Data gebruik door de overheid: De geest is uit de fles, maar wat zijn nu de grenzen?

Het is belangrijk te zien hoe de wetenschap en de praktijk de komende jaren meebewegen en gebruik (gaan) maken van data. Data die door allerlei elektronische toepassingen die wij gebruiken, beschikbaar komen. We hebben al een enorme toename aan data gezien, maar in komende jaren zal nog veel meer data beschikbaar zijn. Ook de mogelijkheden om die data te analyseren, zullen door allerlei applicaties toenemen. Binnen het vakgebied van de data science wordt hard gewerkt aan allerlei nieuwe technieken die de basis kunnen zijn van nieuwe, commerciële en niet-commerciële toepassingen.

De ontwikkelingen op dit terrein laten ook andere disciplines niet ongemoeid. Binnen de sociale wetenschappen gaan stemmen op die stellen dat meer data over gedrag een revolutie zal veroorzaken. Met deze informatie kunnen onderzoekers zich meer richten op feitelijke gedrag en niet zozeer verbale, gearticuleerde gedrag. Een tweede punt betreft de hoeveelheid. Met informatie voor de gehele populatie zijn feitelijke patronen ook de daadwerkelijke. In die gevallen is het niet meer nodig te werken met allerlei waarschijnlijkheidsmaten. Vraag blijft of een databestand nu al dan niet een populatie beschrijft. Een andere lastig punt is of sprake is van causaliteit—een associatie moet ook een basis hebben in een logisch bouwwerk van oorzaak en gevolg. Daarvoor hebben evenals in het verleden goede theorievorming nodig.

Er is ook een keerzijde van meer datagebruik. Ik noem drie belangrijke problemen.

In de eerste plaats is het gebruik van residu-data niet zonder problemen. Recent heeft de Consumentenbond verslag gedaan van onderzoek naar de kredietwaardigheid van consumenten. Daaruit blijkt dat allerlei private partijen via bedrijven informatie verzamelen over uw betalingsgedrag. Met die informatie wordt uw kredietwaardigheid bepaald. Op het moment dat u te laat uw rekeningen heeft voldaan of een betaling betwiste, kan dat tot een negatieve beoordeling leiden. Dit betekent dat u bij andere bedrijven een dienst of een levering wordt onthouden, of dat die levering alleen wordt uitgevoerd tegen hogere kosten. Tegelijkertijd is het voor consumenten erg moeilijk de reden voor die afwijkende behandeling te achterhalen en om fouten in de kredietregistratie te herstellen. Dit voorbeeld is een van de vele die vragen om meer aandacht in het huidige debat voor de juridisch-ethische grenzen van data gebruik.

De tweede keerzijde is dat data-analyserende applicaties keuzes maken die gevolgen kunnen hebben voor degenen waarvan gegevens worden geanalyseerd. De belastingdienst bijvoorbeeld maakt gebruik van ‘slimme’ applicaties die belastingaangiftes in eerste aanleg doorlichten. De gebruikte algoritmes proberen, mede op basis van logische checks en ervaringsinformatie, mogelijke belastingontwijkers te ontdekken. Maar levert die signalering altijd een ‘juiste’ detectie op? Wat zou u vinden wanneer u keer op keer een groot aantal schriftelijke vragen van de belastinginspecteur moet beantwoorden omdat u van ontwijking wordt verdacht? Zeker wanneer meer en meer geautomatiseerde technieken worden toegepast, moet er oog blijven voor de vraag of het ‘systeem’ wel een juiste conclusie formuleert. Dit betekent dat we in de komende jaren meer aandacht moeten hebben voor de gevolgen van het gebruik van verschillende analysetechnieken. Ook een duidelijke procesgang om burgers de mogelijkheid te bieden om zich te keren tegen onjuiste gevolgtrekkingen is onontbeerlijk.

Een derde keerzijde ligt in het gebruik van data voor overheidsbeleid. De verleiding is groot om een digitaal klachtenloket tegelijk te gebruiken voor het bijstellen en ‘verbeteren’ van het beleid. De vraag is of daarmee recht wordt gedaan aan alle groepen in een samenleving. Wie maakt gebruik van zo’n loket? Zijn dat niet bepaalde groepen? We weten bijvoorbeeld uit onderzoek dat hoger opgeleiden meer participeren in inspraak en beter hun weg vinden in de publieke dienstverlening dan lager opgeleiden. Dat kan ook het geval zijn bij veel digitale instrumenten. Dit betekent dat wij ook meer aandacht moeten hebben voor de vraag of beschikbare data inderdaad de noden van alle burgers vertegenwoordigen.

Wat betreft het gebruik van ‘nieuwe’ data is de geest uit de fles. Overheden, in navolging van veel bedrijven, vinden een weg en gaan meer en meer gebruik van allerlei reeds verzamelde en beschikbare data via elektronische toepassingen. Tegelijkertijd komen daarmee belangrijke vragen in beeld over de beperkingen van die informatie, maar ook over de juridisch-ethische grenzen aan het analyseren van uw gedrag.

Time for domestic political debate on future EU enlargement

As Dutch media announced this week, a first opinion poll conducted by a public TV programme EenVandaag showed that a majority of Dutch citizens may vote against the Association agreement with Ukraine in the referendum planned for 6 April 2016. Our colleague Joop van Holsteyn, special professor in electoral research at Leiden University, has warned that it cannot be established how representative the EenVandaag polls are, as they are based on a self-selected panel of citizens. Yet he also stressed that the results suggest the 30 per cent threshold for the validity of the results of the referendum would be easily reached based on these first results. As he also noted the government has so far allocated meagre funds for campaigning, likely with the idea that citizens would not come out and vote.

