The Moscow Axis: Russia’s Newfound Insistence that the World Conform to Russian Law
By Major Michael Cohen, U.S. Army
The views represented are exclusively those of the author, and do not represent those of the US Government.
Introduction
In late June 2020, Russia held a national vote, presumably on whether or not to approve some amendments to the Russian Constitution. Russia had already printed copies of the revised constitution for public distribution in advance, so it appears that the result was never in question. Most international attention (and that of Russia’s opposition) focused on the controversial provision resetting Vladimir Putin’s presidential terms to allow for two more successive runs, but other provisions also warrant scrutiny. Several such amendments, for instance, concern the Russian Constitution, Russian Law, and the relationship between both of those and Russia’s international treaty commitments. On one hand, Article 15 (proclaiming the primacy of Russia’s treaty commitments over Russian Law) remains unchanged. On the other hand, that article has been undermined and contradicted by changes to other subsequent articles.
Are these conflicting provisions an accident or an oversight? Probably not. Instead, this is likely the internationalization of Russia’s already tried and true domestic practice of using vague and conflicting laws to evade responsibility and selectively target adversaries. To restate: Russia’s new constitutional provisions are in deliberate conflict with other existing provisions, allowing Russia flexibility in evading responsibilities and applying selective sanction. The effect that this might have on Russian agencies charged with implementing Russia’s international commitments could be chilling indeed.
Some Pertinent Background
Before we get into the constitutional weeds, it’s important for us to understand exactly where Russia stands in regard to international commitments it has solemnly undertaken. Russia, as we know it today, unilaterally proclaimed itself to the be the successor to the Union of Soviet Socialist Republics (USSR) in a letter from President Boris Yeltsin to the United Nations Secretary General on December 24, 1991. In that letter, Mr. Yeltsin announced that the rights and responsibilities of the USSR at the UN were to be assumed by the Russian Federation, as the USSR had been declared dead by the Belavezha Accords (which had also created the Commonwealth of Independent States in its place).
Curiously enough, Russia’s ratification of the Belavezha Accords (the official copy of which, located in Minsk, apparently disappeared entirely in 2013) on December 12, 1991 more resembled a declaration of independence from the USSR. Only three of fourteen republics had initially signed the accords, after all. The USSR was certainly not dead at the time, at least according to Soviet President Mikhail Gorbachev. Russia had however, along with Belarus and Ukraine as initial signatories, accepted the devolved international obligations of the USSR on the three states as binding. The President of the USSR only formally resigned his position the day following Yeltsin’s letter on December 25, 1991. The Council of Republics of the USSR in turn decided to formally end the existence of the USSR the next day on December 26, 1991.
By any reckoning, Russia’s request to the UN as articulated by Mr. Yeltsin preceded the demise of the country that it sought to formally replace (and occurred after Russia had already formally left it). The signing and ratification of the Belavezha Accords, representing the formal exit of Russia, Ukraine, and Belarus from the USSR, seemed however to signal the demise of what remained of the USSR in realistic terms. Nobody at the UN therefore objected to Mr. Yeltsin’s move, and Russia thereby assumed the role as the successor state to the USSR.
International Obligations
The USSR was until its demise a party to the Vienna Convention on the Law of Treaties, which entered into force on January 27, 1980. Article 26 of that agreement states that:
Every treaty in force is binding upon the parties to it and must be performed by them in good faith. Article 27 of the same states that: A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
Section 2, Article 46 contains similar language. Clearly, the USSR made a firm commitment to uphold its international obligations, and to not fall back on the excuse of domestic law to justify its transgressions. Would Russia do the same?
Russia could argue that, under the terms of the Vienna Convention on Succession of States in respect of Treaties, accepting the status of the USSR doesn’t obligate Russia to uphold the commitments of it’s predecessor. According to that argument, Russia could declare itself the successor to the USSR and assume none of its obligations. That unfortunately for Russia wouldn’t really release it from anything, however. The agreement referenced above only entered into force in 1996, long after Russia declared itself to be the successor to the USSR. Russia also already committed to undertaking devolved responsibilities from the USSR in the Belavezha Accords (should they ever be found). Additionally, weaseling out of the USSR’s obligations would entail simultaneously abdicating its entitlements: namely, a permanent seat on the UN Security Council. While Russia cannot then rid itself of its inherited commitments without significant cost, it can (and did) muddy the waters on how and if they should be implemented.
Russia’s Constitutional Haze
Article 15 of Russia’s Constitution, both in its 1993 and 2020 versions, affirms the supremacy of Russia’s treaty obligations over Russian domestic law. So far, so good. In the newly approved 2020 version, however, Article 79 now drives a truck-sized caveat through that statement. According to the changed Article 79, international agreements now cannot conflict with the rights and freedoms of Russian citizens, and can’t interfere with the constitutional foundational basis of the Russian Federation. But wait, there’s more. According to the same article, decisions of international bodies in which the Russian Federation participates which violate the Russian Constitution cannot be implemented in Russia. That could be a significant problem, if we consider the USSR cum Russia’s obligations under Article 27 of the Vienna Convention on the Law of Treaties.
Newly revised Section 5 of Article 125 states that the Russian Constitutional Court will, in accordance with Russian Law, now decide whether or not to implement decisions of international bodies which are in conflict with the Russian Constitution or which contradict the basis for law and order in the Russian Federation. According to Section 6 of the same, any international agreements declared unconstitutional by the Constitutional Court will not be implemented. So now, a Russian government organ will decide, on the basis of Russian Law, whether or not Russia’s international obligations should be adhered to. Irrespective of Russia’s maintaining Article 15 in their revised Constitution, we can consider the Vienna Convention on the Law of Treaties to have been effectively undermined as of July 01, 2020.
