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Number 4(8), autumn, 2003
Number 8 of the journal Kazan Federalist (in english)
KAZAN CENTER
OF FEDERALISM
AND PUBLIC
POLICY
/ Kazan Center of Federalism and Public Policy / Publications / Journal Kazan Federalist / 2003 / Number 4(8), autumn, 2003 / The treaties on differentiation of responsibility between the powers of the Russian Federation and its subjects return to homepage
The treaties on differentiation of responsibility between the powers of the Russian Federation and its subjects
 
 
 

:
  • Sergei Shakhrai
The negative attitude to the practice of agreements in federal relations is a sign of poor development of legal culture and legal consciousness. In our society, where the severity of laws had for centuries been compensated for by their non-obligatory execution, the notion of agreement is associated with an attempt to go around general rules and leaves an impression of a non-mandatory act which, if broken, does not cause any legal consequences.

Sergei Shakhrai*

 

The treaties on differentiation of responsibility between the powers of the Russian Federation and its subjects; agreements between federal and local executive organs on sharing powers: their roles and problems of realization

 

Are the criticisms of the practice of agreements justified?

 

The negative attitude to the practice of agreements in federal relations is a sign of poor development of legal culture and legal consciousness. In our society, where the severity of laws had for centuries been compensated for by their non-obligatory execution, the notion of agreement is associated with an attempt to go around general rules and leaves an impression of a non-mandatory act which, if broken, does not cause any legal consequences.

In reality, the agreements between the federal center and the regions are quite an efficient means to secure and optimize federal relations, if they are used and controlled in a proper manner. As has been demonstrated by the experience of modern federal and even some unitary states (e.g., Spain), agreements and treaties are not only an effective way to distribute power between the center and the members of the federation but also are an important instrument ensuring that the organs of power exercise their authorities appropriately and observe constitutional law and order. Thus, all Russian agreements on distribution of powers include the statement that all federal subjects will bring their legislation into accordance with the Constitution of the RF, the agreement and federal legislation on areas of mutual authority. If the Federal Center had executed timely and appropriate control over the realization of that statement, we would have had to put forth significantly less effort to bring the legislation of the federal subjects into accordance with federal legislation.

Before we continue to analyze the practice of agreements, it is important to see which subjects have used the agreements and what their share is in the general population, in the countrys total area and in Russias GNP. Table 1 serves this purpose:

 

Agreements on distribution of powers

(the last agreement was signed in the second half of 1997)

 

##

Economic region

Name of the subject of the RF

Data of signing

Area

Population

Share in Russias GNP

 

 

 

 

in 1,000 sq. km

share in RF (%)

1,000 people

share in RF (%)

(%)

1

2

3

4

5

6

7

8

9

1.

Northern

Republic of Karelia

 

 

 

 

 

 

2.

Komi Republic

20.03.95

415,9

2,44

1185,0

0,80

1,38

3.

Arkhangelsk obl.

In project

 

 

 

 

 

4.

Nenets Autonomous Area

In project

 

 

 

 

 

5.

Vologda obl.

04.07.97

145,7

0,85

1354,5

0,91

1,37

6.

Murmansk obl.

28.10.97

144,9

0,85

1067,1

0,72

1,02

7.

North-Western

The city of Saint-Petersburg

13.06.96

1,9

0,01

4769,0

3,23

3,34

8.

Kaliningrad obl.

02.01.96

15,1

0,09

932,0

0,63

0,37

9.

Leningrad obl.

13.06.96

85,9

0,5

1668,0

1,13

0,89

10.

Novgorod obl.

 

 

 

 

 

 

11.

Pskov obl.

 

 

 

 

 

 

12.

Central

Briansk obl.

04.07.97

34,9

0,2

1475,0

1,0

0,55

13.

Vladimir obl.

 

 

 

 

 

 

14.

Ivanovo obl.

20.05.98

21,8

0,13

1263,0

0,86

0,46

15.

Kaluga obl.

 

 

 

 

 

 

16.

Kostroma obl.

20.05.98

60,1

0,35

800,0

0,54

0,42

17.

The city of Moscow

16.06.98

 

 

8572,0

5,81

10,25

18.

Moscow obl.

In project

 

 

 

 

 

19.

Orel obl.

 

 

 

 

 

 

20.

Ryazan obl.

 

 

 

 

 

 

21.

Smolensk obl.

 

 

 

 

 

 

22.

