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1994

Misapplication of International Legal Norms in Socially Abnormal Situations

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Learnings from a seminar on 'State and Civil Society'
organized by the Council of Europe at the Russian Public Policy Center
Moscow, December 1994

1. Introduction

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 successful.

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 particular principles.

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 future.

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 society'.

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 so.

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 provisions.

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 publicized cases).

It is clearly essential and admirable to:

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 legal enforcement.

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 forces:

  1. 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)
  2. 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 times.

It may be useful to contrast:

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 1971 study).

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.

8. Conclusions

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 the West.

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 police protection.

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.

References

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:

Geert Hofstede. Culture's Consequences: international differences in work-related values. Sage, 1984

Anthony Judge:

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.

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