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 Chechnya's Right of Secession under Russian Constitutional Law

Diana Draganova'

Abstract
Introduction
I. The constitutional basis for the Presidential Decrees and Resolutions of the
Federal Government
II. The tight of the Chechen Republic to secede
III. The legal character of the conflict in Chechnya
Conclusion

Abstract

This article was written in a period of time when the escalation of the armed conflict
in Northern Caucasus and particularly in Chechnya reached the zenith of violence
and unpardonable human slaughter., Although contemporary international law does
not accept the separatist movement's claims to create its own statehood, we have to
look at the constitutional procedures for the modifications of the Fundamental Law
of the Russian Federation. At the same time, the political situation after the
dissolution of the former Soviet Union, the strong presidential powers in the
constitutional hierarchy of executive organs, and the evident tensions between them
and the Russian constitutional traditions have to be taken into account.
The ambiguous and complicated character of the Chechen conflict is due to
the fact that the Russian Federation has tried to keep this conflict from the attention
of the international community by claiming that the Russian-Chechen conflict is an
entirely internal matter. It is doubtful in this case if the Russian leadership, who have
continued their tough policy, will find a peaceful solution to the almost ten-year
armed conflict in the region.

Introduction

"The sovereignty and territorial integrity of the Russian Federation are values

LLM, Sofia University "Saint Kliment Ohridski", Faculty of Law.

On September 1, 2004, the Russian authorities faced a new political crisis after at least 130
children and their parents were taken hostage in the southern republic of North Ossetia
by fighters demanding the withdrawal of troops from Chechnya and the release of
suspected rebels from prison. The siege came in the wake of the sabotage of two domestic
flights and explosions in central Moscow. There was also intensifying criticism of the last
round of elections in Chechnya, in which Mr. Alu Alkhanov, Mr. Putin's favourite
candidate, was elected as part of the Kremlin's attempt to impose a solution that does not
involve negotiations with separatists. In this way, the hostage crisis in the Beslan school
was a damaging blow to Mr. Putin's efforts to bring political stability to the troubled
Caucasus region. See JACK, Andrew, "Putin faces new crisis over school hostages",
Financial Times, September 2, 2004; CHIVERS, C.J., "No children, stricken families",
International Herald Tribune, September 3, 2004.
571
 3 Chinese JIL (2004)

of a very higher order, but they are instrumental in relation to human rights
and freedoms, which are the supreme constitutional value (Art. 2). In actual
fact, the entire pyramid of constitutional values was overturned." *

The constitutionality of four decrees of the central government of the Russian

Federation in relation to the Chechen conflict was challenged in 1995 in the Russian
Constitutional Court by a group of deputies of the State Duma and the Federal
Council of the Russian Federation.2 The applicants argued that two of the decrees,
particularly those providing for the dispatch of the Russian armed forces into the
territory of the Chechen republic in order to ensure the security and territorial
integrity of the Russian Federation, were in violation of the international obligations
of the Russian Federation. In their opinion, the armed intervention in the Chechen
Republic contravenes article 15(4) of the Constitution of the Russian Federation, by
virtue of which both general and conventional international laws shall be an integral
part of the Russian legal system. 3 This decision of the Russian Constitutional Court

- Dissenting opinion of Judge Luchin, Judgment of the Constitutional Court of the Russian
Federation concerning the situation in Chechnya
2 Judgment of the Constitutional Court of the Russian Federation of July 31, 1995, on the
Constitutionality of the Presidential Decrees and the Resolutions of the Federal
Government Concerning the Situation in Chechnya (hereinafter: Judgment of the
Constitutional Court of the Russian Federation). The acts whose constitutionality was
challenged were, namely: (1) the Decree of the President of the Russian Federation of 30
November 1994, No.2137 on Measures to Restore Constitutional Legality and Law and
Order on the Territory of the Chechen Republic; (2) the Decree of the President of the
Russian Federation of 9 December, 1994, No.2166 on Measures to stop the Activities of
Illegal Armed Formations on the Territory of the Chechen Republic and in the Zone of
the Ossetian-Ingush Conflict; (3) the Resolution of the Government of the Russian
Federation of 9 December, 1994, No.1360 on Ensuring State Security and Territorial
Integrity of the Russian Federation, Legality, the Rights and Freedoms of Citizens and
Disarmament of Illegal Armed Formations on the Territory of the Chechen Republic and
Adjacent Areas of the Northern Caucasus; (4) Decree of the President of the Russian
Federation of 2 November 1993, No.1883 on the Main Provisions of the Military
Doctrine of the Russian Federation. The Russian Constitutional Court delivered its
decision on July 31, 1995. The European Commission for Democracy Through Law of
the Council of Europe has published an unofficial English translation of this decision,
CDL-INF (96) 1. The text is available at http://www.venice.coe.int/docs/1996
/CDL-INF(1996)001-e.asp. This paper will refer to this text. On the other hand, a
Summary of the dissenting opinions of six judges of the Constitutional Court of the
Russian Federation can be found at http://www.venice.coe.int/docs/1995/
CDL(1995)068add-e.asp. See also the Ruling of the Constitutional Court of the
Russian Federation from May 23, 1993, available at http://www.therussiasite.org/
legal/laws/ccrulings/1 995_.6-P.html.
3 Article 15(4) of the Constitution of Russian Federation on December 12, 1993, stipulates:
"The commonly recognized principles and norms of the international law and the
international treaties of the Russian Federation shall be a component part of its legal
system. If an international treaty of the Russian Federation stipulates other rules than
those stipulated by the law, the rules of the international treaty shall apply." Konstitutsiia
(Rossiiskoy Federatsii) (Constitution of the Russian Federation) (1993), Rossiiskaia
 Draganova, Checbnya's Right ofSecession under Russian Conslitutional Law

has great importance for the development of the Chechen conflict. As some
commentators hope that this conflict can be resolved on the basis of federative
arrangements, 4 we will see that the root of disagreement between the two sides is very
deep and complicated.
However, the Russian Constitutional Court was called on in this case to give
its opinion upon coercive measures by a State against a part of its own population
seeking to secede from the State.5 This decision tackled the very controversial
6
question of the exercise of the right of self-determination by means of secession.
This is not the first decision by a domestic constitutional court to tackle the
question whether a constituent part of a State has the right to external self-
determination. In the current constitutional case, however, the Russian central
government had the opportunity to settle this conflict by peaceful means from the
very beginning.
The purpose of this article is to examine the issues of the Russian
constitutional law and to attempt an assessment of the impact that this decision has
on the development of the Chechen conflict. I will begin by (I) examining the
constitutional basis for the Presidential Decrees and Resolutions of the Federal
Government. We will next (II) consider the issue whether the Chechen Republic has
a right of secession under both international and Russian constitutional laws and (III)
attempt to identify the legal character of the conflict in Chechnya.

