INTERNATIONAL LAW AND THE RUSSIAN LEGAL SYSTEM
by Boris Leonidovich Zimnenko. Edited and translated with an introduction by William Butler. Utrecht: Eleven Publications, 2007. 389pp. Hardbound €75.00/$109.00. ISBN: 9789077596203.
Reviewed by Shawn Boyne, Visiting Scholar, Max Planck Institute for Foreign and International Criminal Law. Email: smboyne [at] daad-alumni.de.
[G]enerally accepted principles and rules of international law and international treaties of the Russian Federation shall be an integral part of its legal system. If an international treaty of the Russian Federation establishes rules, other than provided for by the law, the rules of the international treaty shall be applied.
Since Russia enacted its 1993 Constitution, international law scholars have heralded Article 15 (4) of the Constitution as a decisive break with the Soviet Union’s cautious approach to the incorporation of international law into domestic law (Danilenko 1998; Långström 2003; Tuzmukhamedov 2003). In retrospect, when viewed against the backdrop the increasingly autocratic course set by the Kremlin, the initial optimism regarding the role that international law would play in shaping governmental behaviour seems to have been premature.
In fact, given the growing list of adverse court decisions issued by the European Court of Human Rights against Russia, one may be tempted to ask whether the Russian Federation’s commitment to the rule-of-law in general and norms of international law in particular differs in more than stylistic terms than that of its Soviet predecessor. Indeed as George Ginsburgs and other scholars have noted, Russia’s developing record of compliance with international legal norms has been an erratic one (Ginsburgs 1998). While international law failed to deter Russia’s human rights violations in Chechnya (Terry 2006), international law has begun to play a more influential role in shaping judicial practice in the Russian Federation as a whole (Marochkin 2007). From afar, it appears that the reception that Russia’s political actors have given to international law has vacillated depending on the nature and strength of the political interests at stake. For example, although evidence suggests that European human rights case law has begun to shape Russian legislation in some cases, such as in the redrafting of the Russian Criminal Procedure Code (Kahn 2004), more recently the Russian Duma forged ahead with enacting the controversial “NGO law” above international objections (Kamhi 2006).
Given this context, the publication of any legal treatise that purports to document how Russian courts and legal scholars interpret Russia’s commitment to international law is initially likely to be greeted with some cynicism. Despite this background, B.L. Zimnenko’s INTERNATIONAL LAW AND THE RUSSIAN LEGAL SYSTEM offers readers a unique window into an ongoing debate currently occurring largely outside of the view of the public [*16] and the international media. In fact, the book introduces and traces the key debates that presently exist within the Russian Federation regarding the extent to which international law should be incorporated into the Russian legal system.
At the heart of these debates lie divergent opinions concerning the role that generally-recognized principles and norms of international law and treaties should play in the Russian legal system. At issue are the methods of interpretation that courts and government institutions should use to weigh competing principles and norms. Given that, at the time that the Russian Constitution was enacted, the Chair of the Russian Parliament’s Committee on Juridical Reform, Boris Zolotyukin, admitted that Russia had had no real judicial branch of government for over seventy-three years (Smith 1996:129), any evidence that demonstrates that Russian judges are not applying the law instrumentally warrants a careful read.
The book focuses primarily on the interpretive processes through which international norms and legal conventions are incorporated into Russian law. The key question that the book poses and attempts to address is the extent to which Russian law permits courts to directly adopt and apply international legal norms. What Zimnenko contributes to this subject is a detailed understanding of the range of doctrinal positions adopted by Russia’s leading legal scholars regarding numerous unsettled legal issues. The book’s strong point is that Zimnenko lays out key points of contention and then advances his own arguments, citing specific references to Russian statutory law, domestic court decisions as well as to decisions of the European Court of Human Rights.
