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Max Planck Encyclopedia of Public International Law [MPEPIL]

Russia

Angelika Nußberger

From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2015. All Rights Reserved.date: 20 February 2019

Subject(s):
Sovereignty — Self-determination — Recognition of states — States, independence — State succession — Statehood, legitimacy — Armed forces — Collective security — Disarmament — Humanitarian intervention — Peace treaties — Weapons

Published under the auspices of the Max Planck Foundation for International Peace and the Rule of Law under the direction of Rüdiger Wolfrum.

A.  The Russian Federation and Today’s Public International Law

The Russian Federation (‘RF’) as the continuator State of the Soviet Union is one of the major players in international relations, especially on the basis of its veto power in the Security Council (United Nations, Security Council) and its nuclear potential, and exerts a dominant influence on the development of international law. As the centre of the socialist block and the main opponent of the United States of America during the Cold War (1947–91) the Soviet Union had tried to define specific rules of international law on the basis of the socialist doctrine, an approach that was generally abandoned in the late 1980s. In the aftermath of the Cold War the RF could not take over the Soviet Union’s leading role in world politics, but continues to counteract US hegemony advocating a multipolar system of international relations. The influence of Russia is especially visible in the controversies about settling the Kosovo conflict, as well as in the territorial, ethnic, and economic conflicts in the post-Soviet era. The military conflict between Russia and Georgia over the status of the Georgian provinces Abkhazia and South Ossetia in August 2008, and the subsequent recognition of Abkhazia and South Ossetia as independent States by Russia provoked new tensions between the US, the EU, and Russia and triggered a debate about a new era of international power politics. In 2008 Russia’s President Dmitry Medvedev defined the following five principles as the basis of Russian foreign policy: recognizing the primacy of international law; promoting a multipolar world; maintaining friendly relations with Europe, the US, and other countries; protecting the lives and interests of Russian citizens ‘wherever they are’; and paying special attention to ‘priority regions’ which may or may not border Russia. In many basic questions of international law such as the right to self-determination and the legality of humanitarian intervention the RF adopts a point of view opposed to the one of the majority of the EU Member States and the US. Although the Russian conception of international law on the basis of the Constitution of the RF of 1993 (‘Constitution of 1993’) has significantly changed in comparison to the Soviet doctrine of international law, in some aspects continuity can be observed.

The legal status of Russia as a subject of international law has to be seen against the background of the legal developments in the processes of State succession from the Russian Empire up to 1917 to the Russian Soviet Federated Socialist Republic (‘RSFSR’) as an independent State between 1917 to 1922 and to the RSFSR as a part of the Soviet Union from 1922 to 1991 (see also Subjects of International Law). The transition from the Soviet Union to the RF still raises many problems especially concerning the boundaries with neighbouring States.

International law is also relevant for internal issues such as human and minority rights and for handling internal conflicts such as the conflict with Tatarstan and with Chechnya.

1.  Russia’s Status as a Veto Power in the Security Council

(a)  Historical Background: The Role of the Soviet Union in the Security Council

The Soviet Union was one of the founding members of the United Nations (UN) and held a permanent seat in the UN Security Council from 1946 to 1991. During the period of the Cold War the Soviet Union frequently had recourse to its veto power, especially in the period between 1946 and 1970 (105 times), whereas the other permanent members were quite reluctant to use the veto (China and the US only once, France and Great Britain each four times). This picture changed significantly in the years between 1970 and 1990, when the Soviet Union resorted to its veto power only 10 times, whereas the US used it on 68 occasions. Due to the ideological conflict between the US and the Soviet Union the Security Council could not serve as an effective mechanism for international security during the period of the Cold War.

