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Russia and the `Legality' of Strasbourg Law
Mark Janis 1
Full text available: PDF format *
I.
On 28 February 1996, Russia acceded to the Statute of the Council of Europe, becoming the Council's thirty-ninth member.2 Russia has been allotted eighteen seats in Strasbourg's Parliamentary Assembly, giving it, alongside France, Germany, Italy and the United Kingdom, one of the five largest national delegations.3 Russia's accession followed an extensive debate within the Council of Europe about the suitability of the applicant for membership, and occurred despite an unfavourable Eminent Lawyers Report prepared at the request of the Bureau of the Parliamentary Assembly.4 The Report concluded `that the legal order of the Russian Federation does not, at the present moment, meet the Council of Europe standards as enshrined in the statute of the Council and developed by the organs of the European Convention on Human Rights'.5 As a condition of joining the Council of Europe, Russia has promised to ratify the European Convention for the Protection of Human Rights and Fundamental Freedoms6 within one year of its accession to the Statute of the Council.7
The aim of this essay is to comment on Russia's accession to the Council of Europe and its probable accession to the European Convention on Human Rights from the perspective of the legal theory concerning the nature of obligation in international law and the law-like character of international law. The facts of Russia's accession test a philosophical argument that has been made elsewhere about the nature, efficacy and `legality' of the legal system of the European Human Rights Convention.8 An important premise therein is that `sometimes a happy (or unhappy) confluence of political decisions, social attitudes, and individual actors and actions makes possible the kind of breakthrough that converts ad hoc decision-making bodies into legal tribunals and turns acquiescence into legal obligation'.9 The crux of the argument is the assertion that the Strasbourg system of the European Human Rights Convention, unlike so many other international legal systems, seems to have passed its `critical moment', moving from mere acquiescence to a sense of genuine legal obligation.10 This article asks what effect Russia's accession to the Convention is likely to have on the sense of legal obligation within European human rights law. It also questions whether Russia's accession, alongside the upsurge in nationalistic assertions elsewhere in Europe, will imperil the legality `breakthrough' of the Strasbourg system and its institutions.
It is important to recognize that these questions have broader implications than for European human rights law alone. The `breakthrough' (or not) of the Strasbourg human rights system has critical repercussions on international law generally. The institutional formality and apparent efficacy of European human rights law has gone a long way towards rebutting the oft-repeated complaints about the non-law-like character of international law. If the legal system of the European Human Rights Convention is seen to fail, then faith in, and the success of, international law in general will falter as well.
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1 . Reader in Law and Fellow of Exeter College, University of Oxford;
sometime William F. Starr Professor of Law, University of Connecticut. The
author thanks Risto Vahimets and Brenda McKenna for their research
assistance.
2 . `The 39 Member States of the Council of Europe (CoE) according to
their date of membership (as at 31 July 1996),' 17 Human Rights Law
Journal (1996) 234.
4 . Council of Europe, Parliamentary Assembly, Bureau of the
Assembly, Report on the Conformity of the Legal Order of the Russian
Federation with Council of Europe Standards Prepared by Rudolf Bernhardt,
Stefan Trechsel, Albert Weitzel, and Felix Ermacora, 7 October 1994,
AS/Bur/Russia (1994) 7.
6 . 213 UNTS 221, ETS 5, UKTS 71 (1953), signed at Rome 4 November
1950, entered into force 3 September 1953, Council of Europe, Human Rights
Information Centre edition (1995).
7 . Reuter News Service, `Yeltsin Approves Russia Entry to Council of
Europe', Reuter Textline, 23 February 1996.
8 . M.W. Janis, R.S. Kay and A.W. Bradley, European Human Rights
Law (2nd ed., 1995). The argument is most fully made in the section
entitled `The Convention and the Efficacy of International Law', 4-8.
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