National Interest and International Law

26 june 2015

What Is Behind the Polemics over Lawful Sovereignty

Alexander Filippov - Doctor of Social Science, is Full Professor with National Research University–Higher School of Economics, Head of the Center of Fundamental Social Science of the Poletayev Institute of Humanitarian Historical and Theoretical Studies.

Resume: References to international law are an important part of Russia’s official rhetoric. While criticizing other countries for violating international law, Russia’s leaders declare that Russia respects international law, protects it, and upholds its principles. However, a closer look at statements by top leaders reveal some changes not so much in their content as in their tone.

References to international law are an important part of Russia’s official rhetoric. While criticizing other countries for violating international law, Russia’s leaders declare that Russia respects international law, protects it, and upholds its principles. The wording used to describe violations and ways to improve and safeguard international law is repeated every year, and may actually seem familiar. However, a closer look at statements by top leaders reveal some changes not so much in their content as in their tone.   

For example, speaking at the international conference “Peace, Security and International Law: A Look into the Future” in 2003, Vladimir Putin said that the fundamental principles of international law had been “literally gathered piece by piece,” but the existing legal system had recently manifested numerous flaws and inadequacies. A decade later, in 2013, Foreign Minister Sergei Lavrov stated Russia’s position as follows: “We want to lead the way in upholding international law and the principles set forth in the UN Charter.” A year after that, Putin spoke about a large-scale crisis in international law and of how weak its mechanisms were. Addressing the Valdai International Discussion Club audience, he said: “We have entered a period of differing interpretations and deliberate silences in world politics. International law has been forced to retreat over and over by the onslaught of legal nihilism. Objectivity and justice have been sacrificed on the altar of political expediency. Arbitrary interpretations and biased assessments have replaced legal norms.”

Finally, at a meeting with members of the Federal Assembly’s Council of Legislators in April 2015, the president said that “the world will never become monocentric, and international law will not be a servant of just one country which speaks and dreams with maniacal stubbornness of its alleged exclusiveness.”

Naturally, statements and assessments must not be lifted out of context. But it is all the more noteworthy that as far back as during his first presidential term, Putin voiced concerns about the adequacy of international law, while repeatedly referring to it ever since. In fact, international law was thrown into doubt on several occasions in 2014 not as a principle, but as reality. According to Russia’s leadership, the country’s commitment to the principles of law is in contrast with the legal nihilism of its opponents. Apparently, this is the key to interpreting the changes in the tone of statements: Russia is not pleased with the fact that its understanding of the law is not borne out by real life, and that the law is often violated and can even serve one country. It would be safe to assume with a certain degree of probability that “one country” means the United States, but Russia has so far not succeeded in taking the lead in defending international law.  

This has been quite manifest in public discussions, where the panelists are less bound by formal obligations than government officials, and in parliamentary debates. Experts had repeatedly pointed out that international law was ineffective, was breached, and was in fact the law of the strong. In fact, those debates became particularly fierce in 2014 with the outbreak of the conflict in Ukraine and the incorporation of Crimea.   

This year, too, has seen growing disappointment with international law. Article 15.4 of the Russian Constitution, which is generally believed to give primacy to international law, has lately become a stumbling block. This article is in Section One (“The Fundamentals of the Constitutional System of the Russian Federation”) and, according to Article 16, no other article in the Constitution may be at variance with it. Any amendments may be made (as stated in Article 135) only by a Constitutional Assembly convened by a decision supported by three-fifths of the total number of deputies in both houses of the Federal Assembly. Should it be convened and, if so, then for what?

Debate over Priorities

Although there is no official dispute between high-ranking government officials and influential lawmakers, some of their remarks that sometimes get into the press can hardly be described as anything else than polemics. The head of the Russian Investigative Committee, Alexander Bastrykin, has repeatedly called for revising the Constitution to delete provisions that proclaim the supremacy of international law. In an interview with Rossiiskaya Gazeta on April 27, 2015, he said that “provisions according to which international law is an inalienable part of the legal system of the Russian Federation, and should give supremacy to national legislation” should be removed from the Constitution. Bastrykin said such radical constitutional changes would require the adoption of a federal law.