(b)  The Role of the Russian Federation in the Security Council

The RF took over the Soviet Union’s seat in the Security Council in 1991 (see paras 98 and 108 below). Despite controversies over specific issues, the cooperation between Russia and the other vetoing powers in the Security Council was efficient between 1991 and 2008. Russia backed all relevant resolutions on Afghanistan (Afghanistan, Conflict) and the Taliban except for UN Security Council Resolution 1776 (2007) ([19 September 2007] UN Doc S/RES/1776) on the extension of the authorization of the International Security Assistance Force (Russia abstained). It also supported all resolutions regarding the Iraq-Kuwait War (1990–91), but abstained from several of the resolutions from 1997 onward concerning Iraq. In the so-called ‘war on terror’ after the terrorist attack against the US on 11 September 2001 Russia sided with the US and even backed the deployment of military bases in former parts of the Soviet Union in Central Asia.

Between 1991 and 2008 the RF vetoed five decisions of the Security Council concerning the financing of the UN Peacekeeping Force in Cyprus (1993), restrictions of transport of goods between Serbia-Montenegro and Serbian controlled territories (1994), the mandate of the UN Settlement Implementation Mission in Cyprus (2004), the reaction to human rights violations in Myanmar/Burma (2007), and the resolution on peace and security in Zimbabwe (2008).

Whereas during the Cold War the ideological controversies were fought out openly, this policy changed in the 1990s; many decisions were taken off the record in the Security Council’s closed consultation room. Whenever it was clear that a decision could not be taken by consensus, the Security Council preferred not to vote. In 1999 and 2003 respectively, both in the Kosovo and in the Iraq conflict military interventions were initiated without a mandate of the Security Council because of Russia’s threat of a veto. Russia’s resistance against the Comprehensive Proposal for the Kosovo Status Settlement (‘Ahtisaari Plan’) made a unanimous decision on the international status of Kosovo impossible; as a consequence Kosovo’s declaration of independence was not backed by a resolution of the Security Council. In the military conflict between Georgia and Russia in August 2008 the Security Council met for consultations, but could not adopt a resolution acceptable to all members. In UN Security Council Resolution 1808 (2008) ([15 April 2008] UN Doc S/RES/1808) the ‘territorial integrity of Georgia within its internationally recognized borders’ (at para. 1) had still been unanimously reaffirmed.

Generally, the developments of the Security Council’s policy show Russia’s resurgence as a dominating force in the UN at the end of the 1990s, and evince its influence on international power politics.

2.  Russia’s Status as a Nuclear Power

Russia’s status in international law is determined not only by her membership in the Security Council, but also by her nuclear potential. Even if this factor is no longer as decisive as it was during the Cold War on the basis of the philosophy of the ‘balance of terror’, it is still of great political importance in international relations. The nuclear potential continues to be an essential part of Russian military doctrine (see also Nuclear Weapons and Warfare).

10  The first Russian military doctrine was adopted by presidential decree in November 1993 and replaced by a new military doctrine in April 2000 (Presidential Decree [21 April 2000] 17 Sobranie Zakonodatelstva Rossijskoj Federacii Pos. 1852). In the present military doctrine Russia advocates establishing a nuclear non-proliferation regime covering weapons and their delivery systems, ending and comprehensively banning nuclear weapons testing, and promotes the expansion of military confidence-building measures between States, including military information exchange and the coordination of military doctrines and plans (see also Weapons of Mass Destruction, Counter-Proliferation). Accordingly, Russia continues to participate in the main multilateral non-proliferation treaties that had been concluded by the Union of Soviet Socialist Republics (‘USSR’), ie the Treaty on the Non-Proliferation of Nuclear Weapons (Non-Proliferation Treaty [1968]), the Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and under Water (1963), the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Sea-Bed and the Ocean Floor and in the Subsoil Thereof (1971), and the Treaty on the Limitation of Underground Nuclear Weapon Tests (1974). The Comprehensive Nuclear Test Ban Treaty (1996) was signed on 24 September 1996 and was ratified on 30 June 2000 by the RF as an ‘Annex 2-State’ which had formally participated in the 1996 Conference on Disarmament and possessed nuclear power or research reactors at the time; the treaty has not yet entered into force.

