On 16th and 17th March 2023 Taras Shevchenko University in Kyiv hosted an international conference, which took place under the umbrella of Jean Monnet Network. The Jean Monnet Scientific Conference was entitled “Legal and Political Issues of Cyber Security and Fight against Disinformation in the Process of Integration of Ukraine into the European Union” and provided a unique opportunity for exchanging views among teachers and researchers from Partner universities, leading experts from the European institutions and bodies of Czech state administration and national Associations of European studies. The Conference was organised under the Jean Monnet Network „European Union and the Challenges of Modern Society (Legal Issues of Digitalization, Robotization, Cyber Security and Prevention of Hybrid Threats)“, including Palacký University in Olomouc (Czech Republic) as the principal coordinator, the Heidelberg University (Germany), the Tallinn University of Technology (Estonia), the Comenius University in Bratislava (Slovakia), the Taras Shevchenko National University of Kyiv (Ukraine) and in cooperation with the Czech Association of European Studies. The event is held at Palacky University just in the time of celebration of the 450 anniversary of its foundation.
The Conference was open by the warm welcome by Assoc. Prof. et Assoc. Prof. JUDr. Naděžda Šišková, PhD., Head of Jean Monnet Centre of Excellence of EU Law, Faculty of Law Palacky University, President of the Czech Association for European Studies, Coordinator of Jean Monnet Network. She highlighted a high number of participants from various cities in Ukraine (Kyiv, Kharkiv, Odessa), Tallinn, Olomouc, Heidelberg, and many others around Europe, making the conference unique. However it is not only the number of participants making the conference unique, but also most actual and up-to-date issues, are related to Russian aggression against Ukraine. These include the future of Europe, the accession of Ukraine into the EU, issues of cybers security, and Russian propaganda. After the introduction of the project and events organized within the Jean Monnet Network, the word was given to prof. Volodymyr A. Bugrov, PhD., Rector of the Taras Shevchenko National University of Kyiv.
Mr. Bugrov kindly welcomed all participants of the conference and expressed his gratitude towards the organizers and state authorities present at the event. He highlighted the real added value of the conference dedicated to very practical issues which might have a real impact. Another greeting was delivered by Yevgen Gerasymenko from the Institute of Law of Taras Shevchenko National University of Kyiv. In his welcoming speech, he appreciated the topic of the conference and highlighted its importance due to Russian aggression against Ukraine.
The first “VIP” panel was opened by Naděžda Šišková. The panel was dedicated to the “Legal and Political Issues of the Integration of Ukraine into the European Union – from Candidate Status to the Full Membership.” The first speaker was Jaroslav Kurfürst, Director General for European Issues, Czech Ministry of Foreign Affairs who dedicated his contribution to the“Associated Trio: the Way from Candidate Status to the Full EU Membership“. According to his opinion, accession of Ukraine into the EU is one of key processes on the European continent. He expressed respect to all fighters in Ukraine, who are not fighting only for the future of Ukraine, but also for the future of liberal democracy on our continent. The process of accession is also about institutional integration, and this was main focus of his speech. He highlighted the beginning in Eastern Partnership and “deep and comprehensive” attitude in an approximation of legislation. He noted that Ukraine is well prepared for the process and compatible. The clear European perspective was given to associated trio by granting candidate status to Ukraine and Moldova last year and perspective for Georgia. On the side of applicant countries, there are many steps to be taken and the steps will be evaluated by the European Commission. So far, there are no obstacles to the beginning of the accession talks.
The challenge might be to deliver quick results to the citizens, who have expectations of quick change. Some problems in candidate countries are systemic. On one hand, it is possible to get rid of them during the accession, but it will take a lot of time. It is necessary to note, that it also EU has to be prepared for enlargement. So it is possible to find some compromise and integrate Ukraine gradually. For example, today is Ukraine much better integrated into the EU single market than two years ago. Sectoral integration is a possible way to move forward much faster. Mr. Kurfürst expressed admiration of the Ukrainian state, which is under the conditions of war functioning very well and showing a great degree of resilience, which is also a positive for future accession talks.
