Values, Rights, and Changing Interests: The EU’s Response to the War Against Ukraine

Remy Maduit | Authors published

Values, Rights, and Changing Interests
The EU’s Response to the War Against Ukraine and the Responsibility to Protect Europeans

Giselle Bosse is an Associate Professor and Jean Monnet Chair in EU External Relations at the Faculty of Arts and Social Sciences, Maastricht University, the Netherlands.

The EU’s response to the 2022 Russian war against Ukraine has been widely described as unprecedented in scope and unexpected speed, displaying a rare unity among its member states [1], taking actions that mark the EU’s “geopolitical awakening” [2], and in the words of French President Emmanuel Macron, constituting a “turning point for our societies, our peoples and our European project”. [3]

The EU’s reaction has been impressive indeed. The EU agreed on the first set of sanctions already on 23 February, one day before the invasion began, and five more sanctions packages have followed since, including severe economic sanctions such as blocking most of Russia’s currency reserves, and restrictions on economic cooperation. According to Commission President Ursula von der Leyen, the EU has devised the “largest sanctions package in our Union’s history”. [4] The EU’s response has also gone further than sanctions. In what EU High Representative Josep Borrell has called the “belated birth of a geopolitical EU” [5], the EU made a significant leap forward in security and defense by supplying, for the first time in its history, military support to a third country at war covered under the European Peace Facility (EPF), including 1 billion euros worth of arms and military equipment to the Ukrainian military.

In another unprecedented move, the EU has also, for the first time, implemented the Temporary Protection Directive (TPD), allowing Ukrainian nationals and permanent residents the right to live, work, and access healthcare, housing, and education in the EU for three years, without the requirement to go through lengthy asylum procedures. The swift and unanimous decision by the member states is remarkable, given that discussions on migration have historically been very difficult, and led to blockages and fractures in the EU. And just as unexpected has been that Ukraine and Moldova have been offered EU candidacy status, despite widespread enlargement “fatigue” among the member states. Ukraine is “one of us and we want them in the European Union,” von der Leyen stated in late February. [6]

The EU’s unity and resolve in its response to Russia’s war against Ukraine was, therefore, unexpected considering member states’ previously highly diverging interests vis-à-vis Russia and on security and defense, significant differences over migration, and their general reluctance to expand the Union or even grant candidate status to applicant countries. How can the EU’s ability to agree on collective action on these high-salience issues be explained?

In this article, it is argued that norms have played a critical role in the EU’s unprecedented response, especially during the first months after the invasion, when EU member states’ security interests were in a state of flux and a process of fundamental redefinition. Scholarship on the EU’s response to Russia’s annexation of Crimea, and Russian-backed incursion into eastern Ukraine in 2014, demonstrated that back then, member states accepted the political and economic costs of sanctions against Russia because of a collective commitment to norms linked to international law and the principles of sovereignty and self-determination. [7] These norms are visibly at play again in 2022, as the EU has underlined Ukraine’s “territorial integrity, sovereignty, and independence” and justified its responses regarding Russia’s “unprovoked and unjustified military aggression,” which made up a “gross violation of international law and the principles of the UN charter”. [8] Yet, in contrast to the EU’s delayed and “soft” response to the 2014 Ukraine war, which did not entail broad economic sanctions against Russia [9], the EU’s response in 2022 was much stronger and entailed significantly higher costs for member states. This raises the question of how the normative environment and the parameters of the collective commitment to norms changed, to create a context in which member states accepted the increased political and economic costs of heavy sanctions against Russia and other measures taken by the EU in response to the 2022 Russian invasion in Ukraine.

The following analysis examines two key aspects of the EU’s response: the sanctions against Russia and the implementation of the TPD. In each case, the unanimous agreement on common action presents a puzzle, given the previously diverging interests of the member states in both policy areas, and a context of uncertainty over member states’ security preferences during the first months after the invasion. A norms-based approach is used to better understand the EU’s unexpected agreement on its response to the Ukraine war.

As a special forum contribution, the main aim of this article is to bring forward an argument about the role of norms in the EU’s responses, including some initial empirical observations, to start and inspire further debate and research. As this is not a full research article, the format implies limitations regarding methodology and the completeness of the empirical evidence presented.

