The Law of Force and the Force of Law (V.D. Zorkin, журнал "Kutafin University Law Review", N 2 (Volume 2), October 2015)

The Law of Force and the Force of Law

V.D. Zorkin,

President of the Constitutional Court of the Russian Federation,

Doctor of Law, Professor

Журнал "Kutafin University Law Review", N 4, October-December 2015, р. 216-241.

The issue of correlation between law and force is crucial for the entire legal thought and practice. Not only the destiny of individual states, but the destiny of the whole humanity as a civilization of law, depends on the way it is resolved. This problem has acquired particular significance and acuteness in the present 'age of global changes'. In the last years these changes occur so fast that legal systems, both national and international, are disastrously not in time with them. Thereby it creates not only a ground for a great number of legal collisions, but also regular situations when intrastate and global processes are out of any legal field. And this means moving into a space where the so called 'law' of force dominates, and in essence - arbitrariness, which is an antipode of law as a measure of freedom. I would like to dwell on this problem in my lecture.

Peculiarities of modern 'age of changes'

One of the main factors of today's changes is globalization acquiring speed and scale, which increases density of communications between countries and regions and intensifies their interconnection and interdependence. Globalization, as any significant phenomenon of social life, has positive and negative aspects. I shall not dwell on positive ones, they are well-known. And among the negative aspects I would single out the fact that globalization introduces colossal instability in our life, which reveals fragility, unreliability, uncertainty of the modern world. Someone, understanding all of this, begins to behave more carefully according to the principle 'let it not collapse'. And the others cynically try to use this 'fragility of being' in their own interests.

Already in the beginning of the 90-s of last century political analysts began to interpret the situation in terms of theory of catastrophes. And in the first decade of this century formulations like 'global turbulence' and 'creating chaos' penetrated into the public lexicon of politicians. Global economic crisis has also seriously influenced this process and has become a detonator of crisis processes in all other spheres of life in the world.

These transformations of national and global reality as well as of the new political language of its description - let us honestly recognize it - caused a certain 'conceptual shock' among a significant number of law scholars, since no current legal doctrines had a relevant conceptual framework for researching this 'turbulent-chaotic reality'.

We should not say that the world juridical community did not react to this situation. But these reactions have not led to any systematic reassessment of national and international legal systems in accordance with changing global reality.

I would not blame the world juridical community for such conservative way of thinking, first of all, because lawyers by virtue of specificity of their social role are obliged to be conservative. Secondly, juridical community is always a flesh of the society's flesh and cannot avoid destabilizing influence of 'turbulent-chaotic' processes that take place in a society. And, finally, juridical community of one or another country is always deeply connected with a concrete socio-cultural reality of a certain society and state and cannot totally 'get rid of this system of interrelations.

Meanwhile, the process of 'turbulent-chaotizing' globalization renders increasing socio-cultural pressure on a society and juridical community of each country. It often creates new, sometimes very complex philosophical and legal questions connected with the problem of correlation between the force of law and the 'law' of force.

Law and justice. Social pillar of law

Ages of changes always test durability of the overwhelming majority of social and state constructions. It is in 'ages of changes' when the danger of conflicts and collisions - both within states and in the field of interstate relations - is increasing rapidly and must be restricted by the force of law. And these changes - evolutionary, or even more, revolutionary ones - have never been totally outstripped by means of legal regulation.

In these circumstances wide public support of the authority and the state is a decisive factor of ensuring social and state stability. Without such support no people and no state can successfully pass 'test on changes'. The main role of such support belongs to mass ideas of due, good and fair rooted in the society. But these ideas are still very different, notwithstanding processes of globalization having already gone very far. I think that the modern humanity tends to prefer Huntington's model of 'Interaction of civilizations' over and above the concepts of 'Liberal globalization' by Fukuyama . To be more precise, it means fair recognition that concepts of the due, good and fair in different socio-cultural areas of the world differ substantially and cannot be reduced to some universal paradigms of 'fair law'.

What does this mean? This means that, on the one hand, there really exists quite wide sphere of sociocultural ideas, common for the entire humanity and constituting 'universal corpse of consent' with regard to the due, good and fair. On the other hand, every society has its own particular historically, religiously and socio-culturally determined spheres that make these ideas on the fair and the due specific for every community.

It follows from here that any legal innovation that can bring a novelty of the 'age of changes' into legal bounds, must correlate with moral norms of the social majority. Here I deem it appropriate to refer to most prominent French sociologist Pierre Bourdieu who underlined that law and law-enforcement can be effective only in the event if an act of legislation and the norm of its juridical interpretation are consonant with public ideas of fairness.

Therefore, moral and ethical ideas of the masses inculcated in the religious tradition of a concrete nation, in its historical culture and experience, as well as in its particular mentality are not trifles, to which the law-maker is entitled not to pay attention. This is the sphere of social values, which cannot be 'canceled' by acts of law or 'reforged' in a voluntary manner. And what is the most important is that exactly in 'ages of changes' - when the system of legal regulation in the part of written law becomes weaker - the sphere of social values often proves to be the key regulator, saving the society and the state from plunging into unlawful chaos of 'war against everybody'.

