National Identity vs International Law in the Practice of Constitutional Control Bodies

The defense of national identity against external threats is a pressing issue for states, that aim to play a major role in shaping a multipolar world, including Russia. This issue can be examined not only from a political perspective but also through a legal lens, where an interesting paradox arises. From a legal standpoint, the defense of national identity comes down to the protection of the constitutional order (which typically reflects the values underlying the national identity) against the application of international treaties, the enforcement of conflicting international judicial decisions, and the normative prescriptions of international courts, among other factors. However, the transition to a multipolar world will inevitably be regulated by the principles of modern international law. Therefore, a key task for Russian legal science is to develop new mechanisms for protecting national identity in a way that aligns with international law. It requires drawing on the experience of other countries. Using a comparative legal method, the article analyzes the practice of constitutional control bodies in Germany, France, Italy, Brazil, Kazakhstan, and Russia, where the argument in defense of national identity and related concepts (for example, the protection of historical identity in Brazil) have emerged. The author reveals that this argument occurs in its different forms across all the examined jurisdictions, even in those that are generally more aligned with international law (such as Germany and France). Some mechanisms for protecting identity are controversial from the standpoint of international law (e.g. qualification of international treaties as soft-law acts in Italy or international treaty termination a posteriori by the constitutional control body in Kazakhstan). The articles concludes that Russia must develop alternative methods for protecting its national identity striking a reasonable balance with fulfilling its international obligations. 

Keywords: national identity, constitutional identity, constitution, constitutional court, international law