(Editor’s note: This article is part of Just Security’s Symposium, International Law in the Face of Russia’s Aggression in Ukraine: The View from Lviv.)
The goal of fostering sustainable development in Ukraine goes beyond the not inconsiderable challenges of reconstruction, recovery, and claims for losses incurred during the conflict. It concerns integrating economic development, human development, and environmental protection. This implies strong institutions, good governance, the rule of law, and continued efforts to combat corruption, as well as sensitivity to environmental and social considerations. And it implies international institutions working together on a coordinated basis and in a way that is responsive to Ukrainian needs and priorities.
This article, drawing from materials and discussion in the Lviv workshop organized by the Ukrainian Association of International Law and the American Society of International Law (ASIL), will set out a number of key topics that achieving sustainable development in a post-conflict Ukraine needs to consider. Recognizing the scale of the needs and the importance of a coordinated effort, it also suggests a more immediate task: a comprehensive legal inventory of efforts that are already underway to identify gaps and promote communication and coordination.
Temporal Issues and the Challenges Created by the Current Conflict
Some may say that it is premature to discuss the topic of law and development given that hostilities are ongoing, with no end in sight, and that all of Ukraine’s resources need to be targeted towards the conflict. Moreover, with the timing and ultimate outcome uncertain, multilateral institutions and other potential lenders and investors may be understandably reluctant to commit to projects in Ukraine – even in parts of the country that are farther from the front – given the uncertainties.
These are legitimate concerns. But while it may be premature to commit funds for projects on the ground, it is not too early to be thinking about the development goals for a post-conflict Ukraine and what may be needed legally, financially, and institutionally to sustain them. Any planning for reconstruction should take into account the developmental goals of the country – goals set by Ukrainians, rather than being imposed from outside.
The conflict itself may, sadly, create some opportunities. Members of the ASIL delegation, for example, heard about and visited a rehabilitation center that has been established in Lviv for combatants and non-combatants maimed by land mines and injured during fighting. State-of-the-art prosthetics have been developed at this center using technology such as 3D printing. While such a facility is currently focused on needs created by the conflict, post-conflict, it could become a source of business opportunity not only within Ukraine but outside as well.
Damage to or destruction of industrial facilities also presents questions, including whether to rebuild, what to rebuild, and where to rebuild. Facilities built during an era of a planned economy may not have been optimally situated even for the needs of the time, much less current ones. Such rebuilding also offers opportunities to incorporate green technologies and best practices that might otherwise be infeasible for cost or other reasons. Workshop participants pointed out that the cost of retrofitting old steel and other existing plants to make them “green” can be prohibitive. While a new plant may be costly, it can be designed to the state of the art, thus leapfrogging technically obsolete or highly polluting technology.
These are just two examples. But the SWOT (strengths, weaknesses, threats and opportunities) analysis carried out by workshop participants in Lviv is useful to reproduce here to inform further thinking.
The SWOT Analysis of the Lviv Workshop Participants
| Strengths: | Weaknesses: |
| • Ukraine’s level of human capital, including the educational level • Patriotism and commitment to the country • Resilience of the population • Historic breadth, size, and strength of the economy • Efforts to build laws and institutions • Willingness to change • Willingness to embrace new technology and other developments, such as artificial intelligence (AI) | • The ongoing conflicts and timing considerations • The perception of corruption • Fragmentation due to the involvement of multiple actors and the risk of duplication • The presence of Russia as a neighbor |
| Threats: | Opportunities: |
| • Risks of brain drain • Loss of population • The challenges of transitions, e.g., for industrial workers • AI • The risk of “backsliding” • The high number of State-Owned Enterprises • The danger of State capture, in whole or in part, by elites, and the risk of corruption • The high incidence of land mines, especially in agricultural land • Damage to dams, nuclear power plants, water treatment plants, and other built infrastructure To these threats identified by participants, the extent of the needs must also be added | • The ability to locate new investment where it would be most appropriate (i.e., no need to rebuild a destroyed steel mill that was previously located in the center of a city) • The ability to establish green industrial facilities without having to consider costly and impractical retrofitting • Opportunities for alternative/clean energy (and development of a plan to phase out coal) • Opportunities that EU membership, particularly in relation to rule of law, may bring • AI and information technology |
Beyond this analysis, workshop participants also discussed a number of additional topics of importance, summarized below, along with questions that were raised during the course of discussions or in the workshop materials. Indeed, at this stage there may be more questions than answers. But it is important to identify the key questions to help guide planning efforts.
Key Topics and Questions for a Sustainable Development Plan in Ukraine
Special Regimes and Temporary and Transitional Measures
Special regimes and temporary measures may be particularly well-suited to the needs of Ukraine’s post-conflict development. These could include measures to incentivize foreign investment and international trade, as well as programs to induce people who have left Ukraine to return or to stimulate repopulation of rural areas, perhaps through grants of abandoned land, or measures similar to the U.S. GI Bill (to help reintegrate ex-military personnel into society). Particular attention might need to be paid to the conditions and needs in any territory that was occupied by Russia. To the extent these might be in tension with EU, WTO, or other relevant rules or policies for States at a different stage of development, temporary exceptions could be established. Such transitional regimes are, of course, not uncommon.
