MASARYK UNIVERSITY
FACULTY OF SOCIAL SCIENCE
Department of International Relations and European Studies
International Relations
Assessing the Impact of the European Court of Human
Rights on Russia's conduct in Chechnya in the Context
of the Judicialization of World Politics
Master Thesis
Petr Preclík
Supervisor: JUDr. Mgr. Ivo Pospíšil, Ph.D.
UČO: 102905
Discipline: MV
Year of Matriculation: 2003 Brno, 2009
2
Acknowledgement: I would like to express my gratitude to JUDr. Mgr. Ivo Pospíšil, Ph.D. for
the skilful supervision of my research, helpful advice, and overall approachability.
Declaration against plagiarism: I certify that the attached is all my own work. I understand
that I may be penalised if I use the words of others without acknowledgement.
In New York, December 07, 2009. Signature:
3
Contents
Contents ...................................................................................................................................... 3
1. Introduction ............................................................................................................................. 4
1.1 Hypothesis..................................................................................................................................... 9
1.2 Structure of the study ................................................................................................................. 11
2. Methodology.......................................................................................................................... 13
3. Theoretical underpinnings ...................................................................................................... 19
3.1 The phenomenon of judicialization............................................................................................. 19
3.2 The occurrence of judicialization ................................................................................................ 23
3.2.1 Normative argument for judicialization............................................................................... 27
3.2.2 Functional argument for judicialization ............................................................................... 33
3.2.3 Domestic argument for judicialization................................................................................. 38
3.3 Limits of judicialization................................................................................................................ 41
4. Tools available to the judicial regime of CoE............................................................................ 46
4.1 Organisational structure of the regime....................................................................................... 47
4.2 ECHR in situation of armed conflict............................................................................................. 54
4.3 Relation between ECtHR and Geneva Conventions.................................................................... 61
5. Case study of Russia ............................................................................................................... 66
5.1 ECtHR rulings on cases originating from Chechnya..................................................................... 70
5.2 First level of assessment: Limited impact of Court's rulings on the situation in Chechnya........ 75
5.3 Second level: Discourse securitisation between the Council and Russia.................................... 84
5.4 Assessing Court's impact............................................................................................................. 92
6. Conclusion.............................................................................................................................. 98
7. List of abbreviations ..............................................................................................................106
8. List of referred ECtHR judgements..........................................................................................107
9. References ............................................................................................................................109
4
1. Introduction
"The world is witnessing a move to law," declared the authors of International
Organization's special issue on the legalization of world politics in 2000.1
Some went even
further exclaiming that "law replace[d] democracy"2
or that "the discourse of politics [was]
replete with the language of law and legitimacy."3
Scholars observed that "new
constitutionalism [had] swept across Europe and made inroads in Africa, Latin America, and
Asia", which made events at the international level appear "dramatic and transformative".4
Yet other scholar bluntly stated that "[t]he courts, lawyers, and the `legal' are marching in
and they are here to stay."5
Such finding caused others to go as far as to pronounce that
courts "have increasingly become places where substantive policy is made".6
Courts have pronounced final decisions on outcomes of numerous disputed elections all
over the world, on Germany's place in the European Union after the treaty of Maastricht
entered into force, on matters of war, distributive justice in democratising states, on
macroeconomic matters. As Ran Hirschl aptly observed, "nothing falls beyond the purview of
judicial review; the world is filled with law, anything and everything is justiciable."7
All these proclamations illustrate the observation which the international relation scholars
have painfully discovered only recently and which international lawyers realized already
some thirty years ago: "Almost all nations observe almost all principles of international law,
and almost all of their obligations all of the time."8
Such statements should not overtake anyone in the field of international politics by surprise.
Most states have entered into variety of treaties that limit their freedom to act from when
and how they may engage in war, to what tariffs they may charge on imports, and even to
what obligations they have towards their own citizens. Consequently, legalized a dispute
1
Goldstein, Kahler et al., 2000, p. 387.
2
Benvenisti, 2008, p. 10.
3
Reus-Smith, 2004, p. 2.
4
Shapiro and Sweet, 2002, p. 1.
5
Levi-Fleur, 2005, p. 458.
6
Ferejohn, 2003, p. 40.
7
Hirschl, 2008, p. 128.
8
Henkin, 1979, p. 47. For no less influential conclusion see Franck, 1988, p. 705.
5
settlement mechanisms cover an extremely broad range: from institutionalized forms of
bargaining, including mediation and conciliation; non binding arbitration, binding arbitration,
to actual adjudication.
"Law, like politics, is a meeting place for ethics and power," exclaimed Edward H. Carr
already in 1946 while referring to the inherent link between the two fields.9
However, as
soon as Hans Morgenthau divorced law from politics and Kenneth Waltz denied
international law the status of a systemic force, it seemed that the law chose to accept the
ethics while refusing to have anything in common with notions of power, while politics did
the exact opposite. Crude power was the only driving force; ethics had no place in state's
conduct. Consequently, the discipline of international relations excluded law from its
analysis despite calls from several prominent legal scholars for a mutual dialogue.10
Only at the end of the century, "enormous expansion in the range of issues and problems
that are subject to regulation and institutionalization"11
rendered it impossible for
international relations scholars to ignore the role international law played in the
international politics and forced an increasing interest in examining the overlap of the two
disciplines. The international relations scholarship has only slowly and recently come to
appreciate an observation made much earlier by Max Weber that there is a "generally
observable need of any power [...] to justify itself".12
In other words, "power is not selfjustifying;
it must be justified by reference to some source outside or beyond itself".13
But where should one look for external justification of power? The long lost link between
international politics and international law seems to be coming back together. The rediscovered
question of legalization of international conduct resulted in rich scholarly
discussion and questions of commitment, compliance and legitimacy regained their
important status.14
Whole research agenda became even more complicated as soon one
9
Quoted from Kahler, 2000, p. 661.
10
The almost legendary contribution and factual initiator of the discussion was Slaughter, 1993.
11
Hurrell, 2007,p. 6.
12
Weber, 1978, p. 953.
13
Hurrell, 2007, p.39.
14
See, inter alia, Abbott, Keohane et al., 2000; Moravcsik, 2000, Reus-Smith, 2003; Hathaway, 2007,or HafnerBurton,
Tsutsui et al., 2008.
6
considers the situation, when a citizen can bypass the state and "directly use international
allies and extra-domestic fora to put pressure on the state."15
At the same time, no one can deny that, the simple need to legitimize one's actions within
the international law together with a wish to maintain one's status does not prevent states
from unlawful actions and the simple realist argument that "where is no power, there can be
no law" maintains some of its original appeal. As Andrew Hurrell argued, we are "not dealing
with a vanished or vanishing Westphalian world [...] but rather with a world in which
solidarist and cosmopolitan conceptions of governance coexist, often rather unhappily, with
many aspects of the old pluralist order."16
What intrigues me is exactly the complicated coexistence of pluralist state order with new
and broadened grammar of governance including international judicial bodies. Despite the
research already conducted on why states commit to the non-reciprocal binding and
domestically intrusive human rights regimes, and why states do usually obey the rulings of
such regimes, we lack knowledge how these rulings can impact the foreign policy behaviour
in longer terms. Has judicialization of international politics reached a level where in can
influence the long term patterns of state's practices? My aim is to examine the effect
international judicial bodies with global normative discourse of human rights as their agenda
can have on national policies of its members, especially those on the loose edge of the
regime.As Andrew Moravcsik noted, "over the last half-century, [...] the legal commitments
and enforcement mechanisms entered into under the ECHR have established `effective
supranational adjudication' in Europe. Compliance is so consistent that ECHR judgments are
now [...] as effective as those of any domestic court."17
The importance of such analysis is underlined by the continuing Court's adjudication of the
(both past and present) conflicts, inter alia, between the United Kingdom and the Irish
Republican Army, Turkey and the Workers Party of Kurdistan, Turkey and Cyprus, Russia and
Chechen separatists, NATO and Serbia over Kosovo, and most recently the cases of British
conduct in Iraq. As William Abresch has bluntly put it, the Court has recently asserted its
15
Randeira, 2007, p. 39.
16
Hurrell, 2007, p. 9.
17
Moravcsik, 2000, p. 218.
7
jurisprudence over "large battles involving thousands of insurgents, artillery attacks, and
aerial bombardment."18
The question is if these pronouncements could assert any influence
over the future decision of member states whether and how to deploy force. That is,
whether the behaviour of states subjected to judicial review by ECtHR differ in any
important aspect from states free of such review.
The presented topic is relevant for the study of judicialization of international politics which
lies in the expansion of the province of courts and judges in determining public policy
outcomes but more broadly also in "spread of legal discourse, jargon, rules, and procedures
into political sphere and policy-making fora and processes."19
Judicialization is a process
through which a triadic dispute settlement mechanism appears, stabilizes, and develops
authority over the normative structure governing exchange in a given community.20
In this sense, the most important aspect of judicialization is
"the reliance on courts and judges for dealing with what we might call mega-politics:
core political controversies that define (and often divide) whole polities. The
judicialization of mega-politics includes a few subcategories: judicialization of electoral
processes; judicial scrutiny of executive branch prerogatives in the realms of
macroeconomic planning or national security matters [...]; fundamental restorative
justice dilemmas; judicial corroboration of regime transformation; and above all, the
judicialization of formative collective identity, nation-building processes and struggles
over the very definition [...] of the polity."21
Courts, in this regard, are asked to decide on watershed political questions with obvious high
political stakes involved and despite the lack of clear mandate to decide such questions.
Courts are given the creational power to influence the idiographic self-understanding of the
polity, including the international polity. For that reason, courts have become fully-fledged
actors of international politics and need to be studied as such.
18
Abresch, 2005, p. 742.
19
Hirschl, 2008, p. 121.
20
Sweet, 1999, p. 164.
21
Hirschl, 2008, p. 123.
8
Using the elaborate theoretical models in this field, especially those of Alec Stone Sweet,
Martin Shapiro, and Karen J. Alter, my aim is not, however, to examine exactly how the
triadic dispute settlement mechanism of the ECtHR appeared and stabilized its role, but
rather to ask whether it managed to develop the authority over the normative structures in
the community of Council of Europe and whether it is capable of progressively shaping its
members' strategic behaviour.
For that reason, I turn to a case study of relations between the Court and its probably most
hesitant and lenient member, that is, Russian Federation, and ask whether the European
Court for Human Rights managed to assert any influence over Russia's foreign policies. In
order to keep my analysis feasibly narrow, I decided to focus on the influence the Court may
have over Russia's decisions in the situations of armed conflict. Focus on Russia and
situations of armed conflicts will allow me to study the degree of judicialization on the edge
of the regime and in the area where states protect their sovereignty most rigorously.
At this moment, the question why I chose Russia for the proposed case study shall be
addressed. The simplest explanation would state that Russia has engaged in both internal
and international armed conflicts during the period of its membership in the Council of
Europe, and thus represents a unique case for studying the impacts of Court's ruling on
Russia's foreign policy. However, the reason is not that simple.
By the end of the twentieth century Russia signed most of the global UN treaties and
European instruments for the protection of human rights, became a member of the Council
of Europe, and even allowed an international court to exercise its authority over Russian
internal matters. On the other hand, Russia, for it lies outside the formation of the `Greater
West,' has always had historically espoused conceptions of international order that
challenged that of the liberal developed West,22
and its domestic regime has been
excessively challenged by dramatic changes in the character of international society ever
since the Cold War. It is exactly for this tiptoeing on the edge of the European system that
Russia is, in my view, the strongest example to study the possible impacts of the rulings of
the ECtHR on state's policies.
22
Hurrell, 2006, p. 3.
9
1.1 Hypothesis
As I outlined in the introduction, it is my aim to study the degree of judicialization of the
Council of Europe regime. Alec Stone Sweet argued that such degree is "observable, and
therefore measurable"23
as it depends on the ability of the judicial mechanism to develop
authority over the normative structure governing exchange in a given community and
progressively shape the strategic behaviour of political actors.24
By strategic behaviour I
understand "how individual actors pursue their own self-interest, by way of decisions or
other actions that they take, in a social context,"25
that is, in my case in context of armed
conflict.
The main research question of the presented thesis is, therefore, to what observable degree
the European Court for Human Rights has managed to develop such authority and ability to
shape the behaviour of its members.
Concerning the normative authority, I argue that the Court as a designated trustee of its
creators within a unique triadic regime has indeed managed to perpetuate and maintain the
dominating normative discourse of human rights rendering legitimacy to the decisions of
state authorities on both levels of Putnam's game, that is, on both domestic and
international levels. In other words, I argue that Court is the main actor in independently
setting and maintaining the dominant normative discourse and it has the ability to impose
such discourse even over adverse discourses of its members. In the sense of normative
authority, the Court has reached an undeniable degree of judicialization and has indisputably
socialized the regime.
Concerning the ability to shape the behaviour of actors, I argue that application of the ECtHR
doctrine helps to improve the legal oversight over situations of armed conflict and that
despite several drawbacks it improves the compliance of states with legal provisions of the
regime while conducting the enforcement activities. To put it differently, the hypothesis is
that while European Court for Human Rights tends to expand the scope of its jurisdiction and
23
Sweet, 1999, p. 164.
24
Idem.
25
Sweet, 2000, p. 4.
10
include, inter alia, principles of humanitarian law, it employs a self-restrictive approach as it
stops short of ruling on cases where the cost of compliance would be too high for the
deflecting members.
As I also briefly touched upon in the introduction, my further aim is to test my hypothesis in
a case study of the Court's interaction with Russian Federation concerning the latter's
engagement in the situation of armed conflict. Is the Court able to shape Russia's decisions
whether and how to engage in such situations?
With regard to Russia, I argue that both my hypotheses outlined above would hold,
however, also that there is a unprecedented degree of securitization of the discourse against
the dominant discourse perpetuated by the Court and also that the present internalization
of Court's values and the consequent ability to shape Russia's decisions in the situations of
armed conflict remains too shallow and easily revertible.
One can object that courts react only in retrospect, ex post, and in relation to individual
cases only. It takes years before the case of one individual or group of individuals reaches
the resolving power of the Court. How can then the Court influence the future general
behaviour of any state?
Naturally, at first the Court makes ruling that is concrete, particular, and retrospective
resolving the conflict between the two particular disputants. However, "in justifying [its]
decision ­ in telling us why, normatively, a given act should or should not be permitted - [the
Court] has made rules of an abstract, general, and prospective nature."26
By resolving an
individual case, the Court takes a general position on the particular situation and issue
general comment regarding similar cases. In this regard, by ever expanding its jurisprudence
the Court creates a net of general and predictable rules of a prospective effect. These rules
are a by-product of the triadic dispute resolution and it is my aim to examine the force of
exactly these rules on states' behaviour.
To put it differently, by filling in gaps in treaties, developing answers to new problems, and
developing relevant jurisprudence and establishing precedents, courts manage "to expand
26
Idem, p. 17. Emphasis added.
11
from within and enmesh actors with certain patterns of discourse, reasoning and
argumentation"27
and by doing that create rules of prospective nature.
Moreover, the Additional Protocol No. 14 to the ECHR - whose entering into force is blocked
uniquely and not that surprisingly by Russia - shall significantly enforce such power of the
Court by allowing it to decide similar cases in clusters. A situation that would, for instance,
enable blanket consideration of dozens of cases from Chechnya, thus, rendering the
compliance must costlier for the perpetrator.28
1.2 Structure of the study
In order to develop my argument, I shall continue as follows: Firstly, in Chapter 2 I focus on
the methodology of my case study in order to explain the notions around which I build my
analysis.
In Chapter 3 I discuss the theoretical underpinnings of my hypothesis. The main questions
are why states do choose to create judicial bodies with mandatory and binding jurisdictional
power, what is the place of these bodies within the international relations theory, and,
lastly, what are the possible tools these bodies have to influence the foreign policy of a
certain state.
I argue that the discipline of international relations needs to move beyond the still surviving
Morgenthau's plead for a rigid separation of law, politics, economics, and culture, broaden
the model of state as a rational actor in order to incorporate the underlying idiographic
notions of oneself into the examination of chosen foreign policies, abandon the
impermeable distinction between the domestic and the international, and simply engage in
`international relations after anarchy'. I believe, together with many others whose original
thoughts I shall build upon, that without these steps the discipline of international relations
would progressively lose the ability to explain states' behaviour.
Chapter 4 then discusses specifically the European Court for Human Rights within the
theoretical framework explained in the previous chapter. I focus on the position of the Court
27
Hurrell, 2007, p. 97.
28
For discussion of the possible effects of the Protocol 14, see the Chapter 5.
12
within the Council of Europe and vis--vis its member states, including the tools the Court
possesses, powers it does (or shall) use, and existing challenges. Such analysis is necessary in
order to set picture for the case study of Russia as one particular member state.
I focus on the questions of applicability of ECHR in situations of armed conflict, its
advantages over application of traditional humanitarian law, and its prospects of changing
the situation on the ground.
Thirdly, in Chapter 5 I engage in a case study of the relations between the ECtHR and Russian
Federation. My aim is to examine whether the Court managed to assert any influence over
Russian conduct in any of the latest armed conflicts Russia engaged in. In this regard, I will
focus on the behaviour and decisions of the authorized speakers,29
that is, of domestic actors
"possessing the social power to define [and change] the foreign policy agenda"30
such as
president, government, parliament, or the Supreme Court, and search for patterns indicating
possible impact of the Court. I will also discuss the influence the Court may have asserted
indirectly through limiting the negotiating and discursive space of Russian authorised actors
while dealing with their international counterparts. For the detailed modalities of my case
study, please consult the methodology subsection.
Lastly, in the Chapter 6 I will summarize and conclude my findings and draw the necessary
implications for my model.
29
Milliken, 1999, p.233.
30
Morozov, 2002, p. 411.
13
2. Methodology
In this chapter, I focus on the methodology applied while arguing my hypothesis as set in the
previous section. If we accept the definition of judicialization as, firstly, an ability to develop
authority over the normative structures and, secondly, to shape the strategic behaviour of
actors, then the any judicial regime is successful if it manages to fulfil these two
assumptions. The main question is, thus, how to operationalise such successfulness of
certain regime, that is, how to apply Sweet's surmise that judicialization is observable, and
therefore measurable.
What I call broadly successfulness of any regime may be, in the view of Hasenclaver, Mayer,
and Rittberger, broken down into two overlapping notions: Regimes may be more or less
effective and they can be more or less powerful (endurable).31
The definition of regime's efficacy is twofold: Firstly, regime is effective as much as states do
follow its rules and norms. Secondly, regime is effective as much as it fulfils certain goals or
certain intentions. The endurance of a regime depends on how much the preceding
institutional decisions limit future regime members' behaviour. In other words, institutions
that change after every power shift among its members or any time the most powerful
actors decide so lack the endurance.
It is then obvious that both capabilities as set by Sweet would fall within Hasenclaver, Mayer,
and Rittberger's category of effectiveness and I shall, thus, primarily discuss this category,
turning to the endurance of the regime only in the end of my case study.
I decided first to analyse the ability of a Court to shape the strategic behaviour of the Council
of Europe members. Following what Hasenclaver and his team proposed ­ that regime is
effective as much as states do follow its rules and norms ­ I, focus on the rates of Russia's
compliance with Court's rulings. Deciding this part of the regime's efficacy is a matter of
mere statistics ­ Russian Federation either does, or doesn't execute the Court's rulings.
31
Hasenclever, Mayer et al., 2005, p. 10.
14
Falling into the same category, I discuss Russian organisational and political decisions taken
in regards to the general comments given by the Court. I ask whether Russia took any steps
to ensure that the situation criticized and commented upon by the Court wouldn't repeat
itself. Were there any organisational changes, policy shifts, or practice reorganisation due to
the Court's ruling?
Such analysis shall provide us with the answer whether the European Court for Human
Rights possess the ability to shape the strategic behaviour of its members, in my case namely
Russia.
However, such analysis cannot provide a full picture as it cannot decide why Russia
complied, whether due to coercion, self-interest, or legitimacy. Moreover, as Clifford J.
Carrubba bluntly observed, states stop defecting from the rule and obey an adverse ruling if
and only if the cost of compliance is low and, for that reason, "the court rules against a
government if and only if it observes a low cost defection."32
Therefore, "one cannot infer
from observing high rates of compliance with a court's rulings that the court is able to force
governments to comply with the regime's rules"33
as the Court may have reacted only to
situations when the cost of compliance was low and overlooked situations where it would
have been too costly for a state to obey and, thus, too risky for a Court to impose a
judgement.
Thus, we need to move to the second aspect of judicialization ­ to the Court's assumed
authority over the normative structures of the regime. Therefore, the analysis needs to
move beyond the simple compliance rates. Ian Hurd, to that end, proposes to analyse the
reasons given for compliance together with reasons given for non-compliance. As Hurd
notes, "even while apparently breaking rules, actors [feel] the need to justify their actions as
still being within the limits of the allowable."34
In other words, the mere discussion of organisational, practical, and action-oriented
decisions would not do. One needs to focus on the reactions to the rulings given by the
32
Carrubba, 2005, p. 676.
33
Idem, p. 677-678.
34
Hurd, 1999, p. 391.
15
Court. As Kratochwil and Ruggie argued, more important than a fact that a certain rule is
broken (that is, certain state does not execute Court's ruling in timely and precise manner) is
how such behaviour is interpreted by members of the community (that is, in our case, how
the behaviour is interpreted by the relevant actors both inside and outside Russia) and what
communicative behaviour (reproach, apologies, justification, disagreement) such decision
brings about.35
In other words, following the Court's ruling, one needs to study the
communicative behaviour of a state and its partners, both domestic and international, in
order to determine the efficacy of a certain regime.
For that reason, I shall, secondly, examine the position of authorized speakers,36
and "those
possessing the social power to define the foreign policy agenda."37
In practical terms, I shall
firstly discuss the international reactions as pronounced during or after the hearing in the
Court, including the relevant Russian reasoning against possible adverse rulings, in the
Parliamentary Assembly of the CoE (PACE), and in the Committee of Ministers of the CoE.
Secondly, I turn to the discourse applied in Russian domestic space by relevant authorities,
that is, by executive, parliament, Supreme Court, or human rights ombudsman.
Such analysis is needed because foreign policy is largely conducted as a discursive practice
and need to be studied as such. A discourse, in this sense, works as "a shared set of
concepts, categories, and ideas that provides its adherents with a framework for making
sense of situations, and which embodies judgements, assumptions, capabilities, dispositions,
and intentions."38
Two qualities of any discourse should be borne in mind. Firstly, discourses
are to a large extent structured "in terms of binary oppositions ­ educated / ignorant,
modern / traditional, Western / Third World ­ that, far from being neutral, establish a
relation of power such that one element in the binary is privileged."39
Secondly, discourses
are productive as they "operationalise a particular regime of truth, while excluding other
possible modes of identity and action."40
The fact of discourse productivity renders the need
35
Hasenclever, Mayer et al., 2005, p. 19.
36
Milliken, 1999 p.233.
37
Morozov, 2002, p. 411.
38
Dryzek, 2006, p. 104.
39
Milliken, 1999, p. 229.
40
Idem.
16
to study the hegemonic or dominant discourses and the way they are structured. In other
words, I analyse an `elites' regime of truth that made possible certain courses of action by a
state, while excluding other policies as "unintelligible or unworkable."41
The rationale of such discourse analysis lies exactly in the notion of regimes of truth.
Disregarding whether Russia does or does not execute the Court's ruling, it justifies its
position towards the normative claims made by the Court. In other words, even in case of
compliance, Russian authorised speakers may use a discourse hostile to the Court. In such
case, one needs to ask what forces the state to follow an adverse ruling while harbouring an
inimical reaction?
