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  • The door to NATO is neither open, nor closed

    02.08.2010

    On July 15 Viktor Yanukovych signed the Law of Ukraine "On Fundamentals of Domestic and Foreign Policy" approved by the Verkhovna Rada of Ukraine (VRU) on July 1, 2010. Like its predecessors, the law has traditionally preserved an advisory (rather than prescriptive) nature.

    Already during the first reading of the law the Main Directorate for Scientific Expertise of the VRU had expressed quite reasonable doubts on the necessity of adoption of the Law. According to the Constitution of Ukraine the Parliament determines the principles of domestic and foreign policy (art. 85, par. 1 item 5); however this function of the VRU does not necessarily have to be reflected in "the single universal legal act in the form of a law." Furthermore, it is obvious that the universal application of such law could be achieved only through declarative statements of general content rather than specific legal prescriptions.

    The Law claims for a backbone role in the shaping of the public policy legal framework. However, there are no legal grounds for this claim, since the Constitution of Ukraine is the only legal act of universal and comprehensive nature. Besides, the provisions of the Law largely duplicate the Constitution itself and such international legal documents as the UN Charter (e.g. foreign policy principles set out in art. 2 par.3 of the Law).

    Despite these reservations, the political decision was to adopt the Law. The document has preserved almost all of above-mentioned shortcomings. Thus, the approved Law would have rather limited legal consequences, apart for its high-profile provision on the non-aligned status of Ukraine (art. 11, the fundamentals of foreign policy). The article envisages amendments in the Law "On Principles of National Security of Ukraine" (2003), withdrawing NATO membership from the "priorities of national interests" (art. 6) and “basic directions of state national security policy" (art. 8).

    At the same time, defining the non-alignment as “Ukraine’s non-participation in the military-political alliances, the priority of participation in improving and developing the European collective security system, the continuation of  constructive partnership with NATO and other military-political blocs concerning all the issues of mutual interest" (art. 11, par. 7 item 2), the Law ascribes to this rather vague notion a meaning, which allows for a number of conclusions. First, the given provision excludes the possibility of Ukraine's accession to the Collective Security Treaty Organization (CSTO), concerns about which have already been expressed by some of the Ukrainian media. Second, such understanding of non-aligned status at least in legal terms doesn’t hinder any further cooperation with NATO, in the course of which, according to Foreign Minister Kostyantyn Gryshchenko, the focus merely has been shifted from the result on the process itself.

    Other provisions on the fundamentals of foreign policy indicated in Article 11 do not imply any major changes in Ukraine’s foreign policy course. With only few provisions of specific content, the article consists mainly of such self-evident statements as "providing ...  by means and methods foreseen by international law protection of the sovereignty, territorial integrity and inviolability of state borders of Ukraine”, or even such vague phrases as "comprehensive political dialogue to enhance mutual trust among states".

    However, the fundamentals of foreign policy affirm Ukraine’s aspiration for membership in the European Union (art. 11 par. 2  item 12), also reflected in the principles of domestic policy (thus demonstrating the awareness of the need to achieve internal "Europeanisation" while implementing the policy of European integration), referring to the European experience (art.3), approaches (art.7), standards (art.8), compliance with the requirements of the European institutions (art. 6), integration in the European and global educational and academic space (art.10) etc.
    In addition, the principles of relations with other countries, particularly with Russia, are only indirectly specified: for instance, Ukraine "seeks cooperation with all interested partners, avoiding dependence from individual states, groups of states or international organizations" (art. 11, par.1).

    Therefore, one may conclude that the adoption of the Law was imposed mainly by the political necessity to legally secure Ukraine's non-aligned status, the implications of which are more visible for the creation of constructive atmosphere of the Ukraine-Russia dialogue, rather than for Ukraine’s cooperation with the Alliance.

    Finally it is worth mentioning that the introduction of non-aligned status provides for certain changes only de jure, whereas de facto it merely reflects the present state of affairs, i.e. the impossibility of joining NATO in the mid-term perspective conditioned by the combination of internal and external factors. Does it imply that, provided favorable external circumstances for Euro-Atlantic integration, Ukraine will have to refuse an invitation to join the Alliance? From the legal point of view, the answer to this purely hypothetical question lies in the sphere of passing amendments to the given Law.

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