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Could a Political Compromise Be Constitutional? Legal Hurdles for Possible Negotiations with Russia

By September 1, 2022September 7th, 2022No Comments

Ukrainian Constitutional and Statutory Provisions in the Context of a Possible Settlement with Russia

The relationship between two post-soviet neighbors—Russia and Ukraine—has a complicated history. Following Russian military aggression in 2014 and the full-scale invasion of Ukraine in 2022, the possibility of normalized relations between the two governments and their peoples is unrealistic—at least in the coming decades. But despite the terrible damage and the deaths of tens of thousands of Ukrainians, every war has a beginning and an end.

If the U.S. and its allies support Ukraine with sufficient weapons and other resources, this war will end on Ukrainian terms. Without this support, the Ukrainian government could be forced to sever part of its sovereignty—potentially ceding independent territories and foregoing the right to participate in military unions. In the event the Ukrainian government is forced to consider non-aligned status and territorial losses as conditions of negotiations with Russia, such sacrifices will not be made readily and may in fact be precluded by provisions in Ukraine’s Constitution and national legislation, which stand guard over Ukrainian sovereignty.

This piece provides a short review of Ukraine’s constitutional provisions on territorial sovereignty, then discusses the provisions on referenda affecting Ukrainian territory, and finally analyzes the constitutional amendment process. The discussion is all in the context of Russia’s past takeover of Crimea and its current invasion of eastern regions of Ukraine with large Russian-speaking populations. The piece concludes that any diplomatic compromises allowing for the cession of Ukrainian territory will face stiff constitutional hurdles.

The Conflict in Context: A Brief Overview of Russian Aggression and Hurdles to Negotiations

Almost immediately after Ukraine proclaimed independence in 1991, Russia tried to influence Ukrainian sovereignty.1Using the weakness of the central Ukrainian government, the Crimea Parliament, in 1992, adopted the Declaration “On State Independence of the Republic of Crimea,” and Crimea’s Constitution. Moreover, the elected President of Crimea was a representative of the “Russia” political organization.” All named actions were canceled by the Ukrainian authority as unconstitutional. Only in 2014, did Russia show its true face when it began actively occupying Ukrainian sovereign territory—annexing Crimea and occupying some parts of the Ukrainian Donetsk and Luhansk regions.

When Russia realized it could do this with impunity, it began the next phase of occupation: the undisguised, full-scale military invasion of 2022, which began an unannounced war in Europe with a real risk of becoming WWIII. Russia recast these aggressions as efforts to protect the local Russian-speaking population’s expressed desire and right to be independent2See also https://www.nbcnews.com/news/world/putin-russia-ukraine-history-speech-rcna17132; https://www.unian.info/politics/10864109-russia-to-continue-protecting-russian-speakers-official.html https://www.rferl.org/a/russia-ethnic-russification-baltics-kazakhstan-soviet/25328281.html. and to prevent Ukraine from taking steps toward joining the Western defensive alliance, NATO.

Almost a month after the war began, President Zelensky still saw the possibility of negotiations and said that the terms of a compromise with Russia should ultimately be approved in a referendum. The Ukrainian leader proclaimed that the issue of Ukraine’s “neutrality”—one of the central points of negotiations with Russia to end the conflict—was being “studied in-depth.”

In his speech at the Wall Street Journal CEO Council Summit, President Zelensky stated that the first task for Ukraine was to return the Russian troops to their February 24th positions and to renew Ukraine’s territorial integrity. However, returning Russian troops to their pre-war condition is not a full renewal of territorial integrity, and despite President Zelensky’s declaration that Ukraine would not make territorial concessions in the east of Ukraine, it remains to be seen whether the Ukrainian territory and its sovereignty will fully recover. The current situation is still unstable and can change minute to minute depending on the victories and defeats on the battlefield as well as the willingness of the United States and other countries to offer military aid to Ukraine and to impose economic sanctions on Russia.

Let’s suppose that negotiations with Russia will eventually occur. In that case, it is certain that possible compromises will implicate Ukrainian sovereignty—potentially determining who controls what is now Ukrainian territory as well as Ukraine’s status in military blocs moving forward. If hostilities cease without an unequivocal Ukrainian military victory, and if Russia continues to occupy Ukrainian territory, officials in Moscow will likely use the situation to demand the neutral status of Ukraine. But it will not be easy to find a legal compromise on these sovereignty issues. Certain Ukrainian constitutional and legislative provisions relating to Ukrainian territorial changes and Ukraine’s non-aligned status could prove to be a Gordian knot for possible negotiations.

What Does Ukrainian Legislation Say about Sovereignty Issues?

