Almut Rochowanski
Ukraine is ticking boxes, such as ratifying the Istanbul Convention, to join the EU. That’s a bad idea
On 17 June, the European Commission recommended that Ukraine be granted EU candidate status as long as the country meets a substantial list of conditions. Numerous shortcomings were hinted at across the 30-page document, among them Ukraine’s failure to ratify the Istanbul Convention.
Barely 24 hours after this list of conditions was published, Ukraine’s government asked parliament to ratify the convention, which it did without further ado.
The Istanbul Convention (full title: the Council of Europe Convention on preventing and combating violence against women and domestic violence) is an ambitious document. Drafted in 2011, it draws on unabashedly feminist analysis of the causes of violence against women and girls to commit its parties to groundbreaking legal and policy changes.
On the surface, the convention’s ratification should be great news for women and girls in Ukraine, and the move was welcomed by Ukrainian women’s rights activists.
I wish I could share their joy after witnessing their struggles and frustrations for years. Instead, my heart sinks.
New laws ignored
I began collaborating with women’s rights activists in Ukraine, Moldova and the South Caucasus in 2014. Initially I was dispatched by international women’s organisations to offer advice or conduct research, but I soon began building my own activist networks for mutual support and exchange. At the time, these countries, enrolled in successive EU integration processes, were rapidly adopting new laws to tackle violence against women.
Local women’s rights activists were roped into advocacy and drafting these laws, channelling much of their time, energy and hopes into what seemed to be a shortcut to solving protracted problems. But those cutting-edge new laws were not being implemented – and to a striking extent.
Often, police officers, prosecutors and judges had not heard of the new laws or been instructed to apply them, and reacted with indifference or hostility. Essential services mandated by the new legislation – such as shelters and psychological counselling – remained unavailable, because the government had not budgeted for them.
This is what I heard, time and again, from local activists who had placed so much hope on these reforms. It was intensely frustrating and confusing for them.
Across the region, this dysfunction, I believe, stems from a lack of authentic political will (a conclusion shared by the European Commission in an internal document shown to me). Domestic violence laws had been adopted because it was a condition set by the European Union in the context of the Eastern Partnership initiative or Association Agreements.
In return for fulfilling tasks on to-do lists drawn up by the EU, countries like Ukraine receive benefits – such as macro-financial assistance, access to markets, visa-free travel to EU states and, most recently, the promise of EU membership.
Does it matter how a law is adopted or a convention ratified? Isn’t the main thing that it’s been adopted in the first place? After all, if it’s a good law (or convention) and it’s on the books, it will improve people’s lives, right?
The ‘how’ matters. Laws and policies will only be as effective as the political will that brought them into existence. Political will ensures that civil servants, law enforcement and courts are willing and able to implement laws, through instruction, resources, monitoring and consequences if they fail to do their job.
In a democracy, political will is generated by pressure from constituencies that elect governments and hold them accountable. For example, interest groups such as unions or professional/industry associations, specific demographics (“the youth vote”) and broad-based civic movements.
Ratifying the Istanbul Convention
It is revealing that Ukrainian decision-makers deemed ratifying the Istanbul Convention the lowest-hanging fruit on the to-do list, something they could do immediately and without cost.
For 11 years, successive Ukrainian parliaments had failed to ratify the convention, due to resistance from conservative and religious factions and the indifference of the remainder of the political spectrum. There had never been domestic constituencies strong enough to push through ratification.
That did not change overnight on 18 June. The only thing that changed is that the EU tied ratification to candidate status.
“In return for fulfilling tasks on to-do lists drawn up by the EU, countries like Ukraine receive benefits”
But ending violence against women isn’t low-hanging fruit. It is probably the hardest, most Sisyphean cause of all – as the US Supreme Court’s decision to strike down women’s right to abortion has once again made clear. Violence against women is a function of the patriarchal power inequality between men and women: women are subjected to violence to keep them in their place, controlled, scared, exploited.
To reduce violence against women, we must chip away at the patriarchy itself and shift power to women. This is no mean feat.
Change must be fought for and negotiated across society, through raising awareness, mobilising citizens, winning allies, building movements and eventually majorities, so that elected officials are motivated or at least feel compelled to enact laws and enforce them – and will be held accountable.
We cannot hope to reduce violence against women by skipping normal political processes and instead going with depoliticised, fast-tracked technocratic trickery.
The Istanbul Convention lends itself well to the transactional ‘reforms for benefits’ dance that the EU performs with countries seeking integration. Ratification is a neat, easily measurable act, convenient for commission officers monitoring progress against a list. It symbolises the generic “EU-ropean” modernity required of aspirants to be deemed worthy of EU engagement, and fits perfectly into the commission’s strategy of geopolitics of human rights.
But the Istanbul Convention is short on direct impact and accountability. Victims cannot take the convention to the police or a court and demand to be protected. It needs to be translated into domestic laws, which then need to be enforced and paid for.
Even in countries where the political system is not distorted by external actors’ conditionality, full implementation of the Istanbul Convention has remained elusive, with no meaningful consequences for state parties failing in their obligations.
For women and girls facing gender-based violence in Ukraine, this does not bode well. The Istanbul Convention was ratified without genuine political will or the constituencies that generate it. Who will now ensure its implementation?
The ‘European Incentive Model’
Beyond the Istanbul Convention, there is the greater question of whether the EU’s incentive-based, transactional transfer of norms works – both for transferred norms (will those laws be implemented?) and democracy (will democracy be strengthened?).
At the time of EU enlargement into east-central Europe in 2004, a number of political scientists proposed that the incentive of EU membership and the very process of absorbing EU laws had enabled accession countries to stay the course in their challenging democratic and economic transition.
This so-called ‘European Incentive Model’ (scrubbed of the nuance and caveats of the original research) became a triumphalist creed about the power and ingenuity of EU enlargement. Its grip on EU elites remains strong, even as many of the newer EU member states have been backsliding on democracy and the rule of law, and further enlargement has turned into a quagmire.
Watching the European Incentive Model from where my grassroots activist colleagues in Ukraine, Moldova or Georgia sit, I am left wondering whether it doesn’t, in fact, undermine democracy rather than strengthen it.
The long, slow process to EU membership
Once Ukraine has undergone the substantial reforms required to achieve final candidate status, membership negotiations start. Contrary to the ordinary meaning of the word ‘negotiations’, there is no give and take here.
Ukraine will have to adopt into its domestic legislation and practice the Acquis communautaire – that is, the 35 detailed chapters of EU law, covering broad areas of governance from taxation to food safety, fisheries to science.
EU leaders have suggested that this process could take 15 to 20 years. During this time, the bulk of new laws and policies will be adopted not because Ukrainian electorates demand them, not because broad-based Ukrainian interest groups and civic movements put them on the agenda, and not because Ukrainian elected officials endeavour to solve problems they diagnosed. Instead, this process will be based on the acquis and checklists, benchmarks and timetables drawn up in Brussels.
What happens to democracy during this long-winded process?
New policies do not reflect the electorate’s priorities; citizens grow alienated from politicians who have no time for them; officials succumb to constituency confusion as they perform for Brussels; democratic institutions such as political parties wither or fail to launch. Then comes the day that EU membership is bestowed, the ostensible zenith of a country’s democratic development. But after normal democratic practice has been suspended for so long, democracy emerges tattered and atrophied, the causes of future backsliding already baked in.
In the extraordinary circumstances of 2022, the EU stepped out of its comfort zone (and indeed its own laws) to grant Ukraine candidate status. If there ever was a moment to rethink the accession process, so that it allows democracy to thrive, not fray – this is it.