Russian Perspectives on International and National Law

Transcription

1 Meeting Summary Russian Perspectives on International and National Law Summary of the International Law Discussion Group meeting held at Chatham House on Thursday 13 May, Speakers: Robert Amsterdam Amsterdam and Peroff LLP Prof. Alena Ledeneva University College London Chair: Elizabeth Wilmshurst Associate Fellow, International Law Participants in the discussion included academics, legal practitioners and representatives of governments and embassies. The views expressed in this document are the sole responsibility of the author(s) and do not necessarily reflect the view of Chatham House, its staff, associates or Council. Chatham House is independent and owes no allegiance to any government or to any political body. It does not take institutional positions on policy issues. This document is issued on the understanding that if any extract is used, the author(s)/ speaker(s) and Chatham House should be credited, preferably with the date of the publication or details of the event. Where this document refers to or reports statements made by speakers at an event every effort has been made to provide a fair representation of their views and opinions, but the ultimate responsibility for accuracy lies with this document s author(s). The published text of speeches and presentations may differ from delivery.

2 RUSSIA, INTERNATIONAL RELATIONS AND INTERNATIONAL LAW AND INTERNATIONAL LAW Introduction The seriousness with which Russia treats international law should not be underestimated, nor Russia s important history of international legal thought. For example, Dr. Martens was an international law theorist under the Tsars, and his work continues to be of practical importance today in the area of international humanitarian law. One of the most significant Soviet jurists of the 20 th Century was Professor Grigory Tunkin, a legal adviser to the MFA, a member of the International Law Commission and an academic and theorist. His attitude to customary international law was ambiguous but he was a strong believer in treaties and the codification process. Russians have shown meticulous compliance with treaty obligations. Other eminent modern Russian jurists include Roman Kolodkin, current member of the International Law Commission, who has produced a well-reasoned report on the immunity of foreign state officials. In the ECtHR, one of the best judges is a Russian, who often decides against Russia. Key Recent Developments There are several important new developments in international law and international affairs. Russian Arctic approaches: Russia has just signed a revolutionary treaty regarding the Barents Sea with Norway. The treaty constitutes an entirely new approach to the Arctic. It overturns the 1926 decision of the Supreme Soviet which was fundamental to Russian views of the Arctic. The treaty moves Russia to a very different part of the political spectrum, much closer to Canada than the United States. The deal is motivated in large part by a desire to adopt foreign technology and to finally resolve the uncertainty regarding the Barents Sea. Energy Charter Treaty: The recent Energy Charter Treaty (ECT) decision is of great significance, and a demonstration of how private litigants can change public international law. As a result of this decision Russia is seen to be bound by the Energy Charter Treaty. The decision was founded in the reasoning that Russia was bound to the ECT by its conditional acceptance. Those in the Kremlin who have disavowed the ECT must now work within the regime for a certain period of time. The ramifications of the decision for Russian energy policy can not be overemphasised. 2

3 Ukraine: The extension of the lease for the Russian naval base in the Crimean peninsula in Ukraine moves Ukraine away from NATO and into the Russian sphere of influence. European Convention on Human Rights: The ratification by Russia of the 14 th Protocol to the European Convention on Human Rights (ECHR) has been taken by many to be a show of faith in the system by Russia and a positive move. The recent Yukos proceedings in the ECtHR are important, and the outcome of the hearing will be of great significance. Judgments of European courts: There has been a series of important decisions from the Amsterdam Court of Appeal and in London regarding Russia and Yukos. The Amsterdam Court of Appeal has gone so far as to, in essence, overturn a Russian appeal which had set aside an arbitral award. The Dutch case follows from the Swiss Federal Court decision in Khodorkovsky a number of years ago where we saw some of the first dicta emerge stating that Russian judicial independence is irredeemably tainted. Secession: It remains to be seen how Russian policy regarding secessionist republics develops. It is an area in which tactical and strategic consideration coincide. We wait to see how Russia will resolve its position on Kosovo, Chechnya, Abkhazia and South Ossetia. There is a clear incongruence between its long term and short term thinking regarding irredentist enclaves. Rise of influence: Russia is experiencing a renaissance in regional relationships. It has gained support in many neighbours, most notably Ukraine. It is now working to use treaties to cement these relationships, mainly through the customs union it has established Kazakhstan and Belarus. Market Disruption and a New Legal Framework The current approach has been one of market disruption. This has been revolutionary in terms of international law and how we grasp the relationship between private and public law. Market disruption has at its core the methodology used to extract massive rents from commodity exploitation. This strategy explains the takeover of Yukos, the billions invested in Venezuela, the deals negotiated with Nigeria; it explains Gas OPEC and pipeline theories. An element of market disruption is the blurring of the public/private divide. Many of the major Russian corporations are incorporated under Article 71, a provision relating to non-commercial entities. Article 71 makes companies very difficult to penetrate. It can be difficult to discern if they are private, whether they are state controlled, and whether they are actually part of the 3

