3.5.2022 11.50 Vierashuoneessa professori Stefan Kirchner: The Arctic Council and the Council of Europe – Reactions to Russia’s War
Russia’s illegal war against Ukraine and the war crimes and crimes against humanity, the deliberate murder of innocent civilians, have eroded much of the trust between Russia and Western partners that had been built since the end of the Cold War. Three weeks after the beginning of the invasion, the implications of the war on international relations are massive. This text can only provide a snapshot as it reflects a situation that is rapidly developing. Writing this during the morning of 18 March 2022, there are now first indicators that China might be willing to give up its unconditional support of Russia that Beijing expressed just a few days ago. The last few days alone have seen major legal developments that are likely to reverberate for some time to come, although the situation continues to be very volatile. At this time, it is difficult to predict the future when it comes to the legal dimension of Russia’s interaction with the West in general and with the rest of Europe and of the Arctic in particular. What is attempted here is a snapshot, a look at the situation as it is at this moment, and a cautious extrapolation of potential consequences.
The Arctic Council and the Future of Arctic Cooperation
Russia is an important European and Arctic nation. The world’s largest country has often been at odds with Western values, but the last weeks have seen a dramatic acceleration in the opening of this rift. Currently, Russia chairs the Arctic Council (AC). In reaction to Russia’s invasion of Ukraine, the seven other Arctic countries, the Arctic Seven (A7), announced its intention not to participate in AC meetings in Russia. The AC itself reacted, with the consent of Russia, by temporarily halting all AC meetings. At this time it is unclear if, when and how the Arctic Council might be reactivated. The international meetings by the representatives of the member states and the permanent participants, indigenous representative organizations from across the Arctic, are only the most notable aspect of the work of the Arctic Council. The bulk of the work happens in working groups that assemble highly qualified experts from different fields. Losing this work and the international cooperation in the Arctic would be devastating and a loss for the international community as a whole. At this time, it seems feasible that the A7 will continue the existing international cooperation, but without Russia.
It remains to be seen in which form this will happen, if there will be an enhanced Nordic Plus cooperation, involving the Nordic countries plus Canada and the United States, or if the A7 will continue to use the Arctic Council as a forum, suspending the Russian Federation’s participation. Arctic cooperation has reached a point at which the limited constitutionalization of the Arctic Council becomes a disadvantage. The 1996 Ottawa Declaration, the de facto foundational document of the Arctic Council, does not contain rules on the end of the cooperation, or on the exclusion of a member state. While the Ottawa Declaration outlines conditions for the inclusion of additional indigenous representative organizations as permanent participants, the membership of states is fixed to the eight Arctic nations according to paragraph 2 of the Ottawa Declaration. Paragraph 7 of the Ottawa Declaration requires consensus of the member states for measures of the Arctic Council to be taken. This makes it practically impossible for the Arctic Council to exclude a member state. As the Ottawa Declaration is not a binding treaty, it would be possible to just let the Arctic Council lapse, to let the current pause become permanent and to establish a Euro-American Arctic Council, without Russia.
The Russian Federation remains a party to the international treaties on oil spill pollution and prevention, search and rescue cooperation, and science cooperation that the A8 had negotiated under the auspices of the AC, but it is unclear if Russia will honor its obligations under these treaties. The science cooperation treaty might be particularly impacted by sanctions and counter-sanctions, adding to the risk Russia’s war against the people of Ukraine poses to international cooperation in the Arctic.
The Council of Europe
While the Arctic Council is in a kind of pause, the cut has already been made elsewhere. In 1996, the year the AC was established, Russia also became a member of the Council of Europe (COE). On 16 March 2022, the Council of Ministers of the Council of Europe, following an earlier decision by the Parliamentary Assembly of the Council of Europe (PACE), expelled the Russian Federation from the COE. After more than a quarter of a century, Russia’s membership has ended. This also affects the human rights obligations of the Russian Federation, most notably in the context of the European Convention on Human Rights (ECHR). Like many other international treaties that have been created in the COE context, the ECHR is a closed international treaty, meaning that only member states of the COE can be parties to the ECHR. Conversely, all member states of the COE are expected to be parties to the ECHR. The end of Russia’s membership in the COE also means the eventual end - in half a year - of Russia’s obligations under the ECHR. Article 58 (1) and (3) ECHR stipulate that the denounciation (Article 58 (1) ECHR) of the ECHR or end of the membership (Article 58 (3) ECHR) in the COE leads to the ECHR no longer being binding on the state in question after six months (Article 58 (1) ECHR). For six months, the human rights standard of the ECHR continues to apply wherever Russia exercises jurisdiction within the meaning of Article 1 ECHR, whether it is on its own territory, or, for example, in those parts of Ukraine that is occupies as a consequence of the illegal war that it has been waging since 2014. After this time, the human rights standards of the ECHR no longer apply. Until the last moment of this six months period, however, the Russian Federation remains fully responsible for all violations of the ECHR (cf. Article 58 (2) ECHR). In practice, however, it will be practically impossible to enforce judgments of the European Court of Human Rights against Russia, because the Council of Ministers, which is in charge of enforcing judgments under Article 46 (2) ECHR. The default enforcement system is that states that are parties to the ECHR are obliged to implement the judgments (Article 46 (1) ECHR). In practice, this has been a problem with regard to judgments in which the Russian Federation was found to have violated the ECHR, already for some time. The level of Russia’s commitment to the ECHR has long been the cause of concern. The exclusion of the Russian Federation from the Council of Europe has just been the end of a journey away from the hopeful days of the 1990s that had begun many years ago.
An attempt at a look into the future
This is a loss primarily for the people of Russia, who are already facing a government which is increasingly embracing totalitarian and nationalistic ideas. Russia has turned its back to internationally recognized core values, such as the territorial integrity of states and the respect for human rights.
While the Council of Europe will continue to operate as before, just with one member state less, the future of the Arctic Council is less certain, while Arctic cooperation itself will certainly continue among the A7, regardless of the form or format chosen for this cooperation. In neither case were the actual contributions by Russia in recent years so that they would be missed immediately. What will be missed are the connections to the people who live in Russia, the sharing of values and ideas. This is tragic, in particular as awareness of and respect for human rights, but also contacts across borders, could play important roles in stopping Russia’s further descent into the abyss of totalitarianism. Given the atrocities committed by Russia against the people of Ukraine, neither the A7 nor the COE, however, had any real choice. Cutting the ties to the Russian Federation was necessary at this time. Many of these crimes evoke fears of another genocide against the people of Ukraine, ninety years after the Holodomor. In an order issued on 16 March 2022, the International Court of Justice ordered Russia to end its invasion of Ukraine. This was immediately rejected by Russia. It is Russia that rejected the idea of an international order that is based on rules and shared values. Once this view will no longer prevail in Russia, the memory of 1996-2022, the memory of the cooperation and shared values, the legacy of human rights and rule of law, might be used as starting points for a reengagement with a future free and democratic Russia. Today, the conditions for cooperation are not met, due to Russia’s illegal war against a sovereign state and due to the many war crimes and crimes against humanity that are being committed on behalf of Russia. The consequences make all of us poorer, including Russia’s neighbors and partners in Europe and in the Arctic. An era has ended, but cooperation in the Arctic and in Europe continue. International law remains relevant in the Arctic and in Europe. In the Arctic, the form of cooperation might change, but at least among the A7, the spirit of cooperation remains strong. One day, a free Russia might return to the table.
Research Professor of Arctic Law
University of Lapland
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