Gezeta, December 25, 1993, p. 3 ; translated in 16 Constitutions of the Countries of the

world (Albert P. Blaustein & H. Flanz eds., 1993); available also at
http://www.departments.bucknell.edu/russian/const/constit.html.
4 Professor Lloyd C. Brown-John is of the view that "if one were to turn to state practice-
which is, after all, one of the basis for asserting normative international law under Article
38 of the Statute of the International Court of Justice-there is a clear predilection for
solving self-determination issues by recourse to federal and federative arrangements":
BROWN-JOHN Lloyd C., Self-determination and Separation, Options politiques (1997),
43.
5 Chechnya was the first North Caucasian Republic to declare independence from the post-
Soviet Russian federation. In 1990, a newly formed Chechen National Congress
proclaimed sovereignty, while Moscow expressed fear that the Chechens' example would
encourage further secession. In addition, two former autonomies-Tatarstan and
Chechnya-proclaimed to upgrade their status to that of an independent state in a
unilateral manner and did not sign the Federation Treaty in March of 1992. Thus, they
challenged the territorial integrity of Russia. In fact, Chechnya proclaimed to brake away
from Russia in 1991 and on March 12, 1992, the Chechen Parliament adopted the
Constitution of the Chechen Republic. However, the self-proclaimed Chechen Republic
has not been recognized by Russia or the United Nations.
6 See Judgment of the Supreme Court of Canada, concerning certain Questions Relating to
the Secession of Quebec from Canada, as set out in Order in Council P.C.1996-14 97,
dated September 30, 1996, (1998) 2.S.C.R. 217 (hereinafter Reference re Secession of
Quebec). An English version is also available at http://www.lexum.umontreal.ca/csc-
scc/en/pub/1998/vol2/html/1998scr2_0217.html.
 3 ChineseJIL (2004)

I. The constitutional basis for the Presidential Decrees and Resolutions of the
Federal Government

The essence of this legal opinion of the Russian Constitutional Court is summarized
in the dissenting opinion of Judge Luchin:

The normative texts of the President and the Government of the Russian
Federation which are being considered by the Court are not in conformity
with the Constitution of the Russian Federation in that they have no
foundation in specific constitutional rules and they have allowed the armed
forces to be used for the purpose of resolving a domestic conflict, which
resulted in illegal curtailment on and massive violation of human rights and
freedoms as well as the destruction of the social infrastructure in the
territory of the Chechen Republic.

In fact, the decision to attack Chechnya was made through Presidential decrees to
restore order in Chechnya by using armed forces 7 and in this way these decrees have
served as the basis for legitimacy for the Russian military campaign since 1994. Using
force against the civilian population violated the human rights proclaimed in treaties,
which Russia has ratified.8 The Court put the unity of Russia ahead of human rights
when the constitutionality of these decrees was examined in the Russian
Constitutional Court. According to the principles of the rule of law, fixed in the
Constitution of the Russian Federation, the bodies of power in their activities are
bound by both internal and international laws. 9
The Court was asked to verify whether the military action of the Russian
armed forces resulted in, or gave rise to, breaches of international humanitarian law.
We have to point out that the Court, not surprisingly, refrained from dealing directly
with this matter. It stated that the examination of the action of the Russian armed
forces from the point of view of compliance with international law, and in particular
with international humanitarian law, "may not be a subject for consideration by the
Constitutional Court of the Russian Federation and ought to be performed by other
competent organs."' ()
Notwithstanding the political impact of the "extraordinary situation" in
Chechnya and the unlawful means of warfare endorsed by the central government,
the Court refused to examine the legal nature of these acts of the central authorities."

7 Decree No. 1833 of November 2, 1993, and Decree No. 2166 of December 9, 1994.
8 The U.S.S.R. ratified the Four Geneva Conventions on May 10, 1954, and the Protocols
on September 29, 1989. The treaties are binding on the Russian Federation as a legislative
successor of the U.S.S.R.
9 It follows explicitly from Article 15(4) that both international customary law and treaties
are part of the Russian legal system. The hierarchy between the norms of the system is
absolutely clear, with international law being given priority over domestic legislation at a
statutory level.
10 Judgment of the Constitutional Court of the Russian Federation, paragraph 8, point 5.
11 Dissenting opinion of Judge Zorkin: "By refusing to consider whether the decisions taken
 Draganova,Chechnya's Right of Secession under Russian ConstitutionalLaw

Furthermore, if there is no doubt that territorial integrity and inviolability of frontiers

are well-known principles of international law,12 the measures, for which the decrees
and resolutions in question provide in order to preserve territorial integrity, violate
the terms of the Constitution of the Russian Federation. So there is a clash between
the objectives set out in the preambles of the texts and the governmental measures,
which are particularly designed to restore constitutional legality (Decree No. 2137), to
ensure national security, and to safeguard the rights and freedoms of citizens (Decree
No. 1360). Article 80 (2)13 of the Russian Constitution states clearly that the president
of the Russian Federation shall adopt measures to protect the country's sovereignty,
independence and territorial integrity in accordance with the procedures established
by the Constitution, but it cannot be done by substantially limiting the rights and
freedoms of its citizens.14 The presidential decrees under consideration are in
contradiction with the hierarchy of constitutional principles, under which absolute
priority is given to the respect for human rights and fundamental freedoms (article 2
of the Russian Constitution).15 There is no doubt that the decrees, which authorized
the Government to use "all the means at the State's disposal", exceed the limitation
of power set forth by the Constitution.
By the way, the provisions of the new 1993 Constitution pertaining to the use
of armed force are ambiguous and vague. The constitution contains no general
principle upholding the international prohibition against war. The hierarchy and
delimitation of power between the executive organs is not clear either. The first
impression is that, as a major military power, Russia does not want to impose any
constitutional constraints on its use of armed force. It should be pointed out that the
relevant international customary and conventional restrictions on the treatment and
use of armed force are now integral parts of the Russian domestic legal system in
accordance with article 15 (4) of the new Constitution.
According to the Constitution, "matters of war and peace" as well as "defence

