On the anniversary of the annexation of Crimea and Sevastopol by Russia—an event that was strongly condemned by the international community—Professor Elena Lukyanova of the National Research University of the Higher School of Economics analyzes and finds numerous problems in the decisions by the Constitutional Court of the Russian Federation concerning the legislation that applies when a country makes part of a foreign state part of its own territory.
According to RBC daily, the annexation of Crimea has already cost Russia 124.7 bn rubles (about $2 bn). Photo: Reuters
Commenting on Russian president Vladimir Putin’s statements about Ukraine, U.S. president Barack Obama said that “President Putin seems to have a different set of lawyers making a different set of interpretations.” Obama put it very nicely. German chancellor Angela Merkel was more blunt. Speaking before the members of the Bundestag, she said: “During the crisis in Ukraine Russia acted according to the law of the jungle that was relevant to the nineteenth and twentieth centuries.” What can we conclude about these comments? Are they the machinations of adversaries? Attacks by geopolitical rivals aspiring to dominate the world? Up until now, the logic of international cooperation, although not without its problems, has not confronted such breakdowns in agreement. Is the issue really a legal one? Let’s try to get things straight.
Yevgeny Semenyako, president of the Russian Federal Chamber of Lawyers, has stated that “while in Europe each country’s authorities comply with the decisions by the governing bodies of the European Union, its standards and principles, in Russia the Constitutional Court is the last resort to uphold the Constitution.” Professor Nikolai Bondar, a Constitutional Court judge, is convinced that the Constitutional Court is one of the pillars of the rule of law doctrine in Russia and that it is the decisions of this Court that provide the basis for understanding this doctrine and ensuring the right balance between power, liberty, and property rights. Is Bondar correct? To answer this question it is sufficient to analyze the actions of the Constitutional Court in the recent situation that provoked such a strong reaction from the international community.
I am referring, of course, to the annexation of Crimea by Russia, which has become a classic example of violation of the rule of law by misinterpreting meanings and manipulating procedures. While performing one of the key procedures related to incorporation of part of a foreign state—that is, a constitutional review of the Treaty of Accession of the Republic of Crimea and the City of Sevastopol to the Russian Federation—the Constitutional Court violated its own procedures at least eight times and misinterpreted the provisions of the law.
The first violation: The Constitutional Court had no right to review the treaty. The law provides for a review of an international treaty only when such a treaty is subject to ratification and “the claimant believes that it cannot be enacted because it is unconstitutional.” But there was no uncertainty regarding the constitutionality of the treaty. The president, who applied to the Constitutional Court, did not consider the treaty unconstitutional. Therefore, the request was not valid, and the Constitutional Court should not have taken it into consideration.
The second violation: Failure to comply with the mandatory review procedure. While reviewing the treaty, the Constitutional Court failed to comply with a number of mandatory provisions of the law. This failure was confirmed by the Court itself when it stated that it was “under the obligation to consider the merits of the case outside of the procedures for the preliminary examination of the submission by a judge of the Constitutional Court and holding hearings, taking into account the specifics of this case.”
The third violation: Mandatory scope of review of the treaty. The Constitutional Court thus excused itself from checking the provisions of the treaty for compliance with the fundamental pillars of the Russian constitutional system. It is stated in the text of the treaty that the Russian Federation can enter into a treaty “in accordance with generally recognized principles and norms of international law, as well as recognizing a close relationship with other basic principles of international law as embodied, in particular, in the United Nations Charter and the Helsinki Final Act of the Conference on Security and Cooperation in Europe, and the principle of respect for and observance of human rights and freedoms.” Was the Court under the obligation to verify whether the treaty was in accordance with these principles and norms? It certainly was. But it did not do so. Consequently, the treaty was not examined for accordance with parts 2 and 4 of Article 15 of the Constitution, which state that “generally recognized principles and norms of international law and international treaties of the Russian Federation are integral parts of its legal system.”
Consequently, if a treaty that has not entered into force contravenes other international obligations previously assumed by Russia and not denounced at the time of review, a review of such a treaty for compliance with these obligations is mandatory. In its ruling, the Court openly admits that “since the Constitutional Court rules only on issues of law, it does not assess the political expediency of an international treaty.” In this way, elegantly, and by deliberate substitution of terms, the Court was able to bypass а complex situation.
The fourth violation: The Constitutional Court excused itself from reviewing the treaty in its final form. The Court deliberately excluded from its review the “analysis of the documents to which such treaty refers to as its foundation.” It is clear that in this situation such an approach was the only way out for the Court, because if these documents were examined, it’s not likely that the Court would have been able to deem the treaty constitutional.
The annexation of Crimea by Russia has become a classic example of violation of the rule of law by misinterpreting meanings and manipulating procedures.