4 Russian Government. Part of the difficulty in making out the public/private divide is the integration of senior personnel between the large corporations and governmental authorities. This lack of transparency is an issue of concern for parties seeking to bring actions against such organisations, or trying to enforce judgments and arbitral awards. Market disruption may have some unintended consequences. The impossibility of separating public and private enterprises may mean that Russian banks operating in the West will face enforcement proceedings with regard to judgments against state owned enterprises. The litigation would stretch the law somewhat, but that does not mean it will not be tried. This hypothetical also illustrates how the market disruption model has begun to affect the ability of the Russian state to carry out basic affairs because of the actions of private litigants and their ability to target entities connected with the State. Litigants are finding an easier route to their goals in the current era where there has been a shift from state/state disputes to investor/state arbitrations. The ability of Russia to engage with modern legal mechanisms is under threat. Putin has called for a new international legal order in the energy and economic fields. He is trying to move the international community towards a new order that has left Bretton Woods behind. There has been little detail shared about what this system would look like, but it would feed off the discourse about multipolarity and the non-universality of human rights that is prevalent in intergovernmental organisations at present. Russia, Venezuela and their closer relations could use the current economic crisis to start to establish their own multinational fora and build legitimacy. This order would go well beyond the Shanghai Co-operation Organisation. Such an initiative would be met with substantial sympathy in India, Thailand and South Asia. Even the Brazilians could become interested. RUSSIA, GOVERNMENT AND JUDICIARY Governmental Organisation There is a tendency in Western analysis of Russian politics, which can be called the presumption of regularity, that analyses developments in Russia on the basis that their political system works in the same way as a Western government. In fact, the Russian government is a clan based system characterised by political groupings. This organisation stems from the one party state in modern Russia. The 1993 Constitution does not include the old 4

5 Article 6 which put the party at the top of the governmental structure and therefore allowed us to understand how power was organised. The current system, without Article 6, is opaque. The Russian political system can only be understood through an organogram of shifting relationships. This is a very similar organisational model to Iran and Venezuela. One manifestation of the clan system has been the need to bundle international trade deals, eg an atomic deal for one clan, with a gas deal for another and an oil deal for a third. In order to keep the political system stable, the clans must be balanced against each other. The ability to balance these clans has been one of Putin s great strengths. The clan balance is tied together with the Strategic Sectors Initiative (SSI). When introduced, the SSI was supported by many in the West who saw it as a step towards transparency. It was hoped that it would allow investors to understand the requirements for gaining permission to engage in acquisitions and to operate in Russia. The effect has been the opposite. The SSI has allowed the clans to divide up the economy. Corruption Corruption has reached a critical stage in Russia, going beyond money and becoming an issue of governance. Systematic corruption leads to an abrogation of efficient command control mechanisms, something the US alluded to in recent nuclear negotiations. Russia may have passed the point where it can step back from this corruption and reset the political system. Judicial System The rule of law in Russia remains very weak. The result has been a loss of Russia s sovereignty over its own nationals. Many major commercial disputes between Russians are resolved in London, and non-commercial disputes find their way to the European Court of Human Rights (ECtHR). 14,000 Russian nationals brought cases to the ECtHR in 2009, a rise from 11,000 in These numbers cause problems for the Court, and the resolution of this situation remains top of its agenda. It should however be born in mind that Russia has a larger population than many member states of the Council of Europe, and by proportion of population, Russians rank 15 th in cases started. When discussing the judicial system in Russia, Russians frequently refer to telephone justice, by which they mean the situation where the ordinary rule of law is circumvented by a person of influence placing a phone call to a judge and changing the result of a case. Telephone justice has a communist root. The Soviet Union was an authoritarian state with no independent 5

