JURIST Guest Columnist William Partlett of Columbia University School of Law discusses the current state of the controversy in Ukraine …

Constitution-making has rapidly moved to the forefront of the East-West standoff in the Ukraine. Prime Minister Arsenii Yatsenyuk recently announced an ambitious schedule for Ukrainian constitution-making that promises a final draft by September of this year. Meanwhile, Russia has made headlines by moving aggressively to shape the outcome of this constitution-making process—calling for Ukraine to adopt a highly decentralized federal structure and adopt a “neutrality clause” keeping it out of NATO. To press this point, Russia has massed troops on the Ukrainian border.

Russia’s push for influence over Ukrainian constitution-making at first might seem anomalous—shouldn’t the Ukrainians themselves decide the content of their own constitution? Constitution-making experience clearly shows, however, that constitution-making moments rarely occur without some sort of outside influence. This short piece will consider the differing roles of constitutional outsiders in constitution-making and where Ukraine fits on this spectrum of outsider influence.

This article will argue that Ukraine presents a case where constitution-makers voluntarily cede some control to outsiders in order to counter the influence of other outsiders. Ukraine’s voluntary transfer of constitution-making decisions to outsiders will move key constitutional bargaining to the international level. This internationalization of constitution-making in Ukraine has advantages and disadvantages: on one hand, it could help provide more room for compromise but, on the other, it could also potentially cut out key domestic Ukrainian groups who will refuse to recognize the new constitution.

The Reality of Outsider Constitution-making

Constitutional foundation is generally thought to be a “moment” of popular self-determination. Conventional normative legal theory tells us that a new democratic constitution is the product of “We the People’s” constituent power—a popular force that creates the popular legitimacy for the constitution as a form of higher law. Without such popular constitution-making, a constitution cannot be a form of higher law that is binding on majoritarian politics. The classic example of this constitution-making moment is the founding of the US Constitution in the extraordinary Philadelphia Convention.

Comparative constitution-making experience suggests, however, that constitution-making is not always a fully autonomous moment of popular expression. The paradigmatical example of “We the People” acting to create the US Constitution might be the exception rather than the rule. Instead, constitution-making frequently takes place within a context where powerful outsiders play an important role in the process. This kind of outsider constitution-making takes a number of different forms.

On one end of the spectrum is the “imposed constitution-making” model where an outside force dictates constitutional outcomes on the country. This type of imposition can take varying forms. Perhaps the best example of this kind of constitution-making involvement can be found in Japan, where the Constitution was drafted entirely by the American military. The “imposed” model is clearly problematic from the viewpoint of democratic legitimacy, as there is no role for popular self-determination.

On the other end of the spectrum are examples where an outside force plays a stabilizing or advisory role. In this type of “supervised constitution-making,” an outsider plays the role of a referee, largely staying out of complex negotiations but ensuring a framework for the negotiations. The Constitution of Australia is a good example of this role. Although supervised by an outside country (the United Kingdom), the Constitution was the product of domestic bargaining in an elected convention followed by a referendum. This kind of outsider role is far less problematic from the viewpoint of democratic legitimacy as the outsider’s role is largely to help ensure a national level process of constitutional bargaining.

Lessons for Ukraine

Where does Ukraine’s constitution-making process fit on this spectrum? It is clear that Russia is not playing a “supervisory” role. The Russians have made clear demands about the precise content of the new Ukrainian Constitution—and are massing troops on the border to back up these demands. In a recent document, the Russians “advise” the Ukrainians to convene a constitutional assembly “with equal representation of all regions.” This assembly, they argue, should include key things in the Constitution: 1) give Russian the status of a “state language,” 2) specify that Ukraine will be militarily neutral (keep Ukraine out of NATO), and 3) allow the direct election of legislative and executive bodies in the regions. It is very unlikely that these demands have any relation to better governance in Ukraine—since 2000, the Kremlin has engaged in a project of centralizing power in Russia. It is therefore clear that Russia wants a decentralized Ukraine to help ensure that Ukraine does not move to closer to the West.