EU member state security preferences in flux

The nature and extent of the divisions between member state preferences regarding relations with Russia, until the invasion of Ukraine in February 2022, have been documented in great detail. [10] As have been the effects of these divisions on the EU’s relations with the countries in the EU’s eastern neighborhood. [11] Russia’s annexation of Crimea and war against Ukraine in 2014 acted as a catalyst for greater unity among EU member states, but divisions remained between central and eastern European member states, on the one hand, calling for more powerful sanctions, and Russia’s traditional partners in the EU including Germany, France, and Italy pushing for “diplomatic caution”. [12] Subsequently, the EU upheld its sanctions regime against Russia, but many EU member states continued to pursue political and economic relations with Russia, especially concerning energy supplies. Thus, while EU-Russia relations deteriorated following the 2014 war, the member state’s security preferences vis-à-vis Russia had not changed. The EU even toned down its ambitions in relations with Ukraine, Moldova, and Georgia over the past years, in order not to risk renewed confrontation with Russia. [13]

The full-scale Russian invasion of Ukraine in February 2022 did, however, lead to a very significant reformulation of EU member states’ security interests, and in particular a redefinition of the interests of Russia’s traditional partners in the EU. At the end of March, the EU published its new Strategic Compass for Security and Defence, underlining that “the aggressive and revisionist actions for which the Russian government… is entirely responsible, severely and directly threaten the European security order and the security of European citizens”. [14] The unprecedented measures taken by the EU in the invasion’s aftermath could therefore be explained by a realist approach, based on the assumption that member states have agreed on common action because of the higher costs of standing alone in the face of a threat to national security. [15]

Yet, the mere presence of a shared EU threat assessment declaration, despite being a novelty for the EU, did not immediately represent a stable set of, or consensus on, security interests among all EU member states, especially during the first months following the invasion. Initially, key member states, including Germany and France, did not interpret Russia’s invasion of Ukraine as a direct threat to their national security. [16] In Germany, the coalition government of Chancellor Olaf Scholz has been bitterly divided over the redefinition of Germany’s national security interests vis-à-vis Russia, and in France, the economic impact of the war featured prominently in the presidential election, including questions about France’s national (security) interests. [17] While security interests were at stake, we can consider the national security preferences of the most powerful EU member states stable nor fully (re-)defined during the months when the EU was deciding on unprecedented measures in response to the Russian invasion. This points to the role of other factors, alongside security preferences, that triggered consensus among the member states.

The role of norms

The role of norms in EU decision-making has been especially prominent in fundamental changes in the international system, such as the end of the Cold War, which caused a significant redefinition of the security preferences of the EU’s member states. In such contexts, constructivist approaches have offered powerful accounts of decision-making outcomes, as they assume interests are not “exogenously given” but constructed in historically specific contexts and that social and cultural norms shape the identity and behavior of actors. [18] The decision on EU enlargement to central and eastern Europe in the early 2000s, for example, has been attributed to a “context of a priori and changing meanings regarding the identity and norms of the ‘West’,” in a dialectic relationship between normative context and identity. [19]

Russia’s invasion of Ukraine again marks a fundamental rupture in Europe’s post-Cold War security environment, which has sparked a process of redefinition of member states’ security preferences. Structural changes lead to a change in political routines and uncertainty, which are likely to create windows of opportunities for the role and effect of norms on the reasoning of political actors. [20]

In their analysis of the EU’s response to the 2014 war in eastern Ukraine, Sjursen and Rosén [21] distinguish two types of norm-based reasons that convinced EU member states to agree to EU sanctions: value-based norms grounded in the identity of the EU such as the duty to cohesion in foreign policy, and rights-based norms linked to the right to self-determination or the respect for the territorial integrity and sovereignty of states. [22] Yet, as outlined earlier, the EU’s reaction to the 2022 Ukraine war differed significantly in scope and impact from its reaction to the 2014 war, begging the question of additional or different norm-based arguments were at play in 2022.

The following analysis of the two cases draws on primary documents, such as EU official statements and speeches, for the period of late February to the end of June 2022. The analysis aims to sketch a preliminary picture of the different interests and preferences of the member states and the arguments and speech acts that were used to generate agreement on measures to respond to the Russian invasion of Ukraine, including references to specific norms. The purpose is not to provide a complete or representative study, as the events in Ukraine (and the EU’s response) continued to evolve rapidly at the time of writing. Rather, the analysis aims to inspire debate on the puzzle of the EU’s unprecedented and unexpected response, and the important role of norms in addressing the puzzle.

