Russia, Moldova, and the EU: Realpolitik as Normative Competition

by Chris Borgen

Today’s New York Times has an overview of Russia’s power politics towards its “near abroad,” countries that used to be part of the USSR.  Some of these countries, such as Armenia, Moldova, and Ukraine, have been debating internally whether to become more integrated with the EU or to rebuild close ties with Russia. Armenia made the news recently for setting aside years of negotiations with the EU and, under considerable pressure from Moscow, announcing that it would join the Russian-led Eurasian Customs Union. While the New York Times article focuses on the foreign policy and economic issues involved, these situations also exemplify the importance of law (both domestic and international) in international relations, because high politics in the ”near abroad” is not about the formal acquisition of territory, but the adoption of norms. (For more on this theme see, also, this.)

The New York Times article uses the case of Moldova as an example of how Russia pressures its neighbors: threatening energy cut offs, banning key exports from Moldova, even bringing religion into play. In the case of Moldova, Russia also supports a separatist group that has seized control of Transnistria, the eastern-most section of the country. (As readers of this blog may know, I was part of a group of lawyers from the NY City Bar who wrote a report on the legal issues related to the Transnistrian conflict and, last year, part of an Open Society Foundations supported study comparing the conflicts in Moldova and Cyprus.)

But the heart of the matter is whether Moldova will become more fully integrated into “European” institutions (the EU, first and foremost) or reintegrate with revamped “Russian” institutions (the Eurasia Customs Union, for example). At times a state can be on one side or another of a normative border: Poland is part of the European normative order, Belarus is in Russia’s. In such cases, when normative boundaries coincide with national boundaries the situation is relatively clear. But the issue of which way Moldova will face is still being contested, somewhat within Moldova (particularly by the Transnistrian separatists) and more so by Russia. Thus, Moldova and certain other states in Russia’s near abroad (such as Ukraine) are borderlands between two normative systems, each state containing aspects of both.

When normative systems overlap and jostle within a country, the result can be normative friction. This can relate to domestic laws, such as whether a particular conception of property rights or of human rights will be adopted. It can also concern international legal norms, such as to which treaties a state will become a signatory, which international organizations a state may join, the recognition of national borders, and issues of non-intervention. Any issue that seems to favor one set of normative system over another can become symbolic of a larger struggle. Even when you put up and take down Christmas decorations can turn into a political crisis.

Although this has been the case in Moldova, Armenia, and Ukraine for years, Russia is increasing its pressure now because these countries are (or, in the case of Armenia, was) on the verge of signing new agreements with the EU.  Ukraine is scheduled to sign a new Association Agreement with the EU in November; Moldova will initial a similar agreement as evidence of its intent to sign in 2014. Moldova is currently in the process of preparing for the entry into force a Deep and Comprehensive Free Trade Agreement (DCFTA) with the EU. The DCFTA would make it much easier for Moldovan goods to enter into the EU market, making Moldova even more closely tied to the EU. The DCFTA may be a marker towards an Association Agreement with the EU and, at some point, possibly even entering into formal accession talks.

So, this is a significant moment in trying to resolve the identity of these systemic borderlands. But does it have to be one normative system or the other? Can Moldova or Armenia be part of both the European and Russian normative orders? According to Radio Free Europe, in the wake of Armenia announcing that it would join the Russia’s Customs Union, the EU commissioner responsible for the European Neighborhood Policy, Stefan Fuele

 …said a country cannot enjoy both a DCFTA and membership in a Russian-led customs union.

“It is true that the customs-union membership is not compatible with the DCFTAs, which we have negotiated with Ukraine, the Republic of Moldova, Georgia, and Armenia,” he said.

“This is not because of ideological differences; this is not about a clash of economic blocs; or a zero-sum game. This is due to legal impossibilities. For instance, you cannot at the same time lower your customs tariffs as per the DCFTA and increase them as a result of the customs-union membership.”

