Rejected organs? The efficacy of legal transplantation, and the ends of human rights in the Russian Federation

Abstract

Russia is a recent addition - to the European Convention system for the protection of human rights. Its membership of the Council of Europe since 1996 represents a supreme irony of history, given the origins of the Council in the Cold War, and the question of its admission was highly controversial, both in Russia and Strasbourg. There are those who continue to warn that the world's most successful human rights protection mechanism could be undermined. This paper seeks to understand one aspect of what has happened through an exploration of issues concerning 'legal transplants'. The chapter first analyses ambiguities of the notions of sovereignty and transplantation, followed by a consideration of the theory of legal comparativism. What was the Western construction of 'socialist' law? The notion of legal transplantation is considered specifically in the context of human rights. Russia and other former Soviet states have now ratified most of the international and regional human rights instruments, and subjected themselves to interference by treaty bodies. Since 1 November 1998, the date of ratification of the Convention, the whole jurisprudence of the European Court of Human Rights has become part of Russian law. Is this the insertion of a healthy heart into a moribund body politic, or the writing of a fully modern human rights-based legislation on an empty canvas? The paper therefore briefly considers the dynamic relationship between Western European and Russian law and legality from the eighteenth century. This is the necessary condition for evaluating the impact of international, especially European, instruments, standards and mechanisms - and waves of Western 'experts' and 'good governance' specialists - into post-Soviet states