Kyiv Bans Foreign Military Basing on Ukrainian Territory

The Ukrainian parliament adopted several symbolic amendments to the Constitution, on February 7. The amendments, which President Petro Poroshenko signed into law on February 19, aim to make Ukraine’s strategic course toward the North Atlantic Treaty Organization (NATO) and the European Union irreversible (Ukrinform.net, February 19). Poroshenko had personally submitted the draft law to the legislature on September 3, 2018.

One key amendment removes Paragraph 14 of Section XV (“Transitional Provisions”) of the Constitution (Rada.gov.ua, September 3, 2018). This constitutional clause explicitly permits foreign countries to temporarily lease pre-existing military bases on Ukrainian territory for stationing their military personnel (UNIAN, November 22, 2018). Specifically, this provision legitimized Russia’s ongoing lease of its naval base in Sevastopol, Crimea, since the breakup of the Soviet Union. The Ukrainian government, under then-president Leonid Kuchma, had originally written in Paragraph 14, Section XV, as a concession to Moscow in 1997, while the two countries were negotiating the Treaty on Friendship, Cooperation and Partnership Between Ukraine and Russia. Last September, Poroshenko announced that his government would not voluntarily extend the Russian-Ukrainian friendship treaty, which is now set to expire on March 31, 2019 (UNIAN, September 19, 2018).

According to Poroshenko, by repealing Paragraph 14, Section XV, Ukraine is preparing itself for any potential Russian legal challenges as to its claims to military bases in Crimea (particularly, the naval facilities in Sevastopol), once Kyiv retakes de facto control over the Russian-occupied peninsula (TSN, September 20, 2018). Other experts have proposed that the amendment aims to build up additional legal grounds for future litigation cases against Moscow in international courts (Segodnya.ua, September 20, 2018).

But critics have argued that the amendment to remove the basing clause from the Constitution will have the unintended consequence of essentially enshrining a “non-aligned status” on Ukraine. They further alleged that the repeal of Paragraph 14, Section XV came about as some sort of geopolitical compromise between the West and Russia (RBC, February 8, 2019). Strikingly, Constitutional Court judge Mykola Melnik suggested that by eliminating this paragraph from the Constitution, Ukraine has inadvertently deprived itself of the only legal means to allow NATO-member countries to maintain longer-term presence on Ukrainian soil. Consequently, the recently adopted amendments de facto contradict each other and Ukraine’s national interests in the face of pervasive Russian aggression (Justice.org.ua, December 6, 2018). Similarly, former deputy of head of the Ukrainian Security Service (SSU) Viktor Trepak openly questioned why Paragraph 14 should be removed if, in its wording, it does not explicitly name Russia and could be reapplied to the country’s actual allies in the West. Repealing this clause without putting anything else in its place would require the parliament to undertake a whole new round of Constitutional changes that could legalize the possibility of hosting NATO militaries on Ukrainian soil in the future (Zaxid.net, September 6, 2018).

In response to such criticism, the head of the Ukrainian delegation to the NATO Parliamentary Assembly, Iryna Friz, publicly reassured that the repeal of Paragraph 14, Section XV, will not harm Ukraine’s aspirations to join the North Atlantic Alliance. She added that Articles 85 and 92 already provides sufficient legal justification for permitting the presence of foreign formations in Ukraine. The presence of foreign military units in Ukraine will be handled according to procedures regarding multinational exercises, with the approval of all terms by the Ukrainian parliament, she concluded (UNIAN, September 21, 2018).

In an effort to address the legal uncertainties that were raised by the repeal of the temporary basing clause in the Constitution, the Ukrainian parliament passed, on February 26, a new law on the admission of units of the armed forces of foreign states onto the territory of Ukraine in 2019, to participate in this year’s series of planned multinational exercises. Over the course of 2019, these exercises will attract more than 14,000 military personnel of the Ukrainian Armed Forces and about 8,000 foreign participants. The exercises are set to include the joint Ukrainian-US Rapid Trident, the Ukrainian-US Sea Breeze, the Ukrainian-Romanian Riverine, the multinational Maple Arch, and the Ukrainian-British Vorir Votcher (Ukrinform.ua, February 26, 2019).

Despite initial divisions among the political elite regarding the recently passed package of Constitutional amendments designed to reinforce Ukraine’s pro-Euro-Atlantic orientation, it was clearly adopted in response to the uncertainties surrounding who will win this year’s upcoming presidential and parliamentarian elections as well as ongoing nervousness about Russia’s continuing revanchist aggression. It is worth pointing out that Ukraine is highly unlikely to be able to join NATO as long as Vladimir Putin maintains power in the Kremlin. Moreover, Putin can be expected to try to more aggressively tackle the “Ukrainian question” in order to prop up his own flagging popular support at home. And if Moscow does, indeed, attempt to reignite the simmering war in Donbas, Kyiv will clearly need constitutionally unambiguous legal mechanisms already in place for potentially allowing foreign allied forces on Ukrainian soil for extended periods of time.