Misapplication of International Legal Norms in Socially Abnormal
- / -
Learnings from a seminar on 'State and Civil Society'
organized by the Council of Europe at the Russian Public Policy Center
Moscow, December 1994
Russia is geographically the largest country in the world. Culturally it could be said
to encompass the greatest range of ethnic and language groups. From a social and political
perspective it has undergone the greatest range of traumatic transformations over the past
70 years, whether or not these are seen as a daring social experiment that was less than
Russian social scientists are emphatic in pointing out that the law has traditionally
been understood there in ways that are poorly recognized in the West. Even in the 19th
century laws were only considered as indications of ideals that could possibly guide
subsequent policies and their implementation. It was never recognized that they should
necessarily do so as in the West. During the Communist period, many of the laws (including
the Constitution) were respectful of principles of democracy and human rights, but no one
expected them to be taken literally. Legislation in that context can be better understood
as an act of public relations rather than as a commitment to action according to
2. Current situation
In the turbulent period since the dissolution of the USSR, whilst much emphasis has
been placed on legislative reform, there is no tradition whatsoever of confidence in the
effective enforcement of those laws. There is therefore very little expectation that such
laws will effectively govern relations between social actors in the short and medium-term
In October 1994 an expert group reported to the Council of Europe on the conformity of
the legal order of the Russian Federation with Council of Europe standards (Council of
Europe, 1994). The experts came to the conclusion that 'so far the rule of law is not
established in the Russian Federation'.
Any hopes for effective implementation of laws are severely, if not completely, eroded
by the day-to-day reality of an essentially lawless society. It is a well-publicized
characteristic of Russian society that effective control is essentially in the hands of
groups such as: the presidency, bureaucratic coalitions, the military, and organized
crime. Although privatization has sanctioned the creation of privatized enterprises, their
capacity to act, and the rules govening their action, are essentially determined by their
relations to the above-mentioned groups, rather than by the law. When convenient,
reference may be made to the law to justify or explain certain actions, but this is not a
constraint on arbitrary or extra-legal actions. Furthermore, even the best informed have
littleunderstanding at this time as to whether any given new initiative will be considered
'legal' or illegal.
The rule of law is further frustrated by deficiencies in the enforcement of the law. It
is widely accepted that the police are completely corrupt. This does not mean that the
poorly-paid police will necessarily act in a corrupt manner, rather it means that, given
the opportunity for significant personal benefit, it is expected that the police can be
persuaded to act in a manner inconsistent with their public duties. This difficulty
extends to the courts and judiciary. It is clear also that there is a completely
inadequate legal infrastructure, especially at the local level. There are few adequately
trained judges and magistrates, for example. And, because there is little public finance
available to pay those that do exist, the temptations for them to facilitate miscarriages
of justice are far from lacking.
Ironically, as was explained by social scientists, disputes concerning commercial
contracts are increasingly 'resolved' in Russia by one party arranging for the
other to be visited by an organized gang to extract due payment. This offers a whole new
interpretation to the notion of 'contract law'. This phenomenon is not without
its parallels in the West where direct action through 'taking the law into one's own
hands' is increasingly seen to have its merits.
All the above factors erode public confidence in legislative provisions. Day-to-day
life is so problematic in consequence, that many recall favourably the relative security
of the communist period. This is of immediate significance for the rapidly evolving
political situation. It is widely assumed that that the apparently positive features of
the reform period run a very significant risk of being swept away by powerful political
forces, notably at the next nation-wide elections. This possibility is confirmed by recent
reversals in nearly all regional elections.
3. 'Civil Society'
It was within the above context that the Council of Europe arranged a seminar on
'State and Civil Society' at the Russian Public Policy Center. A principal
objective was to focus on the role of so-called nongovernmental organizations (Western
concept) or 'public associations' (Russian version) in the 'civil
Draft legislation had been already been successfully subjected to a first reading in
1993, and further drafting is under way with a view to reintroducing the legislation.
However a principal difficulty is seen to lie in the lack of credibility accorded to such
bodies by the general public. Sociologists repeatedly emphasized that such bodies were
viewed with suspicion by the general public -- being seen as yet another trick for their
initiators to obtain funds and tax relief. Western remedies for such suspicion through
auditing, judicial review and various forms of appeal, have little credibility where there
is no tradition of such procedures and no confidence in those who might be expected to
carry them out.
