Russia’s Approach to the Universality of Human Rights

The Soviet Union, to which Russia is a legal continuator, made important, though often now underestimated contribution to the development and advancement of social and economic rights. Under its influence all countries changed their positions towards regulation of relationship between labour and capital.

When the U.N. Charter was being developed and during the work on the content of the two Covenants later on, it was the Soviet Union that insisted on including civil, political, economic and social rights into a single document. That is to say that the people of the USSR greatly contributed to shaping the contemporary understanding of human rights protection.

The last twenty years have been hard times for the country. Finally Russia was through with the Cold War, communist and totalitarian ideology. However this victory was far from easy to win. The country faced the free fall of economy, tremendous drop in living standards, a loss of guidelines and unpreparedness of the vast majority of population to live in the market economy conditions.

Coincidently, it was the time when the democratic institutes were being shaped and references to human rights became popular and topical slogans. That is why, the notions of democratic developments and human rights are associated for too many with chaos, devastation and crime permissive environment.

During the last two years Russia has evidenced a kind of renaissance. It is slow and not easy going, but it makes itself felt in everything – a change in political lexis, the quality of standard-setting and task-setting, and a variety of substantiated views in the mass media. It is also reflected in the dozens of newly adopted liberalizing legislative acts and in actions taken to implement them. Again there emerge preconditions for implementing the concept of human rights, which Russia shares with other leading countries, in the day-to-day life, reality and enforcement practices.

Universality

Speaking from the international law point of view the question of universality of fundamental rights has been clearly answered in the mid-XX century. Through the ongoing work of United Nations and documents adopted by them the universality of human rights has been clearly established and recognized in international law. Disputes on that issue or controversial assertions that might arise and do arise in practice should be addressed having in mind international documents and legally binding treaties. According to the U.N. Charter the U.N. Member States are committed to advancing and promoting of “universal respect for, and observance of, human rights and fundamental freedoms”.

Russia fully shares convictions that fundamental rights are universal and shall be protected in any society. By neglecting its obligation to protect universal human rights, a state harms its own population and denies its citizens proper respect and opportunities of personal development. It is only if the human rights are respected and protected in a country there could be reached political stability and due development of society.

The wording of the Universal Declaration of Human Rights itself affirms the universal nature of human rights. The Declaration is asserted to be a “common standard of achievement for all peoples and all nations”. The common standards were embodied in further documents through the ongoing work of the United Nations.

The International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are the legally binding treaties based on the Universal Declaration. Around 150 countries that ratified them have formally committed to the common understanding that political, civil, cultural, economic and social human rights are of equal value and apply to everyone.

According to the Vienna Declaration “the universal nature” of human rights is “beyond question”. It further reaffirms the obligation of States to promote and protect human rights.

Though margins and borderlands between the rights are diminishing, they preserve their specificities. There are fundamental rights, the relativisation of which is inadmissible. And there are rights that can be guaranteed as the society achieves the certain level of development. A state cannot take upon itself more than it can implement. An impossible burden on national authorities, given a lack of legislative capacity or undeveloped implementation procedures, could result in the loss of authorities' credibility. In this situation the state will also find itself lacking the possibility of economic maneuver.

Human Rights as a Dynamic Concept

The tool to be used while interpreting the scope of human rights shall be their dynamic interpretation. The assumption is that human rights provisions must be construed with regard to contemporary realities. The principles of effective interpretation, used by the European Court of Human Rights, are to be applied in order to protect human rights in a practical way, and most effectively.

The understanding of human rights should evolve under the influence of new conditions of life. This evolution of the scope of protected rights will allow society and state to properly address risks emerging as a result of change of the environment, scientific and technical progress. Human rights shall be implemented in line with contemporary representations, the current level of development of the society, new challenges that it faces and new demands of democratic development.

The European Court of Human Rights uses the determination of the European Convention on Human Rights as a “living instrument” to construe its clauses “in light of present day conditions”. The Court applies social, legal and political developments in European countries as additional means of interpreting provisions of the Convention, which ensures that these provisions are relevant to the contemporary human rights issues, problems and challenges. The scope of a certain right is extended to address concerns previously non-existent.

