constitutional Court may represent different generations, thereby sowing the seeds for conflict. Indeed, we now have a situation in which the court is dysfunctional: most judges from the old generation either had to resign after the end of their mandate or voluntarily before it.

Thus, the court is looking for strategies to renew its own structure by taking on board judges who represent today’s momentum and political life in Ukraine, and who comprehend the great challenge of preparing the country for EU membership.

Of course, the Constitutional Court will play a crucial role within the accession process. I hope that, in the near future, a new generation of judges will come and significantly improve the quality of the Constitutional Court of Ukraine, as well as the other courts of the country. 

It is very interesting to hear how geopolitical events have affected the internal institutions of Ukraine, which has not been publicized as much and will be a very important point as Ukraine goes down the path towards membership of the EU.

We heard at a recent conference here at the British Institute of International and Comparative Law between the Ukrainian and UK Supreme Courts that international experts, including former members of the UK judiciary, participate in the integrity checks concerning the High Council of Justice in Ukraine. Do you think that the participation of foreign nationals in something as sensitive for “constitutional identity” as the judiciary could cause legitimacy problems amongst the Ukrainian population?

This is a very important question, for a couple of reasons. The argument against involving foreign experts in the selection of judges can be found, for instance, in the Russian propaganda, which exploits the argument by pointing to the lack of judicial certainty that the foreign presence might cause. But the argument can also be found within the domestic expert-community, in which some members are openly critical about taking external experts on board, and I can partly agree. 

In particular, UK judges and experts being involved in selection processes raises the question of to what extent it is possible to have fruitful interactions between two different legal traditions. Can these experts be legitimately called on to advise a traditional continental, civil law country such as Ukraine?

These are important questions about legal nature and legal culture. As much as I am grateful for the education I’ve received in the UK, it must be admitted that its case-law culture differs considerably from the Ukrainian one. And the same could be said in relation to Moldova and Georgia. 

However, I personally don’t see anything questionable in the involvement of foreign experts in the selection of Ukrainian judges. Furthermore, this may be necessary for several reasons. First, it would enhance the credibility and reputation of the selection process. Second, it is compatible with the needs of the accession process: it’s not a secret that independence of the judiciary and determination to fight corruption are leading objectives of the very first Copenhagen criterion, and we all know that the chapter on judiciary and rule of law will remain open for the entire negotiation process. In other words, Ukraine will be expected to ensure considerable enhancement of the judicial independence, professionalism, and the rule of law. 

The real question is not whether to involve foreign experts or not, but rather how to involve them. Certainly, the selection process should not entail the UK experts’ exclusive power to take the final decision. It should involve a more diverse team of judges and representatives of the legal profession comprising different countries – mainly EU Member States – in an equal proportion, and other non-EU members such as the UK, Norway, or Iceland. In addition, it is important to define the boundaries of the decision-making powers given to the foreign experts. It would be appropriate to give them one -third of the total vote weighting, or in any case no more than 50%. This would be wonderful and I personally would favor this approach as it would significantly enhance the credibility and reputation of the newly elected judges in Ukraine.

Perhaps the involvement of international experts being involved in internal institution could be good preparation for the kind of co-operation that is necessary as an EU Member State in both legislative and judicial processes. Of course there is the irony that it is UK experts involved following the UK’s withdrawal. Relations between Ukraine and the EU have quite a history of inner turmoil within the state. We saw that they became a flashpoint in the 2014 Maidan or Dignity revolution. Do you believe that Ukrainian nationals will feel themselves to be EU citizens more keenly than current nationals of Member States do as a result of this history of integration towards the EU? Will this lead to the EU being regarded as more ‘constitutional’ than ‘international’ in Ukraine if and when it accedes?

I am extremely grateful for this question because I must confess that I take it personally, and many compatriots face the same feeling on a daily basis. Dealing with my students in Ukraine, I register a steady tendency that, the closer Ukraine comes to the EU by suffering great losses, the more pro-European views and sentiments arise among, especially, the young generations of Ukrainians. In times of war, believing in something is crucial and the young generations really believe that, by coming closer to the EU, the chances for survival and recovery increase.  