This attitude by Dutch politicians, if this is indeed the government’s campaign plan, brings uncomfortable memories of their approach to the Constitutional treaty referendum, for which campaigning was both short and uninspired. We all know how this ended up.

Commission President Juncker appeared to advocate for a more pro-active approach, Juncker suggesting in an interview for the NRC Handelsblad newspaper that the government should defend the agreement they have signed. He warned that a Europe-wide crisis could be precipitated by a Dutch ‘no’ in the advisory referendum.

The arguments for the Association agreement need to be put clearly on the table and some of the myths spread by the initiators should be discussed openly. Contrary to what the initiators of the referendum have claimed, the agreement does not open the door to Ukrainian EU membership in the short or even medium term. As we have argued here, the EU has been very careful to leave relations with Ukraine open-ended. The initiators also claim that the treaty will lead to the provision of millions of financial assistance to Ukraine. They set the question of rejecting it as an issue of national identity and sovereignty, as well as material interest. As we know from public opinion analyses in Europe, perceived material interests and identity are the most important determinants of public opinion trends. So the initiators of the referendum and their arguments should be taken seriously, despite their selective approach to the facts. A rational presentation of counter-arguments may not suffice. For those of us who see the Association agreement as a useful tool for supporting much needed reforms in Ukraine, need to discuss the implications for stability and security in Europe and also the Netherlands (including migration) in case the agreement is rejected.

Furthermore, the broader implications of the politicisation of the ratification of the agreement should be considered. The EU – and the Netherlands , in the Council of Ministers -is negotiating with a number of Western Balkan candidates for membership. In mid-December 2015, the EU opened the first two chapters of negotiations with Serbia, marking some real progress after a year of stagnation. Serbs see this as a historic step, an achievement they have reached, paid for with difficult compromises over Kosovo. The opening of the next two chapters, 23 and 24: on Judiciary and Fundamental Rights and Justice, Freedom and Security, is expected to take place in the first half of 2016.

The EU’s influence on Serbian foreign policy, however, is precarious and seen by many to depend on further progress in accession negotiations. As our research in discourses on EU membership in Serbia has shown, many Serb citizens see relations with Kosovo as the most painful step their country has to take on the road to membership. The high domestic cost of concessions on Kosovo means that Serbian leaders may not be able to maintain commitment to reforms for a very long period of time. Therefore, they have set for themselves the ambitious goal to be ready for membership in 2020.

Back to the Dutch referendum and its implications for this process: if the Association agreement is rejected  – not for legal, but for political reasons some Dutch political parties may follow a negative referendum result – EU’s conditionality in enlargement would be much less credible. Serbia and other current candidates may, with good reason, ask themselves whether they are willing to pay the cost of adjusting to the EU when their accession could be put on hold in a similar referendum in the future. After all, accession treaties still require unanimity to come into force. Another good reason for Dutch political parties to campaign vigorously in the current referendum – and for the government to inform its citizens more regularly of progress and decisions reached in enlargement negotiations.

 

 

The ‘reporting revolution’ in enlargement reports: will it help overcome ‘enlargement fatigue’?

The European Commission released its updated strategy and reports on the progress of candidate and aspiring states from the Western Balkans on 10 November 2015. The considerable changes in approach and even language of the reports amount to what the European Stability Initiative newsletter has called ‘a reporting revolution’. The strategy and reports aim to make comparisons between aspiring, candidate and negotiating states much easier and to give the process of enlargement, allegedly mired in ‘enlargement fatigue’, a new impetus.

First impressions are that the reports, one of the key monitoring and reform tools of enlargement policy goes, are indeed changed and much improved. The language of the reports is clearer, the recommendations more specific and it is much easier to judge at a glance whether a country has made progress or not and how it compares to others.

The priorities and focus on certain areas of reform appear to have shifted further away from the EU acquis and to fundamental political institutional and economic  problems which citizens of the countries assessed would recognize as important. Rule of law, freedom of expression, the work of national parliaments and public administration reform are highlighted as key areas to be addressed for all candidates. Economic governance and competitiveness, as well as tackling unemployment are identified as serious challenges for all candidate countries, except Turkey. The refugee crisis and the imperative it creates for cooperation in the region is explicitly and clearly mentioned. In this way, this year’s reports address and incorporate much of earlier criticism concerning their lack of clarity and focus on acquis chapters relevant for the distant future instead of the real problems of the countries they monitor. By identifying and pointing clearly to the most important problems and challenges candidates face, the reports – and the Commission – aim to support mobilisation for reform, as it worked in the past with previous enlargement rounds of 2004-2007.

The main source of inertia for enlargement policy however cannot be eliminated by this improvement and this is arguably the member states. Governments in the existing member states need to be convinced it is worth spending political capital in discussing enlargement in national political debates and in actually making the case in favour of the Western Balkans. Having clear and objective reports, as much as this is possible, helps to make the case that certain countries have made more progress than others. But it is to the member states and their political elites to make the choice to move enlargement towards the front of their political agenda. Germany’s experience with migrants from the region will certainly bring more heated debates there and give enlargement policy more prominence, which is also recognized by the initiatives taken under the so called ‘Berlin’ process. But in the Netherlands next door, politicians and media respond to the reports with a deafening silence, even though Dutch policy makers must recognize that they need to engage in the region to share information and make policy in the current refugee and migration crisis that affects the Western Balkans and Western Europe alike. A more pro-active enlargement policy should provide an excellent forum to discuss these issues, as it had done in the past. To have the citizens on board, however, politicians should consider telling the public that the enlargement policy and process is a way to make sustainable policies involving their Western Balkan neighbours, also on migration, at a time when coordinated action is desperately needed.

