Now that Ukraine wants NATO membership, many ob­sta­cles stand in its way

Polls show that most Ukraini­ans now sup­port join­ing the mil­i­tary al­liance, but not all NATO mem­bers think Ukraine be­longs

Kyiv Post Legal Quarterly - - Contents - By Ian Bate­son ian­bate­son@gmail.com

Ukraine is pre­par­ing to re­move a law that has legally blocked it from pur­su­ing NATO membership. The par­lia­men­tary coali­tion agree­ment signed on Nov. 21 makes NATO membership a top pri­or­ity for the gov­ern­ment.

Pres­i­dent Petro Poroshenko has changed his po­si­tion on NATO membership in re­cent months as popular sup­port has grown for the 28-na­tion mil­i­tary al­liance in the wake of Rus­sia’s forcible an­nex­a­tion of Crimea in March and sup­port for sep­a­ratists in eastern Ukraine. More than 5,500 peo­ple have been killed in 10 months of fight­ing.

«It is in­dis­putable to­day that Ukraine’s non­aligned sta­tus de­clared in 2010 has been un­able to guar­an­tee our coun­try’s se­cu­rity and ter­ri­to­rial in­tegrity, and it needs to be re­pealed,» Poroshenko said in the Verkhovna Rada on Nov. 27.

Ukraine’s non-aligned sta­tus pro­hib­ited it from join­ing mil­i­tary blocs. It was ce­mented by a par­lia­men­tary act un­der Pres­i­dent Vik­tor Yanukovych on July 1, 2010. This sta­tus is not spelled out in the Con­sti­tu­tion, and the cur­rent coali­tion con­trols a large ma­jor­ity of 302 in the 450-seat par­lia­ment, al­low­ing it to re­peal the non-aligned act rel­a­tively eas­ily.

“It was a lock on the door to NATO membership. Ukraine closed that door for it­self to NATO membership. That was done ex­clu­sively in the in­ter­ests of Rus­sia,” said Hry­horiy Perepy­lyt­sia, direc­tor of the For­eign Pol­icy Re­search In­sti­tute in Kyiv.

The sta­tus was put in place four years af­ter Ukraine’s failed at­tempt to se­cure a road map for join­ing NATO in 2008 soon af­ter pro-west­ern politi­cians won the 2005 Or­ange Revo­lu­tion. Bo­rys Tarasyuk, a mem­ber of Yu­lia Ty­moshenko’s Batkivshchyna party who ac­tively pur­sued NATO membership dur­ing his sec­ond ten­ure as for­eign min­is­ter in 2005-2007, says Ukraine needs to make a num­ber of legal adap­ta­tions.

“They need changes in two laws. The law from July 1, 2010, delet­ing non-bloc sta­tus and rein­sert­ing the phrase about NATO membership as an ob­jec­tive and the sec­ond is the law on fun­da­men­tals of na­tional se­cu­rity,” he said.

Tarasyuk has pur­sued the re­peal of Ukraine’s non-bloc sta­tus since Yanukovych was ousted by the Euromaidan Revo­lu­tion in Fe­bru­ary. He in­tro­duced a draft law on March 4, propos­ing to delete Ukraine’s non-bloc sta­tus and rein­sert NATO membership as an ob­jec­tive. He says his pro­posal orig­i­nally re­ceived lit­tle sup­port. How­ever, in Au­gust Prime Min­is­ter Arseniy Yat­senyuk in­tro­duced a sim­i­lar law and Pres­i­dent Petro Poroshenko has re­cently be­gun to sup­port the move.

One fac­tor in­flu­enc­ing Yat­senyuk and Poroshenko’s sup­port for NATO membership is grow­ing sup­port for NATO membership among Ukraini­ans.

