UNAMENDABLE PROVISIONS OF THE CONSTITUTION AND THE TERRITORIAL INTEGRITY OF UKRAINE
Summary: 1. Introduction. – 2. Unamendable provisions and unamendability of the constitution: general remarks. – 3. Unamendable provisions and the constitutional revolution. – 4. What provisions should be unamendable? – 5. Territorial integrity: Ukrainian experience of consolidation and protection. – 6. Conclusions.
Abstract
Background: Unamendable constitutional provisions arose with the appearance of the first constitutions in the USA and Norway, but did not become widespread. The unamendability of a republican form of government, included in the Constitution of France in 1885, continued this tradition. Such provisions became more widespread after the Second World War. Countries that gained independence began to include a mention of territorial integrity in such provisions. Ukraine belongs to such countries (the Constitution of 1996). Since 2014, Ukraine has faced encroachment on its territorial integrity by an aggressor state − its eastern neighbor. Given these circumstances, the study of the nature and meaning of unamendable provisions of a constitution has particular relevance.
Methods: The following methods were used in the work to research the main approaches to the unamendable provisions of the constitution. The system-structural method was useful when providing a structural characterisation of the concept of unamendable provisions, as well as its varieties, establishing a relationship with other concepts (multilevel constitutional design). The logical-legal method made it possible to discover the positions of scientists regarding an optimal list of unamendable provisions, the possible violation of such provisions in the situation of a constitutional revolution, and the positions of the Constitutional Court of Ukraine regarding the protection of territorial integrity in Ukraine. The comparative method was used to study the experience of foreign countries.
Results and Conclusions: The paper analysed the legal consequences of violation of territorial integrity, concluding that military aggression, occupation and unacknowledged annexation of part of Ukrainian territory by Russia is not a reason to refuse territorial integrity as an unamendable provision of the Constitution of Ukraine. On the contrary, the protection of this provision should be strengthened.
About Authors
Berchenko Hryhorii
Cand. of Science of Law (Equiv. Ph.D.), Assoc. Prof. of the Department of Constitutional law of Ukraine of Yaroslav Mudryi National Law University, Kharkiv, Ukraine
g.v.berchenko@nlu.edu.ua
https://orcid. org/0000-0002-0365-9009
Corresponding author, responsible for conceptualization and methodology. Competing interests: No competing interests were disclosed. Disclaimer: The author declares that his opinion and views expressed in this article are free of any impact of any organizations.
Slinko Tetiana
Cand. of Science of Law (Equiv. Ph.D.), Professor, Department of Constitutional Law of Ukraine, Yaroslav Mudryi National Law University, Kharkiv, Ukraine t.m.slinko@nlu.edu.ua
https://orcid.org/0000-0001- 8411-9655
Co-author, responsible for writing and data curation. Competing interests: No competing interests were disclosed. Disclaimer: The author declares that her opinion and views expressed in this article are free of any impact of any organizations, including those related to her service as a member of the Science Council of the Constitutional Court in Ukraine.
Horai Oleh
Cand. of Science in Economics (Equiv. Ph.D.), Assoc. Prof., Department of Law and Law Enforcement Activities, Zhytomyr Polytechnic State University, Zhytomyr, Ukraine kppd_gorai@ztu.edu.ua
https:// orcid.org/0000-0002-2181-7306
Co-author, responsible for writing and data curation. Competing interests: No competing interests were disclosed. Disclaimer: The author declares that his opinion and views expressed in this article are free of any impact of any organizations.
Translation: The content of this article was translated by the authors or with the participation of third parties under the authors’ responsibility.
Funding: The author(s) received no financial support for the research, authorship, and/or publication of this article. Funding of this publication was provided by authors.
Managing editor – Dr. Serhii Kravtsov. English Editor – Lucy Baldwin.
Copyright: © 2022 Berchenko H, Slinko T, Horai O. This is an open access article distributed under the terms of the Creative Commons Attribution License, (CC BY 4.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
References
- Albert R, ‘Constructive Unamendability in Canada and the United States’ (2014) 67 Supreme Court Law Review 188-193.
- Albert R, Oder B. E (eds.) An Unamendable Constitution? Unamendability in Constitutional Democracies(Springer 2018).
- Albert R, ‘Amending constitutional amendment rules’ (2015) 3 (13) International Journal of Constitutional Law 655–685.
- Albert R, Constitutional Amendments Making, Breaking, and Changing Constitutions (Oxford University Press 2019).
- Arato A, The Adventures of the Constituent Power: Beyond Revolutions? (Cambridge University Press 2017).
- Barabash I, Serdiuk O, Steshenko V, ‘Ukraine in European human rights regime: Breaking path dependence from Russia’ in book: The EU in the 21st Century: Challenges and Opportunities for the European Integration Process (Springer International Publishing 2020).
- Barabash I, The state-legal conflicts in the theory and practice of constitutional law (Pravo 2008).