Possibilities Unlocked
Now that the revised Russian Constitution places itself above international agreements and treaties, let us explore what types of international agreements might run afoul of the new constitution. Article 4, Section 2 of the Russian Constitution declares that the constitution and federal law are supreme throughout all of Russia. That effectively renders any international agreement in conflict with federal law unconstitutional from the outset. Article 15, Section 2 obliges government agencies and local governing bodies to follow Russian law and the Russian Constitution. The fact that Section 4 of that same article places international agreements over domestic law has now been undermined by Articles 79 and 125, as amended, which proclaim the opposite to be true as we see in the preceding paragraphs. Confused yet?
Article 56, Section 1 allows Russia to limit rights and freedoms in extraordinary circumstances in order to protect citizens and constitutional order. That article remains unchanged from the previous version of the constitution, but the new supremacy of Russian domestic law over international law now makes it important to consider. In effect, with the supremacy of the constitution, Russia can now renege on international commitments in the case it proclaims there to be a threat to constitutional order.
Several Russian ministries have obligations under international agreements to which Russia is a party, including the Defense and Foreign Ministries. With the conflicting provisions in the Russian Constitution, individuals can now seemingly be prosecuted for either implementing or violating these agreements according to the whim of those in power. This abuse of administrative discretion in the face of vague and conflicting rules is not new, having been effectively practiced domestically in Russia for many years to target enemies of the regime. What’s new is that this tactic can be applied to agencies and agency leaders with regard to international agreements which previously were considered supreme in terms of law. In a not too far fetched hypothetical example, a future Minister of Defense can perhaps be tried for treason and espionage in authorizing the release of military data to the United States Government in compliance with the Vienna Document 2011 or the New Start Treaty, but in contravention of Russian laws on state secrets. Alternately, the same minister could conceivably be charged for disregarding the Russian Constitution (Article 15) by not sending such information and instead complying with Russian law. True, Russia has implementing legislation on the books to facilitate the workings of international agreements, but those laws can change and are subject to review by Russian courts.
In case you get the impression that these changes will only affect those subject to Russia’s laws (as defined everywhere but Russia now, apparently), think again. Several constitutional articles (57, 59, 62) also concern the obligations of Russian citizens, and this could present a problem if foreign diplomats accredited to Russia were to be determined by Russia to in fact be its citizens. The argument that the rights of foreign diplomats are protected by the Vienna Convention on Diplomatic Relations now rings hollow, since Russian laws supersede any international agreements in conflict with constitutional provisions.
You may not yet be a Russian citizen, but a surprise law or even a presidential order (compliance with which is required by Article 90) can presumably make you one once you are comfortably settled in Russia. Or, if you or your parents were once Russian citizens and you didn’t properly renounce your citizenship (or your paperwork got “lost”), you too can find yourself a Russian citizen with obligations superseding rights enshrined by treaty no matter what nationality you claim. It is not far fetched to imagine this as a coercive tool in the kit of the security services when trying to harass foreign targets, who suddenly find themselves to be less foreign than they might prefer to be.
Clearing the Haze
Quite fortunately for the rest of the world, abusing these changes too gratuitously would make Russia vulnerable. First, the prospect of reciprocity should keep most abuses targeting foreigners in the theoretical realm. The Vienna Convention on the Law of Treaties prescribes remedies should a party to a treaty breach an agreement. According to Article 60, a breach by one party of a multilateral agreement allows any affected party to suspend the operation of the treaty, in whole or in part, in response to a breach or default. Anything Russia does to violate an international commitment thereby releases the other parties affected from complying with the agreement altogether, complete with the accompanying moral high ground.
Beyond simply receiving a dose of its own medicine, Russia could potentially endanger its entire justification for a seat on the UN Security Council (leaving only squatter’s rights remaining). Mr. Yeltsin, in his approach to the UN Security Council on December 24, 1991, based his country’s claim to the USSR’s permanent seat on the Security Council on Russia’s ratification of the Belavezha Accords, which allegedly dissolved the Soviet Union earlier that month. Should any other party (or parties) to the Belavezha Accords now claim that Russia’s new revised constitution conflicts with its commitments under those accords, Russia may lose its only original justification to the UN Seat. Indeed, the Belavezha Accords may have already been breached by the changes to the Russian Constitution as of July 01, 2020. The accords themselves state, in Section 5, that: The above agreed sides recognize and respect each other’s territorial integrity and the inviolability of existing borders in the bounds of cooperation. In Russia’s new Constitution, Crimea and the City of Sevastopol are explicitly listed as a parts of Russia in Article 65. Unless the author is mistaken, both were unquestionably part of Ukraine when Russia ratified the Belavezha Accords, and in so doing solemnly declared existing borders to be “inviolable.” Furthermore, since Russia now prioritizes their constitution over international law, Moscow cannot deny that it is in default – it would be unconstitutional to do so! If I were Ukraine, I’d start pestering Minsk to find the original copy of the treaty that seems to have gone missing some years back.
About the Author
Major Michael Cohen is a U.S. Army Foreign Officer (48E), focusing on Eurasia. He has held a variety of assignments throughout his career, at the tactical, operational, and strategic levels. He has a Master Degree: in Eurasian Studies from George Washington University, and a Masters Degree in Public Administration Degree from the Evergreen State College. Major Cohen is currently assigned to the Defense Threat Reduction Agency.