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56.2

Cornell International Law Journal Online

Some Questions About Ukrainian “Way to NATO” Constitutionality: Some Legal Aspects Which May Become the Stumbling Blocks for Ukrainian Future NATO Membership, Vol. 56.2

Sergiy Panasyuk

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29 Dec 2023

Introduction 

Following the recent official survey, almost 90% of Ukrainians want Ukraine to become a North Atlantic Treaty Organization (“NATO”) member, which is logical given Russia’s full-scale invasion in 2022. The paradox, however, is that such a way is blocked primarily because of the Russian invasion. Putin reasoned that by invading, he could halt the Ukrainian way to membership in NATO.

After more than a year and a half after the Russian full-scale military invasion of Ukraine, the end of the war seems elusive in the near future. Nevertheless, if neither Russia nor Ukraine accomplishes a military win, they will be forced to start some type of negotiations. It is absolutely obvious that one of the critical questions during negotiations will be Ukraine’s future NATO status. The recent “scandal” with the NATO official’s statement about possibly exchanging the Ukrainian territories for NATO membership only proves that such a question is very actual and will remain so for the foreseeable future. 

In 2019, the “way to NATO” was added to the Ukrainian Constitution through constitutional amendments enshrined in different parts, including the Preamble.

Reviewing the Draft of the constitutional amendments (hereinafter “Draft”), the Constitutional Court of Ukraine (hereinafter “Court”) decided that the proposed changes were constitutional and corresponded with the requirements of the constitutional articles and provisions. However, a Court decision of this magnitude drew six separate opinions from the judges involved in voting. They underlined some critical aspects, objections, clarifications, and arguments that may influence Ukraine’s decision to become a member of NATO in the future. 

It is possible that NATO opponents may use the “nuances” in the separate opinions to slow or even stop the Ukrainian movement toward NATO membership by appealing to the Constitutional Court or International organizations. Moreover, there is no guarantee that the future Constitutional Court will not use these arguments in deciding differently than their predecessors. 

Preamble Amendment

One of the most ambiguous amendments added by the legislators was to the Preamble. The amendment added the wording “caring for the strengthening of civil harmony on Ukrainian soil” and “confirming the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic course of Ukraine.” By adding new wording, the legislators changed, or possibly renewed, the reasons for adopting the Constitution. In fact, the amendments changed the Constitution’s essence and even the People’s will without consulting the People who are the one source of the State power. 

The Ukrainian Constitution enshrines two types of amendment procedures: a stringent one for Sections I, III, and XIII, which a national referendum should approve, and a basic one for all other Sections. However, the Constitution is silent about amendments to the Preamble. Exploiting this gap and by avoiding changes to Sections I, III, and XIII, the Ukrainian Parliament approved the Draft without asking the People’s opinion. 

In his separate opinion, Judge Oleh Pervomaiskyi astutely recognized that the Preamble contains the historical and legal prerequisites for the Constitution’s adoption, as well as constitutional values and other components of the constitutional system. Furthermore, since the Preamble’s provisions are used to understand the essence and content of the Constitution of Ukraine, Judge Pervomaiskyi noticed that the Court should state an additional legal position on this case.

In his separate opinion, Judge Melnyk also underlined that the Constitution of Ukraine is an act of the People’s constituent power and that the People only gave the right to the Parliament to adopt the Constitution once. That is why changing the Preamble was like re-writing the historical moment of the Constitutional adoption, which is impossible in principle. This revision may influence the foundation of the constitutional order in Ukraine and guarantee the stability of the State’s Basic Law.

Unfortunately, the Court chose the easier path by making a limited surface-level analysis within the basic constitutional amendment checking framework, instead avoiding a deep and fundamental analysis of the case. The Majority did not hear their colleagues, who were unsettled by the profoundness of the changes to the Preamble, which may be a severe problem for the Ukrainian future.  

Basically, agreeing with the Court’s conclusions, Judge Mykhailo Gultai’s separate opinion also pointed out that the Court should have analyzed the Draft more carefully because the Constitution does not mention the procedure for changing the Preamble. Moreover, since the Preamble is a fundamental part of the Constitution, its provisions are critically essential and cannot be amended using regular procedures without further interpretation by the Court.

Speaking more radically, Judge Oleksandr Kasminin, in his separate opinion, pointed out that the legislature cannot amend the Preamble without a constitutionally enshrined procedure. Further strengthening his position, Judge Kasminin mentioned that the Preamble is an introductory part that outlines circumstances or reasons for promulgation or adoption. With these distinctions in mind, such a core part of the Constitution cannot be amended at all.

