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Justiciability and the 'Political Question' Doctrine in National and Supranational Litigation

Do judicial authorities remain politically neutral when considering various legal matters, strictly basing their decisions on the law? Russian and foreign experts discussed justiciability and the ‘Political Question’ Doctrine at SPBILF.

Mikhail Galperin, Representative of the Russian Federation in the European Court of Human Rights and Deputy Minister of Justice of the Russian Federation, moderated the discussion. Gabriela Wurcel, Vice President for Global Partnerships and Cooperation, Philip Morris International, Anton Ivanov, Academic adviser at the Faculty of Law at the Higher School of Economics and Chairman of the Supreme Court of Arbitration of the Russian Federation (retired), Anatoliy Kovler, Head of the Centre of Foreign Legislation and Comparative Law, Institute of Legislation and Comparative Law under Government of the Russian Federation, Gerardus Josephus Maria Corstens, Former President, Supreme Court of the Netherlands, Ekaterina Kudelich, Deputy Director of the International Law and Cooperation Department, Ministry of Justice of the Russian Federation, and Sophie Lamb QC, Partner in the London Office, Latham & Watkins LLP and Global Co-Chair of the firm's International Arbitration Practice, participated in the session as speakers.

Mikhail Galperin, Representative of the Russian Federation in the European Court of Human Rights and Deputy Minister of Justice of the Russian Federation, opened the session. He outlined the key questions for discussion: what is justiciability and is the concept applicable in today’s Russia? How are courts supposed to act when forced to rule on political matters?

Ekaterina Kudelich, Deputy Director of the International Law and Cooperation Department, Ministry of Justice of the Russian Federation, was the first to have the floor. “This concept [justiciablity] is not completely familiar to Russian lawyers. This means that the first obstacle we face is one of terminology. It demands us to attempt to find an appropriate equivalent for Russia. One concise term will not be sufficient. This is because when describing the competence of a court we tend to use such notions as compartmentalization and jurisdiction. In some cases, namely in respect to the European Court of Human Rights, this also includes the notion of eligibility. These are concepts of a rather localized and narrow scope. The concept of justiciablity puts us on a completely new level of generalization. It is meant to outline the competences of a court as a global institution,” said the expert, also emphasizing in her speech that if law is universal (and this is the predominating notion), there should be no restrictions to a court’s competence.

In sharing his take on the discussion topic Anton Ivanov, Chairman of the Supreme Court of Arbitration of the Russian Federation (retired), maintained that he understands it to be solely an issue of international and public law. “I thought about what it has to do with our national legal system. What analogues can we find? Our judicial system and the common law system developed along completely different paths. Where in common law countries a court may a priori hear any type of dispute and would have to motivate a refusal to examine inconvenient cases, in our country the courts’ competence grew very gradually, from an extremely narrow to a broader degree. I would like to point out that we did not have administrative justice until the 1970s, and constitutional justice did not emerge until the 90s. The ideas behind these long terms [justiciability and the ‘political question’] as understood in the Anglo-Saxon doctrine were accomplished by the Russian judicial system via the procedural institute of refusal to accept a statement of an action, which as far as I understand, now applies to all courts,” remarked Anton Ivanov.

Sophie Lamb, Queen’s Counsel, Partner in the London Office, Latham & Watkins LLP and Global Co-Chair of the firm's International Arbitration Practice, told the participants that the doctrine was introduced to English law in the 17th century. Then, a hundred years later, the US Supreme Court started to outline its contours, later playing a significant role in its evolution. The lawyer also informed the participants that today political questions routinely come up in court. They are asked to measure the rationale for, for example, taxation measures, how to protect the integrity of our financial systems in the wake of a banking crisis, as well as to question decisions on public health and the use of nuclear fuel. “Where have we got to following all of these interesting political developments? We are in a position now that there is rarely call for the courts to examine the actions of a state. They are sometimes asked to abstain. In common law systems judges rarely believe that they shouldn’t take on a case because of political perspective, and they do take them on,” concluded Sophie Lamb.

One more international expert, Gerardus Josephus Maria Corstens, former President of the Supreme Court of the Netherlands, voiced his opinion about the judges’ job today. “It is not the job of the court to shape society. That is not the role of judges, that is the role of politicians, whose job is not to be interfered with. If it is about changing pensions, lowering or increasing pension age, that is not the task of judges. But faced with new technologies, faced with social unrest or gaps in legislation, judges are required to offer relief, without following a political program, resisting the temptation to do so. Otherwise, the judge should resign,” remarked the former President of the Supreme Court of the Netherlands.

Anatoliy Kovler, Head of the Centre of Foreign Legislation and Comparative Law at the Institute of Legislation and Comparative Law under Government of the Russian Federation, was the last speaker. He gave much consideration to the European Court’s practice and it becoming politicized. “The European Convention itself is politicizing. When it was drafted the first article caused much debate. In its current form it reads: ‘The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms.’ What jurisdiction? Initially the accepted idea was that this meant everyone within a state’s borders. But then the concept of extraterritorial jurisdiction emerged, meaning the state bears responsibility for its agents outside of the country. The well-known articles 17 and 18 are the second ‘ticking time bomb.’ The first covers abuse of rights, the second is about the inadmissibility of applying rights for any other purposes other than those pertaining to the law. And, finally, inter-state claims, covered by article 33 of the European Convention on Human Rights. These are the three areas where the Court was forced from the outset to find a happy medium between a legal and political analysis,” recounted Anatoliy Kovler.

The moderator concluded the session by thanking all who participated and calling the session “meaningful and open.”

The St. Petersburg International Legal Forum takes place in the Eastern Wing of the General Staff Building of the State Hermitage from May 14 to 18. The Forum is organized by the Ministry of Justice of the Russian Federation under the auspices of the President of the Russian Federation.