After the Eastern Partnership summit: Time to look away from geopolitics

The Eastern Partnership summit that took place in Latvia’s capital Riga on 21-22 May this year was evaluated by commentators as somewhere on the range between ‘lacking new momentum‘ to ‘disastrous’. The cautious approach by the EU is explained by many with the desire not to provoke new action by Russia with declarations about Ukraine, Moldova and Georgia’s European destiny and the need to allow the fragile Minsk II peace to take hold. Not only are Ukraine, Moldova and Georgia far from receiving the much desired EU membership perspective, the symbolic commitment from the EU to take them as members when they would fulfill its criteria for membership, but the expected visa liberalization decision for Ukraine has not materialized either. The language of the final declaration, reportedly the result of an uneasy compromise with Belarus and Armenia (on how to refer to the Crimea) is firm but non-committal.

In the wake of this disappointing summit, it is too easy, but also misleading to see the relations of Ukraine, Moldova and Georgia, the three Eastern Partnership states seeking closer ties with the EU, through a geopolitical lens only. Coming closer to the EU has always been about domestic reforms to fulfill technical requirements and harmonize with the acquis. It is now forgotten that Central and Eastern European states which are now EU members had to work to adapt to the commitments undertaken in their Association agreements before they received a membership perspective. Even as they negotiated for membership, CEE leaders knew the reforms they undertook were a modernization tool, as an end in themselves and not only something to do because the EU wanted it. While not all of the acquis has been beneficial for the economies of the new member states all the time, the commitment to rule of law and the EU’s regulatory model has taken the EU’s Eastern members on the road to better governance and economic growth.

The best path for Ukraine, Georgia and Moldova would be one of reforms for their own sake and not to please the EU. This is admittedly hard, for many reasons, starting from domestic instability to the regional threats. In a nuanced and realistic article written for The Carnegie Endowment for Peace, de Waal and Youngs call this approach‘reforms as resilience’.  They argue that better functioning institutions would give EaP states de facto sovereignty  and more confidence to choose their strategic identity. Furthermore, reforms, especially reforms in governance to make institutions less corrupt and more effective in providing public services is something citizens in these countries may appreciate in and of itself, rather than because the EU wants it. The focus on geopolitics obscures this and may almost provide a helpful excuse for reluctant elites, keen to preserve their privileged access to power and continue extracting rents.

The European Union’s moral authority to point to the need for reform is also currently obscured by its own geopolitical caution. It is the citizens of EaP states that should be the ones to make the choice clear: for reforms, regardless of the EU membership perspective. Yet the deeply rooted patterns of corruption and rent seeking and the economic weakness of neighbourhood states make it difficult to re-kindle domestic reform energy. Nevertheless, the path of domestic reforms may be the only one to break the vicious circle of mutual lack of serious commitment  that the EU and its Eastern partners seem to have entered.

Would consensus on EU foreign policy decisions lead to ‘democracies without choices’?

In a refreshingly sophisticated interpretation, Alexandre Afonso ascribed the victory of Syriza in Greece is a logical result of what he has called ‘cartel politics’  in the South of Europe, the forming of political alliances between left and right parties to fulfil a specific goal linked to debt payments and implementation of austerity policies. The South European states Afonso refers to are not the only ones to have followed a fairly uniform course in terms of economic policy. In Central and Eastern Europe, as Ivan Krastev has argued, success in joining the European Union and following the EU’s economic rules and prescriptions have brought, next to the great improvements in institutions, governance and investment, a constraint on choices in economic policy that led him and others to label post communist states ‘democracies without choices’. Membership of the EU was a goal shared by all political parties and major stakeholders in Central and Eastern European states, albeit in different ways and sometimes, as in the case of the Czech republic’s Vaclav Klaus, with a eurosceptic tint; There is no doubt that striving for eurozone membership in particular (Estonia, Slovakia, Slovenia, Latvia and since this year also Lithuania are euro members) has limited the spectrum of choices in economic policy, leading, as Krastev pointed out, to the rise of populist parties. Without entering into the huge debates around the rules of the eurozone and especially the effects of the convergence criteria on different types of economies in the EU, from a political science point of view the question of effects of key policies on national democracies continues to be a vexing one. The dangers of one size economic policy fits all EU member states may have been made painfully obvious by the sovereign debt crisis, but the question about continuity and commitment at EU level versus democratic choice at national level can be asked about all policies.

What are the effects on EU member states’ democracies when mutually agreed policies – in the past  – do not leave much room for change, for parties to campaign on and voters to choose from at present? This is clearly a question of EU democracy as a whole and so far no answers have emerged so far from the middle rather than extreme parts of the political spectrum to square the circle between democratic choice and supranational commitment.

An interesting variation on this theme has been the statement of the new Greek government’s foreign minister, Mr. Kotzias, that media reports that Greece did not agree with extension of Russian sanctions by the European Council were mistaken. Greek objections were only about the EU partners not having consulted the new Greek government before bringing a common position to the press. Mr. Varoufakis, the new finance minister and well known academic and blogger, provided clarification in his blog saying the objections were about not being consulted, so a question of respect. Yet earlier reports suggest the ambassador of Greece was well aware of the proposal, as all EU ambassadors are active participants in the formulation of such positions. Elections can and have led to change of positions of course, yet keeping to agreements made in ongoing consultations appears to be a matter of professional courtesy while a new government has the time to take a more active stance. The debacle with the Greek position on the extension of Russian sanctions appeared to be a case very important for the new Greek government, so one cannot blame commentators for wondering whether a change to a pro-Russia stance was on the cards.