Let me point out in this connection that all large historical legal movements of the humanity - Hammurabi's Laws, systems of Roman and Magdeburg law, Napoleonic Code were created on the basis of the ideas about the fair, good and due, which were rooted in the mass public ideas of respective age and respective cultural and historical area. And the majority of historical failures of legal regulation are connected exactly with such disastrous gaps between mass social and formal juridical obligation.

One can object that all of the above-mentioned concerns only societies that did not undergo the stage of modernization. They can also assure that consideration of 'retrograde' socio-cultural norms of concrete societies and states only hampers the victorious movement of the global mankind towards unified norms of law and justice. In this connection I would like to specify that even among the most modernized countries of the present world, the views on 'just law' differ very significantly. So, for instance, the majority of states of the USA practice the death penalty and are not going to abolish it. In Scandinavian countries, social majority does not regard the high level of wealth tax reaching 70-80% of income as unjust infringement on the sacred right of private property. And in modern Japan that is definitely has to be considered as a part of the modernized world, as a way of legal disputes settling is widely practiced an achievement of a fair consent between parties not through court decisions, but on the basis of convincing of parties of the conflict by informal groups of collective mediators.

Human rights and society

One of the most acute and problematic spheres of legal regulation of the present 'age of changes' involves conflicts around content and scope of human rights concept.

I shall not dwell on definitions of human rights contained in fundamental decisions of the UN and other basic international legal documents. I would like just to stress that all these international normative documents underline individual, personal character of the inalienable human rights, but to a significant extent omit or take out of brackets the indisputable fact that human is a social creature.

In this connection I would like to point out that in relation to a society the basic lists of human rights include only rights of individual communities such as the right of associations and the right of unions that do not provide protection of any rights of the society in general. This is typical for Western culture paradigmatic idea that individualism and personal egoism always dominate in the 'core' of human nature. Apparently, it was the Ex-Prime Minister of the Great Britain Margaret Thatcher who precisely formulated this idea typical for the Western culture and declared more than once: 'There is no such thing as society. There are individual men and women, and there are families.'

Human being, however, is a social and political creature, and its social nature has not devalued for more than two thousand years that passed after Aristotle defined it. Humans - men, women and their families are united in a society, where not necessarily openly manifested but quite certain system of moral and ethical priorities does exist. This system which, of course, is not motionless and absolute, but nevertheless to one or another extent reveals itself when personal and collective decisions are adopted. And it reveals itself in a different way that depends on personal and collective feeling of complexity, danger, and crucial character of the situation in which individual and society, have found themselves.

Nevertheless, practically in all types of societies in crucial situations the slogan 'Fatherland is in danger' proves to be the most effective. And wide social consensus arises from the readiness to bear expenses and sacrifice not only for the sake of someone's present and future personal well-being and happiness of one's own family, but also for the sake of all people constituting certain national community. In societies in which socio-historical trajectory has inculcated more pronounced individualism, the degree of such readiness to take upon oneself social responsibility and bear expenses is, as a rule, lower than in societies that socio-historically were formed on the basis of strong and steady collectivist ideas. But this 'social feeling' exists practically in any society.

In my view, one of the most dangerous legal trends in the present 'age of changes' is the fact that human rights are more and more insistently opposed to the rights of society. And the society is not regarded as something integral while the individual is indisputable and clear-cut. Proceeding from this, individual is gaining more and more indisputable and wide rights. And the main part of society does usually consist of the sort of a so-called 'silent majority' for whom existence of legal norms determining personal rights and rights of incorporated communities is enough.

Wrongness of such approach is most often found exactly in the collisions of the 'age of changes', when it is the 'silent majority' that by participation or non-participation in changes saves or destroys social and state organism depending on whether the changes have received moral sanction of this 'silent majority', whether this majority is ready to recognize these changes as due, good and fair.

One of recent examples, demonstrating the danger of disrespect of feelings of social majority is the situation in France around terrorist attack of the editorial office of the newspaper the Charlie Hebdo, which took place after publication of scandalous caricatures of Prophet Mohammad. The newspaper has never been widely popular and was perceived by almost the whole French society with certain disgust, because its editorial policy to a significant extent was built on purposeful shocking insult of feelings of the believers of the basic religions of the country. But mass action 'I am Charlie', organized by the authorities and a number of liberal communities of the Republic, as many sociologists acknowledged, disastrously split the society and abruptly weakened social support of the authorities, because this action was perceived by an essential part of the French society not as a just indignation at inhuman terrorist action, but as demonstration of solidarity of the state power with immoral editorial policy of the Charlie Hebdo.

To create our successful future one must deeply understand the present, i.e. seriously research what experts call formula of social and cultural identity of a nation. It is important to research and understand: what exactly in the world trends, in Russian economic, legal, social, cultural policy, as well as in spontaneous and organized regional processes creates prerequisites and conditions for the growth of socio-cultural split.

These prerequisites and conditions, according to available researches, lie in the field of imperfection of legislation, in the 'sins' of law-enforcement, in the content and quality of TV programmes and school educational programmes, in blockading (at the expense of disastrous economic stratification) the channels of vertical social mobility for people coming from indigent families. The attempts through propaganda and legal acts to impose on our society - still in its essence deeply traditional - the psychological and legal novation unacceptable for its ethnic, family and confessional normativity are of the same nature. This novation includes for example obligations of tolerance for any kind of 'abandon', i.e. unlimited tolerance and, as regards its law-destructive consequences for socio-cultural identity of Russia - pitiless tolerance.

