Is Ukraine's 1991 Independence Legitimate?

The myth: “the 1991 independence had no legal basis”

Russian propaganda attacks the very foundation of Ukrainian statehood from two sides. The first is political: supposedly Ukraine “never existed,” and 1991 was an accidental collapse that can be “rolled back.” The second, which pro-Russian online “legalists” often resort to, is ostensibly juridical: the Act of Declaration of Independence is “some unclear sort of document,” neither a law nor a resolution, so independence too was “drawn up incorrectly.”

To unpack the legal side, Vox Veritatis turned to two legal specialists. Andriy Magera is a specialist in constitutional law who worked for over 14 years at the Central Election Commission (from 2004 to 2018 as its deputy chairman). Yevhen Ponomaryov is a practicing attorney from the Kharkiv region. Their shared conclusion: none of the “legal” objections renders independence illegitimate. As Ponomaryov notes, not a single revolution in the world has ever taken place in accordance with the Constitution in force at the time — and that does not strip its result of force^[15].

Why an “act,” not a law or a resolution

The first thing critics latch onto is the document’s very form. And it is precisely here, Magera shows, that there was no oversight but a precise legal calculation.

On 24 August 1991, several options were considered in parliament. A resolution would not do: it is a subordinate legislative act, so the declaration of a state would have lower force than an ordinary law. An ordinary law would not do either: the Constitution of the Ukrainian SSR in force would stand above it. A law on amendments to the Constitution would place the document marking the state’s birth merely on the same level as the Constitution. The solution, which Magera calls “truly brilliant,” was proposed by one of the draft’s authors, the dissident Levko Lukianenko: to name the document an act^[1].

The logic is this: an act declaring statehood is more important even than the Constitution. Magera offers the analogy of a birth certificate: a person renews their passport every ten years, but the birth certificate stays unchanged for life. In the same way, Constitutions will change, but the Act of Declaration of Independence will remain in force “for as long as the Ukrainian state exists”^[2]. In other words, the unusualness of the form is not a legal defect but a deliberate decision to place the Act above current legislation.

This view is not marginal. Ponomaryov cites a scholarly work by the legal scholar Berchenko (2020) on the Act and the Declaration within the doctrine of the constitutional bloc: the author is cautious regarding the Declaration of Sovereignty, but with respect to the Act of Declaration of Independence he acknowledges that its direct link to the Constitution is obvious — the Act is named directly in the preamble of the 1996 Constitution^[18]. That is, the document did not “hang in midair” but is built into the very foundation of the current constitutional order.

The precedent that confirms it: an act of independence above the Constitution

That a document declaring independence can stand above the Constitution is no Ukrainian exotica. Magera cites the precedent of the Constitutional Court of Moldova: ruling on a language question, the court held that the provisions of Moldova’s Declaration of Independence prevail over the corresponding provision of the Constitution^[3].

That ruling (of 5 December 2013) framed the principle simply: the Declaration of Independence is the “primary legal and political basis” of the state, it has the force of a constitutional text, and in the event of a discrepancy between it and the Constitution, the Declaration takes precedence. In other words, an entire European constitutional jurisdiction officially recognized what Lukianenko had laid down in the Ukrainian case: the document — the state’s “birth certificate” — is the highest legal act, not a dubious scrap of paper.

Declaration or restoration? Both answers are correct

A separate “hook” is the wording. Why does the Act say “declaration” rather than “restoration” of independence, as in the Baltic states? Does this mean Ukraine is a “new” state with no historical roots?

Magera dispels this false dilemma. Law is not mathematics: “2+2” here does not always have a single answer, and in the humanities several variants of the norm are possible. Therefore both those who speak of declaration and those who speak of restoration are right — there is no contradiction^[4]. Ponomaryov puts it even more sharply: for him it is “both one and the other” — simultaneously a newly formed state and a continuation of the previous statehood^[17].

So why did the Baltic states choose “restoration”? Because between 1918 and 1940 they had sovereign states recognized by Europe — so legally there was something to “restore,” and that is precisely why the Baltics in the 1990s were not viewed “through Moscow’s glasses”^[5]. Lithuania went furthest of all: in the 1990 elections the democratic forces won, declared outright occupation within the USSR, and returned to the 1938 Constitution^[21]. Ukraine did not take this path — and not by chance.

