Problems of implementation of norms of international law in Constitutions and Charters of subjects of the Russian Federation: limits of admissibility

Malinenko Elvira Vladimirovna PhD in Law Associate Professor of the Department of Constitutional and Municipal Law at South-Russian Institute of Management, branch of the Russian Presidential Academy of National Economy and Public Administration  344002, Russia, g. Rostov-Na-Donu, ul. Pushkinskaya, 70 lora.alt@mail.ru Other publications by this author

A person, his rights and freedoms are the highest value of the state^[1].

Analyzing the values of the Constitution of the Russian Federation in a changing world, A. N. Savenkov considers it necessary to return to the creation of a system of lawmaking of the Russian Federation, without changing the current Constitution of the Russian Federation ^[2]. It seems to us that it is necessary to modernize the country, based primarily on the priority of national legislation in relation to international legislation. 

Realizing the postulate of the President of the Russian Federation V. V. Putin about the effect of international acts on the territory of the Russian state in the part that does not entail restriction of human and civil rights and freedoms and does not contradict the Constitution of the Russian Federation, let us turn to this problem ^[3]. The constitutional consolidation of this idea is inextricably linked with the implementation of international standards and their implementation in the national law of a federal state. We believe that the problem of human rights as the basis for the constitutionalization of the rule of law is interrelated with the implementation of international law in the constitutions and charters of the constituent entities of the Russian Federation.

We believe it is possible to recognize the constitutions and charters of the subjects of the Russian Federation as normative legal acts that contribute to the development of national legislation. This in no way determines the categorical rejection of the international legal implementation of legal norms. For example, Article 7 of the Constitution of the Republic of Adygea provides that "generally recognized principles and norms of international law, international treaties of the Russian Federation are an integral part of the legal system of the Republic of Adygea" ^[4].Part 1.Article 1 of the Charter (Basic Law) of the Saratov Region determines that the Charter "establishes additional guarantees of rights and freedoms citizens" ^[5].This act provides for the implementation of legal norms in Part 1 of Article 12. It is in it that guarantees to citizens are proclaimed, established not only by national acts, but also by international legal norms.

It seems that the ideal model of a federal State should determine the norms of national law as a priority.

Many constitutions and charters of the constituent entities of the Russian Federation lack legal norms indicating the existence of international priorities. Such acts should include the Constitution (Basic Law) of the Republic of Sakha Yakutia. Article 30 of the Constitution (Basic Law) of the Republic of Sakha (Yakutia) provides that human and civil rights and freedoms may be restricted by federal legislation only in the interests of protecting state or public safety, public order, health and morals of the population without taking into account the implementation of international norms^[6].

Nevertheless, the Russian Federation, being a democratic federal state governed by the rule of law, has all the legal grounds to declare the existence of the implementation of norms regulating human rights and freedoms within the limits of admissibility that do not contradict the federal Constitution. ^[1]. For example, Article 23 of the Constitution (Basic Law) of the Altai Republic establishes a legal norm providing for the possibility of additional consolidation of the rights of other universally recognized human and civil rights and freedoms in the international legal system^[7]. A similar norm is enshrined in Part 1 of Article 14 of the Constitution of the Chechen Republic ^[8], in Article 35 of the Constitution (Basic Law) of the Republic of Sakha (Yakutia) ^[6], there are no references to the implementation of international norms in the statutes of Rostov ^[9]. Ryazan^[10] regions, Jewish Autonomous Region ^[11].

The legal status of a person and a citizen is debatable. Individual scientists, analyzing the specifics of legislation, determine the priorities of implementation within the framework of the realization of human and civil rights and freedoms. According to

A. I. Kovler, "an analysis of the interpretation of the European Convention would be incomplete without addressing the problem of the practical implementation of the Convention by executing the rulings of the European Court of Human Rights"^[12]. Here is the position expressed by Professor I. G. Napalkova. In her opinion, "domestic law and international law are two different systems of law, between which there is no legal subordination, but the need for international partnership leads them to active interaction"^[13].

Yu. E. Ibragimova points out. that "it is appropriate to assert the implementation of the European Convention in the national legal order, which includes both legislation and judicial, as well as other law enforcement practice. In this process, one of the main subjects of the mechanism under consideration is the Supreme Court of the Russian Federation, which in its acts takes into account the decisions of the ECHR, and also explains to the courts the procedure for applying the European Convention"^[14]. We propose a different approach, namely, to pay attention to the legislative regulation of the implementation of the norms of international law in relation to the priority of national law.In this case, we propose to consider this aspect as an established obligation of public authorities adopting regulatory legal acts.