The necessary external framework and explanation to my analysis is then provided by the
theory of transnational discursive democracy whose model rests "on the notion that
discourses and their interactions are consequential in producing international outcomes
through their influence upon and constitution of actors."42
In this sense, as soon as one
accepts the constraining and enabling power of external dominant discourses such as liberal
economy, human rights, or sustainable development, one has to ask how these discourses
actually influence the domestic discursive spaces. How can one operationalise the alleged
power of these dominant discourses while entering the national space? How can one
describe the functioning or resistance of the alternative discourses?
Lastly, I shall discuss the proposed endurance of the Council of Europe regime focusing on its
institutional stability. The question of the independence of the regime from the power
calculations of its members needs to be addressed in order to assess that the judicial powers
are indeed independent on states and not mere projections of power of the regime's most
powerful members as the realist theory may propose.
Before I turn to the next section, a disclaimer on the several of used terms is necessary.
Firstly, I need to comment on use of the term judicialization. Without going into definitions
and theory, that is the aim of the next chapter, I need to clarify the term's relations to the
two other terms used in the literature. Firstly, even though the term judicialization got fairly
41
Idem, p. 236.
42
Dryzek, 2006, p. 102.
17
embedded in the literature, some scholars choose to use some their own derivative nouns of
the adjective judicial while describing roughly the same phenomenon.43
For the sake of
clarity, I shall stick only to the term as presented by Alec Stone Sweet throughout my
research.
The use of terms Council of Europe and European Court for Human Rights should be
clarified. Throughout my research, while talking about regime I do mean the organisation of
Council of Europe in general, whereas the Court is only the triadic dispute settlement
established within the regime. Therefore, I refrain from distinguishing two overlapping,
nevertheless different regimes ­ one of the CoE, second of the Court. Such division is
useless, especially as all original members of the Council accepted jurisdiction of the Court
and all newcomers were obliged to do very much the same.
However, two objections may be raised against analysing the Court within the framework of
the Council of Europe. Firstly, not all organs of the Council are based on independent judicial
decision-making; rather to the contrary, they are purely political. Therefore, by
acknowledging that political has the final word over judicial, one may argue that I have
diluted my hypothesis. I discuss this objection in the subchapter on limits of judicialization.
Secondly, an objection can be raised as to how to distinguish between the impact of ECtHR
and of the CoE as a whole, that is, how to distinguish judicial impact from the political one. It
is my opinion that the court remains the primary source of decision in particular case therefore
any additions to the judicial decision that may be appended by the executive
branch (the Committee of Ministers) are easy to distinguish and filter out of the analysis.
Lastly, the usage of the term "situations of armed conflict" should be also explained in order
to understand how I distinguished between different Court's rulings and decided whether or
not to include them in the presented case study. In this regard, it is not my aim to reinvent
the wheel and, therefore, I use the definitions of both international and internal conflicts as
set in Geneva Conventions of 1949 and their Additional Protocol II of 1977.
43
To state only two examples, John Ferejohn and J.H.H. Weiler both use the term `juridification' to describe
more or less the same phenomenon. See Ferejohn, 2003, Weiler, 2004, or Levi-Fleur, 2005.
18
Article 2 of the First Geneva Convention of 1949 provides that situations of international
conflict comprise "all cases of declared war or of any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the state of war is not
recognized by one of them."44
Additionally, Article 1 of the Additional Protocol II of 1977
defines an internal armed conflict as a conflict "which take place in the territory of a High
Contracting Party between its armed forces and dissident armed forces or other organized
armed groups which, under responsible command, exercise such control over a part of its
territory as to enable them to carry out sustained and concerted military operations."45
Such delimitation allows me to include to the case study only relevant ruling not every ruling
where any of Russian law enforcing agencies was involved. Simultaneously, it allows me to
include all relevant cases ranging from low intensity conflicts to fully fledged international
cases of armed conflict.
Having explained the methodology applied and the usage of particular terms, let me now
turn to the theoretical underpinnings of my thesis.
44
Theoretically, the Article 1(4) of the Additional Protocol I adds to the definition also "armed conflicts in which
peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise
of their right of self-determination. However, such broadening of the definition was never dully recognized for
its overly politicized, historical nature and the highly disputed content of the fight for self-determination. In my
opinion, the two definitions quoted in the text cover sufficiently all cases of armed conflict. See ICRC, 1949,
Article 2, and ICRC, 1977a, Article 1(4).
45
ICRC, 1977b, Article 1.
19
3. Theoretical underpinnings
In this chapter I address the theoretical assumptions underpinning my hypothesis. In
explaining judicialization I would base my examination on the models proposed by Alec
Stone Sweet and Martin Shapiro. Then, going beyond their analysis, I offer three
explanations for the emergence of judicialization ­ a normative, functional, and domestic
one. I then finish the chapter by discussing the limits of judicialization in the current
international system.
3.1 The phenomenon of judicialization
Judicialization of international politics must be studied within the theory of international
regimes as it represents a particular transformation of such regime.
Krasner defined international regimes as implicit or explicit principles, norms, rules, and
decision-making procedures around which the expectations of the actors converge in the
respective field of international politics. Principles represent shared understanding of reality,
causations, and of honour. Norms are standards of behaviour defined as rights and duties.
Rules are particular incentives or prohibitions on certain behaviour. Decision-procedures are
prevailing procedures for approving and realizing of collective choices. Keohane, criticising
the overload of Krasner's definition, proposed that international regimes are simply
institutions with clear rules which governments approved and which adhere to certain
cluster of issues in international politics.46
Whether one accepts Krasner's long or Keohane's short definition of international regimes, it
is obvious that regimes are frameworks, formalised or not, designated to mediate the
relationships between two states. Together with the increasing range of fields in which
states interacted and/or cooperated with one another grew also the range and complexity of
all the rules involved. Simple dyadic relations between two states was inadequate to solve
the emerging problems, especially as the war, the traditional means of dispute resolution,
was ever more dangerous, expensive, and the results unpredictable.
46
For discussion of different definitions of regimes, see, inter alia, Hasenclever, Mayer et al., 2005, ch. 1.
20
As a result, the rules governing the regime became more precise and obliging in order to
mediate cooperation in ever more complicated and interlinked cases, and their management
got delegated to designated agents. International and often also domestic law crystallised in
many areas hitherto unregulated.
International courts, according to the definition represent a particular type of regime
because they are defined as (1) a permanent institution, (2) composed of independent
judges (3) that adjudicate disputes between two or more entities, one of which is a state or
international organization, (4) working on the basis of predetermined rules of procedure and
(5) rendering decisions that are binding. Today there are 26 international courts that meet
this definition and they are increasingly active, having issued 69 percent of their over 15,000
decisions, opinions and rulings since 1990.47
Moreover, unlike international institutions governing trade, monetary, environmental, or
security policy, international human rights institutions cannot be described as based on
reciprocity. How would one state react to violations perpetrated in another state? According
to the logic of reciprocity, the first state should start violating rights of its own citizens in
response. The logic doesn't work because human rights regimes are not designed "primarily
to regulate policy externalities arising from societal interactions across borders, but to hold
governments accountable for purely internal activities. [...] The distinctiveness of such
regimes lies instead in their empowerment of individual citizens to bring suit to challenge
the domestic activities of their own government."48
Thus, emergence of regimes whose
functioning could not be based on reciprocity further deepened a need for regimes
possessing clear set of binding rules managed outside traditional diplomacy.
The traditional dyadic peer nature of the relations cannot solve arising problems as all
decision-making and compliance are based on reciprocity. However, if two states possess
their own reading of the rules and if any possible decisions must be based on consensus,
delegated agent possessing rules of high precision and clearly stated obligations cannot
overcome the dyadic dispute.
47
Alter, 2008, p. 33-34.
48
Moravcsik, 2000, p. 217.
21
In other words, there was a practical need for regimes to become legalized. As Abbott and
his team famously described,
"Legalization [is] a particular form of institutionalization characterized by three
components: Obligation, precision, and delegation. [...] Obligation means that states or
other actors are bound by a rule or commitment or by a set of rules or commitments.
[In other words,] their behaviour thereunder is subject to scrutiny under the general
rules, procedures, and discourse of international law and often domestic as well.
Precision means that rules unambiguously define the conduct they require, authorize,
or prescribe. Delegation means that third parties have been granted authority to
implement, interpret, and apply the rules; to resolve disputes; and (possibly) to make
further rules." (p. 401)
Legalized institutions can be explained in terms of their functional value, the preferences
and incentives of domestic actors, and the embodiment of particular international norms.49
Similarly, legalized institutions are central to the broader legitimation of unequal power as
they allow small and less powerful states to tie Gullivers of the system in as many ways as
possible, allow them voice opportunities unavailable otherwise, create space for new
coalitions, and avoid the cost of exclusion.50
However, legalization does not equal judicialization. Judicialization represents a subcategory
of legalization as it represents only a particular form of delegation within highly
institutionalized regimes, that is, delegation to a largely independent actor that is given
certain power over its creators in order to resolve their disputes.
Thus, triadic dispute resolution, so common in the domestic politics, emerged on the
international level. As Alec Stone Sweet explains, "[t]he triad, two disputants and a dispute
resolver, is a universal, if under-theorized, phenomenon. [The triad is] a primal technique or
organizing social authority and, therefore, of governing."51
49
Abbott, Keohane et al., 2000, p. 397.
50
Hurrell, 2007, p. 73-74.
51
Sweet, 1999, p. 149.
22
Such triadic nature may be of two kinds, consensual and compulsory. Consensual dispute
settlement is "constituted by the voluntary consent of both disputants."52
Examples of such
dispute settlement mechanism include the UN International Court of Justice (whose
jurisprudence must be re-accepted by States every time a case arises) or the simple
international arbitration. The compulsory dispute settlement requires the delegation of
powers to the dispute settler only once, then it stays in place and the dispute settlement
process is triggered by one party to a conflict even against the will of the other concerned
party. This mode includes the ECtHR (jurisprudence compulsory for all members of the CoE),
European Court of Justice (ECJ), or the WTO dispute settlement process.
In this sense, judicialization of dispute resolution is the process through which a triadic
dispute resolution mechanism (TDR) appears, stabilizes, and develops authority over the
normative structure governing exchange in a given community. The judicialization of politics
is the process by which triadic lawmaking progressively shapes the strategic behavior of
political actors engaged in interactions with one another.53
TDR, if exercised on an ongoing
and effective basis, is a crucial mechanism of social cohesion and change as it organizes
discourse about a community's normative structure. In other words, dyads and triads
organize human community and constitute modes of governance to the extent that they are
institutionalized, that is, constructed and maintained by rules.54
In order to sum up, Sweet concludes that "to the extent that TDR is effective, it lowers the
costs of dyadic exchange; as dyadic exchanges increase in number and in scope, so does the
demand for the authoritative interpretation of rules; as TDR is exercised, the body of rules
that constitutes normative structure steadily expands, becoming more elaborate and
differentiated; these rules then will feed back onto dyadic relationships, structuring future
interactions, conflict, and dispute resolution."55
As a result, judicialization serves as
socialization. As states gain experience with dispute settlement and stable case law enhance
52
Idem, p. 150.
53
Idem, p. 164.
54
Idem, p. 159.
55
Idem, p. 158.
23
legal certainty, states can afford to view triadic rule making as a useful, cost-effective
guarantor of regime functioning.
Let me now turn to the question why and how judicialization occurred, that is, why states
chose to entrust some of their power into bodies that are not under direct control of states,
rather to the contrary, do exercise some power over their creators?
3.2 The occurrence of judicialization
In the beginning, let me briefly discuss the qualitative changes that occurred in the
international system and that enables the whole paradigm shift to come into being.
Firstly, changes in the role and understanding of a state are no longer deniable. Despite the
fact that states remain the main actors of the international system, they are also currently
undergoing "part transnationalisation, part de-nationalization, and part privatization", that
is, processes that are all accompanied by, on one hand, decentralization and devolution of
powers to the local level, and transnationalisation of law and policy, on the other.56
To put it
differently, as the state disaggregates, "the traditional maps of domestic checks and
balances are also redrawn in the never-ending struggle to govern and to review government.
In an era of inter-dependency, [...] the national government [...] must forge coalitions across
national boundaries to remain effective domestically."57
Thus, new patterns of state
cooperation with one another had to emerge.
Similarly, the international system is undergoing a normative change. As some scholars
declared, there is a tendency towards a global normative synthesis which would bring about
the creation of a global community of communities. To put it bluntly, having dissimilated for
millennia "humankind is slowly and often reluctantly assimilating [again]."58
In view of Rein
Müllerson human kind started as one community, then dispersed throughout the world and
diversified and now, due to the fact that "the world has become too small to remain too
different,"59
is assimilating to one global community in order to face global threats stemming
56
See Randeira, 2007, p. 40.
57
Benvenisti, 2008, p. 44.
58
Müllerson, 2005, p. 1626.
59
Idem.
24
from terrorism, environmental dangers, or food crises. George Ulrich sees the human rights
to increasingly work as a global ethic commitment and serve as a normative guide for the
emerging global community, as unified answers to global threats, and as a threshold for
newcomers to pass.60
In other words, within the scope of international relations, "the past two decades have seen
increasing interest in extending democracy into an international system long inhospitable to
democratic projects beyond the level of the nation-state."61
Andrew Hurell went even
further when he concluded that a "new raison de systme [was] developing that [would]
alter and ultimately displace the old-fashioned notion of raison d'état."62
Thirdly, along the evolution of normative cascade within the international system came its
enmeshment with international institutions. Never before was the range of institutions so
broad, exponentially increasing in numbers, scope, and agendas. The network of institutions
almost any state in the system is a member and subject is almost impenetrable. While
discussing this institutional entanglement "it is not difficult to highlight the weakness of
particular institutions, it is harder to deny the cumulative impact of institutional
enmeshment across and ever-increasing range of subjects and sectors."63
Lastly, the question when and for what reason states do follow the international law became
even more complicated once the scholars begun to consider the non-state actors and most
recently also the international citizenry as relevant for the analysis. Together with the
development of binding human rights international norms, omitting of states' citizens
outside the decision-making and legitimacy making process seems "entirely ruled out from
the realm of possibilities,"64
which in turn makes the modern democracies extremely wary to
keep their legitimacy vis--vis such third-party actors. As Karl Josef Partsch noted,
60
See Ulrich, 2007.
61
Dryzek, 2006, p. 101.
62
Hurrell, 2006, p. 7. ECtHR was very outspoken on this issue proclaiming that democracy seemed to
democracy appeared to be the sole political model contemplated by the Convention and, consequently, the
only one that was compatible with it. See ECtHR, United Communist Party of Turkey and others v Turkey, para
45.
63
Hurrell, 2007, p. 66.
64
Zolberg, 1996, p. 57.
25
"transformation of the position of the individual is one of the most remarkable
developments in contemporary international law." 65
In conclusion, the international system in several last decades underwent several changes
that challenge the initial assumptions of international relations scholars. The disaggregation
of state, the normative cascade within global discourses, the institutional enmeshment, and
the changes in position of an individual within the system, these all are changes that are
hard to explain within the traditional rationalist paradigms.
Let me now turn to briefly sketch the three explanations of the emergence of the
judicialization. My normative argument lies in presumption that the notion of international
anarchy brings in more opacity then utility in theorizing about the international system. As
soon as one accepts the existence of (a) notion of international community in which states
co-exist, and (b) pre-legal norms and customs existing in the system which then constitute
certain global scripts limiting the possible behaviour of states within such community, and
(c) qualitative changes that occurred in the system since the World War II; one has to
conclude that there is a need for the international relations scholarship to move beyond the
concept of anarchy.
As Kratochwil famously argued in any social system, including the international system of
states, one follows a rule for one of the three reasons ­ because of fear of punishment,
because of calculation of possible gain, and because the actor deems certain rule binding.66
Neither coercion, nor egoist calculations can explain continuous cooperation of states ­ both
power and possible gain fluctuate, however, patterns of cooperation seem to be rather
stable ­ and the understanding of international legitimacy as a systemic force must be
reconsidered.
In such post-anarchy system based as much on power as on legitimacy, international law
represents the currently dominant legal script states follow in relations with one another. It
is such system that enables and even prefers creation of legalized and judicial regimes.
65
Partsch, 1995, p. 957.
66
For one of the newest reiteration of that argument, see Kratochwil, 2006.
26
My second argument stems from the urge states have to enhance their mutual cooperation
and its legitimacy vis--vis third actors. Already neoliberal institutionalism in 1980s realised
that the cooperation rests on the mutual benefit as much as on the reputation of each of
actors involved. In order to enhance mutual cooperation states established agents to
mediate the cooperation and the whole branch of scholarship discussing the so-called
principle-agent problem emerged. However, as soon as the scope of certain regimes,
especially those dealing with human rights or environmental issues, went beyond simple
reciprocity, the need to increase also the credibility of pledges made within regime arose
and simple agents, established to discharge dutifully the wishes of principals, couldn't satisfy
such demands.
Therefore, states created trustees ­ structures independent on states with certain decisionmaking
powers whose functioning was aimed at increasing the credibility of particular
international policies in fields where reciprocity couldn't ensure such credibility. Judicial
bodies are then one example of such trustee which serves to enhance credibility of certain
pledges, such as those made in the realm of human rights. In other words, judicial bodies
serve as functional elements enhancing cooperation that cannot be based on reciprocity.
Judicialization then occurs as a specific form of triadic dispute resolution mechanism that
enables states to cooperate in realms where it would have been too costly to cooperate
without a dispute resolver.
My third argument for emergence of judicialization is domestic one. The previous two
arguments explained why, firstly, judicial bodies are enabled in the current international
system and, secondly, for a trustee mechanisms with a function of a triadic dispute resolver.
However, there is a third possible argument coming from the opposite level of analysis, that
is, from micro-level domestic analysis.
Together with many scholars theorizing about democracy, I believe that notion of
democracy embodies not only some procedural qualities, but also other more fundamental
rights without which democracy is impracticable. One of such qualities is the `culture of
justification', that is, the idea of governance itself lies in the deliberative interaction between
rulers and ruled. In Dworkin's and especially Habermas' understanding of democracy, "an act
27
of rational rule-making not only must be based on reasons; what is more, these reasons
must be also `reasonably debatable' [and] open to confirmation or disconfirmation in a
justificatory discourse."67
Courts then are the embodiment of such justificatory discourse
providing the confirmation or disconfirmation through formalised dispute process.
In order to sum up this introductory remark, I argue that the discipline of international
relations needs to move beyond its archetypal notion of anarchy as a ruling principle in the
international system. Having sketched out the ongoing discussion on the topic, I argue that
the current expansion in number of legalized and often even judicial regimes, scope of their
agendas and range of their instruments to render their rulings enforced cannot be explained
from within the rationalist theories of international relations and that the explanation rests
in changing our understanding of ordering principles of international system.
Let me now turn to discuss each of the above sketched reasons in more detail.
3.2.1 Normative argument for judicialization
In this subsection, I will first discuss the ability of different international relations paradigms
to explain the occurrence of the judicial regimes. Having concluded that neither of
rationalist theories of the international system can account for the phenomena, I propose,
together with Christian Reus-Smith, an interstitial understanding of politics that has the
ability to explain the occurrence of the judicialization of the international politics.
If one turns to the current rationalist theories to account for the changes in the
international system, one finds more questions than answers. Within the rationalist
paradigm, scholars seem to agree on the principal role of the state within anarchical
international system and its unitary character of a rational actor. What divides realist from
neoinstitutionalist scholars is not a discord over the nature of the international environment,
but mere prospect of cooperation in such milieu, for former believe in sheer power, while
the latter rely on egoist cooperation.
67
Steffek, 2007, p. 262.
28
For realists, the puzzle is why states devote so much energy and attention to constructing
legalized institutions, when the power of legal constraints is weak or non-existent and state
can shake the legal obligation off at any time. As one prominent scholar noted, "if power is
really so important, why bother with the idea of international society at all? Why not come
clean and simply focus on material power?"68
The reason is that states need international
community to share costs of protecting their interests and to gain the authority and
legitimacy that "the possession of crude power can never secure on its own."69
Turning to the liberal paradigm, institutions reduce the cost of making, monitoring, and
enforcing rules ­ transaction costs ­ provide information, and facilitate the making of
credible commitments. The main guarantors of cooperation are reciprocity and reputation.70
The notions of reciprocity and reputation, however, cannot account for legalized regimes the
state should stop cooperating as soon as there is no self-interest and absolute gain in the
game. Subscribing to binding regimes only reduces state's ability to calculate gains and
transactions costs. As Abbott and his team noted, "liberal theory has explained how
cooperation endures without legalization [that is, through repeated cooperative games, such
as prisoner's dilemma], but it has not explained legalization."71
Both paradigms picture states as atomised actors that are interested only in their own gains
and refuse the existence of an international community. Cooperating states, thus, must
share same interests that are attainable only through cooperation.72
Both rationalist
paradigms reduce regimes into beneficial, however, conditioned tools for problem-solving
between egoist states pursuing only their own interests.
However, the notion of interests is not explained within the rationalist paradigm and
interests are perceived as given from outside. That constitutes probably the weakest point of
the whole rationalist school of thought. As Nicole Jackson argued, "any argument can be
constructed to prove that any action is intended to enhance or preserve the power of the
68
Hurrell, 2007, p. 36.
69
Idem, p. 39.
70
Keohane, 2002, p. 3.
71
Abbott, Keohane et al., 2000, p. 392.
72
Hasenclever, Mayer et al., 2005, p. 29 and 32.
29
state."73
To put it differently, some scholars came as far as proclaiming the concept of
national interest to be "oversimplified and wrong-headedly dogmatic [as] it can be used to
mean whatever the user wishes."74
In other words, both rationalist approaches to politics
and institutional rationality encourage "an ahistorical understanding of institutional
development. States are ascribed with an atemporal means­ends strategic rationality that
they employ to overcome the standard cooperation problems."75
Surprisingly, even one of the prominent proponents of neoliberal institutionalism admits
such reproach and concludes that "too much is left out: not only institutions, but also
transnational relations, domestic politics and the role of ideas,"76
and, for that reason, this
approach to world politics "needs to be combined with other perspectives."77
However, it is no more possible to understand the international relations on simple systemic
level where the only factor that matters is the distribution of resources among functionally
identical units. Similarly, it is no more possible to understand the international system as a
mere market where states have to maintain their position and take possible windows of
opportunity, that is pursue self-protective measures and power-seeking policies, in order to
avoid becoming "weak and / or disappear."78
Thus, one needs to clearly reject that the
international system can be viewed "solely in material terms as a decentralized, anarchic
structure in which functionally undifferentiated states vary only according to the distribution
of power."79
In order to describe the power distribution in the current international system one has to
increasingly focus on how the shared vision of legitimacy is created and perpetuated among
the actors of the system. In this regard, I follow the constructivist view that emphasises
international state practices, socially constructed national interests, collectively shared
memories and narratives80
and looks at "those historical and social processes through which
73
Jackson, 2003, p. 13.
74
Weldes, 1996, p. 275.
75
Reus-Smith, 2003, p. 612.
76
Keohane, 2002, p. 6.
77
Idem, p. 10.
78
Waltz, quoted from Jackson, 2003, p. 14.
79
Hurrell, 2007, p. 16.
80
See Wendt, 1999. For overall theory of social construction of reality see Berger and Luckmann, 1966.
