Keywords

JEL Codes

1 Introduction

Sovereignty is one of the most important attributes of the state, legally inherent to its existence. At the same time, the definition of “sovereignty” is still very vague, which can often lead to its misinterpretation [3].Footnote 1 This problem is not at all theoretical, but quite a practical one as each state, based on its understanding of sovereignty, sets the limits for the acceptable intervention by various stakeholders in domestic and international relations [4].Footnote 2

We can see how states are making significant concessions as part of international integration, yielding to supranational authorities matters that have been traditionally seen as matters of purely national importance [3].Footnote 3

Russia, as a state under a significant political international pressure, should pay particular attention to defending its interests in the international arena and to protecting its fundamental national values [10].Footnote 4 The regulation proposed by the amendments to the Russian Constitution and assuming the primacy of Russian constitutional norms over international treaties are a natural step toward strengthening the Russian national legal system. This approach relies on the doctrine of national constitutional identity, which has been consistently promoted by the Constitutional Court of the Russian Federation and is widely used in developed legal systems. The above doctrine was first formulated in the Decision of the Constitutional Court of the Russian Federation of April 16, 2016 on a case that dealt with the enforceability of the judgment by the European Court of Human Rights in Anchugov and Gladkov v. Russia under the Russian Constitution.

2 Methodology

The empirical basis of this study is presented by the current regulatory legal regulation as the Russian Federation, as well as a number of European states, in particular, France, Germany, Spain, the Czech Republic, Portugal, and a number of others. The methodological basis of the work consists of such methods as the formal-logical method, the method of system analysis, and the structural–functional method.

3 Results

3.1 Primacy of Constitutional Norms Over International Law

The amendments to Article 79 do not call into question the place and role of international law in the national legal system. Part 4 of Article 15 of the Russian Constitution remains effective. It states that generally recognized principles and norms of international law and international treaties of the Russian Federation are an integral part of the Russian legal system; if an international treaty of the Russian Federation establishes rules other than those provided for by law, then the rules of the international treaty shall apply. But the same article stipulates that the Russian Constitution has the supreme legal force and direct effect and is applicable throughout the country. Laws and other legal acts adopted in the Russian Federation must not contradict the Russian Constitution. Similarly, international treaties of the Russian Federation may not contradict the Constitution. As the Constitutional Court of the Russian Federation has repeatedly pointed out, the norms of international law do not abolish the primacy of the Russian Constitution for the Russian legal system and are implemented subject to the recognition of its supreme legal force.

The amendments to Article 79 of the Constitution are part of the consistent integration of the principle of primacy of the national Constitution over international treaties in the Russian legal system, including in terms of their interpretation by intergovernmental bodies, accompanied by the creation of a monitoring mechanism to manage legal conflicts that might question the primacy of the Russian Constitution. It should be emphasized that the proposed amendment is applicable to decisions made by intergovernmental bodies under international treaties of the Russian Federation. Therefore, it is not about eliminating the contradictions between the provisions of international law and provisions of the Constitution. A mechanism is introduced to eliminate potential conflicts in the interpretation of international law provisions and the Russian Constitution because contradictions do not arise from the content of specific international legal documents, but from competing interpretations of their provisions in supranational and national legal systems.

Therefore, the primacy of constitutional norms over the norms of international law is in itself a constitutional mechanism that guarantees that the Constitution can be actually implemented, that the social consensus reflected in these provisions and the results achieved through harmonization of different constitutional values remain stable, and that state sovereignty becomes a reality [6, 11].Footnote 5

As noted by the Constitutional Court of the Russian Federation in its Opinion of March 16, 2020, this mechanism is designed not to support a refusal to implement international treaties and decisions of intergovernmental jurisdictional bodies based on such treaties, but to develop a constitutionally acceptable way for the Russian Federation to implement these decisions while steadily reinforcing the supreme legal force of the Russian Constitution and the Russian legal system, which incorporates unilateral and multilateral international treaties of Russia as its integral part, including those that provide for relevant powers of intergovernmental structures.

