Anita Soboleva: Is it necessary to entrench the priority of the Constitution over international treaties?

Photo: Anna Artemeva / Novaya gazeta

6 March 2020

Anita Soboleva is a senior lawyer with the Institute of Law and Public Policy, a senior lecturer in the department of Theory and History of Law of the Higher School of Economics and a member of the Presidential Human Rights Council.

Source: Moscow Helsinki Group [original source: Sfera]

State Duma deputies unanimously approved the amendments to the Constitution in the first reading; the second reading is to take place very soon. The bill, amongst other things, provides for the amendment of Article 79 in order to entrench the priority of the Basic Law over the decisions of international bodies. Journalists of the online legal journal Sfera have looked into whether it is necessary to add provisions of this kind to the country’s Constitution and how this looks from the position of international law.

A vulnerable place

In his address to the Federal Assembly the president announced it is time to ensure Russia has the right not to carry out decisions of international bodies and requirements of international treaties that contradict the Constitution. After the publication of the bill it became clear that the new provisions, despite the hypotheses of some experts, will not affect Article 15, Point 4, of the Basic Law, in other words its first Chapter

It is intended to change Article 79 by adding the following provision: “Decisions of international bodies adopted on the basis of provisions of international treaties of the Russian Federation that contradict in their interpretation the Constitution of the Russian Federation do not require implementation by the Russian Federation.”

According to Anita Soboleva, senior lawyer at the Institute for Law and Public Policy, the authorities decided not to revise the first Chapter of the Constitution because of the complexity of the process: in addition to the fact that such a decision must initially be taken by at least 3/5 of the total membership of the Federation Council and the State Duma, it would also be necessary to summon a Constitutional Assembly. And it would be the members of the Constitutional Assembly who would either confirm the Basic Law unchanged or work out a new draft that would be adopted according to a special procedure involving either a 2/3 majority in the Federal Assembly itself or adoption in a nationwide referendum.

‘But in the country until today there is not even a federal constitutional law on the Constitutional Assembly: it is not laid down anywhere what this is and who would be its members,’ Anita Soboleva explains. ‘Moreover, revision of the first Chapter is a dangerous procedure. Amending the basis of the constitutional order may also lead to changing the most important things: no one in that case would be able to prevent giving the Russian Orthodox Church a special status or introducing a monarchy. Anything at all could be added to the Constitution. And those who today are working on the amendments understand that this is a Pandora’s Box that should never be opened.

Anita Soboleva points out that because of the risks related to the procedure of revising the Constitution the authorities decided to introduce the amendments into the third Chapter because it is easier to change. But, as a legal specialist, she believes such an approach vulnerable from a legal point of view: as a result, she considers, the internal logic of the text of the Constitution will be broken.

‘They will not amend the Chapter that sets out the basis of the constitutional order and provides for the priority of international treaties. They will amend the Chapter on the federal structure and the article that deals with the participation of Russia in inter-governmental associations and the conditions of transferring powers to them,’ says Soboleva. ‘In my opinion, such an amendment contradicts Chapters 1 and 2 (which are especially protected and have priority over all others) and will not take effect. Either they will in practice forget about the first two Chapters, and will only remember Article 79 and refer to it in order not to carry out decisions that seem inconvenient or too expensive for the budget.’

Irina Alebastrova, senior lecturer in the department of Public Law of the Higher Economic School, suggests that, in order to avoid legal collisions, it would be possible, as in France, to add a new chapter on international treaties to the Constitution.

‘In that case there would be no contradiction with Article 15, because that Article provides for the priority of international treaties over laws, and that will be preserved, since the Constitution in its current official interpretation is not a law, even though it is the Basic Law,’ quotes Alebastrova as saying.

Essential point or redundant formula

Sergei Belov, dean of the St. Petersburg State University Law School and member of the working group drawing up proposals for introducing amendments to the Constitution, confirms that the Basic Law belongs to a special category of regulatory acts and so today takes actual legal precedence over international agreements. Nevertheless, this does not obviate the need for the amendments being prepared, the specialist adds.

“It talks literally not about agreements but rather about decisions of international bodies that concern agreements of the Russian Federation. This is a fundamental question because it is one thing when Russia as a sovereign state reaches an agreement and accepts specific obligations and another when it reaches an agreement and then the text of this agreement begins to be interpreted in a sense that was not obvious, to put it mildly, upon signing,” the legal scholar explains.