Tver obl.

13.06.96

84,1

0,49

1644,0

1,11

0,83

23.

Tula obl.

In project

 

 

 

 

 

24.

Iaroslavl obl.

28.10.97

36,4

0,21

1450,0

0,98

1,05

25.

Volga-Viatka

Republic of Mari El

20.05.98

23,2

0,14

766,0

0,52

0,28

26.

Republic of Mordovia

In project

 

 

 

 

 

27.

Chuvash Republic

27.05.96

18,3

0,11

1363,0

0,92

0,53

28.

Kirov obl.

28.10.97

120,8

0,71

1636,0

1,11

0,83

29.

Nizhny Novgorod obl.

08.06.96

74,8

0,44

3732,0

2,53

2,5

30.

Central Black Belt

Belgorod obl.

 

 

 

 

 

 

31.

Voronezh obl.

20.05.98

52,4

0,31

2501,0

1,69

1,17

32.

Kursk obl.

 

 

 

 

 

 

33.

Lipetsk obl.

 

 

 

 

 

 

34.

Tambov obl.

In project

 

 

 

 

 

35.

Volga

Republic of Kalmykia

In project

 

 

 

 

 

36.

Republic of Tatarstan

15.02.94

68,0

0,4

3765,0

2,55

2,69

37.

Astrakhan obl.

28.10.97

44,1

0,26

1022,0

0,69

0,41

38.

Volgograd obl.

In project

 

 

 

 

 

39.

Penza obl.

 

 

 

 

 

 

40.

Samara obl.

01.08.97

53,6

0,31

3309,0

2,24

3,2

41.

Saratov obl.

04.07.97

100,2

0,59

2738,0

1,85

1,45

42.

Ulianovsk obl.

28.10.97

37,3

0,22

1491,0

1,01

0,76

43.

North Caucasian

Republic of Adygeya

In project

 

 

 

 

 

44.

Republic of Dagestan

 

 

 

 

 

 

45.

Republic of Ingushetia

 

 

 

 

 

 

46.

Kabardino-Balkar Republic

01.07.94

12,5

0,07

784,0

0,53

0,19

47.

Karachaevo-Cherkes Republic

In project

 

 

 

 

 

48.

Republic of North Osetia - Alania

23.03.95

8,0

0,05

661,0

0,45

0,17

49.

Chechen Republic

In project

 

 

 

 

 

50.

Krasnodar Territory

30.01.96

76,0

0,45

4984,0

3,38

2,2

51.

Stavropol Territory

In project

 

 

 

 

 

52.

Rostov obl.

11.06.96

100,8

0,59

4409,0

2,99

1,87

53.

Ural

Republic of Bashkortostan

03.08.94

143,6

0,84

4089,0

2,77

2,8

54.

Udmurt Republic

17.10.95

42,1

0,25

1636,0

1,11

0,88

55.

Kurgan obl.

In project

 

 

 

 

 

56.

Orenburg obl.

30.01.96

124,0

0,73

2225,0

1,51

1,29

57.

Perm obl.

31.05.96

160,6

0,94

3001,0

2,03

2,63

58.

Komi-Perm Autonomous Area

31.05.96

32,9

0,19

156,0

0,11

?

59.

Sverdlovsk obl.

02.01.96

194,8

1,14

4677,0

3,17

4,13

60.

Cheliabinsk obl.

04.07.97

87,9

0,51

3683,0

2,50

2,35

61.

Western Siberian

Republic of Altai

 

 

 

 

 

 

62.

Altai Territory

29.11.96

169,1

0,99

2691,0

1,82

1,06

63.

Kemerovo obl.

In project

 

 

 

 

 

64.

Novosibirsk obl.

 

 

 

 

 

 

65.

Omsk obl.

19.05.96

139,7

0,82

2178,0

1,48

1,47

66.

Tomsk obl.

In project

 

 

 

 

 

67.

Tyumen obl.

 

 

 

 

 

 

68.

Khanty-Mansi Autonomous Area

In project

 

 

 

 

 

69.

Iamalo-Nenets Autonomous Area

In project

 

 

 

 

 

70.

Eastern Siberian

Republic of Buryatia

28.09.95

251,3

2,06

1050,0

0,71

0,55

71.

Republic of Tyva

In project

 

 

 

 

 

72.

Republic of Khakassia

 

 

 

 

 

 

73.