30
the rules and norms that shape the present behaviour of an actor in the international system
are constituted."81
New generation of constructivist scholars took this as their point of departure and argued
that it is the knowledge and ideas that shape state's behaviour on the essential level rather
than simple pursue of one's interests. States are not only treasure hunters and selfprotectors
as neorealism and neoliberalism presuppose, but also limiters on uncertainty and
role players.
Similarly, structure and causal power have no existence and self-help politics, so self-evident
and inescapable for neo-neo discussion, is a mere institution, not an essential feature of the
international system. In the words of Gerard Ruggie "constructivists hold the view that the
building blocks of international reality are ideational as well as material; that ideational
factors have normative as well as instrumental dimensions; that they express not only
individual but also collective intentionality; and that the meaning and significance of
ideational factors are not independent on time and place."82
For constructivist, institutions matter because they do more than just reflect power (as neorealist
argue) or solve collective action problems (as institutionalists suggest). They also
matter because they explain how the actors' self-understanding and consequent
comprehension of the system emerged.
Regimes, in that sense, are more than mere processors of impulses of their rational
members driven by calculations of gains. They embody the shared conventions of the right
and legitimate behaviour in certain situations. Not only do regimes determine such
behaviour, they also serve as generally accepted reference points for assessment of
individual behaviour. Thus, certain amount of deviant behaviour does not render the whole
regime and its norms invalid.83
General compliance with rules is, from this point of view, a
price for being a member of international community.
81
Pursiainen, 2000, p. 158.
82
Ruggie, 1998, p. 879.
83
Hasenclever, Mayer et al., 2005, p. 151.
31
For these reasons, growing number of international relations scholars have recently pointed
out deep gaps that the definition of international anarchy encompasses. Abbott (et al.)
noted that "even situations taken as extreme forms of international anarchy are in fact
structured by rules ­ most notably rules defining national sovereignty ­ with legal or prelegal
characteristics."84
For that reason, if we accept that some authoritative international
rules and institutions do exist, "by virtue of their being accepted by states as being
legitimate, than the international system is not an anarchy."85
For that reason, rather than operating in the environment of international anarchy where
all behaviour is determined only by fear for survival and lust for aggrandizement, be it
relative or absolute, modern nation-states "seek external legitimation by following `global
scripts' and adoption of globally legitimated policies and political structures somewhat
independent of their power, gain calculations, and local environment.86
One of the strongest current global scripts is international law. Even the security policies
considered by many as the crudest hard-issue require legal reasoning and explaining. Abbott
and his co-authors elaborated further:
"Although actors may disagree about the interpretation or applicability of set of rules,
discussion of issues purely in terms of interest or power is no longer legitimate.
Legalization of rules implies a discourse primarily in terms of the text, purpose, and
history of the rules, their interpretation, admissible exceptions, applicability to classes
of situations, and particular facts."87
At this point, I would like to reiterate the fundamental point made by Reus-Smith who
describes four cognitive reference points that frame political deliberation, namely
idiographic, purposive, ethical and instrumental point, each of which bears different set of
questions. Politics is then an interstitial of these four points.88
It is not power or calculation
84
Abbott, Keohane et al., 2000, p. 407.
85
Hurd, 1999, p. 401.
86
Hafner-Burton, Tsutsui et al., 2008, p. 135.
87
Abbott, Keohane et al., 2000, p. 409.
88
Firstly, he recognises the idiographic (I) reference point that supervenes the other three points. Here, one
asks who one is, how does one define and perceive himself or herself. Secondly, Reus-Smith names the
purposive (P) reference point with the main question being "what do I want?" In other words, one needs to
32
of any sort that affects the instrumental design but it is rather the relationship between
one's identity and ethics that has the paramount importance. In other words, the definition
of a legitimate statehood informs ascendant norms of procedural justice, and this, in turn
affects what "states consider appropriate institutional forms or practices."89
Unfortunately, my analysis lacks the space needed for the discussion of how international
law became the currently dominant global script90
and, for that reason, I will simply assume
the observable fact: As Scott and Ambler noted, while making a reference to international
law an actor is "implying that international law offers the highest standard against which
action [...] can be judged; [...] an argument based on international law it is a justification
`other than' or `more than' a mere political, economic, or moral rationale."91
International
law, including the human rights law, as an embodiment of the current global script,92
thus
prepares the ground for the legalization and judicialization of world's politics on the
normative level.
Subscribing to such global script legitimises the state among the peers in the community.
And exactly because human rights are among the most legitimate standards in the world,
subscribing to them has great legitimating value for nation-states. For that reason, many
states have subscribed, even despite the fact that human rights treaties do not offer states
any obvious reciprocal benefits.
Obviously, the stated argument could not explain why judicial regimes occurred; it simply
served to explain the normative background for the occurrence of the judicialization of the
define his interests. However, without knowing who one is, the definition of what one wants is impossible. The
same goes for the third, ethical (E) point. Here the question is: How should one act? What is moral or at least
acceptable behaviour? The fourth and the last is the instrumental (In) point. Here one asks two sets of
questions, the strategic-instrumental (How does one get what one wants?) and the resource-instrumental
(What does one needs to get what one wants?). None of the latter sets of questions can be solved without
answering the very first one of self-imagination and self-perception. Idiographic politics leads actors to pursue
institutional arrangements that permit the construction, stabilization and demonstration of social identities.
Reus-Smith, 2004, p. 25.
89
Reus-Smith, 2003, p. 612.
90
For discussion of the topic, see, mainly Koskenniemi, 2004.
91
Scott and Ambler, 2007, p. 72.
92
Other historical scripts may involve, in case of Europe, systems of Greek polis and of the Christendom, or
concert of powers in 19
th
century.
33
world's politics. Let me now turn to the next subchapter where I address the functional
reasons for the genesis of judicial bodies in the international system.
3.2.2 Functional argument for judicialization
In the previous chapter, I have tried to illustrate the normative changes that occurred in the
international system in last decades and that allowed the international law to become a
global script which states follow in their interaction to one another. I also discussed the
account different international relations schools can give for such changes and concluded
that these are widely unsatisfactory as they deny global scripts their systemic power. For
these reason, I supported the thesis of Christian Reus-Smith that politics is an interstitial of
four point - idiographic (concerned with one's identity), ethical (one's ethics), purposive
(one's goals), and instrumental (one's ways to achieve the goals) - and that despite the role
power has in politics, without answering the idiographic and ethical point and, thus, without
subscribing to a certain global script, one can hardly define the fundamental goals and
channel one's power in order to achieve them. I then concluded that the normative changes
occurring in the international system prepare the ground for judicial bodies to occur in order
to enhance states' commitments to the global script of international law.
The main question of this subchapter is what the functional value is for states in agreeing to
create international judicial bodies that are (a) outside the states' direct control and (b) in
possession of certain powers over states themselves.
Neorational scholarship has claimed that the cooperation is based on reciprocity and
reputation for already several decades. In their view, two actors enter cooperative
behaviour if that allows them to gain more than while acting on each own. Such
cooperation, that is, the direct exchange between two actors, is dyadic in its nature.
However, "[d]yadic forms are inherently unstable, neorationalists tell us, because each party
faces powerful incentives to ignore normative obligations thereby cheating on the other."93
In order to decrease the incentive to cheat and to further ease the cooperation, that is, to
further decrease the cost of the cooperation, ease the communication and coordination, and
93
Sweet, 1999, p. 149.
34
increase possible gains coming from the cooperation, states do establish agents to act in
their name in certain agendas. As one scholar bluntly described, "principals are the rulers,
those in position of authority at a given moment of delegation; agents are those on whom
the political rulers have conferred the power to govern, some meaningful decision-making
authority in order to perform services desired by the principal."94
This is the simplest form of
a triadic structure ­ two or more principals create an agent and delegate certain tasks to it in
order to formalise and ease the cooperation.
While facilitating the cooperation, agents are under full control of their establishers.
Principal­Agent theory posits that the "ability of the principal to sanction an agent by
changing the contract (firing or not reappointing the agent, rewriting contractual terms to
undercut the Agent's realm of authority, or cutting the agent's budget) provides states with
significant political leverage that they can use to rein in agents who go astray.95
In this sense,
agents are utilitarian tools to facilitate and ease cooperation while staying under full state
control. The legitimacy of such cooperation is rooted in self-interest of principals.
However, there are two significant problems with the cooperation mediated through agents.
Firstly, as soon as one looks at the institutionalism's second element needed for successful
cooperation, that is, reputation, it becomes obvious that agents by simply performing the
services desired by the principal cannot enhance the reputation in any significant way. The
reputation still rests with the number of successfully played rounds of prisoner's dilemma
game. Secondly, as disputes unavoidably arise, agents are only partially able to resolve them
as consensual mediation is basically the only option the agent as a dispute resolver has,
otherwise it would break the orders of one of its establishers. If the resolution of a particular
problem lies outside the realm of reciprocity, the agent is generally unable to render the
sought resolution.
Therefore, simple structure of an agent cannot enhance the reputation of its principal, nor
can it help solve disputes that arose between cooperating principals, especially those lying
94
Sweet, 2000, p. 23
95
Alter, 2008, p. 34.
35
outside the scope of reciprocity. States, thus, need other mechanism that would help them
overcome the problems of reputation (credibility) and resolve the mutual disputes.
For the stated reasons, states create a different type of triadic structure, more elaborated
and independent ­ a trustee. Trustee is designed to help resolve the conflict a dyadic or a
primitive triadic agent-based structure cannot solve, increase the credibility of principal's
commitment, and, in some cases, maintain the cooperation that would otherwise be too
risky. Delegation is, thus, likely when, for each disputant, "going to a third party is less costly,
or more likely to yield a desired outcome, than either breaking the dyadic contract and going
it alone or attempting to impose a particular settlement against the wishes of the other
disputant."96
There are significant differences between agents and trustees. Primarily, the authority
resides in the holder of the trustee's office, not in the principal as in the case of agents.
Secondly, trustees are supposed to make decisions on behalf of a beneficiary, using the
"guidelines in their mandate interpreted according to trustee's professional norms and best
judgment."97
Agents act on behalf of their principals. Thirdly, trustee's mandate cannot be
simply changed; trustee cannot be simply punished or deterred by the fear of punishment.
Rather, those unhappy with trustee "seek to delegitimize the decision in the eyes of the
beneficiary by identifying inconsistencies between trustee mandates and professional norms
and trustee behaviour."98
Therefore, contracting politics is relatively ineffective as long as
the trustee can defend its behaviour as within its zone of discretionary authority. However,
while trustees are less prone to influencing via re-contracting tools, they are not apolitical or
immune to state pressure.
However, it hardly seems rational to delegate meaningful power to highly independent
actors who do not see themselves as one's agents. Giandomenico Majone explains this
puzzle by identifying two different logics of delegation. Firstly, there is delegation to capture
efficiency gains, and, secondly, delegation to increase the credibility of the principal's
decision-making. In the latter case, the goal is to convince some third party that their
96
Sweet, 1999, p. 154.
97
Alter, 2008, p. 42.
98
Idem, p. 43.
36
interests are being protected, which is a task an agent who simply carries out principal's
directives cannot fulfil. "The highest level of independence is where the principal irrevocably
transfer their own political property rights in giver area [...] to a separate institution."99
The triadic dispute resolver ­ a trustee ­ by issuing a decision on the dispute at hand aims at
compliance by both disputants and at reconstitution of the disputed rule. Principals
participating in the triadic dispute resolution aim at re-confirming their commitment to the
global script and to maintaining the cooperative framework (to the contrary, resolving the
dispute dyadically through power may seriously harm or even destroy the cooperative
scheme). In this sense, "principals delegate to trustees to enhance the credibility of the
decision by distancing themselves from the decision."100
States transfer some of their political property rights to triadic mechanisms of trustees that
help them overcome the dyadic disputes the simple power cannot sufficiently solve as it may
break the indefinite cycle of prisoner's dilemma game, and enhances the credibility of
principal's commitment to the global script in the respective field, be it monetary politics,
human rights, or environmental issues. In short, this is the functional added value they gain:
enhanced credibility of their commitments for their future cooperation and mechanism that
helps them to overcome disputes that were impossible to solve within the framework of the
prisoner's dilemma game.
If such triadic mechanism is established permanently, their ruling then constitute jurisdiction
where the dispute resolution processes are triggered by one party to a dispute against the
will of the other. In this type, "office replaces delegation, that is, an initial--constitutional--
act of delegation is frozen in place, for the life of the polity. Courts are the paradigmatic form
of compulsory triadic dispute resolutions."101
It is, however, not only international credibility why states entrust trustees with the
independent power. As Giandomenico Majone noted, one of the defining characteristics of
democracy is that it is a form of government pro tempore. "The time limit inherent in the
99
Majone, 2001, p. 104.
100
Alter, 2008, p. 39.
101
Sweet, 1999, p. 149.
37
requirement of elections at regular intervals implies that the policies of the current majority
can be subverted, legitimately and without compensation, by a new majority with different
and perhaps opposing interests. [...] Public policies are always vulnerable to reneging."102
For that reason, governments turn to international enforcement when "an international
commitment effectively enforces the policy preferences of a particular government at a
particular point in time against future domestic political alternatives."103
Andrew Moravcsik
then concluded that international institutional commitments, like domestic institutional
commitments, are self-interested means of `locking in' particular preferred domestic policies
in the face of future political uncertainty.104
During the process of establishment of the ECtHR, Lord Layton, a member of the British
delegation, saw the Convention as a means of strengthening the resistance in all European
countries against insidious attempts to undermine democratic way of life. In this sense, the
Court "was to constitute a collective insurance policy against the relapse of democracies into
dictatorships."105
Therefore, there is also a domestic, national drive that inspires states to establish and then
comply with the trustees of their design. Trustees, in this sense, can influence both the
domestic and international levels of Putnam's two-board game. For Putnam interstate
relations should be seen as a bargaining on two-level game board:
"At the national level, domestic groups pursue their interests by pressuring
government to adopt favourable policies, and politicians seek power by constructing
coalitions among those groups. At the international level, national governments seek
to maximise their own ability to satisfy domestic pressures, while minimising the
adverse consequences of foreign developments. Neither of the two games can be
ignored by central decision makers, so long as their countries remain interdependent,
yet sovereign."106
102
Majone, 2001, p. 106.
103
Moravcsik, 2000, p. 220.
104
Idem, p. 226.
105
Wildhaber, 2007, p. 523.
106
Putnam, 1988, p. 434.
38
The problem with such a complex game is that moves which may be rational for one board
may seem unsuitable for the second one. Thus, moves convenient for the international level
of the game may be discarded simply for their unwanted backfire on the domestic level.
Therefore, the political decision makers do try to reconcile the domestic demands and
international imperatives simultaneously. Basically, Putnam's key concept is that of win-set,
that is, "the set of all possible international bargaining outcomes that might win majority
backing on the home front of a given player." 107
A state in this sense searches for and tests
the possible win-sets that can bring along the strongest support. For Putnam, the larger the
size of the win-set on the domestic level, the more likely the international agreement is. The
size of the win-set then depends on three factors: domestic preferences and coalitions,
domestic institutions and negotiator's strategies on the international level.108
Therefore, when discussing the trustee's ability to impact certain state's compliance or
overall behaviour, a twofold influence may be distinguished. Firstly, on the international
level, trustees by pointing to state's noncompliance may decrease its reputation and
credibility and, thus, limit its prospects of further successful and repeating cooperation with
other members of the community of states. Secondly, on the national level, by influencing
domestic win-sets may change the patterns of support for different state policies and, thus,
create pressure from within on the state to comply with the regime.
The possible interaction between domestic public and an international trustee brings me to
my third argument.
3.2.3 Domestic argument for judicialization
Having tried to explain judicialization from the systemic level of analysis, one can discuss the
bottom-up individual level while examining the very same phenomenon. In this regard,
together with ever increasing number of theorists of democracy who have broadened their
definitions to include, among many other things, the emphasis on the communicative nature
of democracy (of which courts are one of the highest manifestation), "the past two decades
107
Skak, 2005, p. 86.
108
Putnam, 1988m p. 442.
39
have seen increasing interest in extending democracy into an international system long
inhospitable to democratic projects beyond the level of the nation-state."109
Despite the disputability of Doyle's thesis of democratic peace110
and Fukuyama's lofty
proposal about the end of the history,111
one cannot fail to notice the idealist value-laden
drive returning from the furthest margins of the field from where it had to be retrieved after
its failure in the European interwar period, 1918-1939.
Somehow similarly and partly in reaction to the democratic peace thesis, some international
law scholars have begun to revamp the link between international law and democracy,
recognizing once again that "hegemonic projects [that is, universal drive for democracy in
this case,] and [universal] international law have [always] collaborated rather than excluded
each other in the past."112
Susan Marks argued that democratic governance is a human right
and "no longer can all forms of government be held equal under international law," thus,
"democratic government is the only lawful option."113
The inner link between human rights, liberal democracy and peace has constantly been
made and reiterated, especially within the European system of human rights protection
through the notion of conditionality as enshrined in the Copenhagen criteria for the
candidate countries. "[H]uman rights [...] equate the structure of the state with the structure
of freedom. To be free is... to have an appropriately organized state."114
Note the emphasis
on the word appropriately. Human rights not only uphold the notion of state, they
constantly urge one specific, liberal democratic project of the state.
Where does this drive stem from? How to understand it? It is my opinion, the dominant
position the discourse of democracy gained on the domestic national level and the logic of a
two-board game that catapulted the same discourse from the domestic on the international
level.
109
Dryzek, 2006, p.101.
110
For a persuasive demonstration that Doyle's predictions hardly correspond with observable results even
despite necessary excessive restrictions to definition of an established democracy, see, inter alia, Leblang and
Chan, 2003.
111
Fukuyama, 1992.
112
Mälksoo, 2008, p. 213.
113
Marks, 2000, p. 40.
114
Kennedy, 2004, p. 16.
40
The different theories of democratisation long ago abandoned the simple procedural
definition of democracy (provided, among other, by Huntington)115
for which it sufficed that
the government was elected by the general electorate in free, competitive elections.
Dworkin and Habermas116
both lucidly argued that for democracy more is needed than mere
procedural minimum. In their understanding, democracy was, rather, coherent scheme of
principles and procedures with a universal scope and validity. The principles included those
of human dignity and equality, the notion of procedures encapsulated fixed ways of
communicating with each other.
Dworkin bases his definition of democracy on inclusion of procedural fairness, justice, and
integrity into the necessary qualities of democracy, Habermas then adds the necessity of
discourse validation. For Habermas, democratic legitimacy is a contestable validity claim.
In order to argue my case for judicialization, let me put the emphasis on these fixed ways of
communicating. What Habermas and Dworkin had roughly in mind is that the idea of
governance itself lies in the deliberative interaction between rulers and ruled. In other
words, democratic projects are based on `culture of justification'.117
In words of Jens Steffek,
"An act of rational rule-making not only must be based on reasons; what is more, these
reasons must be also `reasonably debatable'. [...] These reasons must be open to
confirmation or disconfirmation in a justificatory discourse. [...] Reasoning or giving reasons
is the communicative process that legitimates governance."118
Courts, therefore, became the ultimate reasoning and communicative discursive space of
any democratic project and "an alternative recourse for articulating and institutionalising
political demands, demands that politicians could ignore or postpone indefinitely, but that
courts, because of the rules that govern them, could not."119
Courts, moreover, serve as
115
Huntington, 1991.
116
Dworkin, 1986, p. 176-224, and Habermas, 1979, p. 178-179.
117
Hilbink, 2007, p. 23.
118
Steffek, 2007, p. 262-263.
119
Hilbink, 2007, p. 20.
41
public forum that focuses great attention on policy-relevant statements and make public
position taking more costly for states.120
If courts are the ultimate reasoning spaces on the domestic level, how does this discourse
get translated on the international level?
As Karen J. Alter described, there is also a third party that the trustee supposedly serves and
vis--vis whom it tests its legitimacy.121
In this sense, "both the principal and the trustee are
trying to convince the third party audience that their behaviour is legitimate."122
In case of
human rights regimes, the third party is increasingly the transnational civil society.
As I already noted, together with the development of binding human rights international
norms, omitting of states' citizens outside the decision-making and legitimacy making
process seems "entirely ruled out from the realm of possibilities."123
Many of the new social
movements "are concerned with surveillance and judgment rather than with issues of
legitimacy, participation and representation."124
In this sense, the fact that citizens are
increasingly using the extra-domestic forums to bypass the state and demand the review of
national policies creates the pressure on states to further enhance the credibility of their
policies facing the third party of transnational civil society and, thus, to establish, accede to,
or comply with the ruling of the judicial trustees.
3.3 Limits of judicialization
Having analysed the defining characteristics of judicialization and three possible
explanations of its occurrence, one may obtain a feeling that judicialization changes
ultimately the nature of international politics. It is my conviction that it does influence the
system significantly, however, as every phenomenon it has its limits. It is the aim of this
subchapter to focus on the limits of judicialization.
120
Chapman, 2007, p. 157.
121
Because the trustee's reputation as an authoritative actor is so central to its professional and personal
identity and success, trustee cares greatly about maintaining its authority and may even choose a political
sanction over an action that would be seen as compromising its identity as a moral, rational-legal, and/or
expert decision-maker. Alter, 2008, p. 39.
122
Alter, 2008, p. 40.
123
Zolberg, 1996, p. 57.
124
Randeira, 2007, p. 39.
42
As I already mentioned in the chapter on methodology, judicialization is not and has never
been self-fulfilling - there has always been a need for an executive branch to actually
discharge the decision of judiciary.
Discussing the judicialization of world politics, limits of the process must also be born in
mind. Many have argued that the power arrow goes rather in the other way, that is, from
states to courts, not the other way round. For some scholars, courts became not new actors
in the system, rather only new forums, or new agents directly used by states. In other words,
some have argued not only for judicialization of the world politics, but also about
politicization of world courts. John Ferejohn, among many others, moderately assumed that
due to inherently political nature of legislation, it is "logical that as courts assume more
legislative-like activities [...] that politics will follow."125
The fact that judges' behaviour is political and self-motivated has been widely argued.126
For
some, it is self-evident as "judicial decisions are not and can never be purely declaratory of
the law and, therefore they cannot result in pure enunciation of the legislator's will."127
While judges are disinterested decision-makers in the sense that they do not have a personal
stake in the outcome of the case, as Martin Shapiro shows, judges are not actually neutral or
purely legal (as opposed to political) actors.
Former president of the Court, Luzius Wildhaber, acknowledged the point very frankly: "Our
Court is to a certain extent a law-making body. How could it be otherwise? How is it possible
to give shape to Convention guarantees such as prohibition of torture, equality of arms,
freedom of expression or private and family life, if ­ like Montesquieu ­ you see in the judge
only the mouthpiece of the law?"128
For Shapiro, the noble lie of judicial neutrality is a necessary fiction inherent to the `logic of
triadic dispute resolution', developed and reinforced by judges and the power elite to
convince the `loser' in the case that they had a fair chance at winning, and that the decision
125
Ferejohn, 2003, p. 44.
126
Some newer examples include Guarnieri and Pederzoli, 2002; Hilbink, 2007 or Hirschl, 2007.
127
Guarnieri and Pederzoli, 2002, p. 5.
128
Wildhaber, 2007, p. 525.
43
was not subjective or `political'.129
Inherent to this noble lie is the notion that the `rule of
law' serves the larger social interest.
