Papers by Maria Smirnova
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This article promotes a distinctive sociological interpretation of the Russian Constitution. Much... more This article promotes a distinctive sociological interpretation of the Russian Constitution. Much literature on Russian constitutional law is defined by the claim that the Constitution has little factual reality and limited foundation in society. This article challenges this view on two grounds. It argues that there are two deep-lying social processes that underlie the Constitution, and condition its evolution: the Constitution is shaped (a) by the importance of constitutional law for the stabilization of governance structures; (b) by the resultant relative autonomy of judicial practices, which means that legal exchanges (especially litigation) have formative impact on the constitutional order. On both grounds, the Russian Constitution is locked into cycles of societal norm construction. To understand the sociological linkages in which the constitution is located, we require a complex construction of society, and we need to observe how different practices within the legal system affect and even produce constitutional laws. Keywords sociology of constitutional law – Russian constitution – judicial politics – litigation
In Charles J Russo Editor International Perspectives on Education Religion and Law Routledge 2014 P 181 194, 2014
Conference Presentations by Maria Smirnova
Russian 'anti-gay law' is commonly perceived by western media as a 'new, dark chapter in the hist... more Russian 'anti-gay law' is commonly perceived by western media as a 'new, dark chapter in the history of gay rights in Russia', a law that 'demonizes and discriminates against Russian citizens who are lesbian, gay, bisexual or transgender'. Although its eventual 'chilling effect' on both legal status of sexual minorities (or persons with non-traditional sexual orientation) in Russia and the country's international reputation as the least protective country in Europe for LGBT citizens is undisputed, little is known about the law's original purpose, and even less about its basis in Russia's international human rights obligations.
The main purpose of this paper is to deconstruct this law, its creation and application as one of the most recent examples of Russia's involvement in transnational processes, an example of 'combined functioning of public international law and domestic legal systems, and of their mutually regulated interaction'8 in one specific field of governance.
I will argue that as a result of this interaction at judicial, social and political levels the dichotomy of LGBT rights v. 'traditional' (family) values has been artificially, albeit skilfully, constructed for political purposes and introduced into international human rights discourse. In this paper I will indicate in what way is Russian 'anti-gay law' originally based on international treaties signed and ratified by Russia.
Russian ‘anti-gay law’ is commonly perceived by western media as a ‘new, dark chapter in the hist... more Russian ‘anti-gay law’ is commonly perceived by western media as a ‘new, dark chapter in the history of gay rights in Russia’, a law that ‘demonizes and discriminates against Russian citizens who are lesbian, gay, bisexual or ttransgender’. Although its eventual ‘chilling effect’ on both legal status of sexual minorities (or persons with nontraditional sexual orientation) in Russia and the country’s international reputation as the least protective country in Europe for LGBT citizens is undisputed, little is known about
the law’s original purpose, and even less – about its basis in Russia’s international human rights obligations.
In this paper I will indicate in what way is Russian ‘anti-gay law’ originally based on international treaties signed and ratified by Russia. However, before I move on to developing the main ideas of this paper, I will provide a brief description of the law and the legal, political and factual meaning of the key term ‘propaganda’ around which the law is constructed.
On 14 July 2015 the Russian Constitutional Court (RCC) passed a very alarming ruling No. 21-P whe... more On 14 July 2015 the Russian Constitutional Court (RCC) passed a very alarming ruling No. 21-P whereby all lower courts shall stop the proceedings on any case submitted for their consideration and refer to the RCC in order to review the constitutionality of legislation in which the ECtHR has found flaws. Should the RCC come to a conclusion that the Strasbourg decision is incompatible with the Constitution, it is not to be implemented. Later in 2015 a Federal Constitutional Law was adopted solidifying the right of the RCC to rule, essentially, on the constitutionality of a Strasbourg judgment (No. 7-FKZ of 14 December 2015).
If not a sign of a change in the general political attitude towards the implementation of decisions of the Strasbourg Court, this ruling at least brought forward the debate about international obligations and state sovereignty. The RCC reasoned that:
‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’
Importantly, the RCC classified their reserved position as the ‘right to object’ which, in view of the Court can only be used ‘in the most exceptional cases for the sake of making a contribution to the balanced formation of the European Court of Human Rights.’
This paper argues that the ‘right to object’ is not a revolutionary invention of the RCC. It is used in one form or another by the Constitutional Courts of Austria, United Kingdom, Germany and Italy. Essentially, there are reasons to agree with the RCC that ‘the interaction of European and constitutional legal orders is impossible in conditions of subordination, because only dialogue between different legal systems is the basis of a proper balance.’
Books by Maria Smirnova
According to the doctrine accepted by most Russian scholars, Education Law in Russia is scrutiniz... more According to the doctrine accepted by most Russian scholars, Education Law in Russia is scrutinized in three different conditions: as a branch of law, an academic discipline and a branch of legislation. Both Education Law and policy of the last ten to fifteen years were characterized by rapid and sometimes inconsistent changes readily embracing innovations but lacking conceptual strategy. However, the newest endeavor of the Ministry of Education and Science to generate an integral legislative act, comprehensively regulating educational activities in all their complexity and diverseness, has brought about
conceptual changes both to education law in is three conditions and education policy. As such, this chapter outlines recent trends in Russian Education Law and policy as well as major developments of Russian educational legislation.