were politically expedient, the Court in fact declined to examine their legal nature, because
the question of the choice of means not provided for in the Constitution is not only a
political issue, but also a legal one" (paragraph 2).
12 Dissenting opinion of Judge Luchin: "Although a state's constitutional order, sovereignty
and territorial integrity are very important for its security, that does not mean that armed
forces whose purpose is to preserve state security may be used to put an end to domestic
conflicts" (paragraph 2).
13 Article 80(2) of the 1993 Constitution of the Russian Federation: "The President shall be
the guarantor of the Constitution of the Russian Federation, and of human and civil rights
and freedoms. In accordance with the procedure established by the Constitution of the
Russian Federation, he shall take measures to protect the sovereignty of the Russian
Federation, its independence and state integrity, and ensure concerted functioning and
interaction of all bodies of state power."
14 Judge Zorkin reached the following conclusion in his dissenting opinion: "To deal with
the extraordinary situation in the Chechen Republic, the President resorted to measures
that have no basis either in the Constitution or in legislation."
15 Article 2 of the 1993 Russian Constitution stipulates as follows: "Man, his rights and
freedoms shall be the supreme value. It shall be a duty of the state to recognize, respect
and protect the rights and liberties of man and citizen."
 3 ChineseJIL (2004)

and security" fall under the jurisdiction of the Federal Government.16 The President,
who serves as Commander-in-Chief of the Armed Forces, is authorized to declare
martial law in cases of "aggression against the Russian Federation or imminent threat
of aggression."7 When such power is about to be exercised, the President has the
8
obligation to inform immediately both chambers of the Federal Assembly.
However, only the Federal Council is entitled to confirm or reject the President's
declaration of martial law.' 9 According to the constitutional provisions, the same
organs resolve questions concerning "the possibility of use of the Armed Forces of
the Russian Federation beyond the territory of the Russian Federation."20 A strict
interpretation of this article is that the President has no power to send troops abroad
without the Federal Council's prior approval. Bearing in mind the fact that the
Republic of Chechnya has always been treated as a subject of the Russian Federation,
however, the President has the power to deal with the question of the use of armed
force internally even without the Federal Council's prior approval. In this legal matter,
the President's constitutional powers are quite unlimited and uncontrolled.21
There are further questions which deserve to be brought up, since the decision
reveals a lack of response by the Russian Constitutional Court. Neither the
Fundamental Law of the Russian Federation nor the legislation makes any provision
for the special regime established by the presidential or government decrees in order
to introduce a state of emergency in the territory of the Republic of Chechnya; nor do
they lay down procedural arrangements for establishing such a regime and
mechanisms for the coordination of the activities of the federal bodies of executive
power and the security forces in carrying out these measures. However, the special
regime should have been preceded by the adoption of a federal law on the subject,

16 Ibid., Art. 71.

17 Ibid., Art. 87 (1), (2).
18 Ibid., Art. 87 (2).
19 Ibid., Art. 102.
20 Ibid.
21 Judge Vitruk stated in his dissenting opinion: "By promulgating decree Nos. 2137, 2166
and 2169, the President exceeded his powers under Articles 83-90 of the Constitution.
The President is not free to act as he chooses, because he is required to comply with the
Constitution and with federal laws (Article 90 (3) of the Constitution). The President
must also observe a principle applicable to all state officials, viz they may do only
whatever is provided for by law. Article 80 (2)) of the Constitution is perfectly clear on
this point: the President of the Russian Federation shall adopt measures to protect the
country's sovereignty, independence and territorial integrity in accordance with the
procedure established by the Constitution of the Russian Federation. The obligation for
the President to act within the limits defined by the Constitution is also contained in the
oath of loyalty sworn by the President to the people. The recognition of the existence of
presidential powers not enumerated in Articles 83-90, e.g. implicit powers, denotes an
illegitimate enlargement of the presidential powers, to the detriment of the powers of the
Federal Parliament and the Government. The self-executing nature of the Constitution, as
provided for in Article 15 (1) of the Constitution, does not admit of any arbitrary
interpretation of these provisions, as that would lead to a violation of other constitutional
principles and norms" (paras. 9-10).
 Draganova,Chechnya's Right of Secession under Russian ConstitutionalLaw

particularly in regard to the use of armed forces to resolve a constitutional crisis and
the curtailment of the rights and freedoms of citizens. The regime established in the
territory of the Chechen Republic was an evident result of arbitrary use of power.
Second, Judge Gadzhiyev pointed out that the preamble to Presidential Decree
No.2166 of November 9, 1994-which "outlaws" activities "aimed at violating the
territorial integrity of the Russian Federation, undermining state security creating
armed formations or fomenting national or religious strife"-is not in conformity
with Article 13(5) of the Constitution. In fact, Article 13 relates only to the activities
of public associations, not to those of illegitimate organs of state power. Therefore,
the Congress of People's Deputies declared the elections of the Supreme Soviet and
the President of Chechnya null and void on November 2, 1991, which means that
those organs were illegal. In other words, there is no legislation on how and by what
legal means the activities of organs of state power, which have been declared illegal,
are to be stopped.
In summary, the Court scrutinized the constitutionality of the four decrees by
taking into consideration only their normative content, but not their actual application
and impact on the development of the Chechen conflict. Thus, the Court found that
only one of the challenged texts did not conform to the Russian Constitution, 22 while
23
the other three were considered to be in complete accordance with the Constitution.
Still, this decision could raise considerable doubt, because "any decision
reached by the Court would be legally disputable owing to the absence of an adequate
24
evidential basis."

22 Resolution of the Government of the Russian Federation of 9 December, 1994, No.1360

on Ensuring State Security and Territorial Integrity of the Russian Federation, Legality,
the Rights and Freedoms of Citizens and Disarmament of Illegal Armed Formations on
the Territory of the Chechen Republic and Adjacent Areas of the Northern Caucasus.
23 The Russian Constitutional Court considered that only some of the measures provided for
in the Resolution of the Government of the Russian Federation of 9 December, 1994,
No.1360, which implemented the laws in force of the Russian Federation and the Decree
of the President of the Russian Federation of 9 December, 1994, No.2166, were not in
compliance with the Constitution. More specifically the Court stated that the stipulations
of Part V, paragraph 1, point 3 of the Resolution, that "on the expulsion out of the
Chechen Republic of persons who pose a threat to public security and to the personal
security of citizens, who do not live on the territory of the said Republic", contradicted
both Article 27, Part I (which provides that every person who is lawfully on the territory
of the RF has the right to freely move and choose his place of residence), and Article 55,
Part III (under which the establishment of restrictions on human rights and freedoms of a
citizen can be established solely by federal law) on the Constitution of the Russian
Federation. Furthermore, the Court asserted that paragraph 2, point 6, of the Resolution
under discussion, which however instructed the provisional information centre under
Koskompechat immediately to revoke the accreditation of journalists, was not in
conformity with Article 29, Parts 4 and 5 (which established the right to free information),
Article 46 (which provides for the judicial protection of rights and freedoms), and lastly
with Article 55, Part III, of the Constitution of the Russian Federation.
24 Dissenting opinion of Judge Zorkin, paragraph 4.
 3 ChineseJIL (2004)