Example 1: six rounds of sanctions against Russia

The EU has progressively imposed sanctions on Russia since it invaded Ukraine. Measures include individual, economic and diplomatic sanctions, and restrictions on the media. The Council has so far agreed on six rounds of sanctions, on February 23, 25, and 28, March 15, April 8, and June 3, 2022, respectively. We can make a qualitative difference between the sanctions imposed through the first four packages and the fifth and sixth sanctions packages. The former set of sanctions, targeting inter alia Russian high-tech companies, aviation, and finance sectors, as well as Russian oligarchs, can already be considered unprecedented. However, the latter package predominantly included energy, such as a ban on coal and oil imports from Russia, including removing Russia’s largest bank Sberbank, facilitating energy payments from Europe to Russia, from SWIFT.

Member state preferences

Agreement by the member states on both sets of sanctions, especially those targeting the energy sector, can be considered unexpected. The first set of sanctions packages, for example, included expelling (some) Russian banks from the SWIFT payment system or freezing the assets of Russian president Vladimir Putin. Germany, Italy, and Hungary had initially opposed the measures, citing national interests related to broader trade relations with and energy dependencies on Russia. [23] With regards to the second set of sanctions, an agreement was even less likely. Before Russia invaded Ukraine, imports from Russia amounted to over 46% of the EU’s coal imports and 27% of its oil imports. Germany, Poland, Italy, and the Netherlands are among those most reliant on Russian coal, which accounts for over 65% of total imports in each of those countries. Dependence on oil imports has been even higher, with Germany, Poland, and the Netherlands belonging to the biggest importers of Russian oil. [24] Slovakia and Hungary received 96% and 58% respectively of their total oil imports from Russia in 2021. [25] Based on diverging levels of dependency on Russian imports, the prospects of all member states agreeing on sanctions targeting the coal and oil sectors would thus appear very limited, especially considering that such decisions have to be taken by a unanimous vote. Yet, on April 8 and June 3, the EU member states agreed on a ban on coal and oil imports [26] from Russia, which presents a puzzle given the constellation of member state interests.

The role of norms

The EU justified its first set of sanctions packages about Russia’s “unprovoked and unjustified military aggression” and “gross violations of international law and the principles of the UN charter,” demanding “full respect for Ukraine’s territorial integrity, sovereignty, independence, and the right to choose its destiny”. [27] High-ranking EU officials and also member state governments invoked the references to. German chancellor Olaf Scholz, for example, stated that the Russian invasion presented a “blatant breach of international law” and Josep Borrell called the invasion “not only the greatest violation of international law” but also “a violation of the basic principles of human coexistence”. [28] For Central and Eastern European member states, including Hungary, the commitment to ensuring the sovereignty of Ukraine has also been paramount, albeit to different degrees.² Values-based arguments also featured in the deliberations on the first sanctions packages, with German Chancellor Scholz and French President Emmanuel Macron, among others, expressing their solidarity with Ukraine and its people [29], and Commission President von der Leyen blaming Putin for “bringing the war back to Europe”. [30] Yet, even though rights-based and value-based norms enabled member states to agree on the first sets of sanctions, many member states continued to oppose a ban on energy imports from Russia.

A significant change occurred in EU and member state discourses after news broke on growing evidence of war crimes committed by Russian soldiers in Bucha and other areas from where Russian troops had withdrawn. According to EU member state officials, the massacres around Kyiv were “a trigger to get things moving” as “Bucha pictures hit that nerve and put pressure on governments”. [31] The governments of Poland, Latvia, Lithuania, and Estonia led the call for harsher sanctions, arguing that EU purchases of Russian energy exports are “paying salaries to the soldiers who are committing those massacres in cities like Bucha”. [32] Von der Leyen spoke about a “cruel and ruthless war… against its [Ukraine’s] civilian population,” and Borrell remarked that the massacres “will be inscribed in the list of atrocities committed on European soil”. [33] Polish Prime Minister Mateusz Morawiecki used the term “genocide” and Spain’s Prime Minister Pedro Sánches spoke of “crimes against humanity”. [34] The European Parliament resolution of April 7 recognized “atrocities perpetrated by the Russian troops” in Bucha. [35]