In describing the relevant constitutional amendments given the nature of current relations between the Constitutional Court of the Russian Federation and the ECHR, a number of authors rightly draw attention to the double standards in certain decisions of the ECHR, coupled with the lack of a pan-European consensus on certain issues, which can prevent from preserving constitutional pluralism by affecting the principle of national constitutional identity. In this connection, P.A. Vinogradova and A.N. Tulayev assume that the Constitutional Court of the Russian Federation is rightfully assigned the relevant authority intended to find a reasonable trade-off between the national and supranational regulation, manifested not only through implementing decisions of a supranational subsidiary judicial body, but also through checking its compliance with the constitutional foundations of the Russian Federation and the principles of legal regulation of civil and political rights and freedoms set forth in the Russian Constitution [5].

Other researchers who analyze the Russian constitutional reform of 2020 from the perspective of the relationship between national and supranational legal systems have found, and not unreasonably, that the constitutionalization of the relevant legal mechanism is due to the practice of the ECHR’s interpretation of the European Convention on Human Rights, guided by “abstract political morality of unclear origin”, rather than by the desire to understand in good faith the actual intentions of the parties when signing a relevant international treaty [9]. Russia has, therefore, firmly decided to avoid unilateral interventions and double standards, as well as the use of any restrictive measures in international relations [9].

At the same time, we cannot agree with the position of some researchers, who believe that establishing such provisions is unjustified and actually lead, in their opinion, to the refusal of the Russian Federation to comply with its international legal obligations. In particular, E. Teague is critical about this constitutional amendment assuming that it can be used as a legal basis for non-enforcement of ECHR judgments, without taking into account the trends of judicial activism of ECHR judges and the established international practice of national legal systems abandoning unconditional enforcement of decisions made by intergovernmental subsidiary judicial bodies, although he still quite reasonably notes that amending Article 15 of the Russian Constitution is impracticable due to objective reasons while the relevant constitutional amendments are driven by the existing practice of the Russian Constitutional Court [7].

Recognizing the supremacy of international treaties over national legislation is a common constitutional practice in most modern democracies. In this case, prior to assuming international obligations, they are assessed for their compliance with the constitution. A number of foreign jurisdictions impose restrictions on the application of international treaties in case they contradict constitutional provisions.

For example, Article 54 of the French Constitution provides that if the Constitutional Council, at the request of the President of the Republic, the Prime Minister, or the President of one of the Chambers, or 60 Deputies or 60 Senators, declares that an international obligation contains a provision contrary to the French Constitution, then the permission to ratify or approve that international obligation may only be granted after the Constitution is revised accordingly.

In its turn, Article 25 of the German Constitution provides that the generally recognized rules of international law are an integral part of federal law. They take primacy over national laws and directly give rise to rights and obligations for persons residing in the Federation. At the same time, the Constitution of the Federal Republic of Germany does not provide for the primacy of international law over the Constitution itself. A similar legal regulation is established by Article 94 of the Constitution of the Netherlands.

Article 93 of the Spanish Constitution establishes that organic law grants the right to conclude treaties providing for the right to participate in international organizations or institutions whose functions do not contradict the provisions of the Constitution.

At the same time, the practice of constitutional courts in a number of European states shows that in case of changes in the meaning of international obligations undertaken making such obligations contradictory to the provisions of the Constitution, it is permissible to abandon the application of relevant provisions in order to ensure compliance with the Constitution [8].Footnote 6

In France, for example, the Council of State, in its decision of October 30, 1998, clearly stated that “the primacy of international legal rules under Article 55 of the French Constitution does not apply within the national legal system to the constitutional legal rules”. This position has been confirmed in subsequent case law, in particular in the Fraisse case examined by another higher French court, the Court of Cassation, in 2000.