V.O. Kurdanov considers it possible to define international standards for the protection of human rights and freedoms and introduce the experience of their implementation in modern Russia^[15]. We believe that this is not enough, each subject (state) of the state is characterized by a variety of norms of a federal state.

V. I. Chervonyuk believes that the implementation of the ECHR decisions should be implemented in national legislation ^[16]. However, this legal position does not seem to be successful. The problem of the mechanism of implementation of the decisions of the EPSCH remains unresolved, based, in our opinion, on two aspects:

1. The possibility of introducing all the decisions of the ECHR into the national legislation of foreign states.

2. Implementation of the norms of the adopted decisions of the ECHR in relation to a particular state.

L. A. Nudnenko, in turn, offers democracy (democracy) as a quality of universality ^[17].

The practical implementation of the European Convention ^[18] is reflected in the constitutions and charters of the subjects of the Russian Federation.

For example, article 15 of the Constitution of the Komi Republic provides that "human and civil rights and freedoms are protected in the Komi Republic in accordance with the generally recognized principles and norms of international law, the Constitution of the Russian Federation, as well as those enshrined in this Constitution" ^[19].

Article 16.1 of the Constitution (Basic Law) of the Republic of Sakha (Yakutia) guarantees everyone judicial protection ^[6]. However, guarantees of the rights of the individual regarding the conduct of the vowel. there are no legal and reasonable proceedings.

Nevertheless, Russian constitutions and charters of subjects do not always literally reflect the norms of international law. Public authorities allow them to interpret in the legal space, achieving the necessary legal balance in modern realities. For example, the human right to judicial protection and guarantees of individual rights in terms of conducting a transparent, lawful and reasonable trial does not find verbatim citation in the constitutions and charters of the subjects of the Russian Federation, however, without detracting from their role in the international legal space. The international community should agree in the legal aspect that international legal norms should be subject to changes taking into account adaptation to modern realities.

However, the tendency to implement the norms of international law in the constitutions and charters of subjects of federal states, both in Russia and in foreign countries, remains quite problematic.

They are not distinguished by a scientific desire to position the legal norms of other national legal systems or the generally recognized principles and norms of international law and the constitutions of states of foreign states. At the same time, there is no refusal to implement international norms in the world community.

For example, in the USA, the Constitution of the state of California in the USA contains legal norms regulating the legal status of a person and a citizen ^[20]. Nevertheless, these norms do not always correspond to modern realities. 

Proclaiming the legal status of a person and a citizen, the United States does not comply with the norms of international law in relation to other foreign citizens, but on the contrary deprives the civilian population of other foreign states of their lives. According to the media , by order of the US President D.The leader of the "Quds", Iranian General Qasem Suleimani, was killed on the night of January 3, 2020 as a result of a US special operation near Baghdad International Airport, Washington considered him involved in organizing an attack on the American embassy in the Iraqi capital on December 31, 2019. US President Donald Trump said that America has targeted 52 sites in Iran, including cultural heritage sites. This number is associated with 52 American hostages captured by Iran in 1979 ^[21].

This decision by Washington caused concern among a number of politicians and experts, who pointed out that international law prohibits strikes against cultural heritage sites. In response, US Secretary of State Mike Pompeo said that Washington would "act according to the law" Iran's Supreme Leader Ali Khamenei promised to avenge the death of Suleimani to the United States. Iranian President Hassan Rouhani said that Washington committed a grave crime, which Tehran will not forget. Earlier, the Iranian parliament unanimously passed a bill equating the Pentagon and the US Army to terrorist organizations ^[21].

Thus, the international community does not always comply with the norms of international law and generally recognized principles, but conducts foreign policy taking into account only its own goals.

At the present time, analyzing the European Convention on Human Rights, it can be concluded that it is necessary to strengthen the implementation of international norms in order to achieve a unified balance of the legal status of a person and a citizen in the subjects of the Russian Federation. The specifics of the individual's status should be considered taking into account the introduction of international norms into the constitutions and charters of the subjects of the Russian Federation. The legal ideal of the constitutions and charters of the subjects of the Russian Federation is possible only when the full idea of the supremacy of national law is achieved within the limits of the permissibility of the correlation of the implementation of international law norms.