Whilst the term 'civil society' is of great political importance in the
current debate in Russia, it is quite unclear whether this term is understood in the same
way in the West, and notably by the Council of Europe. Historically there is much
confusion and ambiguity surrounding the use to which the term is put in political debate.
Clearly the Council of Europe is anxious to emphasize particular interpretations
associated with an understanding of 'democracy', but it is unclear whether
Russian counterparts are interested in, or sensitive to, these interpretations. Nor is it
clear that the Council of Europe is willing or able to recognize the emphases or relevance
of its owninterpretations. Above all it is clear that 'civil society' is used as
a code-word of convenience by both sides to carry understandings which neither side is
especially interested in articulating in detail, even if it were possible or useful to do
4. Equivalent Western challenges
It is appropriate to note that in many Western countries confidence in the processes of
law enforcement and regulatory procedures have been severely eroded by numerous cases of
bribery, fraud and miscarriage of justice -- from local government up to ministerial
level. Several countries have been faced with indictment of 3 or 4 government ministers
from a single cabinet, even including attorney generals. The case of Italy has been an
extreme example. Whilst the fact that these cases have been publicized, forcing ministers
to resign and face inquiries, is a very positive indicator of a system endeavouring to
heal itself, there is widespread suspicion that the publicized cases are merely the tip of
an iceberg of unknown dimensions -- as debate over the 'public sleaze' scandals
in the UK has illustrated.
Confidence in the rule of law in the West is further eroded by failure of enforcement
processes and regulatory procedures. These range from inability, or unwillingness of
police to conduct investigations or protect private citizens, through to creative abuse of
legal procedures by the wealthy. Bribery of regulatory inspectors is widely acknowledged.
Repeal or non-enforcement of inconvenient laws (notably in the case of the environment) is
increasingly noted. The backlog of unprocessed cases, even in the European Court of Human
Rights, is making justice an extremely elusive and expense concept.
Whilst it may be argued that the fact that inquiries are conducted into such
inadequacies is a very positive sign of respect for the law, the fact that many such cases
are dropped, or abandoned for a variety of reasons (parliamentary immunity, insufficient
evidence, court costs, 'technicalities', delays, etc), is not. There is
increasing suspicion that legal procedures are being manipulated for the benefit of those
with the power or wealth enabling them to do so. Those cases that are publicized are seen
as a sop to public opinion -- a view often confirmed by indicted politicians who see
themeselves as having acted 'normally' and as having been unfairly singled out
as scapegoats or as an act of political revenge.
5. Preoccupation with a legal perspective
It is clear that people in the West are increasingly aware of the inability of the law
to protect certain rights, at least in the case of certain classes of people. Whilst this
situation may be far from comparable with the situation in Russia (where it is many
degrees worse), it is important to recognize the limitations of reliance on legal
Whilst there is great merit in elaborating and agreeing on legal norms, especially at
the international level, there is a need to recognize the total inadequacy of legal
provisions under certain conditions. This is especially the case in Russia. Current trends
indicate that, to a lesser degree, this may be increasingly the case in the West where
there are few indicators of possibilities of improvement (other than in the most
It is clearly essential and admirable to:
- enunciate legal principles in the light of international legal norms
- draft and adopt appropriate legislation
- stress the importance of enforcement procedures
- recommend, and undertake, training of the judiciary
But, under the circumstances noted above, whether in Russia or in the West, it is also
important to address the issue of the failure or ineffectiveness of the rule of law.
It is not sufficient simply to deplore specific defects and any resulting social
injustice. It is important to acknowledge the ways in which the legal perspective may
totally fail to address social reality. Whilst such defects may be considered temporary
from a historical perspective, it is vital to recognize that people and groups live for
long periods of their lives, and are subject to injustice, in anticipation of effective
Failure to deliver justice may be seen as clearly in the effective indifference of
police to burglary of private homes as in the failure of international security systems to
respond to the peoples of Bosnia. Increasingly people live in what amounts to a legal
no-man's-land, unprotected by any effective enforcement of legal provisions -- however the
admirable the international legal norms. For many this situation appears to be getting
worse rather than better.
There is some merit to the comparison of legal systems with religious systems. In the
latter case it has long been common to deplore failure to respect such principles as the
'Ten Commandments'. Those advocating the rule of law are in danger of being
similarly marginalized in deploring the failure to respect international norms.
