Russia doesn’t just violate international law – it follows and shapes it too

Russian foreign minister Sergei Lavrov at the UN Security Council. EPA/Justin Lane

Russia is often seen as a persistent violator of international law. From recent allegations of the state-sponsored poisoning of Sergei Skripal in Salisbury to the annexation of Crimea in 2014, and from the incursion of Russian forces into Georgia in 2008 to the alleged large-scale support for separatists in eastern Ukraine, Russia is portrayed as the villain in international society.

Russia returns the accusation. The country’s leadership points to examples of what it sees as Western hypocrisy: the recognition of Kosovo’s sovereignty, the 2003 invasion of Iraq, and the 2011 NATO-led military intervention in Libya. How can those states accusing Russia of international law violations take the legal (and moral) high ground, when they are guilty of similar acts? So the Russian argument goes.

So which side is right? The question is much less simple than it sounds. In order to grapple with it properly, we need to look at history, politics, and the nature of international law itself.

The state comes first

The post-war international legal order was not set up by Western powers alone. As a constituent republic of the Soviet Union, Russia was one of this order’s key architects. Along with the Allies, the Soviet Union was instrumental in the post-World War II Nuremberg process, where members of the Nazi party were held legally responsible for the atrocities their regime committed. This process forged and popularised a language of international criminal law that’s still in use today.

Soviet delegates were also active and vociferous participants in the flurry of treaties produced by the United Nations in its first decades. To give one example, they heavily influenced the language of the 1949 Convention for the Suppression of the Traffic in Persons and the Exploitation of the Prostitution of Others. And the drafting and ratification of the 1966 International Covenant of Economic, Social and Cultural Rights (at the same time as a separate Covenant on Civil and Political Rights) was closely tied to the Soviet argument that collective rights should be recognised equally with those of the individual in international human rights law.

The Nuremberg judges panel, backed by the US, UK and USSR flags. Wikimedia Commons

Like other major players in the Cold War, Soviet officials often used international law as a foreign policy tool. Ideological differences were emphasised and used as sticks with which to attack one another across the Iron Curtain. At the same time, both sides accused the other of failing to recognise or protect the same rights they insisted on imposing on the international stage. Through this process, the Soviet Union developed its own approach to international law, which emphasised the primacy of the state over the individual – and which continues to influence the Russian government’s justifications for its actions today.

Contemporary Russia’s relationship with international law is not simply a question of international relations. International law is supposed to have a privileged place in the Russian legal system. Section four of article 15 of the 1993 Russian Constitution enshrines the supremacy of international treaties and agreements in case of a conflict with Russian domestic law. But in recent years, this privileged position has been undermined.

Give and take

According to a December 2015 legal change, Russia’s Constitutional Court can declare the judgements of human rights bodies “impossible to implement” if it deems them incompatible with the Russian Constitution. This most clearly challenges the authority of the European Court of Human Rights – the body that interprets and enforces the European Convention on Human Rights, which Russia ratified in 1998. And it’s certainly not irrelevant that cases involving Russia make up a significant proportion of the European Court’s workload.

But again, some perspective is needed. While there have lately been murmurs that Russia could leave both the Council of Europe and the European Convention on Human Rights, it has yet to do either. The UK government, by contrast, has made far more explicit and sustained threats to leave the European Court altogether.

The fact of the matter is that international law is not monolithic. As Russia’s ongoing, idiosyncratic engagement with it makes clear, it’s a complex web of agreements, rules, regulations and conventions. Any state can be both violator and upholder of international law at the same time. And what Russia does matters either way: beyond its status as a permanent member of the UN Security Council, it is a norm leader for many post-Soviet states.

Recognising this reality isn’t a veiled call for relativism and diluted standards of culpability; it’s a necessary part of recognising Russia’s historical role as a legal architect, as well as the challenges it currently poses. And more than that, taking the long view is a political necessity. Simply “throwing the book” at Russia probably isn’t an effective strategy for engaging with either the Russian state or Russian citizens.