The President of Ukraine may proclaim an all-Ukrainian referendum on a security agreement solely on the people's initiative and only if at least 3 million signatures are collected to support it, in two-thirds of Ukraine's Oblasts. The current initiative of the government complies with the provisions of the law on the possibility of bringing a question of national importance to a referendum initiated by the Ukrainian people. Neither the Head of State, nor the Verkhovna Rada have the legal capacity to appoint such a referendum on their own. The decision of the national referendum on the issue of national importance shall be implemented by the Parliament through the adoption of the necessary legal acts.
Compliance with the current Law of Ukraine "On the All-Ukrainian Referendum" and democratic standards of referendums will require not only the withdrawal of Russian troops from the territory of Ukraine, but also the restoration of the infrastructure of the affected communities, the return of refugees and internally displaced persons, the full functioning of the authorities, the acting system of administrative and banking services, and the operation of the State Voter Registry. A referendum may not be held during the period of martial law. Moreover, the abolition of this regime should be consistent with the real security situation rather than with the political tasks of implementing a possible agreement.
With a large number of refugees and IDPs, the government will have to find resources to restore and expand the infrastructure of polling stations, including internationally based polling stations. Participation of refugees in voting is an absolute priority but the government should refrain from unprepared experiments with online voting, taking into account the risks of interference with its system and illegal pressure on voters. The practical task will also be to ensure a real opportunity for citizens to campaign for and against the referendum question, without making their position dependent on the threat of resumption of hostilities.
At the same time, the fact that an all-Ukrainian referendum is recognized as a mandatory stage in the implementation of a potential security agreement can contribute to its legitimacy and the building of an internal consensus on democratic international agreements.
Description of the Initiative on the All-Ukrainian Referendum Expressed by the Delegation of Ukraine at the Negotiations with russia
During the negotiations with russia, the President of Ukraine and members of the Ukrainian delegation have repeatedly raised the need to hold an all-Ukrainian referendum on the peace agreement (security guarantees). According to public statements by Volodymyr Zelenskyi, an all-Ukrainian referendum should take place after the leaders of Ukraine and russia personally reach certain agreement on security guarantees for Ukraine, upon the withdrawal of russian troops from Ukraine, after the signing of an agreement with the guarantor states of Ukraine's security and its ratification by the Verkhovna Rada.
After these steps, according to the President, Ukraine will be able to move to an all-Ukrainian referendum. Subsequently, if the provisions of the peace agreement are supported by the citizens of Ukraine, the parliament will amend the Constitution on security guarantees and might renounce political and legal obligations regarding the NATO vector. The head of the Ukrainian delegation to the negotiations with russia, David Arahamia, also explained that if citizens of Ukraine do not support the peace agreement in the referendum, the states will either start new negotiation rounds or "return to the state of war."
Statements of Ukrainian officials demonstrate their intentions, both to obtain the mandate for a possible peace agreement from the Ukrainian people through a referendum, and to apply its mechanism as a political guarantee for the implementation of the agreement until the final amendment of the Constitution. In particular, the President of Ukraine, Volodymyr Zelenskyi, emphasized that it is impossible to quickly and instantaneously fix the security provisions of the agreement in the Constitution of Ukraine, since they require two sessions of the Verkhovna Rada of Ukraine. Instead, holding an all-Ukrainian referendum a few months after the withdrawal of russian troops, according to the head of state, will make it possible to more quickly determine the prospects for the implementation of the agreement.
Civil Network OPORA does not assess the need to hold negotiations with the aggressor state at this stage of the war. In fact, only the political leadership and military command of Ukraine have complete information about the real circumstances in the war zone and in the negotiations. However, in our opinion, the practical implementation of the initiative to hold an all-Ukrainian referendum requires the government to address a number of related legal, security, and organizational issues.
