A Losing Battle: International Law Against National Law

On July 14, Russia’s Constitutional Court found that the European Convention on Human Rights (ECHR) is legally binding, yet does not have the ability to override the Russian constitution. Thus, when a conflict in laws arises, Russia “can step back from its obligations” to avoid violating the constitution. Such an approach is reminiscent of the U.S. stance on the International Criminal Court (ICC) that promotes sovereign behavior ahead of international arrangements. While the U.S. has a tradition of prioritizing sovereign judicial control, the decisions of other states to supersede international decisions with national directives poses a major threat to the long-term viability of international law.

On the other side of Europe, the question of national versus supra-national obligations has led the United Kingdom to reconsider its commitment to international institutions. While currently a member of the European Union, the traditionally Euro-skeptic government has committed to a referendum on EU membership.[1] Even more concerning to human rights activists, Britain is considering an exit to the ECHR, a move that critics fear “could trigger the disintegration of respect for international law.”

Russia’s constitutional findings come at a time where other BRICS countries are having problems of their own with international law. South Africa has declared that it may leave the ICC after the conflict with the international tribunal over South Africa’s failure to detain wanted Sudanese leader Omar al-Bashir. A South African departure would strike a blow against the court’s jurisdiction, particularly as other African states, nearly all of whom signed the Rome Statute, may be inclined to follow the South African example. India too has faced pressure for its non-compliance with obligations under international law for its ongoing protection for military activity  in Jammu and Kashmir. Most recently, Amnesty International published a report criticizing India’s Armed Forces Special Powers Act (AFSP), which Amnesty identifies as the cause of “a cycle of impunity for human rights violations.” While the AFSP is not a new point of contention, it will be important to see whether the Russian ruling influences India’s response or if it has any reverberations through the legal systems of the other BRICS countries during the upcoming months. A denunciation of international legal bodies as overstepping national sovereignty could have long-term repercussions for the potential of an international human rights regime.

[1] Interestingly, Obama has joined the Brexit discussion, urging the UK to stay in the Eurozone.
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About Brian Mund

UPenn '13; YLS '18. My research focuses on sovereignty, the United Nations and the legitimacy of secession.
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