Thesis Chapters by Maria Smirnova
The role that international human rights mechanisms play in strengthening the sense of accountabi... more The role that international human rights mechanisms play in strengthening the sense of accountability of states for respecting, protecting and fulfilling human rights of people within their jurisdiction is tremendous. The whole plethora of methods from dialogue, awareness raising and capacity-building to monitoring of compliance with binding human rights instruments and supranational judicial review – all count towards reinforcing national systems of realisation and protection of human rights.
The purpose of this paper is to reveal (1) how international human rights mechanisms contribute to shaping normative content of the right to education that can be effectively enforced through available system of judicial and quasi-judicial protection, and (2) how these mechanisms can be used to indicate and address inadequacies of implementation of the internationally recognised right to education and to bridge existing gaps of protection of this right.
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Papers by Maria Smirnova
Conference Presentations by Maria Smirnova
The main purpose of this paper is to deconstruct this law, its creation and application as one of the most recent examples of Russia's involvement in transnational processes, an example of 'combined functioning of public international law and domestic legal systems, and of their mutually regulated interaction'8 in one specific field of governance.
I will argue that as a result of this interaction at judicial, social and political levels the dichotomy of LGBT rights v. 'traditional' (family) values has been artificially, albeit skilfully, constructed for political purposes and introduced into international human rights discourse. In this paper I will indicate in what way is Russian 'anti-gay law' originally based on international treaties signed and ratified by Russia.
the law’s original purpose, and even less – about its basis in Russia’s international human rights obligations.
In this paper I will indicate in what way is Russian ‘anti-gay law’ originally based on international treaties signed and ratified by Russia. However, before I move on to developing the main ideas of this paper, I will provide a brief description of the law and the legal, political and factual meaning of the key term ‘propaganda’ around which the law is constructed.
If not a sign of a change in the general political attitude towards the implementation of decisions of the Strasbourg Court, this ruling at least brought forward the debate about international obligations and state sovereignty. The RCC reasoned that:
‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’
Importantly, the RCC classified their reserved position as the ‘right to object’ which, in view of the Court can only be used ‘in the most exceptional cases for the sake of making a contribution to the balanced formation of the European Court of Human Rights.’
This paper argues that the ‘right to object’ is not a revolutionary invention of the RCC. It is used in one form or another by the Constitutional Courts of Austria, United Kingdom, Germany and Italy. Essentially, there are reasons to agree with the RCC that ‘the interaction of European and constitutional legal orders is impossible in conditions of subordination, because only dialogue between different legal systems is the basis of a proper balance.’
Books by Maria Smirnova
conceptual changes both to education law in is three conditions and education policy. As such, this chapter outlines recent trends in Russian Education Law and policy as well as major developments of Russian educational legislation.
Thesis Chapters by Maria Smirnova
The purpose of this paper is to reveal (1) how international human rights mechanisms contribute to shaping normative content of the right to education that can be effectively enforced through available system of judicial and quasi-judicial protection, and (2) how these mechanisms can be used to indicate and address inadequacies of implementation of the internationally recognised right to education and to bridge existing gaps of protection of this right.
The main purpose of this paper is to deconstruct this law, its creation and application as one of the most recent examples of Russia's involvement in transnational processes, an example of 'combined functioning of public international law and domestic legal systems, and of their mutually regulated interaction'8 in one specific field of governance.
I will argue that as a result of this interaction at judicial, social and political levels the dichotomy of LGBT rights v. 'traditional' (family) values has been artificially, albeit skilfully, constructed for political purposes and introduced into international human rights discourse. In this paper I will indicate in what way is Russian 'anti-gay law' originally based on international treaties signed and ratified by Russia.
the law’s original purpose, and even less – about its basis in Russia’s international human rights obligations.
In this paper I will indicate in what way is Russian ‘anti-gay law’ originally based on international treaties signed and ratified by Russia. However, before I move on to developing the main ideas of this paper, I will provide a brief description of the law and the legal, political and factual meaning of the key term ‘propaganda’ around which the law is constructed.
If not a sign of a change in the general political attitude towards the implementation of decisions of the Strasbourg Court, this ruling at least brought forward the debate about international obligations and state sovereignty. The RCC reasoned that:
‘the participation of the Russian Federation in any international treaty does not mean giving up national sovereignty. Neither the ECHR, nor the legal positions of the ECtHR based on it, can cancel the priority of the Constitution. Their practical implementation in the Russian legal system is only possible through recognition of the supremacy of the Constitution’s legal force.’
Importantly, the RCC classified their reserved position as the ‘right to object’ which, in view of the Court can only be used ‘in the most exceptional cases for the sake of making a contribution to the balanced formation of the European Court of Human Rights.’
This paper argues that the ‘right to object’ is not a revolutionary invention of the RCC. It is used in one form or another by the Constitutional Courts of Austria, United Kingdom, Germany and Italy. Essentially, there are reasons to agree with the RCC that ‘the interaction of European and constitutional legal orders is impossible in conditions of subordination, because only dialogue between different legal systems is the basis of a proper balance.’
conceptual changes both to education law in is three conditions and education policy. As such, this chapter outlines recent trends in Russian Education Law and policy as well as major developments of Russian educational legislation.
The purpose of this paper is to reveal (1) how international human rights mechanisms contribute to shaping normative content of the right to education that can be effectively enforced through available system of judicial and quasi-judicial protection, and (2) how these mechanisms can be used to indicate and address inadequacies of implementation of the internationally recognised right to education and to bridge existing gaps of protection of this right.