Ukraine's Initiative to Hold an All-Ukrainian Referendum on a Possible Agreement With russia: Social and Political Assessment by OPORA
- Defining an all-Ukrainian referendum as one of the conditions for the practical implementation of a possible agreement will, to some extent, contribute to compliance with the minimum necessary standards in the field of international agreements.
The 1969 Vienna Convention on the Law of Treaties specifies that a treaty is irrelevant if its conclusion came as a result of a threat or use of force in violation of the principles of international law enshrined in the UN Charter. Thus, in the context of the ongoing aggression, it is impossible to legally consolidate genuine and stable agreements.
Conducting an all-Ukrainian referendum after the withdrawal of russian troops from the territory of Ukraine will allow reducing the risks of concluding and implementing an agreement in the face of threats or use of force, or even completely removing them. OPORA hereby emphasizes that an all-Ukrainian referendum will be able to mitigate acute challenges to the legitimacy and legality of agreements on security guarantees for Ukraine only if genuine conditions for free expression of the citizens' will are established. In particular, citizens of Ukraine should be certain of the opportunity to vote "in favour" or "against" the agreements without any threat of the resumption of large-scale hostilities. Otherwise, such a vote will not be a free vote of citizens and will violate the basic feature of a democratic referendum, such as the equality of rights and opportunities for supporters and opponents of the proposed question.
- The essential formula of “no referendum — no agreement implementation” reduces the possibility of russia blackmailing the political leadership of Ukraine and its negotiating delegation by launching new military strikes and committing mass crimes against civilians.
In addition, the demand of the Ukrainian negotiating delegation to have a mandate from the Ukrainian people for the implementation of any agreements with the aggressor state will potentially contribute to the preservation of political and social stability in the country. Decisions fundamental to the future of the state should not be made individually and under the threat of force. That is why the all-Ukrainian referendum may have the capacity to act as an instrument for achieving consensus in society. Furthermore, the all-Ukrainian referendum, as a stage of implementation of a possible agreement, will undermine the russian propaganda framework, where the large-scale bloody war is depicted as an "operation" against the leadership of the Ukrainian state.
Unlike the socio-political context, the legal, security, and organizational conditions for the implementation of the initiative for an all-Ukrainian referendum on the peace agreement require a more thorough systemic elaboration by the state.
Key Legislative Features and Challenges of the All-Ukrainian Referendum
- An all-Ukrainian referendum cannot be held in the event of the introduction of martial law or the state of emergency in Ukraine or in some of its localities, and the abolition of this law must be aligned with the real security situation.
Legal requirements on the nationwide referendum make it impossible to conduct it without the withdrawal of russian troops and the abolition of martial law throughout Ukraine. The territories of the Autonomous Republic of Crimea, Sevastopol, and isolated districts of Donetsk and Luhansk oblasts are temporarily occupied, whereas elections and referendums are not held there. The President of Ukraine, Volodymyr Zelenskyi, announced the possibility of holding an all-Ukrainian referendum only some time after the withdrawal of russian troops. It is fundamental to ensure the real stabilization of the situation throughout Ukraine, which has not been recognized as temporarily occupied, and to prevent the nominal abolition of the martial law regime. Conducting a referendum in de facto inappropriate conditions will compromise the legitimacy of its results in the eyes of Ukrainian citizens and foreign partners of Ukraine.
- At least 50% of voters included in the State Register of Voters (taking into account the total number of voters from AR Crimea, Sevastopol, and isolated districts of Donetsk and Luhansk oblasts) must take part in the voting in order to have the referendum recognized as accomplished. It is possible to achieve such a high turnout of citizens only when reliable security is established throughout Ukraine and citizens return to their places of permanent residence.
To recognize an all-Ukrainian referendum accomplished, citizens must be highly active on the government-controlled territory of Ukraine. The referendum shall not be held in the temporarily occupied territory but local voters are taken into account when determining the minimum 50% of voters from the State Register to comply with the valid voting requirement. In other words, for the referendum to be valid in the government-controlled territory (not recognized as temporarily occupied), the turnout must be above 50% of the voters available in the territory.
