On November 21 2013, massive protests under the European Union flag erupted in the central square of Ukraine’s capital, Kyiv. The Euromaidan revolution demanded democratic values and decried the kleptocratic regime of the then president, Viktor Yanukovych. In the next three months, a hundred activists were killed, Russia annexed Crimea and supported breakaway forces in a war that tore apart eastern Ukraine.
Euromaidan was the catalyst for the birth of civil society in Ukraine. Opinion polls suggest that, since the protests, Ukrainians have higher levels of patriotism and trust in each other, and are more optimistic about the nation’s future. The level of civic activity and desire to contribute to the nation’s development have increased.
In October 2015, 41% of Ukrainians reported being more willing to donate (12% were less willing), while 33% were more willing to protect their rights, freedoms and dignity (compared to 8% whose readiness declined). Furthermore, 22% were more willing to volunteer in the local community and 18% reported an increased willingness to join a civil society organisation.
In 2012, 23% of Ukrainians made donations, increasing to 41% in 2014 and 47% in 2015. This growth is significant given the impoverished conditions people faced around the country.
Unfortunately, these civic gains have failed to translate into real political activity. Low turnouts at elections (especially among 18 to 29-year-olds, the most active and educated citizens) and citizens voting according to populist television advertising or accepting “gifts” in exchange for “correct” voting are all reasons for the slow pace of progressive reform, and the even slower replacement of the political elite.
2. The Ukraine–European Union Association Agreement
On September 1 2017, the association agreement between the European Union and Ukraine, which was negotiated between 2007 and 2011 and signed in 2014, finally entered into full force. The agreement is seen within the country as the main tool for bringing Ukraine closer to the EU because it promotes stronger political ties and economic links, as well as respect for common European values.
The hope is that the agreement, including its Deep and Comprehensive Free Trade Area (DCFTA), will provide a framework for modernising Ukraine’s trade relations and economic development by opening up markets and harmonising laws, standards and regulations with EU and international norms.
We have only one road to follow – a wide Euro-Atlantic highway leading to membership in the European Union and NATO.
3. Visa-free travel in the EU
The EU lifted visa requirements for Ukrainians on June 11 2017. The move sparked joy among Ukrainians and raised their expectations for a better future in an aspiring EU member country.
All Ukrainian citizens with biometric passports can now enter the Schengen area without a visa for up to 90 days for tourism or business. However, they are not allowed to work in the EU.
4. Reform program begins
In the summer of 2016, long-awaited judicial reform began. Amendments to the Ukrainian Constitution on the judiciary and a few corresponding laws were adopted. However, it is too early to evaluate these changes.
Ukraine has also taken steps towards greater transparency to combat corruption. Government officials are now obliged to declare their assets and property. The results have displayed a shocking concentration of wealth in one of the poorest countries in Europe.
Ukraine’s online procurement system, ProZorro, has already become a global brand, with the World Bank planning to adopt it for its Ukrainian projects.
Still, these efforts are only a small first step towards eliminating corruption. Education, energy and regional reforms are yet to take place. These will require serious financing and take a long time.
Ukraine’s decision to pursue a “Western direction” caused a wave of social cleavages in cross-border, multi-ethnic southern and eastern Ukraine. The tensions resulted in the Russian annexation of Crimea and war around two Russian-backed breakaway provinces.
The war has touched every facet of social, economic and political life in the country. Here are some telling facts:
10,225 citizens had been killed as of August 15 2017
1.4 million people had been internally displaced by August 2015
In 2016, the economic collapse was halted as GDP inched up 0.1% in the first quarter and 1.4% in the second. However, these marginal gains were short-lived, as the economy shrank again by 6.1% by April 2017. Even if the economy now manages to sustain 3-4% annual growth, it will take four to five years to return to 2013.
3. Remaining corruption
Post-Euromaidan Ukraine has seen little change in state and institutional corruption. The several anti-corruption institutions created in the past four years are scattered and the country still lacks anti-corruption courts and effective preventive tools. Anti-corruption activists are still subject to prosecutions and attacks.