The fifth violation: The Constitutional Court excused itself from reviewing the treaty’s signing procedure. The Court only examined the powers of the Russian side, which were obvious anyway, ruling that the treaty is constitutional because it was “signed by the President of the Russian Federation, who has the authority to determine the main directions of domestic and foreign policies.” The treaty was signed on behalf of Crimea by Sergey Aksenov, the head of the Crimean government; Vladimir Konstantinov, the Speaker of the Crimean parliament; and Alexey Chaly, the mayor of the city of Sevastopol and a Russian citizen. However, Chaly was elected mayor by residents of Sevastopol at a rally. Questions also surround the election of Sergey Aksenov as head of the Crimean government on February 27. This election occurred in the building of the Supreme Council of Crimea during a time when it had been taken over by a unit of unidentified armed men, with neither video recording nor reporters admitted. The question is, If the powers of two of the three Crimean signatories were so uncertain, could the Constitutional Court rule that the procedure for signing the treaty was constitutional?
The sixth violation: The Constitutional Court found that the provisional application of the treaty from the date of its signing was constitutional, even though Article 65, part 2, of the Russian Constitution states that in this particular case a review of a treaty must be guided by a special constitutional law. That particular hard-and-fast law applies precisely to this kind of international treaty on incorporation of a foreign country as a subject of the Russian Federation. It expressly states that “an international treaty cannot be enacted and applied, that is, it cannot be ratified, approved and cannot otherwise enter into force for the Russian Federation, if the Constitutional Court found it unconstitutional.”
That is, pending a Court ruling, such a treaty cannot be held to legally apply. The Court was well aware of that fact—so well that it did not even use its favorite argument in politically sensitive situations that it considers only questions of law. The Court expressly stated: “The fact that the Republic of Crimea is considered part of the Russian Federation from the date of signing of the Treaty is the result of a fundamental political expression.”
The seventh violation: The Constitutional Court ruled contrary to its own legal stance. Back in 1995, when reviewing the constitutionality of the decrees by President Yeltsin on the use of armed forces in Chechnya, the Constitutional Court stated that the integrity of the state is “one of the foundations of the constitutional system of the Russian Federation,” and that “the Constitution of the Russian Federation does not provide for the possibility of a unilateral decision on changing the status of a subject of the Russian Federation and its secession from the Russian Federation.” By virtue of the principles of integrity and consistency, Russia was thus under the obligation to respect Ukraine’s territorial integrity.
The eighth violation: The issue of Sevastopol. One of the most important questions of the Crimean crisis is: How did the city of Sevastopol end up being part of the Treaty of Accession of the Republic of Crimea, and what are the legal grounds for its inclusion? If the Autonomous Republic of Crimea had at least some features of a state that enabled it to claim self-determination, declare independence, and be recognized as an independent foreign country, the city of Sevastopol was neither part of the Crimean region at the time of the break-up of the USSR nor part of the Autonomous Republic of Crimea at the time of the Crimean referendum. Thus, it could not be made part of Russia by the same rules as governed the incorporation of the Republic of Crimea. In such cases, the law provides for a completely different procedure: “The incorporation of part of a foreign state as a new subject of the Russian Federation shall be based on a mutual agreement between the Russian Federation and the foreign state in accordance with an international (intergovernmental) treaty signed by the Russian Federation and the foreign state.”
In order to determine the constitutionality of the treaty, the Constitutional Court had to refer to this provision. But it did not. If it had, would history have followed a different path? When our domestic laws are violated only in relation to ourselves, it’s bad enough. But in this situation, a violation of domestic law inflicted harm on other peoples and countries—and it was sanctioned by one of the highest courts in Russia.
In his article “Civilization of Law,” Valery Zorkin, the Chief Justice of the Russian Constitutional Court, says: “The majority of mankind have agreed as follows. To hold fair elections. To accept the one who enjoys the trust of the majority as the leader. To limit this leader by the boundaries of the law. And to live on until the next election. To humanity, tired after the two world wars, frightened by the prospect of a third world war, and desiring basic peace and the joy of quiet, private civilian life, it seemed that stability could be achieved on the basis of such a simple social contract. So in the end—after much sacrifice, numerous bloody trials and horrible mistakes—a civilization of law was built.”
Russia also tried to follow this path toward law. But almost immediately two barriers appeared that were formalized in the law and resulted in derailment: ostensibly fair elections and the inability of the people to impose legal constraints on the leader. And so, because the law is a balanced, multidimensional system, the whole project failed. There are no little things in the law that can safely be ignored or sacrificed without jeopardizing the existence of the system as a whole.
The only thing that could be added is that in her assessment of Russia’s actions, Merkel didn’t quite get the dates right. If rulers are not bound by their own laws, this does not reflect the “law of the jungle” of the “nineteenth and twentieth centuries.” Such systems appear as far back as the fourth century BC in the Chinese book “Shāng jūn shū” ("The Book of Lord Shan“)—a fact of which Professor Zorkin, being chairman of the Constitutional Court and a specialist on the history of political and legal doctrine, is certainly well aware. “If the law ceases to exist, the world finds itself at the edge of the abyss,” he has written. Largely thanks to the Court he presides over, we are already there. The inability to assess, on the basis of the law, the spirit of civilization that is built on this law is barbarity. Barbarity, though, is curable—not overnight, but it can be cured, quite simply, by education and culture.