The change in understanding shall be reflected in the change of legislative basis and law-enforcement practices. Consequently the European Court could find, and often has found, the states that failed to keep up with new trends in violation of the Convention.

Approach towards obligations of state

Just as other countries, Russia approaches obligations of the modern state in a way that they could be negative and positive. A state shall obviously abstain from measures violating human rights, but it also shall take actions to provide for the enjoyment of the rights.

Human rights entitle individuals to benefit from a good which is at the essence of a right in question, to demand that an enjoyment of a right is not obstructed or interfered with by other individuals and state bodies, to seek assistance from the state body when the fulfillment of a right is impossible without interference of the authorities, and ask for protection of a state authorities when other individual or a state body infringe a right or obstruct its exercise.

In accordance with the concept of positive obligations, citizens have a right to demand protection from crime and violence, adoption of legislation safeguarding their rights as well as creation of effective structures to implement them. Involvement of the state into guaranteeing human rights is required by the society as concerns material support and the creation of necessary institutions.

The concept is well developed in the jurisprudence of the international bodies for protection of human rights. The European Court and Inter-American Court of Human Rights both agree that the state has the duty to adopt positive measures to fully ensure the effective exercise of the rights, and quote each other in judgments and opinions. Thus, in its advisory opinion on Juridical Condition and Human Rights of the Child (2002) the Inter-American Court that states “have the duty ... to adopt any positive measures that ensure protection of children against mistreatment, whether in their relations with public authorities or in interrelationships with individuals or nonstate entities” . In support of his opinion the Court quoted among other legal documents judgments of the European Court of Human Rights regarding the obligations of states to protect children against violence, including in the family*2.

International treaties and mechanisms

The primary responsibility to protect rights of an individual in their jurisdiction is rested upon the states themselves rather then on international bodies and mechanisms. The latter shall play a subsidiary role. Collective work of states to improve international cooperation and exchange of legal expertise, as well as adaptation of the international legal order to the realities of today serves national interests of the countries to ensure high level of protection for its own citizens and in the world scale.

Russia is a party to numerous international treaties, including those aimed at protecting, promoting and advancing human rights, and one of the original members of the Human Rights Council, an inter-governmental body within the U.N. system consisting of 47 States “responsible for strengthening the promotion and protection of human rights around the globe”. In this connection Russia believes that the U.N. human rights architecture shall be reinforced, avoiding politisation of the issues of human rights to be able to provide assistance to countries.

Russia's approach is to offer cooperation initiatives rather than passing judgments upon another country. Taking decisions that criticise situations in other countries does not contribute to establishing constructive dialogue. Joint work on finding solutions to problems which are common for all societies is seen as an essential feature of international cooperation, beneficial for all counterparts.

As regards the response of the global community to peace-threatening situations, humanitarian challenges and accomplished facts of peace violations, Russia insists on strict observance of the exclusive rights granted by the U.N. Charter to the U.N. Security Council as a main body responsible for maintaining international peace and security. The capacity of the United Nations in this regard should be fostered through more efficient cooperation with regional and sub-regional partners. An effective response to the human rights problems of domestic origin and the global challenge of international terrorism can only be ensured on the basis of the U.N. Charter and in strict compliance with it, as well as with other rules of international law. The U.N. Member Countries shall make all efforts to ensure the maximum use of the consensus-driven U.N. Counter-Terrorist Strategy.

The United Nations sanctions are considered to be a major instrument for diplomatic settlement of conflict situations and tensions. They should be targeted, proportionate and imposed with caution. The scope of respective resolutions of the U.N. Security Council should never be extended or widely interpreted.

Russia actively promotes the development of inter-civilization dialog within the U.N. and supports facilitation of activities of the Alliance of Civilizations by taking active part in the work of the Group of Friends of the Alliance of Civilizations and within its framework.

