On 15 January 2020, in his state-of-the-union address, President Putin proposed a number of amendments to the 1993 Constitution of the Russian Federation, including the ones prescribing to redistribute the president’s power in favour of the parliament and a vaguely defined but powerful body called the State Council. The speech has made international headlines (see here, here, and here), and was followed by the resignation of Russian Prime Minister Medvedev (who served in this position since 2012) and the entire cabinet. However, apart from the proposed amendments to the Constitution which concern the changes in balance of power in the Russian Federation, Putin also touched upon a number of issues significant for international law and representative of Russia’s view on international law. This post will discuss two of such proposed amendments in turn: (i) securing the prevalence of the Russian Constitution over international treaties and decisions of international bodies; and (ii) limiting political rights of individuals holding dual citizenship or residence permit in another state.
Securing the Prevalence of the Russian Constitution over International Treaties and Decisions of International Bodies
In his speech, President Putin proposed an amendment which will ‘directly guarantee the priority of the Constitution in the Russian legal space’. The Russian President argued that the Russian Constitution should provide that international treaties and decisions of international bodies should not be valid on the Russian territory, if they contradict the Constitution of the Russian Federation.
This proposal is perplexing to say the least, since the current Constitution of the Russian Federation already prescribes that the Constitution takes precedence over international treaties. Article 15(1) of the Constitution provides that ‘the Constitution of the Russian Federation has the highest legal force’. It also stipulates that the laws and other legal regulations must not contradict the Constitution. Article 15(4) provides that ‘generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of its legal system’. The same provision also specifies that international treaties prevail over the laws of the Russian Federation, if there is a conflict. While Article 15 does not say so expressly, if read as a whole, it provides that even if the international treaties prevail over the laws, the Constitution still has the highest legal force.
The same conclusion can be reached after examining Articles 125(2) and 79 of the Russian Constitution. Specifically, Article 125(2) confers the power on the Constitutional Court to verify international treaties, which are not in force, on compatibility with the Constitution. As a result, the international treaties incompatible with the Constitution cannot be signed and ratified by the Russian Federation (this argument was also advanced by Acting Minister of Foreign Affairs Lavrov in his interview following Putin’s speech). Article 79 in turn states that Russia’s membership in international organizations is only possible if such membership does not limit the rights and freedoms of citizens stipulated by the Constitution and does not threaten the foundations of the constitutional order.
This interpretation of the current Constitution is supported by a number of Russian constitutional law scholars (see here, here, here, here, and here), and by the Russian Constitutional Court itself, which has the authority to interpret the Constitution (see its decree on the topic here in Russian).
Furthermore, this proposed amendment seems to be impossible to introduce without the adoption of a new constitution. This amendment would require changes to Article 15 of the Constitution, which is part of Chapter I of the Constitution and can only be redrafted by the Constitutional Assembly. Since there is no law on the Constitutional Assembly, currently it is not possible to establish this body.
Some domestic experts believe that Putin’s proposed amendment is aimed at creating or rather reinforcing the mechanism for non-implementation of the European Court of Human Rights (ECtHR) decisions. This explanation is improbable since Putin’s proposed amendment would unlikely impact an already poor record of enforcement of the ECtHR decisions in Russia. This explanation stems from an ongoing turbulent relations of the Russian Federation with the ECtHR (see more here). Apart from Russia being one of the laggard states in terms of the numbers of applications and violations to the ECtHR, the Russia-ECtHR relationship visibly deteriorated after the ECtHR’s Yukos judgment (see here). The Russian Constitutional Court notoriously decided that Russia may not enforce the ECtHR’s decisions in certain cases, including in the Yukos case (inter alia by recognising state sovereignty a jus cogens norm). In 2015, the Russian Parliament passed the law, which empowered the Russian Constitutional Court to declare decisions of international human rights bodies as ‘unenforceable’, when such decisions are incompatible with the Constitution (here in Russian). Although the Constitutional Court has so far found only two ECtHR decisions as ‘unenforceable’ (Yukos and Anchugov and Gladkov), the Russian Federation has routinely failed to enforce the ECtHR decisions even without involving the Constitutional Court (see here). Thus, the explanation that the new amendment to the Constitution somehow concerns the refusal to enforce the ECtHR’s decisions is unlikely, considering that the implementation of the ECtHR decisions in Russia has been impeded for some time.