The “imposed constitution-making”, however, model also does not fit. The Ukrainian foreign ministry has rejected Russian proposals for Ukrainian constitution-making as demanding “the complete capitulation of Ukraine, its dismemberment, and the destruction of Ukrainian statehood.” Petro Poroshenko, the leading Presidential candidate, said that “[t]here’s no basis” for federalization and that federalization would lead to “Crimea number two, three and four.” In order to resist Russian influence, the Ukrainian government has relied on support from additional constitutional outsiders: the US and the European Union. Most notably, the Ukrainians have signaled that they will work closely with Europe’s key public law advisory body: The Venice Commission.

Voluntary Transfer of Control to Outsiders

The Ukrainian government’s voluntary transfer of constitution-making decisions to the international level in order to counter Russian pressure suggests a scenario of outsider influence in constitution-making that lies somewhere between the imposed and supervised models of the spectrum of outsider influence. In this scenario, constitutional bargaining takes place at both the domestic and the international level.

We are seeing this already. On March 30, after a phone call between Russian President Vladimir Putin and US President Barack Obama, the US Secretary of State met with Russian Foreign Minister to find a “political solution” to Ukraine. This political solution was primarily focused on discussions of Ukrainian constitution-making, including the transfer of an American document that was a “response to the Russian plan.” More recently, in response to the capture of government buildings by pro-Russian militias, Russia, Ukraine, the European Union, and the United States met and agreed to de-escalate the process by supervising the “constitutional process.”

This shift to international bargaining in Ukrainian constitution-making poses some dangers. In particular, it could lead the outsiders to decide key issues without important domestic input. This could lead to a dangerous disconnect between constitutional negotiations and actual events on the grounds. Claims by pro-Russian groups that they will not recognize a recent deal between Russia and the West suggest that this is a real danger. More importantly, the dangers of a disconnect between international negotiations and domestic events could lead to key groups rejecting the final Ukrainian Constitution outright—an outcome that could undermine the constitution-making process altogether.

The internationalization of Ukrainian constitution-making also, however, has some advantages. In particular, it could make it politically easier for the Ukrainian government to compromise with Russia. On the issue of federalization this might be already happening, as the US and Europe have pushed Ukraine to compromise with the Russians. The Ukrainian Prime Minister has said that Ukraine “need[s] to immediately implement constitutional reform and give people what rightfully belongs to them – power in the regions.” Ukrainian authorities have then described this de-centralization project not as a way to compromise with Russia, but as a proposal that conforms with the European Charter of Local Self Government. And this Charter accords with at least one of the Russian demands: It calls for localities to have the ability to elect “councils or assemblies composed of members freely elected by secret ballot on the basis of direct, equal, universal suffrage.” While the devil will be in the details of Ukrainian federalization, there does seem to be some room for negotiation on this point.

Conclusion

What can we expect from future negotiations? Will the internationalization of the process further allow Ukraine to compromise with Russia on other demands—including potential NATO membership and the precise details of decentralization? And will Russia accept the decentralization plan that the Ukrainians adopt? And will this internationalized process become too divorced from key players on the ground in the rapidly changing crisis in Ukraine? The answers to these questions remain unclear.

Two things are clear, however. First, the success of constitution-making in Ukraine will hinge on how effectively the different players are in balancing between international and domestic demands. Second, Ukraine’s new constitution will be internationalized: The “framers” of the new Ukrainian constitution therefore are likely not to just be Ukrainians—and the bargaining is just as likely to take place in Geneva rather than Kiev.

William Partlett is an Associate-in-Law, Postdoctoral Research Fellow, and Lecturer at Columbia Law School. Dr. Partlett holds a J.D. from Stanford Law School as well as a DPhil in Soviet History and MPhil in Russian and East European Studies from the University of Oxford (where he was a Clarendon Scholar). Dr. Partlett draws on this cross-disciplinary background to work in the field of comparative constitutional and criminal law.

Suggested citation: William Partlett, International Constitution-Making in Ukraine, JURIST – Academic Commentary, Apr. 19, 2014, http://jurist.org/academic/2014/04/william-partlett-constitution-ukraine.php.