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International Law and the New Russia

The highly respected Bill Burke White is guest blogging over at Concurring Opinions, and has done a terrific post entitled “International Law and the New Russia.” Below is just an excerpt.

Indicative of Russia’s disregard for human rights and the failure of domestic institutions to constrain Kremlin excesses, is the fact that more than 20% of the current caseload of the European Court of Human Rights (ECtHR) comes from Russia. When Russia looses these cases, which it often does, the government seems happy to use some of its new oil wealth to pay Court imposed fines, but then defy the Court, refusing to change offending legislation and rarely allowing domestic courts to implement ECtHR rulings. Perhaps most emblematic of Russia’s defiance of international human rights law may be the persecution, show trial, and inhumane detention of Mikhail Khodorkovsky, the former Chairman of Yukos and once Russia’s wealthiest and most powerful oil executive. After Khodorkovsky broke a tacit deal with the Kremlin not to interfere in politics by funding anti-Kremlin parties, he was arrested on tax evasion charges and convicted in what can only be described as a show trial, in which he was unable to present evidence, call key witnesses, or build a meaningful case in his defense. He has been serving a sentence in a remote corner of Siberia in truly inhumane conditions and his life has been routinely threatened. As Khodorkovsky would have soon become eligible for parole, the Kremlin is likely to ensure that he is convicted once again in a second sham trial on further tax charges in the coming months. His case is currently pending before the European Court of Human Rights, though Russia seems likely to once again disregard the Court’s ruling.

With Khodorkovsky relegated to a Siberian jail, the Kremlin has been quick to seize the assets of Yukos as part of its larger strategy to centralize and consolidate national energy resources. The company was bought in a highly questionable auction and, with the support of key western investment banks, subsumed into the state energy monopoly, Gazprom. Most recently, one of Khodorkovsky’s former colleagues from Yukos, Vasily Alexanian, also imprisoned on tax charges, has been denied AIDS treatment and may well die at the hands of the state.Beyond Russia’s troubling human rights record, which alone could fill many blog posts, the new Russia is challenging international law in other ways. Russia is using its rapidly expanding power and, particularly, the power imbalances between Russia and smaller, weaker, energy-dependent states in Central Asia, the Caucuses, and Eastern Europe to build a new sphere of influence, both legally and politically. Over the past few years, Russia has sought to conclude new bilateral treaties and energy contracts with these states that give Russia considerable new clout and influence. Where such states refuse to meet Russia’s terms, the threat is no longer the Red Army, but rather the Gazprom engineers who, with the turn of a wheel, can shut off critical gas and oil flows. Not only do the structure and content of such treaties represent a challenge to the human rights and good governance multilateralism that has dominated post-Cold War international law, the underlying threat of suspended energy supplies requires international lawyers to rethink the meaning of the grundnorm of modern international law articulated in article 2(4) of the UN Charter: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”In other spheres too Russia has shown a new assertiveness and willingness to confront head-on long-settled principles of international law. Last summer, for example, Russia landed a submarine on the oil-rich Arctic seabed. Though in part a media stunt, the Russian flag now flying under the Artic icepack has profound legal significance. Russia essentially seeks to revive the long extinct legal principle of terra nullius, according to which states could lay claim to “empty” lands by planting a flag. In so doing, Russia seeks not only to claim the sub-Arctic oil, but also to confront the legal principles in the UN Convention on the Law of the Sea relating to seabed resources and, perhaps, even take on the broader international legal rules governing the acquisition of territorial sovereignty.