Law and National Interest

25 september 2016

Or Europe Is Not an End in Itself

Alexei Klishin is a professor, Director of the Center for Sociology of Law at the Institute of Socio-Political Research; and Head of the Advocacy Department of the Moscow State Institute of International Relations (MGIMO). He holds a Doctorate in Law.

Resume: Russia should reasonably assess the need for itself to participate in old, mostly European, formats of integration, and to think of new formats that would be more consistent with modern requirements. The principles of Russia’s interaction should be revised in favor of greater pragmatism and protection of national interest.

“It is a grave error to suppose that a law that surveys
all things evenly and without being influenced
by political and economic interests can exist at all.”
Oswald Spengler. The Decline of the West

Current events in Europe are causing concern among many Europeans and excitement among political analysts. We are accustomed to an Old World that is a land of prosperity and order, with respect for the law and tranquility. Of course, many things have happened in Europe, but the current situation—from rampant anti-Russian rhetoric and economic sanctions, to helplessness in the face of an influx of newcomers, not always invited and not willing to live according to European rules—is perplexing.

Of the many economic, political, cultural, and legal problems Europeans are facing, we are interested in the latter, because all events are subject to legal regulation and should meet certain standards, practices, or general legal notions. Such is the habitual formula of “civilized” existence. One should not think that Russia is just an observer watching what is going on from a safe distance. We are integrated into European life more thoroughly than it might seem; this is why interaction in all areas requires a careful, correct, and considerate attitude towards each other.

From Balance to Diktat?

The modern legal development of European countries, individually and collectively, followed the economic and political imperatives of the postwar period, and what is called “the will of the ruling elites”—a group of the most developed countries of the West, led by the United States. Legislation could not ignore integration processes that took place under U.S. tutelage. In fact, a peculiar interaction emerged in Europe between provisions of international treaties and national legislators in the integrating countries. Their cooperation resulted in a rapid growth of the role of international rules and a steady degradation of national legislation. This process is inevitable, given the current balance between national and collective interests.

Until the end of the 1980s, in contrast to the integration of Western countries, a parallel process proceeded under the auspices of the Soviet Union. Its members did not shun interaction with the rest of the world within the framework of global cooperation processes (the UN and regional/sectoral organizations), while preserving their original legislative systems. The rules of the game within the two associations were similar, yet there was a great difference between them. In addition, competition between the associations required more effort in international cooperation to cohabit peacefully with national peculiarities.

The situation has changed in the last twenty-five years. Unifying aspirations of the more powerful players are not limited in any way, which makes “internal regulations” of the present associations much stricter. In this difficult situation, the Russian Federation is facing a choice between complying with the new code of conduct, already adapted—although not without reservations—by all Western countries, and thus sacrificing part of its sovereignty, or cooperating with its partners by respecting national laws. In fact, there already are answers in recent speeches by President Vladimir Putin, in new legislation, decisions by the Constitutional Court of the Russian Federation, and works by leading Russian lawyers. The answer is: we propose building relations based on mutual respect, not denying individuality to anyone, and making decisions by consensus. Naturally, this position is unacceptable to our partners, especially those who believe that their views are not subject to discussion.

Independence requires a rethinking of priorities, including those in legal development, which have remained unchallenged for twenty-five years. This should be done with caution, and not necessarily following the latest trend and justifying any extravagance by saying “everyone does it now.”

As a matter of fact, it is very convenient to justify eccentric decisions by state leaders, political parties, and parliaments as a conscientious desire to meet the needs of today’s world. For example, the idea of globalization and its practical implementation have required changing some habitual and life-tested principles of national sovereignty and subordinating national law to supranational legal mechanisms and rules, whose observance is monitored by special international institutions.

The conflict between national and supranational legal regimes is not at all academic. Often the “disobedience” of some states and their desire to meet their national interests in relations with international institutions evokes a strong reaction from the latter. They threaten to use sanctions and other coercive measures whose nature has nothing to do with the law, although they are often formalized in international legal instruments.

An increase in the number of treaties signed in the world, when two or more states formalized their obligations to each other and to third countries, did not begin after World War II, as is generally believed. The fashion for “pacts,” “axes,” and “alliances” was particularly popular in the late 19th-early 20th century, when it was customary to “make friends against someone.” Moreover, it is nothing new to introduce individual and collective embargoes, blockades, and other “mean sanctions” against rivals. The ringleaders are those who aspire to dominate economic and political spheres at a given moment and in a particular region.