All these new trends did not appear from nowhere, they are engendered by some social problems. But one must not ignore danger that brings the concept of 'Post-Christian Europe' with which the mentioned novation matches well. Advocates of this concept claim that Christian values and culture and norms of social behavior based on them do not make sense anymore. And that in the name of human rights rehabilitation and release of human instincts, repressed by culture, are required. I cannot but agree with researches asking in this connection: is a human being with unbounded free instincts really a human, does he have the right to be named so?

Humans have been distinguished from the animals first of all thanks to the system of rigid restriction of some instincts that was formed and fixed at a very early stage of human commensalism development, without which human evolution would take another path. Detriment of normative character of human society by way of renunciation of some fundamental socio-biological imperatives on which it was primordially based (and which were not by chance supported and sanctified by Christianity) means alteration of some fundamental anthropological characteristics of the human. Perhaps, the humanity one time will take this path, but it will not be the humanity we know and maybe - not the humanity in its real sense. Obviously, at least a great cautiousness is necessary here.

For legal scholars, the problem of notion of social norm connected with this topic is particularly important. Analyzing this problem, one should have regard to that social norm is to help to preserve and develop the society (but not to destroy). Law can be neutral towards certain deviations from social norms, but it hardly must support efforts to propagandize such deviations. This propaganda is aimed at collapse of normativity of society leading to loss of its identity. In the meanwhile in concrete historical conditions law is a part of the normative system of exactly this society and not of any other. There is a sharp difference between norms rooted in society and trends of propagandized and observed changes in Russian reality that constitutes serious factor of growing socio-cultural split which sociologists note with concern and due to which they consider the present relative Russian stability fragile and unsteady. Having said this, I do not call to return to a certain 'safe past'. This would be both unwise and impossible: one cannot enter the river of history twice. And the main thing is that we cannot refuse changes in order to avoid risks. Changes are necessary; this necessity is dictated both by own development of Russian society and international contexts, which Russia has already plunged into and which it cannot jump out of.

Modernization and the regulatory role of the State

Many experts claim that one of the main signs of the present 'age of changes' is a world process of modernization, expanding under the pressure of globalization. I share this view, but at the same time I cannot but note that in this case in the Western political thought modernization is almost always understood as westernization, i.e. implementation of the institutions and models of political organization and - what is extremely important for us - legal norms and systems of legal regulation which were formed and are applied in the developed countries of the West.

What's more, creation of democratic, social and legal system is practically always the conceptual 'core' and compulsory priority in West theories of modernization, i.e. democracy is the basic preliminary condition of modernization. And democratization according to these theories includes maximum weakening of the state-legal regulation of all spheres of social life.

I would like to stress that I sincerely support a democratic organization of a society and state. But such simplified approach to modernization, I should admit, causes a deep perplexity.

First of all, such approach seems to me deeply anti-historical. Authors of such theories of modernization/westernization for some reason forget that it took several centuries to come to the present democratic social and state organization of Western developed countries. And none of them managed to move from traditional society to the modernized one by means of a single short-term 'jump'.

Secondly, modernization of all - without any exception - countries of the Western world was very painful and very bloody. This process has been researched in detail by scholars who in general admit that, for instance, the success of modernization in England turned out to be ensured by determination of authorities, savageness of laws and might of state mechanisms that guaranteed rigorous implementation of laws. Further, it is worth mentioning that in the present country of 'exemplary democratic modern', the United States of America, 150 years ago the murderous Civil War between the North and the South was needed in order to come to successful modernization.

And these are not individual cases. More than once I asked my foreign colleagues about 'democratization and modernization'. And no one of them could give an example when large modernization transformations of society and state happened as a result of preliminary inculcation of institutions of developed democracy. However there are plenty of the opposite examples. Socio-political researches of the last decades in different countries of the world convincingly show that democratization and weakening of strictness of regulative functions of the state and legal institutions have to appear and are fixed only as a result of successful modernization but not as its prerequisite. The perfect example is the 'Singapore Miracle', which has become - as experts show - the result of authoritarian modernization.

It seems that the myth about good influence of weakening of the state regulation as a prerequisite of modernization reforms grew from liberal postulates of the 'free market economy'. The basis of such, in my view, erroneous mythologizing of the modernization process is building scientifically incorrect analogy between the 'invisible hand of the market' and 'dozing social element of the society'. One simply should not hinder neither one nor another, and they will themselves create the best, i.e. optimal in the given conditions, state of economy, society and state.

I shall not contest economical part of this analogy since it is beyond my professional competence. However, in the course of the present global economic crisis the majority of prominent economists admitted that this was excessive confidence in the 'invisible hand of the market' that led to global deregulation of basic financial institutions and has become the fountainhead of the crisis.

But as to the state and legal regulation of social life, there are more than enough grounds for refuting this analogy. Apart from what I have already said, I want to draw attention to the very significant example of today's Libya.

Libya prior to external interference with the object to overthrow Qaddafi represented a typical example of authoritarian modernization. There was a rigid authoritarian state regime there. And simultaneously

there was the highest living standard in Arabic Africa, developed system of social security of the population, modern system of secondary and higher education, growing industry.