Governments can and have dissented from common EU positions on foreign policy before, sometimes for many years, as the Greek position on the name of one of its neighbours shows. In this case, given that foreign policy decisions at this level in the EU are always based on unanimity (unless the devilishly complicated constructive abstention provisions are evoked) Greece as a member state and a democracy clearly has a choice, just like a number of Central and Eastern European states have followed their own foreign policy course, leading a famously irate former French President Chirac to comment that  when they signed letters backing the US position in Iraq in 2003, CEE states missed ‘ a good opportunity to keep quiet’. The question in the case of the EU’s stance towards Russia at the moment is whether it is possible for the new Greek government to respond to certain expectations or pro-Russian feelings that some of Syriza’s electorate may cherish without squandering good will that Greece may need from its partners on other issues. In other words, it may be a question not of respect, but of democracy and diplomacy.

Coming up: What do citizens make of enlargement?

We have been quiet in eurosearch, as we have been busy completing data collection under our ongoing project, MAXCAP‘s workpackage dealing with citizens’ perceptions and understandings of enlargement. The Leiden team and our collaborators from the Balkan Civil Society Development Network, the Free University of Berlin, Sofia University ‘Kliment Ochridski’ and many other colleagues committed to help with this project have worked hard to complete data collection from six countries. During the two stages of MAXCAP field work, we have gathered and filtered more than 8000 statements in 6 languages, visited 70 locations (you can see them here and here) – villages, towns and cities in Bulgaria, FYROM, Germany, The Netherlands, Poland and Serbia and interviewed more than 500 citizens of different backgrounds. The focus groups and interviews we conducted followed the steps prescribed by Q methodology,  seeking to understand what citizens of these countries make of enlargements past and future in a manner that left participants to interact with us and shape the data with their views. Our goal was to let citizens speak about what they expected, understood and felt about the 2004-2007 enlargement of the EU, but also about possible enlargements to come. The focus groups and interviews were an enjoyable and interactive experience in themselves for all of us and one thing we already discovered is that for most citizens of the member states that have joined the EU recently and for candidates, enlargement is closely interlinked with European integration, but for citizens of the older member states, this is not always the case and there is a clearer distinction by what we call in the EU literature widening and deepening.

We are currently analyzing our second stage interviews with 240 participants (40 subjects per country) and we are looking forward to discussing some first, very preliminary results of the analyses, at the House of Europe in the Hague on 14 January 2015. We would be happy if readers of this blog interested in our work  and able to do so would join us, you can find details of the event here. For those of you farther away, we will be publishing results as working papers in the coming year. The MAXCAP working paper series is being actively updated with lots of interesting work also from other teams of the project and our latest newsletter came out in December and may also be worth a visit.

More generally, I would like to wish you all a successful and interesting 2015 in which we can all follow our common interest in European politics, economics and societies and especially in the EU’s neighbourhood.

Time for a different approach to enlargement: can accession in the Western Balkans be given a new impulse for change?

The Western Balkans accession process is getting some new energy and commitment these days, but not from the ‘usual suspects’ responsible for enlargement negotiations and reforms. A group of academics and analysts from the region and further afield in Europe, united in the platform entitled ‘Balkans in Europe Policy Advisory Group’ have produced a new policy paper, containing an analysis of the state of play of enlargement talks with the Western Balkans candidate and aspirant EU members.

The paper is good news: but not because the analysis they present in it gives us much cause for optimism. Just the opposite: they present a harsh picture of rent seeking elites that, despite paying lip service to the twin objectives of reform and EU membership, still use ethno-nationalist rhetoric to mobilise eletorates and preserve their own political power. The authors are no more optimistic about the European Union, which in its turn, according to them, is playing a game of ‘conditionality stretching’ that, by making conditions for moving to the next stage of accession negotiations ever more elaborate, reinforces the feeling of stagnation and backsliding in the Western Balkans accession process. EU elites, as the paper suggests, are preoccupied with EU’s own crisis and the consequences of the financial and economic crisis make immigration and free movement questions especially sensitive. And still despite this bleak picture which any scholar and commentator working in the region would recognize, the paper is good news because its pro-active stand, its willingness to name obstacles and to propose scenarios for moving forward, represent much of the independent drive that is needed to make enlargement a success against the odds.

In the MAXCAP project and in various other research networks and policy analysis centers, scholars and analysts are still trying to evaluate the Eastern enlargement and highlight its lessons. Yet it would not be premature to say that the lessons of enlargement in the past (especially the 2004-2007) rounds teach us that the process only gets a positive dynamic if there are reform minded elites of some kind who persist of pushing it forward. Testimonials of participants in the Eastern enlargement – negotiators, key policy makers – suggest that there were many points where the European Union’s leaders mistrusted accession candidates and were reluctant to allow them to move to the next stage, yet commitment to the goal of joining the EU by reformist politicians went a long way to overcome obstacles and initiate reforms. So even though the Eastern enlargement – consisting of the 2004 and 2007 rounds and Croatia in 2013 – started in a much more favourable geopolitical context than the current Western Balkans process, it also had its bottlenecks and setbacks and moments when it seemed it was going nowhere. The efforts of all kinds of people and organizations – from the negotiators that played such an important role in this process to working groups in ministries, to NGOs, businesses in the EU and in the candidate states, and not least, citizens were needed to make that enlargement happen.