In building a unipolar world order, the law plays a no less important role than the economy, politics, or ideology. Gradually, through the efforts of an enterprising and aggressive leader (the United States), a system of norms, rules of thumb, and priorities emerges, which can hardly be called “the law.” The Chairman of the Constitutional Court of the Russian Federation, Valery Zorkin, describes the specifics of relations between contemporary Russian law and international law in the following way: “Russia has adopted the provisions of the Convention (the European Convention for the Protection of Human Rights and Fundamental Freedoms, which established the European Court of Human Rights) as legal standards, in the development of which it did not take part.”

International treaties establish general rules for all signatories, which yield part of their sovereignty to implement those treaties. This is only fair. After all, no one compels countries to join international treaties. Before treaties enter into force, they undergo thorough and sometimes very expensive examinations, assessments, ratifications, etc. An act of ratification is nothing else but a law, the adoption of which obliges the state to comply with the approved regulations. At the same time, we must not forget that complying with those regulations should not be at variance with domestic laws and, especially, the constitution of the signatory state. There is a mechanism for adapting domestic law to international treaties. Finally, there is the good old principle of pacta sunt servanda (“agreements must be kept”). Therefore, it is important to consider all the pros and cons of joining an international agreement and not allow the domination of purely political motives.

Sharing Zorkin’s position concerning the hierarchy of international and national laws and supporting the decisions made in this regard (see, for example, the Constitutional Court’s Resolution No. 21-P of July 14, 2015), I would like to emphasize the need to protect the country’s national interest at an earlier stage—before it joins an agreement or an organization. It should take a more balanced and pragmatic approach to whether it needs to follow rules adopted in Western legal practice, no matter how “advanced” it may seem. Nor should a country hastily join various kinds of “clubs” which have their own strict membership rules and where Russia is often viewed as a donor, rather than a full-fledged member whose voice should be heeded.

The issue of joining international clubs of “common interest” deserves a closer look. Alexei Ivanov and Kirill Molodyko in their article “Sanctions and the World Order” (Russia in Global Affairs, No. 4, 2015) rightly described the practice of participation in collective action on the international scene as a kind of “club” engagement. This is true even from a legal point of view: if you want to be a club member, you should observe its rules and not dare have an opinion of your own, or you may be punished. It is important to emphasize that clubs establish special, preferential rules of conduct, standards, norms, and a peculiar “sparing” sense of morality for their members. Relationships with external players may be based on any kind of principle, which may seem unfair and immoral. This is the quality of international law (not only new law) which Professor Svetlana Polenina described as “softening.” And why not, even though this characteristic sounds dismal in relation to law.

The club mode of interaction between strong and weak members in the international arena makes sanctions and other instruments of collective pressure and containment (denying membership in the G7, infightings at international sports organizations, coordinated propaganda policies, etc.) possible and even common. Another battlefield is the judicial practices of international legal institutions, such as the European Court of Human Rights, the International Criminal Court in The Hague, and “private” international arbitration courts (Geneva, London, Stockholm, and Paris). Significantly, the well-being of these institutions is directly dependent on the goodwill of the leading powers, i.e., the “club leaders.” The rules and regulations are written for them, and decisions are made in their interests.

Never underestimate the power and solidarity of international leaders, and their efficiency, cynicism, and readiness for bizarre and mysterious actions in contempt of the fundamental principles of contemporary international relations. Perhaps there is some new interpretation of international relations and international law that differs from the habitual practice that developed after Potsdam. It blends, for example, the principles of equality of states and mutual treaty obligations with unilateral sanctions, extraterritorial jurisdiction, the freezing of state assets, and abductions of people by order of the national investigating authorities. It is important to understand to what extent such rules are now considered normal, because the idea that Western legal formulas, legislative decisions, and traditions are “civilized,” “fair,” and “modern” have been rooted in our minds for many years.

Lawyers, however, caution against the over-idealization of Western legal standards. Professor Veniamin Chirkin, an outstanding comparatist, wrote: “The capitalist liberal-social system is an underdeveloped social legal system. [...] Broadly, it is only a partially liberal and semi-social legal system, partially democratic and partially social.”

Renunciation of Sovereign Rights

The migrant crisis sweeping Europe has vividly highlighted imperfections in Western legal standards and mechanisms for resolving social and political conflicts. The European Union and individual European countries that indulge in liberal rhetoric have proved unable to cope with uncontrolled flows of refugees. They cannot regulate these processes within the framework of the existing mechanisms of national legal systems and new legal instruments of the European Community so that the rights of their own citizens are taken into account and the general humanitarian principles of tolerance, universal freedom, and prioritizing individual rights over the interests of society be respected.