Krasnoiarsk Territory

01.11.97

2339,7

13,7

3118,0

2,11

1,48

74.

Taimyr Autonomous Area

01.11.97

862,1

5,05

47,0

0,03

 

75.

Evenki Autonomous Area

01.11.97

767,6

4,5

21,0

0,01

 

76.

Irkutsk obl.

27.05.96

767,9

4,5

2789,0

1,89

2,44

77.

Ust-Ordynsk Autonomous Area

27.05.96

22,4

0,13

142,0

0,1

?

78.

Chita obl.

In project

 

 

 

 

 

79.

Agin-Buryat Autonomous Area

In project

 

 

 

 

 

80.

Far Eastern

Republic of Sakha (Yakutia)

29.06.95

3103,2

18,17

1036,0

0,7

1,44

81.

Jewish Autonomous Region

 

 

 

 

 

 

82.

Chukot Autonomous Area

 

 

 

 

 

 

83.

Primorski Krai

 

 

 

 

 

 

84.

Khabarovsk Territory

24.04.96

788,6

4,62

1560,0

1,06

1,07

85.

Amur obl.

20.05.98

363,7

2,13

1030,0

0,70

0,59

86.

Kamchatka obl.

 

 

 

 

 

 

87.

Koryak Autonomous Area

In project

 

 

 

 

 

88.

Magadan obl.

04.07.97

461,4

2,7

265,0

0,18

0,24

89.

Sakhalin obl.

29.05.96

87,1

0,51

648,0

0,44

0,49

 

 

 

 

 

 

 

TOTAL:

12.746,4 thousand sq. km

75,25%

96.982,46 thousand people

62,46%

68,6%

 

It is well-known that criticisms of agreements include the following: agreements are reported to alter the nature of the RF; it is unclear how agreements come into accordance with federal laws and the laws of the federal subjects; agreements break the principle of equality of the federal subjects. Next, we will attempt to answer these questions.

 

Agreements do not alter the nature of the Russian Federation

 

The Constitutional Court has demonstrated that the agreements, as important as they are, are subordinate to the Constitution of the Russian Federation, and therefore, they cannot be interpreted as alterations to the status of the federation and its subjects which are established by the Constitution. The Constitutional Court of Russia indicated that the statements of the Russian Constitution will be the primary source when the status of the federal subjects and distribution of powers between the center and the subjects are determined (see C.2.1. of the motivational part of Resolution of June 7 2000, #10- on the Constitutionality of Separate Statements of the Constitution of the Altai Republic and Federal Law On General Principles of the Organization of Legislative and Executive Organs of State Power in the Subjects of the Russian Federation). Therefore, the statement from article 11 part 3 of the Constitution (which says that the distribution of powers between the state authorities of the federation and its subjects has to be based upon the Constitution of the Russian Federation, as well as upon the Federal Agreement and other agreements on distribution of powers) implies that all above-mentioned agreements should be in accordance with the Constitution of the Russian Federation.

Besides, the Constitutional Court of the RF had repeatedly recommended the practice of agreements as an effective instrument for reaching peace in conflict situations. For instance, the resolution of July 14, 1997 (Resolution 12- of Article 66, Part 4, On the Interpretation of the Statement of Inclusion of Autonomous Areas in the Composition of a Region or Oblast) of the Constitutional Court of Russia, when defining the principles of the distribution of powers in the federal subjects that are a part of compound subjects, states that based upon the Constitution of the Russian Federation and in the context of active legislation, autonomous areas, region, and oblasts may determine the order of formation of state authority organs with the help of an agreement. However, the agreement cannot limit the voting rights of citizens of the respective autonomous area, region or oblast. If such an agreement does not exist, federal legislation and the laws of the region, oblast, etc. should be used instead.[1]

It is obvious that the resolution on the possibilities of distribution of power between the organs of power of the federal center and those of the federal subjects does not alter the existing character of the federation. Modern Russia has a constitutional nature; therefore, issues concerning the status of territories and changes in the subjects administrative borders or authority can only be discussed within the limits of the federal Constitution.

In this connection, it is important to remember that the federal Constitution has supreme legal authority and direct effect on the whole territory of Russia, according to its Article 15, Part 1. Federal laws and the federal constitution also directly define the authorities of the Russian Federation (Part 1, Article 76). Therefore, the Constitution of the RF, the Federal Agreement and other agreements have different legal weights in regulating the legal organization of the country. The dominating authority belongs to the Constitution of the Russian Federation, which has established a national character based on the constitution rather than agreements and the constitution together or agreements alone.