Economic, political, and infrastructural recovery is intimately linked to EU membership. Therefore, the issue is taken very seriously. Support for EU membership in Ukraine is really wide and well acknowledged, especially among the younger population. At the same time, we are all aware that the accession process will have its ups and downs. People who come from Central-Eastern European countries could feel similar changes in mood among the population: first there is great enthusiasm and satisfaction, and then possibly dissatisfaction and sometimes disappointment. This is expected and well-founded. This may also apply to Ukrainians but with one particular factor to take into account. Ukraine has undergone drastic changes, challenges, and tests. But one particular test is quite remarkable and puts Ukrainians in a very different basket than people from other former candidate countries. In the course of the last year, 8 million Ukrainians have had to flee the country to enter EU and UK borders. Despite the overdue application of the Temporary Protection Directive, Ukrainians have had the very unique chance to be suddenly welcome, to be treated well, and to be looked after  almost as if they were EU nationals, except for the absence of certain political rights. 

Although Ukrainians have a long history of migration, this is still a unique opportunity compared to other post-Soviet countries. It is a rather unusual and bold experiment when the entire nation is welcome and given the possibility to move, to work, and to benefit from healthcare. It is something that even new Member States’ nationals might not experience for a few years after accession. I believe this situation contributed considerably to the application of the Temporary Protection Directive.  

I would even argue that Ukrainians have already become “shadow Europeans” as if they acquired a shadow citizenship. Importantly, this has changed their minds and their perceptions of the European Union.

When the war ends, and the accession process finally accelerates, the nation will be much more familiar with how the EU works. The initial stages of euphoria and satisfaction will be gone, and we will have Ukrainians coming back to their country as different people – half European and half Ukrainian. It will be a very interesting social, legal, and political experiment for Ukraine as well as for the European Union. 

For our final qustion, there has been speculation that the center of political gravity within the EU could be shifting Eastwards following Poland’s moral victory in its robust support for Ukraine. What geopolitical role do you believe Ukraine would play within a European Union that had a center of gravity that sat farther East?

Nowadays, geopolitics is probably the most popular and most exciting subject to discuss. As you correctly stated, the EU is moving Eastward. The question is: how far? Essentially, we must acknowledge that the geopolitical interests of the EU are now being focused on the region of Central Asia – both the South-East and China. This means that EU interests are actually moving quite far and beyond the post-Soviet area. 

But the true question is what geopolitical role will Ukraine play in the short-, medium-, and long-term, together with the EU or alone. Of course, we all agree that today’s strategy hinges on the security struggle and the pressing need to survival. We all hope that Ukraine will come out victorious, because its defeat would simply mean devastating geopolitical consequences for the entire European continent and beyond.

In the medium term, the geopolitical role of Ukraine is linked to the peace deal. This will certainly reflect and determine the future of the EU’s policy vis-à-vis Russia.

It is obvious that, after so many years of frozen and hostile relations with the Russian Federation, the European Union will face the necessity of a new start. I hope these relations will involve a new Russian Federation, a new government, new political elites, and a new role of Russia – and Belarus – in the world. Therefore, Ukraine is going to be the bridge between the EU and these new realities.

In the far future, there are many potential projects that could see Ukraine as  an active player. First, the country will represent hope for other countries surrounding it – such as Russia and Belarus, but even beyond. In addition, the prospect of building a European Political Community, or a European Neighbourhood Free Trade Area, or a Custom Union, could also build around Ukraine. This will potentially involve close engagement with countries that are unfortunately experiencing regimes based on the wrong principles and norms. Hopefully, Ukraine is going to be a beacon.

To conclude with an answer that goes beyond the time frames mentioned above:

I would argue that Ukraine’s struggle is the very reason why the European Union justifies its own existence: during these hard times, talking about European values has given space to actual action in defending and promoting those values. In a way, the EU needs Ukraine more geopolitically than vice-versa.

Ukraine’s struggle, and its example of resistance, provides precious and invaluable justification for the existence of the European Union, which we know as not only an economic but political bloc based on common values.

This transcript has been edited for length and clarity.

In collaboration with Giancarlo Grignaschi

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