The Armed Conflict in Chechnya before the Russian Constitutional Court

II. The Right of the Chechen Republic to Secession

In order to ascertain the constitutionality of the acts under discussion, the Court had to tackle a preliminary question: whether or not, under Russian constitutional law, the Chechen Republic had the right to secede unilaterally from the Russian Federation. Clearly, had the Court found a basis for such a right, the decrees in questions aimed at preventing the Chechen secession could not have been constitutional.

In the event the Court found that:

[T]he 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 Federation⁷

It went on to say that:

State integrity is one of the foundations of the Constitutional system of the Russian Federation.

Moreover, in the opinion of the Court:

[T]he constitutional goal of preserving the integrity of the Russian State accords with the universally recognised principles concerning the right of nations to self-determination (emphasis added).

In this connection, the Court mentioned the first part of the `saving clause' of the 1970 U.N. Declaration on Friendly Relations to the effect that the right to self-determination should not be construed

as authorising 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 people.⁸

It is worth emphasising that the Court deemed it necessary to test the legitimacy of the decrees of the central authorities not only under the Russian constitutional legal order, but also under international law and, in particular, under the principle of self-determination as laid down in the U.N. 1970 Declaration on Friendly Relations.⁹ In this it could be argued that the Court misinterpreted the very meaning of the saving clause embodied in the Declaration. This clause does not provide that the right of self-determination leaves unaffected the territorial integrity of any sovereign State. The saving clause provides that the right to territorial integrity applies only to those States `conducting themselves in compliance with the principle of equal rights and self-determination'. The criteria for establishing whether states have acted in accordance with this principle are spelled out in the last part of the clause: a state should have a government representing the whole people belonging to the territory without distinction as to race, creed or colour (emphasis added).¹⁰

It follows that, under the saving clause, only those states having a `representative government' which makes no distinction as to race, creed or colour can claim that their right to territorial integrity must not be affected by secessionist groups, since their central governments comply with the principle of self-determination.

What is it meant by `representative' in the context of the clause under discussion? In other words, when can a secessionist group claim that it is not `represented' and is consequently entitled to self-determination? According to some commentators, the language of the saving-clause warrants the following conclusions. Firstly, 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. Secondly, these groups are also entitled to seek secession (i.e. they have the right to external self-determination) if they face `extreme and unremitting persecution' and there exists no `reasonable prospect for a peaceful challenge'.¹¹

Whether or not one shares this view, it seems unquestionable that the saving clause has been misconstrued in the judgement under discussion. The Court, rather surprisingly, failed to mention the last part of the saving clause quoted above. In so doing, it avoided the central issue raised by that saving-clause, i.e. is the Government of the RF sufficiently representative and not discriminating? Plainly, without some examination of the representative nature of the Russian government the U.N. 1970 Declaration on Friendly Relations could not support the determination of the Court to the effect that the principle of territorial integrity envisaged in the Russian Constitution is in accordance with general international law.¹² In other words, it appears that the Court jumped to a conclusion and simply took it for granted that, under the 1970 Declaration and its saving clause, the Chechen Republic was not entitled to the right to secession on the grounds of the principle of self-determination. Rather paradoxically, the Court would appear to have based its judgment in part on a international instrument providing for the right, under extreme circumstances, to secession of groups living within the territory of sovereign states .

7 It must be pointed out that Article 72 of the 1978 Constitution of the Soviet Union provided the right of each Republic to unilateral secession from the USSR. This provision has remained a dead letter (see, among others, A. Cassese, Self-determination of Peoples: A legal Appraisal (1995) 264 ff.). The statement of the Court regarding the absence of a right to unilateral secession under the 1978 Constitution must therefore be taken to be based on a factual assessment rather than a correct legal construction of that constitutional provision.

8 GA Resolution 2625(XXV), 24 October 1970.

9 A similar approach was taken by the Court in the Tatarstan case, concerning an attempt of the Tatarstan Republic to break away from Russia. The Court examined the constitutionality of this attempt from both an internal and an international point of view. It held that the unilateral secessionist steps of the Tatarstan Republic did not find a basis in the Russian Constitution and that, even if the Republic was entitled to change its political status on the ground of the principle of self-determination, this principle did not necessarily provide a legal basis for separatism. In this regard, the Court in particular underscored that the realisation of the principle of self-detrmination had to be construed in accordance with the principle of territorial integrity of States and of universal respect for human rights. To support this conclusion, the Court cited many international instruments, such as the 1966 Covenants on Human Rights, the 1970 Declaration on Friendly Relations and the 1975 Helsinki Final Act (see Danilenko, `The New Russian Constitution and International Law' 88 AJIL (1994) 463-464).

10 The saving clause provides that: `Nothing in the foregoing paragraphs [laying down the principle of self-determination] shall be construed as authorising or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign states conducting themselves in compliance with the principle of equal rights and self-determination of peoples as described above and thus possessed of a government representing the whole people belonging to the territory without distinction as to race, creed or colour'.

11 See Cassese, Self Determination of Peoples, supra note 6 at 112 ff. On the distiction between internal and external self-determination see ibidem, 71 ff. and the authors cited at note 6, p. 70 in the same work.

12 The 1970 Declaration could support the statement of the Court only if the latter had established (which it did not) that the Chechen people did not constitute a racial or religious group and that the conditions allowing secession did not exist.

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