We should mention that the opponents of the practice of agreements often erroneously or purposefully view the agreements as treaties between a part and a whole rather than seeing them as acts stating the authorities and responsibilities of different levels of authority. But such documents have never existed in the history of Russia! The very idea that the possibility exists of drawing a treaty between the Russian Federation as a whole and its subjects as equal states is legal and political nonsense. The Constitution of the RF secures the equality of federal subjects between themselves and in their relations with the federal center rather than their equality with the federal state they are a part of.

Moreover, the fact that most of the agreements concluded between 1995 and 1998 re-assigned some powers from the exclusive competency of a federal subject to the joint competency of the subjects and the federal center does not mean that the federation was weakened. It rather witnesses that the period of parade of sovereignties and fleeing from the Center was over by the mid-90s, and instead, there began a period of centripetal motion and an active process of assembling the Russian territories.

It is unreasonable to resist the processes of converting some exclusive authorities of the subjects into joint authorities shared with the federal center, as the regions have the right to do so according to Article 73 of the Constitution of the RF. Besides, both regions and the Federation receive direct benefits from delegating some of the subjects exclusive authorities into the joint realm of competence.

 

Agreements do not violate the equality of the subjects of the Federation

 

Firstly, we should not confuse the notions of legal and factual equality. The subjects of the federation, just like people, cannot be factually equal, but they have the same rights.

Secondly, since the Constitution of the Russian Federation enables all subjects without exception to state the distribution of authorities in agreements, all regions have an equal opportunity to either use their right to do so or not. An analogy: people have the right to get married, but the fact that some used this opportunity, while others did not does not mean that the latter have been denied their rights.

A similar understanding of the principles of equality is presented in the resolution of the Constitutional Court of the RF of July 15, 1996, namely in Resolution 16-, Constitutionality Verification of c.1 Art.1 and c.4 Art. 3 of the RF law On Road Funds in the Russian Federation.[2] The Constitutional Court ruled that the principle of equality of the federal subjects is demonstrated, for instance, through a single, legislated approach to the distribution of authorities between the RF and its subjects, and therefore, it dictates that federal legislators should establish unified rules for the interaction of the federal government with federal subjects (Art. 2 of the motivational part). The Constitutional Court also gave exhaustive answers to those who would confuse the notions of the legal and factual equality of the federal subjects. The Court ordered that, when developing and executing federal and regional policies, the federal government should base its authority upon the fact that the legal equality of the subjects of the Russian Federation does not imply the equality of their potentials and their levels of social-economic development, as the latter mostly depend on territory, geographic location, population numbers, the historical development of their economic structures, etc. Taking into account regional peculiarities is an important condition for balancing interests and implementing federation-wide standards in all areas of the federal subjects vital activity (see c.7 of the motivational part).

The Constitutional Court of the RF demonstrated in the same resolution that in a truly federal state, the ideology of federalism must penetrate all levels of all organs of power, including activity in regard to ones exclusive authorities. Clause 3 of the motivational part states that federal legislators cannot solve problems even in their own realms of authority if those problems concern the constitutional legal status of federal subjects without taking into consideration the constitutional bases of a federal state. It is even more unacceptable to voluntarily limit the rights of the subjects of the Federation.

 

On the correlation between the agreements and federal laws

 

As is well-known, neither the Constitution of the RF nor federal legislation gives an account of how federal laws and agreements correlate to the legislation of federal subjects in regard to the distribution of powers. The above-quoted statement from Part 3 of Article 11 of the Russian Constitution implies that the constitutional regulation of federal relations is a priority. Thus, the distribution of powers in the agreements can be carried out only in accordance with the provisions of Articles 71-73 of the Constitution, i.e. be reduced to the distribution of powers between the federation and its subjects in areas of joint competence (article 72) and to the transfer of exclusive authorities of the subjects into the competence of the federation (article 73). However, Part 3 of Article 11 does not include such a limitation, while its provisions, due to Part 2 of Article 16, have a greater legal force than the statements of Articles 71-73 and Part 1 of Article 76.

At the same time, the varying volume of authorities and duties of the Russian Federation and its subjects is often perceived as a practice contradicting the principle of equality of the federal subjects (Parts 1, 4 Art. 5). Articles 5 and 11 are included in Chapter 1 (The Bases of Constitutional Organization) of the Constitution and therefore possess a greater legal force than other constitutional norms do. Thus, a merely legal solution of the collision seems unrealistic.