Today we are much more fixated on policy conditionality and what the EU can do to stretch out the process even further so that candidates may be pushed to reform. But being stuck on a specific condition or a bilateral issue that has become so fossilized it is impossible to resolve – makes this extensive conditionality part of the vicious circle of enlargement. Where in the past it was about pushing a government in the direction of reforms, nowadays it appears almost that EU governments insist on more and more conditionality as a way to channel their mistrust in future enlargements. Processwise, conditions become institutionalized when they have played a role in negotiations with one country and then past conditions have become a part of the enlargement method. Between all these conditions and the politics of setting them, comparison between countries becomes a lost cause. In the absence of a common push from the EU side, bilateral problems dominate the process.

So in this bleak moment the Balkans in Europe Policy group offers four scenarios for the future of the accession process in the Western Balkans: 1/ business as usual, 2/following Turkey’s path and alienation from the EU 3/ abandoning enlargement and new unpredictability in the Western Balkans and 4/ the Balkans Big bang. The authors argue that creating conditions for a Balkan big bang, their preferred scenario, should not be impossible even in today’s unfavourable EU context. Fewer conditions, posed after talks have started and not prior to their start and more transparent competition between the aspiring and candidate states may be the way to reinvigorate the process. Despite the criticism for conditionality, in my view such a change would require a shift in the member states’ approach and not so much the Commission’s. What is clear is that the current approach to enlargement – as the paper’s authors call it ‘business as usual’ – is not leading to much progress in reforms that would make the countries of the Western Balkans more democratic and prosperous or better neighbours for the EU. Time to try something else?

Postponing the implementation of the trade part of the EU-Ukraine Association agreement: Pragmatism or Surrender

After a long absence, we come back with an insightful analysis of the implications of the postponement of the implementation of the Trade part of the EU-Ukraine Association agreement by guest authors from Birmingham University

Rilka Dragneva and Kataryna Wolczuk

Few bilateral agreements have had such a turbulent history and implications as the Association Agreement between the EU and Ukraine. The refusal to sign the agreement by then president Yanukovych triggered massive protests in Ukraine resulting in his overthrow in February 2014. This in turn provoked Russia’s response: annexing Crimea and fuelling separatism in Eastern Ukraine, including direct military incursion in August 2014.

Importantly, the Agreement envisages a Deep and Comprehensive Free Trade Area (DCFTA), which entails tariff changes but also provides for Ukraine’s integration into the EU single market. Russia has objected to both, alleging potential damage to its economy. Clearly, an important aspect of this ‘damage’ lies in the fact that the DCFTA precludes Ukraine’s membership into the Eurasian integration bloc, something which Russia has actively sought and presented as a viable (and indeed preferable) alternative to integration with the EU.

Asserting its independence, Ukraine signed the Agreement in June 2014. Russia’s opposition to it intensified over the summer leading to its delayed ratification. Trilateral EU-Ukraine-Russia negotiations continued against the backdrop of military intervention and threats of a trade war against Ukraine. Indeed, Russia’s demands have been far-reaching including a revision of the already signed agreement. The Russian government has in fact drafted amendments to substantive terms in somebody else’s agreement.

The tri-lateral negotiations resulted in compromise: the Agreement was ratified by the Ukrainian and European parliaments, but implementation of the key trade-related part (the DCFTA), was suspended until the end of 2015 due to ‘Russia’s concerns’. This middle ground is already proving to be unstable, with Russia reinforcing its demands for legal revisions and the exclusion of 2,000 commodities from the free trade regime. To assert its position, it has imposed tariffs with suspended application to mirror the EU’s approach. Furthermore, in a spectacular U-turn, it seems that at least the outgoing Commission President Barroso is not averse to the thought of revising an agreement that has been signed and ceremoniously ratified.

Who favoured this ‘compromise’ and why it was adopted still needs to be fully clarified. EU officials indicate that it was requested by the Ukrainian side concerned about the economic and social implications of Russia’s trade sanctions. Similarly, there was pressure from EU member states putting a premium on ‘appeasement’, or the ‘normalisation’ of relations with Russia and an end to the costly spiral of reciprocal economic sanctions. Despite what is undoubtedly a complex background story, the postponement of the agreement was labelled ‘business as usual’. If anything, the EU’s response to Russia’s pressure for a say on EU-Ukraine’s relations was presented as a success, on the grounds that ratification had taken place without ‘a single word having been changed’. As Elmar Brok, a veteran member of the European Parliament put it:
‘… this process [i.e. negotiations] has been concluded. And the Russians are part of it. They were there for the negotiations. It’s all coming into force. It’s just being implemented incrementally, as is often the case with contracts. From the legal point of view, the whole contract will be enforced in all its details. It’s just that there are often transitional arrangements. That’s normal in business.’

There is no doubt that since the start of the crisis, the EU has found itself in a particularly difficult position where it has tried to balance principles, economic interests and complex constraints. Yet, in opting for this latest compromise, Brussels has performed a U-turn with potentially high and diverse costs without securing a lasting resolution of the core issues in the post-Soviet region. Certainly many – the present authors included – have pointed out the need for a comprehensive overhaul of the EU’s Eastern Partnership policy so as to address a range of serious concerns. However, a last-minute decision announced three days before the Association Agreement’s ratification and taking many top EU officials by surprise hardly constitutes such a review. Allowing Russia to dictate EU-Ukraine relations does not indicate the application of a comprehensive, sustainable strategy. Whether it is born out of a pragmatic trade-off or a tactical retreat, it is a short-term fix based on a set of shaky assumptions. Its far-reaching implications, however, will still need to be confronted.

