European Law | International Humanitarian Law | International Law
The aim of this essay is to comment on Russia's accession to the Council of Europe and its probable accession to the European Convention on Human Rights from the perspective of the legal theory concerning the nature of obligation in international law and the law-like character of international law. The facts of Russia's accession test a philosophical argument that has been made elsewhere about the nature, efficacy and 'legality' of the legal system of the European Human Rights Convention. An important premise therein is that 'sometimes a happy (or unhappy) confluence of political decisions, social attitudes, and individual actors and actions makes possible the kind of breakthrough that converts ad hoc decision-making bodies into legal tribunals and turns acquiescence into legal obligation.' The crux of the argument is the assertion that the Strasbourg system of the European Human Rights Convention, unlike so many other international legal systems, seems to have passed its 'critical moment', moving from mere acquiescence to a sense of genuine legal obligation. This article asks what effect Russia's accession to the Convention is likely to have on the sense of legal obligation within European human rights law. It also questions whether Russia's accession, alongside the upsurge in nationalistic assertions elsewhere in Europe, will imperil the legality 'breakthrough' of the Strasbourg system and its institutions. It is important to recognize that these questions have broader implications than for European human rights law alone. The 'breakthrough' (or not) of the Strasbourg human rights system has critical repercussions on international law generally. The institutional formality and apparent efficacy of European human rights law has gone a long way towards rebutting the oft-repeated complaints about the non-law-like character of international law. If the legal system of the European Human Rights Convention is seen to fail, then faith in, and the success of, international law in general will falter as well.
Janis, Mark Weston, "Russia and the Legality of Strasbourg Law" (1997). Faculty Articles and Papers. 345.