Upholding Democratic Legitimacy Under Martial Law: Ukraine’s Legal Mandate for the 2024 Presidential Election

What obligations does a country under war have to democracy? The question remains unanswered for Ukraine. In the case of Ukraine’s 2024 presidential election, the impact of martial law on the democratic process is particularly ambiguous. Currently, Ukraine is an aspiring liberal democracy; however, this contentious position depends on Ukraine’s commitment to upholding the democratic values of its peers. In its attempts to join international institutions such as the European Union (EU) and the North Atlantic Treaty Organization (NATO), Ukraine has strived to demonstrate its increasingly democratic governing mechanisms. However, after the escalation of the Russo-Ukrainian War in 2022, the Ukrainian government instituted martial law, which continues to present a dilemma for the Ukrainian people. [1] Despite their understanding that wartime actions require increased legal flexibility, Ukrainian citizens are also entitled to democratic norms and privileges. Accordingly, Ukraine has a legal imperative to hold its 2024 presidential election because the cancellation of its election violates several international covenants and treaties and violates its own martial law due to the unlawful seizure of power.

The Ukrainian government has continuously reiterated its rationale for not holding the 2024 presidential election in Ukraine. First, the government has relied on the Ukrainian Constitution to support the election cancellation process. [2] In addition to using the Ukrainian Constitution to defend the cancellation of its elections, the government argues that logistically, it would be nearly impossible to hold a wartime election because many Ukrainian citizens have fled the country to seek asylum in neighboring countries. Furthermore, those who are active duty Ukrainian soldiers would also have immense trouble participating in an election as they fight on the front-lines. [3] Yet these arguments––no matter how rational––do not excuse the government from upholding its international and legal obligations. Democratic alternatives need to be presented to Ukrainian citizens, which is something that President Volodymyr Zelenskyy himself has acknowledged. Zelenskyy has attempted to collect feedback from Ukrainian citizens, even those who have become refugees, using government-operated digital platforms; notably, his government has “. . . worked to digitize Ukrainian democracy by creating (or updating) state-run apps that are accessible to all citizens.” [4] If, during a global pandemic, countries were able to hold free and fair elections, Ukraine and its democratic partners can work together to create electoral solutions.

By canceling its 2024 presidential election, Ukraine has violated multiple international legal covenants and treaties to which it is a signatory. Ukraine ratified the United Nations (UN) International Covenant on Civil and Political Rights in 1973. [5] According to Article 4, “[in] time of public emergency . . . the States Parties to the present Covenant may take measures

derogating from their obligations . . . provided that such measures are not inconsistent with their other obligations under international law.” [6] Derogation is “. . . the suspension or suppression of a law under particular circumstances.” [7] Different international laws often contain derogation clauses which permit states to avoid legal responsibilities during times of crisis. While derogation is permitted in certain circumstances, this article is one among an array in the covenant, and these articles must be weighed equally. Section (b) of Article 25 states that state signatories should provide the opportunity “to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot.” [8] Ukraine is derogating from its obligations and in turn, is violating the international law to which it subscribes. Holding regular elections is a critical component to ensuring that countries do not violate the civil rights of their citizens. In essence, canceling planned elections is the opposite of regularity. In addition to the International Covenant on Civil and Political Rights, Ukraine ratified Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms in 1997. Article 3 of Protocol 1 states that parties are obligated to “hold free elections at reasonable intervals by secret ballot.” [9] International law reinforces Ukraine's responsibility to hold elections at regular intervals, an obligation that a country which aspires to join liberal democratic institutions should uphold.