The priority is also given to collaboration with UNESCO. Russia has contributed to strengthening its role and plays an active part in implementing its goals and projects. Russia promotes further development of the organization and stands for transforming it into an effective tool for the realization of the U.N. goals.

Humanitarian intervention

The difference of Russia's approach towards humanitarian intervention from the positions of other countries has nothing in line with what this difference is often perceived to be by foreign observers. What is usually written or spoken about Russia's position toward humanitarian intervention is a misunderstanding. The approach may differ but not as concerns the essence of the problem. Russia identifies with those who consider that the world community or a single state cannot abstain in the cases of: the systematic and gross violation of humanitarian rights of thousands of people; genocide committed by the state authorities against peoples living in the country; and war waged towards the country's population or a part of population.

There is no difference or dispute on this point. It is impossible, however, to bring an end to violations of international humanitarian law by actions contrary to the Charter of the United Nations. The decision to intervene in the domestic situation of another state must not be taken unilaterally. The effective responses to the humanitarian challenges should be searched for collectively. In the case of mass-scale violations of basic human rights the international community should respond jointly and on the basis of the decision taken by U.N. Security Council. Otherwise the basics of international cooperation, legal foundations of the modern world order and United Nations Charter are undermined.

When it happens that some countries take leave to judge and act in circumvention of the internationally agreed mechanisms and without taking into account positions of others, it results in an atmosphere of permissiveness rather then in effective help and assistance to a population, or the establishment of peace and stability.

The assessment of a given situation in all aspects, its' scale and seriousness, risks for the population and perspectives of development, shall be made by a duly authorized international body. The standards on the basis of which decisions to employ military force are taken, and high thresholds for the Security Council authorization, shall not be lowered. They serve important aims, such as to minimize the resort to force as a means of conflict resolution and thereby promote stability, to protect state sovereignty and political societies within a state from violent external interference.

Therefore humanitarian intervention without a United Nations mandate is illegal under the rules of the U.N. Charter, and also inpermissible for the abovementioned reasons.

Regional Instruments

The overwhelming majority of European countries are Member States of the Council of Europe with its extensive system of legal instruments, effective implementation mechanisms and procedures of monitoring. Interpretation of the Council of Europe Charter and European Convention of Human Rights leads to a conclusion that the European Human Rights protection System is designed for legal rapprochement and integration of the countries of Greater Europe, and therefore to the creation of a common European legal and humanitarian space.

In 1996 the Russian Federation became the 39th Member State of the Council of Europe and committed itself to joint efforts of the European countries to ensure greater unity of the Europeans by promoting human rights protection, pluralist democracy and the rule of law.

Political dialog between Russia and the Committee of Ministers of the Council of Europe has been established since May 1992 when Russia applied to join the Council. Since then the country took part in various activities of the Council of Europe through participation in intergovernmental cooperation and assistance programmes in the fields of legal reforms and human rights. Prior to the accession in 1996 a number of legislative acts were prepared with international consultations and on the basis of Council of Europe values, principles and standards, such as new criminal code, criminal procedure code, civil code and civil procedure code, as well as the new law on penitentiary system.

At the present time Russia is a party to a long list of 54 CE legal instruments, including its most important conventions*3. Russia takes part in five out of thirteen autonomous organizations of the Council of Europe system and plays active role in cooperation though Pompidou Group aiming at combating drug abuse and illicit drug trafficking and the GRECO (Group of States against Corruption).

The main motive to enter the CE was the Convention on Protection of Human Rights and Fundamental Freedoms. It was also one of the commitments undertaken by the country to be admitted to the Council of Europe. The European Convention entered into force for Russia on May 5, 1998.

Apart from the ratification of the ECHR, the Opinion of the CE Parliamentary Assembly on Russia's accession*4 laid down a long list of 24 other obligations. Some of them are more specific, like accessing to Protocol No. 6 to the ECHR on the abolition of the death penalty in time of peace, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Framework Convention for the Protection of National Minorities, the European Charter of Local Self-Government and the European Charter for Regional or Minority Languages.

