Thursday, 6 March 2008

Enforceability of civil and political rights and the recognition of a legislative void

The Russian election on March 2, 2008 was an election "in name only", said the independent. "Had it happened in Africa, the capitals of the West would have been full of condemnation. As it concerns a country with a considerable voice in the world's institutions and even more real power in energy supplies, the realities behind Sunday's vote are likely to pass essentially unchallenged". (see

The Russian Federation is a party to the Covenant and the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR) (ratified the protocol on 1 Oct 1991). Article 25(b) of the Covenant holds as follows: "Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 and without unreasonable restrictions:...(b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors;..."

General Comment No. 25 elaborates on the terminology of para. b by mentioning the pivotal implementation of this right through the conduction of "genuine periodic elections", "fairly and freely". The Comment also mentions the establishment of an "independent electoral ensure that it is conducted fairly, impartially and in accordance with established laws which are compatible with the Covenant". State reports to the special Committee are required to "indicate what measures they have adopted to guarantee genuine, free and periodic elections and how their electoral system or systems guarantee and give effect to the free expression of the will of the electors".

The politicisation of the international legal order is not a new phenomenon and neither is it a marginal, or marginalised, discourse. Its central role in the academic world is far from being lamentable. Albeit eminent, it is, however, self-limiting and self-limitative in the sense that it refuses to transcend its own boundaries and undertake an activist parlance - that which assumes responsibility and acts upon its normative assertions. Be it in terms and languages that it has long condoned, destruction and concurrent reconstruction, or rather development, is long overdue.

I suggest that to observe the human rights institution from a positivist stance - appreciating the existence of a certain vigor in the tools that it presents, recognising and grasping onto the instances of triumph that it has achieved - is to recognize the legislative loopholes and lacunae with which it is ridden.

This is only one more strike against the Russian people's enjoyment of fundamental civil and political rights; following a series of restrictive legislative measures on the registration and formation of noncommercial organizations, and a general recent past that resonates a typology of diluted fascist tendencies (i.e. restriction of mass media, nationalisations, corruption in all three branches and a growing number of antagonistic gestures towards the West). Instead of subjecting the Russian State to the kind of accountability measures that the Economic and Social Committee (through or together with other UN bodies) should be imposing, we are faced with the realization that the provisions/tools that we require are not readily available.

In order to hope for a constructive response from the ICCPR Committee at the UNHCHR, the Russian State will have to submit a report under the Covenant's mechanisms. Alternatively, or concurrently, an individual complaint could come under the mechanisms outlined in the Optional Protocol. The latter seems a more feasible option, albeit, it is envisageable, it would be heavily obstructed by the relevant national authorities. The individual complaint mechanism remains the only kernel of hope. It is the only means to challenge and enforce the irremediable rights of a rigged and illegal political process.

A naively posed, simplistic question remains untreated: is there not something inherently toothless and powerless in the current compilation of enforceability mechanisms available to the most fundamental international legal principles? This is one other reflection of the current defenseless state of international law (without actively attending to the forceful calling of the normative discourses this particular phenomenon attracts). It is also a crude reminder of the precarious nature of the surfaces on which its current legal instruments, such as the ICCPR, hopelessly stand.

With an intense desire to transcend this morose static status, a determinative change in approach is required that would not fail to instantly point out the violations procured by state parties (i.e. Russia's blatant disregard for the rights of the people or the carelessness in which it had, with full knowledge and considerable nonchalance, conducted the recent elective process).

An immediate enquiry should be commenced, an investigatory process and independent group of experts delegated and an evaluative communication delivered by the ICCPR Committee. Finally, and most critically, a number of elementary mandatory stipulations need to be ordered for the purpose of hastening the corrective procedures and remedying those whose rights had failed to be protected by forcefully giving them effect (viz. even if this means that a re-election is the only viable means for achieving this objective).


John Flood said...

I wonder. Perhaps not so much toothlessnes as still trying to adapt to a co-equal international community of a kind, one that isn't based on empire and dominion. I don't think we've acquired the taste for that yet.

Valentina Azarov said...

Adaptation does not come without nurture or guidance. It is clear that review of the form as much as of the substance is called for and much overdue. Damning the Economic, Social and Cultural rights Covenant to the same template form would unquestionably be disastrous. There is, however, a grain of hope in the ongoing contemplations pertaining to the Social rights Covenant and the installation of an effective and efficient enforcement and remedying mechanism. This could potentially lead us to a healthy development. Here it is, that kernel of hope.