- Taking into account the potential topic of an all-Ukrainian referendum on a security agreement, as declared by officials, it can be proclaimed only on the people's initiative, and neither the President of Ukraine nor the Verkhovna Rada have the authority to initiate the referendum.
The acting Constitution of Ukraine and the Law of Ukraine "On the All-Ukrainian Referendum" clearly define the list of actors who have the authority to appoint/initiate an all-Ukrainian referendum.
The President of Ukraine has the authority to call an all-Ukrainian referendum only on the questions concerning the approval of constitutional amendments to Section I "General Principles," Section III "Elections. Referendum," and section XIII "Amendments to the Constitution of Ukraine." The articles of these sections in the Constitution do not refer to a potential agreement on security guarantees or a security format for Ukraine.
The Verkhovna Rada of Ukraine has the authority to appoint an all-Ukrainian referendum on altering the territory of Ukraine. The referendum shall approve the law adopted by the Verkhovna Rada of Ukraine on the ratification of the international treaty altering the territory of Ukraine. The law prohibits bringing to a referendum any questions intending to violate the country's territorial integrity. That is why there is no possibility of bringing to the nationwide referendum the issues of "recognition" of the temporarily occupied territories of Luhansk and Donetsk Oblasts or "Crimea's ownership," or the like. The possibility of any options to legalize the russia seized territories has been also excluded by the Ukrainian delegation in negotiations with russia.
On the other hand, the topic of an all-Ukrainian referendum on a popular initiative announced by the President of Ukraine may be a matter of national importance or the question invalidating the law of Ukraine or its certain provisions (the second question is not acceptable, given the potential subject of the referendum).
- The popular initiated nationwide referendum may admit a question related to the support of all provisions of the security agreement or parts thereof.
The Law of Ukraine "On the All-Ukrainian Referendum" defines the issue of national importance as an issue which resolution affects the fate of the entire Ukrainian people and gains public traction. Its text can be formulated as a question about voters' support for the content of international agreements on security guarantees for Ukraine (or support for further amendments to the Constitution of Ukraine by the Verkhovna Rada of Ukraine). The current legal model allows to obtain the decision of the Ukrainian people on the need/relevance of further actions to implement the security agreement at the level of the Laws and the Constitution. However, voters will not vote for a specific version of the Law or amendments to the Constitution that may be necessary for the implementation of a security agreement. This shall be decided, according to Ukrainian officials, by the Verkhovna Rada of Ukraine, after the national referendum.
- The All-Ukrainian referendum on the people's initiative provides for a clear phasing of procedures, which can be followed only in the event of available sufficient time, proper security conditions, and stabilization of the situation throughout the Ukrainian government-controlled territory (not recognized as temporarily occupied).
The stages of initiation and conduct of an all-Ukrainian referendum, among other things, include the creation of an initiative group at the meeting of citizens and its registration by the CEC, collection of signatures of citizens in support of the question of the all-Ukrainian referendum within 90 days (at least 3 million signatures collected in at least two thirds of Oblasts, and at least 100,000 signatures from each Oblast), counting and verification of signatures by the CEC, transfer of the decision on the results of signature collection to the President of Ukraine, and the proclamation by the Head of State of an all-Ukrainian referendum on the people's initiative. The Law of Ukraine "On the All-Ukrainian Referendum" also provides for the control of the Constitutional Court regarding the compliance with the Constitution, and it should have a real, not nominal, opportunity to exercise its powers.
- Taking into account the impossibility of submitting more than one question to an all-Ukrainian referendum, it should be formulated in full compliance with the standards of procedural suitability of texts and allow voters to understand all the consequences when supported. It is important to avoid a question that is formulated manipulatively or inconsistently with the content of the international agreements themselves.
