The circumstances of the conflict in Ukraine
In late 2013, former Ukrainian president Viktor Yanukovych rejected an economic agreement with the European Union in favour of forming closer ties between the EU, Ukraine and the Russian Federation. This decision resulted in mass protests by citizens of Kiev, and the Ukrainian government tried to maintain order by aggressive counteractions. The conflict reached a pivotal point when Yanukovych, fearing for his life, fled to Russia. An interim government has since then ruled the country (a timeline of events found here).
Yanukovych’s retreat made Russia realize that their political influence over Ukraine was decreasing. Because of this and Russia’s negative view of an EU collaboration, Russia and its president Vladimir Putin found that Russia, as a world power, had been undermined. Some areas of Ukraine sympathize with the Russians and against reform. The country is now divided between Russia and its sympathizers and the opposition forces that control the country.
The general picture is briefly that the west condemns the actions of Russia, and claims that it is in breach of international conventions because of their support of what is claimed to be “anti-democratic movements” within Ukraine. Russia, in turn, claims that the west facilitated the uprising in Kiev, and that many groups, particularly on the Crimean peninsula, are against the reforms. Russia maintains that these people are under threat due to the recent developments, and therefore they require the protection of the Russian Federation. Both sides claim that they have a legal base for their actions.
We have now reached a point where the EU threatens to expand the current sanctions against Russia as well as voting to exclude them from the G8, if they do not withdraw their troops from Ukraine.
Why is this an issue for the EU?
Russia’s military actions near and within Ukraine are considered by the EU to be violations of the principle of state sovereignty in the Union Nations Charter (UN Charter) as well as the European Convention for the Protection of Human Rights. Observance of these conventions by the EU is required in the EU Treaties. According to Art. 21 TEU the EU should respect the principles of the UN Charter. Furthermore, the Union is obliged to “recognize the rights, freedoms and principles set out in the Charter of Fundamental Rights of the [EU]” [Art. 6 (1) TEU] which entails a respect for the European Convention on Human Rights (ECHR), and the EU is also expected to join the ECHR soon [Art. 6 (2) TEU].
These obligations do not only encompass the action undertaken by the EU within the Union. The member states have also enacted a Common Foreign and Security Policy (CFSP), which presupposes the development of Common Security and Defence Policy (CSDP), to handle relations with third countries and to strengthen the role of the EU at international level on certain matters such as protection of human rights, peace, and security. Therefore, it is under the CFSP that the EU applies sanctions or also called restrictive measures to achieve its objectives such as observance of human rights as defined in the Treaties. According to the EU, “sanctions are an instrument of a diplomatic or economic nature which seek to bring about a change in activities or policies such as violations of international law or human rights or policies that do not respect the rule of law or democratic principles”.
Apart from reasons related to the obligations of the EU which falls within the CFSP as explained above, there are also clear economic interests for the EU in Ukraine. While the developments in Ukraine most definitely affect EU relations with regard to human rights, the primary reason seems to be that of the various supplies of natural resources within the region. With regard to these economic concerns, the CFSP becomes a vital tool to allow the EU to jointly address this issue. Considering the supposedly vast interests at stake, it would seem that the actions from the groups interested would be equally vast and well numbered. However, the EU moves carefully, and refrains from taking any major political standpoint. Is this a result of the complicated constitutional balance that exists between the EU and its 28 member states? We content that this is the case.
Limited actions of the EU – a sign of disagreement?
There are many interests that collide in the present crisis. These conflicts of interest are obvious both within the EU and between the various (member) states and groups. As regards the EU; the lack of a clear standpoint, most evident due to the lack of de facto actions, shows a clear difficulty in the present constitutional structure of the Union. An action in this regard would be a policy to determine how the EU as a whole would handle the present issue; an action that would constitute the unified approach of all member states. The discrepancy within the news media discourse indicates that the media is making at least some level of interpretation when trying to understand the EU’s opinion. The Union moves carefully, avoiding any political actions that could result in a divide between the member states and their respective interest.
The present structure emphasises the role of the Council of Ministers (the Council) in adopting the policies for foreign interests. The Council represents the interests of the member states, and in the case of the Ukraine crises, these interests are many and diverse. Whether the sanctions that the EU has imposed in the conflict is because of a breach of human rights – or a reaction to possible interests of the member states in the gas conflict is difficult to determine. It is however important to recognize that gas supply is a vital resource for the fundamental functioning of the internal market. While not all member states rely on Russian Gas, it is still important enough for the EU to invoke discussions with other third countries, such as Turkey.
Apart from the sanctions adopted by the Council in line with Art. 215 TFEU, it is not surprising that unified action has remained scarce due to such diverse interests. Still, the EU’s decision to rely on Art. 215 TFEU could indicate that the EU considers that the conflict constitutes a serious threat. Otherwise, Art. 75 TFEU – with its ordinary legislative procedure – would have sufficed to combat the issues related to the Ukraine crisis. A serious threat could be of an international character, in line with the ECJ’s decision in C-130/10, 2012. However, those financial sanctions that actually have been imposed do not necessarily indicate a strong and unified political standpoint. Such measures can be considered as a ‘regular’ course of action of the EU. In general, some of the sanctions are only an implementation of UN Security Council resolutions which are not autonomously based on the EU.
The “EU opinion” might de facto be the joint opinion of the member states. For example, some member states are in favour of backing Ukraine’s right to use force, other member states remain quiet and Germany in particular – stemming from its many business interests – are very sceptical to broader sanctions.
In many areas, the EU has progressed very far in uniting the various member states and creating one unified interest: a good example is the internal market. However, when the questions concern foreign affairs, the EU again becomes a collection of sovereign states, all with their own agenda. However, the economic implications of the various interests do concern the entirety of the Union. Gas supplies within Ukraine, for example, are of substantial interest to the EU as a whole. Supplies of gas and other natural resources are vital to the structure and vitality of the internal market, but the power to influence the EU agenda through the Council remains in the hands of the member states.
The power to act for the EU ultimately rests on the principal of conferral, where the member states actively must limit their own sovereignty in an effort to strengthen the EU’s ability to act. This creates a great difficulty in the present case. There is a great deal of conflict between the member states, and without a clear mandate, the EU cannot adopt an agenda of its own while the member states are in in disagreement.
The present crisis, as such, shows one of the real difficulties in the present constitutional structure of the EU. This structure creates problems regarding the separation of interest, the connection with the internal market and in effect, the interests of the EU as a whole. The use of Art. 215 TFEU may indicate that the EU considers the Ukraine crisis as a real and serious threat, but actions proportional to such a threat are lacking. If anything, this could be the result of the EU’s limited ability to take action due to disagreement between the various member states.
By Christoffer Carlberg, Emilia Björksved, Kajsa Freijd and Rebecca Ivarsson.