Reflection on reviewers’ comments (Russia, the Council of Europe and the European Convention on Human Rights)

In this reflection piece, we will offer a few brief observations on the blog posts authored by Alice Donald, Kirill Koroteev and Nils Muižnieks, to whom we are most grateful. The three contributions appear to complement one another in broadly contending that more could—and perhaps should—have been done while Russia remained a member of the Council of Europe (CoE), thereby reinforcing our conceptualisation of the “triple fault” scenario. These posts also underscore that the book adopts a primarily CoE-focused perspective on the relationship. We did not set out to provide a comprehensive analysis of the motivations or objectives of the Russian authorities—or indeed of other key actors—regarding Russia’s accession to, membership of, and eventual expulsion from the Council. In that respect, we fully acknowledge, as the blog authors point out, that certain aspects lie beyond the scope of the monograph and remain unaddressed. There would be merit in a separate book being written from the perspective of Russian civil society, but that was not the intention of this book.

One of key ambitions of our book was to set out a detailed account of what occurred, and inject this with critique and reflections, some of which could serve as lessons learned for the CoE as it is naïve to expect the current Russian authorities to learn any lessons from this. Similarly, the authors of the blog posts ‘spoke’ first and foremost about the CoE. If this is a pitfall, it is quite a natural one reflecting the centrality of the CoE in these relationships.

In our book, we tried to demonstrate that the CoE is not just one unified actor but rather a system of various complementary institutions which we treat accordingly. Although it is impossible to address all nuances within the confines of a monograph, we tried to distinguish the specific roles different actors played in the story of the Russia’s membership in the CoE, highlighting their respective strengths and/or missed opportunities.

Reflections on the Blog Posts

For Kirill Koroteev Russia’s membership is primarily a story of the struggle of Russian civil society with the authorities which was not always well supported by the CoE bodies. Nils Muižnieks’ draws on his unique insights as a former Commissioner for Human Rights with a deep understanding of the political and practical limitations of what an international organisation can achieve when faced with a bad faith actor, yet still retains hope and trust in the potential of that system. Finally, Alice Donald offers engaging reflections from the perspective of an expert observer, asking if anything could have been done differently and whether there is scope for improvement.

The book itself was not designed to present the perspective of Russian civil society other than in passing, so, Kirill Koroteev offers an important contribution from this point of view. His blogpost clearly emphasises the tireless and impactful work of civil society, coupled with the sometimes slow responses of CoE institutions to key developments in Russia. Indeed, this is a common thread between all three blogposts and the monograph itself: it was not that the CoE bodies were not doing their job or doing it badly, but it was not effective and prompt in addressing an obviously deteriorating situation. In particular, the reactions at the level of Committee of Ministers – where it really mattered – were too little, too late. The CoE was ultimately unable to prevent Russia’s descent into authoritarianism, despite warnings from Russian civil society, which consistently sought to sound the alarm. However, it is undeniably more difficult to influence legal and political developments from outside a country than from within. The CoE and the European Court of Human Rights (ECtHR) provided important mechanisms for accountability, but these institutions operate on the principle of subsidiarity. Perhaps more could have been done by civil society itself—for example, greater unity on key issues. Kirill Koroteev offers one such example, referencing a letter sent by several NGOs to the CoE at a time when Russia’s withdrawal was highly likely. As with many complex developments, there are numerous important side stories that could not be fully explored within the scope of the book, as we made clear from the outset.

Kirill Koroteev also made a highly pertinent observation regarding the limited references to Russian-language scholarship, particularly works not published in English. This was not due to a lack of expertise — one of the authors is fluent in Russian — nor necessarily due to access, although it is true that some Russian publications are not readily available online, and conducting research in libraries within Russia has become increasingly difficult. A key characteristic of much Russian legal academic writing, with some notable exceptions, is its predominantly descriptive nature. The descriptive account of developments could often be drawn directly from primary sources, without the need to reference Russian-language materials. While there may have been scope to consult additional Russian sources, particularly concerning debates around Russia’s accession and membership, the domestic response to Russia’s expulsion from the Council of Europe was examined in considerable detail. Kirill Koroteev also notes that civil society is to be thanked for some important successes, a point we clearly acknowledge in the book but overall one must maintain perspective; many of these successes were tactical which unfortunately did not lead to systemic reforms. Russia’s tendency to pay just satisfaction in the judgments of the ECtHR for instance, gave the impression of compliance, but then it totally ignored the necessary general measures required by the judgment. This all added up to what we described as Russia’s ever more ritualistic membership in the CoE.

This ritualistic argument chimes with Nils Muižnieks’ piece, in which he points out that in the debates on Russia’s continued membership instead of ‘better in or out’ should have been framed as to whether the CoE is having any impact within the state and whether Russia’s continued membership harms the reputation of the CoE.

Nils Muižnieks’ shares his unique, first-hand insights about the day-to-day pressures and challenges of the Commissioner for Human Rights’ mandate especially in relation to such a large (former) member state as Russia. Amongst other things, he highlights how much damage an uncooperative member state can do from within. So, expulsion in case of serious violations of Article 3 of the Statute is not just a legal power available to the Committee of Ministers of the CoE, but may be a necessity.

Nils Muižnieks also highlighted several aspects that our book does not address, including the lack of detailed examination of every stakeholder who sought to raise concerns about Russia’s troubling record in upholding democracy, human rights, and the rule of law. It is important to acknowledge that Russia was a member of the Council of Europe for nearly 30 years, and only a sample of the events, actors, and perspectives over that period could be documented within the scope of this monograph. There is room for considerably more analysis of this experience, including by the CoE itself, as the book notes in the conclusion.

The slow and, apparently non-strategic approach of the CoE is also the starting point of the blog post by Alice Donald. But she goes on to emphasise, quite rightly, the importance of CoE bodies acting “with unity of purpose when faced with such contemptuous bad faith and egregious breaches of its values.” Reflecting on the tension between norms and realpolitik, she considers if the tools at the disposal of the CoE are being effectively used, in particular by the CM.

Alice Donald concludes with a call-to-action to member states, in order for them to live up to the commitments they themselves have voluntarily subscribed to and reiterated at Reykjavik. She emphasises in particular the fundamental requirements of good faith and collective responsibility when it comes to preserving the values of the CoE. We concur and argue that unless the CoE acknowledges its own weaknesses including in dealing with bad faith in the past, history could repeat.

Concluding remarks

We are sincerely grateful to the authors of the blog posts in this symposium. They each brought unique perspectives on our monograph, and they also highlighted how much more can be done in this area.

Whilst we remain hopeful that the people in Russia might one day again benefit from the protections afforded by CoE membership, we are mindful of the prevailing reality and at the moment a second accession seems like a distant dream. Though inconceivable under the present regime in Russia, political regimes are not immutable. Should circumstances change and Russia seek to rejoin the CoE, its return must be contingent upon the enforcement of all outstanding judgments of the ECtHR, the payment of compensation to victims of the war, and a strong, legally-binding commitment by the Russian authorities to uphold the core values enshrined in the CoE Statute and its principal treaties. However, and as we conclude in the book, the CoE too must soberly reflect on the experience of Russian membership and expulsion, through an internal inquiry for instance, in order to draw the appropriate institutional lessons and be ready for an uncertain future.