Russian officials have been treating the situation as an “either/or” choice. As reported by the New York Times:

Ahead of a conference next month where the European Union plans to advance political and trade accords with several ex-Soviet republics, Russia has been whispering threats and gripping throats, bluntly telling smaller neighbors that they would be better off joining Russia’s customs union with Kazakhstan and Belarus.

Call it “legal impossibility” or an “ideological difference,” (to use Fuele’s terms) the result is the same: a choice needs to be made about more fully integrating in one normative system or another.
The legal and regulatory aspect of this is important to keep in mind.  According to a report by the policy analyst David Rinnert, the DCFTA calls for the reform of Moldovan laws, rules, and regulations,

in 13 trade-related legislative areas, such as ownership rights and competition law… As of June 2013, all technical questions have been answered, Moldova’s agreed upon milestones achieved and the negotiations on all 14 chapters concluded.

(See linked report by David Rinnert at page 3.)

The DCFTA not only ties Moldova’s economic future more closely to the EU, but is a step in further normative convergence with the EU. And the converse holds true for states joining Russia’s Eurasia Customs Union, which Rinnert described as “part of the Russian project of creating a Eurasian Union, offering its member states (which currently includes Russia, Belarus and Kazakhstan) duty-free transactions, intensified cooperation on trade issues and a framework to unify standards.” (See, Rinnert at note 3.)

It is difficult to imagine how one can harmonize domestic laws and trade regulations both with the EU and with Russia. You can trade with both, you can be friends with both, but it would be difficult to significantly harmonize your domestic norms and regulations along two different lines simultaneously.

The normative divergences are so stark as to fuel secessionist rhetoric. According to the Congressional Research Service (Moldova: Background and Policy, June 5, 2013, p. 4), the Transnistrian separatist regime, for example, has stated their intention to accede to Russia’s Customs Union.  And Russia has also raised the specter of secessionism in Ukraine, specifically linking it to Ukraine’s signing the EU Association Agreement.

One way to possibly decrease the sense of this being a zero-sum game is to increase ties across normative systems. The EU’s Fuele noted that the EU encourages its eastern partnership members to engage with Russia and to cooperate with the Customs Union, perhaps as observers. He also stated:

 ”We have to do a better job in communicating with Russian friends. Make this point again and again. The eastern partnership is not at your expense, it is not against you, it is not against your interests…”

Fuele also observed that EU norms often are adopted internationally and are fully compatible or identical with World Trade Organization rules, which should help everyone, including Russia, to modernize and open up to globalization.

Another strategy may be to forego harmonization with either Europe or Russia and to rely on underlying global norms.  At this point, though, I simply don’t know how politically and economically practical or impractical it is for Moldova, Ukraine, or other states in the Near Abroad to refuse integrating into the Customs Union without simultaneously seeking closer ties with the EU.

In any case, if the jostling over Moldova, Ukraine, and Armenia is realpolitik,  it is a realpolitik that is being realized through a struggle over norms and laws. It is regulatory competition, writ large.

There may be limits, though, to how deeply Moldova may integrate with European institutions. Setting aside Russia’s pressure, Moldovan accession to the EU may not be politically viable from the EU’s end for the time being. The turbulence over the Euro and EU budget pressures has made some EU states skeptical about further widening the EU with one or more poorer countries (Moldova being the poorest country in Europe). Moreover, the insecurity caused by the Transnistrian situation and a bad aftertaste over allowing Cypriot accession without first resolving the separatist conflict over Northern Cyprus has led to concerns that some EU politicians would not allow accession of another state with an unresolved separatist conflict.

As noted above, another contextual factor is that the next big question will be “whither Ukraine? ” The question as to whether Ukraine, another systemic borderland, will increase integration with Europe or Russia is a classic question of high politics and high anxiety.  But, once again, this is competition that is based not on acquiring territory but on defining norms, regulations, and treaty regimes.

Welcome to realpolitik 2.0.

http://opiniojuris.org/2013/10/23/russia-moldova-eu-realpolitik-normative-competition/

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