The Ukrainian Constitution prescribes that the sovereignty of Ukraine shall extend throughout its entire territory, within its present borders, which shall be indivisible and inviolable.3Article 2 The Constitution also provides that the defense of Ukraine and the protection of its sovereignty, territorial integrity, and inviolability is the responsibility of the Armed Forces of Ukraine4Article 17 part 2 as well as the Ukrainian People.5Article 65 part 1 Under the Ukrainian Constitution, issues of altering the Ukrainian territory are resolved exclusively by an all-Ukrainian referendum,6Article 73 which constitutes the electorate’s right to participate in the administration of state affairs.7Article 38 part 1 A nationwide referendum on territorial changes must be authorized by the Ukrainian Parliament, which determines the date of any such referendum.8Article 85 part 1 clause 2

But an all-Ukrainian referendum is the last step in the procedure of approving the Ukrainian territorial changes. Before a national vote on territorial changes can occur, the Verkhovna Rada of Ukraine (the national parliament) must ratify an international agreement to alter the territory of Ukraine.9Article 85 part 1 clause 32 Only after the ratification of an international agreement and the signing of such a law by the President, can the Ukrainian parliament then vote for a resolution to call a referendum.10Article 18

The current official Ukrainian-Russian state border was defined in 2004 and demarcated in 2010 by international treaties between the Russian Federation and Ukraine. The Ukrainian Parliament ratified these treaties, and they have not been subsequently altered by any new agreements between Russia and Ukraine. Consequently, all actions by Russia and pro-Russian local separatists purporting to establish Crimea’s independence or to create so-called “peoples’ republics” through local referendums are unconstitutional and unrecognized by Ukraine or by any international organization or democratic country in the world.

Exploiting the political challenges in Ukraine after a series of destabilizing events—the Revolution of Dignity in 2013 and 2014, the Russian invasion of Crimea in 2014, local separatists’ declaration of Crimea’s independence,11 See also https://www.bbc.com/ukrainian/politics/2014/03/140311_crimea_rada_decisions_sx , https://web.archive.org/web/20140314090337/http://www.bbc.co.uk/ukrainian/politics/2014/03/140311_crimea_rada_decisions_sx.shtml. and an illegal local referendum—Russia annexed parts of sovereign Ukrainian territory. That land grab was authorized by the Russian President when he officially recognized the “independence” of Crimea, and by the Russian Parliament, which voted to approve the annexation.

In 2014, the Constitutional Court of Ukraine deemed the Crimean “referendum” unconstitutional, emphasizing the integrity and inviolability of the territory of Ukraine within the existing border and the extension of Ukraine’s sovereignty to its entire territory. Additionally, the Court held that narrowing the existing borders of Ukraine through local referenda by removing any administrative territorial unit from Ukrainian control or changing the constitutional status of Ukrainian territorial units was unconstitutional.

Despite Crimea’s misleading title as an “Autonomous Republic” in the Ukrainian Constitution, Crimea does not have real autonomy or sovereignty. It exists only as a regular Ukrainian region and as an integral part of the unitary state.12Article 134 Crimea received the “Autonomous Republic” title because of certain historical and political factors.

Crimea does have its own constitution, but Crimea’s constitution is a “constitution” in name only.13As mentioned in note 1, in 1992, Crimea attempted to claim independence from Ukraine by adopting a declaration of independence and its own constitution. The Ukrainian Parliament passed Crimea’s constitution as an official act of parliament, but not as an independent act of Crimea’s government, which avoids possible future moves toward Crimea’s independence. Following the Ukrainian Constitution and legislation, the Ukrainian government has full control of all Crimean acts that can influence its own independence. Unlike state constitutions in the United States federal system, Crimea’s constitution functions as a charter of the local community and does not represent real sub-national sovereignty or power. Crucially, Crimea’s constitution prescribes that Crimea is an integral part of Ukraine and does not provide for independence.14Article 1 part 1

Adjustments to Crimea’s constitution must be approved by the Ukrainian Parliament.15Article 135 part 1 Crimea’s constitution states that Crimea’s territory can be adjusted in accordance with the Constitution of Ukraine and taking into account the decision of a local referendum.16Article 7 part 2 However, when it comes to altering Ukrainian territory, the real role of local referendums is only consultative. The local referendum process provides a formal vehicle for taking the pulse of the local population. This point was clarified by the Constitutional Court of Ukraine, which held that such provisions should be understood as the implementation of the European Charter of Local Self-Government. Those provisions establish that any changes to the local territorial boundaries should be carried out with local consultations if possible.17Article 5 Moreover, the local referendum that did occur was also illegal because of the lack of national law on local referendum.

