We are delighted that EJIL:Talk! is convening a symposium on our co-authored book published under the above title, by Bristol University Press earlier this year. This opportunity arises at a particularly poignant moment given the recent judgment in Ukraine and the Netherlands v. Russia (on which see here, here and here).
We see our book as a critical analysis of the expulsion of Russia from the Council of Europe (CoE or Council) and a reflection on a broader historical trajectory leading up to that crucial moment. The role of Russia in the CoE was not negligible. For just under three decades, it was a member which impacted significantly in many areas of the Council’s work. Its accession marked the beginning of a period that was, initially, inspiring and full of promise. Yet what followed was marked by controversy, division, and deep frustration – until the ‘watershed’ (Ukraine and the Netherlands v. Russia, para 349) events of Russia’s attack on Ukraine in February 2022.
In the book we were conscious that we could not address every aspect of CoE-Russia relations, so we had to make hard choices as to what to include. Indeed, each and every phase of Russia’s membership was marked by significant issues needing detailed discussion. Even the expulsion itself, which was entirely appropriate and warranted, was not without controversy from a procedural point of view, as one of the chapters of the book discusses in detail. As such, we have no doubt that more analysis and debate is required, which is why we are so happy that EJIL:Talk is hosting this symposium. The book ran to 243 pages, and spanned seven chapters, so in this short post we can only offer a few insights into what our ambitions were and some of the key messages (see further here and here).
Core Aims and Key Messages of the Book
First and foremost, and for the reasons explained above, our book aimed to provide a detailed, yet accessible account of the troubled nature of the relationship between Russia and the CoE, and how matters related to its expulsion were resolved over 2022. We felt it inherently important to document what had occurred, critique the same, and so create a record of a very significant chapter in the CoE’s history, one with profound implications for the future of the CoE. We tried to provide insights into understanding the challenge for the CoE when faced with Russia’s repeated bad faith and rising authoritarianism. We sought to paint a picture of a membership journey that was initially hopeful, but largely troubled, identifying the key milestones and drawing out the salient points that impacted on the CoE’s integrity, credibility and influence which resulted in its expulsion. We also take stock of what legacy Russia left in the CoE.
Russia: ‘better in that out’?
Throughout the book we were conscious that Russia seemed to be viewed as a special case – a big CoE player (geopolitically) and payer (literally) – the scenario being one in which politics had the potential to prevail over law. Russia seemed to benefit from a version of exceptionalism, wherein political considerations risked eclipsing legal principle. This was so as regards to ‘therapeutic admission’ of Russia to the CoE. The accession was complex with some strong voices claiming that Russia was not ready to join the CoE whilst others made the argument that there was a unique opportunity to bring Russia closer to the European family of nations, thereby springboarding democratic reforms. This was, of course, not to be. Amongst many things, the Chechen war, the war against Georgia, the occupation of Crimea and finally the full-scale invasion of Ukraine and Russia’s subsequent expulsion marked progressively more insidious evidence of its democratic decline. At every stage, the CoE’s political bodies made concessions in the hope that the situation would improve but these hopes never materialised. We wished to expose this, especially from the point of view of showing how every effort was made to accommodate Russia, to realise the ambition of democracy there and democratic security.
The pattern was taken to the extreme in the context of the crisis Russia provoked at the CoE over the latter half of the 2010’s when Russia used its political and financial clout to, in effect, blackmail the organisation into a form of impunity in relation to its annexation of Crimea. It threatened to leave the CoE and so exit the ECHR unless it got its way, and its strategy succeeded. The whole episode was damaging to the CoE. On the one hand, the appeasement of Russia in 2019 may have reflected, yet again, a stance of ‘better in that out’. On the other hand, by then the case for it being better for Russia to stay in was, to say the least, highly contestable. Part of the dilemma, of course, was as follows: undoubtedly the Russia government deserved to be expelled from the CoE, but not the Russian people, particularly those most vulnerable to its anti-democratic whims.