Another contribution was delivered by Andrii Zablotskyi, Cyber Diplomacy Adviser to the Ministry of Foreign Affairs of Ukraine who spoke about 2023 Trends on Cyber Diplomacy of Ukraine. He opened his speech with an introduction to the complexity and problems of the cyber field under the conditions of war. Since the aggression, cybersecurity in Ukraine is a top-level issue. Despite Ukraine is thankful for the help and assistance, the cybersecurity decisions of the EU are not well matching the needs of Ukraine in the field as there are many challenges. On the other hand, Ukraine is having very rich experience in countering cyberattacks from Russia which are now enhanced by artificial intelligence – for example, in the area of translation. Mr. Zablotskyi presented the main law regarding cyber security in Ukraine. The very important role is dedicated to cyber diplomacy where Ukraine is intending to create a special envoy for cyber diplomacy who will be in charge of a special body.
The word was given to JUDr. Pavel Telička, the main negotiator and former Commissioner and former Vice-president of European Parliament who was talking about “Similarities and Differences of Czech Accession and Future Accession of Ukraine to the EU”.He started his speech with a personal experience when in 2004 it was hard to explain, that EU enlargement in the case of Ukraine is not on the table. However, today, we are in a very different situation. Accession is an unprecedented process, which might not be compared to anything else. Once, open, people find that the process is much more complex and difficult than expected at the beginning. The negotiations are very demanding because dealing with very concrete rules and many actors involved who push for different interests.
After the screening, it would be difficult to identify issues that are necessary to be defended and negotiated. And that might be difficult because the process is having different dynamics and different phases when “the window of opportunity” is open. Many norms have a significant impact on practices, for example, hygienic norms in slaughterhouses. In fact, there is a domestic process of formulating interests and then the negotiation arena. Finding a proper balance is the most challenging aspect of the process. Moreover, it is not only about Brussels, but you have to be aware, of what Paris, Berlin, Prague…is thinking about it, whether they have some issue or not. Then, to succeed in negotiations you need good allies, including insiders. As Mr. Kurfürst said, having a well-functioning state is just the beginning of the process. Industry being destroyed, cities are destroyed, it is an opportunity to build it up on a “green field”.
Mr. Jaroslav Kurfürst was asked: EU-Ukraine Association Agreement is having slightly different nature as it was a “tailored” agreement for Ukraine which was different from the previous style of the agreements. How much was this agreement influenced by the war? He replied, that the framework of the agreement gives positive impetus to Ukraine and also other candidates. The process in Ukraine is very special and there is a dilemma, whether to finance approximation from pre-accession tools or some special tool will be needed, because the accession will be characterized by the reconstruction of Ukraine. There is a question, of whether there shall be some soft rules conditionality or not. For example, that rule of law will be applied, etc. There is also a question about the regime of Ukrainian borders which will have implications for supply chains. Maybe some cities will be not rebuilt which will have implications for regional development. As noted by Pavel Telička, you will need to find a compromise between many players, which will be very hard not to undermine the accession process.
Regarding the prospects for Georgia, which is facing 12 steps to receive a candidate status, Some steps are hard and we can observe a lack of seriousness from the side of the Georgian government in relation to adopting EU norms, including rule of law. The last issue is the “foreign agent law” which is putting pressure on the NGO sector. And there are issues, which are complicated.
A questions for Pavel Telička. What was the most complicated area in the case of the Czech Republic to negotiate and do you think this will be also the case for Ukraine? According to Pavel Telička, most complicated areas were related to domestic issues, especially in cases where ministers were disconnected from the negotiation process. And there are politically sensitive issues, sometimes irrelevant. For example, in the case of second citizens’ residency and property rights. This was very sensitive. And also, areas, that were about money and expenses, because “money speaks, money counts”.
A question for Jaroslav Kurfürst: What is the optimistic estimate of the EU membership for Ukraine? It is a difficult question for the diplomat. However, it is very much in hands of Ukraine. There are too many uncertainties today related to the war against Ukraine and many challenges on the side of the EU. We have so many unknowns. I would like to see Ukraine in the EU very well prepared as soon as possible. It will take time and we have to say it and admit it.