Among these obligations are those that have been fulfilled and those that are still due, like accession to the Protocol № 6 and the Charter for Regional or Minority Languages. Notwithstanding the non-ratification of the death penalty Protocol, which is still at question, the executions were stopped in 1999, and in December 2009 the Russian Constitutional Court, addressing the issue of the death penalty, in fact made the return to execution of death penalty an impossibility.

Though under the Russian Constitution of 1993, the International Treaties of the Russian Federation automatically form part of the Russian law (Article 14), and human rights and freedoms are guaranteed in accordance with generally recognized principles and norms of international law (Article 17), the real transfer of the European Convention norms into the legal system of the Russian Federation has not been easy to achieve and has not fully achieved yet.

The Constitutional Court of the Russian Federation and the Supreme Court consistently stress the obligatory nature of the Convention and jurisprudence of the ECHR and the obligation of the state to comply with them by not only ensuring execution of the ECHR judgment but also by taking general measures aiming at prevention of the violations of the Convention rights. Accordingly the obligation to bring the national law, administrative practices and organization of justice to conformity with the high standards of the Convention, and case-law of the ECHR is based upon the subsidiary principle. It has been emphasized in the point B, Implementation of the Convention at the national level, by the action plan of the Interlaken Declaration of 19 February 2010*5.

The drawbacks of the Russian legal system and law-enforcement practices are reflected in more then 800 judgments on violations of Convention rights by the Russian authorities delivered by the European Court so far.

Judging by the number of applications on alleged violations that continue to increase, there are many serious problems which are still not fully addressed. The proportion of the applications against Russia among all claims directed to all State Parties of the Convention is the highest one (28.1% out of 119 300 pending applications at the end of 2009)*6.

However the growing number of applications reflects not only the existing problems but also the active position of the population and the readiness of individuals to protect their rights, going if necessary to international institutions. This is also one of the criteria to assess the integration of society into the European human rights protection system.

It should not be forgotten also that though the judgments of the Courts are aimed at protecting individual rights, they give impetus to the development of the national legal system, the integration into the common legal space of European countries, and the establishment of the same level of human rights protection allover Europe.

Reforms launched by the Russian Federation to satisfy the standards of the Convention involve fundamental changes in judicial system, including administration of justice in commercial, civil and criminal courts, as well as the penitentiary system, social security policy and counter-terroristic regulation, etc.

Followed by unambiguous commitment voiced at the highest political level to change the unacceptable situation as regards the number of detained persons being suspected or accused of offences of low or medium gravity, important legislative initiatives were launched to ensure effective use of alternative preventive measures.

Among important and long-awaited reforms are humanizing amendments to the Criminal Code inserted by several federal laws, abolishing detention on remand for alleged crimes of an economic nature and imprisonment for certain minor offences. By one of this laws a house arrest was introduced as a new type of liberty restrain.

Following numerous judgments of the ECtHR, including one pilot judgment, stating violations of a right to fair trial arising from excessive length of court proceeding, and non-execution of domestic judgments mainly in social protection filed, a revolutionary law was adopted in April 2010 laying down the guarantees and procedures for obtaining compensation for wiggery and non-execution.

Russia's commitment to the core values has been reaffirmed by the recent ratification of the European Social Charter, which complements ECHR to guarantee social and economic rights in a practical way and covers such issues as housing, health, education, employment, legal and social protection, free movement of persons and non-discrimination. It took 9 years for Russia to harmonize national legislation regulating social policy, which made it possible to ratify the Social Charter in October 2009.

Human rights issues and integration

The globalisation is perceived to promote trans-border movement of capital and the pursuit of business activities. The drawback of globalization process is that the problem of harmonization of individual status is not addressed. Theses issues are left overboard.

Globalization tends to turn into competition rather than cooperation for the benefit of promoting human rights. However, respectful treatment for human rights is an impetus, a means and at the same time a result of integration. Orientation towards developing and implementing common human rights standards could be secured though international cooperation instruments.