11  Bilaterally, the Soviet Union had co-operated with the US in the area of armament control from the late 1960s to early 1970s. In 1972 the Strategic Arms Limitation Talks (SALT) led to the adoption of the Treaty on the Limitation of Anti-Ballistic Missile Systems ([signed 26 May 1972, entered into force 3 October 1972] 944 UNTS 13; ‘ABM Treaty’) limiting strategic offensive weapons and strategic defensive systems. As the status of the ABM Treaty became unclear after the dissolution of the Soviet Union in 1991, the Memorandum of Understanding relating to the Treaty between the United States of America and the Union of Soviet Socialist Republics on the Limitation of Anti-Ballistic Missile Systems between the US, the Republic of Belarus, the Republic of Kazakhstan, the RF, and the Ukraine was elaborated in 1997 wherein it is stated that ‘each USSR Successor State shall implement the provisions of the Treaty with regard to its territory and with regard to its activities, wherever such activities are carried out by that State, independently or in cooperation with any other State’ (Art. III). In 2002 the US retreated unilaterally from the ABM Treaty. SALT II led to the signing of the Treaty between the US and the USSR on the Limitation of Strategic Offensive Arms ([done 18 June 1979, never entered into force] (1979) 18 ILM 1112). Due to the Soviet war in Afghanistan the treaty was never formally ratified by the US Senate; nevertheless, the treaty was honoured by both parties. The Treaty between the US and the USSR on the Elimination of Their Intermediate-Range and Shorter-Range Missiles ([signed 8 December 1987, entered into force 1 June 1988] (1988) 27 ILM 90; ‘INF Treaty’) was continued by the RF. In 2007 Russian President Putin declared the INF Treaty would no longer serve Russian interests, but so far Russia has not withdrawn from it. The Treaty between the US and the USSR on the Reduction and Limitation of Strategic Offensive Arms (‘START I’; Strategic Offensive Arms, Treaties on Reduction and Limitation [START]) was signed on 31 July 1991. The ratification process was delayed up to 5 December 1994 due to the collapse of the USSR. On 23 May 1992 START I had been completed by the Protocol to the Treaty between the US and the USSR on the Reduction and Limitation of Strategic Offensive Arms in which the RF, Belarus, Kazakhstan, and the Ukraine agreed to assume the obligations of the former Soviet Union under START I. It was concluded for a duration of 15 years and expires in December 2009. A new legally binding agreement on further reductions and limitations of strategic offensive arms is in preparation. The Treaty between the US and the USSR on the Reduction and Limitation of Strategic Offensive Arms (‘START II’) which was signed on 3 January 1993 never entered into force; Russia withdrew officially after the denouncement of the ABM Treaty by the US. The Treaty between the US and the RF on Strategic Offensive Reductions ([signed 24 May 2002, entered into force 1 June 2003] (2002) 41 ILM 799; ‘SORT’) obliges the parties to reduce and limit strategic nuclear warheads; it entered into force on 1 June 2003 and expires on 31 December 2012.

12  According to the 2000 Military Doctrine Russia reserves the right to use nuclear weapons for deterring aggression. Point 8 Section I of the Military Doctrine authorizes the use of nuclear weapons in response to the following cases: the use of nuclear weapons against Russia and/or its allies; the use of other types of weapons of mass destruction against Russia and/or its allies; a large-scale aggression utilizing conventional weapons in situations critical to the national security of the RF; an attack on the RF, RF armed forces or other troops, RF allies, or a State which has security commitments with the RF, by a non-nuclear State which is party to the Non-Proliferation Treaty which is acting jointly or in the context of allied commitments with another State which possesses nuclear weapons. The 2000 Military Doctrine is currently under review.

3.  Russia’s Participation in International Co-operation

(a)  Historical Aspects—Soviet Attitude towards International Co-operation

13  The Soviet Union’s approach to international cooperation oscillated between isolation in the first years after the Revolution of 1917 and ideologically biased, but nevertheless pragmatic co-operation beginning in the 1930s. In 1934 the Soviet Union acceded to the League of Nations, but was expelled in 1939 for its attack on Finland.

