International Symposium “Domestic Law in a Global Upswing? The Strained Relationship between International and Domestic Law”

Published by Legal Dialogue at 24/11/2016

Source: eu-russia-csf.org

The international Symposium “Domestic Law in a Global Upswing? The Strained Relationship between International and Domestic Law” was held on 30-31 May 2016 in Berlin. One of its major elements was the Expert Conference “Four Decades and the Future of the Helsinki Movement”, conducted on the occasion of the anniversary of the Moscow Helsinki Group. Both formats gathered more than 90 representatives of NGOs, academics, legal practitioners, and renowned human rights activists from 23 countries.

As Anna Sevortian, managing director of the EU-Russia Civil Society Forum, pointed out in her keynote speech, the purpose of the Symposium was to create space for networking potential joined initiatives and to discuss how to create and activate a common legal framework and make it work better for the just society.

Participants discussed the challenges faced by civil society both in Russia and in European countries: the rise of nationalism and populism, declining prestige of international institutions, and authoritarian tendencies. Political powers that view international law and organisations as a threat to national sovereignty strive for power and take control in different countries. Many speakers mentioned the fundamental change in attitude towards human rights work in recent years, especially in Central and Eastern Europe. After the fall of the communist regimes human rights were a very popular issue with the population and generally respected by governments. Now NGOs and civil society activists encounter great difficulties, and not only in Russia.

Lukasz Bojarski, Director of the Institute for Law and Society in Warsaw, reported on the negative changes in the social climate in Poland: “With each government there were many problems and fights etc., but still it somehow went in one direction. Now it has changed, because the current ruling party and the government are really undermining, in my opinion, the fundamentals of democracy and the rule of law. So it’s a new situation for us. I will focus on two elements. In the rhetoric sphere it is more or less the same as in countries that undergo similar processes. We have the party that claimed that ‘the will of nation should prevail over the cliques and coteries’, including coteries of lawyers and of judges. So the will of nation is now most important. Second, that we have to give Poland back to Poles, like it was somebody else’s before. And that the majority has the right to change the country completely because they won the election. This is democracy, and in a democracy the majority rules. And all the voices of critique are the voices of post-communists, or traitors, or corrupt politicians etc. “

Márta Pardavi, co-chair of the Hungarian Helsinki Committee, talked about similar processes taking place in Hungary: “I think in the luxury of civilised society we live in, we are as human rights workers accustomed to expecting dialogue, some feedback from the authorities, some constructive discussion about issues. And I think that the Helsinki Movement, the human dimension meeting, is built around this idea partly, that you sit down together, you discover, discuss, and then come to some conclusion that will move things forward. We don’t have it now, I think what we see in Hungary now is completely a denial of problems. Denial of problems to such an extent that NGOs that voice critical remarks about governmental human rights policy are not actually regarded as partners that you could have a dialogue with, but rather as adversaries, who are not voicing genuine concerns about human rights but instead have a very shady political agenda that is obviously driven by somebody outside Hungary. We certainly don’t seem to be pursuing the national interest according to the government. So we see a reversal of this expansion, and this is exactly the shrinking space phenomenon that has become such a household term now for human rights NGOs and civil society around the world. We can, I am sure, join in enumerating ways this space is shrinking. But I think not to come to the conclusion, but to flag some ideas about the future. I would point out a few challenges and they are certainly not the entire list. But one I think, and it is very important, is that human rights for many governments and for many political leaders are no longer an ethos, they are no longer relevant, and they are not considered globally, universally applicable.”

Concerns about “foreign agents” labelling were voiced during most of the workshops and discussions. For instance, while discussing “Challenges and Oppurtunities in Application of the International Law for the Protection of Nature Reserves“, the Greenpeace Russia Lawyer Mikhail Kreindlin reported that the listing as a “foreign agent” threatened the very existence of small environmentalist groups.

How should NGOs and human rights groups react to restrictive legislation and legal practices? Shall they comply with illegitimate laws; shall they challenge them in courts or simply disobey? The participants could not agree on a universally applicable solution. Daria Miloslavskaya from the International Centre for Not-for-Profit Law spoke in favour of unconditional compliance with current legislation: “Unfortunately, I have to admit that the Russian legislation is not logical and sometimes even discriminatory for some groups. But this legal framework is what we call given circumstances, where we should survive if we would like to live and to work in our country. We should survive even if it’s difficult, expensive, dangerous, whether it is based on the rule of law or not. For lawyers who are now working with the NGOs the rule of law is not a practical question, it’s only theory. For more than ten years we provide legal advice for Russian, foreign and international NGOs which are working in Russia and our consultation is how to comply with the legislation. We suggest to be in compliance with the law in order to minimise risks and to be fully prepared for any action undertaken by the state. Maybe I will not be supported by the majority but I am convinced that complying with the law, dura lex sed lex, is a matter of principle now.”

The chair of the Russian Citizen’s Assistance Committee Svetlana Gannushkina strongly opposed this position: “Legislation is something written on paper, but the rule of law is an axiom. If a theorem contradicts an axiom, than the theorem is wrong. I will give you an example of how we resisted a law that many haven’t even noticed. When the ‘foreign agents’ law was passed, we were obliged to go to this guillotine on our own. But nobody complied. Sure, the state later outplayed us. It gave the right to register us to the Ministry of Justice, but we did not do what they wanted us to do. I think it was a very important act of civil disobedience”.

Among topics discussed at the Symposium were gender equality issues (grave problems still remain in many countries), prisoners’ rights, human rights work on occupied and war-ridden territories, the current refugee situation. and the promotion of civil society and democratic values. A fascinating project was presented by Harald Hahn, the founder of Legislative Theatre. The project seeks to encourage the participation of less-privileged and vulnerable groups such as poor, disabled or old people in civic activities. Both actors and the audience form “political parties” and discuss and vote on legislative moves on social issues, domestic violence or other issues that can have immediate impact on their lives.

A central event of the Symposium was the Expert Conference of the Helsinki Movement . It was opened by Gernot Erler, the German government’s Coordinator for Intersocietal Cooperation with Russia, Central Asia and the Eastern Partnership Countries. He remembered the foundation of the Group 40 years ago, as11 Soviet citizens started to document the human rights situation in the Soviet Union after the country signed the Helsinki agreement, and stressed their crucial role for the European human rights movements. From the very day of its foundation the Moscow Helsinki Group inspired those people in Eastern Bloc countries who chose to fight for democracy and the rule of law. They were followed by activist in Western Europe who put pressure on their democratic government to push for human rights and civil liberties in relations with the USSR and its satellites. Ludmila Alexeeva, a founding member of the Moscow Helsinki Group, described international solidarity as vital for the human rights movement.

There are many ways in which international support for human rights can be practised. They include binding ties and building networks, but they also go far beyond. The example of the Moscow Helsinki Group demonstrates that actions in support of human rights in a single country can have a huge impact in the world where all countries are connected by treaties, agreements, and participation in various organisations. Mateja Steinbrück-Platise, a researcher at the Max Plank Institute for Comparative Public Law and International Law, visualised it by explaining how taking legal action in civil rights cases and demanding for more democracy on the domestic level influences international legislation and also affects the standards in other countries.

The EU-Russia Civil Society Forum is looking forward to providing its platforms for further discussion of related topics in the future.