Eight years after Russia invaded Crimea, it employed similar tactics to once again violate Ukraine’s sovereignty and territorial integrity. This time, Russia recognized “independence” of so-called LPR’s18Luhansk People’s Republic and DPR’s19Donetsk People’s Republic constituted another international treaty violation by Russia. In the aftermath of the Russian military invasion of 2022, we can expect Russia to attempt to create more illegitimate republics in other Ukrainian occupied territories, such as the Kherson region.20 See also https://dailypost.ng/2022/04/27/war-zelensky-reacts-as-ukrainians-refuse-russian-referendum-for-kherson-peoples-republic/. Such attempts would likely lead to Ukrainian refusal to continue further talks with Russia.

The attempted push by Russian officials to force Ukraine to accept non-aligned status also violates Ukrainian sovereignty. Ukraine’s non-aligned status was established in the Ukrainian law “On Principles of Domestic and Foreign Policy,” but was changed in 2015 to allow for increased cooperation with the North Atlantic Treaty Organization and possible membership in this organization. The current Ukrainian Constitution provides the way forward to the North Atlantic Treaty in the following provisions:

  • Article 85 part 1 clause 5 empowers Parliament to prescribe the strategy for Ukraine to attain full membership in the North Atlantic Treaty Organization;21Article 85 part 1 clause 5
  • Article 102 part 3 establishes the President’s duty to serve as the guarantor of the implementation of Ukraine’s strategy to attain full membership in the North Atlantic Treaty Organization;22Article 102 part 3
  • Article 116 part 1 clause 1-1 requires the Cabinet of Ministers to ensure the implementation of the State’s strategy to acquire full membership in the North Atlantic Treaty Organization for Ukraine.23Article 116 part 1 clause 1-1

There are still some outstanding questions about Ukraine’s non-aligned status stemming from the three foundational documents of Ukraine—the Declaration of State Sovereignty (1990), the Act of Declaration of Independence (1991), and the national Constitution (1996)—and the relationship among them. These documents are historically and legally linked, but their respective views on Ukrainian participation in military alliances differ, ranging from expressly prohibiting participation in military alliances to expressly providing a way forward to join NATO. In its Preamble, the Ukrainian Constitution states that it was adopted based on the Act of Declaration of Independence.24Part 3 paragraph 3 The Act of Declaration of Independence, in turn, states that it implements the provisions of the Declaration of State Sovereignty. Given these connections, we logically can conclude that all three documents descend from and inform one another, and that their legal reasoning is traceable from the sovereignty proclamation to the adoption of the current Ukrainian Constitution.

This relationship can be seen in the provisions that discuss Ukraine’s non-aligned status as well. The Declaration of State Sovereignty of Ukraine states that its provisions serve as the basis for the new Constitution and determine the country’s positions in future international treaties. The Declaration of Sovereignty also states that Ukraine intends to become a country out of all military blocs. This “out-of-bloc” status is not enshrined in the current Ukrainian Constitution. Although the current Constitution is Ukraine’s supreme governing document, any understanding of the Constitution should be informed by the aforementioned connection among the the Declaration of State Sovereignty, the Act of Declaration of Independence, and the national Constitution. The relationship between these three documents should be clarified by the Constitutional Court, once and for all, to avoid any misinterpretations in the future.

Reaching a Compromise Will Not Be Easy

Any negotiations between Russia and Ukraine will certainly cover fundamental sovereignty issues (e.g., occupied territory, national borders, Ukraine’s non-aligned status, etc.). The Constitution does not establish nor describe Ukraine’s national borderline. Given this, one could conclude that any change to Ukraine’s territorial boundaries would not require a constitutional amendment and would depend only on the relevant international agreement demarcating the new border. This conclusion would be mistaken. Although the international treaties ratified by the Ukrainian parliament became national legislation as a result of their ratification, the Constitution of Ukraine also prescribes that such treaties should not contradict the Constitution of Ukraine.25Article 9 part 1 Further, if such treaties violate provisions of Ukraine’s constitution, the treaties can only be ratified after the relevant constitutional changes are made so as to avoid conflicts between the treaty and the constitution in the first instance.26Article 9 part 2

Admittedly, the referenced constitutional provisions have some contradictions. There is no constitutional obligation to review the constitutionality of international agreements before they are ratified. Instead, the international agreements are to be reviewed during the drafting process by the Ministry of Justice.27Article 4 Unfortunately, the Ukrainian experience shows us that this is not a guarantee of a qualified analysis,28As it was with the Rome Statute of the International Criminal Court, which was signed by Ukraine, but was recognized as unconstitutional, in some parts, by the Constitutional Court of Ukraine. and that the Constitutional Court of Ukraine is the only constitutionally-valid body that can reliability review the constitutionality of such an agreement.29Article 147 part 1

As a unique body with jurisdiction over the application and interpretation of Ukraine’s constitution, the Constitutional Court of Ukraine can review any international agreement or referendum appointment at the request of the forty-five members of Parliaments, the President, or the Cabinet, either before that agreement’s ratification30Article 151 part 1 or before the referendum procedure starts.31Article 21 part 1 clause 1. The referendum proclaiming procedure is stayed (for thirty days) before the Court declares its decision. If the Constitutional Court determines that such an agreement is unconstitutional, the treaty cannot be ratified, or the referendum must be canceled.