Sweet in his model prepared for political considerations of judges:130
A.1-------------------------------[A.2-----------------------------------B.2]--------------------------------------B.1
Position A.1 represents the substantive outcome desired by disputant A, and position B.1
represents the substantive outcome preferred by disputant B. Outcomes situated between
positions A.1 and A.2 (or substitute for B.1-B.2 for B) represents outcomes that the dispute
resolver believes will not provoke A to refuse compliance. The space between B.2 and A.2
constitutes the dispute resolver's assessment of the range of the decision making outcomes
that will lead to the resolution of the dispute, to compliance, and (much the same thing) to
the re-establishment of a disputed rule."131
For some disputes, the positions A and B are
more polarized, and no B.2-A.2 space exists. In such cases, the decision and its legitimacy
rest with the persuasiveness of normative justifications provided by the court.
In similar vein of thought, as Clifford J. Carrubba argued, "governments obey adverse rulings
if and only if they are caught defecting when compliance would have been low cost.
[Similarly,] the court rules against a government if and only if it observes a low cost
defection and, when it does rule against that government, the court imposes a judgment
that will be obeyed. [...] Governments always defect when compliance would have been high
cost." 132
As a result, because judges want compliance, they are often willing to work with litigants
towards the goal of eventual voluntary compliance. To be clear, non-compliance is not a
`sanction' states threaten in order to influence international judges. All courts seek voluntary
compliance, and all judges make compromises towards this end.133
Therefore, as Carrubba`s analysis showed, "the court generally, but not always, facilitates
cooperation. The court is most efficacious when cooperation would otherwise be
129
Shapiro, 1981, ch. 1.
130
Sweet, 2000, p. 16.
131
Idem.
132
Carrubba, 2005, p. 676.
133
Shapiro, 1981, p. 5-8.
44
unsustainable, but it is also generally beneficial even when cooperation could be sustained
without a court. The only time a court actually reduces the benefit of participating in the
regulatory regime occurs when enforcement problems (i.e., the incentive to defect from the
regime) are particularly minimal."134
Also, judicialization is not and has never been self-fulfilling - there has always been a need
for an executive branch to actually discharge the decision of judiciary. It cannot, therefore,
be an argument against judicialization of politics to say that the Committee of Ministers as a
political executive agent has the upper hand over the Court as a judicial agent as the former
theoretically may decide not to implement latter's ruling as the very same can be said of
domestic systems where police (agent of executive branch) must arrest, detain, confiscate,
or force the convicted person and may, similarly, in theory reject to do so. As Karen J. Alter
notes, Courts "are subject to the sorts of legitimacy and rhetorical pressures of all political
decision-makers. To the extent that [courts] must rely on others to execute their decisions,
they must also worry about maintaining the support of those who implement their
decisions."135
Judicialization cannot be seen as a new form government, as a `juristocracy' (as others have
argued)136
but rather as a part of new governance embedded in wider institutional
framework. I am neither arguing, not proposing that judges will govern the world
independently on politics, my aim is to examine the system where judges are mere part of
that governance and where they contribute to processes of mutual accommodation
between different actors.
In order to sum up, I argued that judicialization is a special feature of highly legalized
international regimes that emanates from, firstly, normative changes in the international
system, secondly, from their functional ability to enhance credibility of state's pledges, and,
thirdly, from the inherent link between democracy and the need to reason for and justify
one's public decisions. Later, I explored the limits of the phenomena and tried to prove that
despite its limits, international courts do enhance difficult cooperation.
134
Carrubba, 2005, p. 680.
135
Alter, 2008, p. 35.
136
Hirschl, 2007.
45
Before I turn to discuss particular characteristics of the Council of Europe regime, let me
finish with a famous argument of H.L.A Hart:
"A society is something in process ­ in process of becoming. It has always within it [...]
seeds of dissension. And it has also within it forces making for moderation and mutual
accommodation. The question ­ the relevant question ­ is whether the courts have a
significant contribution to make in pushing [...] society in directions of moderation not
by themselves; of course they can't save us by themselves; but in combination
with other institutions. Once the question is put that way, the answer, it seems to me,
has to be yes."137
137
Quoted from Hilbink, 2007, p. 22.
46
4. Tools available to the judicial regime of CoE
Having discussed the characteristics of and reasons for occurrence of the judicialization in
the world politics, let me now turn to discussion of one particular judicial regime, that is, the
regime of the Council of Europe. The aim of the chapter is threefold. Firstly, I focus on the
characteristics of the regime itself describing the tools at regime's disposals. Having
described the regime, its bodies, and ways of cooperating with its members, I will, secondly,
turn to the territorial, temporal, and personal applicability of the Convention during an
armed conflict. What are the measures differing from the Geneva Conventions that the
Convention prescribes for its members while they engage in conflicts? What is permissible
and what is deemed unlawful?
Thirdly, I examine the question of ECtHR's relation to the legal framework that is usually
applied in the situations of armed conflict, that is, its relation to the international
humanitarian law. The discussion of the relation, while falling outside the field of
international relations, is necessary pre-requisite for discussion of Court's impact on the
policies of its members. If one wants to assess the added value of the new regime one also
needs to see its relation to other existing regimes. Throughout the chapter, I also sketch the
general tendency the Court has while deciding on cases arising from armed conflicts.
Before going any further, one has to notice that ECtHR, however unique in other regards, is
far from being the only international court pronouncing itself on the situations of armed
conflict. Not only has the settlement of several of the fiercest conflicts raging in the 1990s
encapsulated an ad hoc international judicial settlement,138
permanent international judicial
bodies, both global and regional, have similarly pronounced themselves on variety of armed
conflict related topics ranging from usage of certain tactics and weapons, commander
responsibility, genocide, or the settlement of armed conflicts.139
In this sense, war has been
138
Ad hoc tribunals were created in the aftermath of armed conflicts in former, inter alia, Yugoslavia, Rwanda,
Sierra Leone, or Timor-Leste.
139
For judgments on the global level, see , among others, ICJ, 26 November 1984, on guerrilla warfare and
rights of protection of citizens abroad in Nicaragua, ICJ, 09 July 2004, on legality of using a separation security
wall in the Occupied Palestinian Territories, ICJ, 08 July 1996, for its advisory opinion on use or threat of using
of nuclear weapons, or ICJ's attempt to judicial settlement of armed conflict in Democratic Republic of Congo,
ICJ, 19 December 2005.
47
legalized at least since Geneva and Hague conventions of the 19th century and judicialized to
some extent at least since the Nuremberg tribunals.
What is unique about the ECtHR is its mandatory nature as no member state of the CoE can
escape its scrutiny. Other tribunal bodies need either their jurisprudence to be accepted on
case-by-case basis (ICJ), adherence to them is not a mandatory condition for prospective
members of the regime (ICC, Inter-American Comm. and Court for Human Rights), lack
credible follow-up mechanisms, or are established on an ad-hoc basis (ICTY, ICTR) with
inherent victor-prone approach.140
ECtHR, in this regard, represents a unique inescapable
monitoring and adjudicating body that any of the 800 million of CoE members' citizens can
appeal to.
4.1 Organisational structure of the regime
Without going into much detail, let me state the basic facts about the analysed regime. The
CoE is an association of European states, currently forty-seven,141
established in 1949 to
promote human rights and democratic principles in Europe. To this end, the regime is
centred around the European Convention on Human Rights (ECHR) ratified in 1950 which
established the sum of rights to be protected and created an enforcement mechanism to
oversee such protection. The Convention together with its fourteen additional protocols (out
of which twelve are ratified) cover wide range of rights from rights to life, to fair trial,
freedom of expression, assembly, privacy and family life, right not to be subjected to torture,
slavery, or forced labour, progressively the Convention established a right to property and
outlawed the death penalty.
However, as Ian McHarg has precisely explained, "[t]he rights conferred by the ECHR are not
absolute. All but four [...] may be restricted in specified circumstances. First, certain rights
are subject to what may be termed `express definitional restrictions', limiting either their
content, the circumstances in which they apply, or the persons who are entitled to them.
Second, according to Article 15, all except the absolute rights may be suspended `in time of
140
Time limits put on the jurisprudence of the ICTR so to exclude the Tutsi reprisals after the genocide may
serve as good examples of this approach.
141
Belarus is effectively the only European state missing today in the Council.
48
war or other public emergency threatening the life of the nation' provided this is `strictly
required by the exigencies of the situation'."142
In this sense, the Convention is a living
instrument with constantly evolving sum of protected rights and renegotiated space
between the individual rights and collective public space. The Court has been of paramount
importance to define the scope of each right, redefine it if necessary, and assess the
limitations the state can use in order to preserve the public order.
Nowadays, every state wishing to accede to the Council should at the same time sign and
pledge to ratify speedily the ECHR. "Hence, membership of the CoE and acceptance of its
human rights protection system have, in practice, become one and the same."143
The regime's machinery for the protection of the rights enshrined in the ECHR is currently
based primarily on two institutions: European Court of Human Rights (ECtHR), an
international court that delivers binding judgments on applications from individuals and
states alleging violations of the ECHR, and the Committee of Ministers, the main political
body of the Council, to which the ECHR assigns the specific and precise responsibility of
supervising the execution of the court's judgments. The Council also established a
Parliamentary Assembly, however, its role remain rather advisory without significant impact
on the executions of judgments of the Court.
The Court got fully operational with the adoption of additional Protocol No. 11 to the ECHR,
on May 11, 1994, which was a "bold attempt to modernise the old system [as it]
streamlined, fully judicialised and, with full time judges permanently residing in Strasbourg,
professionalized the Strasbourg system of human rights protection."144
Protocol No. 11 also
abolished the optional character of the right of individual petition. It was the drafters' main
aim to address case influx by simplifying Court structure; transforming the ECHR into a single
full-time court, and granting individuals the "permanent right to bring their cases directly
before the Court."145
142
McHarg, 1999, p. 671.
143
Paraskeva, 2007, p. 193.
144
Idem, p. 201.
145
Hioureas, 2006, p. 723.
49
In other words, since the said protocol, any person within the jurisdiction of any of the
Council's member states may lodge an individual complaint against the state and its agents
for infringement against his or hers rights.146
Therefore, while it cannot invalidate national
laws or domestic judgments, all forty-seven member states of the Council of Europe are
bound to accept the judgments of the Court.147
As Keller and Sweet bluntly observed, "[i]n
the post-Protocol no. 11 world, the Court functions as an authoritative oracle of rights
jurisprudence for all of Europe; it supervises State compliance with the ECHR, whose
standards are continuously rising; and it seeks general solutions to general problems with
which it is confronted. [...] States are routinely required to reform their internal law and
practices in response to findings of violation by the Court, not simply to provide
compensation to individual victims."148
Currently, the Court has forty-seven judges, one for each member state. The Court is divided
into four Sections of judges, each of which "shall be geographically and gender balanced and
shall reflect the different legal systems among the Contracting Parties".149
The Sections are
then divided into Committees of three and Chambers of seven judges.150
Committees can
only determine admissibility of a case, such decision must be unanimous. Within three
months of the Chamber's decision, applicants or Contracting States can request that the
Grand Chamber, composed of seventeen judges, review the case. In delivering its judgment
on merits, the Court, having found a breach of any of the articles, may award the litigant the
just satisfaction, most frequently in form of monetary reparation to be paid by the state in
breach, and, additionally, the Court may also pronounce itself on individual and general
measures aimed at restoring the rights of the litigants and preventing future similar
violations. The other way round, states, having been found guilty, must take measures in
146
There are only three general lifting clauses: Applicant must have exhausted all domestic remedies before
applying to the ECtHR, he or she must do so within six months of the exhaustion, and the case must involve
infringement of one of the rights protected by the ECHR. In cases in which the applicant in effect asks for a
decision on the compatibility of an administrative practice with a norm of the Convention, the requirement
that all local remedies are exhausted does not apply.
147
ECHR, Art. 46.
148
Keller and Sweet, 2008, p. 703.
149
ECtHR, July 2009, rule 25.
150
Furthermore, a national judge (ad hoc judge) from the state against whom the applicant has filed is
permitted to sit on the Committee or Chamber deciding the case.
50
favour of the applicants to put an end to violations and, as far as possible, erase their
consequences, and must take the measures needed to prevent new, similar violations. The
individual restorative measures involve, for instance, "the re-opening of unfair proceedings,
the destruction of information gathered in breach of the right to privacy or the revocation of
a deportation order issued despite the risk of inhumane treatment in the country of
destination."151
The general measure involve, for instance, review of legislation, rules and
regulations or judicial practice.
Summarising states' obligation to undertake individual and general measures, the Grand
Chamber of the Court stated that "a judgment in which the Court finds a breach imposes on
the respondent state a legal obligation not just to pay those concerned the sums awarded by
way of just satisfaction, but also to choose, subject to supervision by the Committee of
Ministers, the general and/or, if appropriate, individual measures to be adopted in their
domestic legal order to put an end to the violation found by the Court and to redress so far
as possible the effects.'152
However, there is no predefined list of possible general measures
and the Committee of Ministers determines the general measures which are necessary after
an examination of the relevant case.
In order to overcome the retrospective nature of Court's rulings and to keep the Court able
to act on emergency matters, the ECtHR can employ its rules 39 and 40 and take on board a
case in need of urgent resolution as a matter of priority, issue preliminary interim measures
and urgently notify the respective states. These measures were used, for instance, while
requesting the non-refoulement of people to countries where they would face danger of
being killed, tortured, or prosecuted. One example is the case where the ECtHR requested
Georgia not to extradite several Chechen men back to Russia prior to the further decision by
the ECtHR and prior to Russia had put in place guarantees that these individuals would be
treated properly.153
Once the Court reaches the final judgment, it transmits it to the Committee of Ministers
according to the Article 46(2) of the ECHR. The latter then invites the respondent state to
151
Department for the Execution of Judgments of the ECtHR (CoE), 2006.
152
ECtHR, Scozzari and Giunta v. Italy, para. 249.
153
ECtHR, Shamayev and Twelve others v. Georgia and Russia.
51
inform it of the steps taken to pay the amounts awarded by the Court in respect of just
satisfaction and, where appropriate, of the individual and general measures. Once it has
received this information, the Committee establishes whether the state concerned has taken
all the necessary measures to abide by the judgment. If that is the case, the Committee
adopts a resolution concluding that its functions have been exercised.154
In order to further enhance the enforcement process and states' compliance with the ECHR
regime, the Committee has adopted several recommendations obliging states to
systematically verify the compatibility of draft laws with the Convention, including
compatibility of existing laws and administrative practice,155
and ascertain that domestic
remedies exist for anyone with an arguable complaint of a violation of the Convention.156
Similarly, the Committee requested the Court "as far as possible, to identify [...] what it
considers to be an underlying systemic problem and the source of this problem.157
In this
sense, the Court moves beyond the simple individual justice and functions as an almost
constitutional court proclaiming itself on broad range of policy issues.
However, the described system proved to be insufficient as the dramatic increase in the
number of members during 1990s, from 23 to current 47, led to elevating the number of
potential applicants to 800 million. Moreover, the backlog of cases is partially due not only
to enlargement in number of states, but also in number of protected rights that rose with
adoption of protocols 1, 4, 6, 7, 12, and 13.158
For that reason, the Council prepared a new additional protocol, No. 14, aimed at improving
the situation when the backlog of cases reaches ninety thousand and the court becomes, as
often stated, victim of its own success. In this sense, "the reforms contained in Protocol No.
14 are primarily aimed at tackling two main challenges which ECtHR is facing: firstly, the
burden of screening out the huge mass of unmeritorious applications and, secondly, the
154
See Department for the Execution of Judgments of the ECtHR (CoE), 2006.
155
Committee of Ministers (CoE), 12 May 2004a.
156
Committee of Ministers (CoE), 12 May 2004b.
157
Committee of Ministers (CoE), 12 May 2004c.
158
Hioureas, 2006, p. 723.
52
burden of taking to judgment and assessing just satisfaction in repetitive and routine
applications which are well-founded."159
More specifically, Protocol No. 14, once it enters into force, will improve the Court's case
filtering process by (1) establishing single-judge formations as opposed to three-judge
panels, (2) expediting the process for reviewing "manifestly well-founded" repetitive cases
by enabling a panel of three judges to review such cases rather than the Chamber of seven
judges or the Grand Chamber of seventeen judges, and (3) adding a new admissibility
criterion for applications filed by individuals to raise the bar for admissibility. Additionally,
the Protocol will (4) alter judges' terms of office (5) change the procedure for appointing ad
hoc judges, (6) expressly give the Commissioner for Human Rights' a role in the Convention,
and (7) enable the European Union (EU) to become a party to the Convention.160
The Protocol would also empower the Committee of Ministers to initiate proceedings in the
Court against states who do not fulfil the obligations arising from judgements of the Court.
As Jennifer W. Reiss observed, "while this change does not affect the efficiency of the Court
per se, it is intended to supply the Committee of Ministers with additional means of applying
political pressure."161
Protocol was adopted by the Committee of Ministers on 12 May 2004, and then opened to
signature and ratification. Today, only Russia has not ratified the protocol and effectively
blocks its entering into force.
The importance of the proposed Protocol is threefold.162
Firstly, the Protocol would
significantly increase the Court's ability to resolve cases promptly. Similarly, with the
Protocol's entering into the force, the Committee of Ministers would gain new tools how to
enforce the judgments; thus, the potential impact of the Court on state's behaviour would
similarly increase.
159
Paraskeva, 2007, p. 212.
160
See Hioureas, 2006, p. 719-720.
161
Reiss, 2009, p. 299.
162
I am consciously selective in discussion of the Protocol for its assessment lies outside the scope of the
presented thesis. For the general discussion of the Protocol, see, inter alia, Altiparmak, 2009, Hioureas, 2006;
Altiparmak, 2009, Starace, 2006, Paraskeva, 2007, Reiss, 2009, or Wildhaber, 2007.
53
The discussion of the possible further enhancement of the regime's action readiness
includes creation of the post of public prosecutor at the ECtHR who would bring the cases to
the Court's attention on victims' behalf, possibility of issuing preliminary rulings similar to
European Court of Justice, and increased awarding of non-monetary remedies.163
However,
all these options are to be discussed in future rounds of political negotiations.
Secondly, the current situation of the Court proves an interesting point to the agent-trustee
theory. The problem is not in Principals trying to deter or punish the Trustee by renegotiating
its contract. To the surprising contrary, the Trustee is punished by Principal
blocking the needed re-negotiation. Thirdly, it is symptomatic that it is Russia who, as a last
state, blocks Protocol's entering into force. However, I shall discuss this last reason
separately in the next chapter.164
The brief discussion of the proposed Protocol No.14 showed that the Court's impact on its
members' policies is likely to increase in the future and all CoE member states excluding
Russia are ready to support a stronger
In order to conclude, let me recall Ian Hurd's description of three means of social control,
that is, coercion, self-interest, and legitimacy. As may be obvious, the Committee possesses
hardly any coercive enforcement possibilities aside invoking the paragraph 8 of the Statute
of the CoE providing for the suspension or expulsion of a state from the Council. Similarly,
explaining the compliance with Court's ruling based on self-interest is similarly hard for the
non-reciprocal nature of the regime. Neoliberal explanation could, while explaining such
compliance, rely only on the notion of reputation: States, in their view, would comply with
ECtHR with the view of enhancing their reputation in sake of prospective games within the
regime. However, while such explanation may be plausible for countries that seek to join the
EU, regime distinct from the one of the CoE which, however, set the membership in the
Council and adherence to the ECHR as a necessary pre-requisite for admitting new members;
163
See Altiparmak, 2009, p. 15-19.
164
It should be, however, noted that the Committee of Ministers on 12 May 2009, trying to overcome the
stalemate around the original Protocol No. 14 and following a call from PACE, adopted Protocol No. 14bis that
institutes some of the efficiency measures within Protocol No. 14 and applies only to those states adopting it.
There is, nevertheless, a danger of creating a two-speed track within the Council.
54
it can hardly explain the compliance for countries that either have already joined the EU, or
that do not seek the membership. And yet, both member states of the Union and countries
outside do comply with the Court.
In other words, there are hardly any coercive or attracting measures the Committee can
apply while seeking enforcement of Court's judgments and, thus, the enforcement is
primarily based on international legitimacy. States do seek to enhance their standing within
the community of regime members and maintain their perceived role. It is exactly the nature
of human rights as the recently strongest legitimising global discourse that attracts states to
seek legitimacy through regimes such as Council of Europe.
Following the logic of Putnam's two-board game, on the international level, states seek to
legitimise their role and discursive standing within the international community, while, on
the domestic level, citizens have a means to challenge state's policies on transnational level.
The dynamism of citizens bypassing the state structure in order to challenge state's policies
and of state trying to enhance its reception in the community then allows the enforcement
mechanisms of the CoE to be effective.
Only within such setting can the enforcement be effective despite the lack of coercive or
attracting incentives; only within such setting the Council together with the Court can force
states into compliance.
4.2 ECHR in situation of armed conflict
Having explored the general nature of the regime let me now turn to address several
questions how the ECHR works in the specific circumstances of an armed conflict. My aim is
to examine the territorial, temporal, and substantive limitations the Court faces while
applying the ECHR in such situations. Moreover, the discussion over the applicability and
reach of human rights protection in the situations armed conflict re-opened in connection
with the invasions to Afghanistan and Iraq. Scholars started discussing anew whether human
rights law applies in the time of peace, leaving the protection in the time of war exclusively
to the humanitarian law, and whether states are obliged to protect human rights outside
their territories. The ECtHR, in this sense, represents a unique laboratory: Court has to
55
adjudicate upon issues that other institutions deal with only in their advisory capacity, and
is, therefore, put under extreme pressure.
The pressure rises as soon as one realises that the Court was not deemed to deal extensively
with cases arising from gross and large-scale human rights violations, the Court, on the
contrary, was intended as the fine balancer that tunes the small imbalances in the protection
systems of its members.
In other words, despite the fact that "[f]orced disappearances, extrajudicial killings, torture,
bombing of civilians, [and]evacuations of villages have become ordinary business for the
Court,"165
the Convention was never intended to be used in the situations of grave and
systematic human rights abuses, such as those arising from a conflict situation, and indeed
some have seen the enlargement of the Council in 1990s that brought these situations in as
"an unfortunate transformation from the `club of established democracies' to a simple
`training centre' for countries which, in some instances, were clearly incapable of respecting
the organisation's founding principles."166
There is a danger that the Court will `choke' on the huge number of cases coming from
conflict zones ­ the ECtHR has so far received more than three thousand applications
concerning the conflict between Georgia and Russia over South Ossetia and has to deal with
each one of them individually. Similarly, some fear that the excessive focus of the Court on
cases of extrajudicial killings, disappearances, torture, or other abuse will lead to
desensitization of the Court towards cases of lower intensity.
The question, thus, arises whether the Court disposes with the capacity necessary to decide
upon situations of large-scale violations, and what demands should be put on parties to the
ECHR while protecting human rights during the armed conflict.
And yet, up to recently, ECtHR has analysed the conduct of hostilities in three conflicts --
between the UK and IRA, between Turkey and the PKK (including assessment of Turkish
incursions into areas populated by Kurds in Iraq and Iran), and between Russia and the
separatists in Chechnya. The Court was also asked, but so far refused to pronounce itself on
165
Altiparmak, 2009, p. 6
166
Paraskeva, 2007, p. 194.
56
the NATO campaign in Kosovo. At the moment, hundreds of applications from South Ossetia,
following the conflict between Russia and Georgia, are being lodged with the ECtHR.
Following the stated, one has to ask then what the rules are under which the Court assesses
these situations? More precisely, one needs to ask when, where, and to what extent the
Convention applies when it comes to the situation of an armed conflict.
