Why Legal ‘Innovation’ Might be Bad News for Rights in Russia

Yesterday, Russian President Vladimir Putin announced plans for constitutional reform that, among other things, seem to clear a path for him to remain in power – albeit not as president – after his term expires in 2024.

But the reforms have implications beyond Putin’s political future. Some, like me, are pondering the impact on the rights of millions of Russians if Putin’s call “to directly guarantee the priority of the Russian Constitution in our legal framework” becomes law.

This is the third time in four years that Russia’s authorities have pushed for the primacy of Russian law over international law. In July 2015, Russia’s Constitutional Court ruled that judgments of the European Court of Human Rights cannot be implemented if they contradict Russia’s constitution.

Five months later, parliament adopted a law obligating the Constitutional Court to review rulings of any international human rights body and to declare them “non-executable” if the court deems they contradict the constitution. 

Putin’s proposal goes one step further, by enshrining in the constitution that international law, treaties, and decisions of international bodies are valid only if they “do not restrict rights and freedoms” or contradict the constitution.

Unlike the 2015 law, Putin’s proposal doesn’t indicate which institution would get to decide whether an international treaty is inconsistent with the constitution. And it’s also anyone’s guess how “rights and freedoms” in this context will interpreted.

But it’s hard to be optimistic. The dozens of laws adopted on “rights and freedoms” since the start of Putin’s third term in 2012 have severely eroded freedoms of expression, association, and assembly. Russia’s rights record has deteriorated even while international law in theory at least has had legal primacy. It’s not hard to image how damaging Putin’s proposal could be if the government felt it wasn’t at all legally bound by international law.

The damage could go beyond Russia’s borders, as other governments in the region might want to copy efforts to pretend international legal norms don’t apply.

Russia is a party to the Vienna Convention on the Law of Treaties, which prohibits governments from invoking domestic law to justify failure to implement treaty obligations. The European Commission on Democracy through Law (known as the Venice Commission), an advisory body of the Council of Europe, opining on the 2015 law, stated that if Russia declares international legal decisions conflict with the constitution, the authorities would still have to find another way to implement the decision.