- Barabash Y, Berchenko H, ‘Freedom of Speech under Militant Democracy: The History of Struggle against Separatism and Communism in Ukraine’ (2019) 9:3(28) Baltic Journal of European Studies 3-24.
- Barak A, ‘Unconstitutional Constitutional Amendments’ (2019) 3 (44) Israel Law Review 335.
- Berchenko H, ‘Constitutional right to resist’ (2020) ‘4 Problems of Legality’ 18-30.
- Berchenko H, ‘Preliminary control over changes to the Constitution: legal positions of the Constitutional Court of Ukraine’ (2019) 6-1 Law and Society 9-16.
- Berchenko H, ‘Reservation of the Constitutional Court of Ukraine as an element of the procedure for introducing amendments to the Constitution of Ukraine’ (2020) 66 Actual Problems of Politics 118-123.
- Berchenko H., Slinko T, Tkachenko Y, Kobryn V, ‘Preliminary Judicial Control of Amendments to the Constitution: Comparative Study’ (2022) 4 Access to Justice in Eastern Europe 159-169.
- Bernal K, ‘Unconstitutional constitutional amendments in the case study of Colombia: An analysis of the justification and meaning of the constitutional replacement doctrine’ (2013) 2(11) International Journal of Constitutional Law 339–357.
- Bryce D, American Republic: In 3 parts Part 1. National Government (Printing House V. F. Richteр 1889).
- Contiades X (ed), Engineering Constitutional Change: A Comparative Perspective on Europe, Canada and the USA (Routledge 2013).
- Dixon R, Landau D, ‘Tiered Constitutional Design’ (2018) 2(86) The George Washington Law Review 438.
- Hein M, ‘Constitutional Norms for All Time? General Entrenchment Clauses in the History of European Constitutionalism’ (2019) 3(21) European Journal of Law Reform 226-242.
- Hesse K, Basics of Constitutional Law of Germany (Legal literature 1981).
- Isensee J, Kirchhof P (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland. Band XII: Normativität und Schutz der Verfassung. (C.F. Müller Verlag 2014).
- Jacobsohn G.J, ‘An unconstitutional constitution? A comparative perspective’ 2006 3(14) International Journal of Constitutional Law 460-487.
- Jacobsohn G.J, Roznai Y, Constitutional revolution. (Yale University Press 2020).
- Krishnaswamy S, Democracy and constitutionalism in India: a study of the basic structure doctrine. (Oxford University Press 2010, 2010).
- Pilpilidis K, ‘A Constitution for Eternity: An Economic Theory of Explicit Unamendability’ in book: Albert R, Oder B.E. (eds.), An Unamendable Constitution? Unamendability in Constitutional Democracies. (Springer, 2018).
- Roznai Y, ‘Amendment Power, Constituent Power, and Popular Sovereignty: Linking Unamendability and Amendment Procedures’ in book: Albert R, Contiades X, Fotiadou A (eds.) The foundations and traditions of constitutional amendment (Hart Publishing 2017).
- Roznai Y, ‘The Uses And Abuses Of Constitutional Unamendability’ in book: Contiades X, Fotiadou A (eds.), Routledge handbook of comparative constitutional change (Routledge 2021).
- Roznai Y, Suteu S, ‘The Eternal Territory? The Crimean Crisis and Ukraine's Territorial Integrity as an Unamendable Constitutional Principle’ (2015) 03(16) German Law Journal 542.
- Roznai Y, Unconstitutional constitutional amendments. (Oxford University Press (2017).
- Roznai Y, Unconstitutional Constitutional Amendments: A Study of the Nature and Limits of Constitutional Amendment Powers (PhD diss., the London School of Economics 2014).
- Sajo A, Uitz R, The constitution of freedom: an introduction to legal constitutionalism (Oxford University Press 2017).
- Schmitt C, Verfassungslehre (Duncker & Humblot 2017).
- Starosolsky V, State and political law. Part 2 (Lohos Ukraina 2017).
- Suteu S, Eternity Clauses in Democratic Constitutionalism (Oxford University Press 2021).
- Tushnet M, ‘Peasants with pitchforks, and toilers with Twitter: Constitutional revolutions and the constituent power’ (2015) 4(13) International Journal of Constitutional Law.
- Zadorozhniy O, Crimea’s Anexia - an international crime (K.I.S. 2015).
Reviews for article
Add a Review
Keywords
- entrenchment clauses; eternity clause; militant democracy; territorial integrity; absolute entrenchment; unamendability; constituent power
How to cite it?
-
Berchenko H, Slinko T, Horai O, ‘Unamendable Provisions of the Constitution and the Territorial Integrity of Ukraine’ 2022 4-2(17) Special Issue Access to Justice in Eastern Europe 113-127. https://doi.org/10.33327/AJEE-18-5.4-n000447
