This piece argues that the Euro-Atlantic provisions in the Ukrainian Constitution are not merely symbolic, but they actually legally bind the Ukrainian government with regard to its foreign policy

Frosini, Justin Orlando

Lapa, Viktoriia

English

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1/7/23, 10:15 AM Would Ukraine Breach its own Constitution if it Dropped its NATO Bid?https://www.printfriendly.com/p/g/2iFbx9 1/5Would Ukraine Breach its own Constitution if it Droppedits NATO Bid?verfassungsblog.de/would-ukraine-breach-its-own-constitution-if-it-dropped-its-nato-bid/Viktoriia LapaJustin Frosini18 Februar 2022Among the many issues discussed in the context of the current Russian threat of aggressionagainst Ukraine, Ukraine’s NATO aspirations and Russian opposition to it joining thisorganization is prominent.  Some may think that dropping these aspirations might helpavoiding a disastrous war.  This, however, is no longer just a matter of political will but ofconstitutional law: Since 2019, the prospect of joining NATO is enshrined in the UkrainianConstitution, so one could argue that withdrawing the request for membership of NATOwould be unconstitutional. Indeed this blogpost argues that the Euro-Atlantic provisions inthe Ukrainian Constitution are not merely symbolic, but they actually legally bind theUkrainian government with regard to its foreign policy.The amendment to the Constitution in order to strengthen Ukraine’s commitment toEuropean Union membership and Euro-Atlantic integration took place during the term offormer President Petro Poroshenko, who put this at the centre of his presidential campaign.The Constitutional Court of Ukraine greenlighted the amendments in its Opinion of 22November 2018 with 6 Separate Opinions of the Judges who claimed that the Opinion of theConstitutional Court should have been more precise on its motivation rather than justformally checking compliance with procedural requirements. Amendments to the UkrainianConstitution require at least 2/3 votes (300 deputies) of the constitutional composition of theParliament (450 deputies). While there were of course opposing views among the deputiesduring the adoption of these amendments, the Ukrainian Parliament, on 7th February 2019finally adopted the changes to the Constitution with 335 (out of 450) votes in favour.The Ukrainian Parliament amended the preamble and several articles of the Constitutionconcerning the competences of some of its main governmental bodies:In the preamble after the words ‘civil harmony on the land of Ukraine’ the followingpassage was added: ‘and reaffirming the European identity of the Ukrainian people andthe irreversibility of the European and Euro-Atlantic course of Ukraine’;1)2)1/7/23, 10:15 AM Would Ukraine Breach its own Constitution if it Dropped its NATO Bid?https://www.printfriendly.com/p/g/2iFbx9 2/5Paragraph 5 of the first part of Article 85 (the competences of the Parliament ofUkraine) is now worded as follows: ‘determination of the principles of domestic andforeign policy, implementation of the state’s strategic course towards fullmembership of Ukraine in the European Union and the North Atlantic TreatyOrganization’;Article 102 (the President of Ukraine) now has a third section that states the following:‘The President of Ukraine is the guarantor of the implementation of the state’sstrategic course towards full membership of Ukraine in the European Union andthe North Atlantic Treaty Organization’Article 116 (the Cabinet of Ministers of Ukraine) was amended so as to add item 11which states the following: ‘ensures the implementation of the strategic course of thestate for the acquisition of full membership of Ukraine in the European Union andin the North Atlantic Treaty Organization’.Some scholars consider these amendments to be redundant and lacking any legal valueclaiming that existing Ukrainian legislation already aims at pursuing Euro-Atlantic integrationon the basis, inter alia, of the Law ‘On National Security’. At the time, they argued that, inactual fact, such amendments merely had a political aim and were a part of an electoralstrategy given the fact that they were brought into force just before the end of the term offormer President Poroshenko. While this might be true, from a legal standpoint one cannotignore the fact that “constitutionalizing” Euro-Atlantic integration could have legalconsequences as well.First of all, it is obvious that the reference to Euro-Atlantic integration in connection to theexercise of the functions of governmental bodies provides less flexibility to futuregovernments in terms of policy making. For example, Art. 9 of the Constitution of Ukrainesays that entering into international agreements that are contrary to the Constitution isallowed only upon amending the Constitution of Ukraine accordingly. Indeed, if the UkrainianPresident – who has the right to sign, suspend and terminate certain agreements on behalfof the peoples of Ukraine – decided, through a decree, to scupper the Agreement by whichUkraine established cooperation with NATO back in 1997  then forty-five Members (ormore) of the Parliament of Ukraine, the Supreme Court, or the Commissioner of theVerkhovna Rada for Human Rights could lodge a claim in front of the Constitutional Courtdisputing the constitutionality of such a Presidential decree.  