No, this was not the USSR, but the European
Union, which the UK just voted to leave. This was how the debate had been
framed by those within the Leave camp and, rightly or wrongly, ‘the 52%’
considered that these were strong reasons to leave a 40-year-old union of
independent nations. The result was an anticipated divorce that raises similar
questions to those posed in Ukraine over the past 25 years. There are those who
would seek to chastise me for comparing the EU to the USSR or its largest
former republic, the Russian Federation. But, though these unions were
diametrically opposed in the substantive outcomes they sought to achieve, they
had one objective in common – the political and economic union of nations. The
implications of leaving a union of nations raises similar questions about
constitutional and national identity.

In 1991 Leonid Kravchuk was empowered with the
political capital to deliver on the independence referendum of December that
year. When Kravchuk sought to achieve independence for Ukraine in the face of Mikheil Gorbachev’s proposals for a looser confederation of states, he had no
constitutional mechanism by which to achieve this from within the Brezhnev-era
Constitution of the USSR. The sovereignty of the Verkhovna Rada and its people
was asserted in the face of the Kremlin’s vision of top-down authority. In
contrast, it was the EU’s own Treaty of Lisbon – ironically maligned by
anti-federalists across the EU – that gave birth to ‘Article 50’. In enacting this
provision – one that gave individual member states the means of leaving the EU
– the federalists in Europe sowed the seeds for their own constitutionally
legitimate destruction.

But though the route to decoupling may be
different, the problems posed are all too similar. For example, there is the
disentangling of years of legislative and judicial accretions that have made
their way from the continent into UK law. After years of deliberation, the
Ukrainian people were afforded the fresh constitution of 1996, infused with a
new philosophy of openness and democracy suitable for the road ahead. A clean
break. UK legislators must now decide whether to retain some of the more
positive features of EU law ( for example employment and consumer law) whilst
ensuring that enough of the old regime is jettisoned to please those who voted
to leave.

But putting aside the question of what the law
of the state will look like when they do away with a higher layer of
government, there are some very serious themes to consider.

For any
country that secedes from a union the danger of atomisation inevitably rears its
head. When in 2004, the Orange Revolution focussed the eyes of democrats the
world over on the Maidan, the inheritance of the heady days of 1991 passed to a
new generation who were no longer really at loggerheads simply with Moscow. 2004
represented the start of a deeper question about the national identity of
Ukrainians that was brought to the fore dramatically again in 2014.

In both the UK and Ukraine arguably traditional
constitutional methods for the resolution of intra-national disputes have been
shunned in favour of extra-institutional assertiveness. As 2013 drew to a close
and the fires of the Maidan burned bright, Kyiv became a melting pot of those
who saw only one option to give voice to their will: protest and activism
rather than the ballot box. Although the UK did go to the polls in June 2016, it
appears that the expectation is that the UK Parliament must simply rubber stamp
the will of the public, contrary to the traditional view that decisions should
be taken within a sovereign Parliament of representatives rather than
delegates. This begs the question – how should states of multi-coloured nations
and regions make decisions about international and trade alliances? Should it
be through the formal institutions of government or through the simple
expression of ‘majority rules’, however that manifests itself?

Furthermore, is it possible for a country that
is prepared to envisage secession to stem the tide of internal calls for
self-determination? The Peoples Republics of Donetsk and Luhansk were born from
an argument that political questions had been resolved by a majority without
recourse to the concerns of the minority. I cast no aspersions upon the legitimacy
of that concern but, as in the case of the UK, raise the perception because it
is in the embers of disappointment, whether reasonable or otherwise, that the
flames of constitutional crises often set alight. For example, Scotland and the
major economic city hubs, including London, voted strongly in favour of a
continuing economic and political union with Brussels and it is difficult to
see how these opinions can be reconciled with other parts of the UK. It is a
concern for many that ‘revolution’ has left them behind. That, in the absence
of proper deliberation within a parliamentary setting, their voice hasn’t
really been heard.

For Ukraine, this was a problem that
metamorphosed into a violent conflict. Though I don’t for a moment suggest that
this could be the consequence of the UK’s choice, it now faces a very serious
constitutional crisis triggered by a question of national identity: in a
country that strides towards Brexit, is it possible to satisfy those regions
who voted overwhelmingly to remain? Once more, a decision taken at the
international level will undoubtedly have consequences at the intra-national
level. If it becomes clear that the Scottish people yearn for another
referendum on their independence, who is the British Parliament (emasculated in
the face of its commitment to British populism) to deny them this?

The people of the divergent nations within the
UK were asked a simple question. They
answered. Yet the outcome, if it is to be implemented with fidelity to the aims
of the Leave campaign – relinquishing the single market and the fundamental economic
freedoms to which it is so irrevocably bound – will inevitably fail to reflect
the will of deeply divided national opinion. The motivation behind the events
of February 2014 were distinctive: anyone who visits the opulence of
Yanukovych’s residence at Mezhigorie can see for themselves the corruption
against which the people of the Euromaidan were fighting. But the consequence
of revolution was division – division that may well have been justified, is division
nonetheless.

In essence, UK Prime Minister Theresa
May faces a similar domestic political question to that which faced Poroshenko
– how to govern a deeply divided country in the aftermath of revolution. Yet
there is an equally important constitutional question for them both: is the
union of all peoples they currently lead of importance to the future success of
their countries? If it is, then they must establish how best to secure that
union of peoples by ensuring that decisions governing the fate of their
citizens are made with constitutional propriety and longevity in mind

Paul Fisher is a British lawyer and former lecturer
at St. Catherine’s College, University of Oxford. He can be reached at
[email protected]