Infrastructure
Infrastructure development – including repairing damaged infrastructure such as housing and government buildings, roads, railroads, power plants (nuclear and non-nuclear) and grids; removing land mines; and restoring farmland and natural areas – is an obvious area of priority. It will require substantial private sector investment as well as public sector financing assistance. The level of necessary funding will increase the risks of corruption, especially if the goal is rapid procurement processes and disbursement of funds. Any process to set priorities should ensure appropriate input by Ukrainians and civil society. Realistic time frames need to be set, and while the needs are urgent, “quick fixes” likely need to be avoided. Some key questions in relation to this issue include:
- What procedures should be instituted or maintained to prevent corruption and ensure public trust in the process, including monitoring mechanisms to ensure funds are used for the intended purpose? Are the on-line transparency methods developed by Ukraine (but which may not be currently in use during the conflict) – which were demanded by civil society – workable and sufficient (including adequately reflecting sustainability factors)? Is additional protection of whistleblowers needed?
- When will streamlined permitting, including regarding environmental impact assessment, be necessary and how should it work?
- What incentives, assurances or guarantees will be required to ensure the requisite flow of funds?
- What internal security measures are needed?
Agriculture
Agricultural production, historically an important sector of Ukraine’s economy, has been badly affected by the conflict. What steps should be taken to rejuvenate Ukraine’s agricultural sector in the areas of removing landmines, improving transport to internal markets, improving transport to ports and other export hubs, modernizing ports, and providing advice and inputs appropriate to take account of changes in heat, precipitation, growing seasons, etc., predicted to occur as a result of climate change?
As recent events have demonstrated, agriculture is a highly sensitive sector from an export perspective. Ukraine has been a breadbasket for the world, but its capacity to produce may be perceived to threaten certain agricultural interests in the EU. EU membership for Ukraine is highly desirable; the process of accession will contribute to institutional development and enhancement of the country’s legal infrastructure as Ukraine builds towards EU standards. But special agricultural access to the EU market could be politically fraught.
Environment, Health, and Education
A conflict like the war with Russia is devastating to the environment where it takes place. What steps should be taken to restore, regulate, and monitor Ukraine’s environment, including to protect human health? Areas to be considered include ensuring clean air, safe and sufficient drinking water, non-toxic environments (including indoor areas) in which to live, work, play, and study, healthy noise levels, biodiverse and robust forests, and adequate parks and protected areas.
What steps should be taken to ensure Ukrainians have prompt and adequate access to good medical care? To meet the needs of those who have served in the conflict or who were traumatized by it?
Regarding all of the above and at all levels, what steps should be taken to ensure robust and appropriate educational opportunities are available at all levels? To retrain workers to deal with new technologies and industries?
Should a privatization program be initiated for State-owned enterprises, which play a significant role in the Ukrainian economy today? What about the recently nationalized companies?
The Justice System and Legal Norms
The justice system is a key underpinning for a functioning society and economy. What steps should be taken (normative, institutional, or otherwise) to ensure Ukraine’s justice system has the resources (financial, personnel, and other), institutions, and public trust necessary to uphold the rule of law? Does this system adequately incorporate human rights considerations? What other legal norms will be needed? While the EU accession process may address many of these issues, it may not cover all of them.
Do the courts have sufficient capacity and training to handle the disputes that may arise in this process? What forms of alternative dispute resolution should be encouraged? What is the status of arbitration? Mediation and conciliation? Are there sufficient small claims processes? (This is wholly separate from any international claims procedures and systems arising from the conflict with Russia, which are separate topics not addressed here.)
Civil Society
A vibrant civil society will be especially necessary during the period of rapid development efforts. While civil society has become robust in Ukraine in recent years, it is important to consider whether any steps are necessary to ensure adequate space for civil society to operate effectively, both offline and online in the context of the activities envisioned. Is funding for civil society adequate, and if not, what can be done to remedy the situation? Is there sufficient access to information about governmental actions, processes, and priorities? What should the role of civil society be in planning for the future of the country?
Funding and Coordination
As many have observed, the level of funding required for Ukraine’s reconstruction will be enormous, dwarfing efforts such as the Marshall Plan. How should requests to, and relations with, the various sources of funding necessary to fuel Ukraine’s repair and development be handled? Of particular importance is the question of how funds received from multilateral, bilateral, and private sources should be coordinated to avoid duplication and maximize impact? On the multilateral level, key players will include the European Investment Bank (related to EU possible membership?), the World Bank (including its private sector arm, the International Finance Corporation), the European Bank for Reconstruction and Development, the International Monetary Fund, the Global Environment Fund, and the World Trade Organization. What creative financing strategies could be deployed? Ukraine bonds that are marketed worldwide and in which individuals as well as institutions could invest? Others?
What steps can and should be taken to ensure that funds used in these efforts are used for the intended purpose? The scale of the effort that will be needed presents particular challenges in this regard, as experience has shown that effective monitoring and oversight of the use of funds when large amounts are involved and are being disbursed quickly becomes extremely difficult. Fraudsters are creative and opportunistic.
What can we learn from previous efforts? E.g., coordination of efforts in the context of the Marshall Plan? Rule-of-law efforts after the fall of the Soviet Union through bar groups such as the International Bar Association, the American Bar Association’s Central and Eastern European Law Initiative, and European nations’ bar associations? Others?
Conclusion
Just as steps are being taken to ensure that an effective claims process can take place at the appropriate time, so should efforts be made to plan for the post-conflict reconstruction of the country consistent with principles of sustainable development. Some of the legal needs will be dependent on the particular development priorities adopted, while others are more predictable. Some efforts to inventory and assess the current legal position are already underway, but a comprehensive “legal inventory” that can provide a baseline for further work and the coordination and consolidation of those development-related legal efforts that are already underway in various quarters seems essential.