Several months ago, the chairman of the Federation Council’s Committee on Constitutional Legislation, Andrei Klishas, commented on both the Constitution and the amendments proposed by Bastrykin. In Klishas’ opinion, “there is no document giving international law supremacy over national law.” “For any international agreement to become effective for Russia, it has to go through the same procedure as all national laws,” and since “the Russian Federation is a sovereign state, only those rules of international law have priority in our national legislation that are its inalienable part, just as the Constitution has priority over federal laws,” he said.

Finally, in May 2015, the Russian Interior Ministry was quoted by Vedomosti as saying that “Russia has a right to denounce international agreements without amending the Constitution if it is displeased with these agreements.” At the same time, the newspaper went on to state that Justice Minister Alexander Konovalov said that his ministry was “not considering giving up the supremacy of international law.”   

The differences are substantial, but they are not strategic. Amending the Constitution, especially its Section One, is a serious process, and the absence of a relevant federal law means that there has so far been no great need to convene the Constitutional Assembly as all issues could be solved without it. The Constitutional Assembly could actually adopt a new constitution, not just amend the existing one, but there is no need for that now. The issue in dispute – if we can call it a dispute – is not whether we should reject the supremacy of international law, but whether we should take so many difficult and decisive steps to do that. One point of view is that there is no need to do that because current issues can be solved using other instruments. The opposite position is that this cannot be delayed any longer because Section One of the Constitution does not allow Russia to assert its sovereignty.   

Let us quote the Constitution: “The universally recognized norms of international law and international treaties and agreements of the Russian Federation shall be an integral part of its legal system. If an international treaty or agreement of the Russian Federation sets out other rules than those envisaged by law, the rules of the international agreement shall be applied.” The Constitution does not specify which principles and norms of international law are an integral part of the Russian legal system, but it expressly states the importance of the country’s international agreements. Since Russian laws must conform to the Constitution, the root cause of the collision presumed in the second sentence (when a law contains rules different from those set forth in an international agreement) is not quite clear. When a law is passed, it must be examined for compliance with international agreements, or otherwise withdrawn or corrected. If Russia signs an international agreement that runs counter to its national legislation effective at the time, this only means that it also assumes an obligation to amend its laws accordingly. The vague wording of Article 15.4 allows one to assume that international law may be directly applicable. But this is not the kind of law that has been created by someone else. These are agreements our country enters into of its own free will and voluntarily agrees to give supremacy to external obligations until its national legislation is brought in line with them.

This does not mean that there is no problem. There is a problem and there is a connection between certain disappointment with international law, expressed by top officials, and discussions about constitutional amendments and the importance of Russia’s international agreements. But the issue being discussed is not exactly the same international law, though. There are regulations concerning interstate relations, and there are regulations concerning the internal affairs of a state whereby it agrees to strongly respect international standards and commitments. Naturally, there is a connection between the two. When the international community decides whether a state’s actions are its internal affair or not, it explains outside interference by the fact that the internal life of a country in the modern world is not entirely internal, and if a country’s rules or actions within its national borders violate the norms and standards of law, external coercion to ensure compliance with them can actually go too far. This is what the Russian Foreign Ministry means when it says that Russia can simply secede from international agreements and divest itself of obligations. If there are no obligations, the Justice Ministry says, they cannot be violated; therefore, there is no need to reject the supremacy of international law or revise the Constitution, and the restrictions imposed by international obligations will no longer be a problem.   