These arguments all refer to the EU’s responsibility to intervene to protect Ukraine and Ukrainian civilians from atrocity crimes, war crimes, and crimes against humanity. The Ukrainian government has repeatedly presented arguments drawing on rights-based reason and the moral obligation and responsibility of the EU to help and protect Ukraine, with Ukraine defending “common civilized values.” This has included underlining that Western powers also share some responsibility for the atrocities being committed in Ukraine. President Volodymyr Zelensky said “all the people who die will die because of you,” as he alluded to the West’s responsibility to intervene and the resulting obligation to declare a no-fly zone over Ukraine. [36] Preliminary data from exploratory interviews with EU member state officials suggest that the evidence of war crimes being committed by Russian troops in Bucha had indeed acted as a catalyst for decision-making one more “costly” sanctions. EU members agreed on imposing the fifth and sixth sanctions packages through arguments referring to the moral obligation arising from the responsibility to react and to protect Ukraine and Ukrainian civilians from war crimes. The “force” of the rights-based norm of the responsibility to protect civilians from atrocity crimes and war crimes marks a difference from the EU member state agreement on the (limited) sanctions imposed in 2014, which “only’” centered on the fundamental breach of the Ukrainians’ right to self-determination. [37]

Example 2: the right to live and work in the EU for Ukrainian nationals

The TPD grants Ukrainian nationals and permanent residents the right to live, work, and access healthcare, housing, and education immediately, without the requirement of going through lengthy asylum procedures for a minimum of one year and up to three years. Ylva Johansson, Commissioner for home affairs, described the decision as “historic,” praising the “unity” and “firmness” of the EU. [38] The directive is based on a 2001 law by the EU drawn up in the aftermath of the Balkan wars, to allow the EU to better handle large flows of refugees seeking entry into the EU, including a redistribution mechanism between EU counties, allocating refugees according to the capacities of each government. However, the directive was never implemented and in 2020, the Commission suggested repealing the directive, as it no longer responded to current realities in the member states which remained divided over the redistribution mechanism. [39] The EU’s swift and unanimous decision was remarkable, given that migration has historically fractured the EU. The directive was activated within a week, with interior ministers approving the implementation just one day after the Commission proposed the text. [40]

Member state preferences

The decision stands in stark contrast to the years of stalled efforts on migration policy, deep divisions among the eastern and southern member states on asylum rules, and especially how asylum seekers should be distributed across the EU. Since the 2015–2016 Syrian war and refugee crisis, EU countries including Poland, Hungary, the Czech Republic, and Slovakia had vehemently opposed a relocation mechanism, while Croatia, Finland, Ireland, Lithuania, Luxembourg, and Portugal have said to take an active part in such a mechanism to support Italy and Greece. [41] The Commission had considered triggering TPD already in 2011, in response to the refugee crisis following the NATO intervention in Libya and again in response to the 2015 crisis. On both occasions, the justice and home affairs ministers rejected the proposals. Apart from the dissent over relocation, other reasons for member states not to agree on the directive included TPD might create a “pull factor” for migrants seeking entry into the EU, and that the level of rights for protecting beneficiaries was considered too high, and that the decision would have to be taken by unanimity. [42] All these reasons could have been expected to remain valid at the onset of the war against Ukraine. While member states bordering Ukraine would have pushed for an open-border policy because of their close historical, economic, and social ties with Ukraine, other member states were expected to show reluctance. [43]

Based on diverging levels of dependency on Russian imports, the prospects of all member states agreeing on sanctions targeting the coal and oil sectors would thus appear very limited, Member state preferences alone, therefore, do not fully account for the agreement on implementing TPD in response to the Ukraine war.

The role of norms

In response to the question of why the member states agreed on implementing TPD in response to people fleeing the Ukraine war, but not to the refugee crises in Libya or Syria, EU officials have said that the situations were “very different”. [44] But why so? Commission President von der Leyen stated about TPD that “all those fleeing Putin’s bombs are welcome in Europe” and that “Europe stands by those in need of protection”. [45] Commissioner Ylva Johannson stated that the “EU stands united to save lives” [46], while Czech Interior Minister Vít Rakušan remarked that “it is really necessary to show that the EU these days is united”. [47] Von der Leyen and other high-ranking EU and member state government officials have also repeatedly stated that “Ukraine belongs to the European family” and that “Ukraine shares our values”. [48] The statements present different norm-based reasons. References to the duty to protect refugees relate to rights-based norms, and specifically the responsibility to prevent, which has been linked to refugee protection and asylum. [49]

