About the Author: Sergiy Panasyuk is 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). He can be reached at s.a.panasyuk@gmail.com.
Image by Bondart. Available here.
Introduction
A year and a half after the Russian full-scale military invasion of Ukraine, the prolonged nature of this conflict is evident, and there are no visible possibilities to cut such a Gordian Knot without a win on the battlefield. There is also no legal ways to “cut” any part of Ukrainian territory to calm the aggressor. Despite political speculations, expert opinions, and careless statements of NATO officials—who later had to apologize—the prospect of negotiation is legally unrealistic. Even if the Ukrainian government finds itself in a situation where negotiations and peace agreements appear to be the only ways to stop the war, such measures are likely viewed as illegal. They can lead to public dissent, domestic protests, and even a new wave of revolutionary movements in Ukraine. It is clear that any possible negotiations will at least focus on two critical issues: territorial compromise and Ukraine's future NATO membership, both of which appear unattainable.
Moreover, the statement of American lawyer and US senator, Lindsey Graham, advocating for free and fair elections in Ukraine next year, even during the ongoing war, struck as peculiar. In response to Senator Graham's statement, the Secretary of the Ukrainian Council of National Security and Defense asserted that Ukraine’s actions would align with the Ukrainian legislation and Constitution, rather than the wishes of some of its respected partners who presumed that the Ukrainian government could violate laws.
It is clear that without a thorough expulsion of Russian troops from Ukrainian territory, a de-facto military win, any elections or negotiations remain unrealistic.
The prospect of negotiation presents legal perplexity.
The first issue that would arise in any negotiations is “cutting” a portion of Ukrainian territory, which seems implausible because of the difficulty of obtaining endorsement from the Ukrainian Parliament, the Referendum, and the Constitutional Court. While some political actors may frame such a territorial compromise as a temporary measure to save Ukrainian soldiers' lives, it is hard to imagine that the majority of Ukrainian Members of Parliament (MPs) would vote for relinquishing control, even temporarily, over the occupied territories. Such a move would likely face major public dissent, making it a risky venture outside the Parliament. People would likely reject such an agreement, given that any territorial changes necessitate validation through a national referendum, which is legally prohibited during martial law. Even if the government could suppress public protests and falsify the voting, the Constitutional Court, acting as the Constitutional gatekeeper, can still stop government actions at any stage. Meanwhile, in case the Court could not perform its duty, the populace would further demonstrate their opposition as the ultimate source of the state’s power. This scenario could potentially trigger a revolutionary movement.
The second main issue for negotiation, absent a military win, is the future NATO status of Ukraine. In this case, we should first remind our readers that after constitutional amendments in 2019, the pursuit of NATO membership is officially enshrined within the Ukrainian Constitution as a national choice. The Parliament, the President, and the Cabinet of Ministers are constitutionally obliged to support this objective. Despite academic discourse and separate opinions of six judges of the Constitutional Court on certain aspects of these constitutional amendments, the Constitutional Court upheld the constitutionality of such changes. Excluding the "way to NATO" from the Constitution would require two rounds of voting in the Parliament and a Constitutional Court review. However, the main hurdle remains the constitutional prohibition on any amendments of provisions during the period of martial law. Even if the Ukrainian government finds ways to stop martial law and starts the amendments procedure, repealing the amendments still requires review by the Constitutional Court. Otherwise, the revolution scenario is also inevitable.
In addition, facing terrible corruption during the war, the Ukrainian nation is critically sensitive, so public dissent might "explode" quickly during potential negotiations with Russia without winning the war. The author does not think Ukrainian authorities will take such a risk to violate the constitutional provisions or push the nation to take desperate steps. Therefore, any discourse about potential negotiations with Russia without a military win appears to be either a probing of international or Ukrainian official responses, or merely media sensationalism.
Unrealistic elections in 2024
In the author's view, the statement by Senator Graham might be interpreted as political provocation, or simply a lack of understanding of Ukrainian laws. Regardless of Senator Lindsey Graham’s intent, the elections in Ukraine in 2024 are improbable without a military win.
According to the Ukrainian Constitution, regular Parliament elections in Ukraine should occur on the last Sunday of October of the fifth year term. The Presidential elections should be on the last Sunday of March of the fifth year of their term. Given that the Parliament was elected in July 2019, the elections are due this October. However, pursuant to the President's decree, the Parliament extended the martial law till November 15, 2023, which logically will be extended again till the end of the war. Consequently, the parliamentary elections can only occur after martial law ends. However, there is a possibility to have the Presidential election in March 2024 if the war ends soon.
Senator Graham mentioned the need for an election next year even if the war continues. Theoretically, there are two legal ways to realize such a plan: 1) discontinuing the martial law regime or 2) changing the legislation to allow elections during the war.
Ending the martial law during Russia’s full-scale aggression seems dangerous for Ukraine’s national security. It can be no more than a political "wishlist" and only plays into the hands of the aggressor. Changing the domestic legislation regarding the parliament elections will not work because the Constitution mandates the incumbent Parliament to continue its term till the end of martial law. Although the Constitution is silent on presidential elections during the martial law regime, such a proposal appears dangerous as the risk of attacks during voting is real. Therefore, the US Senator seemed to have encouraged Ukraine to take irrational steps.
Conclusion
Upon examining the aforementioned issues, it seems clear that any peace agreement with Russia without a factual military win would face legal hurdles. It is true that democracy provides an effective mechanism for authority transition and corruption could undermine any democratic regime. While the Ukrainian authority has its shortcomings in some of its actions, pushing the Ukrainian government to start illegal negotiations or hold elections that may pose a danger to its national security is not a way to combat corruption or effectively promote democracy.
The termination of warfare without a Ukrainian victory is also unrealistic. Ukraine’s defeat in the war would likely lead to a new war after a while, possibly on the territories of EU countries. After all, if you give the beast to bite off a finger, it will definitely covet your hand.