The main effect of the recent years' developments in Russia on the sphere of the Russian external politics is that Russia has strengthened its role in international affairs. It goes in line with Russian political tradition and history. Russia is intended to fully contribute to solutions of global problems, and the development of a more democratic world order, based on international law and the principle of collective adoption of measures.

Integration processes in which Russia is involved are going within the Commonwealth of Independent States, within Greater Europe and within other regions.

The EU-Russia relations are being developed within the framework of Four Common Spaces mechanisms for sectoral dialogues. Cooperation between Russia and the EU in the area of Freedom, Security and Justice has been carried out on the basis of the respective road map adopted at the Moscow Russia-EU summit in May 2005, which defines freedom of movement of persons, the fight against terrorism, organized crime, drug trafficking, money laundering, corruption, trafficking in human beings and judicial matters as key cooperation fields.

Human rights and values

The set of values inherent to each society is never absolutely identical. Human rights are underlain by traditional values, and cultural and civilization diversity. Therefore the classical rights may hold different places in the list of rights included into national package, and this diversity must certainly be respected. Upset of balance may have negative effects on society's capabilities to adapt to contemporary standards and requirements. As was noted by the Minister of International affairs Sergey Lavrov, to claim validity of the common values, the European civilization should become truly inclusive for all who live here and consider Europe to be their home. This means tolerance in the first place, and respect for identity, including religious feelings*7.

It is virtually impossible to bring a society to accept the set of rights which is not compatible with traditional or ancestorial life pattern. The way of life is worthy of respect and must be used for the benefit of development of the society, and relied upon in achieving modernization.

As for Russian society the list includes not only classical human rights but also family values, morality and ethics, including perceptions formed under the influence of Orthodoxy, Islam and other main religions. The social experimenting of the recent years as concerns family, and all the other elements of the package, provokes rejection and a more critical approach towards the classical concept of human rights.

The values conflict

The conflict of values has been very actively discussed in foreign mass media sources. International observers called into question the extent of the shared values between Russia and the West. Diversities were explained to result from mismatch in the systems of values.

The conversations finally resulted in nothing; but the misperceptions about the alleged conflict remain.

The values that are shared by others were never challenged or denied by Russia, they are common to Russia as well. But what have always been, and will further be, refused by Russia is a self-entitlement of a single country or several countries to pass judgments on others from a position of an innocent.

As far as values are concerned Russia believes that there are no grounds for conflict. To explain the differences by inconsistency of values is a very unproductive and dangerous approach, since it makes a conflict as such a permanent feature in the relations.

As the Chairman of the International Affairs Committee of the Russian Federation State Duma Konstantin Kosachev put it responding to publications in the foreign mass media in 2006-2007, alleging the values gap between Russia and the West, the “Conflict of values is a matter of propaganda, rather than ideological, civilizational or psychological realities; so the issue should be resolved from this point of view, instead of using this sensitive topic as a political weapon”*8.

The way to solve this contrived conflict lies again in deepening and extending of cooperation. It is important to engage partners in a focused, systematic discussion of positions on sometimes sensitive questions and difficult realities of a modern world. The efforts must be invested into the creation of conditions for joint discussion based on trust and cooperative attitude, where decisions would be taken and voiced collectively rather then unilaterally.

To create effective dialogue based on shared understanding of the values to be protected against common challenges requires effort from all sides. It requires Russia to voice and explain grounds for certain assumptions, if they are different, as well as “It requires Western partners who are willing to re-evaluate their stereotypes about Russian political culture and, ultimately, willing to embrace Russia as a necessary and vital part of the Western community”*9.

Problem of double standards

To the above discussed issue of the “conflict of values”, it is closely related the problem of double standards. Traditionally, the Russian individual and the society as a whole have had an innate sense of fairness and tend to hunt truth and justice. The notion of justice and fairness are perceived as essentially embracing equal treatment, as well as consistency in one's assessments and conduct.

