An Unnecessary Reform

On February 26 the Chairman of Russia's Investigative Committee Alexander Bastrykin proposed that the provision on "the priority of international law over national law" should be removed from the Constitution.

In other countries, he said, "legal mechanisms are more flexible" while in Russia the situation works against the country's interests and "is skilfully used by Western opponents". The state of affairs when international treaties take precedence over domestic legislation is "the sabotage of legal regulation", said Mr Bastrykin, and in order "to strengthen the independence of the Russian Federation in the legal field and to return to the best traditions of the domestic law" this situation must be changed.

Indeed, according to art. 15 of the Russian Constitution if an international treaty stipulates rules other than those stipulated by law, the rules of the international treaty apply.

Mr. Bastrykin is also right in that in many countries national legislation takes precedence over international agreements. This is a peculiarity of Russian law: in the event of a contradiction between the national law and an international treaty, courts must adhere to the terms of the treaty.

However, international agreements with rare exception come into force after the process of ratification. This means that an international agreement must be approved by Parliament and signed by the President in the same way as a federal law. In addition, the Constitutional Court can be asked to rule whether an international treaty complies with the Constitution and if, in the opinion of the judges, the treaty contradicts Russia's main law, Parliament cannot approve such a treaty.

The essence of law lies in the way it is interpreted. How an international treaty is applied depends on national courts and we see that courts in Russia tend to interpret international agreements in a different way from their foreign colleagues.

In Konstantin Markin v. Russia the views of the Constitutional court and the European Court of Human Rights did not just differ but resulted in emotional turmoil.

In his article "The Limits of Acquiescence" the chairman of the Constitutional Court Konstantin Zorkin questioned the ECHR's right to disagree with the opinion of the Constitutional Court. Russian judges have a better knowledge of the situation in the country and therefore their interpretation of international agreements should have precedence. Moreover, he wrote, international treaties do not have priority over the Constitution: "In article 15 the Constitution sets the priority of an international treaty over national law but not over the Constitution itself".

The issue, of course, is not confined to constitutional matters. Commercial courts, including the Supreme Commercial Court, regularly give their interpretation of international treaties in such matters as taxation, recognition of arbitral awards and so on. What is more, Russian court practice in respect of entire branches of law, for example libel (defamation), does not correspond to the position of the ECHR.

In our opinion, Alexander Bastrykin's proposal should not be seen as the beginning of a legal reform, which is unnecessary but as a political declaration. Apparently, the intention is to indicate the direction in which Russia might move if the confrontation between Russia and the West continues to build up.