Constitutional Court of the Russian Federation, On the case concerning the verification of constitutionality of Article 12 of the Law of the USSR of 9 October, 1989 “On the Order of Settlement of Collective Labour Disputes (Conflicts)”, 17 May 1995
Constitution of the Russian Federation
Article 15, paragraph 4
Universally recognized principles and norms of international law as well as international agreements of the Russian Federation should be an integral part of its legal system. If an international agreement of the Russian Federation establishes rules, which differ from those stipulated by law, then the rules of the international agreement shall be applied.
Article 17, paragraph 1
In the Russian Federation human and civil rights and freedoms shall be recognized and guaranteed according to the universally recognized principles and norms of international law and this Constitution.
Right to strike
Use of international law as a guide for interpreting domestic law
Law restricting the exercise of the right to strike/ Institution of proceedings before the Constitutional Court for unconstitutionality of the law/ Analysis of the relevant national and international provisions/ Use of international law as a guide for interpreting domestic law
The flight personnel of several airlines had gone on strike, but the strike had been ruled illegal by the ordinary courts, which held that it was against the law on the procedures for settling labour disputes in Russia.2 Proceedings were instituted before the Constitutional Court to have the law in question declared unconstitutional.
The Constitutional Court referred first of all to the provisions of the Constitution, which recognized the legitimacy of the right to strike but authorized the legislator to restrict it for certain categories3 and added that these Constitutional provisions were compatible with international law and that the latter was intended to serve as a guide for the legislator for determining any restrictions which might be made to the right to strike:
“Nor does the restriction of the right to strike contradict the generally accepted principles and rules of international law. Thus, proceeding from the regulations of the International Covenant on Economic, Social and Cultural Rights, the prohibition of the right to strike is admissible with regard to persons who are the complement of the armed forces, police and administration of the state (part two of Article 8),4 and with regard to other persons the restrictions are possible if they are needed in the democratic society in the interests of state security or social order or for the protection of the rights and freedoms of others (paragraph “c” of part one of Article 8). In addition, the international legal acts on human rights ascribe the regulation of the right to strike to the sphere of internal legislation. But this legislation must not go beyond restrictions permitted by these acts.”
Having considered the national and international sources of law, the Constitutional High Court held that any restriction of the flight personnel’s right to strike was illegal. The offending article in the legislation was unconstitutional, however, in that it did not introduce adequate differences between the various categories of personnel working in civil aviation and thus excessively extended the scope of the restriction of the right to strike.
The Constitutional Court urged the Federal Assembly of the Russian Federation to reword the article in the law pertaining to restriction of the right to strike, thereby taking account of the relevant articles of the Constitution5 and the generally accepted principles and rules of international law in order to determine the extent of any restrictions that might be made to the right to strike.
3 Article 37(4) of the Constitution of the Russian Federation: “The right of individual and collective labour disputes with the use of the methods for their resolution, which are provided for by federal law, including the right to strike, shall be recognized.”
4 Article 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights: “1. The States Parties to the present Covenant undertake to ensure: (…) (d) The right to strike, provided that it is exercised in conformity with the laws of the particular country.”
Article 8(2) of the International Covenant on Economic, Social and Cultural Rights: “This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces or of the police or of the administration of the State.”
Article 55(3) of the Constitution of the Russian Federation: “Human and civil rights and liberties may be restricted by the federal law only to the extent required for the protection of the fundamentals of the constitutional system, morality, health, rights and lawful interests of other persons, for ensuring the defence of the country and the security of the state.”