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The New Russian Constitution and International Law

Published online by Cambridge University Press:  27 February 2017

Gennady M. Danilenko
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Extract

The new Russian Constitution, which was approved by a popular referendum on December 12, 1993, entered into force on December 25, 1993. From a broad political perspective, the 1993 Constitution signifies a complete departure from the Communist dictatorship and a passage to democratic government. As a new basic law for a “democratic federal legal state,” the Constitution became an important step toward the establishment of a Rechtsstaat in Russia.

Type
Research Article
Information
American Journal of International Law , Volume 88 , Issue 3 , July 1994 , pp. 451 - 470
Copyright
Copyright © American Society of International Law 1994

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References

1 Konstitursila (Rossiiskoy Federatsii) [Constitution of the Russian Federation] (1993), Rossiiskaia Gazeta, Dec. 25,1993, at 3 [hereinafter Const.], translated in 16 Constitutions of the Countries of the World (Albert P. Blaustein & Gisbert H. Flanz eds., 1993) [hereinafter Constitutions], and in Current Dig. Post-Soviet Press, No. 45, 1993, at 4.

2 Of the participants in the referendum, 58.4% voted in favor of the new Constitution. Rossiiskaia Gazeta, supra note 1, at 1.

3 Id.

4 Const. Art. 1.

5 The composition and functions of the Constitutional Commission were defined by its Statute. See Polozhenie o Konstitutsionnoy komissii [Statute of the Constitutional Commission], Vedomosty Siezda Narodnykh Deputatov Rossiiskoy Federatsii i Verkhovnogo Soveta Rossiiskoy Federatsii [Official Gazette of the Congress of People’s Deputies and Supreme Soviet of the Russian Federation] [Vedomosty RF], Issue No. 8, Item No. 369 (1992).

6 See Konstitutsiia (Osnovnoy zakon) (Rossiiskoy Federatsii-Rossii) [Constitution (Fundamental Law) of the Russian Federation-Russia] (1978), as amended in 1989, 1990, 1991 and 1992 [hereinafter 1978 Const.], translated in 16 Constitutions (1993), supra note 1.

7 See Proekt Konstitutsii Rossiiskoy Federatsii [Draft Constitution of the Russian Federation] (1992). A slightly modified version of this draft was published in 1993. See Konstitutsiia Rossiiskoy Federatsii. Proekt [Constitution of the Russian Federation. Draft], Rossiiskaia Gazeta, May 8, 1993, at 9 [hereinafter Draft Const.].

8 See O proekte Konstitutsii Rossiiskoy Federatsii [On the Draft Constitution of the Russian Federation], Vedomosty RF, Issue No. 18, Item No. 979 (1992).

9 See Vedomosty RF, Issue No. 51, Item No. 3016 (1992).

10 See President Yeltsin’s decree O poetapnoy konstitutsionnoy reforme v Rossiiskoy Federatsii [On the Staged Constitutional Reform in the Russian Federation], Sobranie aktov Presidenta i Pravitel’stva Rossiiskoy Federatsii [Official Gazette of the President and Government of the Russian Federation] [Sobranie aktov], Issue No. 39, Item No. 3597 (1993).

11 See President Yeltsin’s decree O provedenii vsenarodnogo golosovaniia po proektu Konstitutsii Rossiiskoy Federatsii [On the Referendum on the Draft Constitution of the Russian Federation], Sobranie aktov, Issue No. 42, Item No. 3995 (1993).

12 The composition and functions of the constitutional meeting were defined by President Yeltsin’s decrees O merakh po zaversheniu podgotovki novoy Konstitutsii Rossiiskoy Federatsii [On Measures to Complete the Preparation of the New Constitution of the Russian Federation], Sobranie aktov, Issue No. 20, Item No. 1757 (1993), and O sozyve Konstitutsionnogo soveshchaniia i zavershenii podgotovki proekta Konstitutsii Rossiiskoy Federatsii [On the Convocation of the Constitutional Meeting and Completion of the Preparation of the Draft Constitution of the Russian Federation], Sobranie aktov, Issue No. 21, Item No. 1903 (1993). The constitutional meeting consisted of representatives of the federal administration, subjects of the Russian Federation, local councils, political parties, trade unions, associations of businessmen, groups of deputies of the former Congress of People’s Deputies, the Russian Academy of Sciences, the Constitutional Court, the Supreme Court, the Supreme Arbitration Tribunal and the Procuracy.

13 For the President’s draft Constitution, see Izvestiia, Apr. 30, 1993, at 3, translated in 16 Constitutions (1993), supra note 1 [hereinafter Yeltsin Draft].