It is indicative that, despite the best efforts by the EU and individual states, they have failed to reach a consensus on how to regulate this new and very complex phenomenon of international life, how to cope with this burden in conditions where they could refrain from hospitality and protect national economies. Some states like Germany or France see the benefit in the presence of many young, often well-trained workers in their countries. Others, on the contrary, are opposed to migrants; they build fences and attack refugee camps. But even in countries that are willing to host many refugees this process will not be painless.

Obviously, when making political decisions about migrants, very few thought that it was impossible to respect the civil rights of everyone in such conditions. These decisions have put into jeopardy the basic constitutional rights of native European nations: the right to work, the inviolability of the home, and social security. As a result, governments often have to make improvised decisions to protect immigrants at the expense of their own citizens and not apply in full the provisions of their national criminal, administrative, fiscal, and other laws.

The events in Cologne and other German cities on New Year’s Eve this year vividly illustrated the results of this thoughtless respect for global civil rights. Following the authorities’ instructions to ensure migrants’ rights, the German police ignored flagrant violations of the rights of German citizens and numerous criminal actions by aggressive “guests.” I share the opinion of Professor Boris Ebzeyev who said that “human rights, especially as interpreted by supranational courts, in fact play the role of the Trojan horse. The system of justice built on their basis will inevitably face a depreciation of national statehood and global or regional domination and submission.”

There is a similar situation in the economy. No doubt, many unification measures are necessary. The idea of total globalization is barely relevant now, but there is no denying that the unification of standards, technical regulations, and safety requirements is useful and even imperative. It should be noted, however, that countries are in no hurry to unify traffic rules, for example, or alter assembly lines at car plants in Britain, Japan, or India. Europe, the United States, and Canada have completely different standards of electrical equipment, ranging from household outlets to high-power transformers. Yet this factor is no problem for travelers: they adapt to new standards and no one protests.

At the same time, international financial institutions and major donor countries demand the unification of banking rules, especially in the face of frequent financial crises. In practice, however, such a maneuver results in banking in Europe becoming a target of strict control by the European Central Bank and in national banking legislation becoming subordinate to international conventional regulation. This is how the Basel Accords—Basel I, Basel II, and Basel III—appeared. They set banking capital adequacy standards at maximum value, which is quite a task for banks in Spain, Portugal, and Greece. According to some reports, additional capitalization for the three largest German banks alone will require several hundred billion euros. The task is even more difficult for banks in Balkan countries, the Baltic States, Romania, or Slovakia. In connection with this, I would like to mention the new highly controversial capital adequacy standards set by the Central Bank of Russia for Russian banks amid a severe financial crisis, economic sanctions, and the struggle for economic survival.

Interaction between international and national law amid a growing struggle for global leadership and economic domination is not conflict-free, as some legal scholars think. This is, for example, how Professor Georgy Velyaminov sees this situation: “International public law finds its use and expression through transformation into the national law of individual countries. […] An international treaty [...] can be interpreted as a special instrument by means of which the state implements its sovereign law-making […] activity in its jurisdictional field.” This sounds good, but in practice, at least in the last two decades, things have been reversed. To achieve objectives set by the leading states, international treaties and international institutions based on them often establish rules that are not only at odds with the interests of the parties to these treaties, but that also directly violate their national laws. “Substituting law for political expediency is inadmissible,” Professor Nikolai Dobrynin writes. “That would be correct in theory, but in practice the supremacy of national interests and the priority of national law protecting these interests are often sacrificed for political reasons that determine the balance of power at a given moment.”

We are witnessing a paradox; at least, such a situation never took place in the former practice of international relations. National legal systems enter into conflict not with lawlessness resting on the predatory ambitions of individual states, but with collective, concerted, and decisive actions by international giants, which obey their own rules and regulations and have peculiar ideas of benefit, law, and lawlessness. The rules of contemporary international associations are such that, once a state joins one of them and delegates part of its sovereign rights and competencies, it cannot oppose collective decisions with impunity because they are the will of the majority. The classic rule of the ideology of democracy is “the will of the majority is law.” In reality, however, contemporary international associations are dominated by those who have greater financial resources, strength, and capabilities. No one should be surprised at strange decisions made by the European Union, the European Parliament, or international courts, because these decisions are made in such a way that groups of the most influential and largest contributors, together with tiny dwarfs seeking to join the “pack” at all costs, ensure the passage of laws that infringe on the rights of the minority.