II. The right of the Chechen Republic to secede

The legal opinion of the Constitutional Court contributes to the doctrinal debate as to
whether the exercise of external self-determination can be realized through
secession25 In order to ascertain the constitutionality of the acts under discussion, the
Court was obliged to give an answer to the preliminary question: whether or not,
under Russian constitutional law, the Chechen Republic had the right to secede
unilaterally from the Russian Federation. In case the Court found a basis for such a
right, the decrees in question preventing Chechen secession could have been declared
unconstitutional and provoked a vivid reaction of the international community.
Therefore, the room for international intervention in order to protect human rights in
Chechnya is also limited. As we said earlier, the Russian Constitution in Article 15(4)
provides that international treaties ratified by Russia supersede Russian legislation. In
fact, this provision has ended the earlier Soviet doctrine that human rights were
internal affairs, subject to non-interference. The CSCE (OSCE) Helsinki Final Act of
1975 also affirms that human rights violations cannot remain an internal question.
The problems and ambiguities, however, come from Russian constitutional traditions.
The 1977 Constitution of U.S.S.R did not allow the direct application of international
law in the Soviet domestic legal system. Notwithstanding the fact that the application
of international norms was envisaged by the means of reference to international treaty
law, as a general constitutional principle, the Soviet legal order remained firmly closed
to international legal norms. Furthermore, the Soviet legal system was isolated by the
acceptance of the dualist approach, which considers the international and municipal
laws as two completely separate systems. Therefore, Soviet domestic law did not
accept custom as a source of international law: principles were to be materialized in
treaties or important written documents.26
Russia is still going through a constitutional crisis, and the main reason for
this is the fact that the question of the organization of the State has not been solved.
There is also a lack of legal regulations of the new relations between the center and
the subjects. In April 1992 the central authorities and the subjects signed the
Federation Treaty. Only Tatarstan and Chechnya refrained from signing the treaty,

25 Reference re Secession of Quebec: "Secession is the effort of a group or section of a state

to withdraw itself from the political and constitutional authority of that state, with a view
to achieving statehood for a new territorial unit on the international plane. In a federal
state, secession typically takes the form of a territorial unit seeking to withdraw from the
federation" (paragraph 83). On the question of secession, see in particular BUCHEIT Lee
C., Secession: The Legitimacy of Self-Determination (Yale University Press (1978));
CRAWFORD James, "State Practice and International Law in Relation to Secession",
LXIX B.Y.I.L. (1998) 85-86, CRAWFORD, J., The Creation of States in International
Law, Oxford, Clarendon Press (1979) 215, 247; NGUYEN Quoc Dinh, Daillier Patrick &
Pellet Alain, Droit international public, (6' 6d., Paris, L.G.D.J (1999)), 552.
26 See among others, Tunkin, Greory, Theory of International Law (first published in 1970)
(translated with an introduction by E. Butler, Allen and Unwin, London) (1974), cited in:
NYSTEN-HAARALA, Soili, The Conflict between Chechnya and Russia Seen in the
Light of Russian Constitutional Law, 11 Finnish Yearbook of International Law (2000),
267.
 Draganova,Cbecbnya's Right ofSecession under Russian Constitutional Law

and Bashkortostan signed on the condition that the Federation Treaty would be
complemented with bilateral treaties. The reasons why Tatarstan refrained from
signing the treaty were as follows:

1. It granted the republics lesser rights than they actually enjoyed at this
moment; and
2. In reality it was only agreement between the federal government and the
subjects of the delimitation of power, the federal nature of Russia was not
defined in the treaty. Consequently there was no guaranty as to the
preservation of the sovereignty of the republic.

On December 12, 1993, the Russian population voted in a referendum to approve a

new constitution that claimed Russia a democratic federal law-abiding state with a
republican type of government. The country's basic law proclaims man and his rights
and freedoms to be of supreme value. Human rights and civil liberties are recognized
and constitutionally guaranteed in full conformity with the generally accepted
principles and norms in international law.
Thus, the Russian Federation consists of 89 constituent units typically referred
as to "subjects of the Federation," which are divided into six different types:
republics, territories, regions, federal cities, autonomous areas, and autonomous
regions. The status of the subjects of the Federation is determined both by the federal
Constitution and by the regional constitutions or charters. In fact, the components of
the Russian Federation have constitutions or charters (ustavy). It depends on the type
of the constituent unit. All republics have their own constitutions; the rest of the
constituent units (territories, regions, federal cities, autonomous areas, and
autonomous region) have charters. Whereas the Federation as a whole is sovereign,
its constituent units are not. The Russian Constitutional Court established this on
June 7, 2000, in a case involving the Republic of Altai's assertion that it was a
sovereign republic.27 The Constitutional Court concluded that the Federation
Constitution does not recognize any source of power other than the multinational
power of Russia, and it therefore does not presume any sovereignty other than the
sovereignty of the Russian Federation. As to the status of the constituent units of the
Federation: they exercise both exclusive powers and concurrent powers. These
powers extend even into international agreements (but not treaties) with the
constituent parts of other countries and, with the consent of the Federation, even
with foreign countries. However, their powers do not extend to a right of secession.
According to Article 4(3) of the 1993 Russian Constitution, "The Russian Federation
shall ensure the integrity and inviolability of its territory".

