Ukraine’s accession to the European Union during martial state: a national referendum question

The article raises the issue of the constitutional and legal possibility of expressing the will of the people in a referendum in Ukraine under the current legal regime of martial law. The relevance of the publication is due to the accelerated European integration of Ukraine during the war and the related need to carry out constitutional reform in Ukraine through a referendum. It has been established that Ukrainian legislation is contradictory regarding the national referendum. Special laws on the legal regime of martial law (No. 389-VIII) and the all-Ukrainian referendum (No. 1135-IX) literally prohibit the people from expressing their will in a referendum during martial law, while the Fundamental Law - the Constitution of Ukraine does not limit the people’s expression of their will in a referendum to the condition of martial law. It was found that there should be one referendum on Ukraine’s accession to the European Union, but there can be many variants of such a referendum. Among the possible models of such a referendum are: a) a constitutional referendum on amendments to the current Constitution of Ukraine; b) a constitutional referendum on a new Constitution of Ukraine; c) a constitutional referendum of the Estonian model (no amendments are made to the current Constitution, a new Constitution is not adopted, a draft separate law of the highest legal force is submitted to a referendum); d) a repetition of the Ukrainian precedent (the constitutional reform is carried out by the parliament provided that the people approve the act of accession to the European Union in a referendum). The widespread thesis about the impossibility of amending the Constitution of Ukraine during martial law is refuted. It is proved that part two of Article 157 of the Constitution of Ukraine, which makes it impossible to amend the Fundamental Law, regulates the legal relations not of all subjects of referendum initiation, but only of those who are also subjects of legislative initiative in the Ukrainian Parliament. It is concluded that the people of Ukraine have the right, guaranteed by the Constitution of Ukraine, to amend the Fundamental Law under the legal regime of martial law through a referendum on their own initiative in accordance with the procedure of part two of Article 72 of the Constitution of Ukraine.