Today, the constitutions and charters of the constituent entities of the Russian Federation are far from the ideal that we need.

For example, we believe it is possible to implement article 1 "Protection of property" of Protocol [No. 1] of 03/20/1952 to the Convention on the Protection of Human Rights and Fundamental Freedoms to amend "Every natural or legal person has the right to respect for their property. No one may be deprived of his property except in the interests of society and under the conditions provided for by law and the general principles of international law"^[18].

The constitutional and legal regulation of the property rights of individuals should be specified not only in the constitutions and charters of the subjects of the Russian Federation, but also in law enforcement practice.

The Charter of the Rostov Region can serve as an example of the need to implement this norm^[9]. The absence of international norms not only in the said Charter, but also in law enforcement practice has led to a difficult legal situation that has arisen in terms of compensation for damage caused to the owners of individual residential buildings as a result of the fire.

The unsettled nature of the issue of property rights at the regional level has prompted owners to repeatedly appeal to state authorities and courts^[22].

Only four months later, the deputies of the Legislative Assembly of the Rostov region adopted the necessary regional law ^[23]. The unsolvability of this situation has led to a decrease in the level of the legal status of the owners.

The rejection of the legal norms of international legislation reduces the effectiveness of the constitutions and charters of the subjects of the Russian Federation and makes it possible to identify some problems in the implementation of the legal status of a person and a citizen. Article 2 "The right to education" defines that "no one can be denied the right to education. The State, in carrying out any functions it assumes in the field of education and training, respects the right of parents to provide such education and such training that correspond to their religious and philosophical beliefs" ^[18].

The legal ideal of the constitutions and charters of the subjects of the Russian Federation, we believe, for example, taking into account the existence of the norms of the Universal Declaration of Human Rights and Freedoms ^[24], the European Convention on Human Rights ^[18], but not contradicting the national Constitution. 

Complete dependence on the norms of international law, as well as the absence of the norms of the Universal Declaration of Human Rights, the European Convention on Human Rights leads to a decrease in the level of development and effectiveness of national legislation.In this regard, it is necessary to determine the limits of admissibility.

Article 13 of the European Convention on Human Rights establishes the right to an effective remedy in a public authority, namely, "everyone whose rights and freedoms recognized in this Convention are violated has the right to an effective remedy in a public authority, even if this violation was committed by persons acting in an official capacity" ^[18].

The legal status of a person and a citizen registered in the territory of the city of Moscow is inextricably linked with the problems of ecology, urbanization, digitalization.

In turn, the legal norms specified in a number of international acts do not regulate the rights and freedoms of man and citizen in terms of this issue. The absence of international acts regulating human rights to digitalization, robotization, and urbanization complicate the implementation of international norms in the constitutions and charters of the constituent entities of the Russian Federation. Consequently, a developed digital state, such as the Russian Federation is becoming, cannot wait for the adoption of international legal norms on this issue.

In this regard, it should be noted that the Russian state in the legal space is ready not only to implement international norms, but also to introduce legal norms of other national legal systems. This was indicated by V. D. Zorkin^[25]

Nevertheless, each State has the right to follow only its own national path of development.

Evolutionary acts have become an indicator of the new state of Russian statehood based on democracy.

The order for social justice is a strategic task of the development of the Russian state.

At the heart of the social idea of the Russian state, human rights as the basis for the constitutionalization of the rule of law are of particular interest, the constitutions and charters of the subjects of the Russian Federation as acts of dialogue between the population and the authorities. Modernization of the legal status of a person and a citizen in the constitutions and charters of the subjects of the Russian Federation is based on the implementation of the norms of international law within the permissible limits. There is a need to involve international standards in the field of human rights in the constitutions and charters of the subjects of the Russian Federation and their implementation in national law. We believe that it is necessary to legislate in the constitutions and charters of the constituent entities of the Russian Federation legal norms on the protection of human social guarantees.

The implementation of the order for social justice reveals the problems of ensuring the guarantees of the legal status of a person and a citizen by implementing the norms of international law and allows us to propose a possible classification of constitutions and charters of the subjects of the Russian Federation, taking into account the issues. In our opinion, it should be noted that in a state governed by the rule of law, analyzing the constitutions and charters of the subjects of the Russian Federation as normative acts regulating the legal status of a person and a citizen, the following classification can be distinguished:

1. The implementation of personal (civil) human and civil rights and freedoms is enshrined in Article 15 of the Charter (Basic Law) of the Kaliningrad Region ^[26], Part 1 of Article 12 of the Charter (Basic Law) of the Saratov region^[5].