In this sense, the Convention clearly states, in its Article 1, that all parties "shall secure to
everyone within their jurisdiction the rights and freedoms defined in [...] this Convention".
Two points shall be made in this regard.
Firstly, everyone without exception is protected by the Convention. Applying this point to
the situation of an armed conflict, it is clear the ECHR does not offer any distinction between
different categories of persons the way international humanitarian law does.167
In other
words, "the individual within a state cannot be treated as an enemy. He or she cannot be
pursued and shot where there is a reasonable opportunity to arrest him or her. The
individual cannot be treated as an enemy within the territory but always as an individual in
accordance with appropriate rules of the criminal justice system."168
Secondly, the question of jurisdiction shall be addressed. The simplest is to assert that
jurisdiction equals the territory of the concerned state. It is indeed Court's understanding
that the words `within their jurisdiction' in Article 1 of the Convention "must be understood
to mean that a State's jurisdictional competence is primarily territorial, but also that
jurisdiction is presumed to be exercised normally throughout the State's territory."169
Thus,
the main area of ECHR applicability is its members' territories, no part of which can be
excluded from the protective regime.170
In short, the Convention is a multi-lateral treaty
operating "in an essentially regional context and notably in the legal space (espace juridique)
of the Contracting States."171
Only few exceptions, such as diplomatic and consular matters
167
The principle of distinction between combatants and civilians is provided for in Articles 48 and 51(2) of
Additional Protocol I, and Article 13(2) of Additional Protocol II to the Geneva Conventions of 1949.a
168
Guild, 2007, p. 38.
169
ECtHR, Ilascu v Moldova and Russia, para 312, cross-references omitted.
170
ECHR prohibits territorial limitations in its articles 25 and 46.
171
ECtHR, Issa v Turkey, para 80.
57
have been accepted by the Court as exercises of jurisdiction unrelated to any notion of
territory.172
Such understanding would be sufficient for dealing with conflicts in North Ireland, in eastern
Turkey, or in Chechnya. However, might the full stop been done here, situations of armed
conflict outside the respective members' territory would fall outside the ECHR regime and,
therefore, Convention's potential impact on these situations would have been severely
limited. Just to name a few, the situations in Transdniestria, North Cyprus, South Ossetia,
Abkhazia, or Kosovo would be left out of the ECHR protection, similarly, the Court would
never be able to pronounce itself on its members' conduct in international armed conflicts
such as in Afghanistan or Iraq.
For these reasons, while adjudicating on the extraterritorial application of the Convection,
the Court set two conditions necessary for such application: Firstly, the Court extended the
notion of effective control over occupied territory. The Court, thus, decided not whether
certain territory is under formal occupation of the member state, but whether the respective
state exercises the effective control directly or through a subordinate local administration. In
case of North Cyprus or Transdniestria the Court concluded that the large presence of
Turkish and Russian armies respectively constituted exactly such control.
The Court, in fact, has rejected the possibility that individuals within the European space
could find themselves without a remedy in respect of human rights abuses,173
and accepted
that in exceptional circumstances "territorial jurisdiction extends to any area which, at the
time of the alleged violation, is under the overall control of the State concerned."174
In other
words, states' responsibility "may be engaged where, as consequence of military action ­
172
Kirchner, 2003, p. 19.
173
The Court stated that with "regard to the [Cyprian] Government's continuing inability to exercise [its]
obligations in northern Cyprus, any other finding would result in a regrettable vacuum in the system of humanrights
protection in the territory in question by removing from individuals there the benefit of the Convention's
fundamental safeguards and their right to call a High Contracting Party to account for violation of their rights in
proceedings before the Court." ECtHR, Turkey v. Cyprus, para 78.
174
ECtHR, Assanidze v Georgia, para 138, cross-references omitted.
58
whether lawful or unlawful ­ that state in practice exercises effective control of an area
situated outside its national territory."175
Unfortunately, the Court has expanded this understanding in a somehow confusing way. The
Court, up to now, failed to clearly set what constitutes the effective control and under which
circumstances the legal space of ECHR applicability can be extended over territories outside
the CoE. While it had refused that NATO countries engaged in the Kosovo campaign
exercised an effective control over any part of the Serbian territory, 176
it acknowledged that
Turkish raids into Kurdish territories in Iraq and Iran could have established such control
even if only for couple hours or days (the Court however had to dismiss these cases for lack
of evidence to establish the accountability of Turkish forces for the occurred killings). 177
Similarly, while deciding the case of Hussain v Albania, Bulgaria and others, the Court did not
dismiss the case for impermissible extension of the espace juridique, but for mere lack of
evidence to prove the direct involvement of the European forces when all evidence
indicated involvement of US forces only.
Therefore, as one can see, the protective regime of the ECHR covers primarily the territories
of its members, however, in exceptional and well defined cases, where "the acts of
Contracting States performed outside their territory, or which produce effects there, may
amount to exercise by them of their jurisdiction within the meaning of Article 1 of the
Convention." 178
The Court, however, needs to set clearer thresholds and conditions of
applicability of both prerequisites. Opaque nature of both of these conditions led,
incidentally, to somewhat confusing results of cases before British courts while deciding on
cases from Iraq.
The Court has not yet pronounced itself on situations arising from conflicts in either Iraq, or
Afghanistan. However, Parliamentary Assembly of the Council already expressed its concern
175
ECtHR, Issa v Turkey, para 69.
176
ECtHR, Banković and others v Belgium and others, para 71.
177
ECtHR, Issa v. Turkey, para. 68. In this case, the ECtHR agreed that the incursion of Turkish forces into Iraqi
Kurdistan may have constituted such temporary effective control. For similar claim, this time concerning
alleged torture after Turkish incursion over Iranian border, see ECtHR, Pad and others v Turkey. Both cases
were, in the end, rejected for lack of evidence.
178
ECtHR, Ilascu v Moldova and Russia, para 314, cross-references omitted.
59
about those situations "where member states, as a part of the larger international
community, engage in a process of reconstruction following an armed conflict,"179
and
courts in the UK, while acting in the case of Al Skeini concerning Iraqi civilians who were
tortured, in some cases to death, and killed during the occupation of Iraq, based some of its
argumentation on the ECHR. Most notably, the British High Court of Justice agreed with the
ECtHR doctrine of the effective over a territory when it found that "once jurisdiction is
established, the procedural duty to investigate is fully applicable even in the context of a
military occupation".180
The High Court of Justice, effectively, agreed that state responsibilities under the ECHR can
translate into the context of the Iraqi and Afghan conflicts, especially where European
countries were, in effect, occupying certain areas. As Phillip Leach concluded, the ECHR
could be applicable to the troops in Iraq in 2003 and 2004,181
that is, in years when troops of
European countries assumed some governmental functions on Iraqi territory. However, no
such case has yet been decided by the ECtHR.
Answering the question of temporal limitation is the easiest as there is simply no time when
human rights treaty cease completely to apply. Human rights do not see armed conflict as
creating any exception to its applicability. The International Court of Justice authoritatively
stated that "the protection offered by human rights conventions does not cease in case of
armed conflict."182
As the Elspeth Guild put it "[n]o exception to states' human rights
obligations come into existence by virtue of armed conflict alone, at least not on the face of
human rights instruments."183
In words of the ECtHR, "neither the prevalence of violent
armed clashes, nor the high incidence of fatalities can displace the obligation under the [the
right to life].184
In words of yet another scholar, "human rights law remains unchanged under
all circumstances." 185
179
PACE, 23 June 2003.
180
Krieger, 2006, p. 284.
181
Leach, 2005.
182
ICJ, 09 July 2004.
183
Guild, 2007, p. 34.
184
ECtHR, Kaya v. Turkey, para 91.
185
Krieger, 2006, p. 279.
60
However, such narrow application would hardly fit the reality of an armed conflict. For these
reason, the ECHR allows states to derogate from all but four rights in time of "war or other
public emergency threatening the life of the nation",186
the state concerned only must
declare such state formally and keep the Council informed about the concrete derogations
and provisions.
Concerning the right to life, the ECHR permits derogation only in respect of deaths resulting
from lawful acts of war, "so long as it is `[i]n time of war or other public emergency
threatening the life of the nation', the measures leading to such deaths are `strictly required
by the exigencies of the situation', and the state has formally availed itself of this right of
derogation."187
However, no derogation from right to life has ever been made. Russia,
Turkey, and the United Kingdom have all defended their conduct in internal armed conflicts
within the standard functioning of the Convention, which permits recourse to lethal force
only when absolutely necessary and in defence of any person from unlawful violence.188
United Kingdom, in connection to Northern Ireland, derogated from the Articles 5 (ensuring
the right to personal liberty) and 6 (right to due process) in order to be able to detain the
terrorist suspects for extended periods of time and subject them to special rules outside the
usual British system. Similarly, Turkey had derogated from certain provisions of the ECHR in
regard to Eastern provinces. However, majority of cases revolved around torture - against
which no derogation is permissible - and unlawful killings, therefore, the Court was allowed
to assess the situation.
In sum, the protective regime of ECHR protects all individuals within member states'
territory or area under their effective control against violations of one's rights committed by
these states or their agents, as well as against their omission to protect one's rights from
being violated by third parties. Such protection applies in all times, including the time of
armed conflict, unless formal derogation from certain provisions was made. Let me now turn
to briefly discuss the relationship between the regimes of ECHR and of Geneva Conventions.
186
ECHR, Article 15(1).
187
Abresch, 2005, p. 745.
188
ECHR, Article 2(2)(a).
61
4.3 Relation between ECtHR and Geneva Conventions
Having discussed the organisational tools the regime possess and the possible temporal,
personal, and territorial limitations of the Convention during the situations of armed conflict
let me now address the substantive relationship between the regimes of ECHR and of
Geneva Conventions.
As I already mentioned, ECHR in its Article 15 allows states to derogate from almost all
provisions in time of "war or other public emergency threatening the life of the nation" and
broadens the situation in which state can lawfully deprive an individual of his or hers life as
to include "deaths resulting from lawful acts of war."189
The Convention, however, does not
specify what these lawful acts encapsulate and how they change the scope of the right to
life. This brings along first main problem. The Convention has nothing to say about the jus ad
bellum, that is, about the right of a state to engage in an armed conflict. It cannot distinguish
a lawful from an unlawful conflict; it does not operate with notions of liberation, occupation,
self-defence, or self-determination.
In order to assess the legality of a certain course under the ECHR during an armed conflict,
Article 15 has traditionally been understood as a hook allowing humanitarian law to come
into the picture190
as a lex specialis, that is, set of laws that further specify the general rules
of the ECHR. In this regard, "special norm can be seen as application of the general law in
specific circumstances. [...] In such a case, the specific provision is still related to the general
norm and must be interpreted in the light of it."191
Such understanding of the role of international humanitarian law was indeed confirmed by
the International Court of Justice in one of its advisory opinion:
"In principle, the right not arbitrarily to be deprived of one's life applies also in
hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be
189
ECHR, Article 15(2).
190
Such reading is allowed especially when read in conjunction with Article 31 of Vienna Convention on Law of
Treaties (VCLT) that states that provisions of any treaty should be read with the view not only to the wording,
but also to context and complementary agreements and practices that are relevant and applicable to the
respective provision. Therefore, if Article 15 of ECHR speaks of lawful acts of war without further specifications,
the Article 31 of VCLT allows the humanitarian law to be read into the former article.
191
Krieger, 2006, p. 269-270.
62
determined by the applicable lex specialis, namely, the law applicable in armed conflict
which is designed to regulate the conduct of hostilities. Thus whether a particular loss
of life, through the use of a certain weapon in warfare, is to be considered [unlawful],
can [...] not [be] deduced from the terms of the Covenant itself."192
However, there is a recurrent conviction (repeated despite opinion of several human rights
institutions, including the International Court of Justice or UN Committee for Human Rights)
that the divisive line between application of human rights law and humanitarian law is the
situation of war and peace. Disregarding the opacity of such line, many argued that latter
should always take precedence to the former for its better grasp of realities of the war. On
the other hand, human rights law may prove better for protection of victims of the armed
conflict: While allowing states to derogate from many of its provisions and, thus, to maintain
needed margin of appreciation within the conflict, it still retains detailed, strict, and nonderogable
principles that states need to follow and for whose violations they are
accountable.
The Court has, however, for the time being always dodged the question of relations between
humanitarian and human rights law. In case of Chechnya, this was allowed, among other
things, by the fact that Russia never proclaimed any state of emergency as stipulated in the
Article 15 of ECHR. Some scholars questioned whether the result of some cases would have
been different should the Court have applied strictly the humanitarian law.
Personally, I disagree. Indiscriminate bombardment of a village where couple dozens of
enemy belligerents hide, or attack by 12 air-to-land missiles on a civilian convoy could not
have been justified even under the provisions of the humanitarian law. As David Kaye has
bluntly observed, ECtHR in the Chechen cases found a way to apply the Convention rules in a
way that was sensitive to some of the key issues of the international humanitarian law,
however, it "may be that the hard case is yet to come, where [...] an obviously permitted use
of force under [international humanitarian law] is pitted against the rules of the European
192
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996 (I),
239, para. 25. For similar conclusion see ICJ, Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion of 9 July 2004, para. 106.
63
Convention. [...] The strictness of [ECHR] review may [then] push the Court in ways that
contradict IHL."193
What are the differences between regime of the ECHR and that of humanitarian law? In the
regime of Geneva Conventions, internal armed conflicts are regulated by common article 3
of the 1949 Geneva Conventions and Additional Protocol II, which has not been ratified,
inter alia, by Indonesia, Israel, Sudan, United States, or Russia. The main differences, as
enumerated by William Abresch are:
"First, the rules espoused by the ECtHR are not limited by any conflict intensity
threshold. Second, while in humanitarian law the independence of the jus in bello from
the jus ad bellum is axiomatic, the ECtHR's approach to evaluating the lawfulness of
armed attacks assesses the means used within the terms of the justified grounds for
employing lethal force. Third, in contrast to humanitarian law's principle of distinction,
the ECHR permits the use of lethal force only where capture is too risky, regardless of
whether the target is a `combatant' or a `civilian'."194
Additionally, human rights law protects the interests of the individual, whereas humanitarian
law protects the interests of the state parties to a conflict. It should be recalled that under
Geneva Conventions individual has no specific right of legal action or possibility to ask for
remedy. Therefore, applying the ECHR to the armed conflicts puts the military in an
unprecedented role as military's "primary responsibility is to provide protection for the
integrity of the territory against military threat, [its] objectives are collective rather than
individual."195
While endowing the military with a new relation to the individual, the Convention is unable
to transfer any rights or legitimacy on a non-state group the way Geneva Conventions can. In
human rights law, the standards only oblige the state and its organs, while humanitarian law
applies to all parties to a conflict. The ECHR governs the relation of a state to people under
its jurisdiction; it cannot incorporate any non-state actors as independent bearers of
193
Kaye, 2005, p. 881.
194
Abresch, 2005, p. 742-743.
195
Guild, 2007, p. 44.
64
responsibilities and rights under its provisions. These have two implications: The ECHR has
nothing to say about the beginning of an armed conflict; neither can it govern the conflict
outside the state-citizen nexus.196
Further in contrast to Geneva Conventions, under ECHR the use of force must be absolutely
necessary for a permitted objective and most careful scrutiny is required. As the Court has
stated, "limiting the use of force to situations of absolute necessity indicates that "a stricter
and more compelling test of necessity must be employed [than] that normally applicable
when determining whether State action is 'necessary in a democratic society'."197
Most importantly, Russia, Turkey and the United Kingdom all denied that they faced internal
armed conflicts and, consequently, all denied that international humanitarian law applied.
The approach of ECtHR has, thus, the potential to induce greater compliance, because it
applies the same rules to fights with common criminals, bandits, and terrorists as to fights
with rebels, insurgents and liberation movements. To apply human rights law does not entail
admitting that the situation is `out of control' or even out of the ordinary.198
In order to sum up, applying human rights law in the situations of internal armed conflicts
may prove to be more effective to the appliance of international humanitarian law as the
former applies automatically without any recognition or thresholds, entails certain nonderogable
rights, and allows remedies to the individuals. On the other hand, the exact
relation between human rights law (lex generalis) to the humanitarian law (lex specialis) is
yet to be developed in the jurisprudence of the Court.
The importance of the short discussion of the evolving and uneasy relation between human
rights law and humanitarian law is twofold. Firstly, it shows the possibilities how the
Council's rules may be applied in situations of armed conflict, and, secondly, it allows seeing
the possible impact of the relatively new human rights law on internal armed conflict as
196
The question what constitutes "lawful act of war" as stipulated in the Article 15 of the ECHR is left
unanswered and is generally considered as `hook' through which the humanitarian law may be connected to
the regime of the ECHR.
197
ECtHR, McCann v UK, para 149.
198
Idem, p. 757.
65
compared to the long established international humanitarian law as such impact may be
assessed only in comparison to the alternative legal frameworks.
In this chapter, I aimed at describing, firstly, the enforcement mechanisms at Council's
disposal, secondly, the personal, territorial, and temporal application of the ECHR in
connection to the armed conflict, and, thirdly, the relation of the ECHR to the long
established alternative framework of regulating armed conflicts, that is, to the international
humanitarian law. Let me now turn to the case of Russia and the possible impact of the
ECtHR on its policies while engaging in an armed conflict.
66
5. Case study of Russia
By the end of the twentieth century Russia signed most of the global UN treaties and
regional European instruments for the protection of human rights, became a member of the
Council of Europe, and for the first time in its history allowed an international court, that is,
the European Court of Human Rights, to exercise its authority over Russian internal matters.
One could have said that Russia accepted European (Western) notions of international
human rights law. However, Russia often remains perceived as an impediment to the overall
development of the Council, an autocracy and ultimately a human rights violator. On the
other hand, Russia, finding itself too often on the defensive, shields itself by referring to
alleged Western Russophobia, its double standards, and mentor style of communication.199
How to understand these obvious paradoxes? In words of J.D. Kahn, "Russia is trapped:
unwilling to quit one of the only European organisations willing to accept it as an equal
member, the Russian government finds itself increasingly called to meet the requirements of
membership."200
To put it differently, Russia, despite its tendencies towards autocracy, had to sign on to the
international human rights regime as it lives in a predominantly liberal area and, thus, had to
maintain the `trappings of democracy'201
in order to legitimise itself. Indeed, the current
president of the Russian Federation, Dmitry Medvedev, in his inauguration speech pledged
respect for human rights and freedoms as it was them "that [Russian] society declare[d] the
greatest value, and they determine[d] the sense and the substance of all state policy."202
Later, in the speech held at the meeting with German political, parliamentary, and civic
leaders in Berlin on 5 June 2008, he declared that Russia is "committed above all to the rule
of law".203
In other words, as democracy became the `only game in town'204
at least
rhetorical commitment to liberal world order is inescapable.
199
One of the newest examples is Russian commentary on US Department of State Report on Human Rights.
See Russian Ministry of Foreign Affairs, 12 March 2008.
200
Kahn, 2004, p. 6.
201
Kagan, 2007.
202
Medvedev, 07 May 2008.
203
Medvedev, 05 June 2008.
204
Shevtsova, 2004, p. 68.
67
Similarly, the then President Vladimir, while declaring in 2000 the infamous 'dictatorship of
law', hoped rather to restore federal authority over Russia's regions, however, found
himself, to his own displeasure, pressed to extend that phrase to meet the demands of
Russia's membership in the Council of Europe.205
The situation might have been different in the beginning of the 1990s. Yeltsin's government
submitted the application to the Council already in 1992 during its `honeymoon with the
West' period when it contemplated joining not only the CoE, but also NATO and potentially
even European Community. In the end, only Council of Europe was, despite several
unfavourable voices, the only organisation willing to accept Russia among its ranks and
Russian Federation acceded to the Council on 28 February 1996.
With admission, Russia committed itself to ratify the European Convention on Human Rights
and its Protocols and accept the jurisdiction of the European Court of Human Rights, which
both formally happened on 5 May 1998. Thanks to the CoE regime, Russia has effectively
abolished the death penalty as a direct result of signing the Protocol No. 6,206
and growing
body of European human rights case law became part of Russia's legislative framework.
Simultaneously, Russia pledged to pursue a series of law reforms in accordance with the
recommendations made by the PACE, most notably to adopt a new criminal code and code
of criminal procedure, a new civil code, a new law on the administration of its penal system,
new legislation governing the functioning of the prosecutor's office and the office of the
commissioner for human rights, and new legislation protecting national minorities, freedom
of assembly, and freedom of religion. The Russian government also accepted commitments
regarding its policy in Chechnya. In this sense, Russia's membership in the Council of Europe
represents the deepest and the most visible commitment of Russia to the European human
rights protection regime.
However, things are far from being ideal as one encounters numerous paradoxes. On one
hand, Russia made "giant strides"207
in the direction of full implementation of rule of law,
205
Kahn, 2004, p. 2.
206
However, due to missing ratification of the protocol, there is only a moratorium put on the execution of the
death penalty, effective and permanent legal abolition of the penalty never took place.
207
Bowring, 2009, p. 258.
68
multi-party democracy, and protection of individual human rights. On the other hand, during
the same time, two Chechen wars broke out,208
Russian-based cases currently make up a
quarter of pending allocated cases ­ more than any other member state,209
and the relations
between Russia and the Council progressively deteriorated., The situation of a battleground
between PACE and Russia led Bill Bowring to go as far as to ask whether there was at all "a
legal culture [in Russia] which [is] simply anathema to human rights".210
For the last fifteen years the most egregious reminder of Russia's problematic human rights
record has been the Chechen conflict. Despite the fact that the number of applications to
the Court originating from Chechnya is "miniscule compared to the overall number of
applications from Russia,"211
these involve the gravest examples of human rights violations,
including summary executions, arbitrary killings, enforced disappearances, torture, abuse,
undetermined and undocumented detentions, and wanton destruction of property, while no
effective remedy or possibility of investigation exist.
Before I turn to analysing the concrete impact the Court has had (or could have had) on the
situation on the ground, let me make two points. Firstly, one should bear in mind that no
other international oversight mechanism is allowed to function in Chechnya. The Committee
for the Prevention of Torture (CPT), for example, reported on the Russian authorities'
consistent refusal to engage with the CPT on core issues.212
As Phillip Leach, the head of
European Human Rights Advocacy Centre, described, "number of the UN Special Procedure
mechanisms, such as the UN Special Rapporteurs on Torture and on Extrajudicial, Summary,
and Arbitrary Executions, have not been permitted to visit and report on Chechnya. Since
the end of 2002, the mandate of the OSCE Assistance Group to Chechnya has not been
208
First Chechen war is dated between 1994 and 1996, the second conflict drags with several breaks
continuously from 1999. Human rights organisations estimate the number of killed or missing civilians at up to
50,000 for the first Chechen war and up to 25,000 for the second and its aftermath. According to official
figures, around 10,000 servicemen were killed in both wars, but experts and rights campaigners say the toll is
much higher. See AlertNet, 28 July 2009.
209
Reiss, 2009, p. 307.
210
Bowring, 2009, p. 260.
211
Of more than 46,000 applications received by the [ECtHR] from Russia since 1998, only about four hundred
have originated from Chechnya. Majority of cases concerns complaint about excessive length of judicial
proceedings and non-implementation of domestic judicial decisions. See Solvang, 2008a, p. 211.
212
CPT, 20 July 2001, 10 July 2003, and 13 March 2007.
69
renewed."213
This leaves the Court to effectively be the only international mechanism that is
capable of public oversight of cases coming from Chechnya and retains considerable amount
of cooperation from the Russian government.