External interference with the aim of 'overthrow of authoritarian tyrant and establishment of democracy' brought the country down to deep middle ages and stateless condition. Instead of democratic modernization and law-governed state the population received outburst of hundreds of large and small ethno-tribal gangs, which has already splashed out far beyond former Libyan state territory.

I cannot but point out that a very similar process of 'democratizing bringing down of statehood' at the expense of external interference is now taking place now in Syria and Yemen.

As a resume of this topic let me remind once again that any large society is too complex and big to directly perform diverse functions of political, economic, social, and legal regulation. This concerns more modern societies, representing social mechanisms of incredible complexity. And even more, it concerns modern societies, very widely open to the globalizing world and in addition having ambitious tasks of deep modernization. In such conditions liberal conception 'state as a night watchman' with minimal functions is categorically insufficient for fulfilment of development tasks. In such conditions the real priority of democratization is not weakening of regulative state role but amelioration of regulation in all spheres of social and state life. Such regulation must be wise, careful and correlative with the present condition, goals and values of the society.

Only this, I am convinced, will enable us to democratize and improve the state and the society. Only this is the way to create full-value law-governed society and law-governed state.

State sovereignty and international law

In a month's time it will be 70 years since the foundation of the United Nations Organization. Undisputed and great merit of the UN, which nobody and nothing can derogate, is the fact that the humanity has lived 70 years without big wars. Undisputed problem of the UN is the fact that the Organization's mechanisms did not allow to prevent a great number of bloody local wars and their tragic consequences.

The UN, as follows both from its name and its Charter, is the organization of united nations-states, i.e. it has been created and is functioning on the basis of voluntary decisions of sovereign states, which within the framework of the United Nations unite their sovereign efforts in order to reach common goals in a global world. These sovereign states granted UN the right to take decisions involving-national interests of all states-parties.

After the UN other international organizations were created by common efforts of sovereign states, which were granted the right to take decisions involving-national interests of states-parties. Those decisions of states having joined the UN and other international organizations could not but put the question of interrelations of international legal acts with national legal provisions. And I would like to expound my legal position on this issue, which, I should note, in general conforms to some of my colleagues' position from the constitutional courts in Europe.

I think that Russia's participation in various international conventions and agreements of global and regional level does not mean at all delegating one or another part of state sovereignty of Russia. Membership in the United Nations means association but not delegation of sovereignties. It is on the basis of the united nations and united sovereignties (joint sovereignties, 'pooling' sovereignties) that the UN was created.

Accordingly, participation of Russia in international agreements and conventions only means that Russia voluntarily takes upon itself obligations enumerated in these international documents and voluntarily leaves for itself sovereign right of final decisions in accordance with the Constitution of the Russian Federation in case of disputable moments or legal collisions.

I would like to underline that the provision about priority of national lawis clearly written in the Russian Constitution. In accordance with Section l of Article 15 of our Constitution the Constitution of Russia has supreme legal force in the system of legal acts. But at the same time in Section 4 of the same Article 15 of the Constitution of the Russian Federation it is written that universally recognized principles and norms of international law and international agreements are an integral part of the legal system of Russia. The Article also specifies that if an international agreement of the Russian Federation establishes different rules from those stipulated by national law, then the rules of the international agreement shall be applied. And this fact is often considered as collision in our Basic Law.

I am convinced that there is no real collision. By virtue of the supremacy of the Constitution any international legal establishments must be interpreted as concretization of the provisions of the Constitution, but cannot be applied if they go beyond the bounds of the legal meaning laid in the Constitution. Similar in their meaning decisions-precedents with regard to constitutional interpretation of international legal norms are already known and are widely discussed among lawyers, specialists in constitutional law.

For instance, the Federal Constitutional Court of Germany in a number of its judgments formulated and substantiated the legal position 'about limited legal force of the judgments of the European Court'. According to this position, 'the state has the right not to take into account the decision of the European Court in cases and in the parts contradicting constitutional values protected by the Basic Law of Germany'. The Constitutional Court of Austria turned down the legal position of the European Court on the same grounds. Having noted the need to take judicial practice and decisions of the ECtHR into account, the Constitutional Court of Austria pointed out that it cannot admit application of decisions and legal position of the European Court which contradict the principles of Austrian constitution. Similar decisions about the refusal to admit legal position of the European Court because of its contradiction to the principles of national constitution were adopted by the constitutional courts of France and Switzerland.

The similar positions were formulated also by the Constitutional Court of the Russian Federation (Judgment of 6 December 2012).

The constitution and international criminal justice

Let me note that Russia signed, but still has not ratified the Rome Statute of the International Criminal Court (ICC). The main reason for it is that some of its articles contradict both the Constitution of the Russian Federation and the basic international legal documents.

According to Section 1 of Article 61 of the Constitution a citizen of the Russian Federation cannot be deported from the Russian Federation or extradited to another state. Bearing in mind the constitutional-law meaning of the notions 'deportation' and 'extradition', ratification of the Statute of the ICC by Russia requires preliminary amendment to this Article. But taking into account that this ban is contained in Chapter 2 of the Constitution, such amendment is impossible without adoption of a new Constitution!