Ukraine only managed to move up one point in the global Corruption Perceptions Index in 2016 and 2017, ranking 131 and 130 out of 176 and 180 nations respectively.
Disappointment with the government and poverty levels is growing. In 2016, only 9% of Ukrainians were satisfied with the president’s actions, with 70% dissatisfied. [LINK to poll] Only 5% were satisfied with the government and 58% were not. And only 2% were satisfied with parliament’s performance, with 83% dissatisfied.
4. Setbacks for freedom of speech and the free media
With the war in eastern Ukraine came an information war between Ukraine and Russia. As a result, freedom of speech and the media in Ukraine has significantly deteriorated in the past four years, with unavoidable radicalisation on both sides of politics.
There is little media diversity, as just a few oligarchs control the top outlets. President Poroshenko, for instance, owns his own television channel.
Anti-government views are often deemed “pro-Russian”, effectively chilling freedom of expression. The intolerance of opposition media is violently visible. There have been protests and scandal over “pro-Russian views”, with broadcast studios being burnt.
Dozens of journalists have been denied entry to Ukraine. Human Rights Watch has urged Ukraine to protect free media and drop its ban on Russian and Western journalists.
5. A wary EU
Ukraine will definitely not be able to become a member of the EU in the next 20 to 25 years, and not of NATO either. – European Commission President Jean-Claude Juncker in March 2016
While Juncker did not explain why Ukraine would have to wait so long, his speech was aimed at reassuring Dutch voters that the association agreement with Ukraine was not a step towards quick EU membership.
In April 2016, 61% of votes in a Dutch referendum rejected the agreement (a 32% turnout was barely enough for the result to be valid), in a rebuke to their government and the EU establishment. The broad political, trade and defence treaty – already signed by the Dutch government and approved by all other EU nations, along with Ukraine – provisionally took effect in January 2016.
A recent opinion poll suggests that 58% Europeans support Ukraine joining NATO, and 48% support Ukraine joining the EU. But, in 2015, when the first such poll was held, a majority (55%) favoured Ukraine becoming an EU member. Today, the idea is best supported in Lithuania and Poland (68% and 67% respectively), and least supported in the Netherlands (27%). The level of support in France, Germany and the UK is less than half of the people polled.
Evidently, the post-Euromaidan government efforts failed to make the case in the West for Ukraine to gain EU membership. Whether the EU will admit Ukraine (and when) is a big question. Within Ukraine, plenty of work remains to be done to ensure the success of its ambitious plans for economic growth, modernisation and accelerated democratisation.
Multiple parallel actions are ongoing with the aim of achieving truth and justice for the 298 passengers and crew of Malaysian Airlines flight MH17. The flight was shot down over Ukraine on July 17, 2014.
An investigative team, led by the Dutch aviation authority and endorsed by the Australian government, concluded that the aircraft was shot down by a BUK missile. More than 100 individuals were identified in the 2016 report as linked to the incident. The investigation is ongoing.
Australia’s foreign minister, Julie Bishop, advocated for a war crimes tribunal to apportion blame for the incident. However, this proposal was vetoed by Russia in the UN Security Council.
This week, focus has turned to an action lodged in the European Court of Human Rights by lawyer Jerry Skinner on behalf of 33 relatives of MH17 victims. Skinner claims that the application has reached the stage of “ready for judicial determination”.
As reported last year, each applicant is seeking A$10 million in compensation from Russia. The claim is that Russia is responsible for violating the right to life of those killed due to its alleged supply of the missile that was launched from Ukraine, bringing down the aircraft.
However, the case lodged by Skinner is not yet listed in the court’s database. It is unclear how far the application has progressed but it certainly faces a range of major obstacles. The status of “ready for judicial determination” does not appear to be an official stage of proceedings in the court.
The European Court of Human Rights
The European Court of Human Rights was established in 1959 and sits in Strasbourg. It has jurisdiction to hear complaints from individuals and countries, alleging violations by countries that are party to the European Convention on Human Rights.