2. implementation of social rights and freedoms. This should include, for example, the charter of Irkutsk ^[27], the charter (Basic Law) Saratov region^[5].

3. The implementation of economic rights and freedoms is implemented in Article 23 of the Charter (Basic Law) of the Saratov region ^[5].

4. implementation of political rights and freedoms of man and citizen. An example is Part 1 of Article 2 of the Charter (Basic Law) of the Khanty-Mansi Autonomous Okrug – Yugra ^[28].

The proposed classification option would allow, in our opinion, to implement more quickly in practical terms, the breakthrough development of the state, based on the constitutional idea of man as the highest value of the state, and in the science of constitutional law to provide an opportunity to implement the norms of international law in the constitutions and charters of the subjects of the Russian Federation, taking into account the limits of admissibility.

The problem of the implementation of the norms of international law in the constitutions and charters of the subjects of the Russian Federation causes a controversial resonance about the usefulness of this institution. The specifics of the implementation problem are constantly in the focus of attention of legal scholars.

For example, N.V. Varlamova draws attention "to the realization of the right to access the Internet, considering it as a condition and guarantee of the realization of traditional human rights." In her opinion, "the international recognition of the right to Internet access in Russian and foreign doctrine is linked to the Report of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, Frank La Rue, dated May 16, 2011 (A/HRC/17/27)57, which was submitted to the Human Rights Council UN Human Rights in accordance with its Resolution 7/36 of 28.03.2008 ¹ 58"/"^[29].

It seems to us that the problem is much deeper, broader and goes beyond modern realities. This is primarily due to the variety of international legal norms regulating the constitutional and legal status of an individual, identifying it with the realization of the right to access the Internet.

Improving the legal status of a person and a citizen in the constituent entities of the Russian Federation in terms of socio-economic guarantees of an adequate standard of living, we must adapt it to the conditions of Russian statehood on the basis of updated constitutions and charters of the constituent entities of the Russian Federation, taking into account the priorities of national law.

It seems to us that it is the priority of the Russian Constitution in relation to international norms that will allow the constitutions and charters of the constituent entities of the Russian Federation to approach the legal ideal. The President of the Russian Federation V. V. Putin pointed out the need to consider the Constitution as a living instrument corresponding to the level of development of society^[30].

It is necessary to highlight the important role of these regulations in the transformation and updating.

E. V. Talapina, defining the important role of transformation, writes that "according to the state of protection of human rights, the democracy of the state is judged"^[31].

According to T.A.Vasilyeva, "integration into a free community presupposes readiness for joint actions and recognition of an autonomous opinion formed jointly, but it does not require submission, free from any constitutional restrictions and control, or renunciation of one's own identity, as stated in the well-known Lisbon decision of the Federal Constitutional Court of Germany of June 30, 2009 related to the ratification of this Treaty and the development of national implementation acts"^[32].

The question arises: is it necessary to implement the norms of international law in the constitutions and charters of the subjects of the Russian Federation? Or is it enough to go exclusively along the domestic path? President of the Russian Federation Vladimir Putin has identified a priority path for the development of the Russian Constitution and the need for amendments^[3].

The constitutions and charters of the constituent entities of the Russian Federation need to be updated and adapted for the following reasons. It is necessary to recognize the human right to digitalization and legally identify it with other human and civil rights in the conditions of digitalization of state and municipal administration.

The legal norms defining the implementation of the norms of international law in the constitutions and charters of the subjects of the Russian Federation can be classified in the following areas.

The first, it seems, can be attributed to the legal norms that determine the existence of the implementation of the norms of international law. This includes the Constitution of the Altai Republic ^[7], the Steppe Code of the Republic of Kalmykia ^[33], the Statutes of the Krasnoyarsk Territory ^[34], the Kostroma Region^[35].

A distinctive feature can be identified in Part 1 of Article 7 of the Charter of the Krasnoyarsk Territory, namely the legal norm on the establishment of the rule of law^[34]. We believe that this did not require fixing. Since the absence of this legal norm does not imply lawlessness and chaos in this territory and does not contradict constitutional principles.