As mentioned above, the Constitution allows for a non-conforming international agreement to be accepted after relevant changes to the Constitution are made, but in reality, a non-conforming international agreement will be politically and legally “marked” as inappropriate. Even if Ukrainian officials decide to change the Constitution to satisfy the international agreement, they likely would be unsuccessful because all drafts of constitutional amendments must be reviewed32Article 159 by the Constitutional Court to determine the constitutionality of the changes, to preserve independence, and to prevent violations of Ukraine’s territorial integrity.33Article 157 part 1 If the Constitutional Court previously held a particular international agreement was unconstitutional, it will likely find similar future constitutional amendments unconstitutional as well.

It is very important to note, either in the case of possible constitutional amendments allowing for the adoption of international agreement(s) or possible changes to the non-aligned status of Ukraine, that the Ukrainian Constitution has two types of amendment procedures—neither of which is easily fulfilled.

Under the first and easier procedure,34Article 155 regular constitutional amendments (amendments for all Constitutional sections except sections I, III, and XIII) should be first approved by a simple majority in Parliament (50%+1 vote of all members of Parliament). Approved amendments will be adopted on the next regular session of Parliament if at least two-thirds of members of Parliament (MPs) vote for the amendments.

The second, harder way35Article 156 involves amending sections I, III, or XIII. The draft of any amendment to these sections must be submitted by the President of Ukraine or by at least two-thirds of MPs36This is distinct from the first procedure for amending sections other than I, III, or XIII, which only requires that the draft should be submitted by 1/3 of MPs, following Article 154. and adopted by the same number of MPs. After that, any amendment to these sections must be approved in the all-Ukrainian referendum designated by the President of Ukraine.

In the author’s opinion, there are three paths to change Ukraine’s non-aligned status, and all of them involve constitutional amendments. The first path involves simply striking the aforementioned provisions pertaining to the North Atlantic Treaty Organization from the Constitution (and related legislation). The second path is a variation of the first path. In addition to the removal of the NATO provisions as called for in path one, this path would involve amending the Constitution to enshrine Ukraine’s non-aligned status in the same provisions of the Constitution and legislation, which are paving the way to NATO. The third path involves incorporating Ukraine’s non-aligned status in section I of the Constitution, “General Principles.” This path is the most difficult because the amendment codifying Ukraine’s non-aligned status needs to be realized through the previously mentioned special (i.e., hard) constitutional amendments procedure required when amending sections I, III, or XIII.

It is crucial to note, that all mentioned changes outlined in these paths can only occur after the war stops because referendums37Article 20 part 1 clause 1 and constitutional amendments38Article 157 part 2 are prohibited under martial law. Furthermore, even if the Ukrainian government is able to amend Ukraine’s Constitution to cede its sovereign territory, the Ukrainian people can protest or vote for new parties and/or party leaders if they find such amendments and cessions unacceptable. In any scenario, the Ukrainian people will have the final word.

Conclusion

The violation of Ukrainian sovereignty and territorial integrity began long ago and was supported by different Russian influencers both within and outside of Ukraine. The narratives of the aggressor have been based on a desire to destroy international order by ignoring the Ukrainian Constitution as well as international law and principles. As a sovereign and unitary state, Ukraine has lost part of its territory and continues to fight for every single part.

Even if the Ukrainian government is forced to the negotiating table with Russia, it is highly unlikely that such negotiations would result in changes to Ukraine’s territorial boundaries (e.g., ceding Crimea, Luhansk, and/or Donetsk regions) or derail Ukraine’s constitutionally-established path to join NATO. The constitutional procedures and guardrails identified here should preclude such an outcome. Last, but not least, all negotiations, agreements, drafts, and voting, will be under the Ukrainian People’s control. The People are the ultimate arbiter of Ukraine’s future.

About the Author

Meet Sergiy Panasyuk

Sergiy Panasyuk is a Ph.D in constitutional law; professor of the Department of General Studies of the Ukrainian-American Concordia University (Kyiv, Ukraine); professor of the Department of law of the European University (Kyiv, Ukraine); academic consultant of the Judge of the Constitutional Court of Ukraine.

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