Because going against the NATO aspirations of Ukraine is unconstitutional for Kiev
The changes made to the Ukrainian constitution in 2019, when the president was Petro Poroshenko, show the country's willingness to be part of the European Union and NATO. The analysis by Viktoriia Lapa and Justin Frosini from Bocconi University
“Some may think that abandoning these aspirations [of Ukraine to join NATO, ed ] could help avoid a disastrous war. This, however, is no longer just a question of political will but of constitutional law ”.
This is written by Viktoriia Lapa, academic fellow at Bocconi University, and Justin Frosini, associate professor of comparative public law at the same private Milanese university, in an article published on Verfassungsblog .
In fact, since 2019, they explain, "the prospect of joining NATO is included in the Ukrainian Constitution and this legally binds the Ukrainian government as regards its foreign policy".
Furthermore, “it could be argued that withdrawing the NATO membership application would be unconstitutional”.
THE ROLE OF POROSHENKO
The amendment to the Constitution aimed at strengthening "Ukraine's commitment to joining the European Union and Euro-Atlantic integration took place during the mandate of former President Petro Poroshenko" – remember Lapa and Frosini – who he had made it one of the main points of his presidential campaign.
Obviously Ukrainian politicians were not all in favor but the Ukrainian Parliament, on February 7, 2019, adopted the amendments to the Constitution with 335 (out of 450) votes in favor.
CHANGES TO THE CONSTITUTION
The Ukrainian Parliament, the article reads, has modified the preamble and several articles of the Constitution concerning the competences of some of its main governing bodies. In particular, the authors report:
– In the preamble after the words "civil harmony on the territory of Ukraine" the following passage was added: "and reaffirming the European identity of the Ukrainian people and the irreversibility of the European and Euro-Atlantic path of Ukraine";
– Paragraph 5 of the first part of Article 85 (competences of the Parliament of Ukraine) is now worded as follows: "determination of the principles of internal and foreign policy, implementation of the strategic course of the state towards full accession of Ukraine to the European Union and the North Atlantic Treaty Organization ”;
– Article 102 (the President of Ukraine) now has a third section which states the following: “The President of Ukraine is the guarantor of the implementation of the strategic path of the state towards full accession of Ukraine to the European Union and the North Atlantic Treaty Organization ”.
– Article 116 (the Cabinet of Ministers of Ukraine) has been amended to add point 11 which states the following: "ensures the implementation of the strategic route of the state for the acquisition of full accession of Ukraine to the 'European Union and the North Atlantic Treaty Organization ”.
BECAUSE THESE WORDS HAVE A LEGAL VALUE
These words, write Lapa and Frosini, for some scholars are "redundant and devoid of any legal value" because the existing Ukrainian legislation was already aimed at pursuing Euro-Atlantic integration on the basis of the law "on national security".
However, according to the authors, “from a legal point of view we cannot ignore the fact that 'constitutionalizing' Euro-Atlantic integration could also have legal consequences”. This is because "first of all – explain the experts – it is obvious that the reference to Euro-Atlantic integration in relation to the exercise of the functions of the governing bodies provides less flexibility to future governments in terms of defining policies".
"There is no doubt – the article reads – that the reference to NATO in the Constitution has legal value and any inversion of the North Atlantic integration would imply the modification of the Ukrainian Constitution".
PRACTICAL EXAMPLE
The authors then bring the example of art. 9 of the Ukrainian Constitution, which “says that entering into international agreements that are contrary to the Constitution is allowed only after modifying the Constitution of Ukraine accordingly. Indeed, if the Ukrainian president – who has the right to sign, suspend and terminate certain agreements on behalf of the Ukrainian people – decides, through a decree, to destroy the agreement with which Ukraine established cooperation with the Ukrainian Born in 1997, then 45 members (or more) of the Parliament of Ukraine, the Supreme Court or the Commissioner of the Verkhovna Rada for human rights could lodge a complaint before the Constitutional Court challenging the constitutionality of this presidential decree ”.
But this is not only true for the President of Ukraine, the same speech would also apply to the actions of Parliament "if it adopted any law that would go against Ukraine's Euro-Atlantic aspirations". "In fact, – the article continues – such a law could be challenged as 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".
THE STEPS OF UKRAINE TOWARDS NATO
Lapa and Frosini then recall that even before the changes to the Constitution, Ukraine had already begun to cooperate with NATO in 1997 by entering into a charter of a distinctive partnership. The request for membership of NATO, on the other hand, arrived in 2008 at the Bucharest summit.
THE BUCHAREST SUMMIT DECLARATION
Paragraph 23 of the declaration of the Bucharest summit, the authors report, reads as follows: "NATO welcomes the Euro-Atlantic aspirations of Ukraine and Georgia for NATO membership".
In June 2020, however, 12 years later, Ukraine is recognized by NATO only as an Enhanced Opportunities Partner, a relationship that allows greater cooperation "between allies and partners who have made significant contributions to NATO-led operations and missions" .
THE CROSSROADS OF UKRAINE
But soon, Lapa and Frosini conclude, Ukraine could find itself forced "by Russia or even by its Western allies" facing a crossroads: "to choose between full compliance with the Constitution (as amended in 2019) and the protection of territorial integrity of the State ".
This is a machine translation from Italian language of a post published on Start Magazine at the URL https://www.startmag.it/mondo/perche-andare-contro-le-aspirazioni-nato-ucraina-sarebbe-incostituzionale/ on Mon, 07 Mar 2022 13:03:20 +0000.