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| UKRAINIAN MONITOR |
POLICY PAPER # 8 / 2006(November) AFFECTING UKRAINE’S FOREIGN POLICY THROUGH INSTRUMENTS OF LAWMAKINGRESUME The dubious and trade-off constitutional reform of 2004 along with other law-related contradictions have given rise to quite a few disagreements and inconsistencies that are now being used by competing political forces as an instrument to gain the upper hand in the field of foreign policy. The Verkhovna Rada’s constitutional authority to determine “the principles of domestic and foreign policy” has different interpretation with different political actors depending on the measure of their control over the parliamentary majority. During recent months, a number of draft laws have been submitted to the parliamentary committees. Creators of those draft laws present their own vision of the principles of foreign policy. More often than not, the drafts in question are backed by interests of party leaders. By Oleksandr SUSHKO The Constitution (Article 106) clearly specifies functions of the President in the field of foreign policy, namely:
As for the parliament, its functions in the foreign policy domain are less clear. The Verkhovna Rada can, at its own discretion, decide on how to exercise its own authority as regards determining “the principles of domestic and foreign policy.” It appears that determining the “principles” does not automatically envisage the requirement to adopt a special law (laws) of a general declarative nature, but rather belongs to the main legislative function of the parliament. For instance, by adopting the budget the parliament in fact determines the state policy priorities in all the external and domestic vectors. By allocating or refusing to allocate financial resources of the state for the execution of systemic reforms the parliament by deed (not by word) answers the question of where Ukraine is moving. Below is the conclusion on this subject by the Main Directorate for Scientific Expertise of the Verkhovna Rada of Ukraine (it is literally reiterated in all the conclusions as regards such bills): “The Constitution of Ukraine (Article 85, part I, paragraph 5) specifies the authority of the Verkhovna Rada of Ukraine to determine the principles of domestic and foreign policy of the state. At the same time, it does not proceed from the text of the Fundamental Law of Ukraine that such determination of the principles should necessarily be exercised through the adoption of a particularly designated legal act. Although the Constitution does not contain the prohibition to act suchwise, in our opinion, it is neither the only possible nor the correct option.” The Verkhovna Rada day-by-day legislative activities contribute to shaping both the principles and specificities of domestic and foreign policy. For instance, by approving (disapproving) the bills required to join the WTO the parliament practically fixes or adjourns the date of Ukraine’s accession to that Organization. By adopting (rejecting) the bills in the framework of adjusting the national law to that of the European Union the parliament extensively affects the pace of Ukraine’s integration in Europe. By ratifying various treaties and memoranda it defines the concrete substance of relations with NATO and other international organizations. It should be recalled that namely the parliament decides on sending Ukrainian military contingents abroad, as well as on admitting foreign contingents in the Ukrainian territory. The importance of this authority was demonstrated last summer when a whole series of international military exercises were disrupted after the Verkhovna Rada had failed to approve the relevant bill. In addition, the parliament adopts documents of doctrinal nature. The latter, inter alia, include the Law On Principles of National Security of 19 June 2003, which is frequently cited by advocates of the Euro-Atlantic integration, as Article 8 of the Law envisages the strategic goal – Ukraine’s membership in NATO. In view of the above, is it advisable to develop a specific legal framework dedicated exclusively to determining the “principles” of foreign policy? The experience of nearly every democratic country responds negatively to that question. In countries with a least required consensus on major foreign policy principles such a component of the law would be as welcome as water in one’s shoes. Ukraine is different. In Ukraine, the lack of such consensus is now complemented with the acute rivalry between the major political centers (that of the President and that of the Prime Minister) for the capabilities to exert influence on shaping the country’s foreign policy agenda. With the parties eager to make use of all available opportunities and instruments, and the Rada majority controlled by the Premier and his party, it would be naive to expect that this instrument would not be employed. In view of the fact that