But what if such a decision is unacceptable to a minority that regularly pays its dues? (Russia, for example, pays €30 million a year for the maintenance of European institutions). What if an international institution (the European Court of Human Rights, for instance) makes a decision forcing Russia to legalize same-sex marriage? Such a decision, should it be taken, would not only destroy the foundations of the Russian Constitution and civil law, but it would also be unenforceable on the grounds of public morality, religious dogmas, cultural traditions, etc. Now, however, a failure to comply with such a decision has been allowed by Law No. 7-FKZ of December 14, 2015 (Federal Constitutional Law “On Amendments to the Federal Constitutional Law ‘On the Constitutional Court of the Russian Federation’”), although it may predictably provoke a new wave of criticism of Russia as a violator of the fundamental principles of constitutionalism.

And what about countries like the United States, China, India, and Canada? Do they not have these problems? Conflicts between international and national laws concern the aforementioned countries much less, because they do not play the EU’s game of creating institutions with “punitive cell” rules, like those recently applied against Greece and Cyprus. And Russia, in following some twisted logic, participates in most such associations, treaties, and agreements, and it fought for years for the privilege to join them (the WTO, for example). Why is this logic twisted? In the above-mentioned article, Alexei Ivanov and Kirill Molodyko wrote: “It (the WTO – A.K.) ensures the observance of the rules and accords only among friendly countries within the organization, leaving the others with broken hopes in the face of unfair competition from the ‘club’.”

We should not forget that the situation has changed significantly from the time when Russia sought to join several international associations, adapted its economy to the requirements of international controllers, and tried to harmonize its legislation with international laws. This is only natural. International law does not remain static for years and always requires fine-tuning, which is done by respective organizations on the basis of international agreements. For example, the European Court of Human Rights has in recent years been actively engaged in law-making—a function that may not have been originally intended. Active efforts are made at the WTO, as well, to improve the regulatory framework in the fields of international trade, standardization, and antimonopoly regulation. Another area is improving WTO dispute settlement mechanisms. There is no doubt about the usefulness of this work and the synergic capabilities of international cooperation. However, that is not the point.

The Importance of Traditions

By entering into international associations and collective agreements, countries pursue clear and pragmatic goals, such as gaining access to financial resources, exchanging information, or pooling efforts with other countries to combat crime or terrorism. No doubt, Russia had the same considerations when it sought to join the WTO or when it ratified the European Convention on Human Rights. However, today when Western countries, together and individually, have imposed groundless sanctions against Russia and when international courts, including the European Court of Human Rights, make politically motivated decisions, membership in the above institutions and agreements should be seriously analyzed in the view of the economic and political losses that this membership brings instead of benefits.

This is particularly important because Russia is not being offered membership in the noble club of “civilized” states. Thus the proposal to “make friends with Europe,” made at the latest Gaidar Forum, evokes nothing but perplexity. Who has ever offered friendship to us? Rather we were invited to serve, and on terms that they were not even willing to discuss. “You want to embrace European values? Then you should be qualified enough, and only then will we discuss your national interest.”

I am not proposing that Russia adopt an obstructionist policy and leave with its head held high, ignoring the possible bonuses and benefits. I am proposing to reasonably assess the need for Russia to participate in old, mostly European, formats of integration, and to think of new formats that would be more consistent with modern requirements and views of principles and rules of international cooperation. Let me cite a specific example of such work on which active and professional efforts should focus. I mean cooperation between lawyers from BRICS countries. I will not discuss the drawbacks of this association and doubts about its viability and usefulness. These doubts are well-known, largely well-founded, and should not be ignored. But I would like to discuss new and constructive elements of cooperation that will help overcome the obsolete standards used in international practices over the last century and which stand in the way of equitable and effective interaction.

Three years ago, legal professionals from BRICS countries established a permanent BRICS Legal Forum. The forum aims at “enhancing mutual understanding and communications among legal circles and promoting practical legal cooperation” between BRICS members. The forum has held two annual meetings (in Brazil (2014) and China (2015)). A third meeting will take place in India this year. The meetings adopted declarations that outlined measures to build an institutional framework for cooperation and provide it with working tools.