Despite the military and political significance of martial law, Ukraine is still legally responsible to uphold democracy. In 2022, Ukrainian President Volodymyr Zelenskyy submitted a draft resolution to the Ukrainian legislature, Verkhovna Rada, regarding the declaration of war; it ultimately failed to become law. [10] Since the state of war declaration was not implemented as initially anticipated, Ukraine still remains under martial law. According to Article 1 of the Law of Ukraine, martial law is a “special legal regime” that “provides for the provision of appropriate state authorities, military command . . . [and] local self-government of the powers necessary to ... [temporarily restrict] the constitutional rights and freedoms of a person and citizen.” [11] Similarly, Article 8 secures the right to implement “. . . temporary restrictions on the constitutional rights and freedoms of a person and a citizen, as well as the rights and legal interests of legal entities.” [12] Both Article 1 and Article 8 emphasize the temporary restriction of rights and liberties during times of military crisis. In this case, it appears that the term ‘temporary’ is continually being redefined by Ukraine as it navigates an ever-changing military landscape. Therefore, Article 11 ensures that the current President of Ukraine and his powers “cannot be limited in the conditions of martial law.” [13] Yet, the absence of a limit on these “temporary” restrictions is inherently incompatible with the responsibility to hold regular and free elections under international law. Article 22 states that “[any] attempt to use the imposition of martial law to seize power entails liability under the law.” [14] In October 2023, martial law was extended, and in turn, the Verkhovna Rada was unable to hold its parliamentary election. [15] Likewise, this extension of martial law canceled the 2024 presidential elections. Based on Article 22, extending martial law to offset a parliamentary or presidential election is an unlawful seizure of power. While President Zelensky was previously elected by the Ukrainian people, he is no longer the rightfully elected leader of their country. His power is granted by virtue of

martial law extensions, not by the votes of the Ukrainian people. Most importantly, even under martial law, restrictions on civil and constitutional rights should be temporary, not indefinite.

Identifying whether Ukraine is legally permitted to derogate from its legal obligations under international law is critical in assessing the validity of restricting elections. Notably, Article 15 of the European Convention on Human Rights permits States to derogate in “exceptional circumstances” and in “a temporary, limited and supervised manner.” [16] Not only should the derogation be temporary, but it should also be supervised––an element with which Ukraine is struggling as its anti-corruption entities have failed to uphold their mandates. [17] Moreover, “any derogations may not be inconsistent with the State’s other obligations under international law.” [18] Ukraine is obligated under international law to hold regular elections. Furthermore, since Russia did not make a state of war declaration which would formally acknowledge its aggression on Ukraine, Ukraine is even more limited in its derogation abilities. Notably, in the case Cyprus v. Turkey (1983)––against the backdrop of Turkish invasion into Cyprus in 1974––Cyprus accused Turkey of violating several articles of the European Commission on Human Rights. The European Commission on Human Rights found that “in the absence of an official and public notice of derogation from Turkey it could not apply Article 15 of the Convention to the measures taken by Turkey in respect of persons or property in northern Cyprus.” [19] The commission also stated that Turkey had violated Articles 1, 5, and 8 of the Convention, which secure the rights to liberty, respect for private and family life, and property. [20] Cyprus v. Turkey established the precedent that a country cannot apply the permission to derogate indiscriminately. Ukraine must follow the correct procedures and protocols, as well as preserve civil rights and freedoms, to derogate within international law. In Brannigan and McBride v. the United Kingdom (1993), the European Court of Human Rights held that it was not a violation of international law that the United Kingdom did not “officially proclaim” a public emergency during the Troubles. [21] This case dealt with the extradition of two individuals from the United Kingdom to Northern Ireland to face charges relating to terrorism, who alleged they would face political mistreatment and possibly torture. The European Court of Human Rights held that the United Kingdom, despite not declaring a public emergency, had sufficient protections for these two individuals upon extradition. What differs from the situation in Ukraine is that the aforementioned court held that the United Kingdom did not violate Article 5 and Article 3 of the European Convention on Human Rights, which protect liberty and security, whereas Ukraine’s election cancellation does. In canceling its 2024 presidential election, Ukraine is directly stripping its citizens of liberty. By violating this international law, Ukraine is denying its citizens the civil rights they should maintain in a democratic state. Furthermore, Ukraine is putting its country in a risky security position. Ukraine’s refusal to adhere to the rule of law could cause security concerns for the country, as major allies consider withdrawing aid and support to Ukraine if they believe Ukraine is violating international law with its elections.

As Ukraine seeks to join alliances such as the EU and NATO, it must uphold the democratic principles of its peers even in extreme circumstances. For instance, the Treaty on European Union reinforces the importance of upholding democracy by respecting civil rights for

all member states: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.” [22] Member states must be committed to upholding these values. If Ukraine wants to gain EU membership in the near future, it must adhere to the principles and rules by which EU member states govern themselves; holding free and fair elections is fundamental to attaining membership. Extended derogation is not an adequate solution for prolonged conflicts or wars. Notably, many states have been misusing Article 15 to derogate for very extended periods of time, and long after the acute emergency has ended. [23] While Ukraine is in crisis, it cannot solely rely on limiting civil rights to govern the nation during wartime. Even with current support for the Ukrainian president, legal obligations must be fulfilled in order to advance democracy and maintain civil rights and liberties afforded to citizens under such governments.

