Conflicting Conceptions of Sovereignty: A Response to Professor Blankenagel

Written by

 

My thanks to EJIL for this opportunity to respond to Professor Alexander Blankenagel’s critique of my article, “The Relationship Between the European Court of Human Rights and the Constitutional Court of the Russian Federation: Conflicting Conceptions of Sovereignty in Strasbourg and St. Petersburg.”

Although I also thank Professor Blankenagel for his reply, I admit to some difficulty recognizing my article in his criticism of it. He only lightly engaged its core argument, focusing mostly on peripheral topics. Below is a quick summary of my main points, followed by responses to a few of his outlying critiques.

The Core Argument: Chekhov’s Gun

A relatively new Russian law expands the jurisdiction of the Russian Constitutional Court (RCC) to pick-and-choose the judgments of the European Court of Human Rights (ECtHR) that it will allow to be enforced in Russia. That law has been used twice and the evidence suggests that these cases were carefully selected six months before the law was even adopted. As Anton Chekhov admonished, “Don’t place a loaded gun on the stage if no one plans to shoot it.”

This is quite a weapon. No other member state of the Council of Europe has anything like it. It brooks no compromise about the enforceability of ECtHR judgments and seeks no dialogue toward that end. Rather, it grants the RCC the final word, a not-so-subtle threat to the essential principle (in Article 46 of the European Convention) that member states “abide by the final judgment of the Court in any case” in which it is a party. I predict that this practice will continue as the RCC somehow discerns which ECtHR judgments should be labeled “legal” ones to be enforced and which labeled “political” ones to ignore. Worse, if other member states follow Russia’s lead, I predict the end of a human rights system built on the recognized authority of an independent, international court to interpret the European Convention and identify violations of it.

The article highlights the legal history of how this law was adopted, starting first with the RCC Chairman’s strong views on perceived “subordination” of Russia’s sovereignty and then a catalytic Russian case called Markin. Next, I analyze the law itself, drawing on the Venice Commission’s own harsh evaluation of it, and critique the RCC’s reasoning in an advisory opinion that defended this new practice. I emphasize a core difference between Russia’s absolutist position and the dialogic approach of other member states. At the same time, I recognize the serious problem domestic courts face to “resolve conflicts between a state’s constitution and the ECHR, neither of which are subject to static interpretation”.

To my surprise, Professor Blankenagel’s reply left most of this analysis untouched. He says nothing about my critique of Russia’s position from the perspective of the Vienna Convention on the Law of Treaties; nothing about my critique of Russia’s misleading claims to be conforming to the practices of high courts in Italy, Austria, or the UK; and he seems to agree with me that the RCC’s use of this new law to refuse enforcement of the ECtHR’s Yukos judgment was simply egregious.

Monist or Dualist? It Just Doesn’t Matter

Professor Blankenagel’s first criticism amounts to a non sequitur. In his opinion, the Russian Constitution “is in no way monistically subordinated to” international law. (p. 961) He says that Article 15 of the Constitution (referenced in my article as evidence that “Russia’s 1993 Constitution rejected the Soviet Union’s dualist approach to international law” (p. 935)) “does not mean, as Kahn purports, that Russia has a monistic understanding of national and international law” (p. 962). I am chastised for neglecting Articles 17 and 79, which Professor Blankenagel seems to view as further support.

“Monist vs. Dualist” is one of many debates about different provisions of the Russian Constitution; we each may cite preferred scholars and practices. But absolutely nothing in my article rides on resolving this issue. Professor Blankenagel emphasizes the need for ratification of treaties by law in dualist states. But no one disputes that the European Convention has been ratified in accordance with Russian law. There is also no dispute that Russia voluntarily and without any current reservation or derogation accepted jurisdiction of the European Court of Human Rights (in Convention Article 32) on “all matters concerning the interpretation and application of the Convention and the Protocols” in both inter-state cases and individual applications.

So why the kerfuffle over whether Russia continues some aspect of the Soviet preference for dualism? That might present interesting counterfactuals about whether Russia would ratify the ECHR today. But that is not the article I wrote; such a discussion raises more policy questions than legal ones. (On this point, see a new article I co-authored with Professor Irina Busygina, available here.) It is simply beyond cavil that Russia knew what it was getting into when it ratified these international legal obligations more than twenty years ago. And it clearly seems to be re-assessing those costs today as it seeks to wriggle free of their effects.

Professor Blankenagel complains that “the West” hypocritically holds Russia to a “double standard” (p. 965, n. 17). But that is another red herring. In fact, it seems to be Professor Blankenagel who rather forgivingly asks about special consideration in Russia’s case: “perhaps it makes sense to silently accept the non-implementation of some ECtHR decisions, if most decisions are followed?” (p. 968). That’s a question for politicians and diplomats, not for lawyers or their clients, the unhappy victims of Russian human rights violations.

