It’s been a week of record judgments against Russia for its lawless treatment of OAS Yukos Oil Company. On Monday, Yukos’ former owners announced they’d won $50 billion from an arbitral tribunal in The Hague. On Thursday news broke that the European Court of Human Rights had docked Russia an additional $2.5 billion.
The arbitration made the bigger headlines, but the human rights ruling from Strasbourg is the real shocker. For while $50 billion was at the high end of expectations, Strasbourg exceeded the range thought possible by two orders of magnitude.
Professor Mark Janis of University of Connecticut Law School suggested in an interview that the unusual size of the ECHR judgment might reflect rising European hostility to Vladimir Putin—or institutional competition between the international court and the arbitrators. I find the latter theory intriguing.
In my book “A People’s History of the European Court of Human Rights,” I praised the ECHR for assuming the mantle of the Warren Court by confronting states on their most sensitive social issues. When it comes to Yukos, however, I have critiqued the human rights court for going too easy on Russia. Ruling on the merits of the case in 2011, the ECHR avoided the obvious truth that Russia expropriated Yukos, while finding a few seemingly marginal violations of human rights (and deferring the question of damages). I chided Strasbourg for failing the test of speaking truth to power, and for lacking the arbitrators’ nerve.
One interpretation of Thursday’s ruling is that the ECHR was overcompensating for its earlier cowardice by getting historically tough on damages. Unfortunately, the court should have done exactly the reverse.
Reflecting five years ago on Russia’s uneasy place in the Council of Europe, Janis expressed the worry that Moscow would doom Strasbourg to either lower its standards or compromise its enforcement.
In Yukos v. Russia, the ECHR somehow managed to do both. In the 2011 merits ruling, it lowered its standards by overlooking Russia’s plan to destroy Yukos. Yet Thursday’s $2.5 billion damages ruling is so large that Russia may be inclined to stymie enforcement, and perhaps leave the Strasbourg system altogether. That would be a pity, because, as I’ve argued in the past, European human rights is a positive and surprisingly pervasive influence in Russian law.
A human rights court should speak the truth unstintingly. But it should save its political capital for the issues of individual civil liberties that lie at the core of its mission and identity. In the case of Yukos, it would be easy to reward only moral damages to a company that has only moral standing since it no longer exists. A Grand Chamber of the court, in reviewing the damages award, will have the opportunity to get its messaging right.