some representatives of the Party of Regions have already started to use the term “foreign policy of the ruling coalition”, which is quite questionable from the constitutional point of view, it is evident that there is no other instrument of legitimizing such policy but the parliamentary majority. The first attempt to use the Verkhovna Rada as an instrument in foreign policy disputes between the teams of the President and Prime Minister was the adoption of the Verkhovna Rada Resolution # 158-V of 19 September 2006 under the title “On Supporting the Position of Prime Minister of Ukraine at the Session of Ukraine-NATO Commission.” The said Resolution was unprecedented as to its form and irrational as to its content. It was for the first time that the parliament approved the political document supporting the words of an official at a meeting held at the international level. Apparently, the Prime Minister’s team wanted that document to affix solidity and relative legitimacy to the positions that had not been agreed upon with the President and contradicted the previously declared official policy of the state. The second endeavor took place on 12 October when Prime Minister Yanukovych announced his Cabinet’s intention to be guided in its activities by the principles of domestic and foreign policy set forth by the Verkhovna Rada. He also stated that the relevant law should be amended. In his words, the Constitution, in particular, “clearly states” that the principles of foreign and domestic policy are determined by the Verkhovna Rada. He noted that the applicable law was adopted in 1993, and now “it is high time” to amend it. “Today, there is a corresponding attitude in the society, it is being reflected in the parliament.” Some days after that, on 16 October, Yanukovych confirmed his standpoint by declaring, at a press conference in Kyiv, that “such a bill on behalf of the coalition has already been prepared with the participation of three factions – the Party of Regions, The Socialist Party and the Communist Party. It will be considered in the parliament.” Despite the fact that the bill had been publicly announced, all our efforts to obtain at least some information about its content failed. The government, as a subject of legislative initiative, has neither considered such bill at its meeting nor, for that reason, submitted it to the parliament. Among MPs’ legislative initiatives on this subject registered in the Rada (see below) there is none prepared by deputies of the Party of Regions. Sources close to that Party’s leadership claim that the text has not been finalized, thus it is too early to talk about it. At the moment, according to our information, responsibility for drafting the renovated bill has been placed with the foreign policy advisers of the Prime Minister, in particular Mr.Kostyantyn Gryshchenko, Mr. Anatoly Orel and Mr. Andriy Fialko. Being trained diplomats, the above-mentioned persons are well-known professionals in foreign policy issues. However, their vision of Ukraine’s foreign policy strategy is different: Mr. Andriy Fialko represents the moderately pro-European diplomatic elite, his views have much in common with approaches of another well-known diplomat, Mr. Oleksandr Chaly – a high-ranking official in the Secretariat of the President of Ukraine. Mr. Anatoly Orel is a person of the entirely Soviet formation known for his pro-Russian and Eurosceptical outlook as well as for his inclination to backstreet intrigues and shadow policies. Mr. Kostyantyn Gryshchenko, following his resignation from the post of foreign minister, closely cooperated with Mr. Yury Boiko, the current energy minister. That cooperation contributed to strengthening his “pragmatic” approaches to foreign policy according to which the protection of interests of domestic big oligarchic capital should be the main task of the international activity of the state. Simultaneously with the development of the new still undisclosed version of the draft law On Principles of Foreign Policy of Ukraine, quite active in this field is the marginal shareholder of the “anti-crisis coalition” – the Communist Party of Ukraine. Its leader, Mr. Petro Symonenko, as early as on 25 May 2006, submitted the draft law On Principles of Domestic and Foreign Policy of Ukraine (registration number 1015). This document is available for analyzing and can be found at the Verkhovna Rada website. It is an attempt to completely revise the domestic and foreign policy of Ukraine. For instance, Article 18 of the document envisages “the non-bloc, neutral status of Ukraine”. The top priority task is defined as “ensuring the full-fledged participation of Ukraine in integration processes in the CIS area, first of all in the framework of the Unified Economic Area, as well as on the pan-European and global scale”. It is exactly in this manner, after the comma and following “as well as”, that the Ukrainian Communists are