The second block includes constitutions and charters containing separate articles on the exercise of powers to carry out foreign economic and international activities. This should include, for example, Part 2 of Article 4 of the Charter (Basic Law) of the Kaliningrad region ^[26].

The third block is a block containing distinctive legal norms other than the federal Constitution.

These norms are associated in paragraph 2.ch.2. art.40 of the Charter of the Khanty-Mansiysk Autonomous Okrug - Yugra ^[28], for example, part 1st.14, part 2.st.56 of the Charter of the Krasnoyarsk Territory ^[34].

The fourth block includes the constitutions and charters of the subjects of the Russian Federation, in which the legal norms are based on the regulation of the correlation of the implementation of the norms of international law. An example is Part 2.Article 90 of the Charter of the Krasnoyarsk Territory^[34].

The proposed option, as we believe, would allow, if possible, to unify the reasons for the difference in approaches to the construction of these normative legal acts and to develop the optimal form, taking into account the priority of national law in relation to international law.

The presented classification will make it possible to improve the legal status of a person and a citizen faster, to exercise his rights in the context of the implementation of a completed order for social justice, taking into account the priority of national legislation over international norms. This is one of the directions set out in the Messages of the President of the Russian Federation V.V. Putin to the Federal Assembly of the Russian Federation in 2019-2020 ^[3],[36].

According to foreign scientists, such as G. Raimondi, "There will always be disputes at the national level about how best to ensure compliance with the European Convention. However, all the signatory States have agreed to implement the final judgments of the Court under the supervision of the Committee of Ministers of the Council of Europe. And the key point here is that States must comply with their obligations, and the right to individual treatment has become a widely used mechanism, as evidenced by thousands of applications submitted annually to the ECHR" ^[37].

We believe that it is necessary to go through the proposed path of point changes with the priority of the norms of the Russian Constitution over the norms of international law and adapt the constitutions and charters of the subjects of the Russian Federation to the real conditions in modern Russia.

To this end, we believe it is possible to introduce a mechanism for the limits of the permissibility of implementing the norms of international law in the constitutions and charters of the subjects of the Russian Federation, which will have a positive impact on increasing the priority of the legal status of a person and citizen in modern Russia.

At the moment, the following problems remain unresolved in the field of the limits of the permissibility of the implementation of the norms of international law in the constitutions and charters of the subjects of the Russian Federation, in the science of constitutional law.

1. The absence of a legally regulated mechanism for the limits of the permissibility of the implementation of the norms of international law at the federal and regional levels as a factor negatively affecting the improvement of the legal status of a person and citizen, regardless of the place of residence. This problem is not reflected in the constitutions and charters of the constituent entities of the Russian Federation, which negatively affects the fulfillment of the social order to combat poverty.

2. In law enforcement practice, the illusion arises that there are limits to the permissibility of implementing the norms of international law in the constitutions and charters of the subjects of the Russian Federation. The difference between the legal norms specified in the constitutions and charters of the subjects of the Russian Federation and federal constitutional norms does not always correspond to the constitutional principles of the Russian state and does not correspond to the norms of the federal Constitution.

3. The constitutions and charters of the subjects of the Russian Federation contain legal norms that exclude the significance of the implementation of international norms.

4. The existence of constitutional and statutory provisions on the permissibility of the limits of the implementation of international law allows us to conclude that it is necessary to adapt the texts of constitutions and charters of the subjects of the Russian Federation to changing socio-legal realities within the framework of the adopted doctrine of the "living Constitution".

5. Constitutions and charters of subjects need to be improved, taking into account the limits of the permissibility of the implementation of the norms of international law. The necessity of the classification of constitutions and charters of subjects proposed by the author is due to the peculiarities of the legal status of a person and a citizen in modern Russia.

6. We believe that the difference in approaches contained in the constitutions and charters of the constituent entities of the Russian Federation does not imply their replacement or radical change, but nevertheless these acts need point changes.

7. As a rule, the legal status of a person and a citizen is legally dependent on the territory of residence, taking into account registration. There is a need for the progressive development of this constitutional and legal institution by changing regional legislation. Attention should be paid to the competence of State authorities by changing the powers of authority to ensure the legal status of a person and a citizen on the basis of the permissible limits of the implementation of international law. In accordance with the needs of the modernization of the country, it seems possible to consolidate at the legislative level, criteria for increasing the social security of individual groups of the population.