Zimnenko, a member of the Diplomatic Academy of the Ministry of Foreign Affairs of the Russian Federation and Russian legal scholar, begins the book by asserting that Article 15 (4)’s ambiguous construction has opened the door to conflicting interpretations of international law. He then carefully negotiates the difficulties caused by this ambiguity while building theoretical support for his own analytical methods. Throughout the treatise, the author delineates how and why the norms and conventions of international law matter in the Russian legal system. The book explains and, at times, criticizes how various Russian courts have interpreted and applied international legal norms to resolve a variety of legal issues
The central problem with which Zimnenko wrestles throughout the text is the fact that the process of interpreting international law itself is a complex one. Moreover, the norms of interpretation are not static. Furthermore, as Zimnenko points out in the book’s introduction; the major theories (monism and dualism) which purport to explain the interaction between international and national legal systems have lost much of their analytical traction. As the forces of globalization have produced new global and regional legal institutions and norms, it has further complicated the dynamic that exists between national and international legal systems.
In the book’s first chapter, Zimnenko argues that, while national and international legal systems are autonomous normative legal systems, [*17] they do not exist independently. Zimnenko asserts that, when scholars attempt to assess the nature of the interaction between two systems, they should examine how one legal system influences the other (p.5). From Zimnenko’s perspective, the interaction that occurs between national and international legal systems enriches both systems. Thus, when examining the role that international law plays in the legal system of a given nation-state, Zimnenko maintains that the central focus should not be on the extent to which national law is consistent with international law. Instead, he emphasizes that scholars should investigate the nature of the mechanisms present in national legal systems that enable judges to use international law to resolve disputes. These mechanisms are reflected in the law of the State, judicial practice, and national doctrine (p.351). Standing alone, international law cannot permeate the law of a nation-state. As Zimnenko points out, procedural mechanisms that exist within the legal system of the nation-state must permit and simultaneously condition the implementation process.
Chapter Two addresses in depth the three methods through which national legal systems permit international law to be integrated into the law of a state. These methods include legislation, interpretation, and the incorporation of international law through the operation of renvoi norms. Here Zimnenko asserts that legislation and other law creation processes within the nation-state enable the state to incorporate international norms into its legal system. He sets out a logical interpretive method that can be used to determine whether and how renvoi norms present in international treaties, customary norms, and decisions of intergovernmental organizations can be incorporated into the state’s legal system. By tackling the subject of customary norms, Zimnenko’s treatise goes beyond traditional Russian textbooks of international law which limit their discussion of the rules of interpretation to the ambit of international treaties. Zimnenko’s vision of the reach of international law is an expansive one. For example, he argues that, in certain circumstances, state institutions must take into account binding norms of international law when they seek to interpret national legal norms. This precept is particularly true when the legal norms expressed in national law are ambiguous. Even in this situation however, Zimnenko is quick to reassert the supremacy of national law as he argues that international legal norms merely assist judges in interpreting national legal norms. National law never relinquishes its primary position. The import of this premise extends to the core function of the Constitutional Court of the Russian Federation. Zimnenko asserts that the Court’s primary function is not to determine whether Russian law conforms to international legal norms but rather to “settle cases by ensuring that state action conforms to the Russian Constitution” (p.105). Zimnenko goes on to describe systematically the process through which a state’s own complex norms should be interpreted.
In chapter three, Zimnenko initiates a detailed analysis of role and processes through which different sources of international law create norms that, under certain conditions, may be integrated into the legal system of the nation-state. Here Zimnenko argues that [*18] although Article 15(4) of the Constitution states that the Russian legal system includes generally recognized norms and principles of international law, we cannot take that statement literally (p.150). At the same time, he argues that treaties are not the sole source of self-executing norms. In certain circumstances, self-executing norms may originate from customs, as well as from decisions of international governmental organizations (p.153). As Zimnenko admits, this position is not universally accepted by Russian legal scholars. The task of determining which norms are self-executing is complicated by the fact that international treaties themselves often contain ambiguous and imprecise language (p.163).
Finally, chapter four examines the particular methods that can be used to negotiate conflicts that may emerge between treaties signed by the Russian Federation and national laws, as well as between different treaty provisions that have been integrated into the national legal system. The chapter concludes with a discussion of the legal force of decisions made by international intergovernmental organizations within the Russian Federation’s legal system. Zimnenko maintains that, because the decisions of the European Court of Human Rights stem from the Court’s power to apply and interpret provisions of the European Convention for the Protection of Human Rights, the decisions themselves do not create new legal norms (p.257).