The Declaration of Sovereignty Provisions 

In the author’s opinion, the second significant issue is that the  Declaration of State Sovereignty of Ukraine (hereinafter “Declaration”) bans participation in any military unions. The Court did not analyze this potential inconsistency.

Three historical documents in Ukraine play a significant role in the founding of Ukraine as an independent sovereign state. The first one is the Declaration (1990), which proclaims “the state sovereignty of Ukraine as the supremacy, self-dependence, absoluteness, and indivisibility of the authority of the Republic within the limits of its territory and independence and equality of rights in foreign relations.” Furthermore, the Declaration enshrined that it shall be the basis for the new Constitution and shall determine the state positions during the conclusion of international treaties. The second historical document is the Act of Declaration of Independence of Ukraine (1991). It proclaimed Ukraine’s independence and noted that it implemented the Declaration’s provisions. The final document is the Ukrainian Constitution (1996), which was adopted ruling the Act of Declaration of Independence of Ukraine.

This document trio has a strong historical and legal connection to Ukraine’s state-building process. They were adopted as a logical continuation of each other and laid the groundwork for establishing Ukraine as a nation. The Declaration proclaimed the non-aligned status of Ukraine, signaling its intention to become a permanently neutral state in the future and foreclosing participation in military blocks. 

In our opinion, the Constitutional Court should have analyzed the Draft to prevent the opponents of the Ukraine’s way to NATO from engaging in “legal twisting,” speculation about a violation of Declaration principles, or any other damaging schemes in the future. However, by limiting its review to only formal procedural checking, the Court missed a significant opportunity to clear up these potential problems.

The potential for problems did not go unnoticed. Judge Oleksandr Tupytskyi’s separate opinion warned that the Draft adoption would lead to a formal contradiction between two parts of the Preamble, and the legislature could not have accepted it without a national voting referendum, which could decide future participation in NATO.

Possible Usurpation

By voting for the Draft without a national referendum, the Parliament empowered itself with a new unconstitutional power. Since the Draft, through language in the Preamble, modifies the historical underpinnings behind adopting the Ukrainian Constitution, a “new” or updated vision was given for the People’s view of the nation and the future course of the State. As noted before, voting for such drastic proposals through a national referendum seems logical. Without this vote, Parliament can change the People’s vision whenever they wish. 

In Judge Lytvynov’s opinion, the foundations of the Ukrainian constitutional system, enshrined in the Preamble, can be changed only by the People of Ukraine. The government’s attempt to act in another way may be a sign of usurpation of state power. In further support for a national referendum, Judge Oleksandr Kasminin mentioned that transformations proposed by the Draft would also affect the Section “General Principles.” These transformations could only be adopted after confirmation by an all-Ukrainian referendum. In Judge Gultai’s opinion, the new powers of the Parliament, the President, and the Cabinet of Ministers made by the Draft may lead to an imbalance of the mechanism of exercise of state power in violation of constitutional provisions.

NATO Bases Ban

Preamble problems aside, another critical question should be answered regarding the future of Ukrainian membership in NATO. Does the Draft preclude the possibility of having foreign military bases on Ukraine’s territory?

Within the Constitution, there is a ban on any foreign military bases within Ukraine. However, there was a constitutional provision that allowed the Ukrainian Parliament to avoid the ban. By signing an international agreement, Parliament could permit foreign military formations to stay temporarily within Ukrainian territory. The paradox is that the Draft, which enshrines the Way to NATO within the Constitution, deleted Parliament’s power to avoid the constitutional ban on military bases.  

As Judge Melnyk rightly noticed, logical questions arise in the absence of such power. Will excluding such provisions help to create the right conditions for the implementation of Ukraine’s way to NATO? Moreover, will it help in protecting the sovereignty, independence, and territorial integrity of Ukraine, especially in times of the armed aggression of the Russian Federation?

Conclusion

It is obvious, for now, that the Ukrainian way to NATO will not be fast, and the path is full of stumbling blocks. Given all the unsolved constitutional issues mentioned above, the Ukrainian government’s pushing the issue of NATO membership seems strange, irrational, and short-sighted. Ironically, the government could have addressed such issues before the war more easily. Now, however, any amendments and referendums are banned by Ukrainian law until the end of martial law.

In our opinion, the Ukrainian President or MPs should ask the Constitutional Court how to solve such a problem and be prepared for a referendum shortly after the war ends.

Sergiy Panasyuk, Ph.D. in constitutional law, a Lecturer at the Department of Constitutional Law of Charles University (Prague, Czech Republic), a professor at Ukrainian-American Concordia University and European University (Kyiv, Ukraine), a Visiting Fellow at Cologne/Bonn Academy in Exile (CBA) (Cologne/Bonn, Germany), and a former academic consultant of a Judge of the Constitutional Court of Ukraine (2017-2022).