A “Rush” ian Move – Kremlin’s Decision to exit ECHR?

Moscow can never escape being the subject of news stories, ranging from the literally “Nervy” ones to those that have triggered a serious revaluation of human rights postulations. While the former is set to attain its peak receptivity, the latter is engulfed by continual news feeds. On March 1, 2018, it was reported that the Kremlin is considering withdrawing from the European Convention of Human Rights. The suggested reasons for this, though not conclusive, are strongly indicative of Russia’s dislike for the Court’s decisions which they believe conflict with the country’s interests. The question is this: is Russia taking human rights for a ride? A sight into Russia’s relations with the ECHR dates back to May 1998 where the Federation ratified the convention. Since then, Russia has remained the country against which the largest numbers of cases have been filed. Some of the first violations emerged in 2002-3, in Bazorkhina v. Russia, where the applicants contended human rights violations by the Russian military in Chechnya operations between 1999 and 2000. The jurisprudential importance of such cases are deemed essential as they have contributed to deciphering important concepts in human rights: what constitutes inhumane treatment; should people be afforded death penalty for frivolous offences; to what extent freedom of expression is protected, for example. Pondering upon the implications due for such an exit by the Kremlin leads to the following scenarios. Firstly, prior to this speculated move, in 2015 Putin signed a law facilitating Russia to overturn decisions of the International Human Rights Court. This law grants the Russian Constitutional bench the authority to accept (or, more likely, reject) the decisions of European Court of Human Rights. With respect to this issue, it is to be noted that Russia is a member of the Vienna Convention of Law of Treaties (VCLT), having acceded the treaty on April 29, 1986. Article 26 of VCLT invokes the principle of “Pacta Sunt Servanda” which states that every treaty in force is binding upon the parties to it and must be performed by them in good faith. Similarly Article 27 of VCLT denies a state to invoke a provision of its domestic law to justify its failure to perform an obligation under a treaty. Thus such a Russian law de jure is void. Secondly, Russia has accumulated large compensations to be paid to the damaged applicants over the years. Profound incidents include the European Court’s decision in 2014, which demanded Russia pay in excess of 2 billion dollars as damages to former shareholders of Yukos, in the case of Oao Neftyanaya Kompaniya Yukos v. Russia. Article 70(1) of the VCLT states if a treaty is terminated under its provisions or in accordance with the convention, the parties are released from any obligation further to perform it, but this does not affect any right or obligation or legal situation of the parties created through the execution of treaty before its termination. Under Article 70 (2), this regime applies to the withdrawal of the party from a multilateral treaty in relations between the state and each of the other state parties and forms a Customary International Law. Thus, even if Russia were to withdraw from the European Convention on Human Rights, it would still be liable to pay all those compensations ordered by the court, prior to the withdrawal being put into effect. Thirdly, even arguendo disputing the customary nature of the European Convention on Human Rights, there is always a negative obligation of a state to respect human rights. Beyond the scope of European Convention, Russia is also a member to ICCPR, which together with UDHR and ICESCR constitutes the International Bill of Human Rights, widely regarded as customary international law. Furthermore, Russia is a member to the Optional Protocol 1 to the ICCPR that offers an individual complaint mechanism for any violations under ICCPR by member states. An exit from ECHR will therefore not stop any Russian cases being summoned for any human rights abuses. The diplomatic and international consequences such an exit would cause cannot be underestimated. We must not allow the world’s superpowers to take human rights for a ride.