This book was originally written in Russian as a treatise for Russian judges and law students. It is clear that the original text posed a substantial challenge to the book’s editor and translator, W.E. Butler, and that this challenge is one that few comparative legal scholars would have dared to undertake. Unfortunately, I think that many readers will find that the wording in the translated text is, at times, unnecessarily abstract, the wording verbose, and some of the chapters inordinately long. While one can appreciate the theoretical and factual detail that Zimnenko uses to support his key arguments, the book is a difficult read. Without a doubt, the task of translating a foreign legal treatise is a particularly daunting one. I suggest that the effort is an even more difficult one when the translator must negotiate the problems inherent in understanding not only the meaning and context of a foreign language but also traverse the sizeable gulf that exists between Anglo-American and Russian perspectives of law. Thus, although the book’s obtuse style may be easily understandable to Russian legal scholars and law students, it is likely to limit the extent to which the book will penetrate the English-speaking market.
The translation of Russian court decisions and legal theory is a project of critical importance to scholars of international law as well as to comparative law and courts scholars. Given the hurdles that translators face in making foreign legal theory comprehensible, I might suggest that one should aim, not to translate and publish entire legal treatises, but rather sections of a treatise, perhaps in the form of an anthology. Such a work might also contain commentaries written by other scholars. That format might perhaps make important foreign language treatises such as this book accessible to a wider audience. [*19]
A second factor that may restrict the book’s usefulness in political science classes is the fact that Zimnenko presents the law as independent science that stands separate from politics. An implicit thesis running throughout the book is the belief that, while scholars may disagree on how to reconcile conflicts between laws and how to interpret ambiguities within the law, those disagreements are not rooted in political differences. He convincingly demonstrates that an extensive cross-section of courts throughout the Russian Federation are currently wrestling with issues related to the integration of international law into the Russian legal system. While that thesis is undoubtedly an important one, it may leave many readers wanting to know the extent to which the intersection of politics and legal theory affects judicial practice within the Russian Federation.
Danilenko, Gennady M. 1998. “Implementation of International Law in Russia and Other CIS States: Theory and Practice.” 10 (1) EUROPEAN JOURNAL OF INTERNATIONAL LAW 51-69.
Gaeta, Paola. 1996. “The Armed Conflict in Chechnya before the Russian Constitutional Court.” 7 (4) EUROPEAN JOURNAL OF INTERNATIONAL LAW 563-570.
Ginsburgs, George. 1998. “In Search of a Russian Brand of International Law.” 24 (2) REVIEW OF CENTRAL AND EAST EUROPEAN LAW 91-168.
Kahn, J.D. 2004. “Russia’s ‘Dictatorship of Law’ and the European Court of Human Rights.” 29 (1) REVIEW OF CENTRAL AND EAST EUROPEAN LAW 1-14.
Kamhi, Alison. 2006. “The Russian NGO Law: Potential Conflicts with International, National, and Foreign Legisltation.” 9 (1) INTERNATIONAL JOURNAL OF NON-PROFIT LAW 34-57.
Långström, Tarja. 2003. TRANSFORMATION IN RUSSIA AND INTERNATIONAL LAW. Leiden: Brill Academic Publishers.
Marochkin, Sergei Yu. 2007. “International Law in the Courts of the Russian Federation: Practice of Application.” 6 (2) CHINESE JOURNAL OF INTERNATIONAL LAW 339-344.
Smith, Gordon. 1996. REFORMING THE RUSSIAN LEGAL SYSTEM. Cambridge: Cambridge University Press.
Terry, James P. 2006. “Moscow’s Corruption of the Law of Armed Conflict: Important Lessons for the 21st Century.” 53 NAVAL LAW REVIEW 73-210.
Tuzmukhamedov, Bakhtiyar. 2003. “The Implementation of International Humanitarian Law in the Russian Federation.” 85 INTERNATIONAL REVIEW OF THE RED CROSS 385-396.
© Copyright 2008 by the author, Shawn Boyne.
Labels: Vol. 18 No. 1