Ac­cord­ing to a poll con­ducted by the Ilko Kucheriv Demo­cratic Ini­tia­tives Foun­da­tion, a think tank, in March 2012 only 13 per­cent of Ukraini­ans sup­ported NATO membership. By Novem­ber 2014, NATO membership was sup­ported by the ma­jor­ity of Ukraini­ans for the first time, with 51 per­cent vot­ing yes, ac­cord­ing to a poll con­ducted by Rat­ing Group, a con­sul­tancy.

NATO membership con­tin­ues to be a heated is­sue for Ukraine and a ma­jor pre­oc­cu­pa­tion for Rus­sia, which has threat­ened Ukraine with se­ri­ous con­se­quences for join­ing. Last month, a spokesman for Rus­sian Pres­i­dent Vladimir Putin de­manded «a 100% guar­an­tee that no-one would think about Ukraine join­ing NATO.”

Perepy­lyt­sia of the For­eign Pol­icy Re­search In­sti­tute said Ukraine never had typ­i­cal neu­tral­ity un­der the non-bloc sta­tus law. Rather than be­ing a neu­tral­ity im­posed by in­ter­na­tional treaty, like Aus­tria’s, Ukraine’s non-bloc sta­tus was only im­posed by its own laws and has al­ways been a neu­tral­ity against some­thing, in this case against NATO. He says Ukraine’s neu­tral­ity has al­ways been im­per­fect be­cause of the pres­ence of the Rus­sian Black Sea Fleet in Crimea. The ab­sence of a for­eign power’s mil­i­tary on a coun­try’s ter­ri­tory is con­sid­ered a fun­da­men­tal as­pect of neu­tral­ity.

But legal ob­sta­cles are the least of Ukraine’s prob­lems on the way to NATO.

“The for­mal im­ped­i­ments like the non-aligned sta­tus are the lesser of the score of im­ped­i­ments to Ukraine’s even­tual membership in NATO,” said Mar­i­ana Bud­jeryn, a PH.D. can­di­date in po­lit­i­cal science at the Cen­tral Euro­pean Uni­ver­sity in Bu­dapest.

She says con­vinc­ing NATO states to ac­cept Ukraine into the bloc is the real chal­lenge and that en­tails show­ing Ukraine has re­formed its mil­i­tary struc­ture and fought cor­rup­tion to be qual­i­fied to re­ceive NATO sup­port. That will con­tinue to prove a chal­lenge given the Main Mil­i­tary Pros­e­cu­tor’s Of­fice ar­rest of an un­named for­mer direc­tor of pro­cure­ment for the Min­istry of De­fense and dis­cov­ery of $420,00 in a safety de­posit box just re­cently.

Some also be­lieve that re­peal­ing the non-aligned sta­tus now, at a time when Ukraine is un­able to join NATO for the fore­see­able fu­ture, will en­rage Rus­sia with­out pro­vid­ing a con­crete ben­e­fit for Ukraine.

«The bill will ex­ac­er­bate the Rus­sian-ukrainian con­flict, and will not give the ex­pected re­sult. Be­cause in the next two years Ukraine’s ac­ces­sion to NATO would be im­pos­si­ble be­cause of the po­si­tion of Ger­many, which op­poses Ukraine’s membership in NATO,» said Natalia Dot­senkoBelous, a lawyer with Vasil Kisil & Part­ners.

Bud­jeryn of CEU sug­gests work­ing to meet the re­quire­ments of NATO membership with­out alien­at­ing Rus­sia. “Ukraine should pur­sue a pol­icy of NATO am­bi­gu­ity while it is get­ting all of the things in place to join the al­liance,” she said.

Po­lit­i­cal an­a­lyst Mar­i­ana Bud­jeryn says that Ukraine should strive to meet the re­quire­ments of NATO membership.

NATO Supreme Al­lied Com­man­der Europe, US Gen­eral Philip Breedlove, gives a press con­fer­ence in Kyiv on Nov. 26. (Volodymyr Petrov)

A ser­vice­man of the U.S. Navy greets his Ukrainian coun­ter­part dur­ing the Sea Breeze, joint mil­i­tary ex­er­cise near Odesa, in 2012. (UNIAN)

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