The part of the first VIP panel was opened by its chair – Prof. Dr. Dr h.c. mult. Peter-Christian Müller-Graff, Head of the Chair for Economic Law and European Law, Faculty of Law Heidelberg University, President of the German Association of European Community Studies. Mr. professor summarized the morning ideas and highlighted valuable methods for analysing the accession process as presented by JaroslavKurfürst and Pavel Telička. He highlighted, that in this part three perspectives from Ukrainian partners will be presented.
Prof. Dr Kseniia Smyrnova,Vice-rector for International Relations, Taras Shevchenko National University of Kyiv spoke about the “Europeanization of the Legal Order of Ukraine in the Conditions of Candidate Status”. After debating the nature of Europeanization, she mentioned accelerators of Europeanization in Ukraine. Notably, EU-Ukraine Partnership and Cooperation Agreement stimulate voluntary harmonization and EU-Ukraine Association Agreement enables access to the market, legal approximation, and obligatory adaptation. She provided a comparative perspective on the accession process and the relationship between an application, candidate status, negotiations, and membership. The last part of her contribution recapitulated the Ukrainian way toward candidate status in the years 2014 to 2022 with a special focus on the questionnaire, which contained more than 1200 pages. For measuring preparedness and commitments the Government Office launched a special IT tool measuring individual sectors. Some are well prepared, while others like financial cooperation and fight against the fraud or consumer protection are weak. A very interesting part was dedicated to the enforcement of Europeanization through the judiciary in Ukraine in the cases like Zentiva, Vinnitsa state administration (state aid case) or the case DTEC ZahidEnergy which in some aspects highlighted the authority of EU law (e. g. Association Agreement). She concluded, that the process of Europeanization is very visible and might be well analysed.
Assoc. Prof. Alla Fedorova, Ph.D from theInstitute of International Relations, Taras Shevchenko the National University of Kyiv spoke about “The Role of the Fulfilment of the Obligations under the EU – Ukraine Association Agreement in the Conditions of Candidate Status”. Prof. Fedorova stressed, that according to the European Commission, the association agreement extensively covers the entry obligations, and, in this sense, Ukraine already started its adoption of acquis which will positively influence the screening process. In addition to the Action Plan for adopting acquis, there were many special laws moving the agenda of implementation forward. In August 2022 Ukraine completed almost 70 % of the obligations coming under the association agreement. A week ago, it was almost 80 % of the obligations, as was announced by the Deputy Prime Minister. Now, Ukraine is at an early stage of preparation to negotiate in eight chapters which shows that Ukraine shall continue to work to fulfill obligations. On the other side, there are some sectors, which implemented all provisions of the EU, like equal rights of men and women in employment, which was later negatively evaluated by other international actors. There is a question, of whether formal adoption of EU norms will be enough, when not have a full impact in practice. In other words, there is a difference between formal adoption and the real use of rules and their impact on society. She concluded that implementation is not only about a number of obligations but mainly about the quality of implementation and emerging legislation.
The panel was concluded by Assoc. Prof., Olena Sviatun Ph.D, Institute of International Relations, Taras Shevchenko the National University of Kyiv “European anti-corruption mechanisms as a key factor of Ukraine’s candidacy status for EU membership”. Regarding the corruption perception index, Ukraine is in 116th place which means, that corruption is a challenge. Ukraine is focusing on the UN Convention against Corruption which is the only universal legally binding instrument to fight corruption. Ukraine signed the convention in 2003 and it come into force for Ukraine in 2009. Then there is a Criminal Law Convention on Corruption of 1999 whose implementation is monitored by the Group of States Against Corruption (GRECO) in which Russia was suspended due to aggression against Ukraine. Another tool is the Civil Law Convention on Corruption. Ukraine is a member of GRECO since 2006 and since then it undertook four rounds of evaluation up to 2016, but now is still under evaluation procedure and compliance procedures. GRECO provided 31 recommendations for Ukraine and so far Ukraine implemented only 9 of them. Within the last 20 years, the EU legal framework aimed to fight against corruption began to consist of several elements (mainly based on directives) which will be implemented in the case of Ukraine. European Commission delivered its opinion (in 2022) stressing great progress on one hand, but persistent problems on the other. Commission highlighted, that Ukraine is part of many conventions and bodies, and adopted many laws covering the issue (which is outstanding), but on the other side, there are limits to corruption at a high level in proactive and efficient investigations, credible track records, and convictions. Hopefully, the first preliminary evaluation of the candidate criteria in May 2023 will show further progress.