In 2004, the Federal Constitutional Court of Germany ruled in the case of Görgül, a Turkish citizen who, after the courts of the Federal Republic of Germany had refused to hand over his extramarital child to him, filed a complaint with the ECHR. The latter regarded the position of the German court as a violation of the relevant provisions of the ECHR on the right to family life. When considering the constitutionality of the ECHR decision, the Federal Constitutional Court of Germany found that in Germany the status of ECHR decisions is equal to the status of federal law. The provisions of international treaties may not contradict the provisions of the Federal Constitution, much less affect their validity.

Italy also followed a similar path as its Constitutional Court in a number of its decisions addressing the issue of whether an ECHR decision may have priority in the national legal system (for example, in the case of Scordino v. Italy decided by the ECHR in 2006), the Italian Constitutional Court recognized that any inconsistency between national law and the Convention, as interpreted by the ECHR, must be regarded as a violation of constitutional law and the Constitution.

There is no doubt that all these decisions unambiguously set out the supremacy of the constitutions of these countries over the provisions of international treaties. A similar position is stated in the ECHR’s cases Hirst v. United Kingdom, Chester v. Secretary of State for Justice and McGeoch v. The Lord President of the Council and another, Görgülü v Germany, and Maggio and Others v. Italy.

Amendments aimed to establish the primacy of the Russian Constitution over provisions of international treaties will allow Russia to more effectively comply with its international obligations, as they imply the need to take into account national constitutional particularities and the possibility to refuse to implement legal positions that are in conflict with the Russian Constitution.

3.2 Constitutionalizing the Principle of Inalienability of Territory

Amid the rapid universalization, expansion of the activity scope, and influence of supranational institutions around the world, their interference in the internal affairs of individual states, as well as the increasing international tensions, a key focus area in expanding the existing mechanisms to preserve and protect state sovereignty as part of the constitutional reform of 2020 consisted in constitutionalizing the principle of inalienability of territory of Russia. The amendment law has supplemented Article 67 of the Russian Constitution with Part 2.1, which provides that the Russian Federation ensures protection of its sovereignty and territorial integrity and also introduces a constitutional ban on actions (except for delimitation, demarcation, and re-demarcation of Russia’s state border with neighboring states) that aim to alienate parts of the Russian Federation, as well as on calls for such actions.

The territory is an inalienable attribute of a state, which has the right to dispose of it using its sovereignty. Territory may not be regarded as a state property, but provides the spatial basis for state sovereignty and is linked to all aspects of its organization and activities. It is characterized by the unity of geopolitical, economic, political, and legal space. Hence, one of the most important guarantees to ensure the state’s integrity is to ensure the inviolability of its national territory. That is why all matters related to the territory of the Russian Federation are governed by the Russian Federation.

The introduction of provisions on the protection of the nation’s territorial integrity in the Constitution contributes to maintaining the constitutional continuity, since the principle of inviolability of borders and territorial integrity of the state was first established by the Soviet Constitution of 1977 (Article 29). Adopting the principle of territorial integrity as a pillar of the constitutional system is also a common practice in other countries. Moreover, while the possibility of the territory being alienated is allowed, the actual procedure is in any case difficult to implement.

Territorial integrity implies the preservation of territorial unity, as well as the unacceptability of unilateral secession of any part of a nation, i.e. secession of its constituent territory. The desire of a state to create legal mechanisms aimed to prevent alienation of its territory cannot and should not be regarded as an iron curtain between the country and the rest of the world, and much less as a sign that the nation would breach its existing international legal obligations.

However, the amendments on territorial integrity are primarily intended to take into account the interests of people living in Russia and to mitigate the risk of their legal statuses being changed as a result of changes in the jurisdiction of the relevant territory. Thereby, the state demonstrates that under no circumstances, including international pressure, tensions, or the need to conclude an international treaty beneficial for the country, the Russian government will not abandon its citizens residing in the Russian territory. Russia must take into account the legitimate expectations of Russian citizens regarding the maintenance of stable ties with the state.