Vladimir Lafitsky, a member of the expert working group on the Russian Federation Constitutional Commission in the years 1992-1993, who considers the proposed provisions redundant, maintains a different point of view.

“The current version of Article 79 of the Constitution fully ensures the protection of the country’s interests, indicating that Russia may participate in international associations if doing so does not contradict the foundations of its constitutional order. Therefore, there are no grounds for adding to this regulation a provision which says that decisions of international bodies, if they can be interpreted to contradict the Russian Constitution, are not subject to implementation in the country,” the jurist says.

Anton Zuikov, dean of the School of Constitutional Law and Constitutional Legal Procedures of the Institute of Law of the Russian University of the Friendship of Peoples, also does not see any necessity for introducing into Article 79 the formula offered in the draft bill. He remarks that, on the one hand, Article 15, part 1, directly states the primacy of the Russian Constitution throughout the country’s territory without qualifications about the priority of Russia’s international agreements, whereas on the other hand, Article 15, part 4, defines a special place for them.

At the same time, Article 125, part 2, point g, notes the following: at the request of some legal subjects, the Russian Constitutional Court shall consider Russia’s international agreements that have not gone into effect for their correspondence to the country’s Constitution. Additionally, in accordance with Article 3, part 1, point 3.2, of the Federal constitutional law “On the RF Constitutional Court,” the Court has the right to decide the question of whether or not Russia may implement an international body’s decision regarding the defence of human rights and freedoms. “In this regard, the passage of a separate law on regulatory legal acts in Russia to specify the place of Russia’s international agreements in the national system of law is considered to be more advisable.”

Anita Soboleva agrees that there is no point introducing an amendment, but for another reason. In the lawyer’s opinion, it is international agreements that have priority now, not the Constitution, and this state of affairs should be preserved. “Ordinarily, opponents of my point of view say that the Constitution is supposedly not a law and therefore Article 15, part 4, is not applicable to it. This interpretation seems to me highly arbitrary. Just as Germany’s Basic Law can be rightly called a Constitution, our Constitution can be called a Basic Law, even if that is not written right on the cover,” Soboleva, an associate of the Institute of Law and Public Policy, explains.

Moreover, Anita Soboleva adds, in Article 17, part 1, on the guarantees of human and civil rights and freedoms, international law stands in first place, before any mention of the Constitution. The lawyer supports her point of view with Article 46, part 3. “It says that each person has the right, in accordance with the agreements of the Russian Federation, to appeal to international bodies for the defence of human rights and freedoms if all existing means for intra-state legal defence have been exhausted. To send a person back, after international bodies, to national ones, which will decide whether or not the decisions of the international bodies should be implemented, is illogical in general,” the expert sums up.

She notes that not that long ago, the Constitutional Court’s new authority to interpret the decisions of international bodies bore the character rather of a warning: “if need be, we may not implement your decisions.” And now, until amendments are made in Article 79, the Russian courts, together with associations of an international character, can seek compromises. Since, in the specialist’s opinion, this was done by the Constitutional Court in the case of Konstantin Markin.

The court considered the question of whether the refusal to give a serviceman long-term leave to care for his child was discriminatory.  And although the positions of the Russian Constitutional Court and the European Court of Human Rights diverged on this matter, the Constitutional Court in the end tried to find a mutually acceptable solution. It stated that when there is a difference of positions, priority must be given to the decision that offers the person the greater protection.

“But if right now the proposed amendment is deliberately attached, the paths for seeking compromise will be substantially curtailed. We will have fewer opportunities for a negotiation process, mediation, and a search for joint decisions,” Anita Soboleva summed up.

Limitations aren’t set in stone

Indeed the provisions of international treaties are limited in almost all constitutions worldwide, Sergei Belov, Dean of the St. Petersburg State University law faculty reminds us. For example, in Germany the European Convention on Human Rights has the status of federal law, i.e. it is inferior to the Constitution. The supremacy of international law is not acknowledged in the United States either. “Furthermore, in the USA there is even discussion around whether the provisions of an international treaty, ratified by ordinary law, should be restricted or even revoked following the later adoption by Congress of another law”, adds the expert.

