7 International Treaties in Russian Judicial and Arbitral Practice

This chapter explores the role of Soviet and post-Soviet Russian courts in interpreting and applying international treaties. It is clear that Soviet courts dealt more frequently with treaties than the scanty published judicial practice of that period suggests. This early body of treaties may also have contributed to the emergence in the early 1960s of priority being accorded to Soviet treaties insofar as they contained rules providing otherwise than Soviet legislation. Whatever the volume of cases involving treaties that were considered by Soviet courts prior to 1991, the inclusion of Article 15(4) in the 1993 Russian Constitution transformed the situation. A further transformation occurred when the Russian Federation acceded to the 1950 European Convention on Human Rights and Fundamental Freedoms and began to participate in the deliberations of the European Court for Human Rights in Strasbourg.

2 Sources of the Russian Law of Treaties

This chapter considers what Russian legislation, judicial practice, and doctrinal views regulate the conclusion, ratification, entry into force, or termination of treaties under Russian law. In other words, it asks how Russian law interacts with and/or implements the international law of treaties. Here, the sources of Russian law generally are also the sources of Russian foreign relations law, including the Russian law of treaties. The latter refers to a body of legislation, judicial practice, and doctrinal literature which determines how treaties are to be concluded, ratified, confirmed, approved, or provisionally applied by relevant State agencies, terminated, denounced, or suspended if necessary, and otherwise procedurally dealt with under Russian law. Furthermore, as the chapter shows, the sources of the Russian law of treaties are also the same sources of other branches or rules of Russian law.

1 Historical Background

This chapter traces the history of the Russian treaty from its inception during the Kievan Rus to Soviet applications of the instrument. The precise origins of the "treaty" in Kievan practice has not been determined. However, it was from this early period that concepts such as treaty ratifications and "confirmation" were conceived in early Russian law. From there, the chapter follows Russian treaties through post-medieval times, including the inclusion of international treaties within the 1825 Complete Collection of Laws of the Russian Empire. The chapter also takes a look at the so-called "internal treaties," by examining the differences between "international" treaties and "constitutional" treaties given Russia's historic borders and its relationships with neighboring states. Finally, the chapter outlines Soviet treaty policy and its doctrinal philosophies.

8 Generally-Recognized Principles and Norms of International Law

This chapter studies the generally-recognized principles and norms of international law as an integral part of the Russian legal system. Most international lawyers would "rank" them higher than mere treaties because they are more fundamental, more universal, perhaps more venerable at least in origin. Indeed, in Article 15(4) of the 1993 Russian Constitution they are enumerated ahead of international treaties of the Russian Federation. However, they become important in Russian law and State practice precisely because they are provided for in Article 15(4) and thus are a comparatively recent addition to the repertoire of rules which Russian institutions, officials, and courts must apply, as a rule in priority over Russian normative legal acts. Chronologically, therefore, they appear in the Russian legal system long after treaties.

6 Treaties of Subjects of the Russian Federation

This chapter looks at how the "treaty" operates as a source of law, both domestic, international, and/or community, in ways that are not traditionally articulated in the classic expositions of sources of law. It considers how, historically, Russia's state-building or community-building enterprises have been bound up in the use of treaties to forge a sense of unity across its vast territory and among its myriad ethnic groups. The Soviet Union itself was a treaty-based federation, or confederation. Furthermore, the treaty is among the key instruments on which the Russian Federation rests, and underlying the treaty relations are principles of statehood, legal personality, autonomy, independence, dependence, and others which some view as constitutional questions and others as matters of international law. Movements in the direction of Eurasian integration presently underway (or not) reflect similar considerations. The treaty is the key vehicle.

5 Constitutional Legislative History and Treaties in the Russian Legal System

This chapter traces the international treaty within Russian constitutional history. It shows how the Soviet and post-Soviet formulations on treaties influenced the drafters of the 1993 Russian Federation Constitution. These drafters had reacted, favourably or unfavourably, in the myriad of draft constitutions which circulated in Russia from 1990 to the final version of 12 December 1993. The chapter considers several of these chronologically, with commentary on their respective sources and approach to drafting. It primarily concentrates on whether only ratified treaties should enjoy priority (if at all) and whether generally-recognized principles and norms of international law and international treaties of Russia are part of Russian law or part of the Russian legal system (if at all).

4 Publication and Registration of Treaties in Russia

This chapter focuses on the publication of treaties-a major concern in Russia during the Soviet and post-Soviet eras. This was to prevent the Russian government from engaging in secret diplomacy, as it had been caught doing during World War I. From then on, secret diplomacy was abolished and the secret treaties whose texts were found in Imperial Russian State archives were published, to the discomfiture and embarrassment of the parties on both sides in the War. Soviet international lawyers considered the introduction of the registration and publication of treaties to be a significant contribution of their country to international law. However, the early Soviet legislation on the conclusion, ratification, and denunciation of treaties contained no provisions regarding their publication until 1924. Aside from the history of treaty publication, the chapter also outlines some treaty-relevant legislation.

3 Contemporary Treaty-Making in the Russian Federation

This chapter discusses Russia's standard procedures for entering into an international treaty. The 1969 Vienna Convention on the Law of Treaties and Russian international legal doctrine offer general guidance. In addition, certain requirements are imposed by the 1993 Russian Constitution, 1995 Law on treaties, edicts of the President and decrees or regulations of the Government, other federal laws, and subordinate legal acts of the Russian Federation. Aside from these, the chapter describes how, within a vast government, uniformity of approach and understanding is achieved with respect to treaty-making and how institutional memories are preserved with respect to past practices. As such, the chapter examines subjects ranging from the power to conclude treaties, to draft decisions and treaty proposals, to submissions to government, treaty signatures, and even the termination of a treaty's application.

Introduction

This introductory chapter briefly reflects on the history of the law of making treaties in Russia. Treaties constitute the earliest surviving documents by at least a century and perhaps more in not only the legal history, but the general history, of the Russian people. The chapter discusses multiple issues which were embedded in the treaties of the ninth and tenth centuries, such as the form and legal nature of the document, ratification procedures, and so on. It considers how these issues interact with the existence of an international legal system as well as a domestic one. The chapter also looks at Russia's especially post-Soviet Russia's-responses to these issues and expounds on the importance of addressing them.

Conclusions

This concluding chapter reviews the major developments of the Russian treaty. It argues that the legal system of the Russian Federation contains two different kinds of law-international law and domestic law. Here, two distinctions are drawn with respect to international-legal norms: those having direct effect and not requiring domestic legislation in order to implement them, and those not having direct effect precisely because they do require implementing legislation. Although international law requires States acting in good faith to implement international legal obligations, in practice often that implementation never happens or occurs with great delay. Although not without controversy, the better position seems to be that generally-recognized principles and norms of international law enjoy priority over norms of Russian law which provide otherwise.