14 The draft prepared by the constitutional meeting was widely published in the Russian press. See, e.g., Izvestiia, July 16, 1993, at 3. The final version of the draft was officially published, after slight modifications, one month before the referendum. See, e.g., Izvestiia, Nov. 10, 1993, at 3.

15 See supra note 7.

16 References to international law can be found in other provisions of the new Constitution. Thus, Article 67(2) provides that “[t]he Russian Federation has sovereign rights and exercises jurisdiction over the continental shelf and in the exclusive economic zone of the Russian Federation, as provided for by federal law and the norms of international law” (all translations are by the author).

17 Art. 71 (k).

18 Id., Art. 72(o).

19 The new Constitution uses the phrase “subjects of the Russian Federation” (cf. id., Arts. 5(3), 11, 65, 67, 72) to describe the component units of the Federation.

20 See, e.g., Sobranie aktov, Issue No. 6, Item No. 453 (1994) (President authorized Minister of Defense to sign a treaty between Russian Federation and Republic of Moldova on questions concerning presence of Russia’s armed forces on Moldova’s territory).

21 Const. Art. 86.

22 Under Article 87 of the Draft Const., supra note 7, the consent of the legislature was required for the following categories of treaties: (1) political, territorial, general economic, financial, military and those concerning the historical and cultural heritage of the peoples of the Russian Federation; (2) treaties affecting the rights, freedoms and duties of persons and citizens; (3) treaties relating to participation in interstate unions and other associations, and collective security arrangements; (4) treaties requiring modification of existing federal laws or the adoption of new ones; and (5) other international treaties for which a federal law or the treaty itself provides that they require ratification.

23 See Rossiiskaia Gazeta, Mar. 16, 1994, at 2 (Federal Council is considering “draft law on international treaties of the Russian Federation”).

24 See text at and note 23 supra.

25 See supra note 22.

Article 14 of the draft law on international treaties, prepared by the Duma’s committee on international affairs, provides that, besides treaties with respect to which the negotiating states had agreed that they would be submitted to ratification, ratification will be required for the following categories of treaties:

1. treaties whose implementation requires modification of existing federal Jaws of the Russian Federation or the adoption of new ones, as well as those treaties which set forth rules different from rules contained in the existing federal laws of the Russian Federation;

2. treaties directly affecting the fundamental rights and freedoms of persons and citizens;

3. treaties concerning territorial delimitation of the Russian Federation with other states, including treaties on state boundaries, as well as on delimitation of the exclusive economic zone and continental shelf of the Russian Federation;

4. treaties concerning basic principles of interstate relations; on questions of state defense, disarmament or control of armaments; maintenance of international peace and security; participation of the Russian Federation in interstate unions and other international associations; and peace treaties and treaties on collective security;

5. treaties concerning the provision or reception of state loans and credits (including those of international organizations) and provision of governmental guarantees and financial aid on the interstate level in cases where implementation of such treaties requires modification of limits on state foreign debts and state credit resources provided to foreign countries, established every year by the Federal Assembly, as well as in cases where such treaties are concluded on the security of the territory or natural resources of the Russian Federation or real estate belonging to the federal state property of the Russian Federation.

Draft law on international treaties of the Russian Federation (Apr. 1994) (on file with the author).

26 See Rossiiskaia Gazeta, Jan. 26, 1994, at 5.

27 See, e.g., Rossiiskaia Gazeta, Mar. 17, 1994, at 1 (decision by Duma to hold committee hearings on Russia’s participation in “international treaties concerning the elimination of chemical weapons”); id., Mar. 23, 1994, at 1 (hearings by Duma’s committee on geopolitics on the state of Russia’s borders and proposed negotiation of an international agreement on the common border for states members of the Commonwealth of Independent States).

28 Cf. President Yeltsin’s first annual address to the Federal Assembly, Rossiiskaia Gazeta, Feb. 25, 1994, at 1, 7 (some 60 international treaties had been submitted to the Federal Assembly for ratification).

29 See Const. Art. 95(2) (each subject of the Federation is represented in the Federal Council by two deputies, one of whom is delegated by the local legislative organs, and the other by the Executive).

30 Id., Art. 105.

31 The draft Constitution submitted by the Constitutional Commission expressly required formal consultations and understandings between the Federation and the particular subjects of the Federation for international treaties “affecting the competence or the territory” of those subjects. See Draft Const., supra note 7, Art. 87(3).

