To establish foundations for state rule of law in Russia the legal system must consistently implement and incorporate the constitutional provision on both the generally recognized principles and norms of international law (IL) and the international treaties of the Russian Federation (RF). The 1993 RF Constitution enshrined this provision for the first time in the history of the country’s constitutional development. It is important to emphasize that this is not an ordinary constitutional norm but the norm of the highest order – the general legal principle (for Russian law) and one of the foundations of the constitutional order of the country.
Prior to the 1993 RF Constitution, some branches of national law contained various rules on the application of international treaty norms in the domestic sphere. There was no common legal conception or approach.
Doctrinal examination of the role of IL in the domestic sphere was for a long time limited to general questions regarding the relationship between IL and internal law, and was often narrowed to the theoretical debate on whether or not IL application within the states and on the ‘objective borders’ of international and domestic law was even possible. Theoretical ‘constructions’ were not based on practice nor inspired by it, and in the end did little to help real practice and even overshadowed the reality of the issue. Theory and practice have evolved in parallel, without influencing each other.
With the adoption of the 1993 RF Constitution, researchers have obtained more specific and applied direction. In many ways, the doctrinal approaches and evaluations have changed, and theoretical developments and recommendations have been implemented, primarily in judicial practice.
During more than twenty-five years of the Constitution’s existence, resorting to IL norms has become commonplace in the activities of law-making and law enforcement bodies and institutions, across the subjects of domestic law.
Previously, references to the use of IL norms can be seen mainly in court decisions in a fairly narrow category of cases. Now state authorities and local self-government, enterprises and firms, legal and social entities, lawyers, government officials, and citizens increasingly refer to these norms.
However, a study of how practice has developed gives reason to believe that including the principle in the Constitution is not enough to ensure its implementation. The main task is to create the necessary legal, institutional and even psychological conditions in order to ‘tune’ the legal system of the country to the coexistence, concerted action and implementation of international and Russian law.
This book is an attempt to contribute to such doctrinal research. It is a continuation and development of monographs published in 1998 and 20111 that present the author’s vision of the theoretical, legal and organizational (institutional) aspects of the entire issue in question and an analysis of the relevant judicial practice in the period since the adoption of the 1993 Constitution. Both of these books have been cited and referenced continuously since their publication. In the first, the topic was elaborated for the first time as a holistic issue consisting of a series of interrelated and coherent aspects (questions). The second book developed this further, having presented new trends in doctrine, legislation and practice. In 2013 it was awarded the F.F. Martens Prize of the Russian Academy of Sciences.
The study was carried out on the basis of extensive theoretical sources and normative materials, the practice of law enforcement bodies and especially courts of different kinds and levels for many years since 1993. Some of the examples of court decisions relate to the period of the former Soviet Union (ussr) which is important for comparison between previous and current practice.
Along with the doctrine, rule-making and law enforcement activities reveal their own understanding of the role of international norms in the domestic legal system and their interaction with the laws, providing a wealth of materials for evaluations, theoretical analysis, synthesis and recommendations. In this sense, the practice is invaluable in the development of the constitutional principle about the international component of the country’s legal system. Sometimes the practice finds answers to questions which the doctrine only raises and cannot solve.
Over the years, interest in the interaction between international and national law and the implementation of IL in the Russian legal system remains alive and is even expanding. Many articles, monographs, conference proceedings, practical manuals, scientific-and-practical commentaries to the legislation
The issue is considered central to ensuring the rule of law. In a report from the UN Secretary-General, “Delivering justice: programme of actions to strengthen the rule of law at the national and international levels”, at the sixty-sixth UN General Assembly session, one of the stated tasks was providing assistance for implementing the Member states’ international obligations (point 12(d)).2 ‘The rule of law’ has become a regular point of the UN General Assembly agenda through the prism of interaction between IL and domestic law.
My own interest in the domestic implementation of IL remains steady. The practice of courts and other bodies connected with the use and application of IL has been constantly and consistently monitored and collected. Many relevant documents have been accumulated, which give a rich opportunity for analysis, evaluation, generalizations and conclusions. New experiences, information and ideas came from being invited to participate in a number of international book projects and from being a coordinator of the Russian team for the multinational project of the Amsterdam and Oxford universities, ‘International Law in Domestic Courts’, a project that has lasted for more than ten years.
The end result is this book which continues to study the issue by incorporating developments from over the years in theoretical research, legal and institutional regulation, law enforcement, and in particular, judicial practice.
There is one more consideration – an intention to make a theoretical assessment of the attitude and approaches of the Russian Federation towards the implementation of international obligations in the domestic jurisdiction available for scholars and researchers in other countries. The ‘attitude’ does not refer to official and political statements (of deputies – members of the parliament, public servants, parties, etc.) but to the current legislation, legal and institutional regulations, doctrine and – most importantly – court practice. Of course, these approaches cannot be the same in different periods and they really do change, being influenced by internal and global policy. The last paragraphs are the most illustrative in this sense. ‘The rule of law’ is still subordinate to ‘the rule of politics’, both at the domestic and global level.
Such an ‘inside look’ is much less achievable from abroad but, at the same time, might be of interest for foreign researchers. At that, the constitutional provisions regarding interaction between domestic and international law in some countries (Germany, the Netherlands, France, Estonia, Finland, etc.) are quite similar to those in Russia.