Secondly, as the report of PACE notes, the armed conflict has recently started to intensify
yet again with paramilitary groups set up by illegal combatants becoming increasingly
organised, coordinated, widespread and technically well-equipped. This seems to be a major
blow for the Russian government, especially in light of recent alleviation of the special antiterrorist
rules which had applied throughout the Chechen Republic up to 16 April 2009. The
federal army units deployed in the region were to be withdrawn and the task of combating
terrorism was to be definitively handed over to the local security forces run by the Chechen
Minister of the Interior and certain battalions of the Federal Russian interior troops.214
Despite the heartening statement of the Russian government, the situation continues to
deteriorate as, solely during the summer of this year, 142 members of the security forces
were killed, almost three hundred injured, and the conflict is threatening to spread to
neighbouring republics, namely Kabardino-Balkaria and North Ossetia-Alania.215
The attack
on the express train between Moscow and St. Petersburg (that is, thousands of kilometres
away from Grozny and between the major two cities in Russia) that happened on Friday, 27
November 2009 is the last example of the increasing and reappearing tension.
Moreover, many of the activities of the local security forces including local elements of
federal bodies fall outside the supervision of the federal authorities.216
These include new
means of combating insurgency such as the punitive burning of the houses of combatants'
families217
and tampering and fabricating of charges of terrorism.218
Furthermore, since 30
December 2008 jury trials have been banned for criminal cases involving charges of
terrorism, hostage-taking or organisation of illegal armed gangs leaving almost all discretion
213
Leach, 2008, p. 732.
214
CLAHR, 29 September 2009, para 14.
215
Idem, para 3 and 4.
216
Idem, para 8.
217
Human Rights Watch, 02 July 2009.
218
Memorial, 2009.
70
over the case in hands of only one judge.219
All these elements only further contribute to the
unbearable atmosphere of human and "legal nihilism of the domestic authorities towards
Chechnya and its inhabitants."220
In such setting, as William Abresch noted, "there is no
place for great optimism regarding what [...] the ECtHR might achieve in Chechnya,"221
however, being the only mechanism Russia acknowledges, applying its oversight might prove
influential.
In order to assess the potential influence the Court has had (or could have had) on the
situation in Chechnya, I shall develop the chapter as follows. Firstly, I examine the nature of
judgments the Court has delivered concerning Chechnya as of now in order to generalise its
approach vis--vis the Russian authorities, including the measures the Court demanded to be
implemented.
Secondly, I analyse the Russian reaction to the judgments delivered and using the criteria set
in the methodology chapter I search for the measurable impact such interaction between
the Court and Russia had on the situation on the ground. I argue that the Court initially
asserted unprecedented level of impact on and cooperation with Russian authorities,
however, the rising number of lost cases then ignited the process of securitisation which, in
turn, diminished the influence the Court enjoyed. Thirdly, I observe the discourse applied by
both Russian and Council's representatives in order to track the roots of the mentioned
securitisation and try to identify its effects on the relations between the two actors.
Lastly, I draw the concluding remarks on the impact of the judicialized regime of the Council
of Europe on Russian security policies in Chechnya. I also explore the possibilities of further
development in this regard.
5.1 ECtHR rulings on cases originating from Chechnya
The Court issued its first judgments on claims arising out of the armed conflict in Chechnya
in February 2005. The claims arose out of three separate occurrences: the aerial
219
CLAHR, 29 September 2009, para 53.
220
Leach, 2008, p. 760.
221
Abresch, 2005, p. 750.
71
bombardment of a civilian refugee convoy fleeing Grozny in October 1999;222
the execution
of five individuals by Russian servicemen soon after the Russian military regained control of
Grozny in January 2000;223
and the massive use of indiscriminate weapons in directing aerial
and artillery bombardment on the village of Katyr-Yurt in February 2000.224
In all three of the cases, the Court held that "Russian authorities had failed to invoke the
provisions of domestic legislation at any level which would govern the use of force by the
army or security forces. [Moreover], even if the army were pursuing a legitimate aim (which
was doubted but not decided by the ECtHR) the operation was not planned or executed with
the requisite care for the lives of the civilian population to satisfy the requirements of the
[ECHR]."225
Since then the European Court of Human Rights has found violations in total of 117 cases
originating from Chechnya,226
notably in respect of disappearances, unlawful killings,
unacknowledged detentions, torture and ill-treatment and destruction of property
attributable to members of the Russian security forces, as well as in respect of the
inadequacy of official investigations conducted by the authorities.227
These cases reflect various facets of the conflict, including the federal forces' use of bombing
and shelling, the widespread tactic of carrying out large-scale `sweeping-up' operations in
which large numbers of civilians were detained or killed during what were ostensibly
searches for rebel fighters, and more targeted operations in which individuals have been
abducted from their homes.
In general, the Court has acknowledged, Russia's right to respond to a situation of conflict,
accepting "that the situation that existed in Chechnya at the relevant time called for
exceptional measures by the State in order to regain control over the Republic and to
222
ECtHR, Isayeva, Yusupova and Bazayeva v Russia.
223
ECtHR, Khashiyev and Akayeva v Russia.
224
ECtHR, Isayeva v Russia.
225
Guild, 2007, p. 41.
226
Russian Justice Initiative, status of 01 December 2009.
227
Committee of Ministers (CoE), 11 September 2008, para 1. The Court has found Russia responsible for 15
cases of extrajudicial executions, 9 cases of ill-treatment, 5 cases of indiscriminate bombing, one case unlawful
use of mines and one of wanton destruction of property, and four cases of torture.
72
suppress the illegal armed insurgency.''228
However, the Russian government has refused to
recognize the existence of an armed conflict in Chechnya, characterizing the events there as
terrorism and banditry,229
and, thus, considering the conflict to be a `counter-terrorist
operation'. For these reasons, Russia never declared any state of emergency or martial law
in Chechnya, and no derogation under Article 15 of the European Convention on Human
Rights has been made230
and the Court, in light of the stated, considered that it should judge
military operations (including aerial bombardment and artillery shelling) ``against a normal
legal background''.231
Following this path, the Court found the Russian authorities were directly responsible for the
fatality itself as well as for failing to investigate the matter adequately.232
The threshold of
torture (defined as deliberate inhuman treatment causing very serious and cruel suffering)
was reached in four cases.233
Similarly, Articles 5 (right to liberty and security of person) and 13 (the right to an effective
remedy) were breached in tens of cases. As Philip Leach describes, "violations of Article 13
have followed from overwhelming findings as to the utter inadequacy of the domestic
criminal investigations which then had the consequential effect of undermining any civil
remedies."234
On numerous occasions, the Russian Federation was also found to have failed
to have co-operated in respect of the Court's examination of the case, thus being in breach
228
ECtHR, Isayeva v Russia, para 180.
229
However, most of the insurgents who held Grozny apparently belonged to an organization styled the
Chechen Republic of Ichkeria. The facts amply support a Protocol II characterization. Journalistic accounts
strongly suggest that the insurgents were `under responsible command': while they held Grozny, the insurgents
employed a centralized communication system, and they retreated from Grozny through Katyr-Yurt en masse
under military command and the ultimate leadership of President Aslan Maskhadov. During the siege, the
insurgents exercised sufficient territorial control to carry out sustained and concerted military operations:
besides holding absolute control over Grozny, they routinely attacked Russian outposts in groups of 15­20. See
Abresch, 2005, p. 744-746.
230
Up to April 2009, a set of special anti-terrorist laws applied throughout Chechnya, however, these did not
amount to a full-fledged state of emergency.
231
ECtHR, Isayeva v Russia, para 191.
232
Leach, 2009, para 6.
233
See the ECtHR judgments in Khadisov and Tsechoyev v. Russia, Musayeva and others v Russia (multiple
injuries and stab wounds on the body), Medov v. Russia, and Chitayev and Chitayev v Russia (electric shocks,
beatings, strangling, use of dogs and pliers).
234
Leach, 2009, para 6.
73
of Article 38(1)(a) ECHR, because of no, or inadequate, disclosure of the domestic case
files.235
However, by far the largest group are cases concerning enforced disappearances: the Court
has pronounced Russia responsible in 92 cases.236
In majority of these cases, unidentified
man in military overalls stormed victims' houses deep in the night or early in the morning
and without any reason took away men living in the household, who were never seen again
and whose bodies were never found.237
In each case, a number of witnesses provided
evidence that the responsible parties used the equipment, bore the appearance, and applied
the tactics of Russian military operatives.
In virtually all of these cases, Russian authorities' bare denial of any state responsibility "has
been the norm in the Chechen cases"238
and majority of cases were plagued by nondisclosure
of materials with the most basic investigatory steps lacking, and "plagued by
inexplicable delays''.239
In each instance, the Russian Government refused to provide the
ECtHR with a copy of the relevant criminal case file.240
The ECtHR, in the view of Russian approach, decided that when the government prevents
the Court from reaching factual conclusions by failing to submit requested documents, the
burden falls on the government to provide a satisfactory and convincing explanation of how
the events in question occurred.241
In this regard, the Tangiyeva judgment,242
among many
others, demonstrates that the "Russian authorities will pay a price for non-cooperation with
the ECtHR: if applicants present a prima facie case, and the authorities refuse to provide
requested documents without a proper explanation, the Russian authorities will likely lose
the case."243
235
Idem.
236
Russian Justice Initiative, status of 01 December 2009.
237
See, especially, ECtHR, Bazorkina v Russia, Imakayeva v Russia, Umarov v Russia, Musayeva v Russia, or
Akhiyadova v Russia.
238
Leach, 2008, p. 736.
239
Idem, p. 750.
240
Barrett, 2008, p. 138.
241
Solvang, 2008b, p. 16.
242
ECtHR, Tangiyeva v Russia. For limits of this approach, see ECtHR, Zubayrayev v Russia.
243
Solvang, 2008b, p. 17.
74
The Court, however, so far did not hold that enforced disappearances in Chechnya constitute
an administrative practice. As Barrett noted, "such a holding would be problematic from a
diplomatic perspective due to its possible implications for Russia's continued CoE
membership, but would be amply supported by the available evidence concerning the
situation in Chechnya and by the ECtHR's own case law."244
Such decision may illustrate the limits of judicialization described by Clifford J. Carubba (see
the theory chapter) who argued that courts rule against a government "if and only if it
observes a low cost defection and, when it does rule against that government, the court
imposes a judgment that will be obeyed. [...] Governments always defect when compliance
would have been high cost."245
As a result, because judges want compliance, they are often
willing to work with litigants towards the goal of eventual voluntary compliance. All courts
seek voluntary compliance, and all judges make compromises towards this end.246
In this
sense, deciding on the existence of administrative practice (or only rendering a pilot
judgment) concerning the enforced disappearances would increase the price of compliance
too high for Russia and would further endanger the already strained relationship.
Apart from the individual remedies, the Court has generally asked Russia to put in place
measures in three broad areas. Firstly, the Court asked for investigation and the re-opening
of domestic proceedings in order to provide victims' with information on their disappeared
relatives and to punish those responsible. Secondly, the Court asked for changes in
legislation, regulation, and practice in order to address the underlying systemic causes of the
violations. In response to the Court's jurisprudence, Russia was prompted to implement
military and administrative reforms such as revisions of manuals of military practice, record
keeping and registration of detentions, and guidelines for the investigation and prosecution
of unlawful killings and enforced disappearance cases.247
Thirdly, the Court demanded that
training of armed forces, security forces, law enforcement agencies, prosecutor and judges
as to respect the standards of the ECHR was put in place.
244
Barrett, 2008, p. 142.
245
Carrubba, 2005, p. 676.
246
Shapiro, 1981, p. 5-8.
247
Barrett, 2008, p. 142.
75
Therefore, as is obvious, the Court did not and could not have asked Russia to stop the
conflict; neither did it pronounce itself on the rights of Chechens for self-determination as
none of this falls within the scope of rights protected by the ECHR. The Court recognised
Russia's right to answer to the armed insurgency using the lethal force and other
extraordinary measures. One can therefore say that Court did not ask Russia to stop using
the force, detaining suspected persons, and conduct searches and interrogations, but rather
to put in place in the measures necessary to ensure the minimum procedural standards of
these practices.
5.2 First level of assessment: Limited impact of Court's rulings on the
situation in Chechnya
Most ECtHR judgments on Chechnya undermined the key claim made by Vladimir Putin that
his regime "brought law, order, and prosperity to Russia."248
President Medvedev took the
threat to the perception of government's ability to guarantee the order seriously when he
told the delegates of the All-Russian Congress of Judges that he was ready to consider
"transformations" in the judicial system to make it "so effective that it would minimize the
complaints to the international courts."249
In such statement one can read the nature of the
relation between the Court and Russia: The latter will comply with the former's rulings as
long as the non-compliance will damage government's ability to foster supportive coalitions
on both domestic and international levels. In other words, the strength of the Court lays in
its ability to influence the reputation, reliability, and legitimacy of the government both vis-vis
its domestic constituency and opposition groups and its international partners.
I will analyse the impact of the Court's rulings on three successive levels. Firstly, I will look at
the level of individual measures, both monetary and non-monetary. Secondly, I shall look at
general measures requested by the Court, on levels of both legislation and implementation.
Lastly, I shall look at the direct communication between the Council and Russia on the topic
of the Chechen conflict.
248
Trochev, 2009, p. 146.
249
Medvedev, 02 December 2008.
76
However, before continuing any further, the question of the criteria applied while assessing
the impact the Court has had or could have had on the Russian behaviour in Chechnya needs
to be addressed.
As might be recalled from the methodology chapter, the definition of regime's efficacy is
twofold: Firstly, regime is effective as much as states do follow its rules and norms. Secondly,
regime is effective as much as it fulfils certain goals or certain intentions. In this regard, I ask
whether Russia took any steps to ensure that the situation criticized and commented upon
by the Court wouldn't repeat itself. Were there any organisational changes, policy shifts, or
practice reorganisation due to the Court's ruling? In this sense, the ECHR can be said to be
effective, domestically, to the extent that national officials recognize, enforce, and give full
effect to Convention rights and the interpretive authority of the Court, in their decisions.250
From the legal perspective, Russian law generally "reflects the universal tendency of
rapprochement of national constitutional and international law"251
as the Convention and
the interpreting case law are on par with Russian Constitution. The Constitution of the
Russian Federation from 1993 in its Article 15, Paragraph 4 proclaims the direct applicability
of international treaties on the territory of the Federation by giving them "a position inbetween
the Constitution, on the one side, and the federal constitutional laws and federal
laws, on the other side."252
In other words, the legal norms established by the Convention as
interpreted by the Court are considered superior to Russian federal, republican and
provincial law.253
In this regard, all Russian Constitutions, including Stalin's Constitution of 1936 and
Brezhnev's Constitution of 1977, guaranteed, if only on paper, number or human and citizen
rights. The Constitution of 1993 then contained many rights provisions taken "straight from
the ECHR and UN instruments".254
However, as several scholars have noted, Russian
250
Keller and Sweet, 2008, p. 682.
251
Hussner, 2001, p. 103.
252
Idem, p. 94-95.
253
Kahn, 2004, p. 8. Moreover, state's obligation to cooperate with the ECtHR is described in its article 38.
254
Bowring, 2009, p. 268.
77
"surface, systemic monism is belied by a lack of commitment to the ECHR among political
officials, and by massive structural problems in the functioning of judicial institutions.255
Moreover, case-law does not exist in Russia. As Anton Burkov described, "judges [] usually
consult a limited number of Supreme Court regulations, or they consult each other or even a
higher court judge. [...] There is no custom of looking at case-law in order to interpret the
meaning of statutes."256
In sum, the Convention possesses the legal standing necessary to be able to influence the
situation on the ground; however, its application is, however, strained from the very
beginning by the above mentioned facts, that is, only symbolical commitment to the direct
applicability of the Convention, and the non-existent practice of applying case-law in
proceedings.
Nevertheless, how shall one assess the effectiveness of the concrete Court's ruling on the
situation on the ground? I decided to take the UN Draft Articles on Responsibility of States
for Internationally Wrongful Acts as a model for such assessment. Under these principles,
the State responsible for the internationally wrongful act is under an obligation (a) to cease
that act, if it is continuing; (b) offer appropriate assurances and guarantees of nonrepetition,
if circumstances so require; and (c) make full reparation for the injury caused by
the internationally wrongful act.257
As the Committee stated in its commentary, "cessation is
[...] the negative aspect of future performance, concerned with securing an end to
continuing wrongful conduct, whereas assurances and guarantees serve a preventive
function and may be described as positive reinforcement of future performance."258
Therefore, the simplest effectiveness test for the Court lies in its ability to force the state to
fulfil these three universal obligations.
In this sense, discussing the primary level of a Court's ruling ­ awarding of monetary
satisfaction that would fall under the Article 31 of the mentioned UN Draft Articles ­ one can
note that the requested damages were paid within the requisite three months. In 2007, the
255
Keller and Sweet, 2008, p. 685.
256
Burkov, 13 June 2007.
257
UN International Law Commission, 2001, p. 51, articles 30 and 31.
258
Idem, p. 216.
78
court ordered Russia to pay a total of 4.3 million. Between January 2008 and March 2009,
the Strasbourg-based tribunal ordered Russia to pay some 9.3 million to successful
applicants. Russian prompt compliance is of a stable character, as one can read from
different accounts.259
In this sense, "the Strasbourg court enjoys something that all other
Russian courts lack: nearly complete enforcement of its judgments in terms of compensating
those who won their cases."260
Apart from the recognition of Russian state's guilt, one can,
without any further ado, conclude that the Court is effective in enforcing the Article 31 of
Draft Principles mentioned above. However, such impact alone would be hardly satisfying.
Turning to the individual non-monetary measures ordered by the Court, on encounters
somewhat confusing picture. Following the first judgments, Russia engaged actively with the
Councils representatives and initiated the necessary steps to fulfil Court's demands.
However, as the number of lost cases and the complexity of needed reforms rose so did the
Russian reluctance to continue with the steps taken. Moreover, the immensely difficult task
of coordinating among various competing agencies, including various ministries or the
Supreme and Constitutional Courts, and their interests led to significant gaps in the
implementation of agreed changes.
Also, with the rising number of lost sensitive cases Russian government started to actively
securitise the discourse applied in regard to the Court as the Court rather than fostering the
government's ability to uphold the supportive domestic and international coalitions
undermined the claims of governments as providers of order and stability.
Concerning the re-investigation of cases, in many cases the Russian government reopened
closed investigations once it has received notification from the ECtHR that an application has
been filled.261
In September 2007, in order to enhance the credibility of investigative powers in Chechnya,
Russian government established the Investigating Committee, which has the power to
initiate criminal cases, direct investigations, and has supervisory authority over European
259
See, among others, Jordan, 2003 for an early statement, and Leach, 2009 for an up-to-date account.
260
Trochev, 2009, p. 148-149.
261
Solvang, 2008a, p. 214.
79
Court cases. Nevertheless, as is clear from recent Human Rights Watch report "although the
Investigative Committee has been functioning for nearly two years and has direct
supervision over investigations in European Court cases, [...] investigations into violations in
cases from Chechnya [...] have so far been no more fruitful or led to any more meaningful
results than prior to the Investigative Committee's creation."262
Moreover, according to the information provided by the EHRAC to the meeting of the
Committee of Ministers in March 2008 not one of the investigations in respect of nine listed
cases had led to a prosecution: two had been closed, five had been adjourned, and no
information has been provided in two cases.263
As is clear from many of the judgments to
date relating to the actions of the armed forces or the security forces in Chechnya, "it is
common practice for such domestic investigations to be suspended on numerous occasions
and re-opened as a matter of routine."264
Other problems still include, inter alia, state's failure to inform the aggrieved parties about
the investigation, failure to provide access to criminal case files, inexplicable delays in
investigation, and legal obstacles preventing investigators from accessing key evidence held
by Russian military or security services.265
This led some prominent experts on the topic to believe that there was a `disturbing pattern
of conscious behaviour' with regard to the reopening of investigations. As Philip Leach
noted, "[m]ere bureaucratic bungling or inertia surely cannot account for the repeated
adjournment and reopening of numerous investigations, for the lengthy periods of inactivity
at the prosecutors' offices when no proceedings were pending, or for the transfer of
investigations from one prosecutor's office to another for no apparent reason."266
In connection, concerning the indictment of those personally responsible for the crimes,
since the commencement of counter-terrorist operations, 269 criminal cases regarding
offences of servicemen on the territory of the Chechen Republic have been investigated by
262
Human Rights Watch, 27 September 2009, p. 10.
263
EHRAC, 08 September 2008a.
264
Idem..
265
Human Rights Watch, 27 September 2009, p. 1.
266
Leach, 2008, p. 754.
80
respective agencies. At present, 193 investigations into criminal cases have been completed,
of which 139 persons have been submitted for consideration to the military courts, among
them 23 regarding murder, 1 regarding causing harm to health through negligence, 29
regarding the theft of another's property, 12 regarding the infringement of driving
regulations for military, 7 regarding the infringement of regulations on the handling of
weapons, 8 regarding disorderly conduct, 2 regarding rape and 23 regarding other
offences.267
However, the picture has recently become much dimmer. As the report of CLAHR notes,
"the necessary investigations aimed at identifying and prosecuting those responsible
for murders, disappearances, torture or other crimes continue to be ineffective and a
matter of mere form. Even in cases where the responsibilities have been fairly clearly
established by the Court itself, the members of the security forces concerned have not
been brought to justice."268
Indeed, in Isigova and others v Russia, the Court was appalled that after the commander of
the unit had been identified; the investigation was still repeatedly suspended. Moreover, the
Council has expressed its concern over the fact that the statute even on the most serious
crimes runs out 15 years after their commitment. Hence, if this rule applies, perpetrator of
the most egregious crimes from the beginning of the second Chechen war will be acquitted
of their responsibility after 2014.269
One can only hope that the recent upholding of the conviction of two former officers of the
Russian Army to 15 and 17 years of imprisonment for the unlawful killing of civilians during
an anti-terrorist operation in the Chechen Republic by the Supreme Court on 28 August 2008
marks the progress in fighting the impunity of security forces in Chechnya.270
Concerning the disclosure of needed materials, in spite of Russian willingness to submit all
materials "on investigation, detection, committal for trial and indictment of guilty person"271
267
Committee of Ministers (CoE), 08 September 2008.
268
CLAHR, 29 September 2009, para 66.
269
EHRAC, 08 September 2008b, para 16.
270
Committee of Ministers (CoE), 11 September 2008, para 128.
271
Matyushkin, 11 September 2009.
81
in certain cases, such as Salatkhanovy v Russia and fully comply with the requirements of
cooperating with the ECtHR, the general nature of these documents can be still
characterised by "total lack of information" and "general and evasive nature".272
The Court,
therefore, still faces the problem how to assess situations where the substantive evidence is
lacking.
As for improvement of the detention facilities, the Deputy Minister of Justice Matyushkin
has recently announced that 225 million roubles273
from the federal and republican budgets
to build and rebuild pre-trial detention facilities and temporary holding facilities. Matyushkin
added that "after visiting pre-trial detention facility No. 1 in Grozny, the Commissioner of
Human Rights of the Council of Europe Mr. T. Hammarberg at the press conference
characterized the situation in the aforementioned detention facility as favourable."274
However, up to date no forensic medicine facility designated to examine the alleged abuse
has been established in Grozny,275
which leaves space for the undocumented cases of illtreatment,
a fact that the CPT repeatedly highlighted.276
Addressing of the widespread practice of enforced disappearances, Russian government has
stated that on 29 March 2007 a "complex programme" was approved in relation to
combating the abduction of individuals and tracing the disappearance of individuals, for the
years 2006-2010.277
However, no further details about the programme have ever been
provided either to victims or to the Committee of Ministers.278
Similarly, the Government
has referred (in its Action Plan, 2006) to the `United Register of Kidnapped and Disappeared
Persons'. However, no information has ever been made available about this Register and no
case is known where it has facilitated the search for a missing person.279
Therefore, both
initiatives exist, if at all, only on paper.