32 Const. Art. 72(o).

The new Constitution touches on the relations between the Federation and its component units as regards treaties in another provision. Article 85(2) allows the President to suspend acts of the executive organs of the subjects of the Russian Federation that, among other things, conflict with “the international obligations of the Russian Federation … , pending resolution of this issue by an appropriate court.”

33 The draft law on international treaties, supra note 25, in Article 4, provides that the conclusion of treaties affecting “matters falling within the exclusive jurisdiction of a subject of the Federation” requires the assent (po soglasovaniiu) of the relevant subject. If the treaty affects matters falling within the concurrent jurisdiction, the federal organs must convey its basic provisions or the draft to the subjects of the Federation. Proposals submitted by the subjects of the Federation must be considered when negotiating the pertinent treaty.

34 See G. M. Danilenko, Mezhdunarodno-pravovye aspekty novoy Konstitulsii Rossii [International Legal Aspects of the New Russian Constitution], 13 Konstitutsionnyi Vestnik 132, 135 (1992).

35 See text at and notes 88–95 infra.

36 See Const. Art. 15(3): “Laws must be officially published. Those laws that have not been published are not applicable.”

37 Whatever the interpretation of the Constitution, the requirement of official publication of treaties is expected to be upheld by statutory law. The draft law on international treaties, supra note 25, in Article 28, provides that treaties ratified by the Federal Assembly will be published in the official gazette of the Federal Assembly. Furthermore, all treaties in force (with the exception of treaties signed by federal ministers) will be published in the Bulletin of International Treaties. “Ministerial treaties” will be published in the official publications of the relevant ministries.

38 Art. 125(2).

39 Id.

40 Id.

41 Id., Art. 106.

42 The subject was raised in the current debates over the new law on the Constitutional Court. The Constitutional Court had prepared a draft of the new law and submitted it to the Federal Assembly, see Rossiiskaia Gazeta, Feb. 4, 1994, at 2. The Court’s initial draft indicated that, in its view, it was desirable to review the constitutionality of federal laws concerning ratification of treaties. However, the draft law on the Constitutional Court that has emerged from debates in the Duma’s Committee on Legislation and Court Reform does not expressly grant the Court such power. See Draft Constitutional Law on the Constitutional Court of the Russian Federation (Apr. 1994) (on file with the author). Because the Court, in principle, may still assert its view when resolving specific disputes, it will be interesting to follow the evolution of its case law on these matters.

43 Const. Art. 125(6).

44 id., Art. 72(o).

45 Id., Art. 78(2), (3).

46 Dogovor Rossiiskoy Federatsii i Respubliki Tatarstan “O razgranichenii predmetov vedeniya i vzaimnom delegirovanii polnomochiy mezhdu organami gosudarstvennoy vlasti Rossiiskoy Federatsii i organami gosudarstvennoy vlasti Respubliki Tatarstan” [Agreement of the Russian Federation and of the Republic of Tatarstan on the Delineation of Competencies and Mutual Delegation of Powers between the Governmental Organs of the Russian Federation and the Governmental Organs of the Republic of Tatarstan], Feb. 15, 1994, Rossiiskaia Gazeta, Feb. 17, 1994, at 6.

47 Id., Preamble, Art. 11(11).

48 Id., Art. 11(11).

49 Id.

50 Id., Art. 111(5).

51 See text at and note 44 supra.

52 See Konstitutsiia (Osnovnoy zakon) (Soiuza Sovetskikh Sotsialisticheskikh Respublik) [Constitution (Fundamental Law) of the USSR] (1977), 1 Svod zakonov SSSR [Code of the Laws of the USSR] 14 (1988), as amended in 1981, 1988, 1989, 1990, translated in Constitutions, supra note 1, Historic Constitutions, Union of Soviet Socialist Republics (1990), and Basic Documents on the Soviet Legal System 3 (W. E. Butler ed., 2d ed. 1991).

53 Id., Art. 29.

54 For details, see Gennady M. Danilenko, Soviet Constitutional Reforms and International Human Rights Standards, in 1 Collected Courses of the Academy of European Law (1990), bk. 2, at 211, 239–40 (1992).

55 For the text of the 1918 Constitution, see USSR: Sixty Years of the Union 1922–1982, at 69 (1982).

56 1918 Constitution, supra note 55, Art. 3.

57 For the text of the 1924 Constitution, see USSR: Sixty Years of the Union 1922–1982, supra note 55, at 176.

58 1924 Constitution, supra note 57, Preamble.

