<by Lauri Mälksoo. Lauri Mälksoo is Professor of International Law at the University of Tartu in Estonia and the author of the monograph “Russian Approaches to International Law” (Oxford University Press, 2015).>
Each January, the political arm of the Council of Europe (CoE), the Parliamentary Assembly (PACE) met in Strasbourg for its winter session. Russia joined the organisation in 1996 and ratified the European Convention on Human Rights (ECHR) in 1998. However, this January, as a form of protest, Russian parliamentarians did not even take part in the CoE’s winter session in Strasbourg. Their voting rights have been suspended since Russia’s annexation of Crimea in 2014. Russia continues to be member of the CoE but its relationship with the organisation is in serious crisis.
Interesting developments have also happened regarding the legal crown jewel of the CoE, the European Court of Human Rights (ECtHR). On 14 July 2015, the Constitutional Court (CC) of the Russian Federation decided in a case initiated by a group of parliamentarians that in the future, if doubts will emerge regarding the constitutionality of the judgments of the ECtHR in Russia, such ECtHR judgments will be subject to constitutional review in the CC of Russia. If such European judgments turn out to be unconstitutional, they will not be implemented in Russia. In December last year, a bill was adopted in the Russian parliament that made this new approach law in Russia. This new approach emphasising the supremacy of the Constitution must yet be tested in the practice but ideologically and diplomatically, it is clearly a challenge to the present functioning of the ECtHR as highest human rights court in the CoE countries. Practically, it may mean that the Russian CC may increasingly use arguments why judgments where Moscow has lost in politically more contested cases may not be implemented in Russia.
In the 1990-s, Russia was still eager to learn from (Western) Europe and therefore, it was also willing to become member of the CoE – although both Strasbourg and Moscow admitted that the country did not technically fulfil the criteria of membership. Later on, Russia’s membership in the CoE became victim of the worsening geopolitical climate in Eastern Europe. Increasingly, Moscow ‘transferred’ its dissatisfaction about developments it rejected – like NATO’s East enlargement or uses of military force in Kosovo and Iraq, for example – to ‘Europe’ more generally, including the CoE. Judgments of the ECtHR were increasingly criticised as ‘politicised’ in Moscow – especially when they did not concern more trivial human rights violations in criminal procedure, implementation of Russia’s own court judgments, etc.
Thus, the Russian CC’s and parliament’s decisions in 2014 can be understood as Russia’s attempt to redefine the rules of the game in the CoE and the ECtHR, initially at the level of ideology and foundational principles. Again, Russia’s sovereignty has been put first, including sovereignty to decide what human rights mean in Russia.
In the meantime, two schools of thought have consolidated themselves in other CoE countries. One school of thought argues that both Russia and CoE are in any case better off when Russia continues as member. CoE can still be a platform for dialogue and the ECtHR can sometimes be the only opportunity for Russian citizens to receive compensation for human rights violations against them. Would Russia leave the CoE, the ones who would suffer most would be the Russian citizens who would have one means less to fight for their rights.
The other school of thought observes that Russia has stopped being a constructive player in the CoE. It should not be allowed that a club member picks and chooses certain rules and dismisses others. This may also have contagion effects and lead to the general decline of the organisation. The ECtHR as regional human rights court can only function successfully when its judgments are dealt with respect and implemented nationally. Who is unable or unwilling to follow the rules must either decide herself to leave the club or at some point must be told to leave it.
The coming years will be decisive about which school of thought will prevail. Of course, in the broader historical perspective, Russia’s tumultuous story in the CoE is just an episode in Russia’s centuries’-long in-and-out relationship with Europe. Even if Russia at some point would leave the CoE, this story would not be over.