Sovereignty is one of the key elements of any national legal order. Meaningful state sovereignty is an independent public authority of the state in the implementation of external and internal political decisions. However, in the context of increasing trends towards the universalization of legal approaches and the expansion of the interstate cooperation we can observe a certain “blurring” of state sovereignty, is often occurring without the consent of the States themselves.
Taking into account the considerably increased at the present stage of international cooperation the level of activism of bodies of supranational jurisdiction, the relevant issue on the foreign policy agenda for every country that wants to maintain and strengthen international connections, is to preserve and protect their national constitutional identity, the search for a balance between fundamental constitutional norms and international commitments.
increasingly encountered in the practice of international relations out of supranational bodies in making decisions beyond the authority granted to them questioning the possibility of unconditional compliance with these decisions by States parties to relevant international treaties. This naturally leads to the extension of waivers of priority of international law in some cases involving the need for changes in the provisions of national constitutions, which form the basis of legal identity of the state.
In particular, the current practice of application and interpretation of the European Convention on human rights illustrates the increasing activism of the European court of human rights, which is manifested in a broad interpretation of the content of international legal norms, not taking into account the peculiarities of the national legal system of the state.
In this regard, separate legal systems were elaborated the approaches, which does not recognize the validity of the unconditional execution and implementation of the legal positions of supranational subsidiary bodies for the protection of human rights. Otherwise, the States parties to the Convention have actually agreed on the arbitrary and capricious limitation of its sovereignty.
the President of Russia had been proposed to the Constitution of the Russian Federation, in particular, the provisions on the inadmissibility of alienation of the territories of the state, the priority of the Constitution over international treaties, the possibility of pre-checking the Constitutional Court of Russia the admissibility of the application of the decisions of intergovernmental bodies.
At the same time the constitutional Court by evolutive interpretation of the provisions of the Constitution of Russia has repeatedly stressed the importance of state sovereignty and the preservation of national constitutional identity.
the First question of the impossibility of unconditional execution of the decisions of a supranational jurisdiction was raised in connection with the Decision of the ECHR of 7 October 2010 on the case, “Markin vs. Russia”, in which the ECtHR found discrimination of the rights of military men, not possessed, in contrast to women in the armed forces the right to leave to care for a child in accordance with the Russian legislation. Earlier in his Determination of January 15, 2000 № 187-o-O of the constitutional Court of Russia has considered such differences in the legal status of military service men and women is justified because they are related to security and national defense.
However, the most significant in the practice of the constitutional Court of Russia was the Decision of 19 April 2016 № 12-P “on the case of the resolution of the question of the possibility of execution in accordance with the Constitution of the Russian Federation of the decision of the European Court of human rights of 4 July 2013 on the case “Anchugov and Gladkov V. Russia” in connection with the request of the Ministry of justice of the Russian Federation”.
as part of the solution in this case, the constitutional Court formulated the legal position according to which the interaction between the European Convention and the Russian constitutional legal orders is impossible in conditions of subordination, as only a dialogue between different legal systems is the basis of their proper balance, and respect for the ECHR to the national constitutional identity depends largely on the efficiency of norms of the Convention on the protection of human rights and fundamental freedoms in the Russian legal order. The constitutional Court of Russia pointed out: the limits of compromise in this issue outlines the national Constitution, not the Convention for the protection of human rights and fundamental freedoms.
in September 2013 in his speech at the Valdai forum, Russian President Vladimir Putin very clearly outlined that “the sovereignty, independence and integrity of Russia are unconditional, those “red lines” for anyone who can not go.”
Russia has been consistently implementing a policy aimed at the preservation of their own constitutional identity, since the unconditional adherence to the decisions of a supranational jurisdiction can have a very negative effect on the development of domestic law.