Further, in accordance with the International Convention of 1973 on prevention and punishment of crimes against persons enjoying international protection, including diplomatic agents, a head of state is always under international protection when he stays on the territory of a foreign state. At the same time, the ICC Statute in Article 27 points at inadmissibility to refer to official status of an accused which should mean a possibility to apply the Statute to the heads of state and governments, as well as to the members of the government and parliament.

At the same time the mentioned Article of the ICC Statute contradicts Articles 91 and 98 of the Constitution of the Russian Federation, which guarantee immunity of the President, members of the Council of Federation and the State Duma. Exceptions to the principle поп bis in idem (the ban to try twice for the same crime), envisaged by Section 3 of Article 20 of the Statute, contradict Article 50 of the Constitution of the Russian Federation, admitting no exceptions to this principle. Article 89 of the Statute that provides handing the accused persons over to the ICC contradicts Article 61 of the Russian Constitution, guaranteeing that a citizen of the Russian Federation cannot be deported from the Russian Federation or extradited to another state.

However, I suppose there is another reason why the ICC Rome Statute was not signed and ratified by many countries in the world. These countries feel certain - and as I have shown reasonable, - distrust to the formed system of international criminal law. These countries cannot but 'try on themselves' the abovementioned and other precedents, when international criminal justice goes beyond the bounds of its sovereignty and jurisdiction.

These countries realize the possibility of the Court's politicizing, because it has a right to decide on its own discretion which state in which cases demonstrates unwillingness or inability to investigate a crime and initiate criminal persecution of persons suspected of committing it. As a result, the Court on its own discretion determines lawfulness of international interference in intrastate affairs.

These countries understand that the ICC, for example, can be used by authorities or internal opposing forces of a country in order to resolve an internal political conflict in their interests by way of provoking criminal excesses by these forces and involve international justice in this conflict. Let us note that 'post-maidan' Ukraine now acts like this, having not ratified the Rome Statute but having made an official statement about recognition of ICC's jurisdiction.

Countries that do not ratify the ICC Rome Statute cannot but see - and in the modern information-transparent world truth comes out very quickly, - that within an information war some decisions of international courts are taken against political leaders of one of the sides of a conflict, with a clear 'accusative slant' in respect of this side with a use of falsified prosecution evidence, i.e. in the spirit of 'double standards' policy.

In this sense the international courts' practice of introduction of legal novels going beyond the bounds of international law and receiving a sort of precedent legitimation in their decisions causes particular concerns. Such practice causes well-founded suspicions that it would be used by external forces, able to render hidden pressure on courts with the aim of removal unpleasing state leaders from the political stage and internal political transformation of 'disturbing' countries.

Finally, the analysis of statutes and experience of activity of the existing international courts shows that explicit recognition of their jurisdiction almost always means not only legal conflict with the Basic Law of a respective country, but also refusal to apply the most important principles of the Basic Law, i.e. voluntary removal of important elements of national legal sovereignty in favor of an international court.

Such approach to universalization of international criminal law seems unacceptable to many countries, including Russia. It leads to undermining of the basis of international law - the principle of sovereignty of the state-nation and the principle of creation of the UN as a union, but not for withdrawal of sovereignties.

However, the above-mentioned does not mean at all that in the world community of law-governed sovereign states there must not operate certain universal norms of international criminal law and judicial institutions, which would control implementation of these norms. Also it is completely justified to transfer the function of judicial persecution of offenders to the mentioned institutions in the event if a sovereign state for some reasons fails to cope with this function and turns to international community for help. Undoubtedly, it is inadmissible if persons guilty in terrorism and other crimes against humaneness evade of responsibility.

The point is that universal norms should fully conform to the Constitution and the system of legal provisions adopted by international community and Russia, ratified by respective states, and international judicial institutions should fully observe universal norms.

However, as I have shown above, it is a long way to this perfect situation. And it is not only and not so much the leadership or composition of international courts to blame for it. As I have noticed more than once, one of the most serious problems of international law-enforcement is the fact that ten Basic Principles of international law, formulated in the UN Charter, are not mutually tied up in a strict legal system that would allow to apply those principles without legal collisions.

As a result, while elaborating legislative decisions and applying them, someone may consider that there is nothing more important than sovereignty and territorial integrity of the state, and the other one - that sovereignty and territorial integrity can be disregarded, if it is the point of the right of nations to self-determination or protection of human rights.

It is obvious that ten Basic Principles in their present form represent vast 'field of uncertainty' for those collisions. Against the backdrop of such collisions we can see in international law-making and law-enforcement process both the attempts to return to precedent support of 'unprecedented law of Nuremberg' and the attempts to impose 'law of the strong' through international criminal courts.

As I have already mentioned, it seems to me that the only way out of this problematic situation is to turn to legal decoding of the Basic Principles of the UN Charter in their coordinated and systematic integrity. That should mean strict juridical definition of conditions as well as necessary and sufficient bounds of international bodies' interference with internal affairs of sovereign states and restriction of competencies of constitutional law. It also should include precise definition of conditions and normative situations in which some or other Basic Principles get a priority and clear codification of circle of competencies of the national state and super-national bodies in the field of criminal judicial proceedings, etc.

