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Constitutional Change (EU and NATO)

September 8, 2018

After travelling for a few days, perhaps a few lines are due relating to President Poroshenko’s proposals delivered to the Verkhovna Rada relating to constitutional change to enshrine NATO and EU membership within the Constitution of Ukraine.

There are of course many ways to perceive this decision domestically – considering the transparently expedient timing as presidential elections appear upon the immediate political horizon.  It is perhaps the last opportunity for the current president to display the ability to raise a constitution changing 300 (or more) votes from within the Verkhovna Rada during his current (and perhaps only) term.  A display (of sorts) of presidential political force.

Longer term however, there is also little chance over the following few decades that 300 votes would be gathered to overturn any changes that make the EU and NATO membership a constitutional obligation.

Blood has been spilled.  Rubicon crossed and all that.  Any amendments to remove such goals may well be seen as a course reversal at best, a turn toward Kremlin appeasement at worst.  Politically prickly for at least a generation.

In short, it would be a fairly robust constitutional insurance policy against a return to the past influences of the “northern neighbour”.  300 (plus) votes is far more difficult to gather than 226 for standard legislation when all is said and done.

Nevertheless, there is perhaps some debate to be had over whether the Constitution of Ukraine is the appropriate document for such political declarations.  Generally, a reader would probably associate a nation’s constitution as the basic principles and laws of a nation state that determine the powers and duties of the government and guarantee certain rights to the people within it.

That said, a constitution is perhaps best being living document to maintain a contemporary social contract between a State and its citizens.  However the direction of NATO and the EU for a democratic nation’s society can also be, and is perhaps far better settled at the ballot box by voting for political parties that declare that their goal.

So is embedding such goals within the constitution either necessary or desirable?

There is also the rule of unintended consequences.  Any statutory law that may be interpreted as not progressing Ukraine toward EU and NATO membership, perhaps simply by not meeting “the European normative” could well be interpreted as unconstitutional, ergo perhaps unintentionally limiting the concept of national sovereignty even over the most banal and prima facie entirely Ukrainian of affairs.

It doesn’t take many contrarian or mischievous parliamentarians to overwhelm the Constitutional Court with requests to review a never-ending flow of domestic legislation through the lens of progressing toward NATO and EU membership – or not.

If not, and by failing to meet such norms, would any and all such statutory laws and institutional regulations therefore be deemed unconstitutional?

Could this perhaps get messy?

From the European and Trans-Atlantic perspective, making EU and NATO membership a Ukrainian constitutional goal is fairly irrelevant.

What is relevant first and foremost in that EU and NATO standards are met.

With regard to the EU, that firstly relates to meeting the ratified obligations of Ukraine with respect to the Association Agreement (and DCFTA).  Thereafter it would also be required to meet the higher and wider bar of the Aquis Communitaire.

With regard to NATO it requires not only meeting military interoperability and organisation structures, but also meeting the economic, political and social demands made clear within Article 3 of the Washington Treaty too.  Meeting those requirements is not only subjective but also must be recognised and accepted by every NATO member.

In short, even after meeting both EU and NATO requirements, membership is still entirely dependent upon the political will of the existing members.

All of this raises the question as to whether the constitution/basic and fundamental law of Ukraine is the best place to legislatively set the political course of Ukraine – if it needs to be set in law at all.

Maybe it is.  Maybe not.

The consequences (if any) of these amendments if passed by the Verkhovna Rada remain to be seen.

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