59 Id.

60 See, e.g., V. S. Vereshchetin, G. M. Danilenko & R. A. Mullerson, Konstitutsionnaya reforma v SSSR i mezhdunarodnoe pravo [Constitutional Reform in the USSR and International Law], Sovetskoe Gosudarstvo i Pravo, No. 5, 1990, at 13.

61 Zakon SSSR o konstitutsionnom nadzore v SSSR [Law of the USSR on Constitutional Supervision in the USSR], Vedomosty Siezda Narodnykh Deputatov SSSR i Verkhovnogo Soveta SSSR [Official Gazette of the Congress of People’s Deputies and Supreme Soviet of the USSR] [Vedomosty SSSR], Issue No. 29, Item No. 572 (1989), as amended in 1990, see Vedomosty SSSR, Issue No. 12, Item No. 189, para. 14 (1990).

62 See Vedomosty SSSR, Issue No. 27, Item No. 524 (1990).

63 GA Res. 217A (III), UN Doc. A/810, at 71 (1948).

64 Dec. 16, 1966, 999 UNTS 171.

65 See Vedomosty SSSR, Issue No. 39, Item No. 775 (1990).

66 See Vedomosty SSSR, Issue No. 46, Item No. 1307 (1991).

67 See Vedomosty RF, Issue No. 52, Item No. 1865 (1991).

68 See 1978 Const., supra note 6, Art. 32.

69 See Zakon o Konstitutsionnom Sude [Law on the Constitutional Court], Vedomosty RF, Issue No. 19, Item No. 621 (1991). Note that after the enactment of the new Constitution, the 1991 Law on the Constitutional Court became obsolete. A new law on the Constitutional Court is currently under consideration. See supra note 42.

70 Law on the Constitutional Court, supra note 69, Arts. 1, 2, 66–73. The new Constitution, Const.Art. 125(4), and the draft law on the Constitutional Court, supra note 42, Arts. 3(3), 97–101, also provide for individual constitutional complaints, although in modified form. According to the draft of the new law, private persons may file individual complaints challenging the constitutionality of those “laws” which (1) infringe upon constitutional rights and freedoms of citizens, and (2) have been applied or are supposed to be applied in a concrete case pending before a court or other law-applying body.

71 See infra note 78.

72 Vedomosty RF, Issue No. 13, Item No. 669 (1992). Since 1993 the Constitutional Court has published its own official bulletin, Vestnik Konstitutsionnogo Suda Rossiiskoy Federatsii [Herald of the Constitutional Court of the Russian Federation] [VKS]. The decision of the Court discussed in the text was also published in 1 VKS 29 (1993).

73 See supra note 67.

74 1978 Const., supra note 6, Art. 28.

75 See text at and notes 53–54 supra.

76 Vedomosty RF, Issue No. 13, Item No. 669 (1992), 1 VKS at 33.

77 Id., 1 VKS at 33.

78 Regrettably, the Court’s decision contains very little analysis of the applicable rules of international law. Another drawback of this decision (as well as of all the other decisions of the Court cited in this article) is the Court’s failure to analyze the method by which it derived principles and norms of international law. From this perspective, the most troubling aspect of the Court’s record is the absence of a clear distinction between legally binding international conventions and nonbinding instruments such as United Nations General Assembly resolutions, which are extensively invoked in all the Coprt’s opinions that relied on international law.

79 Dec. 16, 1966, 993 UNTS 3.

80 The Court has also relied on international law in two other labor law cases. One case concerned certain procedural norms and practices restricting the right of plaintiffs in labor disputes to appeal the decisions of lower courts. The Court found that these norms and practices violated the right to an effective remedy by a court of law. In support of its decision, Vedomosty RF, Issue No. 30, Item No. 1809 (1992), which declared the restrictions unconstitutional, the Court cited the Universal Declaration of Human Rights, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights. The second case, Vedomosty RF, Issue No. 29, Item No. 1141 (1993), dealt with the Labor Code and the Law on Procuracy, which provided that officers of the Procuracy could not challenge disciplinary measures and dismissals in courts. Again, the Court found the restric tive laws unconstitutional because they violated the right to an effective remedy by a court of law. The Court relied not only on the Constitution, but also on international law, and cited such instruments as the Universal Declaration and the two Human Rights Covenants.

81 Vedomosty RF, Issue No. 13, Item No. 671 (1992), 1 VKS 40 (1993).

82 Id. at 910, 1 VKS at 40.

83 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations, GA Res. 2625 (XXV) (Oct. 24, 1970).