In any case, in my view, conceptual work on a problem of interconnection of constitutional and international legal orders, correlation of competencies of national legislation and norms of international law is one of the most important and pressing-tasks of modern legal science. In this field, as the present experience of escalation of global challenges shows, there is no more room for delay and individual palliative solutions. Moreover, without solving these conceptual questions, in my opinion, we will not succeed in building effective and trustworthy system of institutions of international criminal judicial proceedings.

Thus, world constitutional practice shows that correct legal position in the field of correlation of international and national law consists in implementation of international provisions in cases when they do not break principles and spirit of the national constitution. And this is how national sovereignty can and must be preserved and maintained in the globalizing world.

In this connection let me remind once again that all contemporary international organizations were created by voluntary decisions of sovereign states. And these sovereign states are the only primary source of legal powers of international organizations. Any other sources do not exist.

On interference by the world community in affairs of sovereign States

In the contemporary theory and practice of international relations this question is the most acute and complicated. The possibility of such interference was admitted within the framework of the doctrine of 'humanitarian interventions', and in 2005 the UN adopted the concept called 'Obligation to Protect'. My position on this issue is as follows. Certainly, I don't controvert the interference of international community and the UN in the event of scandalous human rights violations in one or another country. However, the problem is about principles, mechanisms and procedures which should guarantee that such intervention will not lead to deterioration of humanitarian situation and to even more scandalous violations of human rights.

By the present time these 'guaranteeing' principles, mechanisms and procedures in the legal sense have been worked out obviously insufficiently. And the experience of intervention is often negative. And it is absolutely inadmissible if such intervention is carried out with no UN sanction. Advocates of this approach complain that countries-initiators of the intervention cannot receive legal sanction for such intervention in the form UN Security Council's decision because of a veto of one of the permanent members of the Security Council. And on this ground they suggest to reform the UN Security Council, depriving permanent members of the Security Council of the right of veto.

I confess that I see neither political nor legal logic in such suggestions. First, in the Post-Soviet history of the present 'turbulent-chaotic' world there is, for the time being, no example of a situation in which 'humanitarian intervention' would bring positive political, social, economic results to the country-object of intervention. Secondly, it is the right of veto of permanent members of the UN Security Council that protects the UN against dangerous decisions on intervention. If there is no right like this, intervention will turn into jinnee released from a bottle. That would become absolutely illegitimate. It is hardly possible that someone does not understand that throwing a light on just one failed intervention in the name of the UN can irreversibly undermine international legal authority of the organization.

Law and the situation about Crimea. The principle of territorial integrity of a State and the principle of equality and self-determination of peoples

Considering modern international system in the light of correlation between force of law and 'law' of force, it is impossible to pass over the situation around Crimea, which is interpreted by the West as a starting point of the present international crisis. The West now claims that it was Russia, which by its annexation of Crimea provoked international tension. But let us restore the history of events in Ukraine and consider them from the standpoint of constitutional-law approach.

In my article, published in March 2015 in Rossiyskaya Gazeta, I expounded the factual side of the matter in detail. I shall not repeat myself and dwell only on the following general conclusions:

- within the framework of 'Maidan-2014' unconstitutional coup d'etat was carried out by forcible methods;

- Ukrainian authorities, which in accordance with the Constitution and legislation of the country could and should have cut off this coup, did not use possibilities they had;

- the West blatantly, insistently and consistently supported the shift of political confrontation to unconstitutional forcible seizure of power;

- new Ukrainian authorities, established after the coup d'etat, adopted a nationalist, anti-Russian attitude, which frightened and incited Crimea's population against it.

Crimea held a referendum and, proceeding from its results, joined the composition of Russia. The decision of the Constitutional Court of Russia on Crimea was adopted. Within the framework of this decision the Constitutional Court had to accomplish the following tasks: 1) to establish accordance of the request of the Head of State to criteria of admissibility of a constitutional request; 2) to carry out the treaty review as to its form and procedure of signing; 3) to verify conformity of the treaty's contents to constitutional provisions. This decision of the Constitutional Court is now subject to many-sided, including critical, analysis. I shall not respond to this criticism; this work was professionally and convincingly done by staff-members of the Court's apparatus in their scientific articles. The question about 'pain points' of modern law that were revealed in connection with 'Crimean situation' seems to me much more important.

Among the claims to Russia submitted by the West at the moment, the following two sound particularly abruptly: 1) rendering pressure on Crimea's population in the course of the referendum; and 2) violation of the territorial integrity of Ukraine.

As to the first claim - legitimacy of the referendum, - I think that any doubts about it are unfounded. Primary choice made by Crimean residents at the referendum was confirmed by their subsequent mood. Telephone opinion poll of the Crimea's population held in January 2015 (held, which is important, by a Ukrainian company supported by a Canadian foundation!) showed that 82% of respondents fully supported joining Russia, 11% - rather supported, and only 4% said no.

The second argument leaning on the principle of territorial integrity of states deserves much more attention. I fully share concerns with regard to the danger of making wobbly the Yalta-Potsdam international law system, which constitutes the basis of the world order formed on the outcome of the World War II. But disregard of the fact that after the collapse of the USSR these borders were more than once substantially, and the main thing - hastily and rashly altered, constitutes serious threat to international security.

