BY: ISABELLE JEFFERIES, JUNIOR RESEARCH ASSOCIATE, PILPG-NL
In his annual address to the Russian assembly on January 15, 2020, Vladimir Putin proposed a number of amendments to the 1993 Russian constitution. In March 2020, these amendments were formally approved by the State Duma and the Federation Council. A nation-wide vote was held between June 25 and July 1, 2020, where 79 percent of voters were in favor of the proposed amendments. Thus, on July 4, 2020, the amendments entered into force through Decree No.445 “on the Official Publication of the Constitution of the Russian Federation, as Amended.”
Among the amendments, President Putin proposed to establish the priority of the Russian constitution over decisions of international courts. This post will explore the background to the adoption of this amendment concerning international law, before considering the amendment itself and the reasons for which it is described as controversial.
Background to the Constitutional Amendment: 2015 Russian Federal Law amending the Powers of the Russian Constitutional Court
In July 2015, members of the state Duma requested that the Russian Constitutional Court (RCC) rule on the constitutionality of a number of laws. Among these laws was the 1998 Russian Federal Law, concerning Russia’s ratification of the European Convention of Human Rights (ECHR). The RCC refused to declare the 1998 Russian Federal Law as unconstitutional as Russia’s membership to a treaty does not equate to a renouncement of state sovereignty. However, it declared that the ECHR and rulings by the European Court of Human Rights (ECtHR) can only be implemented into Russian law if they conform with the Russian constitution.
At the time, analysts speculated that this ruling by the RCC was issued in response to Yukos v. Russia. In this 2014 judgment, the ECtHR ordered Russia to pay 1.9 billion euros in compensation to shareholders of Yukos, a Russian oil company that had allegedly evaded billions of dollars in tax owed to the Russian state as a result of fraud.
Moreover, in its judgment, the RCC authorized the federal legislator to create a legal mechanism that would allow the RCC to ensure the supremacy of Russian constitutional law in the execution of ECtHR judgments. In December 2015, this legal mechanism entered into force through the 2015 Federal Constitutional Law amendment. It authorized the RCC to declare as null and void any judgment by any human rights mechanism, such as the ECtHR or the UN Human Rights Committee, if they are inconsistent with the Russian constitution.
In April 2016, the RCC used this legal mechanism for the first time by conducting a constitutional review of the ECtHR’s ruling in Anchugov and Gladkov v. Russia. In 2013, the ECtHR had held that article 32(3) of the Russian constitution, imposing a blanket ban on the right of convicted prisoners to vote, was incompatible with article 3 of Protocol 1 of the ECHR. The RCC ruled that the ECtHR judgment could not be implemented in Russia as it was in conflict with the Russian constitution.
In fact, at the time of Russia’s ratification of the ECHR, no doubts were raised as to the potential incompatibility between article 32 of the Russian constitution and article 3 of Protocol 1 of the ECHR. However, article 125(2) of the Russian Constitution grants the RCC the power to verify the compatibility of international treaties, not yet in force, with the Constitution. If the RCC finds that the international treaty is not compatible with the Constitution, the treaty cannot be signed and ratified by Russia. Hence, the incompatibility found by the ECtHR in Anchugov and Gladkov v. Russia was caused by its novel interpretation of article 3 of Protocol 1 of the ECHR. Russia had not consented to this interpretation at the time of its ratification of the ECHR.
Thus, Russia’s isolationist approach to international law is not new. This is proven by the 2015 Federal Constitutional Law amendment mandating the RCC to declare as non-executable a decision by a human rights mechanism if it is incompatible with the Russian constitution. However, the 2020 amendments to the Russian constitution go further, as we will now consider.
The 1993 Russian Constitution and the Amendments made in 2020
Under the original article 79 of the Russian Constitution, Russia could only become a member of an international organization if this did not result in the limitation of the rights and freedoms of citizens as stipulated by the constitution and if this did not threaten the foundations of the constitutional order. Following its amendment, article 79 also establishes that decisions of interstate mechanisms adopted on the basis of provisions of international treaties shall not be enforceable in Russia if they are inconsistent with the constitution.
Furthermore, under the original article 125(5), the RCC was mandated to interpret the Russian Constitution. Under its amended version, the RCC now also has the authority to rule on, and to prohibit, the enforcement of a decision of an interstate mechanism concerning an international treaty that is contrary to the Russian Constitution.
Ultimately, the amendments to articles 79 and 125 raise to the constitutional level the content of the 2015 Federal Constitutional Law amendment concerning the RCC that was considered earlier. Furthermore, it extends the 2015 Federal Constitutional Law amendment, targeting human rights mechanisms specifically, to all international legal mechanisms and courts, such as the International Court of Justice or international arbitral tribunals. In November 2020, President Putin signed the Federal Constitutional Law amendment, which implements the aforementioned Constitutional amendments to the powers of the RCC and replaces the 2015 Federal Constitutional Law amendment.
Why is this Constitutional Amendment perceived as Controversial?
The Vienna Convention on the Law of Treaties (VCLT) regulates the definition, drafting, amending, interpretation, and general operation of treaties concluded between states. Russia has been a party to the VCLT since April 29, 1986, when it was still known as the Soviet Union.
According to article 26 VCLT, a treaty is binding upon the parties and must be performed by them in good faith. Furthermore, under article 27 VCLT, states cannot invoke domestic law to justify their failure to perform an international obligation they owe by virtue of a treaty, such as the implementation of a decision of an international court. Hence, under international law, Russia cannot invoke its domestic law, even if it is constitutional law, to justify its non-performance of an obligation owed under international law.
Although the Russian government has pledged to continue to comply with any international obligations it currently holds, its constitutional amendment enables the RCC to declare as non-executable any international decisions that contradict the Russian Constitution.
Concluding thoughts
The 2020 amendment to the Russian constitution enabling the RCC to declare as non-executable any international decisions that contradict the Russian Constitution is not contrary to international law per se. However, if the Russian government refuses to enforce a decision by an international mechanism on the basis of such a ruling by the RCC, this is contrary to the VCLT, and thus, to international law.
This amendment is significant in light of the fact that Russia is currently facing international adjudication in various courts, namely the ECtHR, the International Court of Justice, and the UN Convention on the Law of the Sea. Moreover, the damage sets a bad precedence for international cooperation generally, as other governments seeking to avoid international legal obligations could follow suit.