If the question of national importance covers a set of security provisions of the agreement, it is important that the referendum question be clear and understandable. It should not allow different interpretations, mislead voters, or complicate the understanding of all political and legal consequences in case it is supported. In particular, the recommendations of the Code of Good Practice on Referendums of the Venice Commission covering the procedural suitability of texts submitted for voting should be fully taken into account.
- The current version of the Law of Ukraine "On the All-Ukrainian Referendum" does not contain any clear algorithm for the implementation of the decision of the all-Ukrainian referendum on the people's initiative in the event the need comes to amend the Constitution of Ukraine.
If voters support the question of national importance, the decision of the national referendum shall be binding for state authorities and their officials. The current Law on the All-Ukrainian Referendum imposes on the Cabinet of Ministers of Ukraine the obligation to submit a draft law to the Verkhovna Rada of Ukraine to implement the decision of the Ukrainian people. The security format question will require amendments to the Constitution of Ukraine, the draft law on which can be submitted to the Parliament only by the President of Ukraine or by at least one third of the MPs of Ukraine.
- An important task of the state will be to implement the legislative guarantees for the right of citizens to campaign in support of or against the referendum question in post-war settings.
The position of voters and other subjects of the all-Ukrainian referendum should not depend on the possibility of resuming large-scale hostilities. Everyone should have a real opportunity to campaign in favour or against the referendum question. The effectiveness of equality guarantees for the question's opponents and supporters will depend not so much on legislative provisions but rather on the ability of responsible bodies to protect them in real terms.
Security and Organizational Conditions for the All-Ukrainian Referendum on the Security Agreement
In addition to the legal peculiarities of initiating, proclaiming, and conducting an all-Ukrainian referendum, the state will need to take into account the security and organizational challenges of the process.
The key security preconditions for the All-Ukrainian referendum include, at the very least, the withdrawal of russian troops from the Government-controlled territory (not recognized as temporarily occupied), the creation of safe conditions for the return of refugees and internally displaced persons to their permanent residence places, the restoration of basic infrastructure in the affected communities and the functioning of local authorities, access to banking, administrative, and notary services, etc. The processes are critical for ensuring conditions for an all-Ukrainian referendum in compliance with the national law and international democratic standards. To illustrate, without the restoration of security throughout Ukraine, it is impossible to collect enough signatures to initiate an all-Ukrainian referendum in the required number of Oblasts.
To organize and conduct an all-Ukrainian referendum, the state will have to address the following organizational challenges:
- to resume the operations of the State Voter Register keepers in the whole territory of Ukraine;
- to provide sufficient time for citizens to apply to the State Voter Register keepers to change their election address or temporarily change their voting station without changing their electoral address, due to internal displacement;
- to increase the number of polling stations abroad due to the large number of refugees, which may require amendments to the law and additional funding;
- to restore the destroyed infrastructure that houses polling stations (schools, hospitals, other social facilities);
- to strengthen the capacity of the CEC, NACP, the National Council for Television and Radio Broadcasting, cyberthreat prevention bodies, and other bodies to counter foreign interference in the referendum process in all its manifestations (including illegal financing, violation of requirements for the activities of the media, cyberattacks).
Given the large number of refugees and internally displaced persons, the government should be cautious about appeals to provide online voting for this category of voters. First, in the context of russian aggression, there are no solid security guarantees for the online voting system, whereas any experiments in this area can be implemented only after long-term piloting and resilience testing. At the moment, the President of Ukraine, Volodymyr Zelenskyi, and members of the delegation at the negotiations with russia emphasize the need to ensure that refugees can vote at overseas polling stations. Secondly, voting via the Internet voting system takes place in an uncontrolled environment conducive to unlawful interference. Such voting method may be particularly disadvantaged in places of temporary residence of refugees who are Ukrainian nationals and stay in the territory of the aggressor state.
Thus, an all-Ukrainian referendum on the security agreement can be proclaimed on the people's initiative, and in order to ensure its compliance with the national law and democratic standards, significant prior preparatory work needs to be carried out.