National and International Courts: the Dialogue Needed
The established rule of international law is that a state may not invoke the provisions of its domestic law as a justification for non-compliance with international obligations. The increase in the number of rules of international law aimed at regulating the domestic relations creates a broader sphere of contact between domestic and international law, which in turn creates the potential for greater conflict between the two systems of law. International law cannot itself exercise its supremacy at the national level. The effect of international law depends on how the conflict between international law and domestic law is resolved in each national legal system. In most States, international treaties are considered to be hierarchically lower than constitutions, that is, constitutions should prevail in case of conflict. National courts can give effect to international law in the domestic sphere, using “harmonization techniques”, or apply such techniques as to evade the application of international law. With regard to compliance by national courts with the decisions of international courts, there are examples where national courts do not follow the decisions of international courts. The Constitutional Court of the Russian Federation explained that the Constitution of the state has the supremacy and therefore the ECtHR’s decisions, which contradict it, cannot be executed in Russia. It is not a conflict between the Convention for the protection of human rights and fundamental freedoms as such and national constitutions, but a conflict of interpretation of the Convention provision given by the ECHR in the decision and the provisions of national constitutions in their interpretation by the constitutional courts. The constitutional Court of the Russian Federation considers it necessary to have a dialogue with the ECHR and seeks to avoid complications as much as possible.