Therefore in some respects the countries of Western Europe and the United States have lost, from the point of view of the Russian population, the role of moral leaders. When the high standards of human rights protection are guaranteed on the national levels and for their own population, the violent use of force, such as aggressive bombings, outside the national territories would be regarded as violation and denial of the same standards of protection and same principles.

Double standards violate the impartiality principle inherent to justice. Justice and impartiality demand that the same approach and equal treatment be applied to all peoples and countries. Even if historically they have not evolved and developed in a same way.  

The use of human rights as a political weapon, as a pretext to interfere in the internal affairs of other countries in order to pressure the authorities to help the achievement of different goals, or as a cover to gain the control over certain markets shall be condemned as being a real discredit to human rights and to the political forces employing double standards principles.

Different groups of population

One of the main directions of the advancement of human rights is support to groups of people that are objectively in a less advantageous position compared to others, such as children, elderly people, and invalids.

In the Soviet Union times in the conditions of socialism, the state system was designed to support socially vulnerable groups of the population. During the period of “wild capitalism”, the respective social institutions were undermined. First they suffered from inertia and lack of policy on the part of the authorities in the first years, secondly from the unsuccessful social experimenting during the times of development of a market economy.

In the conditions of economic boom, the institutions and structures for social support have started to be developed and improved. But again they were hit hard by the world economic crisis. However, the experience of creating and putting into life effective mechanisms has been gained, and the tasks are set, which are clear. These tasks have to be implemented.

International cooperation in these directions has always been much appreciated. Russia supports further development of practical measures aimed at implementing the “global partnership” concept provided for in 24th special session of the General Assembly, the Millennium Declaration and decisions of the World Summit for Social Development. In 2008 the Russian Federation signed the Convention on the Rights of Persons with Disabilities, applying international human rights standards to this category of population without discrimination, the elaboration of which the country has greatly contributed.

The ongoing work is also conducted in the other directions of international cooperation in the social and non-discrimination initiatives. Russia has recently ratified the Optional Protocol to the Convention on the Rights of Child on the involvement of children in armed conflict, and was one of the initiating countries of the U.N. Declaration on the rights of Indigenous Peoples, used as a basis for a national concept of sustainable development of indigenous peoples living in the Russian regions.

© Daria TRENINA and prof. Mark ENTIN
from the European Studies Institute at the MIGMO-University

*1 Done for the World Congress of Comparative Law, USA, July 2010.

*2 Inter-American Court H.R., Juridical Condition and Human Rights of the Child. Advisory Opinion OC-17/02 of August 28, 2002. Series A No.17, paras. 87 and 91, Committee on the Rights of the Child, General Comment N°8, The right of the child to protection against bodily punishment and other forms of cruel and degrading punishment, CRC/C/GC/8, August 21, 2006, para. 24.

*3 Among most important are Convention for the Protection of Human Rights and Fundamental Freedoms and all protocol with exception of Protocols № 6 (on Abolition of Death Penalty, which is signed but not ratified) and Protocol № 12 (Prohibiting Discrimination), European Cultural Convention, European Conventions on Extradition, Mutual Assistance in Criminal Matters, Academic Recognition of University Qualifications, Conventions on Suppression of Terrorism and on the Prevention of Terrorism, Convention on Transfer of Sentenced Persons, European Convention for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment, Framework Convention for the protection of Minorities and European Social Charter.

*4 PACE Opinion 193(1996) of 25 January 1996.

*5 Interlaken Declaration, www.interlakenconf.admin.ch

*6 European Court of Human Rights, Annual Report 2009

*7 Sergey Lavrov, the Future of European Cooperation: a view from Moscow, in Discussion paper series, 2008.3, August 2008.

*8 Konstantin Kosachev. Russia and the West: Where the Differences Lie // Russia in Global Affairs, №4, October - December 2007.

*9 Russia is part of the West. Honest, By Nicolai N Petro, SPEAKING FREELY // Asia Times Online, 8 June, 2006.