Then what is the purpose of the position Bastrykin defends so stoically? Apparently, it is not in giving more clarity to the second sentence in Article 15.4, but in removing the first sentence, which concerns “universally recognized norms of international law.” The question is what should be considered universally recognized and which principles and norms of international law are integrated into Russia’s legal system as universally recognized and which are not. This can be the subject of public discussion both inside the country and internationally. However, the very recognition of the fact that only specific issues rather than any connection between national legislation and international principles and norms can be discussed is important by itself. This connection is stated in the Constitution as part of the basic decision that established the fundamentals of the constitutional system. Any change can only be made through a decision of the same constitutive force and would be impossible without the Constitutional Assembly. So, it is not quite clear at this point whether emphasis will be placed on the second sentence of Article 15.4 and Russia will increase the share of sovereign decisions by revising agreements and denouncing treaties, or the focus will be shifted to the first sentence of the same article and the recognition of the norms and principles of international law will be abandoned as such (in the worst-case scenario) or placed under the control of the Russian Constitutional Court.

Should Domestic Law refer to international law?

However, a closer look at the Constitution reveals yet another important aspect of the issue which, as far as we can judge from publications, has not been covered as broadly as Article 15.4. Apart from the Constitution’s Chapter 1, two more chapters fall under the Constitutional Assembly’s jurisdiction and cannot be amended by the Federal Assembly, including Chapter 2 (“The Rights and Freedoms of Man and the Citizen”). Article 17.1 reads, in particular: “In the Russian Federation recognition and guarantees shall be provided for the rights and freedoms of man and the citizen according to universally recognized principles and norms of international law and according to the present Constitution.” Universally recognized principles and norms of international law are specified as the rights of man and the citizen, and the latter are defined as universally recognized principles and norms of international law. This does not mean that by so doing Russia falls into the trap of international agreements and treaties. The rights of man and the citizen legitimize sovereign decisions. This is, in fact, a vital issue and the answer to it will be critical to further development.  

It requires complete clarity. It should not be a problem to state the same rights and freedoms in the Constitution without any reference to international rules and norms, as a free decision of the people endorsed by a resolution of the Constitutional Assembly. What is important in this case is not so much the presence of these norms or even their article-by-article declaration, as the very reference to international standards. If there were no such reference, its introduction could be discussed. Likewise, its removal, if it ever comes to that, cannot but be subject to discussion, too.

It would also be interesting to see how the correlation between national and international law is interpreted in other contemporary constitutions. For example, Article 25 in Germany’s Basic Law expressly states the primacy of international law: its rules are part of the “federal law” and apply to all citizens of Germany directly. Article 1 says that human dignity is inviolable. The German people acknowledge inviolable and inalienable human rights without any reference to international principles.

In France, commitment to international law was declared in the Preamble to the Constitution of 1946, but no mention of it can be found in the Constitution of 1958, which, however, proclaims attachment to the Rights of Man and of the Citizen as defined by the Declaration of 1789, confirmed and complemented by the Preamble to the Constitution of 1946. Article 55 says that international treaties duly ratified or approved take precedence over national laws. The notion of dignity and human rights is fundamental, but it is not in any way linked to treaties or internationally recognized rules and norms. This can easily be explained since such reference would hardly be needed by the people who regard man, his rights, and his dignity not as someone’s invention, but as their own tradition that gave rise to the universal understanding of law. Basic rights are declared similarly in the U.S. Constitution, albeit in amendments rather than its main text.  

Something needs to be clarified here. It has been widely speculated in public debates that unlike the constitutions of many other countries, the U.S. Constitution contains no reference to international law. Strictly speaking, that is true. It has no formulas similar to those found in the Russian or German constitutions. But there is something else there. Vyacheslav Gavrilov, Professor at the Far Eastern University, writes in the Journal of Russian Law No. 2, 2003: “In accordance with Article VI of the U.S. Constitution, international treaties are not only the ‘supreme Law of the Land,’ but they also make the authorities in every state ‘bound thereby.’ If any discrepancy arises between a self-executing treaty and the law of any state, the former prevails.”   

It would probably be redundant to repeat these well-known facts, but we are not talking about any modern country simply refusing to abide by the obligations it has assumed under international treaties. Recognition of the rights of man and the citizen all by itself is less important than the way it is declared in the constitution. There must be a very good reason for declaring treaties a hindrance and the norms and principles of international law as wrong and harmful for a country. This becomes clear if we look at U.S. official rhetoric pertaining to international law. It is generally known that this rhetoric was not only intensified, but was actually renewed during Barack Obama’s first presidential term. Some serious changes have been made in U.S. governmental documents known as the National Security Strategy.    