27 Decision of June 7, 2000, on Case About Inspection of Constitutionality of Some

Provisions of the Constitution of the Republic of Altai and the Federal Law "On General
Principles of the Organization of Legislative (Representative) and Executive State Bodies
of Constituent Subjects of the Russian Federation". An extract of the decision could be
found at the official website of the Kazan Institute of Federalism,
http://www.kazanfed.ru/en/docum/ksud/1/.
 3 ChineseJIL (2004)

According to the Russian Constitutional Court:

The Constitution of the Russian Federation, like the previous Constitution of

1978, does not envisage a unilateral resolution of the issue of changing the
status of the subject of the Federation and its secession from the Russian
Federation.28

And the Court went further, emphasizing that "under Article 66, part 5 of the
Constitution of the Russian Federation the status of a subject of the Russian Federation
may only be changed by mutual agreement between the Russian Federation and the
subject of the Russian Federation in accordance with the federal constitutional law." 29
Unfortunately, there are no constitutional provisions concerning the mechanisms
for changing the status of a subject of the Russian Federation. However, in 1990 the
U.S.S.R. Supreme Council adopted the "Law on the Resolution of Issues of Secession of
Union Republics from the U.S.S.R."30 ("Law on Secession" hereinafter). This legal act
served as the basis in the case of the Nagorno Karabakh conflict,31 and the republic in
question claimed its independence. Under the circumstances, this legislative act also
stipulated the legal order of secession of autonomies from their union republics. This
law covers the methods available for the proclamation of independence and in this way
fulfills in theory the legal vacuum of Article 72 of the 1977 Constitution of the Union of
Soviet Socialist Republics. On the contrary, the methods laid down in the federal law
aimed to render impossible the republic independent process. The law gave the
autonomous regions and republics within the Soviet Union an opportunity to actively

28 Judgment of the Constitutional Court of the Russian Federation, para.2. It is important

to point out that Article 72 of the 1977 Constitution of the Soviet Union provided the
ight of each Republic to effect unilateral secession from the U.S.S.R. This provision has
remained a dead letter (see A. Cassese, Self-determination of Peoples: A Legal Appraisal
(1995), 264). On the other hand, according to Gaeta: "The statement of the Court
regarding the absence of a right to unilateral secession under 1978 Constitution must
therefore be taken to be based on a factual assessment rather than a correct legal
construction of that constitutional provision", in GAETA, Paola, The Armed Conflict in
Chechnya before the Russian Constitutional Court, 7 European Journal of International
Law (1996), 564, n. 6.
29 Ibid, para.2.
30 "Zakon o poryadke resheniya voprosov, svyazannikh s vykhodom soyuznoy respubliki iz
SSSR" (Law on the resolution of issues of the secession of the Union Republics from the
USSR). Publication of the Supreme Council of the USSR. "Records of Congress of
People's Deputies of the USSR Supreme Council", No.15, Moscow, 1990 (in Russian).
English version of this law is available at http://www.nkrusa.org/
nk_conflict/ussr law.htnml.
31 In the conflict in mountainous Karabakh, Armenia acted as an aggressor during the active
military actions under Article 1 of the United Nations General Assembly Resolution 3314
(XXIX) (Definition of Aggression) and as a violator of all international legal documents
concerning the territorial integrity and sovereignty of States. As a matter of law, the
Armenian troops' involvement in Azerbaijan makes the war an international armed
conflict between the governments of Armenia and Azerbaijan.
 Draganova,Chechnya's RIlght of Secession under Russian ConstitutionalLaw

participate in determining their political status as independent subjects of the Union,

including their secession from the union republics to which they were subordinated.
This right was reserved for the case where a union republic seceded from the U.S.S.R.,
while the autonomous entity or entities inside the union republic declined to remain a
component of the seceding republic.
According to the 1990 Law on Secession, the decision to conduct a referendum
has to be made by a petition (about 10% of permanent residents) and approved by the
Supreme Soviet of a Soviet Republic. 32 It follows from this law that if the Republic did
not succeed to pass the decision to secede, "a new referendum on the same issue may
33
be conducted not earlier than 10 years after the previous referendum took place."
However, this law has been criticized and rejected by the Baltic States. A
representative of Lithuania expressed the reaction of all the Republics in these words:
"La loi sur la secession des rpubliques a &6 conque de telle fagon qu'aucune d'entre
elle, en l'appliquant, ne puisse jamais quitter l'Union ....
"34
Essentially, the right of the Chechen Republic to secede is considered under
the Russian constitutional law and international law. Thus, the Court clearly stated:

The constitutional goal of preserving the integrity of the Russian State accords
with the universally recognized principles concerning the right of nations to
35
self-determination.

In order to find a legal basis for this argument, the Court cited mainly the first part of
the "saving clause" 36 of the 1970 Friendly Relations Declaration to the effect that the
right to self-determination should not be understood

as authorizing or encouraging any acts leading to the dismemberment or

complete disruption of territorial integrity or political unity of sovereign
independent States conducting themselves in compliance with the principle of
equal rights and self-determination of peoples.37

32 Art. 2 (paras. 1 and 2) of the 1990 Law on Secession:

The decision on secession of a Soviet Republic from the USSR is made by the will of
the people of that Soviet Republic by means of a referendum.
The decision to conduct a referendum is to be ratified by the Supreme Soviet of a
Soviet Republic based either on its own will or on the request made by the 10% of
permanent residents who have a right to vote according to the USSR laws."
33 Art.10 of the 1990 Law on Secession.
34 Cited in: Kherad, Rahim, "La reconnaissance intemationale des Etats baltes", XCVI
Revue gtntrale de droit international public (1992-4), 852.
35 Judgment of the Constitutional Court of the Russian Federation, para.2, point 6.
36 According to some commentators, "saving clause" refers to internal self-determination.
However, while the principle refers to external self-determination, the saving clause
exclusively refers to its internal dimension, (in: Cassese Antonio, Self-determination of
Peoples: A Legal Appraisal (1995), 110.
37 GA Resolution No. 2625(XXV), Declaration on Principles of International Law
concerning Friendly Relations among States, 24 October 1970.
 3 Chinese JIL (2004)

Notwithstanding the fact that the Court went beyond Russian constitutional law, its legal
opinion contains a series of closely argued points. Thus, this clause does not provide
that the right of self-determination leaves the territorial integrity of any sovereign State
unaffected. In substance, the Friendly Relations Declaration contains a qualification
which specifies that the protection of territorial integrity applies to a State that
"possessed a government representing the whole people belonging to the territory
38
without distinction as to race, creed or colour."
Surprisingly, the Court omitted the last part of the saving clause and in this way
misinterpreted the meaning of the clause embodied in the Friendly Relations
Declaration. In sum, under the saving clause only those States having a "representative
government" that makes no distinction as to race, creed or colour could claim that their
right to territorial integrity must not be affected by secessionist claims, since their central
authorities comply with the principle of self-determination.
Moreover, the underlying rationale of the saving clause is that when people are
blocked from the meaningful exercise of their right to self-determination internally, they
are entitled, as a last resort, to exercise this right by secession. In its decision on the
question of the secession of Quebec, the Supreme Court of Canada asserted that the
third circumstance in which a right of secession might arise "parallels the other two
recognized situations in that the ability of people to exercise its right to self-
39
determination internally is somehow being totally frustrated."
What does "representative" mean in the saving clause under discussion? In
other words, when, under the Friendly Relations Declaration, does the right of self-
determination encompass the right to impair territorial integrity and political unity of a
State? According to some commentators, the ambiguous language of the saving clause
warrants the following conclusions. First, if racial and religious groups living in a
sovereign State are denied access to the political decision-making process, they have the
right to internal self-determination. Second, these groups are also entitled to seek
secession, and they have the right to external self-determination if they face "extreme
and unremitting persecution" and there exists no "reasonable prospect for peaceful
challenge."40

