4 May 2022
by Konstantin Dobrynin, lawyer [advokat]
Debates over the practicality of establishing new judicial or quasi-judicial bodies along the model of the European Court of Human Rights (ECtHR) have been taking place for some time now. However, until the recent horrific events began to unfold and Russia was expelled from the Council of Europe due to actions we are forbidden to call war, such proposals were always justified by appealing to the ECtHR’s so-called ‘political nature’ and the need to defend the Russian legal system from ‘European values’ – which, for some reason, were deemed foreign to it (though, of course, there is no such thing as ‘European values’ – rather, there are universal human values).
So far, a new, distinct legal rationale for pursuing such initiatives has yet to emerge, but it is safe to assume that, in the wake of Russia’s expulsion from the Council of Europe, the country’s political leadership will be keen to demonstrate its commitment to human rights and the rule of law, both to its own citizens and to the world. That being said, it is possible that the authors of such initiatives will insist on using their own definition of human rights, which may differ from the common European conception – which is strange, because Russia is part of Europe; it’s not some backwater.
At the same time, it is widely acknowledged that the most effective way to defend human rights and restore violated human rights on an international level is the system of protections set forth in the European Convention on Human Rights. Thus, any discussion about drafting a new model for an international human rights court ought to proceed from the European model.
Specifically, this means that the viability and effectiveness of implementing one or another of these initiatives must be dependent on the fulfillment of certain conditions. For example: a) within a given regional international organization, the national legislation and law enforcement practices of individual member states must meet certain shared minimal standards, and b) there must be a legally binding mechanism for enforcing the decisions taken by the international judicial body.
In that sense, the creation of an international court within the framework of the Shanghai Cooperation Organization seems like the least promising option. It is unlikely that member states like China or Pakistan would be willing to present regular progress reports on what they have done to rid their legislation of previously identified violations of shared standards to a supranational body anytime soon.
For similar reasons, other initiatives (such as the establishment of an international court within the Commonwealth of Independent States or the Eurasian Economic Union) don’t give much cause for optimism either.
Thus, the most reliable way forward for human rights protection isn’t pursuing the fantasy of founding new international institutions; rather, it lies in making concerted efforts to shore up homegrown legal protections. Incidentally, this is a sentiment we hear all the time from the ECtHR, which emphasizes that its role is secondary to the one played by the national authorities themselves.
Furthermore, sooner or later Russia is bound to return to the Council of Europe and the ECtHR’s jurisdiction because the Russian legal system is an integral part of the European legal family and the Council of Europe’s activities make a positive impact on the legal systems of all of its member states. And after all, we must remember, in the Russian Federation “recognition and guarantees shall be provided for the human and civil rights and freedoms according to the universally recognized principles and norms of international law and according to the present Constitution.”
Translated by Sarah Vitali