However, the principle of the equality principle of all federal subjects can also be perceived (along with general legal personality) as a constitutionally guaranteed right of every subject to regulate its relations with the federal authority (distribute the authorities) by means of an agreement. The exact volume of mutual rights and duties (just like individual legal status) can vary.

In regard to federal laws being a legal instrument for distributing authorities, they are not named directly in Part 3 of Article 11 of the Russian Constitution. However, if we take a systemic look at the meaning of Article 72 and Part 2 of Article 76, we can see that the principles and order of distributing powers between the federal center and its subjects can be established by federal laws.

The Constitutional Court has laid out this position many times. For instance, the earlier-mentioned Statement of January 9, 1998, Clause 1-, On the Checking of the Constitutionality of the Forestry Code, includes the Courts note that federal law as a normative legal act of general action, regulating certain questions of mutual competence, defines the rights and the duties of the participants legal relations, including the powers of organs of state authority and thus distributes those powers (clause 4 of the motivational part).[3]

The legal position of the Constitutional Court of the RF concerning the correlations between the legal authorities of the center and its subjects in areas of joint authority is also highly important. As we know from the experience of foreign federations, the existence of competing (mutual) powers means that the authorities of one level will carry out their powers when the other level of authority is inactive. As a rule, competing powers will permit federal authorities to adopt the power concerned. This is expressed through the widely-known principle known as Bundesrecht bricht Landesrecht (The right of the federation is above the right of its subjects).[4] Even though the mechanism of competing powers is aimed at the centers acquisition of the corresponding competence, the legal vacuum is filled by the subjects of the federation in case the federal legislator is asleep.

The Constitutional Court of the Russian Federation has more than once confirmed the right of the subjects of advance legal regulation in an area of joint competence if there is no federal law, but it also mentioned that should a federal law appear, the acts of the federal subjects should be brought in agreement with it. For instance, Clause 3 of the motivational part of the Resolution of January 24, 1997 (which is concerned with of checking the constitutionality of the Udmurt law About the System of Federal Organs in the Udmurt Republic of April 17, 1996) states that according to the Constitutional Court of the RF, the establishment of general principles of organization of state power is under the mutual competence of the Russian Federation and the subjects of the Russian Federation (Article 72, clause of part 1 of the Constitution of the Russian Federation). Article 76 Part 2 of the Constitution provides that there may be federal laws, as well as laws and other acts of the federal subjects, issued on the question of joint authorities of the RF and its subjects. Since at that point, federal legislators had not yet exactly established the common principles of organizing the state organs of power, as well as state representative and executive organs, as has been provided by Articles 72 (Clause of Part 1), 76 (Part 2), and 77 (Part 1), the Constitutional Court provided that until the corresponding question is regulated by federal legislators, a republic may carry out its own regulations with regard to corresponding mutual competencies, and may also establish its own system of state power organs in accordance with the constitutional bases of the Russian Federation and the general principles of organization of such organs.

Concerning the recently popular idea of dividing the authorities of the federal center and regions in areas of concurrent powers listed in Article 72 of the Constitution of the Russian Federation, there exist two problems. The first concerns the fact that it is important to take into consideration the variety of the 89 subjects of the federation. It is obvious that except for the necessity of elaborating the above-mentioned regulations on concurrent powers, we should discard the practice of a petty, detailed listing of all of the powers of the different levels of state authority and instead pay special attention to the procedural issues of drafting such laws.

For instance, it is important to fix in legislation that laws and legal acts on concurrent powers should be discussed in the process of their preparation and adoption. The law must guarantee that the position of the federal subjects of the Russian Federation will be heard. The other problem is connected with the philosophical and methodological aspects of the down to the ground division of concurrent powers: the seeming benefit of liquidating the field of conflict is overlapped by the negative consequences of losing the field of interaction between the federal center and the regions. The disappearance of the sphere of concurrent powers leads, paradoxical as it is, to the disappearance of federal ties. Conflict is first of all a useful signal to the federal center which can bring about the necessary legal and institutional improvements in the dynamic system of federal relations. On the other hand, the complete division of powers can cause the isolation of regions, especially the strong ones.

