At a crossroads: Russia and the ECHR in the aftermath of Markin

von Ilya Levin

As part of Verfassungsblog’s topical focus on the prevailing tensions between international and national constitutional law, we go east and take a look at Russia and its unsteady relationship with the European Convention of Human Rights (ECHR) – particularly the lately arisen tensions between the Russian Constitutional Court (CCR) and Strasbourg in the wake of the ECtHR’s decision in the Markin case. First, and in a more general manner, we briefly review the theories conceptualizing the relationship between domestic and international law, which traditionally go by the names of monism and dualism. In doing so, we do not miss the point that, as national constitutional practice in a variety of member states of the ECHR shows, conceptual clarity in terms of commitment to one or the other grand theory is often blurred, if not contradicted (I.). Clearly, Russia is no exception (II.). The Markin case marks a turning point in the relationship between the CCR and the ECtHR as Strasbourg, for the first time, overruled a decision of the CCR, which spurred a heated constitutional debate. The repercussions are yet to be seen (III.).

I. Blurred lines: The relative irrelevance of systemic commitment

In principle, legal scholarship has produced two grand theories in order to capture the relationship between international and domestic law: monism and dualism. Monism holds that international and domestic law form a holistic legal order. The law of the international community, however distinguishable from the laws of states by its specific patterns and procedures of emergence, modes of application and addressees, shares with the latter a single Grundnorm (Kelsen) or rule of recognition (Hart). As Kelsen contended, monism may be conceptualized either with the primacy of international over domestic law or vice versa, whereas the decision which option to choose is primarily political and escapes the world of (pure) legal theory ...

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