The court has delivered more than 10,000 judgments, which are formally binding on the countries subject to them. It receives more than 50,000 applications each year.
The application from Ayler and others is not the first to be lodged in the court in relation to Flight MH17. The case of Ioppa v Ukraine was lodged with the court in 2016.
The four applicants in that case are family members of three of the passengers killed on board Flight MH17. They have complained against Ukraine, rather than Russia. Specifically, they argue Ukraine violated their relatives’ right to life by failing to close the airspace above the military conflict zone that was active in eastern Ukraine in 2014.
The applicants allege that Ukrainian authorities intentionally failed to close the airspace despite their knowledge of the dangers posed to civilians travelling over Ukraine in passenger aircraft.
The application is currently noted as a “communicated case”, meaning it is awaiting judgment. The court has asked the applicants to identify what they have done to exhaust any available domestic legal remedies before applying to the court – particularly any legal avenues available in Ukraine.
The court has not yet published a preliminary finding on the admissibility of the case. This is the necessary first step before notice will be given to Ukraine to respond to the application. The case is certainly a long way from any potential judgment by a chamber of the court.
The Council of Europe
The European Court of Human Rights is not a creature of the European Union, but rather of the Council of Europe. The Council of Europe is a human rights organisation of 47 members, 28 of which are also EU members. All Council of Europe members have signed the European Convention on Human Rights.
The Council of Europe seeks to promote goals central to the international human rights framework, including freedom of expression and of the press, minority rights, and the abolition of the death penalty.
As a Council of Europe member, Ukraine is subject to judgement by the European Court of Human Rights. The applicants in Ioppa v Ukraine are all nationals of Germany, another member. Other Council of Europe members central to the MH17 situation are the Netherlands – because the flight originated at Amsterdam’s Schiphol airport – and Russia.
Should the European Court of Human Rights find Ukraine liable for a breach of the convention, Ukraine will be bound by that judgment. The committee of ministers of the Council of Europe monitor the execution of judgments by countries subject to them, including compliance with any orders to pay damages to complainants.
However, the European Court of Human Rights and the Council of Europe both lack enforcement capacity within the domestic jurisdiction of members, and would rely on diplomatic pressure to compel compliance with a judgment. Such pressure may be more or less effective depending on the status, power and political stance of a given member.
Prospects of success
Skinner has called on Australia to support the Ayler application. Bishop has responded that such litigation is a private matter for the families involved and those they are taking action against.
Bishop’s position is that Australia’s role is to support the ongoing investigation into the causes of the incident and then to pursue a justice mechanism with other countries.
It is important to note that Australia has no standing to join any action before the European Court of Human Rights, as it is not a member of the Council of Europe. However, Skinner argues Australia could exert diplomatic and political pressure to support the action.
Unfortunately for the families engaged in the European Court of Human Rights applications, litigation before that court appears to be a very indirect and unreliable route to gain compensation for the loss of their loved ones.
In the case against Ukraine, beyond the as-yet-uncrossed jurisdictional barriers, it may be necessary to prove that Ukrainian authorities knew of a direct threat to those on board MH17. This is a much more difficult standard to prove than a general awareness of threat to any civilian aircraft.
In action against Russia, setting aside the considerable jurisdictional issues and matters of proof, there is a major added barrier to satisfaction for the applicants. Russia has passed a law permitting it to overrule the decisions of international courts.
The Russian Constitutional Court subsequently ruled that Russia is permitted to overrule international judicial decisions where these would conflict with the Russian Constitution.
Russia disputes the preliminary findings of the ongoing MH17 investigation and rejects suggestions of its responsibility for the atrocity. This suggests that Russia would not accept responsibility for any finding of human rights violations by the European Court of Human Rights.
From an international law perspective, the stakes of such an action are higher for Russia than human rights litigation launched by victims’ families. However, Russia’s response is likely to be the same. While the International Court of Justice has progressed the case beyond the initial stage, a finding against Russia may well be disputed and any orders ignored.