176
i n t e r nat i o na l l aw
its territorial integrity and its people, ‘in accordance with the Constitution
and the principles of international law regulating the use of force’.
243
The Russian Federation adopted a new constitution in 1993.
244
Un-
der article 86, the President negotiates and signs treaties and signs the
ratification documents, while under article 106 the Federal Council (the
upper chamber of the federal parliament) must consider those federal
laws adopted by the State Duma (the lower chamber) that concern the
ratification and denunciation of international agreements. The Consti-
tutional Court may review the constitutionality of treaties not yet in
force (article 125(2)) and treaties that conflict with the Constitution are
not to be given effect (article 125(6)). Article 15(4) of the new consti-
tution provides that ‘the generally recognised principles and norms of
international law and the international treaties of the Russian Federation
shall constitute part of its legal system. If an international treaty of the
Russian Federation establishes other rules than those stipulated by the law,
the rules of the international treaty shall apply.’ Thus both treaty law and
customary law are incorporated into Russian law, while treaty rules have
a higher status than domestic laws.
245
The Constitutional Court takes the
view that customary international law and international treaties ratified
by Russia are norms incorporated into Russian law.
246
243
Note that O’Regan J stated in
Kaunda
v.
President of the Republic of South Africa
that ‘our
Constitution recognises and asserts that, after decades of isolation, South Africa is now a
member of the community of nations, and a bearer of obligations and responsibilities in
terms of international law’, CCT 23/04, [2004] ZACC 5, para. 222.
244
See G. M. Danilenko, ‘The New Russian Constitution and International Law’, 88 AJIL,
1994, p. 451 and Danilenko, ‘Implementation of International Law in CIS States: Theory
and Practice’, 10 EJIL, 1999, p. 51; V. S. Vereshchetin, ‘New Constitutions and the Old
Problem of the Relationship between International Law and National Law’, 7 EJIL, 1996,
p. 29, and S. Y. Marochkin, ‘International Law in the Courts of the Russian Federation:
Practice of Application’, 6 Chinese JIL, 2007, p. 329. See, as regards the practice of the
Soviet Union, K. Grzybowski,
Soviet Public International Law
, Leiden, 1970, pp. 30–2.
245
See also article 5 of the Russian Federal Law on International Treaties adopted on 16
June 1995, 34 ILM, 1995, p. 1370. This repeats article 15(4) of the Constitution and also
provides that ‘the provisions of officially published international treaties of the Russian
Federation which do not require the publication of intra-state acts for application shall
operate in the Russian Federation directly. Respective legal acts shall be adopted in order
to effectuate other provisions of international treaties of the Russian Federation.’ See
further W. E. Butler,
The Law of Treaties in Russia and the Commonwealth of Independent
States
, Cambridge, 2002, who notes that the change brought about by article 15(4) ‘is
among the most momentous changes of the twentieth century in the development of
Russian Law’, at p. 36.
246
Butler,
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