Is International Law at a Dead End?

19 December 2012

By Andrei Kovalev

Recent events in Russia raise serious questions about the effectiveness of current international human rights legislation. The question has particular urgency, because there can be no doubt that there is more to come. The Russian authorities have gone too far to stop now: the fabrication of the criminal cases against participants in the Bolotnaya Square demonstration in Moscow on 6th May 2012, the continued prosecution of political opponents, the abduction of Leonid Razvozzhaev from Ukrainian territory when he was seeking political asylum in Kiev from the UN High Commissioner for Refugees, and the introduction of a raft of punitive laws to deal with anyone who falls out of favour.

The erosion of democracy and human rights in Russia could have catastrophic consequences not only for Russia, but also for other countries. For that reason, one would think that the basic instinct of self-preservation would be motivation enough to bring other countries to seek to call a halt to these developments. But do we have the tools for the job?

International human rights obligations can be divided broadly into two categories: those of a legally binding character and those of a moral and political nature. To the former category belong the declarations of human rights instituted under the aegis of the UN, the European Convention on Human Rights and Fundamental Freedoms, among others. The second category includes numerous international standards developed by the UN, documents issued by the CSCE/OSCE and other international legal documents that have not yet been ratified, and thus have no legal weight. This does not mean, however, that they are not significant. The obligations set down by the CSCE/OSCE were accepted by the governments of participating states, while UN standards set the minimal benchmark for human rights observance, and no government with a claim to respectability can fall below them. 

However, let's leave the question of respectability to one side for the moment and deal with our main question: how effective are international human rights laws? Are there any working mechanisms for safeguarding human rights? 

Our starting point should be the UN, an enormous, high-cost organization (its budget for 2012-2013 is $5.15 billion). The effectiveness of its innumerable diplomatic and expert sessions of its human rights bodies is practically zero. There are no results of any substance: it is nothing more than hot air and paper-shuffling.

The Organization on Security and Cooperation in Europe has absolutely exhausted its effectiveness on human rights issues.

It would appear that in the Kremlin they have decided to pay no attention to the rulings of the European Court of Human Rights, which have proved to be so uncomfortable for the Russian Federation. And in any case the Court’s sanctions have barely any impact on the Russian government, because Putin, together with his political, judicial and various other lackeys, are unconcerned by concepts such as reputation and honour.

The Council of Europe makes life more difficult: it is not quite possible to refuse to be a member, but participation in its work is hard to stomach.

As far as I can see, the Russian authorities are only seriously concerned for their own well-being. That is why they do not like it when international law becomes effective and starts to interfere with the rule of lawlessness. The situation was no different with the Soviet authorities. In many respects it was because of them that international law has been rendered so toothless, with rare exceptions, remains only on paper: the USSR and what came after it sometimes welcome various declarations, but they do all they can to hinder their enforcement and the achievement of real justice.

Is it possible to break this cycle and force Russia to observe international human rights law? Yes, without question. I have already suggested several ways in which this can be done in “The International Obligations of Russia and the West” and “A List of Violators of International Freedom?” But these of course are dealing with particular cases. We have to thank the Americans for passing the Magnitsky Law. This, of course, also deals with a particular case, but a vitally important one.

The Putinocracy hinges on a world order forged by Stalin's blackmail at Yalta and Potsdam. Many international human rights agreements concluded under the aegis of the UN and CSCE/OSCE and their enforcement mechanisms are unable to function in contemporary conditions, because they originated under the Yalta-Potsdam system, which was made obsolete by the end of the Cold War.

Naturally, Russia will not agree to any far-reaching change in the UN and OSCE that would increase their effectiveness, just as it would not agree to place its own dictators and their lackeys in a vulnerable position. Do we have to accept that this is the way things have to be? Not at all, so long as we are prepared to go beyond the same old myths and stereotypes. All we have to do is ask a few simple questions: does government exist for the people, or do the people exist for the government? What is more important – human life or oil, gas and the profits therefrom?

And so, everyone, without exception, and beginning with Russian citizens, should applaud the Magnitsky Act – and not only applaud it, but make sure equivalent laws are passed in their countries too.

Corruption as it exists in the traditional sense of the word is not the main issue. Corruption, after all, is not limited to monetary transactions. Advancing one’s career, indiscriminately supporting anything the government does, including artistic support – these are all symptoms of moral and intellectual corruption. Is there any difference between selling your beliefs, intellect and actions directly for money, or for some other benefit?

There is no doubt that it will be far from easy to push the authorities into passing the necessary legislation to deal with these issues. The compilation and take-up of lists like the Magnitsky List by non-governmental organizations on a recommendatory basis could contribute to this. Such lists, backed by public pressure, could make it awkward for the ‘shamed’ Russian politicians to conduct negotiations with their foreign partners. If journalists asked awkward questions, press conferences and interviews would become unbearable for them. And if ‘shamed’ Russian journalists, academics and their ilk were no longer to be invited to participate in events held in democratic countries – and every one of them knows why.

The result would be that Western governments and parliamentarians would have to take into account the atmosphere surrounding their Russian counterparts, who, in turn, would have to watch their behaviour and keep one eye on the West when making decisions. Even during the Brezhnev era, there was trepidation about Western reactions. Surely it is time to return to such practices again, but on a new level? Even more so, given the extreme vulnerability of the current Russian ‘elite,’ which loves to keep its assets in the West, including Western banks.

If we can create such a reality, this Russian ‘elite’ will have no option but to adapt to it, simply for reasons of self-preservation. And international law will also be obliged to adapt. Whether Russia agrees or no.