Russia must take all possible measures to confirm that the practices of transfer optation and forced change of citizenship due to a change in the jurisdiction of the territory where the relevant people resided are unacceptable.

In this connection, amendments to the Russian Constitution are designed to introduce the unacceptability not only of the alienation of national territory itself by making such a prohibition constitutional in nature, but also of the very calls for such actions. This structure of a constitutional provision would minimize the potential risks of decisions made by any political forces in power that are so painful for the entire society. It refers to any known means of territorial alienation: forcible seizure (in whole or in part) by a foreign state; voluntary transfer of part of the territory to a foreign state; forcible division of a state and the creation of other independent states in its territory contrary to its national interests, etc. This amendment creates a political and legal basis for the independent development of the nation enabling it to exercise its territorial supremacy.

In its Opinion of March 16, 2020, the Constitutional Court pointed out that the proposed introduction of a ban in Article 67 (Part 21) of the Russian Constitution not only on actions (except for delimitation, demarcation, and re-demarcation of Russia’s state border with neighboring states) that aim to alienate parts of the Russian Federation, but also on calls for such actions, while being a restriction of freedom of speech, is nevertheless in line with the constitutional goals of similar restrictions, which need to be evaluated for constitutional acceptability against not only the provisions of Article 29 (Part 2) of the Russian Constitution, but also against its Article 13 (Part 5), which prohibits the creation and operation of public associations whose goals and activities are aimed, inter alia, at violating the integrity of the Russian Federation. Regardless of these normative provisions, it is acceptable to impose such restrictions in line with Article 4 (part 3) of the Russian Constitution, under which the Russian Federation ensures the integrity and inviolability of its territory.

At the same time, the constitutional reform of 2020 was initially associated with the need to significantly transform the existing legal regulation, bringing it in line with the logic of constitutional amendments. One of the first changes in the current legislation in this connection was the clarification of the concept of extremist activity, taking into account the constitutionalization of the principle of inalienability of territory of Russia or a part of the country.

In particular, Federal Law No. 299-FZ dated July 31, 2020, amending Article 1 of the Federal Law On Combating Extremist Activities amended the second paragraph of Article 1 of Federal Law No. 114-FZ On Combating Extremist Activities dated July 25, 2002, pursuant to which the notion of extremist activities would also include violation of the territorial integrity of Russia (including alienation of part of its territory), except for delimitation, demarcation, or re-demarcation of the state border of the Russian Federation with neighboring countries. Therefore, the terminology of this law was brought in line with the Russian Constitution, which eliminated the uncertainty related to the interpretation of the principle of territorial integrity of Russia.

The provisions on the territorial integrity of the state also exist in foreign constitutional practices. In some jurisdictions, constitutions include provisions that directly derive from the inviolability of state borders, while in others, mechanisms for protecting the territorial integrity of the state are set up by the constitutional review authorities.

Article 2 of the Bulgarian Constitution provides that Bulgaria’s territorial integrity is inviolable.

According to Article 273 of the Portuguese Constitution, national defense aims to ensure national independence, territorial integrity, freedom, and security of the population against any external aggression or threat, while respecting the constitutional law, democratic procedures, and international treaties.

In accordance with Article 1 of the Czech Constitution, the primary duty of the state is to ensure the sovereignty and territorial integrity of the Czech Republic, to protect its democratic foundations, and to protect life, health, and property.

In accordance with the provisions of the Preamble to the Latvian Constitution, the Latvian people protect their sovereignty, national independence, territory, territorial integrity, and democracy in Latvia.

Some foreign constitutions formally allow for potential secession of a part of the territory, but the implementation of similar provisions in developed legal systems is significantly complicated. For example, the Constitution of the Federal Republic of Germany does not contain provisions on the admissibility or inadmissibility of secession, but the Federal Constitutional Court of Germany in its decision No. 2 BvR 349/16 dated December 16, 2016, determined that the lands within the Federal Republic of Germany cannot decide to secede from the state. According to the Federal Constitutional Court of the Federal Republic of Germany, this affects the constitutional procedure set by the German Constitution, which has been established by the people of the entire state, to which the sovereignty belongs.