272
Bowring, 2009, p. 271.
273
Equivalent of approximately 7.8 million USD.
274
Matyushkin, 11 September 2009.
275
EHRAC, 08 September 2008b, para 23.
276
CPT, 13 March 2007.
277
Committee of Ministers (CoE), 08 September 2008, p. 2.
278
EHRAC, 08 September 2008b, para 6.
279
Idem, para 22.
82
Let me now turn to the general measures requested by the Court. Responding to losses in
Strasbourg Russia, witnessed a flurry of legislative activity: among others, new law on
Suppression of Terrorism was adopted and the Code of Criminal Procedure of the RF was
amended in light of Court's findings. Russian government elaborated new examination
procedures on assessing the lawfulness of persons' detention. Concerning the training of
security personnel, more than 10 training programs together with several manuals have
been developed in order to safeguard human rights standards.
Also, the government adopted new rules on use of force. Russian legislation now provides
that arms, combat equipment and special means "shall be used by servicemen taking part in
anti-terrorist operations in a manner strictly proportionate to the situation, only in cases of
imminent risk of death or serious harm, and as a last resort."280
The rules further provide
that military commanders of military units shall immediately inform the prosecutors of each
case of death or bodily injury caused by the use of arms.281
However the pace of legislative change has not been matched by successful
implementation.282
As CLAHR noted in its report, "after the prompt reaction to the first
European Court's judgements, the execution process has slowed down in the adoption of
further legislative and other reforms to solve important structural problems"283
The Russian Supreme Court has issued guidelines to the ordinary courts about the necessity
of applying the norms of the 1950 convention and following the rulings of the ECtHR, and
many lower courts have "followed suit".284
Among the national courts, "Russian judges
increasingly drew on the decisions of the Strasbourg court despite their growing caseload
and despite the accusations that these decisions are biased and anti-Russian."285
In this
sense, the process of `domestification of the ECHR'286
has only begun and so far yielded only
280
Committee of Ministers (CoE), 11 September 2008, para 8.
281
Idem, para 12.
282
Leach, 2007.
283
CLAHR, 18 September 2006.
284
Idem, p. 156.
285
Trochev, 2009, p. 166.
286
Keller and Sweet, 2008, p. 681.
83
indistinct results for the Russian courts refuse, do not dare, or do not know how to use the
Convention in their jurisprudence.287
In sum, despite Russia's initial prompt reply and cooperation, their current approach to the
question of implementation of the Chechen judgments "can only be characterised as
obfuscation".288
The measures Russia undertakes in response to the Court's rulings are
plagued by half-heartedness, inconsistency, and contradicting components.
The mixed results are produced by the continuous tension on the domestic level of the
game. As Stephen E. Hanson noted, "[t]he central puzzle of Russian politics is that
[seventeen] years after the collapse of the USSR, the country still lacks any stable and
legitimate form of state order. The result is continuing pervasive political and social
uncertainty--concretized in the palpable official fear that independent civil society
organizations might promote additional `colour revolutions' in Russia or other post-Soviet
states."289
Hanson stresses three aspects ­ clearly defined territorial claims, control over the
means of coercion, and political legitimacy ­ and concludes that all three components
remain to be undermined by the seventy years of Soviet rule. Firstly, almost all national
borders within the former USSR remain "hotly contested."290
Secondly, the incapability of
Russian law enforcement to effectively control the area of the Northern Caucasus and to
prevent terrorist attacks on Russian territory (consider the tragedies in school in Beslan,
theatre in Moscow, or recent bombing of the train between St. Petersburg and Moscow)
suggests that Russia has "found it exceedingly difficult to maintain a monopoly of legitimate
coercion within its vast territory."291
Thirdly and most significantly, Russia remains trapped
within an identity crises as all historical means of legitimating are discredited and the new
one, popular democracy, is not yet stabilised. Putin's attempts to solve the problem of state
identity "pragmatically [by] mixing and matching state symbols from the tsarist, Soviet, and
post-Soviet periods"292
have so far yielded little result.
287
For the overview of the incoherent use of the ECHR by national Russian courts, see Burkov, 2006
288
Leach, 2009, para 34.
289
Hanson, 2007, p. 69.
290
Idem, p. 70.
291
Idem, p. 72.
292
Idem.
84
5.3 Second level: Discourse securitisation between the Council and Russia
Before the somewhat uneasy, but working relationship between Russia and the Council of
Europe could have developed, Russia began to lose a number of high-profile cases in the
ECtHR. The end of 2004 and beginning of 2005 were of critical significance. Firstly, in Ilascu
and Others v Moldova and Russia the majority of the Grand Chamber of the Court found that
Russia rendered support for Transdniestria, a breakaway region of Moldova, amounting to
"effective control".293
The first Chechen applicants against Russia won their applications to
Strasbourg in February 2005. Two months later, in Shamayev and 12 others v Russia and
Georgia, the Court condemned Russia for deliberately refusing to cooperate with the Court
despite diplomatic assurances.294
Moreover, around the same time, Russia suffered two
major diplomatic collisions with the Council outside the Court. Firstly, PACE, while
monitoring the preparations for the 2005 presidential elections, observed that the used
model for elections can be considered neither free, nor fair.295
Secondly and in direct connection with the first collision, Russia unexpectedly lost the
elections of the new President of the PACE when the done deal of electing Mikhail Margelov,
candidate with direct support of Russian President, was spoiled by the controversy following
the Russian parliamentary elections and the Catalan-Spanish Socialist, Lluís Maria de Puig,
was elected instead.296
Therefore, after the first prompt reaction, the Russian relation to the ECtHR froze and
remained on the verge of breaking. Surprisingly, the relationship was not this tense even in
2000 when Russia suffered the suspension of its voting privileges in the PACE in April 2000.
The Assembly even initiated steps to suspend Russia's membership in the CoE; nonetheless,
the Committee of Ministers succumbed to the political pressure from the Russian
government, arguing that "it is better to draw former communist countries into dialogue
293
ECtHR, Ilascu and Others v Moldova and Russia.
294
ECtHR, Shamayev and 12 others v Russia and Georgia.
295
Bowring, 2008, p. 12.
296
Idem, p. 9.
85
than to isolate them,"297
and, subsequently, stopped the possible expulsion of Russia from
the Council.
Contrary to its strategy of silent diplomacy applied during the crisis in 2000, Moscow chose
to voice its opposition in full during the crisis starting in 2005. In direct response to Court's
ruling in Ilascu case, on 20 December, 2006, Russian Duma refused to ratify the Protocol No.
14, and thus, has effectively blocked the needed reform of the CoE. Allegedly, Russia's main
concern is the perceived increase of unfair pressure on Russia by delivering an even higher
number of negative judgments.298
The response from PACE came before long. Dick Marty, then-chairman of the CLAHR, bluntly
observed that "if the country felt that it could not comply with the principle of the
independence of the Court then surely that country no longer belonged in the Council of
Europe"299
Further, the PACE called on Committee of Ministers to adopt a Protocol No. 14bis
that would, without requiring the unanimous ratification of all member states, institute
some of the efficiency measures within Protocol No. 14 and apply to those states adopting it.
In this regard, the PACE addressed the Russian position in unusually strong words:
"[T]he Assembly strongly deplores the position taken by the Russian Federation's State
Duma to refuse to provide its assent, since December 2006, to the ratification of
Protocol No. 14 to the Convention, which is an important amending protocol that can
only enter into force when all states parties to the Convention have ratified it. By so
doing, the Russian State Duma has, in effect, considerably aggravated the situation in
which the Court has found itself, and has also deprived persons within its jurisdiction
of the benefits of a streamlined case-processing procedure before the Court. The State
Duma is urged, in the strongest possible terms, to recognise that the changes of the
control system envisaged in Protocol No. 14 (and Protocol No. 14 bis), will permit the
Court to deal with applications in a timely fashion so that it can concentrate on
important cases requiring in-depth examination."300
297
Jordan, 2003, p. 684.
298
Reiss, 2009, p. 309.
299
PACE, 25 January 2007.
300
PACE, 30 April 2009. On May 12, 2009, the Committee indeed adopted the small protocol.
86
For these reasons, as one prominent scholar noted "the Council of Europe, especially its
Parliamentary Assembly, has turned into an oratorical battleground between Russian
lawmakers and their European counterparts on Chechnya and other human rights issues.
Moscow has even threatened to halve its contribution to the council's budget if the criticism
does not cease."301
One of the many critics then even blurted that Russian "voluminous
membership fees are being used for attacks on [Russia]."302
Russian delegates often repeat that "from the outset, the European Court of Human Rights
judgement left people perplexed by its inconsistency, contradictory nature, subjective
stance and flagrant political bias. That said we invariably proceed on the basis that the
decisions of the Strasbourg court must be executed."303
In other words, Russia sees the
work of ECtHR as biased and politicized and, thus, may not agree with the judgements;
however, the judgements have to be undisputedly fulfilled.
The double-faced commitment of Russian delegates to the Court's regime cannot be
expressed better: it is solely the legitimacy the regime provides that leads Russian
authorities to follow the judgments. Neither coercion, nor self-interest can explain such
commitment as no coercive measures exist within the regime and self-interest has to be
excluded exactly for the alleged inconsistency, contradictory nature, subjective stance and
flagrant political bias of the Court. For why would any actor be self-interested in
participating in such flawed cooperation?
President Medvedev further illustrated his impression that international law and human
rights are politicized and flexible in their use when he declared that,
"[i]t is highly symptomatic that current differences with Russia are interpreted by
many in the West as a need to simply bring Russia's policies closer into line with those
of the West. But we do not want to be `embraced' in this way. [...] Sometimes we are
simply told: stop being so prickly in international affairs and then democratic
development and human rights issues will become secondary; that they can close their
301
Trenin, 2006.
302
Human Rights House, 28 December 2006.
303
See PACE, 4 October 2006. Emphasis.
87
eyes to them, and they give us examples of other countries that behave in just this way
and with whom they get on fine."304
Human rights in Medvedev's view became a trade-off, something the West can emphasize or
downplay at will. Notice the stress Medvedev put on the divide `we' versus `them' ­ the
personification of an almighty West which can manipulate the perception of human rights
according to its own needs is mentioned three times.
Such statements fully illustrate Morozov's observation that human rights from the Russian
point of view are nothing more than a mere "smokescreen that is used by cynical Western
politicians [...] as a kind of Trojan horse offered by the West in order to subvert society, to
hinder its internal consolidation [...] and, finally, to colonize and dissolve in the course of
total Westernization."305
The alleged double standards used by the West in its relations to
the outside world together with feelings of being picked on are haunting the Russian
discourse.
PACE Delegate Margelov, in this regard, noted that "the spread of democracy  la Europe
requires not only delicacy but also deep insight into the peculiarities of cultures. [...] The
intercultural dialogue is important as far as it protects from the risks that arose from the
spread of democracy."306
In the view of Russian delegation to the PACE, culture should serve
as a shield from an unconditional democratisation using one particular model, that is,
European democracy, which is offered as a filling that fits all jars. The fear of being subjected
to European supervision is strong. In words of Alexandr Panarin, "the Western civilisation,
politically and economically dominant in the world, works as a reductionist system,
decreasing the socio-cultural and life building diversity of the world in course of the allpervading
westernisation. The very concept of Westernisation presupposes the existence of
one and the only subject of history ­ the West ..."307
Panarin's conclusion suggests that Russia perceives human rights as a tool of assimilation
and reduction of the world's diversity used by the Western politicians searching the
304
Medvedev, 5 June 2008 Emphasis added.
305
Morozov, 2002, p. 426. For similar conclusion see Lukasheva, 2007, p. 333.
306
PACE, 18 April 2007. Emphasis added.
307
Panarin, 2005, p. 50.
88
fulfilment of the idea of universal justice. Doubts are consequently raised whether the
`secular liberal' concept of human rights can be accepted as universal "without an
appropriate correction" for Russian conditions.308
The position of the Russian Orthodox
Church can serve as a clear example. According to Patriarch Alexei II, rights have to reflect
morality; without morality, rights lose their significance and emancipatory character.309
The
dominant Russian discourse within the PACE seems to hold the position that human rights
need to be transformed for Russian conditions and that it is the Russian culture that serves
as a shield against the assimilation efforts caused by the process of globalisation.
In the Russian view, Russia made some spectacular developments in the last fifteen years
and is on a good path to continue. However, the West pushes for reforms too vigorously and
impatiently. In words delegate Slutsky asked "why should Russia's move to full democracy
be excessively fast? After all, the United Kingdom [has] a monarchy but [does not] have a
written constitution. After seven decades of totalitarian rule, there was a need for
patience."310
The notion that European values, including human rights, need to be
transformed for Russian conditions, or even chosen among, is further repeated.
Thus, the conclusion to draw is the notion that human rights are not simply applicable, they
need time to develop and to go through domestic contestation.311
From the Russian point of
view, the USSR dissolved only seventeen years ago, and some authors continued predicting
the dissolution of Russia itself as late as 2001.312
Russia, in this sense, cannot become
westernized overnight and, moreover, the complete westernisation is out of the question.
The special sensitiveness is blatantly obvious once the subject of Chechnya is touched upon.
The most usual answer which follows is that "the method for combating terrorism [is] the
same around the world,"313
so why should Russia alone be criticized for following the same
policies?314
The PACE in this sense comes under double fire. On one hand, it is criticized from
308
Lipman, 2 May 2006.
309
PACE, 23 January 2007.
310
Idem, 22 June 2005b.
311
For the model of domestic contestation see Tsygankov, 2001. For its application on perception of human
rights in Russia, see Preclík, 2009.
312
See, inter alia, Tayler, 2001.
313
PACE, 29 June 2006.
314
For an interesting comparison of Russian conduct in Chechnya with US conduct in Iraq see Chomsky, 2006.
89
the side of important NGOs for not doing enough,315
while Russian delegates blame it for
excessive politicization, bias and double standards, on the other. As one of the Russian
delegates noted, she "had a feeling that [her] colleagues from Russia and [she] were in the
dock in a courtroom."316
Other delegate vigorously objected the "shocking paternalistic tone
of the report [about honouring the Russian commitments to regime of CoE]"317
The very
same delegate raised deeply flawed, but characteristic note that "it was a paradox that the
country that had liberated half of Europe from Nazism was now being criticized for not being
democratic enough."318
In other words, the saviour of Europe should be praised, not
criticised and taught how to become better.
From Russian perspective, there is "no absolute freedom anywhere in the world, no perfect
democracy, and no government that does not lie to its people. In essence, all are equal by
virtue of sharing the same imperfections."319
Russia then positions itself as a victim that is
being picked on, a scapegoat to cover the misdeeds of others. Following a similar thread,
Dmitri Trenin observed that Moscow "has grown assertive and occasionally arrogant. The
humility of the post-Soviet period has passed. [...] Russian leaders do not care much about
acceptance by the West; even the Soviet Union worried more about its image. [...] Public
relations and lobbying are simply not high on the Kremlin's agenda. [...] Russia, the Kremlin
believes, will get bad press in the West almost no matter what it does, so why bother?"320
Having said the above, the question necessarily arises, why Russia remains inside the CoE as
long as it feels forced to accept rights too quickly and without questions, and thus is not
independent enough. In the language of William D. Jackson, "[g]overnments emerging from
an authoritarian past have tended to view admission to the council as a way to legitimize
their claims to a democratic status that may be in question at home and internationally and
also as an affirmation of their membership in political Europe."321
Therefore, the situation is
315
For one of the latest examples, see Amnesty International, 15 April 2008, or Human Rights Watch, March
2008.
316
PACE, 22 June 2005a.
317
Idem, 22 June 2005b.
318
Idem.
319
Trenin, 2007b.
320
Idem, 2006.
321
Jackson, 2004, p. 24-25.
90
as ambiguous as it can be. On one hand, Russia holds on to its commitment to the European
human rights regime, on the other hand, it refuses to accept it fully and immediately.
In order to conclude the examination of the current human rights discourse in Russia, I argue
that what happens in the Russian context is a securitisation of identity. As one scholar put it,
when one portrays Westernization as a threat, "societal identity plays the role of the
referential object of a security discourse, and thus the danger of entropy is perceived as an
existential threat to society itself. If the West is allowed to succeed in its universalizing
project, society will cease to exist. From this point of view it does not matter that `entropy'
brings no physical threat to individual human beings -- every one of us may be alive and
well, but we will no longer be us."322
Human rights are being perceived as tools of globalisation, hampering the development of
the Russian economy and threatening to assimilate the Russian culture are apprehended as
hostile semantic variables challenging the dominant practices, systems of legitimisation and
the overall system of meanings of the society. In other words, rights are being securitised
upon as they are perceived to be imposed from outside with the aim of dissolving and
assimilating Russian society into the emerging `global West'.
How can one understand the concept of securitisation? As Thierry Balzacq argued,
securitization should be understood as a strategic-pragmatic practice that occurs "within,
and as part of, a configuration of circumstances, including the context, the psycho-cultural
disposition of the audience, and the power that both speaker and listener bring to the
interaction."323
The domestic discursive space closes itself and by using "various artefacts
(metaphors, emotions, stereotypes, gestures, silence, and even lies)"324
it attempts to
discredit or exclude some variables from the contestation cycle.
As I illustrated, Russian delegates to the PACE, on one hand, recognise the commitment of
Russia to the European regime of human rights protection including the authority of the
ECtHR, however, blame the West for bending the original meaning of rights, for unlimited
322
Morozov, p. 419.
323
Balzacq, 2005, p. 172.
324
Idem.
91
broadening of the understanding of the ECtHR,325
or for undisguised use of double standards
in assessing the situation in different CoE member states. To put it differently, human rights
seem to be the case of variables being securitised upon by the state elites and, simply put,
by the state itself.326
Three basic assumptions need to be fulfilled for effective securitisation. Such securitisation
needs to be audience-centred, context dependent and power-laden. As Balzacq explained,
"the first of these has three components -- (i) audience's frame of reference; (ii) its
readiness to be convinced, which depends on whether it perceives the securitizing
actor as knowing the issue and as trustworthy; and (iii) its ability to grant or deny a
formal mandate to public officials. The second set of factors concerns contextual
effects on the audience's responsiveness to the securitizing actor's arguments --
relevant aspects of the Zeitgeist that influence the listener, and the impact of the
immediate situation on the way the securitizing author's sentences are interpreted by
the listener. The third set involves the capacity of the securitizing actor to use
appropriate words and cogent frames of reference in a given context, in order to win
the support of the target audience for political purposes."327
The importance of attention given to the role of the audience is pivotal. As Anderson put it,
"individuals decide what sources of information to use, how much information to
receive/consume, and what conclusions to draw from this information."328
Russian public is indeed able to grant a formal mandate for the state officials as the election
has become the only means of legitimisation within the state. In that sense, a successful
exertion of influence over the domestic discourse proved necessary for domestic political
conduct. The authoritarian practices of Putin's regime provided the means for effective
control over the dominant discourse; however, they did not prove to be cardinal for the
securitisation of the discourse. As Mankoff argued, the Russian public "increasingly
325
Consider the example of ever widening of the scope of the Article 8 (right to private and family life). See
Ovey and White, 2006, p. 241-299.
326
Kassianova, 2001, p. 825.
327
Balzacq, 2005, p. 192.
328
Anderson, Paskeviciute et al., 2005, p. 777.
92
identif[ies] with traditional Russian values of centralization, a strong state, and an emphasis
on Russia's uniqueness,"329
therefore, the arguments used by the securitising agent
correspond with the Zeitgeist of the audience. Therefore, the need to exercise strict control
over the dissemination of information decreases as the Russian audience finds the public
officials and their version of the world trustworthy and knowledgeable on the issue.
Thus, I argue that the conditions for successful discourse securitisation are fulfilled and
indeed used by the Russian political elites. The Russian state, in this sense, effectively
securitises upon human rights using a myriad of national myths, constructing the image of
negative Western-led globalisation and of the danger of assimilation and the loss of the
Russian culture. Such a defence is offered in the form of rejecting human rights and other
liberal principles as being of secondary importance in comparison with societal identity.
Thus, what Russia demands is a much wider margin of appreciation due to its special nature.
However, the stronger the securitising policies are the stronger is the clash with the much
"deeper discursive structures within Russian society that have to do with Russia's selfperception
as a European nation."330
The centuries of balancing between Europe and nonEurope
resurface again as the securitisation of the Russian discourse may proceed only up to
a certain point in order not to cross the line and turn its back on Europe completely.
5.4 Assessing Court's impact
In the previous two subchapters, I analysed the interaction between the CoE together with
ECtHR and the Russian Federation. I, firstly, examined the practical interplay searching for
the measurable and traceable impact of the Court's ruling on the situation on the ground.
Secondly, I looked at the applied discourse for it is the deliberative discourse validation that
contributes to the strength and efficacy of the regime.
In the first case, one could observe somewhat mixed results. On one hand, Russia complies
with Court's ruling, habitually pays the ordered reparations, allows to a certain extent the
individual redress in form of re-opening of the investigations, making the investigation files
329
Mankoff, 2007, p. 129.
330
Idem, p. 422.
93
accessible, or offering to establish a database of disappeared persons, and also engages on
the legislative level in drafting new bills better suiting the framework of the ECHR. Court has
helped in identifying of problematic areas and filling gaps in national legislation331
and its
rulings led Russian authorities to adopt new rules on use of force, invest in improving the
detention system in Chechnya, and reduce the number of disappearing people. The
judgments arguably also served to confirm, judicially, a policy of legal nihilism of the
domestic authorities towards Chechnya and its inhabitants.332
Such continuous international
spotlight certainly impacts Russia's relations with the EU and other international actors, and
especially its negotiations for a replacement for the Partnership and Cooperation
Agreement.333
Moreover, the Court remains the only institution capable of stable and
continuing oversight of the situation in Chechnya.
On the other hand, implementation of these steps is often virtually non-existent, re-opened
investigations are being suspended again, and many of the redress steps remain in existence
only on paper. The growing corpus of Chechen cases is nevertheless significant because it
delivers a degree of justice for the applicants and their families, it ensures that the
international spotlight is intermittently directed at the region and its authorities, and they
provide a measure of accountability.334
What can one read from these mixed results? In the theory chapter, I argued that the
phenomena of judicialization may be understood also through the Putnam's two-board
game. It is exactly this model in which one could find plausible answers for Russian
behaviour. The interdependency of the international and domestic spaces is crucial.
However, the problem with such a complex game is that moves which may be rational for
one board may seem unsuitable for the second one. Thus, moves convenient for the
international level of the game may be discarded simply for their unwanted backfire on the
domestic level and vice-versa. Therefore, the political decision makers try to reconcile the
domestic demands and international imperatives simultaneously.
331
Keller and Sweet, 2008, p. 691.
332
Leach, 2008, p. 760.
333
Bowring, 2008, p. 12.
334
Leach, 2008, p. 762.