6. Unrecognized cultural assumptions
International norms are also subject to challenge from cultures who perceive bias in
the international norms that have been formulated during the Cold War period. This is most
evident in the challenge by Asian countries to Western concepts of human rights. The
acclaimed universality of human rights may in practice be seen to be a result of two
- political pressures from major powers on certain client states to approve essentially
Western concepts of human rights (a phenomenon noted even at the 1993 UN Conference on
Human Rights in Vienna)
- political opportunism by certain countries in cases where little importance was attached
to signature of an international convention
Preoccupation with the legal perspective has been used as a convenient instrument,
notably by the West, to place pressure on countries with other cultures and traditions. To
some degree at least, the West has been deluded by the willingness of such countries to
accede to international conventions. This is notably the case with the smaller countries
of Eastern Europe who have naturally been anxious to show their willingness to act as good
citizens following their recent changes of regime.
What has not been effectively explored is the status of written agreements in different
cultures and in contrast to that prevailing in the West. From a legal perspective,
necessarily insensitive to cultural nuances, the attitude towards legal instruments is
assumed to be uniform. This is a dangerous and unfruitful assumption in these turbulent
It may be useful to contrast:
- countries where signature and ratification embodies principles in law which is then
automatically, and unquestionably, enforced
- countries where signature and ratification result in laws which may, or may not, be
enforced according to circumstances and political convenience
- countries where signature (with or without ratification) is treated as a diplomatic
public relations gesture totally unrelated to intentions regarding any form of enforcement
It is a Western assumption that legal documents are worth the paper they are written
on. In other countries and cultures, such documents may either be of questionable
significance or completely worthless as a constraint on behaviour. Governments may not
consider themselves bound by agreements made by their predeccessors, especially when
circumstances change significantly. This is even true to some degree in the West. The fact
that commercial contracts can be conducted between cultures may have less to do with any
legal document than with the need to continue to do business and maintain
credit-worthiness within the international financial system. The number of contractual
difficulties may be as much evidence of differences of cultural interpretation.
It is worth noting that on the occasion of a survey of signatures and ratifications of
international human rights treaties in the middle of the Cold War, the two countries which
had 'performed' best in this respect were Yugoslavia and Ecuador, far exceeding
countries such as Switzerland or the USA (Judge, 1971). If such indicators were to be
taken seriously, they gave rise to the results indicated in Table 2 (reproduced from the
It is clear that certain countries place far less emphasis on legal documents and legal
procedures than is typically the case in the West. Examples include Japan and Indonesia.
Of far greater importance than the written document is trust in the contractual partner.
This is also characteristic of some economic sectors, such as the diamond industry. What
are the implications for such cultural attitudes in the case of international legal norms?
Why has the Council of Europe chosen not to explore such matters in endeavouring to deal
with countries such as Russia?
Given Yugoslavia's earlier willingness to sign human rights conventions during the Cold
War period, it might be asked whether recent Western concentration on negotiation and
signature of peace plans for Bosnia has not been completely naive. The lack of
significance attached to such signed agreements is indicated by the frequency with which
cease-fire agreements have been broken there. Such naivety inhibits the development of
more fruitful ways of formulating the challenge and the necessary response.
The challenge of such cultural assumptions have been of some concern for a number of
years within the business community. This is illustrated by the pioneering work of Edward
Hall (1966-1984), Geert Hofstede (1984) and, more recently by Ronnie Lessem (1994) and
Fons Trompenaars (1993). These authors have all been concerned with the implications of
cultural diversity for practical agreement or collaboration. The challenges have even
become apparent between Western cultures.
These issues have not been explored in relation to the significance attached to
international legal conventions. It is not difficult to see that this would introduce
additionaldimensions which would be embarrassing to deal with within the present
conceptual frameworks. Embarassing or not, such differences have consequences for the
manner in which legal principles are approached in different countries.
7. Ballet for the Bear?
It should be asked whether requiring legal conformity of Russia to international legal
norms does not have some resemblance to expecting a bear to learn ballet. A bear has many
qualities and strengths. Constraining the bear to the niceties of a legal ballet may be
possible -- briefly, or to some degree (possibly with some coercion). But it should be
asked whether this does not entirely miss the point.
Russia may well be able to adopt legislation conforming to international legal norms
--and there has been considerable progress on this front. But there may be no ability to
enforce that legislation within the foreseeable future, even if there continues to be the
political will to do so -- which is extremely doubtful.