In a true federation, all parts should be involved in the activity of the whole. The subjects should be able to actually recognize themselves in the federation, since it is their federation, rather than some center of power to oppose. Such an institutional connection, as well as its perception by politicians and the population, is highly important for guaranteeing the loyalty of regions to the federation and for a more harmonious collaboration between the two.

 

On agreements between executive authorities

 

The agreements on mutually delegated powers between the federal center and the organs of executive power of the subjects takes a special place among the legal mechanisms of distribution of powers. The above-mentioned agreements are provided for by Article 78 (Parts 2 and 3) as a means of optimization of government in the Russian Federation.

It is well-known that the regions cannot issue laws which are an exercise of the exclusive powers of the Russian Federation. In the same manner, the federal center cannot adopt laws unilaterally or interfere in some way into the sphere of the subjects exclusive powers. However, as part of procedures of Article 78 of the Russian Constitution, federal executive organs can delegate the right of carrying out parts of their powers to the subjects executive organs. In addition to that, the power remains the property of the federal center, since it is only the right of its execution for a certain period of time and under certain conditions that is being transferred.

The Constitutional Court of the Russian Federation established (by the Resolution of July 14, 1997, Clause # 12-, On Interpreting Part 4 of Article 66 of the RF Constitution) that the subjects of the Russian Federation also have the right to delegate some of their powers to each other: Beyond the federal powers and the Federations concurrent powers with federal subjects, any region, oblast, or autonomous area, being independent and equal federal subjects, possesses full state authority and can voluntarily transfer some of its rights to each other, by means of agreement between corresponding state authority organs or through adopting the law of a region, oblast or area (clause 6 of the motivational part).[5]

 

On conciliation procedures

 

We cannot ignore such legal mechanisms as the conciliation procedures used by the President of the RF (according to Part 1 of Article 85 of the Constitution of the RF) to resolve conflicts between federal and regional organs of state authority, as well as conflicts within regional bodies of power. As has been demonstrated by experience, conflicts most frequently arise in the area of distribution of power between different levels of authority.

The Constitutional Court of the RF has recommended the use of conciliation procedures to resolve conflicts between the federal center and the regions as well as between authorities in the regions of a compound federal subject.

For instance, the Constitutional Court (see the quoted Resolution On Interpreting Part 4 of Article 66 of the Constitution of the RF), addressing the conflicting authorities of Tyumen oblast, Khanty-Mansi and Iamalo-Nenets Autonomous Areas, confirmed that the parties have to take necessary measures to reach conciliation in order to ensure constitutional order. In case such conciliation is lacking, the federal legislator will adopt a federal law which will guarantee the rights and interests of the Russian Federation and its subjects, as well as the rights of autonomous areas, oblasts and regions which are parts of the subjects.[6]

An example of the successful resolution of a conflict between regional authorities of a compound federal subject is the Agreement on Distribution of Powers between the State Authorities of the Russian Federation and the State Authorities of Krasnoiarsk Region, Taimyr and Evenki Autonomous Areas.

 

Should the practice of agreements be eliminated?

 

As has already been mentioned, the critics of the practice of consider it to be more like a distribution of preferences to separate federal subjects and a violation of equality. Today, the federal center is conducting an active campaign to abolish agreements (they have received consent for the repudiation of 21 out of 42 agreements drawn by 1997; other agreements, despite the opposition of regional leaders, will be repealed since they were not validated by federal law). Even though this campaign is carried out under the guise of securing the state, it actually reduces the federal centers practical influence upon the regions as well as its possibilities of maneuvering. Agreements are objectively most profitable for the federal center, since they are an effective instrument of conducting regional politics and improving the federal bases of the state. We should rather present concrete examples of possibilities which will be lost by the federal center if the practice of agreements is eliminated.

 

The agreement as a legal instrument of resolving regional conflicts

 

The prime example of this is the Agreement between State Authorities of the Republic of Tatarstan. Even though it was second to be elaborated, it was first to be signed. The first example of an analogous document was elaborated during negotiations of the Russian and Chechen delegations in Grozny in 1992. Moreover, the text of the agreement for Chechnya was published in 1993 for public discussion. But unfortunately, the process was then shut down.

As is well-known, the Constitution secured the basic principles of the 1992 Federal agreement and thus destroyed some separatist movements intentions to secure a federation based on agreements.

Out of 89 federal subjects, only Tatarstan and the Chechen Republic refused to sign the Federal Agreement and faced sudden deterioration of relations with the center. For instance, the new 1993 Constitution of the Russian Federation was not supported in Tatarstan, and federal elections did not succeed there either. This situation required special legal instruments for its normalization.