6 judiciary. That culture has remained the need to make independent decisions has to be learned. There is almost a desire among judges to be given an indication by politicians of the way to decide. The situation is changing. The Arbitration Courts are among the more progressive institutions in Russia in this regard. These Courts never existed under Soviet governments, and there is not the same institutional mentality. The qualification requirements for the judges are also better than other courts. Kathryn Hendley has surveyed the Arbitration Courts and suggests that part of the reason for the difference in culture is the caseload, which is so large that there is not time for the judges to receive political instructions. There are however views to the contrary, indicating that these courts are no different from others in their vulnerability to political pressure. The real difficulties lie in high profile cases. In everyday cases, political influence is much weaker. A survey of Russians showed that only 4% believe that telephone justice does not exist. This shows a systemic lack of faith in the judiciary, but perceptions are improving, and on some (not necessarily reliable) measures, could be as high as 30% now. A weakness in these studies is that some people do not understand the term telephone justice, but the studies do still give some indication of perceptions amongst the population. Another interesting issue revealed by the study is the perception that political influence is not as important as bribery or inducements. What should be taken away from that is not that political influence does not exist, but that at the low level that most people come across the judiciary, it is material inducement that matters. In addition to looking at the perception among the population, it is possible to examine the perceptions of insiders. We have seen a shift in the statements made by senior members of the judiciary. It was not long ago that we were told that the biggest impediment to the exercise of proper judicial powers was not telephone justice, but the myth of telephone justice. The momentum shifted with statements by Yelena Valyavina, the Deputy Chair of the Supreme Arbitration Court of Russia. Her statements are now being used in extradition cases in courts in London to show that political pressure on the Russian judiciary is a reality. The genesis of those statements was a libel action brought by a senior Kremlin official against a journalist who alleged in a radio broadcast that the judiciary runs on Kremlin orders. Ms. Valyavina, the judge hearing the libel action was approached by the official who was seeking to exert pressure, and Ms. Valyavina disclosed the approach to the court. 6

7 An interesting paradox in this field is that judges will only stand up and speak against political pressure on the judiciary when they know they have support from the politicians. In a way, the situation is still one of political pressure, but pressure towards openness. Telephone justice is perhaps sometimes a misleading term. Some courts will self-regulate. Often the way this happens is that the chairman of the court will manipulate the cases so that there is a pressure of joint responsibility. This pressure operates as a form of peer pressure rather than a directive. The difficulty with this element of judicial practice is that even if there was a command from a senior official to judge cases by their merits rather than for political considerations, the horizontal pressures may mean the situation does not change. There has recently been a report by an influential Russian think tank proposing that court chairs be selected by the members of the court rather than by politicians, but the trend in practice has been to the contrary with the Chairman of the Constitutional Court now appointed by the Russian President. Russia and the United Kingdom, Extradition Cases The extradition cases brought by the Russian Federation in London illustrate the impact of the Russian judicial system in other countries. There have been 22 cases in England and Wales where the Russian Federation has sought extradition of a Russian national. In 20 of those cases, the London court has found that the extradition request is political and has refused extradition. Russia has ratified the European Extradition Treaty which means that it only has to present a prima facie case in order to secure extradition. In order to defeat the request, the defence must show that the case was politically motivated. Despite the best efforts of the Crown Prosecution Service, Russia has not been the best litigant in the proceedings, whether this is because the Russian officials assume that the courts in England, like those in Russia, are politically influenced and therefore conclude that there is no point in expending resources on fighting a case that has been predetermined against Russia, or because they find it difficult to understand common law proceedings. The Russian Federation did put substantial resources behind the Berezovsky and Zakayev requests, and was unsuccessful nonetheless. To some degree these extradition cases against oligarchs are the culmination of corporate raiding. They cause a spillover of the problems with the rule of 7

8 law in Russia into the United Kingdom. Russia is using the English courts instrumentally, for example to freeze assets or prevent travel for political opponents. The findings in the courts in London about the rule of law and judicial independence in Russia are an important source of information. These discussions normally go on behind closed doors, but in the United Kingdom they are public, and set out a detailed analysis of political influence in Russia. We thus have a public record from these cases of the real power structure. The Russian position regarding extraditions from the United Kingdom has not been helped by the UK repeatedly calling for the extradition of Andrey Lugovoi, despite a constitutional prohibition in Russia against extraditing Russian nationals to a foreign country. But the UK position was influenced by the fact that not only was this the first case of nuclear terrorism, but Lugovoi was granted impunity in Russia. The irritation of the United Kingdom has been compounded by Lugovoi s election to the Russian Duma, conferring upon him immunity from criminal proceedings. The belief is that Russia has come to manipulate the Interpol Red Notice system in a similar way to its extradition requests. There is almost no oversight of which warrants are entered into that mechanism, though some efforts are being made to resist Red Notices given for political reasons. Summary by Maziar Jamnejad 8