The Ukrainian government is tasked with navigating a vastly complex legal and political landscape as it fights off Russian aggression. Likewise, the Ukrainian people are now required to deal with various restrictions. Nevertheless, winning a war cannot come at the expense of democracy. As Ukraine pursues a liberal democracy with the support of its western allies amidst this war, maintaining democracy is also critical to its national security; holding free, fair, and regular elections is vital to the lifeblood of democracy. As a country that is trying to join the EU and NATO, Ukraine must uphold its international legal obligations and find innovative ways to hold elections even with its citizenry displaced and at war.

Edited by Jayin Sihm
[1] Iana Fremer, “Ukraine: Martial Law Introduced in Response to Russian Invasion,” 2022, https://www.loc.gov/item/global-legal-monitor/2022-03-03/ukraine-martial-law-introduced-in-re sponse-to-russian-invasion/.

[2] Hanna Arhirova, “Ukraine’s president rules out holding elections next spring and calls for unity in fighting Russia,” AP News, 2023. https://apnews.com/article/russia-ukraine-war-birthday-grenade-b1b82e4f84eb5a39286d1500cf4 9fcd1

[3] Anna Romandash, “Ukraine Can’t Hold Elections During the War. Does It Matter?” Journal of Democracy, 2024: https://www.journalofdemocracy.org/online-exclusive/ukraine-cant-hold-elections-during-the-wa r-does-it-matter/

[4] Romandash, “Ukraine Can’t Hold Elections During the War. Does it Matter?”
[5] “Indicators,” United Nations, accessed on October 16, 2024, https://indicators.ohchr.org/

[6] “International Covenant on Civil and Political Rights,” United Nations, accessed on August 1, 2024, https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and- political-rights.

[7] “Derogations,” International Committee of the Red Cross, accessed on August 1, 2024, https://casebook.icrc.org/a_to_z/glossary/derogations

[8] United Nations, “International Covenant.”

[9] Council of Europe, “Protocol 1 to the European Convention for the Protection of Human Rights and Fundamental Freedoms,” Refworld Global Law and Policy Database, March 20, 1952, https://www.refworld.org/legal/agreements/coe/1952/en/35969.

[10] Draft Law on the Declaration of a State of War,” Verkhovna Rada of Ukraine, accessed on August 1, 2024, https://web.archive.org/web/20220413044605/http:/w1.c1.rada.gov.ua/pls/zweb2/webproc4_1?pf 3511=73873.

[11] Vodomosti Verkhovna Rada, “About the legal regime of martial law,” Verkhovna Rada of Ukraine, June 30, 2024, https://zakon.rada.gov.ua/laws/show/389-19?lang=en#Text.

[12] Vodomosti Verkhovna Rada, “About the legal regime of martial law.” [13] Vodomosti Verkhovna Rada, “About the legal regime of martial law.” [14] Vodomosti Verkhovna Rada, “About the legal regime of martial law.”

[15] Anna Pruchnicka, “Ukraine extends martial law, ruling out October parliament vote,” Reuters, 2023, https://www.reuters.com/world/europe/ukraine-extends-martial-law-ruling-out-october-parliame nt-vote-2023-07-27/

[16] “Derogation in time of emergency,” European Court of Human Rights, accessed on August 1, 2024, https://prd-echr.coe.int/documents/d/echr/FS_Derogation_ENG

[17] Emily Channell-Justice, “Ukraine’s Constitutional Court Crisis, Explained,” Harvard University, 2024, https://huri.harvard.edu/ukraine-constitutional-court-crisis-explained

[18] “Derogation in time of emergency,” European Court of Human Rights.

[19] “Derogation in time of emergency,” European Court of Human Rights.

[20] “Derogation in time of emergency,” European Court of Human Rights.

[21] “Derogation in time of emergency,” European Court of Human Rights.

[22] “Consolidated version of the Treaty on European Union,” legislation.gov.uk, accessed on August 1, 2024, https://www.legislation.gov.uk/eut/teu/article/2.

[23] Stuart Wallace, “Derogations from the European Convention on Human Rights – The Case for Reform,” Human Rights Law Review, 20 (4), pp. 769-796, 2020, https://doi.org/10.1093/hrlr/ngaa036