Coherence and Evolution of Russian Approaches to International Law
Russia’s recent conduct on the world stage – and less metaphorically, on Ukrainian territory – has been appalling. Violations of international law (such as acts of aggression and unlawful support for insurgents or mislabeled peacekeeping operations) followed the assurance that no attack on its neighbor was planned or would occur .
Today, one could be forgiven for concluding that Russia’s view of its international legal obligations mirrors the quip of the former French president Jacques Chirac: “My promises bind only those who believe in them.” At least Chirac seemed to be joking. In international law, pacta sunt servanda is a fundamental pillar.
This post introduces elements of consistency and change in Russia’s general approach to international law. It then focuses on the particular example of Russia’s deteriorating interest in its obligations within the Council of Europe and the European Convention on Human Rights.
The root of Russia’s membership dilemma in international organizations – especially those devoted to human rights – has always been the fear that exclusion is worse than inclusion. No such concern can reasonably remain.
Imperial and Soviet pasts
Russia rightly boasts of many positive contributions to international law. The St. Petersburg Declaration of 1868 frames Sean Watts’ discussion in this series of Molotov cocktails. It should be recalled that the Hague Conferences of 1899 and 1907 were convened at the invitation of Tsar Nicholas II. Another is the Martens Clause (named after diplomat and international lawyer Fyodor Fyodorovich Martens) who saved the 1899 conference and pseudonymous convention; reappears in abbreviated form in the Geneva Conventions and Additional Protocols; and describes a fundamental aspect of customary international law in this area. The Martens clause remains useful in this conflict; Air Commodore WH Boothby talked about it in this series regarding cluster munitions.
History also harbors reminders of Russian irredentism. At the end of November 1939, the USSR invaded Finland, a former Grand Duchy of Imperial Russia (which followed the Soviet occupation of eastern Poland and predated the annexation of Latvia, Lithuania and Estonia). the winter war lasted 104 days due to the resilience of heavily overwhelmed Finnish soldiers, but ultimately led to Finland’s defeat and the loss of about 11% of its territory (still part of Russia).
The last significant and substantial act of the League of Nations was to expel the Soviet Union (a founding member) for this war of aggression. USSR denunciation of this “absurd decision” sounds eerily familiar. The Soviet Union accused the Western powers of hypocrisy, arguing that “Britain and France have lost both the moral and formal right to speak of ‘aggression’ of anyone.” and affirmed the intention to protect “the true will of the Finnish people” against the “bankrupt” “clique” of its “former leaders”.
From the USSR to the Russian Federation
The collapse of the Soviet Union in December 1991 marked a shift in thinking about (geographically reduced) international law obligations of the Russian Federation. A change required a new perspective on fourteen non-Russian regions that the Soviet rulers (like the Imperial Russian rulers) had considered subordinate to Moscow. Henceforth, they were to be recognized as equal and rights-bearing sovereign states.
The loss of what Russia called the “near abroad” was compounded by the resumption of frozen conflicts that policies aimed at controlling non-Russian ethnic groups and Soviets nominally federal system of governance managed with varying effectiveness. A highly centralized one-party state had spent seventy-three years dividing, displacing, and sometimes forcibly deporting Russian and non-Russian populations within false internal borders. Military, industrial and other resources were scattered throughout the USSR without foreseeing the need to divide the spoils.
The violence between Armenia and Azerbaijan in 1988, for example, predates the Soviet collapse. Other conflicts, such as Russia’s 1992 imposition of a “peacekeeping” military force between the former Soviet republics of Moldova and Ukraine following the creation of aPridnestrovian Moldavian Soviet Socialist Republic(Transnistria), portends a modus operandi of the current crisis. Another example is the use of “peacekeeping” forces in South Ossetia and Abkhazia to provoke war with Georgia in 2008.
Before the collapse of the Soviet Union, but after the Ukrainian parliament declared independence, Russian President Boris Yeltsin threatened Ukrainian leaders that leaving would raise questions about the legitimacy of its borders, particularly with regard to the Crimea and the Donbass. Concern over the Soviet nuclear arsenal, much of which was in Ukraine, caused 1994 Budapest Memorandum signed by Ukraine, Russia, United Kingdom and United States. He provided, among others, that the parties “respect the independence and sovereignty and existing borders of Ukraine”. Other legal arrangements delineated control of Soviet military and naval installations, including the Black Sea Fleet at Sevastopol on the Crimean Peninsula.
Post-Soviet ambitions: Russia and Europe
Other, more conceptual changes have led to profound changes in Russia’s international relations. The Russian Constitution of 1993 moved away from a dualistic view of international law to which the Soviet Union adhered to adopt a more monistic approach. Section 15(4) of the Constitution declares:
Universally recognized norms of international law and international treaties and agreements of the Russian Federation are an integral part of its legal system. If an international treaty or an agreement of the Russian Federation establishes other rules than those provided by law, the rules of the international agreement apply.
russian lawyers debate the limits of this change, but it was a change nonetheless. It is important to note that it allowed Russia to join the Council of Europe and to accede to the European Convention on Human Rights. But the arc of this accession traces a trajectory of change in Russian views towards these treaty obligations.
In 1992, when Russia has applied for membership, he was desperate to join an organization that would accept him. The conclusion of the jurists and rapporteurs of the Parliamentary Assembly of the Council of Europe was that Russia has failed to meet legal standards for admission. This was not frankly challenged by Russia’s 1994 start of a brutal military campaign in Chechnya while its claim was pending. But the political pressure to expand the Council eventually prevailed with the argument that “integration is better than isolation; cooperation is better than confrontation.
Better outside or better inside?
Inclusion in the Council of Europe required the ratification of the European Convention on Human Rights, which took place in 1998. Much good has come from this international legal obligation in terms of national legal reforms largely accomplished during Vladimir Putin’s first presidential term.
But the demands of membership turned out to be burdens that Russia eventually decided not to bear anymore. Russia has 17,013 cases in progress— more than any other Member State. In 2021, Russia had 232 offenses judged against him – again a consistent ‘first place’ among 47 Member States. These violations have contributed more than any other State to the congestion of the overflowing role of the Strasbourg Court. Many violations are systemic, recurring failures or indifference to enforcement, reminiscent of the joke of the Russian imperial satirist Saltykov-Shchedrin that “the severity of the laws is compensated by the non-obligatory character of their observance”.
Some violations do not only concern the European Convention but resonate with other international conventions and customary norms. The Court recently declared Russia responsible for the polonium poisoning of Alexander Litvinenko by its agents in London. Interstate Affairs carried by Georgia and Ukraine—themselves member states of the Council of Europe—raise many questions at the heart of the law of armed conflict and international human rights law (including the stealth annexation of Crimea) through the prism of the European convention.
As Russian violations of the Convention increased, Russia has changed its view of its obligations. In 2015, a new Russian law subordinated the judgments of the European Court of Human Rights to the judgments of the Russian Constitutional Court. In the event of a finding by the Russian court of a “discovered contradiction” with the Russian Constitution, the execution of the Strasbourg judgment is prohibited.
Until recently, the Council of Europe has frequently criticized Russia, even briefly denying its representatives the right to vote, but refusing to exclude Russia altogether. The hope was as it was at the beginning: “integration is better than isolation; cooperation is better than confrontation.
This hope seems even more doubtful. In the lyrics of Alain PeletRussia’s counsel before the World Court until February 23, “it has become impossible to represent in proceedings devoted to the application of the law a country which despises it so cynically”.
Jeffrey Kahn is Emeritus Professor of Law and Gerald J. Ford Scholar at Southern Methodist University.
Photo credit: Jorge Lascar via Flickr