Often the activities of international institutions casts doubt on the validity of the implementation of their decisions in the national legal system. As rightly noted by the President of the constitutional Court of the Russian Federation V. D. Zorkin, “Even so conconservative organization like the UN, put the crisis into question the efficacy of the above mentioned supranational structures. And all the national governments of the world began to get out of the crisis, relying on their own capabilities. Negotiating and painstakingly reconciling national and supranational interests – rather than abolishing its sovereignty and obligations to their peoples!”
the Constitutional practice of the rejection of the unconditional priority of international law and the decisions of supranational bodies has been adopted in several European States. Most revealing in this regard is the work of the Federal constitutional Court of Germany, which has formed principled position on the primacy of national constitutional law over provisions of international agreements, Germany.
on 5 may, 2020 Constitutional court of Germany was made a landmark Decision on cases No. 2 BvR 859/15, 2 BvR 1651/15, 2 BvR 2006/15, 2 BvR 980/16 which challenged exceeding the European Central Bank of its existing powers in the adoption of some normative acts related to the implementation of the programme of acquisition of assets of the public sector (Public Sector Purchase Programme), which is in contradiction with the Basic law of Germany.
the Specified program is assumed to be the acquisition of the Central banks of the member States of the European Union, bonds issued by States, their organs and agencies, and institutions of the European Union.
Raised in the decision of questions has previously been the subject of consideration of Court of the European Union, which in its Decision of 11 December 2018 in case C-493/17 confirmed the validity of the adoption of such acts and of the European Central Bank intra vires i.e. within the powers granted to him.
However, the Federal constitutional Court of Germany expressed its disagreement with the position of the Court of the European Union, finding that the regulations of the European Central Bank were adopted in the apparent abuse of their powers and that the actions of the European Central Bank affect the area of budget responsibility of the Bundestag and in conflict with paragraph 3 of article 79 of the German Constitution, because in fact set up to accept government responsibility for initiated by third parties decisions with potentially unpredictable consequences.
In its decision, the Federal constitutional Court of Germany, while recognizing the existing framework of European integration, directly pointed to the inadmissibility of unconditional compliance of normative acts adopted at the European Union level, as well as the decisions of the Court of the European Union in case of their contradiction to the German Constitution.
As noted in the Federal Constitutional Court of Germany, democratic legitimation of state authority in Germany is exercised by the people within the framework of the implementation of the principle of popular sovereignty, which is part of the national constitutional identity, protected by part 3 of article 79 of the Constitution of Germany, which cannot be questioned in view of the European integration. This implies that the Basic law does not authorize state bodies to transfer sovereign powers to the European Union, allowing him at the independent exercise of the relevant powers to actually create new private credentials.
the Federal constitutional Court of Germany, acknowledging the risk of undermining the priority and uniform application of European Union law, on the assumption that if States are fully to refrain from having any control action ultra vires, they provide the bodies of the European Union exclusive competence, the implementation of which may lead to such a broad interpretation of the treaties, which will actually create a new legal norm, the existence of which member States consent is not expressed.
the Court of the European Union in response to this ruling the Federal constitutional Court of Germany on 8 may was published press release No. 58/20, pointing to the need for full compliance by all national authorities, including the courts, law of the European Union. Thus, according to the Court of the European Union, discrepancies in the assessment of the legality of normative acts adopted at the level of the European Union can jeopardize the unity of the European legal order and legal certainty.
be aware that the Federal Constitutional Court of Germany, several attempts to establish a dialogue with the Court of the European Union and to find compromise solutions to emerging legal problems, in particular, in 2014 and 2016 of the Federal constitutional Court of Germany addressed a request to the European Court of justice, which upheld the arguments of the Federal constitutional Court of Germany without attention.
the approach in the Russian Federation on ensuring state sovereignty and the preservation of national constitutional identity is highly relevant to other legal systems. Germany, in turn, also shows a positive example of defending its own sovereignty by recognizing the validity of the rejection of the implementation of the decisions of a supranational jurisdiction which are in conflict with the provisions of the Constitution of the state.