Of course, the federal center could at that time demand that Tatarstan unconditionally change its rules as a first step toward normalization of relations with the center. Such an uncompromising approach would certainly have brought the situation to political and legal deadlock (as we see now in the tragic course of events in the Chechen Republic).

Fortunately, political reason and will for constructive dialog were in the ascendant in both the federal center and Tatarstan. After three years of very difficult negotiations, that work resulted in signing an agreement on distribution of power.

As a result, Tatarstan started again to cooperate fiscally with the Russian Federation, and federal elections took place in Tatarstan, just as they did in any other federal subject, which legally meant that Tatarstan unconditionally admitted the sovereignty of the Russian Federation on its territory.

It is evident that as an instrument of legal regulation of a political conflict, an agreement does not lose its applied meaning for the situation in the Chechen Republic either.

 

Agreements as an instrument of normalizing the relations of the regions of the compound subjects of the Russian Federation

 

It is well-known that inside compound subjects of the RF, there often arise conflicts between the regions/oblasts authorities and the authorities of the internal autonomous areas. In the mid-90s, the difficulties in the relations between Khanty-Mansi and Iamalo-Nenets Autonomous Areas and Tyumen oblast have suddenly escalated; the relations between Taimyr Autonomous Area and Krasnoiarsk region (the former being a part of the latter) are still not harmonized.

In such cases, legally adequate agreements help resolve most deadlocked situations. There have been three precedents so far: two tripartite agreements between the authorities of the Russian Federation, Irkutsk oblast and Buryat Autonomous Area, and between the Russian Federation, Perm oblast and Komi-Permyak Autonomous Area; and a quadripartite agreement between the authorities of the Russian federation, Krasnoiarsk region, Taimyr and Evenki Autonomous Areas.

In accordance with the federal Constitution, the authorities of corresponding federal subjects have equal rights. That was the practice of normalizing relations within compound subjects of the Federation recommended by the Constitutional Court of the RF when explaining Part 4 of Article 66 of the Constitution of the Russian Federation.

 

Agreements as a legal base for enlarging federal subjects

 

It is not a secret that the borders of some federal subjects were historically given a subjective cut. The prime example is St. Petersburg and Leningrad region. It was the process of preparing agreements on distribution of powers with the federal center that made these federal subjects fully see and realize the disadvantages and contradictions existing after decades of the split existence of the city and the oblast.

This understanding made both sides to agree to include in their agreements two mirror articles on the issue which provide that Leningrad region and St. Petersburg can create common organs of authority in accordance with article 78 of the Russian Constitution.

Thus, agreements on the distribution of powers contain a legal base for uniting the authorities of two regions and for enlarging the subjects of the Russian Federation.

 

Agreements as an instrument of filling the gaps in concurrent powers in federal legislation

 

As has already been mentioned, the idea of substituting agreements with a series of standard federal laws distributing authority on a certain concurrent power with all federal subjects at once has been promoted. This position has a right to exist, but regional differences are so big that it is hard to consider the peculiarities of distributing authority on certain concurrent powers with every single one of the 89 subjects of the Russian Federation. What is fit for industrially-developed regions is totally unacceptable in agricultural ones. What is good for the far north does not work in the south and so on and so forth. The tempo of federal law-making itself is distant from real life needs.

Since the concurrent powers of the RF and its subjects are recorded in the Constitution without separating the powers between the federal authorities and regional authorities of the federal subjects, it can cause some legal collisions between the two on those issues. Legal regulation of the concurrent powers of the RF and its subjects is executed through federal laws, as well as through laws and other legal acts of the federal subjects (Part 2 Article 76 of the Russian Constitution). The lack of a corresponding federal law on concurrent powers does not prevent a federal subject from making its own law which would be in accordance with the Russian Constitution and federal legislation. This position has been confirmed many times by the Constitutional Court of the RF.

Thus, agreements tuning general federal principles in accordance with regional peculiarities can fill in the operational gaps in federal legislation on concurrent powers. If a corresponding federal law is adopted, they will operate in the area not contradicting the federal law. Moreover, the texts of almost all agreements necessarily include the following provision:

Until there is adopted a federal law on a certain concurrent power of the Russian Federation and its subjects, a republic (oblast, region) will execute its own legislative regulation of the above-mentioned concurrent power.