38 A. Cassese interprets this clause in the following way: "if in a sovereign State the
government is 'representative' of the whole population, in that it grants equal access to
government to group and in particular does not deny access to government to groups on
the grounds of race, creed or colour, then the government respects the principle of self-
determination; consequently, groups are entitled to claim a right to self-determination only
where the government of a sovereign State denies access to such grounds." (Cassese, note
36 above, 112).
39 See Reference re Secession of Quebec, para. 135.
40 See also CAPOTORTI F., Are Minorities Entitled to Collective International Rights, in:
Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights
(Kluwer Academic: Dordrecht (1992)), 505-511; CASESSE, A., Self-Determination of
Peoples: A Legal Reappraisal (Cambridge University Press (1995)); HANNUM H.,
Rethinking Self-Determination, 34(1) Va.J.I.L.(1993),1-69; ROSENSTOCK R., "The
Declaration of Principles of International Law Concerning Friendly Relations, 65
A.J.I.L.(1971), 713-735; SHAW M.N., Peoples, Territorialism and Boundaries, 8 E.J.I.L.
 Draganova,Chechnya's Right of Secession under Russian ConstitutionalLaw

By contrast, the Friendly Relations Declaration does not specify the tights of
racial and religious groups. It demands only that the State allow these groups to have
access to government institutions. Since a government discriminating against a political
group would not be "representative", it would be in breach of the principle of self-
determination.41
Finally, the Russian constitutional court drew some conclusions without
verifying whether the government of the Russian Federation is sufficiently
representative and not discriminatory. It would be doubtful to assert that the principle
of territorial integrity envisaged in the Russian constitution is in conformity with general
international law without some examination of the representative nature of the Russian
government. By contrast, the Canadian Supreme Court clearly stated, "the population of
Quebec cannot plausibly be said to be denied access to government."42 Apparently, the
Russian Constitutional Court assumed that under the Friendly Relations Declaration and
its saving clause, the Chechen Republic was not entitled to the right to secession on the
ground of the principle of self-determination.

III. The legal character of the conflict in Chechnya

The war in Chechnya is one of the most illustrative examples of new and destructive
conflicts at the turn of the century. In addition, it is, from the point of legal qualification,
among the most problematic and disputable conflicts. 4 3 On the one hand, Russia claims
that the conflict is an internal problem for the Russian Federation. 44 On the other hand,

(1997), 478-507; WELHENGAMA G, Minorities' claims: from Autonomy to Secession:

International Law and State Practice (Ashgate (2000)), 265-272.
41 Among the hypotheses cited by the Supreme Court of Canada that generate a right to
external self-determination--e.g. in situations of former colonies or where people are
subject to alien subjugation or exploitation outside a colonial text-there is a ground for a
right to unilateral secession in a third circumstance. The third situation is where a group is
denied meaningful access to government to pursue their political, social and cultural
development. The Court accept this third situation "while it remains unclear whether this
third proposition actually reflects an established international law standard". Reference re
Secession of Quebec, para. 135.
42 Reference re Secession of Quebec, para.136.
43 The Russian Constitutional Court summarized the major causes for the Chechen war:
"This extraordinary situation is historically stemming from the fact that in the period of
Stalin's repressions the Chechen people had been deported and the consequences of that
deportation had not been properly rectified. The State power first in the USSR and then
in Russia has been unable to correctly assess the legitimate bitter feelings among the
Chechens, the developments in the Republic and their motive forces. The federal bodies
of power of the Russian Federation relaxed their law enforcement activities in the
Chechen Republic, failed to ensure the protection of the State ammunition dumps on its
territory and for several years exhibited passivity in addressing the problems with that
Republic as a subject of the Russian Federation" (para. 2).
44 In the Resolution 1055 (1995) on the Russian request for membership in the light of the
situation in Chechnya, the Parliamentary Assembly of the Council of Europe suspended
 3 ChineseJIL (2004)

the Chechen side insists that the war is an international conflict in accordance with
4 46
Article 1(4) of Additional Protocol 1. 5 The legal qualification of an armed confliCt is of
significant importance because it makes it possible to define the set of legal norms that
are applied in individual cases. For example, an international conflict is the object of the
Four Geneva Conventions 1949, 47 and Protocol I Additional to the Geneva

the procedure concerning its statutory opinion on Russia's request for membership for
the following reasons and in the same encourage the both parties in the conflict to find
out peaceful solution to the conflict.
1. The Assembly considers that although the political conflict between Chechnya and
the central authorities of the Russian Federation is an internal matter, the means
employed by these authorities violate Russia's international obligations.
2. The Assembly thus unreservedly condemns the indiscriminate and disproportionate
use of force by the Russian military, in particular against the civilian population,
which is in violation of the 1949 Geneva Conventions and their 1977 Second
Protocol as well as of the OSCE Code of Conduct on Politico-Military Aspects of
Security, accepted by Russia as recently as December 1994.
For more details, see Gelin E., L'adh6sion de la Russie au Conseil de l'Europe la lumi~re
de la crise tchdtch~ne, 99 Revue gdn&ale de droit international public (1995), 623-638.
45 Article 1(4): "The situations referred to in the preceding paragraph include armed conflicts
in which peoples are fighting against colonial domination and alien occupation and against
racist regimes in the exercise of their right of self-determination, as enshrined in the
Charter of the United Nations and the Declaration on Principles of International Law
concerning Friendly Relations and Co-operation among States in accordance with the
Charter of the United Nations"; in: Additional Protocol to the Geneva Conventions of 12
August 1949, and relating to the Protection of Victims of International Armed Conflicts
(Protocol I), adopted on June 8, 1977, by the Diplomatic Conference on the
Reaffirmation and Development of International Humanitarian Law applicable in Armed
Conflicts and entry into force on December 7, 1979.
46 The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia in
the Prosecutor v. Dusko Tadic (Jurisdiction of the Tribunal) support the view that many
provisions of the international humanitarian law are expressly intended to apply away
from the scene of fighting or after the active hostilities have ceased. The Appeals
Chamber held that "...an armed conflict exists whenever there is a resort to armed force
between States or protracted armed violence between governmental authorities and
organized armed groups or between such groups within a State. International
humanitarian law applies from the initiation of such armed conflicts and extends beyond
the cessation of hostilities until a general conclusion of peace is reached; or, in the case of
internal conflicts, a peaceful settlement is achieved. Until that moment, international
humanitarian law continues to apply in the whole territory of the warring States or, in the
case of internal conflicts, the whole territory under the control of a party, whether or not
actual combat takes place there"(para.70). Decision of 2 October 1995, Case No. IT-94-1-
AR72, in: 35 International Law Materials (1996), 32. Available also on the official site of
the International Criminal Tribunal for the Former Yugoslavia,
http://www.un.org/icty/tadic/appeal/decision-e/51002.htm.
47 According to the first paragraph of Article 2 of the Fourth Geneva Conventions, the
Convention is applicable when two conditions are fulfilled: when there exists an armed
conflict (whether or not a state of war has been recognized); and in case the conflict has
arisen between two contracting parties. If those two conditions are satisfied, the
Convention applies, in particular, in any territory occupied in the course of the conflict by
one of the contracting parties. Consequently, this hypothesis is not applicable to the
 Draganova,Checbnya's Right of Secession under Russian Constitutional Law