A similar approach was adopted by the Spanish Constitutional Court, which, in its Ruling No. 42 dated March 25, 2014, despite the results of the referendum in Catalonia, pointed out that secession of the Catalan territory from Spain is inadmissible.

The commitment to the principle of the inadmissibility of alienation of the territory of the state was also expressed by the European Commission for Democracy through Law (Venice Commission) in its report A General Legal Reference Framework to Facilitate the Settlement of Ethno-Political Conflicts in Europe. Thus, the approach according to which the principle of territorial integrity is one of the fundamental principles of constitutional law and is associated with the inadmissibility of secession of any state territory was set up as the main pan-European position on this issue [1]. As noted by the Venice Commission, while a number of constitutions guarantee the right to self-determination, this concept excludes the right of secession. Relevant findings were also presented in the report Self-Determination and Secession in Constitutional Law, which noted that the right of secession is contrary to the constitutional principle of state integrity [2].

The proposed rule prohibiting alienation of territory of the Russian Federation is fully consistent with the right of peoples to self-determination. The right to self-determination through secession was originally seen as a mechanism of decolonization. Today, developed legal systems proceed from the assumption that every nation can freely exercise its right to self-determination within a state, for example, by establishing an autonomy. The only exceptions are cases where such self-determination is not possible due to discriminatory policies against a particular territorial community and threats to the lives and health of people.

Therefore, developed legal systems and best practices in constitutional law define the principle of territorial integrity as a key foundation of statehood.

3.3 Strengthening the Connection Between Public Servants and the State

Meanwhile, another important aspect of ensuring state sovereignty of the Russian Federation is to further strengthen the connection between citizens performing publicly important functions and the state. The activities of those performing the most important public functions for the state, according to the established consensus in Russian society, should be free from any external influence or connection with foreign states and carried out exclusively in the interests of the Russian Federation and its people.

The Constitution of the Russian Federation in this regard has been supplemented with provisions that introduce a ban for persons holding public service positions in the Russian Federation or a number of other positions related to public administration, to be nationals of a foreign state or have a status granting them the right to permanent residence in a foreign state, or open and hold accounts, keep money or other valuables with foreign banks located outside Russia. The introduction of similar additional requirements aims to strengthen the policy, consistently pursued by the Russian Federation, of limiting the foreign influence on the country’s public service. Reflecting the relevant norms in the Constitution will make it possible to emphasize the importance of ensuring the preservation of national sovereignty, the inadmissibility of any interference in its internal affairs, as well as the need to implement public functions exclusively in the interests of the Russian Federation and its citizens. Legal connections with a foreign state, including through citizenship of such foreign state or a residence permit or another document confirming the right to permanent residence of a Russian citizen in such foreign state, imply that the person may have commitments to two states at a time. This gives rise to a potential conflict situation if the interests of these states do not coincide and the person that vested with public powers will be forced to take these circumstances into account when making decisions, which is unacceptable, as such a situation is contradictory to the task of protecting the sovereign interests of Russia.

Similar provisions are already present in federal laws, but their introduction in the Constitution will create a solid legal basis for the inadmissibility of revising these restrictions introduced to protect the national interests from the potential influence of foreign states on persons exercising public powers, as well as to exclude potential conflicts of interest for public servants.

One way or another, having the nationality of another state shows the connection of a person with the relevant community and allows identifying the focus of the person’s vital interests. That is why the requirement for state and municipal employees not to have citizenship (nationality) of a foreign state serves as an additional guarantee that they will properly perform their public functions. As noted by the Constitutional Court of the Russian Federation, since a Russian citizen having the citizenship of a foreign state has political and legal connections simultaneously with the Russian Federation and with the respective foreign state, to which such citizen also has constitutional and other commitments under the laws of this foreign state, the meaning of Russian citizenship for such citizen as a political and legal expression of the value of his or her connection with the home state can be rightfully considered to be significantly reduced (Ruling No. 797-O–O of the Russian Constitutional Court dated December 4, 2007).