Section II of the conference was dedicated to Cyber Security and the Related Issues and were opened by the chair: Prof. Dr. Kseniia Smyrnova, Vice-rector for International Relations, Taras Shevchenko National University of Kyiv who gave the floor to Assoc. Prof., Dr. Andrii Paziuk, Professor in International Law, Taras Shevchenko National University of Kyiv, Head of Information Law Section, Ukrainian Association of International Law. Professor Paziuk spoke about the “Cyberwar and International Legal Order: Lessons from Ukraine”. The war against Ukraine is a challenge to international law: Ukraine is facing cyberattacks and propaganda, and attacks on critical infrastructure including energy facilities and civilian buildings, which has implications for humanitarian law. Since 2014 Ukraine is experiencing cyberattacks which strongly intensified after the full-scale invasion in 2022. Prof. Paziuk was discussing several aspects of international humanitarian law in relation to Ukraine, especially in the case of volunteers and volunteering corpses and their responsibilities under international law. According to professor Paziuk existing conventions are well applicable to current forms of warfare as the new law cannot effectively avoid practical issues of attribution of attacks. In the end, he developed the idea to adapt international humanitarian law in cyberspace and the use of new weapons to make them being used in a more human way.
Another speaker was Mgr. et Mgr. Ondřej Filipec, Ph.D., Department of Politics and Social Sciences, Faculty of Law, Palacky University who talked about “The Hybrid Threats in the Light of the Czech Experience”. Dr. Filipec provided several definitions of hybrid threats and introduced the concept in the context of international security theories. After a brief theoretical introduction, Mr. Filipec presented several cases from the Czech Republic, which are associated with hybrid threats and pro-Russian interference. The first case was covering anti-missile defense radar in Brdy (1999) which stimulated the rise of the “peace movement”. Despite looking like a spontaneous civic society initiative, analysis soon recognized positions close to pro-Kremlin propaganda and possible flow of Russian money behind, associated with the Big Board Company registered in Luxembourg, but making business in Russia and Belarus. Another case involving untransparent financing was the election of Miloš Zeman as the president of the country. The flow of money from Russian companies was explored by investigative journalists. Dr. Filipec in detail assessed the case of the Vrbětice ammunition depot explosion (2014) and a diplomatic earthquake in 2021. He stressed, that hybrid threats might be well understood in the context of realism, liberalism, and constructivism as practical actions might be interpreted in the light of power politics and implications for democracy or identity. In the end, he noted, that Czech experience with the misuse of democratic tools to the subversion of society and influence public opinion is transferable to Ukraine, as Ukraine will also face many societal challenges on the way to the EU, which might be exploited by the Kremlin regime.
Discussion following this contribution was aimed to answer the question, of whether the cyber-attack on a hospital is giving the right to fight back and defend. According to Dr. Filipec is it a matter of proportionality and available tools? He stressed that there shall be some threshold or “red line” for justifying a military response, e. g. civilian causalities. However, he stressed, that “what you can do is not the same as what you shall do”, with respect to values. So, the answer is having a clear ethical dimension and an attack against the hospital is not giving the right to attack a hospital back, instead, different tools of deterrence and punishment might be used in response, respecting standards of international law.