During George W. Bush’s presidency, the notion of international law was completely absent from them. However, the 2010 Strategy mentions it several times with a view to strengthening international law and enhancing its effectiveness and legitimacy. There is much literary and other evidence indicating that the issue of international law was one of the key topics during Obama’s first presidential term. The 2015 Strategy refers to international law much less, though, and generally reiterates respect and commitment to it. Americans say that these are not just declarations because they are followed up by closer cooperation with international institutions. At any rate, it is hard to say that the United States takes a completely nihilistic approach to international law. The country’s Realpolitik can be assessed differently, but its rhetoric and legal and political formulas reflecting its declared goals cannot be ignored.

Law as the language of national interest

Let me say once again that we mean public statements, but this is perhaps the most complex and controversial matter. The prevailing tone in discussions in Russia, including those on the problematic status of international law, is not so much nihilistic as revelatory. By comparing rhetoric with the actual actions of states, we can come to a conclusion that words are no more than just a way to hide real intentions, which, as a rule, are selfish. So, if we somewhat straighten out the arguments used every so often, we can say that the rhetoric of law “should be replaced with a clear declaration of interests.” In fact, international treaties and international law are losing relevance in our internal life due to mainly political rather than ideological reasons (at least, ideology is not the most significant factor). It is not that our ideology negates international norms, as this ideology is still in its formative period, but it is that these norms seem to get in the way of politics.     

A greater role of sovereign decisions, rejection of treaties, and demonstrative – otherwise it would make no sense – disparagement of the role of internationally recognized norms and rules for national legislation should make the state’s activities more effective. This means that its interest cannot be expressed in the legal form available now. Clearly, the interest of the state, or “state reason,” to use the terminology of several centuries ago, is placed above any law in this construction. Therefore, law means legislation written in the interests of the state, and international law can benefit the state only if it has concluded advantageous treaties. There is no idea of law other than the treaties of self-seeking states, and the recognition of such an idea only means that the state allows someone else, not itself, to exercise its right to legitimate violence on its own territory, establish laws, guarantee their implementation, and thus be the source of essentials for its citizens, whether security or food.

This framework of state was used in history before, and there is no reason to think that it cannot be used again with a varying degree of success, of course, and adjustment for present-day realities. It means effective police order and a certain degree of people’s solidarity needed for rational and effective actions both inside and outside the country. The strong side of this construction is rationalized actions of the state. Calculation based on the correctly understood interest and leaving all other considerations aside for the sake of some greater strategy is what state reason actually is about.

However, there may be some hidden pitfalls that are not so difficult to notice. There is no need to say that international obligations are a complex system. In fact, no one is going to challenge them in their entirety. It is up to experts to decide whether it is possible to remove encumbering obligations and leave those that are beneficial. At any rate, this is substantial and difficult work, the result of which is not yet quite clear. But what would it mean for a country to reposition itself by rejecting the rhetoric of law in general and of human rights in particular? A purely rhetorical change may produce a result that will not be rhetorical at all. Law is an important resource of international communication, a language for stating national interest. Interest spoken about just as interest and presented as the reason of egoism may never be realized.

All this is not about seeing and showing selfish interests hidden in the alien rhetoric of law. It is just that there is nothing left outside this rhetoric, except for a momentary balance of power that can be changed at any moment. Moreover, it is not binding and cannot be our only hope. There is no way to communicate with opponents and potential allies if there is no common language. The question is: can the language of interest be a reliable means of interstate communication? The answer would be affirmative in a momentary situation that can bring immediate benefits. Otherwise, there must be language representing rights and law as universal rather than as ad hoc notions defined by each party individually. Lately Russia’s interest has not been represented in the language of law as universal or has been represented poorly. And a possible rejection of the language of law will reduce, not increase, the chance for success in the future.

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