The Constitutional Court, confirming this position in its opinion of March 16, 2020, noted that the same is equally true of the ban on opening and holding accounts (deposits), keeping money and other valuables with foreign banks located outside Russia (the procedure for implementation of which should be established by federal law), since it also implies that the incumbent of the respective position has vital interests outside the Russian Federation, which makes him or her vulnerable to the influence of third parties.

Along with the above restrictions, the constitutional amendments introduce restrictions for certain officials such as the requirement to permanently reside in the Russian Federation, which ensures that they know the real situation and existing problems of the country and are interested in addressing them. In addition, for certain positions are also introduced age restrictions and requirements to have higher professional education, which are associated with the nature of the service and the level of responsibility and imply the need to have a certain life and work experience to make informed decisions.

A similar approach to the exercise of public powers is widespread in the practice of foreign countries in organizing and operating public service functions. As a rule, the requirements for candidates to state and municipal service positions are introduced through laws adopted by the parliament, but in some countries, the restrictions for candidates are set out directly in their constitutions.

Article 9 of the Constitution of Colombia establishes that “the Colombian Nationality shall be forfeited on receipt of a certificate of naturalization in a foreign country and in case of permanent residence abroad.”

According to Section 44 of the Australian Constitution, “any person who is under any acknowledgment of allegiance, obedience, or adherence to a foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or citizen of a foreign power” becomes incapable of being elected to public service positions.

In the U.S., the federal Constitution does not discuss the status of the highest state official as it falls within the jurisdiction of each particular state. For example, according to Article 5, Section 2 of the California Constitution, a U.S. national who has lived in the state for at least 5 years immediately prior to the election can be elected Governor of California. The Governor of the State of California may not hold any other public office. No governor may serve more than two terms.

It is proposed that the requirements to civil servants, along with the requirement to have no foreign nationality, residence permit, or other document confirming the right of permanent residence of a citizen of the Russian Federation in a foreign state, be expanded by the introduction of a ban on opening and holding accounts (deposits), keeping money and other valuables with foreign banks located outside Russia.

A ban on keeping and holding money abroad is a common practice applicable to a considerable number of persons holding public offices. For instance, Federal Law No. 79-FZ dated May 7, 2013, prohibits opening and holding accounts (deposits), keeping cash and other valuables with foreign banks located outside Russia, holding and/or using foreign financial instruments, in particular, for persons who hold public offices in the Russian Federation, public offices of constituent entities of the Russian Federation as well as a number of other public servants. Introducing such a prohibition in the current legislation is primarily aimed at ensuring Russia’s national security, increasing the effectiveness of the public administration system, and combating corruption.

Amid the international tensions, consistent implementation of sanctions against Russia, and attempts to exert pressure from a number of foreign states, it is necessary and reasonable to introduce the relevant requirements to the President of the Russian Federation, Deputies of the State Duma, Senators of the Russian Federation, senior officials of constituent entities of the Russian Federation, and other officials into the Constitution.

4 Conclusion

The constitutional reform of 2020, which is a logical outcome of more than twenty-five years of the development of Russian constitutionalism, has led to a significant upgrade of the existing constitutional and legal reality, taking into account the latest and most advanced legal practices and accumulated political and legal experience, affecting various aspects of the organization and operation of public service. Matters related to enhancing the independence and autonomy of the state have become, if not the key ones, a crucial focus area of constitutional reforms promoted by the amendments to the Constitution.

Russia has been consistently implementing a national policy to ensure the comprehensive protection of its sovereignty and national identity. Improvements to the existing mechanisms for maintaining national independence as provided for under the Constitution will be a key driver behind further progressive development of Russian statehood, as well as the implementation of an independent national policy impervious to attempts by foreign states to influence the adoption of certain decisions.