Russian History Lesson

Professor Blankenagel is keen to note Russia’s past history of compliance with ECtHR judgments. Although he labels me a “Russia-basher” (p. 967), I heartily agree that much good has come out of Russia’s membership in the Council of Europe. Those more familiar with my scholarship will recall that I have written about these beneficial effects on Russian legal reform (e.g. here, here, and here). But I also argue that this is not a costless process in terms of the negative effects on Strasbourg’s institutions and procedures overall. Russia, for example, not only was one of the catalysts for the procedural reforms of Protocol 14 that aimed to reduce a backlog of petitions largely of Russia’s making, but also the reason this change came into effect in such a frustratingly slow manner, necessitating Protocol 14bis while Russia effectively held the reform process hostage.

So Professor Blankenagel’s “short history” is not unwelcome. But it is not particularly necessary. Nor is it complete. Professor Blankenagel builds (and then knocks down) a straw man in which I am “another not very convincing voice” in an “uproar” of unfair criticism in which “Russia is the villain again and the West is shocked once more by its refusal to ‘play by the rules’ – western rules, as Russians would say.” (p. 961). One searches Professor Blankenagel’s reply in vain for a single word about Crimea’s annexation or military action elsewhere in Ukraine, Moldova, and Georgia – apparently not relevant to his history. These violent attacks on other Council of Europe member states are shocking violations of Russian treaty obligations (not to mention jus cogens), not the unjust imposition of unsought norms.

No one forced the European Convention and other Council of Europe rules on Russia. Quite to the contrary, strong voices in the Council of Europe protested against the haste with which Russia eagerly lobbied for admission into this human rights system. Peter Leuprecht, the Council’s Director of Human Rights and then Deputy Secretary General, resigned in protest over the decision. Report after report by eminent legal experts (including Stefan Trechsel, Luzius Wildhaber, and many others) gathered evidence of the Russian state’s then inability to meet the requirements of membership. But Russia pressed hard for inclusion, assuring all of its willingness to satisfy these conditions. This included the interpretive authority of the European Court – no small matter since the adoption of Protocol 11 to the Convention (creating a permanent court) coincided with Russia’s desire to join the club. Suggesting that Russia is now unfairly dunned by rules not of its own choosing turns this history upside down.

Nor is it accurate to label as “completely forgotten” Russia’s “fruitful and enriching relationship” with Strasbourg. (p. 963) Professor Blankenagel pointedly asserts that “Kahn just conceals” various pro-Strasbourg positions taken over time by the Russian Constitutional Court (p. 963, n.9). The good is indeed to be praised. But there is nothing to conceal: past occasional compliance is irrelevant to my assessment of the legal correctness or dangerous side effects of Russia’s newly asserted power to select for itself which ECtHR judgments to enforce.

I think that Professor Blankenagel gives too glowing a review to Russia’s checkered history of compliance with its ECHR obligations. The cases that he identifies as support for this view actually undermine the claim that the RCC and Russian legislature are “very faithful in implementing the decisions of the ECtHR”. (p. 963) For example, he references two ECtHR pilot judgments: Burdov (No. 2) and Ananyev. But these judgments were forced by years of Russia’s systemic non-compliance with the very first and second ECtHR judgments that were ever issued against Russia (concerning enforcement of civil judgments [Burdov (No. 1)] and prison conditions [Kalashnikov]). If Russian compliance truly deserved Blankenagel’s praise, there would have been no need for these pilot judgments so many years later on such fundamental Convention rights.

Miscellany

It is hard to know how to respond to Professor Blankenagel’s miscellaneous lesser criticisms. He claims that my article “ignores a considerable amount of legal literature on the problem” (p. 968). But the only “ignore[d]” literature he actually identifies is actually cited in footnote 10 of my article. Likewise, he asserts that I “misrepresented” the German Constitutional Court’s Görgülü judgment and that my analysis of the Yukos case is “strangely shallow.” (p. 967) But behind these loose labels there is no argument to which a response could be made.

At this point, perhaps, the best course is for readers to consider for themselves the different points of view as expressed in my article and Professor Blankenagel’s reply and then reach their own conclusions. My conclusion is easily summarized: Pacta sunt servanda.

Print Friendly, PDF & Email

Leave a Comment

Comments for this post are closed

Comments

Kishor Dere says

January 29, 2020

Thanks to the contentious and subjective nature of sovereignty, monist versus dualist approaches, law, justice, human rights, western and non-western standards among others, there is such a divergence of views. It is a lively debate.

Leave a Comment

Comments for this post are closed

Comments

1 comment

Kishor Dere says

January 29, 2020

Thanks to the contentious and subjective nature of sovereignty, monist versus dualist approaches, law, justice, human rights, western and non-western standards among others, there is such a divergence of views. It is a lively debate.