going to integrate Ukraine in Europe. Evidently, this law cannot be adopted as it is. However, according to our information, the Communists are ready to amend the draft provided that its main provisions remain intact. Other documents that are currently being considered by the Verkhovna Rada profile committees have only minimal chances to be approved by the parliament. Among them, there are several bills submitted during the recent weeks by Mr. Oleg Bilorus, a notable representative of the Yulia Tymoshenko Bloc in the parliament: # 2328 – On Principles of Domestic and Foreign Policy, # 2323 – On Fundamental National Interests of Ukraine, # 2349 – On Principles of Foreign Policy of Ukraine. The latter was resubmitted on 1 November 2006 under the somewhat modified title – On Principles of Foreign Policy Strategy of Ukraine. The bills submitted by Oleg Bilorus are for the most part aimed at approving by law the policy of Ukraine’s membership in EU and NATO. In particular, Article 4 of the draft Law of Ukraine On Principles of Foreign Policy of Ukraine reads: “Transfer of the sovereign rights of the state shall only be possible on the grounds of the full-fledged integration of Ukraine into the European (European Union) and Euro-Atlantic (NATO) structures based on the results of an all-national referendum preceding it”. There is also draft law # 2342 submitted by deputies Mr. Matviyenko and Mr. Bondar (Our Ukraine faction) and entitled On the Concept of Priority Trends of Domestic and Foreign Policy of Ukraine and their Implementation. In fact, it replicates the Universal of National Unity and envisages giving the status of the law to the provisions fixed in the Universal. Among other things, it also contains a controversial and compromised article on the nature of relations with NATO, which has turned out to be interpreted quite differently by either side: “Mutually beneficial cooperation with NATO pursuant to the Law of Ukraine On Principles of National Security of Ukraine (as of the date of the signing of the Universal). Resolving the issues on accession to NATO pursuant to the outcome of the referendum to be held upon the completion of all mandatory procedures thereto by Ukraine.” To understand the character of the disagreement as regards provision of legal support to the foreign policy course of Ukraine, one should also take into consideration the existence of such specific documents as the draft Law On Neutral, Non-Bloc Status of Ukraine submitted by MP Mr. V.Zubanov of the Party of Regions (registration number 1021 of 30 May 2006), which, similarly to the aforementioned bill submitted by Mr. P.Symonenko, seeks to revise the applicable law of Ukraine and its present-day foreign policy. Documents of this sort also include the draft Law On Specificities of Ukraine’s Joining (Accession to) Interstate Organizations (Alliances, Blocs) of Military and Political Nature (# 1095 of 13 October 2006) submitted by deputies Mr. Ye.Kushnaryov and Ye.Shantsev of the Party of Regions. This draft Law has emerged as a result of the clashes as regards Ukraine’s Euro-Atlantic integration. De-facto it can be considered “the law on Ukraine’s non-accession to NATO”. In view of the current alignment of forces in the parliament, it cannot be excluded that the documents of this kind are likely to be supported by the “anti-crisis coalition” and, with all probability, vetoed by the President. The character of the submitted bills demonstrates the lack of a basic consensus on certain critical foreign policy issues along with the intent of the political forces to employ the foreign policy law-making as a means to expand their own authority and an instrument to struggle for power. Conclusion In our opinion, it would be counterproductive, under current political conditions, to adopt legal acts aimed to declare, one more time, the foreign policy “principles”. Any, even the most progressive “principles” will not contribute to the effectiveness of Ukraine’s foreign policy or its reputation in the world arena. Declarations can only serve as another propaganda bugaboo (if they are “right”) or discredit Ukraine (if they are “wrong”). Effectiveness of legislative activities in the field of foreign policy depends on some other thing, namely on the high quality, professional legislative corroboration of the components of the state’s foreign policy activities whenever such corroboration is required. Adoption of the Law on Principles of Foreign Policy drawn up so as to suit the ruling coalition may create a precedent when a new suchlike law will be adopted by a parliamentary majority after each election or reshaping of a coalition, with the President either signing or vetoing that law depending on whether his party makes part of the coalition or not. The ensuing effect on realization of the country’s foreign policy and its image in general is quite obvious.
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