Clearly ballet can have great appeal in the country of the bear -- and the reknown of
Russia dancers needs no comment. Ironically 'ballet' is in fact the metaphor
selected by Martin Gannon (1994) as the most appropriate to clarify understanding of
Russian culture for the benefit of international managers. But the point to be made is
that this aspiration is disconnected from other dimensions of the socio-political dynamic.
Ballet does not appeal to all classes of Russian society. Russia is a powerful country,
and the strengths of that culture manifest in other ways -- some of them quite foreign to
Western ways of thinking.
It should be asked whether conformity to legal norms is the most appropriate route for
the bear to follow. Maybe ballet is not the most appropriate dance for that complex set of
cultures as a whole. The Russians might effectively see the invitation to adhere to legal
norms as being as exotic as inviting Mick Jagger to join the Bolshoi Ballet Company.
The increasing incapacity of Western countries to deliver justice to the
underprivileged, and the economic pressures to repeal measures guaranteeing social
justice, suggest that the West might also fruitfully reflect on its obsession with legal
norms and the rule of law.
Legal norms may be very appropriate in relatively static cultures and circumstances. It
is increasingly questionable whether in their present form they are relevant to rapidly
evolving situations where many effectively live for long periods of their lives in a
lawless society or a legal no-man's-land. This is especially the case where law
enforcement is non-existent, weak or corrupt -- or beyond the financial means of many.
These considerations are exacerbated in cultures where the status of legal documents and
the binding power of signatures and agreements are not based on the same assumptions as in
There is therefore a need to review the cross-cultural implications of international
legal norms. This may even be of value as a means of detecting hidden assumptions
distorting understandings of consensus between Western cultures (as is suggested by
business-motivated research in this area).
There is above all a need to explore new possibilities for justice in dynamic evolving
social situations typical of Russia and other countries in rapid transition. It is
regretablethat this approach has not been applied to developing countries which arguably
have been subjected to what amounts to Western 'legal colonialism'. It may also
be vital for the conditions of social crisis foreseen for Western countries in the near
future should the unemployment/social security crisis get out of hand.
The Western requirement of adherence to international legal norms may be as
questionable as the refusal to allow people to acquire arms to defend themselves when
under attack -- as is the case in Bosnia. It is as questionable as the penalization of
victims of agression when they endeavour to defend themselves in the absence of effective
It is clear that the dependence of modern legal procedures on a stable (ie relatively
static) social environment raises interesting challenges concerning the manner in which
justice in dynamic systems can be envisaged.
There is a need to learn from situations that are so dynamic that regulation of
disputes and injustice must be done 'on the fly' in order to maintain their
relevance to the dynamic within which they are embedded. In such situations split-second
decisions are vital to survival and any delay is fatal. Examples that could be explored
include: commercial and financial exchanges, some forms of sport (notably ball games), and
military combat conditions.
The Council of Europe needs to face up to its responsibilities for people who are
forced by circumstances beyond their control to live outside the rule of law -- especially
since these conditions increasingly apply in the West itself.
Council of Europe, Bureau of the Parliamentary Assembly. Report on the Conformity of
the Legal Order of the Russian Federation with Council of Europe Standards. Strasbourg,
October 1994, AS/Bur/Russia (1994) 7
Martin J Gannon. Understanding Global Cultures; metaphorical journeys through
17 countries. Sage, 1994
Edward T. Hall:
- The Hidden Dimension. Garden City, Doubleday, 1966.
- The Silent Language. Garden City, Doubleday, 1969.
- Beyond Culture. Garden City, Doubleday, 1977.
Geert Hofstede. Culture's Consequences: international differences in work-related
values. Sage, 1984
- A Human Rights Index?: analysis of the signature and ratifications
of the international human rights conventions. International Associations,
23, 1971, November, pp. 545-553.
- Policy options for civil society through complementary contrasts (Paper
presented to a Seminar on State and Society at the Russian Public Policy
Center, Moscow, December 1994, organized by the Council of Europe). [text]
Ronnie Lessem, and Fred Neubauer. European Management Systems; towards unity
out of cultural diversity. McGraw-Hill, 1994
Fons Trompenaars. Riding the Waves of Culture; understanding cultural diversity
in business. Nicholas Brealey, 1993.