Situation with Crimea is, perhaps, the most glaring example of such rashness. As it is well known, norms of law are very abstract, whereas any life situation in which they are applied is historically concrete. In the present case this concreteness is high enough to allow to adduce much more convincing (I would say indisputable from the historical point of view) arguments in favor of reunion of Crimea with Russia than in the event of the so called Kosovo precedent, to which Crimean authorities referred. Meanwhile, five years ago the UN International Court of Justice recognized legitimacy of unilateral declaration of Kosovo's independence, having declared that international law contains no ban on declarations of independence and that Kosovo precedent does not contradict norms of international law. The same attitude was earlier adopted by the USA and the majority of countries-members of the EU. However in Kosovo, contrary to the ideas of the lawyer Barack Hussein Obama, no referendum was held. And this is not the only distinction testifying not in favor of 'Kosovo' comparing with 'Crimea'.

I shall not speak in this connection about double standards in the field of international law, particularly in the field of application of the principle of territorial integrity of states. I would like to concentrate my attention on theoretical aspects of correlation of such principles of international law as the principle of territorial integrity of a state and the principle of equality and self-determination of peoples. Because if you do not have theoretical construction allowing to correlate these principles between them, then you have no legal criteria for appraisal of situation arising in the practice of international relations, connected with application of these principles.

To elaborate such construction, one must, first, understand the essence of basic trends of contemporary international-law development, and, secondly, see middle-term and long-term prospects of the global legal development of humankind. At each historical stage practice under the influence of numerous factors builds its own balance of these basic competing each other international-law principles. And at some point practice itself, breaks this balance under the influence of new factors. And here it is important to understand, what trends and prospects conform to some or other events and processes which change the formed status-quo.

The collapse of the USSR and following demolition of bipolar system of the world order undoubtedly belong to the number of such events and processes, having rendered epoch-making influence both on international and global relations. As a result, that negatively affected the Yalta-Potsdam agreements, concerning the state borders and being the foundation of European stability. Political and legal uncertainty arose in very complicated processes, determined by contradictory influence of globalization on national identity of many peoples.

We can see that the idea of state self-determination moves to the plane of practical politics for greater number of peoples that have no own statehood. In the beginning of the 20th century there were 50 national states, and in the beginning of the present century there are 250 of them. And this process, to all appearances, is not completed. Now in the international political and legal practice different models of solving questions of this sort are being tested. These are: high model demonstrated by the referendum on independence in Scotland; constitutional ban on the similar referendum in Spain, blockading the possibility of Catalonia's secession; very disputable from legal point of view Kosovo model, etc.

I think that in all disputable cases - when the balance is sought between the principle of territorial integrity of a state, on the one hand, and the principle of self-determination of the people, on the other - the choice must be inclined to that alternative of solving the dispute, which is connected with the minimum abuse of human rights. This is the criterion that must be used for analysis of the whole diversity of factors, determining uniqueness of one or another situation arising in the practice of international relations.

If we seriously hope that the humanity can develop towards a voluntary union of sovereign equal nations, we must recognize that such prospect contemplates greater and greater degree of freedom of nations and peoples in the choice of their state self-identification. Such approach to understanding of the prospects of global legal development helps us to choose correct criteria for appraisal of very complicated modern realities. The essence of such an approach is that if people have expressed their will peacefully, in the appropriate political and legal forms, international community must be considerate to it. This is a legal in essence approach to the solution of the problem, so far as it is based on the principle of formal equality of nations and peoples. This logic the situation analysis was in the hidden meaning of the Constitutional Court's decision on Crimea.

On unconstitutional replacement of State power

In connection with political crisis in Ukraine and its development into an acute political and legal crisis of international scale, attention to the question of forcible, unconstitutional replacement of state power has become keener.

As to coups d'etat, which in case of their success are called revolutions, I would like to say the following. Although people may resort to uprising against tyranny and oppression as the last resort, the Constitution of Russia as a democratic law-governed state does not admit unconstitutional replacement of power, and forcible seizure of power and armed mutiny are criminally persecuted. I cannot but note that state turnover as a means to solve problems is illness, pathology of political organism. In any case, in Russia they did not manage to solve the most important problems standing before the country by way of revolutions and turnovers. And they paid too high a price for what they managed to do.

This fully relates to the coup d'etat which took place in 1993, when after the unconstitutional Decree No. 1400 of President Yeltsyn the executive authority roughly used force against representative authority, which did not obey this Decree. I constantly go back to tragic events of October 1993, so far as I think that they in many respects predetermined the whole subsequent history not only of Russia, but also of the other post-socialist states. I suppose that, while analyzing these events, one should pay attention first of all to the following points.

Supported by the West and passionately approved by domestic pseudo-liberals, Yeltsyn's Decree No. 1400 became the first precedent of the roughest destruction of forming constitutional law and (what is particularly important) of legal conscience that just started to take place in people's mind of the main post-communist country; precedent, from which technologies of 'color revolutions' later were spread on the entire post-communist expanse and beyond its bounds.