Conventions 1977. By contrast, a non-international conflict invokes only the basic

principles of international humanitarian law asserted in Article 3 of the Geneva
Conventions. 48 If the conflict intensifies, it is possible to invoke the provision of
9
Protocol 1I.4 The "extraordinary situation [that has] arisen on the territory of the
Chechen Republic" was a major cause for adopting the presidential decrees and
government resolutions under discussion. As Judge Zorkin noted, "extraordinary
situations are not all identical, and they therefore call for the use of different means of
response. The very concept 'extraordinary situation' does not have any clear legal
substance, and the Court did not determine what type of situation had arisen in the

Chechnya, which is not a contracting party to the Four Geneva Conventions of 1949.
48 Article 3 common to the Four Geneva Conventions stipulates:
In the case of armed conflict not of an international character occurring in the
territory of one of the High Contracting Parties, each Party to the conflict shall be
bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms and those placed hors de combat by
sickness, wounds, detention, or any other cause, shall in all circumstances be
treated humanely, without any adverse distinction founded on race, colour,
religion or faith, sex, birth or wealth, or any other similar criteria.
To this end the following acts are and shall remain prohibited at any time and in any
place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading
treatment;
(d) the passing of sentences and the carrying out of executions without previous
judgment pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for.
An impartial humanitarian body, such as the International Committee of the Red
Cross, may offer its services to the Parties to the conflict.
The Parties to the conflict should further endeavour to bring into force, by means of
special agreements, all or part of the other provisions of the present Convention.
The application of the preceding provisions shall not affect the legal status of the
Parties to the conflict.
(in: International Red Cross Handbook : international humanitarian law, conventions and
international agreements: statutes and regulations: selections of resolutions of the
International conference of the Red Cross, of the Council of delegates and of the General
assembly of the League / International Committee of the Red Cross, League of Red Cross
Societies; in collab. with the Henry Dunant Institute, Geneva (International Committee of
the Red Cross: League of Red Cross Societies, 1983, 12th ed.), 23-47).
49 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of Non-International Armed Conflicts (protocol II), adopted on 8
June 1977 by the Diplomatic Conference on the Reaffirmation and Development of
International Humanitarian Law applicable in Armed Conflicts and entry into force 7
December 1978.
 3 ChineseJIL (2004)

Chechen Republic."S0
Furthermore, the Russian Constitutional Court determined that at the
international level the provisions of Protocol II were binding on both parties to the
armed conflict. Also, the actions of the Russian armed forces in the Chechen conflict
violated Russia's international obligations under Protocol II to the 1949 Geneva
Conventions. However, the Court tended to excuse this non-compliance because
Protocol II had not been incorporated into theRussian legal system.5s Although the
Court categorized the armed conflict in Chechnya as a civil war fulfilling the
conditions required by Article 1 of Protocol II, namely, a prolonged internal armed
conflict having great intensity, it did not give reasons why in its view the Chechen
conflict came within the provisions of Protocol II. Nevertheless, the Court could
have classified the conflict in other ways: (1)as a civil war of short duration and with
a low threshold of intensity regulated by common Article 3 of the Geneva
Conventions; (2) as "internal disturbance and tension"52 to which no humanitarian
international rules would apply; (3) as s war of national liberation, covered by
Protocol I to the Geneva Conventions, s3 or (4) as a non-international
s4
"internationalized" conflict.
It is regrettable that the Russian constitutional court did not point out any
legal foundations why Protocol II covered precisely the conflict in Chechnya.s5 We

50 Dissenting opinion of Judge Zorkin.

51 "The Supreme Soviet of the USSR in ratifying, on 4 August 1949 the additional protocol
to the Geneva Conventions of 12 August 1949 pertaining to the protection of the victims
of armed conflicts that are not international in character (Protocol 2) directed the Council
of Ministers of the USSR to prepare and submit to the Supreme Soviet proposals on
making corresponding amendments in the legislation. However, that direction was not
followed" (paragraph 5 of the Judgment of the Constitutional Court of the Russian
Federation).
52 The term "internal disturbances and tensions" was introduced in international human
rights law by the International Committee of the Red Cross in 1971 and it is defined as
"the situation in which, though not being an armed conflict in the real sense of the word,
there are clashes of a certain degree of seriousness, length of time and displays of violence
in the territory of a state."
53 See in particular, ABI-SAAB Georges, Wars of National in the Geneva Conventions and
Protocols, 165 Recueil des cours (1979-IV), 397-398.
54 The term "non-international internationalised conflicts" was introduced into the
judicature of the International Tribunal for the Former Yugoslavia. It refers to the
conflicts of which the character has changed, at least in some aspects, due to foreign
interference.
55 The Russian Constitutional Court also relies on the international law in the Tatarstan case
(published in Vedomosty RF, Issue 13, Item 671 (1992), 1 VKS 40 (1993)). The
controversy involved an attempt by the Republic of Tatarstan, a constituent unit of the
Russian Federation, to break away form the Russia. The Court reached the same
conclusion in the case of Chechnya finding that, in any case, the realization of the
principle of self-determination required the observance of other principles in international
law, in particular the principle of territorial integrity of States and respect for human
rights. To support this conclusion, the Court cited numerous international instruments,
including the Covenant on Civil and Political Rights, the Covenant on Economic, Social
 Draganova,Chechnya's Right of Secession under Russian ConstitutionalLaw