The next part was opened by the chair Assoc. Prof. JUDr. Olena Sviatun, Ph.D. , Institute of International Relations, Taras Shevchenko National University of Kyiv, who welcomed Dr. Aude Gery, post-doctoral researcher, GEODE (University Paris 8), who spoke aboutthe “International Humanitarian Law and Cyberoperations in the Light of the Ukrainian Conflict”. She opened the presentation on the militarization of cyberspace and various aspects in which cyberspace is used for cyberattacks. It is interesting that states have different approaches to the application of international law by the military, but unfortunately, military manuals are not public or updated. She was talking about the principle of distinction as a key principle of international law making the difference between combatants and civilians. Only attacks against the military are allowed but in the case of Ukraine, the principle was challenged as many civilians got mobilized and we can also talk about the “civilization” of the battlefield. For example, civilians participating in hostilities, are not entitled to Prisoners of War status and many challenges remain for cyberattacks. For example, Starlink invokes the question of private companies’ participation in attacks, making Russia Starling a legitimate target of military importance. Another issue is the definition of attack, which is usually referring to some physical effect. Here, states are divided as many cyber attacks are lacking physical dimensions. Other countries are highlighting the functional dimension of the attack. And what about data, are they protected under international humanitarian law? Because data are not physical. So, there are many dilemmas in the humanitarian law interpretation in cyberspace.
Prof. Yuliia Vashchenko, Taras Shevchenko National University of Kyivwas talking about “The energy sector in the focus of national cyber security strategies of Ukraine and selected states”. She started with the highlight of the energy sector as a very fragile part of the economy vulnerable to cyberattacks. Prof. Vashchenko presented EU cyber security legislation including EU directives 2016/1148 and 2022/2555 requiring national cybersecurity strategies to be created with specific content including regulatory measures. Subsectors of energy are also covered by the NIS 1 directive (electricity, oil, and gas) and NIS 2 directive (electricity, oil, gas, district heating and cooling or hydrogen). National cyber security strategies are addressing energy security in a different way. For example, Germany, UK, Sweden or Estonia are specifically targeting energy sectors, while France, the Czech Republic and Slovakia are targeting energy sectors in general. In the remaining time, she stressed key differences in various national security strategies and put them in relation to the national cybersecurity strategy of Ukraine and other related documents including the National Security Strategy of Ukraine, the Energy strategy of Ukraine for the period until 2035. According to her opinion, the approach of Ukraine is adequate to the situation.
The last contribution of the first day was presented by Assoc. Prof. Bohdan Strilets, Ph.D., International, and Comparative Law Department, Koretsky Institut of State and Law, National Academy of Science of Ukraine spoke about “Cybersecurity on the Cryptocurrency and the Related Issues”. Prof. Strilets started with a short introduction of cryptocurrency in the context of the digitalization of economies, markets in crypto-assets, and blockchain technologies. He presented actual development in the EU regulation, with the main reference to the amendment of the directive 2019/1937 on Markets in crypto assets. Prof. Strilets highlighted several theoretical aspects of cybersecurity in regard to crypto assets, especially in the changing focus of the EU legislation. This was done with reference to Article 2 of the Cybersecurity Act and the EU Cybersecurity Strategies for the Digital Decade presented in 2020. It is interesting, that according to the attitude of the EU agencies, it seems that threats to crypto markets participant is not to be directly considered as cyber threats. In relation to Ukraine and its experience, it will be necessary for the EU and member states to create regulatory authorities or to strengthen the powers of existing ones (e. g. ENISA). As for the conclusions, the EU started to create a more effective legal framework that will have to match freedom and decentration. Unfortunately, existing legal regulation is too narrow in the approach to cybersecurity and consumers or investors of crypto assets are given unreasonably little attention. A positive move will require improvement in ENISA and its powers. The questions following the contribution were aimed at the nature of the crypto assets. It is falling under the freedom of capital movement. Is it a payment, a service, or a good? The current approach seems to be that cryptocurrency is like crypto assets, however, there is a great variety of products and different natures. According to prof. Strilets, it is merely capital, but in some respects volatile.
The event was organized within the implementation of the Jean Monnet Network „European Union and the Challenges of Modern Society (Legal Issues of Digitalization, Robotization, Cyber Security and Prevention of Hybrid Threats) Project id: 611293-EPP-1-2019-1-CZ-EPPJMO-NETWORK.