Lukianenko himself, according to Ponomaryov’s account, first wrote “Act of Restoration,” then crossed it out and corrected it to “declaration.” He wanted “restoration” in order to link the new Ukraine to legal succession from the Ukrainian People’s Republic (UNR) and to recognize the occupation, as the Baltics did^[22]. But this path carried a heavy legal price (more on that below), and parliament went with the formula of “declaration.”

Legal succession vs. continuity: the UNR, the Ukrainian SSR, and why it matters

Here lies the key distinction on which the entire confusion rests. Continuity (from the Latin for “uninterruptedness”) in international law means that a state continues to exist despite a change of name, form of government, or the secession of parts of its territory^[7]. Magera’s classic examples: Iran remained Iran after the 1978 revolution, changing only its form of government; Ethiopia remained itself even after Eritrea’s secession in 1993^[8].

Does Ukraine have continuity with respect to the Ukrainian SSR? Magera believes it does not — because the Ukrainian SSR was not a full-fledged state by every criterion: it was a federal subject with truncated sovereignty, whose legislation had to conform to that of the Union, and above everything stood the Constitution of the USSR. Hence the correct term is quasi-state^[11]. Ukraine is its legal successor, and this manifested itself concretely: the Verkhovna Rada elected back under the Ukrainian SSR in 1990 and the local councils worked until 1994, while the 1978 Constitution and a number of Ukrainian SSR codes remained in force right up until new legislation was adopted^[10]. Ponomaryov adds that, formally, the government in 1991 did not change at all: it remained the same, largely communist, Verkhovna Rada (which itself banned the Communist Party), without re-elections — a “soft flow” of one state into another took place, with Ukrainian SSR institutions surviving right up to the 1996 Constitution^[17].

And what about the UNR? Here the succession is spiritual, not legal. The Ukrainian People’s Republic in exile legally and de facto ceased to exist; in 1992 its last president, Mykola Plaviuk, handed over the state regalia to Leonid Kravchuk — the seal, the flag, the documents. So historians see present-day Ukraine simultaneously as the legal successor of Soviet Ukraine and as the moral, spiritual heir of the UNR of 1917–1921^[16]. (For more on that first attempt at statehood, see the article “The Ukrainian Revolution of 1917”.)

So why was legal succession not formalized directly from the UNR, as Lukianenko wanted? Because it would have created enormous problems. Ponomaryov recalls: the 2019 bill on succession from the UNR was rejected — the Verkhovna Rada’s conclusion noted that proving 70 years of occupation is difficult (millions had sworn an oath of loyalty to the USSR), and, most importantly, Ukraine had already recognized itself as a continuator of the Ukrainian SSR with respect to international agreements and a co-founder of the UN in 1945^[23]. To renounce that legacy would have meant casting doubt on its own UN membership from the moment of the organization’s founding.

Ukraine in the UN since 1945: a legacy, not an artifice

UN membership itself is the strongest fact against the myth of an “artificial entity.” The Ukrainian SSR was a co-founder of the United Nations as far back as 1945. Magera recalls a curious detail of the founding: of all the founding states, only two entities were not sovereign states — the Belarusian SSR and the Ukrainian SSR. Stalin pressed for all the union republics to become founders; Roosevelt replied that in that case all 50 American states would become co-founders as well — and Moscow’s appetites “shrank a little”^[9].

The consequence of this for 1991 is direct. On the official UN website, Ponomaryov notes, there is a mark next to Ukraine (as there is next to Russia) that explains only a change of name of the state from the Ukrainian SSR to Ukraine — without any “termination” and “new accession”^[20]. That is, for the world, Ukraine as a subject of international law has existed continuously since 1945 — the name changed, not the state. This directly refutes the thesis of an “artificial entity created in 1991”: on the international stage, 1991 was not a birth from scratch but a change of nameplate over a seat already occupied at the UN.