According to Anita Soboleva, states frequently come up against resolutions made by international bodies which contradict national law, but nevertheless they are able to find a mutually-acceptable workaround. In England for instance, after drawn-out discussions, the Human Rights Act was adopted in 1998, which, the lawyer says, incorporated what was in the European Convention. Thus, the provisions of the Convention were enshrined also within domestic law, while still ensuring that the international legal instrument did not run counter to “the Queen has final say” doctrine.

In Germany, Soboleva adds, discussions were also held on what should take precedence – the Basic Law or the provisions of international law and the European Convention on Human Rights. “But even in 2004, the Federal Constitutional Court presiding over the “Görgülü v. Germany” case ruled that the interpretation of the Basic Law should be done taking into account the European Court of Human Rights, and the task of all law enforcement bodies is to painstakingly integrate the European Convention on Human Rights into national law, rather than treating it in a nihilistic manner,” the expert opines.

However, this position frequently eludes those who search for loopholes, and don’t implement the resolutions of international bodies, Belov points out. They are invoked only in the sense that the Constitutional Court within the Görgülü case acknowledged the precedence of the national Constitution over the resolutions of the European Convention on Human Rights.

“Essentially, there are very few states willing to clearly and consistently espouse the precedence of international law over the Constitution,” says Sergei Belov. There are a number of [similar] countries in Europe, such as The Netherlands, that might. But this is certainly more the exception than the rule, despite the fact many talk as though it were only the Russian Federation behaves this way.”

From the European Court of Human Rights to the UN Committee

The 1969 Vienna Convention on the Law of Treaties does not allow countries to invoke the provisions of domestic law as grounds or justification for violating its international obligations, says Sergei Belov. According to the expert, however, this does not mean that the Russian Federation cannot claim, when entering into new treaties, that the international obligations of our country do not apply to cases where the provisions of a treaty are interpreted in a manner contrary to the Constitution.

The lawyer notes that, in this context, the amendment will help implement popular sovereignty through the Basic Law. ‘In contrast to international treaties, which are adopted by government bodies within the limits of their mandates, the Constitution is an act through which people exercise their sovereign power. By entering into a treaty that even potentially contradicts the Constitution, state bodies are going beyond the boundaries of their competence, which is impermissible from the perspective of the Constitution itself,’ the specialist explains.

A different prognosis has been put forward by Anita Soboleva, the senior lawyer with the Institute of Law and Public Policy. Soboleva believes that international law will lose all meaning if the amendment is adopted. ‘Why sign a treaty if a country can act in bad faith and say, “We don’t think we should fulfil it”? And the national Constitutional Court will find reasons for why it contradicts the Constitution somehow and reinforce this unwillingness with a ruling. But this could backfire on us too: if we refuse to implement decisions that are not taken in our favour, then other countries could refuse to implement decisions that are taken in our favour. We want to keep the right not to implement what we don’t like. But international law does not provide for such selectivity,’ notes the lawyer.

Soboleva believes that one of the consequences of entrenching the primacy of the Constitution could be a refusal to comply with the decisions of the European Court of Human Rights. Should this happen, however, then Russian citizens will turn to the UN Human Rights Committee, because Russia would hardly dare withdraw from the UN International Covenant on Civil and Political Rights, Soboleva told Sfera. And the country’s inhabitants won’t lose out, because the UN provides the same human rights guarantees, although it does not award monetary compensation.

“Russia won’t be told to pay out money there, but the negative impact it has on the international stage will be greater: it will be clear not just to European countries, but to the global community that we are violators,’ the lawyer concludes.

At the same time, Valentin Gefter, director of the Human Rights Institute and member of the Expert Council of the federal Human Rights Ombudsman, is more optimistic. He believes that the amendment to Article 19 will not only not affect ECtHR judgements in relation to our country, it will also not have any negative consequences for Russian citizens. “Because, generally speaking, the Constitution in and of itself does not strongly contradict international standards (in the field of law), including European ones,’ the lawyer explained to Voice of America’s Russian Service.

The State Duma Committee on State Building and Legislation has concluded its consideration of the amendments to the Russian president’s draft bill on changes to the country’s Basic Law. Now, the Duma is planning to consider the revised text of the bill at a second reading on 10 March.

Translated by Simon Cosgrove, Marian Schwartz, Nathalie Wilson and Nicky Brown

Leave a Reply