So why include the amendment, which will not bring actual changes to the status of international law in the Russian domestic legal system or to the mechanism of enforcement of the ECtHR decisions, and more importantly which is technically impossible to adopt at the moment? Putin’s amendment seems to be purely symbolic. His statement signals to both international community and domestic electorate the way in which Russia will deal with potentially unfavourable decisions of the international courts and tribunals in the cases brought by Ukraine. Apart from the ECtHR, Ukraine has brought proceedings against Russia before the International Court of Justice, two tribunals constituted under Annex VII of the UN Convention on the Law of the Sea, and the WTO dispute settlement system. There is an ongoing preliminary examination into the situation in eastern Ukraine and Crimea by the International Criminal Court which may lead to an investigation in the future. Ukrainian investors in Crimea also have initiated a number of investor-state arbitrations (on Ukraine’s international litigation against Russia, see here). While the Russian Federation is neither the only state where constitution prevails over international treaties (see e.g. Germany or the US), nor the only state which attempted to ignore international decisions (see e.g. the US in the Military and Paramilitary Activities case or the UK in the Hirst case), the scale of international decisions that Russia may try to dismiss will be incomparable.
Additionally, by expressing the dissatisfaction with the current international legal system and creating Russia’s own international law narrative (see e.g. here pp 121–146), Putin appears to attempt to further strengthen Russia’s grip on Crimea, establish himself as the leader who returned Russia to international grandeur, and at the same time distract the Russian people from the core of the proposed amendments – to ensure that he maintains his hold on power.
Limiting Political Rights of Individuals Holding Dual Citizenship or the Residence Permit in Another State
Furthermore, Putin proposed the amendment to the Constitution, according to which officials and judges in the Russian Federation should be prohibited from having foreign citizenship or residence permit or any other document allowing them to reside permanently in the territory of another country. The list of these officials is rather extensive and includes heads of constituent entities of the Federation, members of the Federation Council, members of State Duma, the prime minister and his/her deputies, federal ministers, heads of other federal bodies, and judges. The amendment imposes even more severe restrictions on the presidential candidates, who are required to reside permanently in Russia for at least 25 years and never possess another citizenship or residence permit.
Similar requirements for the president’s position and more rarely for the holders of public office are not unique. In the US, for example, only a natural-born US citizen is eligible to hold the office of president; in Israel, members of Knesset are prohibited from holding a dual citizenship. The restrictions suggested by Putin, however, go way beyond such requirements and will likely violate a number of Russia’s international human rights obligations, including the right to political participation and prohibition against discrimination.
Article 25 of the International Covenant on Civil and Political Rights (ICCPR) ensures the right and the opportunity of the Russian citizens to stand for elective office, as well as to access on general terms of equality to public service positions. Any restrictions on these rights must be justifiable on objective and reasonable criteria, and persons who are otherwise eligible ‘should not be excluded by unreasonable or discriminatory requirements such as education, residence or descent, or by reason of political affiliation’ (see Human Rights Committee, General Comment 25, para 15). Prohibition of discrimination is also guaranteed by Articles 2 and 26 of the ICCPR and Article 14 of the European Convention on Human Rights. In his speech, the Russian President invoked national security and sovereignty as the reasons for these restrictions on political rights. The examination will need to be conducted on whether there are reasonable and objective grounds justifying the use of residence permit or dual citizenship as a distinguishing criterion (see Love v Australia, para 8.2). It is doubtful that such criterion will be found reasonable taking into account the extensive range of positions covered by the restriction. It will also be difficult to prove that a residence permit or another document allowing Russian citizen to reside permanently in the territory of another country is compatible with the broad purpose of ensuring state security and sovereignty. Similarly, such restrictions on political rights may result in indirect discrimination against the Russian citizens of particular ethnic or religious backgrounds. For example, a considerable number of Russian citizens have an Israeli citizenship or residence permit, who as a result of this restriction will be barred from officeholding.
The restriction on the presidential position is particularly unreasonable, since it will arbitrarily deprive a significant part of Russian citizens from running for presidency. Apart from Russian citizens of Jewish background, this amendment, if adopted, will limit from ever running for the position of president the residents of Crimea (since most of Crimean population previously held a Ukrainian citizenship), or Russian musicians and professional athletes working and training abroad, or basically anyone who studied or worked abroad for an extended period of time.
Such restrictions on political rights cannot but remind us of the Soviet approach where political rights were subjugated to the principle of state sovereignty and were only guaranteed if they were not used ‘to the detriment of state or public security, and the morals of citizens’ (see here p 114).
Irrespective of the underlying reasons behind the amendments to the Russian Constitution, these amendments will have ramifications for international law. Russia seems to keep moving back to the Soviet doctrine of international law, stubbornly delineating Russian international law from international law of the rest of the world. While the existence of domestic approaches to international law is natural, reinforcing the differences may destroy any hope of a common language of international law and result in Russia’s further isolation.