94
Building on Putnam's two-level game model, Mette Skak proposed two hypotheses suiting
the Russian context. For the domestic level game board, she claims that the hegemonic winset
in Russia tends to be an "illiberal one of derzhavnik anti-Americanism and neoimperialism,
but no extremist."335
As for the foreign policy game board, the relevant win-set
is one of "liberalism that accepts the unique power of the USA and hence implies
bandwagoning, not balancing."336
In other words, the situation in contemporary Russia led
to the creation of two conflicting win-sets, the illiberal centralised set for the domestic game
(and thus hostile to broad human rights inclusion and recognition) and, on the other hand, a
liberal pro-Western set in the realm of foreign policy which favours the Western view of the
fundamental position of human rights, including the acceptance of the ECtHR jurisdiction
over Russian matters.337
Harmonising between the two levels brought along two seemingly contradicting dynamisms.
On the international level, the dynamic supported the Russian willingness to submit to the
ECtHR rulings and apply some of the requested general measures. This stems from the
inescapable need to legitimise itself within the community of states. As Dmitri Trenin
observed, the Russian Empire and the USSR were "self-contained, self-sufficient, and selfsustaining.
The Russian Federation is exactly the opposite."338
In this sense, Russia needs to
be part of the community and, thus, define itself towards the values of the community.
On the domestic level, however, the societal opposition to the excessive opening to the
West led to securitisation of the discourse connected with the Council. In this regard, the
then President Putin managed to create a fairly homogenous view of the Russian national
character, which "increasingly [identifies] with traditional Russian values of centralization, a
strong state, and an emphasis on Russia's uniqueness,"339
but which, however, perceives
human rights as outside values that are strange to Russian culture.
335
Skak, 2005, p. 87.
336
Idem..
337
See Skak, 2005.
338
Trenin, 2007a, p. 17.
339
Mankoff, 2007p. 129.
95
It is exactly the symbolical power of the ECtHR under which regime "anything and everything
is justiciable"340
to grant legitimacy to certain types of actions and, on the other hand,
delegitimize others that bestows the Court the most significant part of its capacity to
influence the behaviour of its members.
Let me recall that judicialization of dispute resolution is the process through which a triadic
dispute resolution mechanism (TDR) appears, stabilizes, and develops authority over the
normative structure governing exchange in a given community. In this sense, it is indeed the
Court that established the normative discourse over the conflict in a way that no other
framework could have done. Compared especially to the rules governing the internal armed
conflict under Common Article 3 and Additional Protocol II, the Court managed its definition
of the conflict to be accepted by Russian authorities and, thus, is able to assess the situation
on its own terms.
However, the analysis has also shown several weak point of the judicialized regime of the
Council. Firstly, if there is unwillingness in the community of members to effectively pressure
the guilty government, the enforcement regime cannot be upheld by the trustee itself. The
trustee is not established to police over its principals, but to lend the legitimacy needed to
governments' policies. Thus, if a government effectively securitize its discourse and actions
against the trustee, it is up to the community of members to reflect such situation. After all,
the judicialization of world politics has not created new principals in the international system
but rather allowed the existing ones to regulate their mutual interaction within the
international community in new ways.
Secondly, despite some enabling features the Court possess, especially the option of
pronouncing the pilot judgments, the Court faces more and more its limited potential to deal
with large scale and continuous human rights violations. Each case needs to be assessed on
its own individual merits, Court gets flooded with hundreds of applications, and its ability to
demand large scale remedies is undermined. In this sense, some have already proposed that
the Court should be changed into a constitutional court of Europe and deal only with the
340
Hirschl, 2008, p. 128.
96
appalling cases of its own choosing.341
Such change would surely enhance its position vis--
vis the large scale violations, however, the proposed change has not yet found enough
support even among the majority of scholars, diplomats, or politicians within the Council.
However, only through analysing the discourse applied by both the CoE and Russia can one
appreciate the significant role played by the Court. Despite the applied securitisation, it is
the Court that establishes and maintains the discourse. Together with the position the
international law enjoyed in the current international system and the special judicial
discourse applied in the world politics today when "nothing falls beyond the purview of
judicial review; the world is filled with law, anything and everything is justiciable",342
the
Court possesses strong creational power to identify, assess, and condemn, if needed, any
situation arising from an armed conflict. Such powers then put the legitimisation within the
organisation on a distinguishably new level.
Before I turn to the conclusion, one more point should be made. Notwithstanding the impact
the Court already had on the situation, there is one paramount challenge in front of it in
connection to the war between Georgia and Russia in 2008.
As of October 2008, the Court has received some 2,000 applications from people living in
South Ossetia against Georgia. As well as the 2,000 individual applications from South
Ossetians against Georgia, the European Court of Human Rights registered two outstanding
interstate claims by Georgia against Russia, the first dating from 2007 and the second from
the recent war.343
Similarly, 32 groups of cases on behalf of 132 Georgian citizens claiming
killing or injuring civilians, destruction of property, or illegal detention, all committed by
Russian soldiers, were lodged with the Court.344
In any case, the Court has already taken an unprecedented step in this regard while reacting
to the war over Ossetia last summer. On 11 August 2008, with Russian forces heading to
Tbilisi, Georgia applied to the ECtHR to the effect that Russia should refrain from taking any
measures which may threaten the life of the civilian population, and allow creating of a
341
See, among others, Wildhaber, 2007.
342
Hirschl, 2008, p. 128.
343
AlertNet, 06 October 2008.
344
Bowring, 2009, p. 277.
97
humanitarian corridor to evacuate remaining civilians and soldiers. On the following day, the
Court decided to apply such measures considering the risk of serious violations of the
Convention. Russia, however, repeatedly ignored in the communications to the Court
specific facts submitted by the Government of Georgia. Moreover, Russian Federation
artificially confined the area of applicability of the measures indicated to the territory of
South Ossetia, while the allegations of the Government of Georgia reach far beyond South
Ossetia.345
The Court, in this sense, effectively tried, with rather limited success, to pronounce itself on
a situation of an armed conflict in its initial stages and protect the rights enshrined in the
ECHR a priori, not only after the violation was committed. If such measure had proved
successful, it would have brought an unforeseen level of Court's impact over the states'
conduct in situations of war.
It would be of principal importance that the Court proves its role and its impact while
adjudicating the cases originating in this interstate conflict between two of the Council's
members. The case law and tools necessary to such task are certainly available.
345
OSCE, 6 October 2008
98
6. Conclusion
"Winning the case in Strasbourg and getting the government to pay the compensation
is a small victory for me. [...] The real result can only be in finding out what happened
to [my husband], at least in learning where his bones are. [...]There must be an end to
this, a conclusion."
-- Medina Akhmadova346
It is intriguing how people have bestowed their trust into courts and valued their opinion
over any other, be it that of experts, politicians, and often friends. Judicial decisions have
acquired, at least in the Western culture, status of standing above the routine quarrels of
everyday life. Law is believed to be able to bring about the final answers, decide on right and
wrong, and deliver justice. Despite the many gaps such conviction encapsulates, the position
of judges as final, neutral, disinterested, and objective arbiters holds unshakeable position.
On the level of state, the democratic society cannot live without judges. Courts have been
asked to rule on disputed elections, on matters of war, distributive justice, on
macroeconomic matters, or foreign policy choices. Courts, in this regard, are asked to decide
on watershed political questions with obvious high political stakes involved are given the
creational power to influence the idiographic self-understanding of the polity, including the
international polity.
The arena of international politics is witnessing a move similar to that on the domestic level.
States bestow part of their sovereign political rights into trustees with judicial powers with
the aim of enhancing the legimacy of their actions, increasing their reputation in especially
complicated and non-reciprocal cooperative games, and improving their image vis--vis third
actors. International politics moves to legalized and judicial modes of cooperation which lie
in the expansion of the province of judges in determining public policy outcomes but more
broadly also in "spread of legal discourse, jargon, rules, and procedures into political sphere
and policy-making fora and processes."347
346
Quoted from Human Rights Watch, 27 September 2009.
347
Hirschl, 2008, p. 121.
99
This move is further accompanied by a wave of new scholarship coming from the overlap of
disciplines of international law and international relations. However, despite the research
already conducted on why states commit to the non-reciprocal, binding, and domestically
intrusive human rights regimes, and why they usually obey the rulings of such regimes, we
lack knowledge how these rulings impact the foreign policy behaviour in longer terms. It was
my point of departure to ask whether the judicialization of international politics has reached
a level where it can influence the long term patterns of state's practices.
In order to answer my question, I chose the probably strongest international human rights
regime equipped with a judicial body and examined its influence on its most lenient
member. Precisely, I chose the regime of Council of Europe equipped with the European
Court for Human Rights and examined its impact on the behaviour of Russian Federation. It
was exactly for its tiptoeing on the edge of the European system that I chose Russia for my
case study as it is, in my view, the strongest example to study the possible impacts of the
ECtHR on states' policies.
I further limited my research on cases originating in situations of armed conflict. In case of
Russia, these cases originate primaily from Chechnya as applications concerning the last
year's war over the region of South Ossetia are only in the initial stages of consideration.348
It
was my aim to prove that the Court possesses the necessary capacity to influence the
strategic behaviour of its members even in what states perceive to be the core of their
interest: their national security. In other words, it was my aim to analyze the degree of
judicialization on the edge of the regime and in the area where states protect their
sovereignty most rigorously.
I argued that application of the ECtHR doctrine helped to improve the legal oversight over
situations of armed conflict and that despite several drawbacks it improved the compliance
of Russia with legal provisions of the regime while conducting the enforcement activities. I,
further, argued that the Court as a designated trustee of its creators within a unique triadic
regime has managed to perpetuate and maintain the dominating normative discourse of
348
Note, however, the interim measure applied by Court on 12 August 2008. See the previous chapter.
100
human rights while rendering legitimacy to the decisions of state authorities on both levels
of Putnam's game, that is, on both domestic and international levels.
In order to assess my hypothesis, I built on the model of Alec Stone Sweet who argued that
the degree of judicialization is "observable, and therefore measurable"349
as it depends on
the ability of the judicial mechanism to develop authority over the normative structure
governing exchange in a given community and progressively shape the strategic behaviour of
political actors.350
Aiming at operationalising the "progressive shaping of the strategic behaviour of political
actors" I chose to analyse the Court's ability to press Russia to change its policies based on
the UN Draft Articles on Responsibility of States for Internationally Wrongful Acts, a nonbinding
document setting the obligations of states found committing wrongful acts under
international law. Under these principles, the State responsible for the internationally
wrongful act is under an obligation (a) to cease that act, if it is continuing; (b) offer
appropriate assurances and guarantees of non-repetition, if circumstances so require; and
(c) make full reparation for the injury caused by the internationally wrongful act.351
As a result of applying this model, I found that the Court, while delivering some 117
judgments concerning the situation in Chechnya, has indeed managed to press Russia to
make full reparation for the wrongdoings and achieved considerable level of cooperation
from Russian authorities aimed at offering appropriate assurances and guarantees of nonrepetition
of these acts, however, did not manage to press Russia to effectively implement
these assurances, as well as to cease all these acts, but only to limit their number.
In this sense, apart from the individual remedies, ECtHR has generally asked Russia to put in
place measures in three broad areas. Firstly, the Court asked for investigation and the reopening
of domestic proceedings. Secondly, it asked for changes in legislation, regulation,
and practice in order to address the underlying systemic causes of the violations. In response
to the Court's jurisprudence, Russia was prompted to implement military and administrative
349
Sweet, 1999, p. 164.
350
Idem.
351
UN International Law Commission, 2001, p. 51, articles 30 and 31.
101
reforms such as revisions of manuals of military practice, record keeping and registration of
detentions, and guidelines for the investigation and prosecution of unlawful killings and
enforced disappearances.352
Thirdly, the Court demanded that training of armed forces,
security forces, law enforcement agencies, prosecutor and judges as to respect the
standards of the ECHR was put in place in order to prevent future violations.
I believe that I proved my hypothesis in the sense that the Court has indeed helped to
improve the legal oversight over the situation of armed conflict in Chechnya and compliance
of Russia with legal provisions of its regime. The highly detailed norms set in the ECHR
together with its case law allowed the Court to assess situations of enforced disappearances,
unlawful killings, unacknowledged detentions, torture and ill-treatment and destruction of
property attributable to members of the Russian security forces, and establish a firm
normative legal framework that Russia acknowledges as legitimate and valid.
That is a major success for an international judicial body. No other international tribunal can
apply its influence on a scale as the ECtHR. However, as is obvious, the Court did not and
could not have asked Russia to stop the conflict; neither did it pronounce itself on the rights
of Chechens for self-determination as none of this falls within the scope of rights protected
by the ECHR. In this sense, the main thrust of Court's activity is to impose procedural
guarantees on the activities undertaken by the state, not to allow or forbid them per se as no
course of action can be fully ruled out from lawful possibilities during the war (as the nonliquet
decision of the ICJ on usage of nuclear weapons showed).353
In other words, the Court
avoids as much as it can "making a determination on substance of the specific executive
action, and instead [aims at clarifying] the consideration that the executive must take into
account in exercising its discretion."354
In this sense, the Court managed to impose its understanding of the conflict's nature on the
respective member and to offer permanent body of applicable rules. The mere fact that
Russia acknowledges the applicability of these rules proves the influence of the Court as it
creates a solid framework for assessment of the situation on the ground. Such framework
352
Barrett, 2008, p. 142.
353
ICJ, 08 July 1996.
354
Benvenisti, 2008, p.24.
102
then ensures that the international spotlight is intermittently directed at the region and its
authorities and provides a measure of accountability. The acceptance of Court's
jurisprudence has effectively limited the negotiating and discursive space of Russian
authorities while dealing with their international counterparts. In this sense, I believe I
proved that the Court managed to develop authority over the strategic behaviour of its
members.
How can one understand the partial success of the Court especially as there are hardly any
coercive or attracting measures the regime can apply while seeking enforcement of
judgments? I argued that states seek to enhance their standing within the community of
regime members and maintain their perceived role. It is exactly the nature of human rights
as the recently strongest legitimising global discourse that attracts states to seek legitimacy
through regimes such as Council of Europe.
However, in case of Russia, the relationship is somewhat strained due to uneasy dynamism
between the domestic and international level of Putnam's two-level game as the win-sets on
both levels tend to contradict one another. The situation in contemporary Russia led to the
creation of two conflicting win-sets, the illiberal centralised set for the domestic game which
is hostile to broad human rights inclusion and recognition and, on the other hand, a liberal
set in the realm of foreign policy which favours the Western view of the fundamental
position of human rights, including the acceptance of the ECtHR jurisdiction over Russian
matters.355
Understanding of these tensions is crucial for any future analysis of Russian
behaviour within the Council.
In this sense, the claim of Alec Stone Sweet that judicialization serves as socialization is
somehow undermined. Moscow indeed gained experience with dispute settlement and
stable application of its rules, which enhanced the legal certainty in Russia, however, the
time when Russian government "can afford to view triadic rule making as a useful, costeffective
guarantor of regime functioning"356
has yet to come. For the time being, the triadic
mechanism is seen as mostly undermining the government's stabilisation efforts.
355
Skak, 2005.
356
Sweet, 1999, p. 158.
103
Further, the analysis of regime of the CoE proved several significant weaknesses of judicial
regimes and their ability to impact world politics.
Firstly, despite the enabling features the Court possess, especially the option of pronouncing
the pilot judgments, the Court increasingly faces limits of its potential to deal with large
scale and continuous human rights violations as each case needs to be assessed on its own
individual merits. Court is currently flooded with hundreds of applications, and its ability to
demand large scale remedies is undermined. In this sense, the research confirmed that there
is a danger that the Court will `choke' on the huge number of cases coming from conflict
zones ­ the ECtHR has so far received more than three thousand applications concerning the
conflict between Georgia and Russia over South Ossetia and has to deal with each one of
them separately.
The question, thus, arises whether the Court disposes with the capacity necessary to decide
upon situations of large-scale violations, and what demands should be put on parties to the
ECHR while protecting human rights during the armed conflict. Therefore, discussion
whether the Court should change into a quasi constitutional court dealing only with cases of
systemic nature of its own choosing then gains importance.
Secondly, the analysis proved Clifford J. Carrubba's point that "the court rules against a
government if and only if it observes a low cost defection and, when it does rule against that
government, the court imposes a judgment that will be obeyed." 357
This can be seen in
Court's refusal to hold that enforced disappearances in Chechnya constitute an
administrative practice despite the ample evidence to this end. Deciding on the existence of
administrative practice (or only rendering a pilot judgment) concerning the enforced
disappearances would increase the price of compliance too high for Russia as "such a
holding would be problematic from a diplomatic perspective due to its possible implications
for Russia's continued CoE membership."358
Thirdly, it has to be stated that the Court's regime proved somehow weak while adjudicating
on cases outside the members' territories. If the Court is to continue adjudicating on
357
Carrubba, 2005, p. 676.
358
Barrett, 2008, p. 142.
104
situations arising from armed conflict, it would need to set clearer thresholds and
prerequisites for applicability of the ECHR in such conflicts. The current opaque nature of
applicability conditions prevents the Court to effectively continue oversight of activities of its
members while applying lethal force in international armed conflicts.
However, analysing only the rates of Russian compliance with the Court's ruling would
render the scope of the analysis unsatisfactory. I believed, together with Ian Hurd, that I
need to focus not only on rates of compliance but also on the reasons given for compliance
together with reasons given for non-compliance. Thus, I, secondly, examined the position of
"those possessing the social power to define the foreign policy agenda"359
in order to
evaluate the discourse applied by Russian authorized speakers vis--vis the Court. Such
analysis was needed because more important than a fact whether a certain rule was broken,
was how such behaviour was interpreted by members of the community and what
communicative behaviour (reproach, apologies, justification, disagreement) such decision
brought about.360
Examining the discourse applied between the Council and Russia, I had to conclude that
what happens in the Russian context is a securitisation of identity. This securitisation stems
from the high number of high profile cases that Russia lost in Strasbourg, each of which
undermined the key claim made by Vladimir Putin that his regime "brought law, order, and
prosperity to Russia."361
As I illustrated, Russia, on one hand, recognises its commitment to the European regime of
human rights protection including the authority of the ECtHR, however, blames the Council
for bending the original meaning of rights, for unlimited broadening of the understanding of
the ECtHR, or for undisguised use of double standards in assessing the situation in different
CoE member states. As one scholar put it, when one portrays Westernization as a threat,
"societal identity plays the role of the referential object of a security discourse, and thus the
danger of entropy is perceived as an existential threat to society itself."362
359
Morozov, 2002, p. 411.
360
Hasenclever, Mayer et al., 2005, p. 19.
361
Trochev, 2009, p. 146.
362
Morozov, p. 419.
105
As the observed securitisation proved, to ostracise Russia for not following the way of
Central European countries is futile. Once admitted, Russia, similarly to Turkey, would
inescapably remain somehow on the margins of the organisation. However, despite the
applied securitisation, it is the Court that possesses strong creational power to identify,
assess, and condemn, if needed, any situation arising from an armed conflict. Such powers
then put the legitimisation within the organisation on a distinguishably new level.
Nevertheless, the fact that the Russian Gulliver allows the Court to tie in a considerable way
by accepting its jurisdiction over Russian internal matters should be considered as the selfevident
prove of significance of the strength of the regime. For the capacity to lend
legitimacy to different state actions lies in the core of Court's powers.
106
7. List of abbreviations
CoE Council of Europe
CLAHR Committee on Legal Affairs and Human Rights of the PACE
CPT Committee for Prevention of Torture, Council of Europe
ECHR Convention for the Protection of Human Rights and Fundamental Freedoms
ECtHR European Court for Human Rights
ECJ European Court for Justice
EHRAC European Human Rights Advocacy Centre
EU European Union
ICC International Criminal Court
ICJ International Court of Justice
ICTY International Criminal Tribunal for the former Yugoslavia
ICTR International Criminal Tribunal for Rwanda
NATO North Atlantic Treaty Organisation
PACE Parliamentary Assembly of the Council of Europe
TDR triadic dispute resolution
UN Organisation of United Nations
WTO World Trade Organisation
107
8. List of referred ECtHR judgements
AKHIYADOVA v. RUSSIA, application No. 32059/02, judgment of 03 July 2008.
ASSANIDZE v. GEORGIA, application No. 71503/01, judgment of 08 April 2004.
BANKOVIC, STOJADINOVIC, STOIMENOVSKI, JOKSIMOVIC and SUKOVIC v. BELGIUM, THE
CZECH REPUBLIC, DENMARK, FRANCE, GERMANY, GREECE, HUNGARY, ICELAND, ITALY,
LUXEMBOURG, THE NETHERLANDS, NORWAY, POLAND, PORTUGAL, SPAIN, TURKEY and
THE UNITED KINGDOM, application No. 52207/99, decision on inadmissibility of 12
December 2001.
BAZORKINA v. RUSSIA, application No. 69481/01, judgment of 27 July 2006.
BRONIOWSKI v. POLAND, application No. 31443/96, judgment of 22 June 2004.
CHITAYEV AND CHITAYEV v. RUSSIA, application No. 59334/00, judgment of 18 January 2007.
CYPRUS v. TURKEY, application No. 25781/94, judgment of 10 May 2001.
HUSSEIN v. ALBANIA, BULGARIA, CROATIA, CZECH REPUBLIC, DENMARK, ESTONIA,
HUNGARY, ICELAND, IRELAND, ITALY, LATVIA, LITHUANIA, THE NETHERLANDS, POLAND,
PORTUGAL, ROMANIA, SLOVAKIA, SLOVENIA, TURKEY, UKRAINE AND THE UNITED
KINGDOM, application No. 23276/04, decision on inadmissibility of 14 March 2006.
ILASCU AND OTHERS v. MOLDOVA AND RUSSIA, application No. 48787/99, judgment of 08
July 2004.
ISAYEVA, YUSUPOVA AND BAZAYEVA v. RUSSIA, applications No. 57947/00, 57948/00, and
57949/00, judgment of 24 February 2005.
ISAYEVA v. RUSSIA, application No. 57950/00, judgment of 24 February 2005.
ISIGOVA AND OTHERS v. RUSSIA, application No. 6844/02, judgment of 26 June 2008.
KAYA v. TURKEY, application No. 22729/93, judgment of 19 February 1998.
KHADISOV and TSECHOYEV v. RUSSIA, application No. 21519/02, judgment of 05 February
2009.
KHASHIYEV AND AKAYEVA v. RUSSIA, applications No. 57942/00 and 57945/00, judgment of
24 February 2005.
LULUYEV AND OTHERS v. RUSSIA, application No. 69480/01, judgment of 09 November
2006.
McCANN v. THE UNITED KINGDOM, application No. 18984/91, judgment of 27 September
1995.
MEDOV v. RUSSIA, application No. 1573/02, judgment of 08 November 2007.
MUSAYEVA AND OTHERS v. RUSSIA, application No. 74239/01, judgment of 26 July 2007.
RUSLAN UMAROV v. RUSSIA, application No. 12712/02, judgment of 03 July 2008.
SALATKHANOVY v. RUSSIA, application No. 17945/03, judgment of 16 October 2008.
108
SCOZZARI AND GIUNTA v. ITALY, applications No. 39221/98 and 41963/98, judgment of 13
July 2000.
SEJDOVIC v. ITALY, application No. 56581/00, judgment of 10 November 2004.
SHAMAYEV AND OTHERS v. GEORGIA AND RUSSIA, application No. 36378/02, judgment of
12 April 2005.
TANGIYEVA v. RUSSIA, application No. 57935/00, judgment of 29 November 2007.
UNITED COMMUNIST PARTY OF TURKEY AND OTHERS v. TURKEY, application No. 19392/92,
judgment of 30 January 1998.
ZUBAYRAYEV v. RUSSIA, application No. 67797/01, judgment of 10 January 2008.
109
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