After a corresponding federal law is adopted, the laws and legal acts of a republic (oblast, region) are brought in accordance with the federal law. Laws and other legal acts of a given republic (region, oblast) which are not brought in accordance with the federal law should not be used.

Thus, by signing an agreement, a federal subject is obliged to bring its legislation in accordance with the federal legislation and make sure it stays that way.

 

Agreements as an instrument of the Centers legal intervention into the exclusive powers of the federal subjects

 

Some authors of the Law on the General Principles of Distributing Powers specifically emphasized that including the subjects exclusive powers into agreements was inexpedient and violated the Constitution of the RF.

As has already been mentioned, since federal subjects enjoy full authority in the issues of their exclusive competency, they have a right to delegate some of their powers into the area of concurrent powers, provided that the Russian Federation gives its consent.

Exclusive powers made concurrent secure federal power, since this is a way for the federal center to issue laws on the above-mentioned questions. The federal subjects also benefit by getting real assistance from the central authorities in resolving the problems a region cannot resolve on its own.

The federal law of June 24, 1999 On the Principles and Order of Distribution of Powers between State Authorities of the Russian Federation and State Authorities of the Federal Subjects made the procedures of distributing powers through an agreement more systematized and improved.

Article 14 of the above-mentioned law set the limits of distribution of powers by means of an agreement in the following way:

1. An agreement may be drawn if:

a)        the federal law on concurrent powers permits drawing an agreement on a given concurrent power;

b)        there is no already existing federal law on a given concurrent power (in case such law is adopted, the agreement should immediately be brought in accordance with the federal law)

2. An agreement may specify concurrent powers with consideration of political, economic, social, geographic, ethnic and other peculiarities of the subjects of the Russian Federation.

3. A specific arrangement may be reached based on an agreement or a federal law on concurrent powers.

Article 17 specified possible subjects of agreements:

Subjects of an agreement may be the following: specification of powers stated by the federal Constitution and federal laws; conditions and order of execution on distributed powers; forms of interaction and collaboration in the process of execution of agreements statements; other issues connected with execution of agreements statements.

It seems that federal law can be a barrier in the case of a coordinated transfer of some regions exclusive powers to the area of concurrent powers, especially since the regions were given such a right by Article 73 of the Russian Constitution and they possess full authority in the areas of their exclusive powers.

When federal lawmakers were insisting on the purity of the principle, i.e. on distributing powers between the federations and federal subjects state authorities only in the area of concurrent powers after the provisions of Article 72 of the Russian Constitution, they did not see that both regions and the Federation as a whole would benefit from making some exclusive powers concurrent.

As we know, since the Federal law on principles and order of distribution of powers has been adopted, not a single agreement has been signed. Moreover, a number of federal subjects raised the issue of canceling previously drawn agreements. What should one do in such a situation?

I suppose that the only appropriate legal way to solve this problem would be a bilateral protocol, signed, on the one hand, by the President of the Russian Federation, and, on the other hand, by the highest executive of a federal subject (in some cases, also by the director of the legislative organ of a federal subject), and confirming that a given agreement had lost its effect.

It is important to understand that in case this process turns into a campaign for canceling all agreements there arises a danger of returning to the situation of 1994, when agreements were not exactly a standard instrument of distributing powers between different levels of power they rather were an instrument of emergency political aid in resolving conflicts between the federal center and the republics in the composition of Russia. In other words, ethnic republics will keep the agreements, while regions and oblasts will lose this legal instrument of specifying spheres of responsibility with the federal center.

 



* Sergei Mikhailovich Shakhrai, Doctor of Science (jurisprudence), deputy of the Director of the Accounting Chamber of the Russian Federation, director of the State Systemic Analysis Research Institute of the Accounting Chamber of the Russian Federation.

[1] See the commentary to the resolutions of the Constitutional Court of the Russian Federation. M. 2000, vol.1, p.81.

[2] Sobranie zakonodatelstva Rossiiskoi Federatsii. 1996, #29, art. 3543.

[3] Sobranie zakonodatelstva Rossiiskoi Federatsii. 1998,  #3, art. 429.

[4] Pas V. Pravovye mekhanizmy razgranicheniia polnomochii // Osnovy teorii i praktiki federalizma. Leiden, 1999, p.89.

[5] Vestnik Konstitutsionnogo Suda Rossiiskoi Federatsii. 1997. #5.

[6] Ibid.


 
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