84 GA Res. 41/128 (Dec. 4, 1986).

85 Conference on Security and Co-operation in Europe, Final Act, Aug. 1, 1975, 73 Dep’t St. Bull. 323 (1975). For follow-up documents, see, e.g., Charter of Paris for a New Europe, UN Doc. A/45/859, at 20 (1990), reprinted in 30 ILM 190 (1991).

86 Tatarstan did not comply with the Court’s ruling and held a referendum on independence in which 61.4% of the participants approved the proposal to declare the republic an independent state. See Rossiiskaia Gazeta, Mar. 24, 1992, at 1. Subsequently, however, Tatarstan concluded an agreement with Russia that declared that “the Republic of Tatarstan is united with Russia.” See text at and note 46 supra.

87 Const. Art. 15(4).

88 See Yeltsin Draft, supra note 13.

89 See supra note 14.

90 Draft Const., supra note 7.

91 See text at and notes 94–95 infra. Note that the draft law on international treaties, supra note 25, seeks to avoid the negative consequences of this interpretation by requiring that all treaties that set forth rules different from those contained in the existing federal laws must be submitted for ratification.

92 See 1 S. S. Alexeev, Obschaia Teoriia Prava [General Theory of Law] 86–91 (1981).

93 For an excellent review of the status of treaties in domestic law, see 7 United Kingdom National Committee of Comparative Law, The Effect of Treaties in Domestic Law (Francis G. Jacobs & Shelley Roberts eds., 1987). See also Antonio Cassese, Modern Constitutions and International Law, 192 Recueil des Cours 331 (1985 III).

94 Cf. text at and note 43 supra.

95 See, e.g., Const. Arts. 56, 76, 108, 114, 118. The adoption of “constitutional laws” requires special majorities in both chambers of the Federal Assembly, id., Art. 108. According to Article 76(3), “federal laws cannot contradict federal constitutional laws.”

96 See id., Art. 125.

97 See supra note 23. Article 5 of the draft law on international treaties, supra note 25, draws a distinction between rules of international treaties that may “apply without the enactment of domestic acts” and other treaties. While the former “apply on the territory of the Russian Federation directly,” the latter will be applied only after the enactment of “the pertinent legal acts.”

98 For an analysis of the “avoidance doctrines” articulated by various national courts, see I. I. Lukashuk, Mezhdunarodnoe Pravo v Sudakh Gosudarstv [International Law in the Courts of States] 126–33 (1993); Eyal Benvenisti. Judicial Misgivings Regarding the Application of International Law: An Analysis of Attitudes of National Courts, 4 Eur. J. Int’l L. 159 (1993). See also John H. Jackson, Status of Treaties in Domestic Legal Systems: A Policy Analysis, 86 AJIL 310, 333–34 (1992).

99 Const. Art. 17.

100 Id., Art. 69.

101 The new Constitution’s chapter on human rights contains two additional references to international law. Article 62 provides that foreign citizens as well as stateless persons enjoy the same rights and have the same obligations as Russian citizens, subject to exceptions established by “federal law or an international treaty of the Russian Federation.” Article 63 states that the Russian Federation grants political asylum to foreigners “in accordance with the generally recognized norms of international law.”

102 See text at and notes 88–95 supra.

103 Const. Art. 55.

104 Id., Art. 46(3).

105 Supra note 64.

106 Draft Const., supra note 7, Art. 10.

107 Yeltsin Draft, supra note 13.

108 Id., Art. 69.

109 Note that the draft law on international treaties, supra note 25, provides that international treaties concerning “participation of the Russian Federation in interstate unions and other international associations” must be submitted for ratification.

110 See Const. Art. 16.

111 Id., Arts. 1–15.

112 Yeltsin Draft, supra note 13, Art. 68.

113 It should be noted that the relevant international customary and treaty law restrictions on the threat or use of force are now part of the Russian domestic legal system in accordance with Article 15(4) of the new Constitution, discussed in text at and notes 88–95 supra.

114 Const. An. 71.

115 Id., Art. 87(1), (2).

116 Id., Art. 87(2).

117 Id., Art. 102.

118 Id.

119 Id., Art. 106.

120 Id., Art. 87(3).

121 The draft Constitution submitted by the Constitutional Commission of the Congress used more restrictive language by stipulating that the President declares martial law in cases of a “surprise armed attack on the Russian Federation or the urgent need to fulfill international treaty obligations concerning collective defense against aggression.” Draft Const., supra note 7, Art. 93. While this formulation was closer to that of the UN Charter, it has also been criticized because it used not only the words “armed attack,” but also the loose expression “collective defense against aggression.” See Danilenko, supra note 34, at 144.