However, while rights-based norms have created a necessary ground for agreement among member states, other norms must have also been at play to ensure agreement on TPD, considering that rights-based norms such as the duty to protect refugees did not trigger TPD implementation in response to earlier and equally large-scale refugee crises. As argued by Venturi and Vallianatou [50], solidarity with displaced Ukrainians illustrates the “deeply politicized—and often discriminatory—nature of providing refugee protection”. [51] Preliminary data collected in the exploratory interviews [52] suggests that values-based norms grounded in the identity of the EU, such as the argument that Ukraine belongs to the European family, have played a critical role in generating agreement on TPD, together with the argument that the EU must stand united, which links to the duty to cohesion in EU foreign policy. Yet, while many of the arguments related to solidarity and empathy with fellow Europeans must be considered in, for example, shared histories (Central and Eastern European member states share common histories with Ukraine and fear of Russian aggression), others are tinged with outright racist and xenophobic ideas on what it means to be European. An illustration is a statement by Bulgarian Prime Minister Kiril Petkov, saying that Ukrainian refugees were “intelligent” and “educated” and “not the refugee wave we have been used to… people with unclear pasts, who could have been even terrorists”. [53] The normative grounds which enabled governments such as Hungary or Poland to agree to TPD implementation must thus be assessed very critically.

Conclusion

The article has aimed to examine the EU’s response to the Russian invasion of Ukraine, and how member states could agree on a set of unprecedented measures. This analysis focused on two key examples of the EU’s response: the sanctions against Russia and implementing the TPD. In each case, the unanimous agreement on common action presents a puzzle, given the previously diverging interests and preferences of the member states in both policy areas.

The discussion in this article departed from the observation that the Russian invasion constituted a significant change in the international system, similar to the end of the Cold War, which led member states to fundamentally redefine their security preferences. Such a context of structural external change and uncertainty during the first months after the invasion was likely to be conducive to norm-based arguments and reasoning in EU decision-making, as member state preferences were in a process of reformulation.

Therefore, a norms-based approach was used to better understand the EU’s unexpected agreement. Some argue that, just as in 2014, rights-based norms linked to the principles of international law, such as Ukraine’s sovereignty and right to self-determination, played again a key role in EU decision-making. In addition, however, preliminary evidence from exploratory interviews suggests that agreement on the EU’s unprecedented measures in 2022 has been greatly facilitated based on a consensus on the norm about the responsibility to protect Ukrainian civilians against atrocity crimes and war crimes. Rights-based arguments linked to the obligation to react to growing evidence of war crimes committed by Russian troops in Ukraine played an important role in enabling member states to agree on moving towards sanctions directly targeting Russia’s energy sector. In a similar vein, they have invoked the obligation to prevent harm to civilians to justify and generate agreement on the special protection of Ukrainian refugees through the TPD. The focus on the obligation to protect civilians from war crimes was much less pronounced in the member states’ responses to the 2014 war, which shows that evidence of atrocities has propelled more concerted EU actions.

Yet, it must be underlined that the EU’s and the member states’ discourses on rights-based norms have inextricably been intertwined regarding values-based norms linked to European solidarity, European identity, and moral obligations vis-à-vis fellow Europeans. In this context, powerful speech acts such as Commission president von der Leyen’s statement that Ukraine is “one of us” and “we want them in the EU,” had significant ramifications in terms of the EU’s obligations and responsibilities vis-à-vis Ukraine. Arguments on rights-based norms about protecting civilians from atrocities alone, without the connection to values-based obligations vis-à-vis fellow Europeans, would most likely not have facilitated agreement among member states.

The recognition of Ukraine as “one of us” appears to mark a rather significant shift in the EU’s definitions of its identity, from a “technocratic” understanding based on institutions and legal order to one based on “community” and “belonging.” The question remains how far the EU’s newly found responsibility to protect Ukraine and its citizens will (and can) go. As the war continues, the EU’s economies and populations increasingly feel its impact, which raises the costs for governments to impose additional sanctions on Russia. This is less a question about interests versus norms, but a question of the extent to which the EU will and can act upon its revised security preferences (Russia as a direct threat) and its promise to protect fellow Europeans in Ukraine.

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