First, allowing Russia to participate in the EU’s negotiations on a bilateral agreement with another country sets a dangerous precedent. It is a blatant reversal of the EU’s earlier position. It opens a minefield for international lawyers. Even more importantly, it undermines the principle of dealing with Ukraine as an independent country: regardless of its ‘semantic framing’, the EU has accepted Russia’s right to determine the essential terms and the limits of its post-Soviet neighbours’ integration choices. The potential application of this precedent to other neighbours is obvious, but also has implications for relations further afield involving Turkey or China. Importantly, the EU likewise concedes to Russia’s double-standards in international relations: while Putin complains that nobody talked to Russia about the potential consequences of the DCFTA, he conveniently forgets that the Eurasian Customs Union was launched in 2010 with no consultation with the EU and no adequate transitional arrangements resulting in significant damage to EU businesses.

Second, it is not only the inclusion of a third party as such, but also the mode and the professed reasons for accommodating its preferences that are questionable. Russia’s justifications for its ‘trade concerns’, have been highly spurious and are, as Michael Emerson put it, ‘a non-story’. For example the problem of Russia being ‘swamped by EU goods’ can be addressed by the proper application of rules of origin. The EU has been involved in consultations with Russia on the subject for many months now making a strong case as to why the DCFTA need not disrupt existing trade arrangements. It is unclear how fifteen more months of discussions will help resolve a problem that in its essence is neither legal nor technical. Above all, Russia’s concern is a thinly veiled contestation as to who the rule-setter in the post-Soviet space is. Russia principally objects to the EU expanding its regulatory framework – via the Association Agreements – to Russia’s perceived exclusive backyard, the post-Soviet space. This is especially so given the clash of EU policy with the expansion of Russia’s own economic integration project. Faced with a complex bundle of economic and geopolitical concerns, the EU conceded to pressure rather than sound argument.

Third, EU statements on the deal refer to the peace process in Eastern Ukraine, implying that it amounts to a necessary sacrifice for the sake of ensuring a peaceful resolution between the separatists and the Ukrainian government. Its political acceptability is justified against the backdrop of a military conflict in which Russia has been a party. However, Moscow has adamantly refused to acknowledge its involvement, endeavouring to present the conflict as a local, bottom-up rebellion. Securing peace and saving human lives is an objective one certainly cannot disagree with; however, as it stands, the deal offers few guarantees and carries considerable costs. While Russia refuses to acknowledge its role in the conflict, the deal legitimises and validates Russia’s ‘hybrid war’ strategy: by instigating conflict, Russia is able to extract concessions from the EU for the sake of a ‘contribution to peace’.

Fourth, the EU’s actions rest on the assumption of a ‘fixed and stable agreement’, one that reflects and accommodates Russia’s preferences. It assumes that agreements and rules will be implemented. The source of this optimism – given Russia’s track record of behaviour – is unclear. Indeed, it has already been revealed that Russia is not satisfied by the mere delay of the Agreement’s implementation. Furthermore, the consensus on what constitutes ‘implementation’ might be overestimated given Putin’s reference to ‘any legislative implementing acts under the Association Agreement’. There is no reason to assume that Russia’s decision to trigger sanctions will be based more on law and shared understanding than in previous instances. The EU’s longing for ‘business as usual’ obscures the fact that this is the last thing it is and that Russia’s claims are derived not from legal agreements but from claims to a sphere of influence.

Fifth, while the need to ensure the compatibility of the DCFTA with interregional linkages is understandable, the EU has shown a sudden ready acceptance of post-Soviet integration structures. After many years during which the EU had raised valid concerns: for example, about the degree to which the Eurasian Customs Union acts as an economic rather than a Russia-steered, political entity with an unclear division of competences, or the degree to which it contributes to trade liberalisation and WTO commitments implementation. We, amongst others, have criticised the EU’s lack of strategic engagement with the Eurasian project, yet the show of caution has not been entirely unjustified.

If anything, Russia’s policies towards Ukraine amplify these concerns: the Kremlin has in effect (and with its partners’ consent), destroyed the Eurasian Customs Union by imposing unilateral trade measures on Ukraine. Recent statements of Commissioner Füle, however, reveal the EU ‘warming up’ to Eurasian structures, based on a presumed functional and rule-based equivalence of both regimes. While the Eurasian structures certainly contain promise, its actual delivery is circumscribed by a range of problems of institutional design and implementation.

The EU continues to state that regional economic integration frameworks need to contribute to trade liberalisation and WTO compliance. Yet, ironically, Russia’s threats to Ukraine – rather than the success of the Eurasian project itself – might end up earning it external recognition just as these very same threats undermine it internally. Furthermore, while the EU might be willing to enter into a comprehensive free trade area ‘from Lisbon to Vladivostok’, there is actually no certainty that free trade is what Russia wants and pursues.

On balance, it is hard to avoid the conclusion that by agreeing to this pragmatic, ‘principles-lite’ deal, the EU accepts and legitimises a particular way of conducting international relations favoured by Russia. Acquiescence to this pattern of behaviour comes at the very time when Moscow’s actions vis-à-vis Ukraine amount to a shake-up of the international order. The EU’s pragmatism has not been lost on the people of Ukraine, with the prevailing interpretation on social media being one of ‘having been abandoned’. For an outgoing team of the European Commissioners to present this as ‘business as usual’ while leaving a series of ‘landmines’ for future interactions between the EU and Russia should be a source of deep concern. Yielding to Russian anxieties rather than comprehensively addressing existing questions, opens a raft of new issues. They need to be confronted rather than obfuscated behind the rhetoric of normality.

