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Putin wants to give Russian law priority over international law without an entirely new constitution. Technically, that’s not legally possible.

Source: Meduza
Vyacheslav Prokofyev / TASS / Scanpix / LETA

In his January 15 state-of-the-nation address, Vladimir Putin proposed a number of changes to the Russian Constitution. He also stated that he is not interested in the creation of an entirely new Constitution. However, one of the changes Putin suggested cannot be implemented if the current Constitution remains in place.

Vladimir Putin proposed adding a measure to the Constitution that would prevent international law from being prioritized completely over Russian law.

Indeed, I believe the time has come to introduce certain changes into the foundational law of this country, changes that would explicitly guarantee the supremacy of the Russian Constitution in our legal space.

What does this mean? It means precisely the following: The demands of international legislation and agreements as well as the decisions of international bodies may be implemented on Russian territory only so far as they do not accompany limits on human rights and liberties, so far as they do not contradict our Constitution.

The supremacy of international law is currently inscribed in Article 15, Clause 4 of the Russian Constitution.

The collectively accepted principles and norms of international law and the international agreements of the Russian Federation are an integral component of the Russian Federation’s legal system. If the Russian Federation establishes rules that differ from existing law through an international agreement, then the rules of the international agreement will be applied.

One would think that to limit the supremacy of international law, the Russian government would only have to amend one clause of Article 15 or simply add a new clause (though there are already limits on prioritizing international law in Russian jurisprudence).

The problem is that Article 15 is part of the first chapter (“Foundations of the Constitutional Order”) in Russia’s foundational legal document. Article 135, meanwhile, explicitly forbids amending the first, second, and ninth chapters of the Constitution. In order to change those chapters, a new Constitution must be formed and accepted, and any amendments to the current Constitution are insufficient. In other words, Putin’s proposed limits on the supremacy of international law would require doing exactly what Putin said he would not like to do.

  1. The provisions within Chapters One, Two, and Nine of the Constitution of the Russian Federation may not be reconsidered by the Federal Assembly.
  2. If a proposal to reconsider the provisions within Chapters One, Two, and Nine of the Constitution of the Russian Federation obtains support through a three-fifths vote of the total number of Federation Council members and State Duma deputies, then in correspondence with federal constitutional law, a Constitutional Assembly will be called.
  3. The Constitutional Assembly shall either confirm that the Constitution of the Russian Federation will not be changed or develop a proposal for a new Constitution of the Russian Federation that may be accepted by a two-thirds vote of the total number of Constitutional Assembly members or be presented for a nationwide vote. In the course of a nationwide vote, the Constitution of the Russian Federation will be considered accepted if more than half of participating voters vote in its favor, under the condition that more than half of voters participate in the voting process.

Another sign indicating that Putin’s proposals point to a new Constitution is the fact that Putin himself mentioned the nationwide referendum procedure in his address. Constitutional amendments are introduced through federal constitutional legislation; only accepting a new Constitution requires a nationwide referendum.

In addition, given that the proposed innovation involve fundamental changes to the political system — the functions of the executive, legislative, and judicial branches — I consider it necessary to conduct a voting process among the citizens of this country regarding the entire package of proposed amendments to the Constitution of the Russian Federation and to make a final decision only using its results.

On the other hand, Putin’s statement that a “final decision” will be made only after the voting process can be interpreted to mean that the vote itself will not be binding. According to the Constitution, however, that is not the case: The results of a nationwide vote must be enforced as is.

This means that a referendum would be conducted as an extraconstitutional procedure (much like an online poll). In such a case, the constitutional amendments would likely be introduced through a federal constitutional bill, and some kind of “dirty hack” would be developed to get around the Constitution’s ban on amendments to Chapter One. For example, a clarifying measure limiting the supremacy of international law could be introduced into a different chapter, or a new chapter could simply be added to the Constitution altogether.

Analysis by Denis Dmitriev

Translation by Hilah Kohen

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