Russia’s damaging membership
In the book we set out how Russia – more accurately the Russian government – did not just breach its accession commitments on numerous occasions (for example, failing to withdraw troops from Transnistria, and reject an aggressive foreign policy) and have a very poor implementation record regarding judgments of the European Court of Human Rights (ECtHR), but how it repeatedly violated Article 3 CoE Statute, in premeditated and blatant ways. The weakness of the reaction of the Committee of Ministers (CM) to these observable transgressions was clearly identifiable right until the moment of expulsion. In the final analysis, given that the CoE’s very raison d’etre is to protect, defend and stand up for the values that Russia repeatedly flouted, we submitted that no state has harmed the CoE’s credibility more than Russia has.
Russia was expelled from the CoE because of the full- scale invasion of Ukraine, not the major human rights issues related to Chechnya, Georgia, Crimea and in Russia itself. We noted how the ECtHR repeatedly became a ‘last resort’ actor for the CoE, when the CM failed to act decisively. This occurred in relation to Chechnya. The states’ reluctance to bring inter-state cases under the Convention, unless directly affected (Georgia, Ukraine and the Netherlands), was also noted. Our book is a testimony, we hope, as to why the CoE states should take this project more seriously, thoroughly support it, and, of course, how the Russia leadership rejected it.
Human rights review at the CoE – the need to take all actors seriously
As to human rights, inevitably there were many references to the European Convention on Human Rights across the book. However, in the final version of the text the ECHR did not feature as much as we thought it might when we began writing, other than in relation to the Court’s addressing the fall out of Russia’s expulsion. There were of course numerous very important judgments directed at Russia. However, in the book we highlighted the importance of other CoE actors such as the Parliamentary Assembly of the CoE, the CoE Commissioner on Human Rights and the Venice Commission. Unlike the Court these bodies offered on-going, wide- ranging and direct critiques of the deteriorating democratic and human rights situation in Russia, and other major issues (Georgia and Crimea). It was these CoE institutions, not the Court, which raised the alarm with respect to crucial matters such as attacks on civil society in Russia, including, for example, the ‘foreign agents’ law, the suppression of dissent and as regards blatant attacks on political actors. We therefore argued that other CoE actors beyond the Court must be taken more seriously by ultimate centre of power at the CoE, the CM (i.e. member states) and should be adequately resourced and politically empowered.
The lessons learnt – and the ‘Triple Fault’ scenario
Although the monograph is mainly focussed on the past, it also looks to the future. Russia left a lasting legacy on the CoE. Even today, more than three years after the expulsion there are pending Russian cases before the ECtHR and numerous significant cases left unexecuted. We wanted to determine what lessons could be learnt by the CoE and the member states to avoid a repeat of the Russia experience. No international organisation can decisively prevent a state from sliding towards illiberal democracy, or even totalitarianism, particularly organisations with flimsy sanctions regimes and an aversion to internal disputes. However, it is still possible to react to the signs of deteriorating political environment more effectively and efficiently than was done in case of Russia. The CM’s patently afforded Russia too much latitude, too often and observed progressive deterioration of compliance and cooperation without consequence.
There is an argument for structural and legal reforms within the CoE, for instance, the text of the Statute of the CoE can be clarified and improved. That said one of our key messages is the need for member states to maintain good faith political support and avoid undermining the system further as some now seem determined to do.
For the system to be stronger in the future, there is a need to analyse where failures occurred within the system. In the book, we describe this as the ‘Triple Fault’ scenario, which points to three levels of failure:
(1) The first, and overarching failure, being Russia’s failure to comply in good faith with its obligations under the Statute and other key CoE instruments and regimes, especially the ECHR;
(2) The second failure relates to the inability or unwillingness of the CM to effectively hold Russia to account for its transgressions.
(3) The third, conditional failure, relates to the CoE system more generally – including the ECtHR and monitoring mechanisms – which also failed to effectuate compliance with CoE standards despite the obvious pattern of democratic decay.
Even though the book was well over 100,000 words, there were issues addressed in less detail than we would have liked. We anticipate that gaps will be filled, and important new insights gained from the three excellent and critical contributions to come as part of the symposium.