One moment, important for understanding of the situation, to which I should like to draw attention in connection with the Decree No. 1400, is as follows. In his TV speech, addressing to citizens of Russia that was made immediately after signing of the Decree Boris Yeltsyn emphasized (quote): 'The most glaring is the so called economic policy of the Supreme Soviet, its decisions on budget, privatization.' I think here the main thing was said. The Supreme Soviet (with all its shortcomings) really wanted to decrease consequences of 'shock therapy' for the population and hindered dishonest privatization which was gaining turns at that time. In which, by the way, American advisers played considerable (and, as we know, not disinterested) role.

History will show who was right in this dispute. But now it is already clear that by their predatory privatization the Government of pseudo-liberals caused damage to economy, social relations, political and legal development of the country, the consequences of which will be felt for a very long time. How can a society normally develop, if a social stratification acquired such improperly sharp character that even according to official data the decile ratio in Russia has already exceeded the critical ten-fold value and achieved an index of 16-17 units now? I shall not announce unofficial data of experts. Explosive character of such state of affairs is demonstrated by situation in Ukraine where behind reasons and causes of the conflict that are on the surface there hides such a deep-laid factor as undermining of fundamentals of social justice determined by oligarchic structure of the economy.

But particularly disastrous in its consequences became the derogation of moral bases of Russian society, its labor ethics and solidarity orientations. It is very significant that nowadays, according to sociologists' data, 'moral degradation of considerable sections of the population' forms part of the first three internal Russian events and processes, which every second Russian citizen feels strong concern about. This position in the rating of internal threats outstrips even the concern about reduction of the living standard (43%, i.e. less than half of the questioned citizens pointed at this factor).

Our pseudo-liberals in their reasoning about the state and prospects of the development of law and democracy in the country usually 'jump over' these processes, leaving them beyond the framework of their analysis. I say 'pseudo-liberals', because orientation towards Western models of liberalism, totally ignoring the peculiarities of historical development of our country, including such key events of its recent history as unlawful privatization, means the wish to ensure freedom of some citizens of the country at the expense of others. For me, the icon of domestic liberalism is an outstanding Russian legal scholar and philosopher Boris Chicherin (1828-1904), who stood up for the liberalism that could be compatible with realities of Russian life. And as long as these realities exist his formula 'Liberal measures and strong authority' remains, actual.

In this connection I cannot but say that it is from the side of this flank of political spectrum in the recent time we mostly hear appeals to adopt new Constitution implying another model of separation of powers. In my opinion, such appeals cover inability or unwillingness to see real problems of the country, which cannot be solved by way of redistribution of powers between President and the Parliament. I do not exclude at all the possibility of spot changes of the Constitution, including those aimed at widening of the Parliament's powers. But to hope that these changes can cardinally ameliorate something in real political and legal relations is to fall into legal idealism.

Constitution is a formalized public treaty about principles of state and social structure that must be based on real public treaty. But what kind of a public treaty can exist in a society where social stratification is beyond any reasonable bounds? Above all, in the country where injustice of social differentiation does not cause any doubts. Neither of drafts of the new Constitution that are discussed nowadays, does not offer any solution of this key problem.

What's more, those who fight for principal changes of the Basic Law of Russia underestimate huge and far from exhausted legal potential of our Constitution. We must now be engaged not in constitutional reform (which can only aggravate the existing socio-political split), but in creation of the base to reach a real public agreement. And for this we must first of all understand, in which moment of recent history of the country we missed a chance to create more just society. Because it is a justice of social organization that is the basis of public agreement and the main guarantee of healthy political and legal development of the country.

Thinking about above-mentioned, I am going back to perestroika in my mind - the period of great changes and great hopes. Recently I have even decided to republish one of my articles of that period published in th eBulletin of the Academy of Sciences of the USSR. Of course, from the high level of today hopes that Soviet system can evolve towards socialist law-governed state seem naive to me. As many people at that time, I underestimated the depth of latent at that moment socio-political split in the society. But two principal provisions of that article, in my view, remain still actual, today.

The first idea is about the new bodies of power (renewed Soviets as I supposed at that time) that had to become a political form of 'the society of independent citizens-owners', but not to rise themselves as 'an omnipotent superstructure over a mass of people - cogs in the machine with no rights and face'. Now I can (i.e. with regard to the present situation) repeat my words that alienation of the working people from power can be overcome only by liquidation of their alienation from property. And the second point of the article concerned the thoughts about the need of radical reforming of the then communist party that would have led to 'actual two-party system within the framework of legal multi-party system'. I supposed that at that moment the country had 'chances to come to two-party socialist system by way of reforms' and on its basis gradually, without abrupt essential shocks and revolutions to develop towards legal democracy. The problem of coming to the point of having two balanced parties as a necessary element of legal democracy is still topical for Russia.

In conclusion

I would like to emphasize a circumstance, important for understanding the mentioned above. Lately they more and more often say that the West, and especially the USA, imposes its values on the rest of the world in accordance with the principle 'the one who has force has a right'. But this is only one side of the coin. The other one, which should not be forgotten, is the fact that it is the law of the modernism, which has emancipated creative activity of people, that has become the main source of Western economic might.

For Russia, it should mean that surmounting of the legal barrier by the country is the most important precondition of ensuring well-being of the entire Russian society and each of its citizens in the modern complicated, contradictory globalizing world. Therefore, that is the main guarantee of the possibility for the country to defend its geopolitical interests and socio-cultural identity.