A shorter version of this commentary has been published in The Conversation

The Dutch Prime Minister: ‘Europe is kind of important, because of …hmmm… jobs… hmm… trade… Canada’

Prime Minister Mark Rutte just could not bring himself to muster any real enthusiasm about the EU in his interview last night on Nieuwsuur. Ostensibly the purpose of the interview was to mobilise people to vote in the upcoming European Parliament elections.  At least that’s what I think. Having listened to him, I am not sure what the purpose was. If I had to make up my mind whether to vote or not, based on his arguments, I would definitely stay home.

When asked at the start to say on a nutshel the most important reason why the EU is important for the Netherlands, he waffled on unenthusiastically about the EU helping to create jobs…well, if you organize things well of course and for example…a trade agreement with Canada that would help a lot… Incoherent, unconvincing and down the same perilous road of giving no value driven justification for the existence of the EU beyond trade. Then he said that sovereignity and legitimacy in Europe are vested not in the European Parliament, but in national parliaments. He went on in the same way to drop heavy hints that he also often found the EU too intrusive in domestic affairs.

This from the same Prime Minister who was reported to have strongly advocated the creation of a stronger European Commission competences on national budgets and automatic sanctions for member states that violate common budgetary rules.

So, I guess there is no democratic obligation for the Prime Minister to be pro-European. That’s fine, although I wish that he did not go on TV to make his lack of enthusiasm so painfully obvious just before the European Parliament elections. Also strange if you consider that employers and entrepreneurs have launched a campaign to support the EU, including TV ads and posters and cars everywhere. And the VVD, Rutte’s party, is supposed to be representing the entrepreneurs’ interests to a considerable extent. All of that might be just between him and his party’s support base. But I still cannot get over the hypocrysy of playing the Eurosceptic card at home and advocating all kinds of strengthened oversight measures in Brussels. What does he really believe in?

Can the CIS Survive the Ukraine Crisis?

A guest post by Rilka Dragneva

The death of the Commonwealth of Independent States (CIS) has been foretold many times during its history of (now) more than 20 years. Dissatisfaction with its weak and confusing institutional structure and a failure to promote effective regional integration has become an almost permanent background to its existence. Despite the remarkable resilience of the CIS, there are several signs suggesting that the current crisis is more fundamental and extreme than previous shake-ups.

Firstly, the present crisis focuses on a founding member of the CIS, Ukraine. It is important to remember that the very CIS formula came into being at the secret Belovezhskaia Pushcha meeting between Presidents Yeltsin, Kravchuk and Shushkevich of 8 December 1991 in order to accommodate Ukraine’s refusal to participate in a reformed Union,[i] and was very much ‘thrust upon’ the other former Soviet republics. Arguably, Ukraine was instrumental in shaping the design and ultimately the limits of the CIS in its gradual institutionalisation in the early 1990s. It did not sign the Charter of the CIS in January 1993 but took an active role in its drafting and, as President Kravchuk stated, considered itself a ‘member of the CIS, actively participating in its improvement’.[ii]

In March 2014 the Ukrainian authorities announced the termination of their presidency of the CIS and their intention to leave the organization altogether. Indeed, a bill on the denunciation of the CIS Founding Agreement was introduced into the Rada by MP Boris Tarasyuk. Georgia had withdrawn from the CIS previously, in August 2008. In legal terms, both countries’ membership was of a peculiar nature, as neither had fully met the conditions of the Charter requiring 1) participation in the founding agreements of December 1991 (fulfilled by Ukraine but not by Georgia), and 2) ‘assuming the obligations under the Charter’ within a year of its adoption (fulfilled by Georgia but not by Ukraine). Nonetheless, the importance of the withdrawal of a founding member of the organization could not be overstated in the CIS world of ‘casual legality’ but high political symbolism.

Secondly, Ukraine’s pending withdrawal rests on a charge that the CIS and its institutions have failed to address the Crimean crisis, that, in other words, rather than exercising its most basic function of promoting dialogue, the peaceful resolution of disputes and cooperation, the CIS has turned into Russia’s puppet. In the beginning of March 2014, the Ukraine had called for an extraordinary meeting of the CIS Foreign Ministers Council in Kiev to discuss the crisis. The request was denied by the Committee of Permanent Representatives, which instead approved an alternative proposal for a meeting of deputy Foreign Ministers in Minsk. This was deemed as unacceptable by Ukraine, which challenged the de jure as well as de facto ability of the CIS to function.

Indeed, it is clear that the multilateral structures of the CIS have been marginalised and that the response to the crisis has been driven by one-to-one dialogue at the highest level. When the Foreign Ministers Council met in Moscow on 4 April, it dealt with the vacant presidency of the CIS, but did not engage in any formal Ukraine-related effort. In fact, the principal decision-making bodies of the CIS, the Councils of Heads of State and Government, have not held a formal meeting since 25 October 2013 and 20 November 2013 respectively.

According to the Moldovan Foreign Minister Natalia Gherman, Ukraine’s March request was supported only by Kishinev; in a recent interview she noted that the situation called for a ‘very thorough analysis and evaluation of what has happened within the CIS’. Other leaders were predictably more restrained. The Belarusian President Lukashenka recently described the situation as ‘not very simple’, but proceeded to reject a break-up of the organization despite half-heartedly acknowledging problems. Meanwhile, as argued by Farkhad Tolipov, Russia’s disregard of multilateralism was not lost on the Central Asian countries.

President Putin held a meeting with the Presidents of Armenia, Belarus, Kyrgzstan, Russia and Tajikistan on 8 May 2014 – all of them members of the Collective Security Treaty Organization. Rather than a formal gathering of the organization, this was a ‘talking down to’ at Russia’s invitation, and Kazakhstan’s absence is yet to be deciphered. Nonetheless, the meeting betrayed the concerns of even loyal supporters of the Russian position – like Armenian President Sargsyan – about the need for more coordination and multilateralism in responding to foreign policy crises.