The same would be applicableto the actions of the Parliament of Ukraine – if it were to adopt any law that would gocontrary to the Euro-Atlantic aspirations of Ukraine. In fact, such a law could be challengedas unconstitutional before the Constitutional Court of Ukraine by the President of Ukraine,the Supreme Court or the Commissioner of the Verkhovna Rada for Human Rights.In its hypothetical Decision on unconstitutionality of the above-mentioned decrees or lawsthe Constitutional Court of Ukraine would almost certainly refer to Article 19 of theConstitution of Ukraine, which stated that ‘all state and local self-government and their5)6)1/7/23, 10:15 AM Would Ukraine Breach its own Constitution if it Dropped its NATO Bid?https://www.printfriendly.com/p/g/2iFbx9 3/5officials are obliged to act only on the grounds, within the limits of authority, and in themanner envisaged by the Constitution and the laws of Ukraine.’Ukraine started to cooperate with NATO in 1997 by entering into a Charter of a DistinctivePartnership with NATO. Later, Ukraine requested to join NATO at the Bucharest summit in2008. Paragraph 23 of the Bucharest Summit Declaration reads as follows: ‘NATO welcomesUkraine’s and Georgia’s Euro-Atlantic aspirations for membership in NATO. We agreedtoday that these countries will become members of NATO.’ That said, 12 years later, in June2020 Ukraine was recognized only as an Enhanced Opportunities Partner by NATO, whichallows for greater cooperation ‘…between Allies and partners that have made significantcontributions to NATO-led operations and missions’. The same status is given to Australia,Finland, Georgia, Jordan and Sweden. Yet, it is quite obvious that while Ukraine has Russiantroops in the Donbass region, its NATO membership does not appear to be a viable option.This is why the current crisis between Ukraine and Russia goes beyond NATO and has to beunderstood in a broader historical and geopolitical context. However, leaving aside theprospects of Ukraine joining NATO in the near future, as illustrated above there is no doubtthat the reference to NATO in the Constitution has legal value and any reversal of North-Atlantic integration would imply amending the Ukrainian Constitution. Moreover, any suchstep would probably lead to a strong backlash from Ukrainian society and politicians, giventhat according to a recent survey, 54% of Ukrainians would vote for joining NATO in areferendum.As of now, Ukraine is bound by its Constitution and stepping back from its NATO aspirationsdoes not seem to be a real prospect. That said Ukraine may be coming close to a fork in theroad where it may be forced (by Russia or even its Western allies) to choose between fullyupholding the Constitution (as amended in 2019) and protecting the territorial integrity of theState. One can only hope that the diplomatic efforts of the last few days will prove to besuccessful thus overcoming what would be a lose-lose situation for Ukraine and its people.References↑1 Some scholars believe that Ukrainian membership of NATO is not the real reasonbehind Russia’s recent deployment of troops close to the Ukrainian border. The merereference to the Ukrainian bid to join NATO sparked a heated discussion a few daysago. For example, the former Secretary-General of NATO, Jaap de Hoop Scheffer, inan interview to the Financial Times, mentioned that Putin just ‘wants his empire back’.For more extensive analysis on NATO’s flashpoint in Russia-Ukraine crisis here.1/7/23, 10:15 AM Would Ukraine Breach its own Constitution if it Dropped its NATO Bid?https://www.printfriendly.com/p/g/2iFbx9 4/5↑2 In particular, responding to a question on BBC radio as to whether Ukraine wouldconsider reverting its NATO membership request if this could avoid a Russianinvasion, the Ukrainian Ambassador to the United Kingdom, Vadym Prystaiko stated:“We might, especially being threatened like that, blackmailed by that, and pushed toit”… These words led many newspapers to publish headlines such as “Ukraine coulddrop NATO bid to avoid war”. There was also outcry among Ukrainian politicians and,indeed, the spokesperson of the Ministry of Foreign Affairs of Ukraine was forced todeclare that ‘…the ambassador’s words were taken out of context’ and ‘the prospectof joining NATO remains enshrined in the constitution’.↑3 Ukraine is not the only country that has inserted EU and NATO aspirations in itsConstitution. For example, Georgia, Montenegro and Kosovo have done so as well.↑4 For a more extensive analysis of amendments to the preamble see Justin Frosini &Viktoriia Lapa, NATO’S Aspirations in the Constitutional Preamble of Ukraine:Distorting Historical Roots of the Constitution or Reflecting Societal Changes?, IACL-IADC Blog (30 June 2020).↑5 For example, the Charter on a Distinctive Partnership of Ukraine between Ukraineand North-Atlantic Treaty Organization was entered into by the President of Ukraine in1997 and could be terminated or suspended by the President of Ukraine as well. Theentry, suspension and termination of international treaties by Ukraine is regulated bythe Law of Ukraine ‘On International Treaties’ dated 29 June 2004. It has to bementioned that according to Article 9 of the above-mentioned law entry into treatieson collective security should be ratified by the Parliament of Ukraine↑6 Article 52 of the Law of Ukraine ‘On the Constitutional Court of Ukraine’ mentions theVerkhovna Rada of the Autonomous Republic of Crimea as one of the subjects of theconstitutional petition as well.ReferencesLICENSED UNDER CC BY SASUGGESTED CITATION  Lapa, Viktoriia; Frosini, Justin: Would Ukraine Breach its ownConstitution if it Dropped its NATO Bid?, VerfBlog, 2022/2/18,https://verfassungsblog.de/would-ukraine-breach-its-own-constitution-if-it-dropped-its-nato-bid/, DOI: 10.17176/20220219-001043-0.Explore posts related to this:1/7/23, 10:15 AM Would Ukraine Breach its own Constitution if it Dropped its NATO Bid?https://www.printfriendly.com/p/g/2iFbx9 5/5Other posts about this region:UkraineLICENSED UNDER CC BY SA

Would Ukraine breach its own constitution if it dropped its NATO bid?

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Would Ukraine breach its own constitution if it dropped its NATO bid?

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