Discussions at the forum have shown that Russia is not the only country concerned about the flaws and defects of former integration mechanisms. Many countries, including China, have been subjected to oppression, diktats, and sanctions at various times and for various reasons. But now coordinated policies of pressure on the part of various associations, common to Western countries, evoke indignation and protests in all countries whose achievements in the economic and social spheres have been made targets of the unscrupulous policy of so-called containment. This is why BRICS has adopted a different model of cooperation: not infringement of sovereignty, but respect for it, and consideration for national identity; the creation of a decision-making mechanism on the basis of consensus, rather than a majority opinion; and complementarity of legal systems, rather than neglecting the specifics of national legislations and legal practices under the pretext of their “backwardness,” “underdevelopment,” etc.

In discussing integration problems in BRICS special attention is paid to the ways and forms of settling economic disputes. Proposals have been made to establish a BRICS arbitration center in Shanghai and a special research center of comparative law to study the interrelationship between federal and state legislation and regulation in India and financial legislation in Brazil. Another area of great interest is modern forms of legal education in South Africa. Russian lawyers have proposed analyzing the legal implementation of infrastructure transactions in Russia and the organization of major projects to develop natural resources in this country.

Cooperation between legal professionals within the forum’s framework has only begun, yet it has already revealed differences between BRICS countries in concepts, legal institutions, law-making and law-enforcement practices, and even in legal terms. However, this cooperation has shown that adhering to the principles of mutual respect, preservation of national legal specifics in pooling efforts with other countries, and consideration for each other’s national interest is more fruitful than a policy of pressure and disregard for other countries’ opinions.

One more area of legislation that deserves attention concerns the increasingly tense situation in international relations. The main criteria for determining the weight and influence of a state in its relations with international partners are, as before, the state’s economic and military power, and its potential ability to resolve conflicts by force. In this regard, national law should be an effective and reliable tool for taking economic and political measures required by the situation and the country’s strategic development. Remember it took several years to implement the judicial and legal reforms stipulated by Emperor Alexander II. Zorkin wrote: “There is no denying that we, people of today, still enjoy the fruits of these reforms in all spheres of life.” It should be added that Russian legal thought and Russian (Soviet) legislative and law-enforcement practices are a national asset, just as much as world-renowned monuments of Russian culture are.

In this regard, I do not understand the difficulties of current judicial reform, which are sometimes explained even with economic reasons. Whatever the case, the reform, which has continued for almost twenty years and involves adopting procedure codes, changing the structure of the judiciary, and developing the system of a Judicial Department and bailiffs, should be completed as quickly as possible. Courts in a “transit state” cannot work efficiently, and the status of judges and their attitude to work do not meet modern requirements. Therefore, it is not surprising that myths about the incorruptibility and unparalleled efficiency of foreign, primarily English, judges and the advantages of foreign, especially English, law are widespread in Russian economic practices. These myths are pure fiction, but this fiction is skillful and supported by flaws in Russian judicial practices.

Incidentally, speaking of borrowing foreign legal concepts, standard, and provisions, there is a widespread belief that the Russian legal tradition, which carries the burden of Soviet socialist law, allegedly does not provide enough legal basis to form independent branches of legislation that would meet national specifics, and new social and economic conditions. This allegation is a propaganda contrivance or, simply speaking, is just not true. I will not elaborate on this issue. I will only quote a statement by reputable French jurist Raymond Legeais, who wrote in his Grands systèmes de droit contemporains that many of those who studied the legal history of ancient Russia and who tried to understand and explain the legal system of the Soviet Union, emphasized the weakness of the legal tradition in Russia. Legeais wrote that this weakness may be exaggerated and that Russian law deserves a place among the great systems of modern law, even if it is under reconstruction and volatile, which makes it harder to understand.

In my opinion, the period of “reconstructing” Russian law is over. Liberal legal scholars paint a picture of stagnation in Russian legal ideas and approaches, which they describe as backward and obsolete, and contend that the Russian population is genetically unable to accept legal concepts based on the principles of tolerance, democracy, and freedom. Hence their attempts to impose Western European and American models of legal regulation of social relations as the only correct and indisputable ones to use in the present conditions. Let me be blunt: this approach does not represent the actual state of affairs. It is also harmful, as it is intended to justify the need to borrow foreign legal models to build the Russian legal system.

*  *  *

The new conditions of Russia’s existence and its coexistence with other states necessitate rethinking the value guidelines of its legal world view. This applies to both internal and external factors affecting Russian life. The principles of Russia’s interaction with other international actors may or even should be revised in favor of greater pragmatism and protection of national interest. In addition, Russia should take a more vigorous approach to building new, favorable, and just international relations that would meet economic and political realities. The first and second tasks can be accomplished by tapping into domestic resources of all social forces and processes, and developing and improving the national legal system.

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