Thirdly, the Ukraine crisis challenges the very premises of the post-Soviet settlement: the principles of national sovereignty, independent statehood, and territorial integrity embodied in the CIS founding agreements. As Tolipov notes, unlike the Crimean case, the secession of South Ossetia and Abkhazia from Georgia in 2008 did not lead to annexation by Russia. And while the fact of Crimea’s annexation has largely been accepted by the CIS member states, their reaction has not been as definite, unambiguous and resolute as Russia might have wanted. Certainly, for many of them – especially those with a sizeable Russian minority – the post-Soviet settlement is not a safe and secure option anymore.

Fourthly, Russia’s specific interest in the CIS is not easy to fathom. While Ukraine has certainly been very selective in its participation in the organisation,[iii] Russia has been discerning too: for example, it never ratified the 1994 and 1999 Free Trade Agreements concluded within the organisation. In March 2005, Putin stated that ‘the CIS never had any supertasks (sverkhzadach) of an economic nature, any integration tasks in the sphere of economics’. As Tolipov aptly points out, in his 18 March 2014 speech, Putin delegitimized the CIS even further: by arguing that Ukraine’s secession from the Soviet Union was illegal, he also challenged the very legality of the Commonwealth. Perhaps not incidentally, Putin’s latest address to the Federal Assembly, on 12 December 2013, mentioned the CIS only in relation to educational cooperation. Putin’s recent agenda has focused primarily on building a Eurasian (Economic) Union, implying the hollowing out of previously important organizations, such as EvrAzES. While some continuity will be provided within the Eurasian Economic Union, the future status of non-Customs Union members of EvrAzES remains unclear.

Yet, despite Russia’s fairly opaque position on the CIS, it has developed a key interest in the 2011 Free Trade agreement, and particularly in its perceived incompatibility with Ukraine’s signature of the Deep and Comprehensive Free Trade Agreement with the EU. In a newly discovered concern for legality (and in contrast with previous casual attitudes to CIS agreements and, indeed, Putin’s above-mentioned statement on the organisation’s limited economic role), Ukraine was accused of violating Article 13 of the 2011 CIS FTA.

It is evident that despite Foreign Minister Sergei Lavrov’s assurances of ‘not keeping anyone in the CIS by force’, Ukraine’s possible exit from the organization needs to be viewed in the context of the ‘carrot and stick’ policy employed in securing Putin’s geopolitical vision. Given the ‘variable geometry’ principle in signing agreements in the CIS, a withdrawal from the 8 December 1991 Agreement would not automatically imply an exit from other arrangements. Indeed, the stated intention of the Ukrainian Foreign Ministry is to analyse individual agreements and determine ‘the feasibility of Ukraine’s further participation’ in them. Yet, this decision might require a more complex cost/benefit calculation. As Viktor Medvedchuk, a well-known protagonist of Russia’s interests in the country noted: ‘Ukraine’s withdrawal …will lead to a sharp decline in investments in the Ukrainian economy from CIS countries, primarily Russia. Ukraine’s withdrawal from the organization will also mean leaving the CIS free trade zone’. Thus, Ukraine’s approach of selective withdrawal from its CIS commitments might not work without advances in the geopolitical, EU-Russia stalemate resulting from the current crisis.

What does all this mean for the CIS? Is a regional crisis of this depth and magnitude likely to doom it as an organisation? This author’s bets – at this stage in the developments surrounding the Ukrainian conflict – are on its survival. Firstly, the resilience of the CIS is embedded in its extremely loose institutional framework and the ability of its members to define their membership as they see fit. In fact, in comparative terms, the CIS is the ultimate institutional chameleon. Secondly, in the two decades of post-Soviet regional integration, Russia has proved that it rarely ‘keeps all its eggs in one basket’. It has invested in a range of regional organizations, and despite the current salience of the Eurasian Economic Union, there is no reason to assume that other vehicles will not be assigned appropriate uses. Currently, the CIS is also the only Russia-centred grouping incorporating countries like Azerbaijan and Turkmenistan. Thirdly, the long-term tendency of region-level post-Soviet institutional development has been one of strong continuity. Organisations are frequently and incrementally reformed or renamed, but rarely completely reinvented, as aptly demonstrated by the evolution of the Eurasian Customs Union’s institutional regime.[iv] Thus, it is unlikely that the CIS will disappear without a fundamental and deep reform of the underlying political, economic and socio-legal orders within the majority of its member states. Nonetheless, there is little doubt that recent events will significantly deepen the crisis of purpose and credibility the CIS had been experiencing beforehand.

This analysis has been first published here in the blog of the Centre for Russian and Eastern European Studies of the University of Birmingham, on 12 May 2014

[i] E Walker, Dissolution: Sovereignty and the Break-Up of the Soviet Union (Rowman & Littlefield, Oxford, 2003)

[ii] Diplomaticheskii Vestnik, 3-4 (1993): 42

[iii] R. Dragneva and A. Dimitrova, ‘Patterns of Integration and Regime Compatibility: Ukraine between the CIS and the EU’, in K. Malfliet, L. Verpoest & E. Vinokurov, eds., The CIS, the EU and Russia: Challenges of Integration (Palgrave/Macmillan), 171-201

[iv] R.Dragneva and K. Wolczuk, ‘Commitment, asymmetry and flexibility: making sense of Eurasian economic integration’, in R. Dragneva and K. Wolczuk, eds., Eurasian Economic Integration: Law, Policy and Politics (Edward Elgar 2013), 204-221