can just provide some hypotheses. The main ground sustaining the conflict, as a non-
international one, is that some countries (including Russia) hold the view that if they
admit the existence of a non-international conflict on their territories, they will
eventually tackle the problem by their own means. But in reality, a non-international
conflict remains an internal problem of a State, with the legal positions of the parties
as defined in Article 3 common to the Four Geneva Conventions. On the other hand,
countries involved in the conflict have to take into account the application of the
provisions of international contractual documents that assert the minimum standards
of humanitarian law and core human rights, which in any case cannot be neglected by
any State.
Ultimately, the decision of the Appeals Chamber of the International
Criminal Tribunal for the Former Yugoslavia in The Prosecutorv. Dusko Tadic, which is
likely to be of considerable significance for international humanitarian law, confirms
that Article 3 common to the four Geneva Conventions of 1949 is a part of the
international customary law:

Attention must also be drawn to Additional Protocol II to the Geneva

Conventions. Many provisions of this Protocol can now be regarded as
declaratory of existing rules or as having crystallised emerging rules of customary
law or else as having been strongly instrumental in their evolution as general
56
principles.

and Cultural Rights, the Universal Declaration, the Declaration on Principles of

International Law concerning Friendly Relations, the Declaration on the Right to
Development, and the Helsinki Final Act and follow-up documents. Without any further
argumentation the Court found that the unilateral secession of Tatarstan from the Russian
Federation would violate the territorial integrity of Russia and the legal principles
protecting the rights of individuals and peoples. For more details on the Republic of
Tatarstan, see among others, DANILENKO Gennady M., The New Russian
Constitution and International Law, 88 American Journal of International Law (1994),
463-464; FRAISSEIX Patrick, La Constitution russe du 12 d6cembre 1993 et les six
premiers mois du syst~me politique, 110 Revue du droit public et de lascience politique
en France et tl'6tranger (1994), 1755-1757; PELLET Alain, Quel avenir pour le droit des
peuples A disposer d'eux-m~mes?, in: El derecho international en un mundo en
transformacion, Liber Amicorum en homenaje al Profesor Eduardo Jumtnez De
Archaga, Montevideo, Fundacion de cultura universitaria (1994), 264.
Furthermore another domestic constitutional decision was cited by the International
Court of Justice in the Advisory Opinion of July 9, 2004, on the Legal Consequences of
the Construction of a Wall in the Occupied Palestinian Territory, which made special
reference to the application of the international instruments:
The Court would note finally that the Supreme Court of Israel, in a judgment dated
30 May 30, 2004, also found that:
"The military operations of the [Israeli Defence Forces] in Rafah, to the extent
they affect civilians, are governed by Hague Convention IV Respecting the Laws
and Customs of War on Land 1907... and the Geneva Convention Relative to
the Protection of Civilian Persons in Time of War 1949."
Advisory Opinion of I.C.J., para.100.
56 Appeals Chamber Decision in The Prosecutor v. Dusko Tadic, 117, para. 98.
 3 Chinese.IIL (2004)

As regards the recent practice of the International Court of Justice in its Advisory
Opinion of July 9, 2004, on the Legal Consequences of the Construction of a Wall in
the Occupied Palestinian Territory in respect to international humanitarian law, the
Court considers that the provisions of the Four Hague Conventions of 1907, to
which the Hague Regulations are annexed, have become part of customary law. As
far as the International Court of Justice treated the relationship between international
humanitarian law and human rights law, it has found out that "the protection offered
by human rights conventions does not cease in case of armed conflict, save through
the effect of provisions for derogation of the kind to be found in Article 4 of the
International Covenant on Civil and Political Rights. As regards the relationship
between international humanitarian law and human rights law, there are thus three
possible situations: some rights may be exclusively matters of international
humanitarian law; others may be exclusively matters of human rights law; yet others
may be matters of both these branches of international law. In order to answer the
question put to it, the Court will have to take into consideration both these branches
of international law, namely human rights law and, as lex spetialis, international
5
humanitarian law". 7
In addition, the analysis of article 15(4) of the 1993 Constitution of the
Russian Federation clearly shows a special reference to the relationship between
international law and the Russian legal system. This article shows that international
law is a part of the Russian domestic legal order, as the new Russian constitution
incorporates both treaty and "the generally recognized principles and norms of
international law." This formulation includes sources of general international law,
and in particular customary law. So from the legal point of view, the application of
customary international law in the Chechen conflict is unquestionable and obvious.

Conclusion

Despite the fact that this legal opinion contains some flaws and misunderstandings,
we cannot underestimate its importance for both the Russian legal system after the
dissolution of the former Soviet Union as well as for normative international law.
Even though the Russian Constitutional Court accepted the application of
international instruments in the Chechen conflict-particularly, Additional Protocol
II-it endorsed, however, "the legal basis of the use of the armed forces of the Russian
Federation and other troops to ensure the guarantees of the constitutional system that is
imperfect".8
To summarize the conclusions of this decision, some observations should be
made. First, eight out of the nineteen judges gave dissenting opinions, which shows the

57 Advisory Opinion of the I.C.J., paral06.

58 Russian Constitutional Court cited the Resolution of the State Duma of January 13, 1995,
"On strengthening Russia's statehood and on measures to overcome the crisis caused by
the situation in the Chechen Republic".
 Draganova, Cbechnya's Right of Secession under Russian Constitutional Law 589

great complexity of this legal matter as well as the mission of the constitutional court to
supervise the respect for the Russian Constitution. Second, these opinions emphasized
that if the President, who is supposed to be the guarantor of human rights, uses armed
forces against his people, the Constitution loses its primarily task, to serve individual
citizens. In addition, these opinions pointed out that the President tried to solve a
conflict by force without the control of another state organ, giving him the full liberty of
appreciation and decision-making in a concrete political situation. Third, some
dissenting judges agreed that the situation in Chechnya has to be resolved and the
restoration of the legal order and unity of the Russian Federation has to be completed,
but they are equally unanimous that the means should be in any case legal.
It is indisputable, however, that the Russian Constitutional Court has
promoted the application of international law and has in this way broken out of the
isolationist tendency of the former Soviet society in general, and of the Soviet legal
system in particular.
 3 ChineseffL (2004)

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