The legal “subtlety” that pro-Russian commentators play on likewise does not alter the essence. The Law “On the Legal Succession of Ukraine” of 12 September 1991, Ponomaryov stresses, does not contain a direct provision that “Ukraine is the legal successor of the Ukrainian SSR” — it rather regulates succession with respect to the obligations of the former Union in certain parts^[19]. But this is not a gap; it is the flip side of continuity: there was no need to separately “inherit” the Ukrainian SSR, because the organs of the state were not interrupted — the same Verkhovna Rada simply continued its work under a new name. Tellingly, Russia’s own mirror-image move is far weaker: the 2020 Russian Constitution introduced a formula about being the “continuator of the USSR” — but, if read carefully, only with respect to international treaties, obligations, assets, and property, and not the territory of the former republics (Ukraine, Moldova, Georgia)^[14]. That is, even Moscow did not dare to legally declare itself the “continuation” of the USSR in full — and therefore has no legal grounds to dispute its neighbors’ borders.

Why the world recognized Ukraine after the referendum, not after the Act

Another argument of the skeptics: if independence was “real,” why did states recognize it not immediately after 24 August? Magera explains, and the answer is again not in the myth’s favor.

After August 1991, there were no recognitions either in September or in October — the first came only in December^[12]. There are two reasons. First, foreign-policy inertia: Ukraine was viewed “through Moscow’s glasses,” as “some kind of Russia, only a little different.” Second — the all-Union referendum of 17 March 1991, in which more than 70% of the Ukrainian SSR’s residents voted to preserve the USSR. That is precisely why the referendum of 1 December 1991 was critically needed: it nullified the legal consequences of the March all-Union vote and became, in Magera’s words, a “reinforced-concrete” basis for recognizing Ukraine^[12].

Legally, this referendum was impeccable. The Ukrainian SSR’s referendum law (July 1991) used the concept of an “all-Ukrainian and local referendum”; the resolution declaring independence scheduled a “republican” referendum — but these are synonyms: Ukraine is a Republic, so “all-Ukrainian,” “republican,” and “referendum of Ukraine” are one and the same^[6]. The result is well known: 90.32% “yes” with high turnout. Independence was given not only by the will of parliament but also by the people’s direct expression of will — and it was after it that recognitions began to pour in (Poland and Canada as early as 2 December).

The very end of the USSR is also telling. As Serhii Plokhy describes in his book “The Last Empire,” even Boris Yeltsin hoped to the last to preserve the Union — and was stunned when, in the Belovezha Forest, Kravchuk invoked the result of the referendum and declared that he “had no right to back down”^[24]. Ukraine’s independence buried the USSR not on anyone’s whim, but on the basis of the vote of 90% of its citizens.

”Citizenship out of nowhere”? No — a transfer

A smaller but popular objection: supposedly the new state’s citizenship “came out of nowhere.” Magera names the legal mechanism: a transfer. From the moment independence was declared, all USSR citizens who permanently resided on the territory of Ukraine became its citizens automatically — without applications, decrees, or petitions, simply by virtue of the new state’s emergence^[13]. This is a standard instrument of international law (alongside option, filiation, and naturalization), not an improvisation. So there is nothing “unclear” about this citizenship either.

What this means

The Kremlin myth of “illegitimate” independence is not an academic dispute about the paperwork of 1991. It is a tool: first to declare Ukrainian statehood “a mistake without a legal basis,” and then to “correct” it by force. The same logic as in the myth of the “unlawful” transfer of Crimea, and the same that feeds the war since 2014.

But the facts stand against it at every step. The “act” form is not a defect but a deliberate decision to place the document above the Constitution, confirmed even by the precedent of a neighboring country. The dispute over “declaration or restoration” is a question of interpretation, in which both answers are correct, not a gap in legitimacy. Ukraine is the world-recognized legal successor of the Ukrainian SSR and a co-founder of the UN since 1945 — that is, a subject with uninterrupted international continuity. And, most importantly, independence was given not by parliament alone but by 90% of citizens at the referendum of 1 December 1991. What is illegitimate here is not the Act of 1991, but the attempt to deny the choice of an entire people.