14  Membership in the UN prepared the ground for Soviet entry into many other universal international organizations. The Soviet Union became an original member of the Universal Postal Union (UPU), the International Telegraphic Union, and the World Meteorological Organization (WMO) when they became UN Specialized Agencies in 1947. It also joined the International Maritime Consultative Organization in 1958, the International Atomic Energy Agency (IAEA) in 1956, and the United Nations Educational, Scientific and Cultural Organization (UNESCO) in 1954. In the same year it also came back to the International Labour Organization (ILO) from which it had been expelled in 1939. Contrary to its international co-operation in more technical fields the Soviet Union refused to participate in international financial organizations. Although it participated in the preparatory conferences of the Bretton Wood institutions, it never joined them. It also boycotted the Food and Agriculture Organization of the United Nations (FAO).

15  Due to its continuing commitment to the ideological struggle for world communism (‘za pobedu kommunizma vo vsem mire’) the Soviet Union was never smoothly integrated into international organizations, but consciously played the role of the antagonist to the capitalist world.

16  The attitude towards international co-operation has fundamentally changed in the period of perestroika. The 1990s were characterized by Russia’s efforts to become a member of all important international and European organizations in the field of economy, security, and human rights. By now Russia is a member of all the specialized agencies of the UN with the exception of the International Fund for Agricultural Development (IFAD) and the International Centre for Settlement of Investment Disputes (ICSID).

(b)  Russia’s Role in International Co-operation for Security Reasons

17  Between 1955 and 1991 the Soviet Union was the leading member of the Warsaw Pact (Warsaw Treaty Organization), the military treaty organization of the Eastern European communist countries, founded as a counterpart to the North Atlantic Treaty Organization (NATO). There was no follow-up institution as the new multilateral treaties on collective security concluded by Russia no longer included Central European States. On 15 May 1992 the Collective Security Treaty Organization (Organizacija dogovora o kollektivnoj bezopasnosti) was founded by the Treaty on Collective Security including Armenia, Belarus, Kazakhstan, Kyrgyztan, Russia, and Tajikistan, and, up to 2006, Uzbekistan. According to Art. 3 Charter of the Collective Security Treaty Organization its aim is ‘to strengthen peace and international and regional security and stability and to ensure the collective defence of the independence, territorial integrity and sovereignty of the member States’. Furthermore Russia is a member of the Shanghai Cooperation Organization founded on 15 June 2001 together with China, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. It comprises co-operation in many fields such as economy and energy, but also security. The most comprehensive international organization is the Commonwealth of Independent States (‘CIS’) that was founded by the Agreement Establishing the Commonwealth of Independent States (‘Minsk Agreement’) concomitantly with the dissolution process of the Soviet Union (see paras 95–109 below). The CIS is engaged in security issues and has participated as a regional organization in UN peacekeeping missions such as in the UN Observer Mission in Georgia based on UN Security Council Resolution 937 (1994) ([21 July 1994] SCOR 49th Year 65).

18  The Soviet Union had been participating in the Conference on Security and Co-operation in Europe (‘CSCE’), had signed the CSCE Final Act (Helsinki Final Act [1975]) and the Charter of Paris for a New Europe ([done and entered into force 21 November 1990] (1991) 30 ILM 190). Russia’s membership in the Organization for Security and Co-operation in Europe (OSCE), the follow-up institution to the CSCE, has not been without tensions due to different perceptions of the role the OSCE should play. This was evidenced by former President Putin’s criticism of the one-sidedness of the organization at the Munich Conference on Security Policy in 2007 and by the refusal of the OSCE to observe presidential elections in Russia in 2008 due to a lack of co-operation.

19  As a consequence of the dissolution of the Warsaw Pact, the Treaty on Conventional Armed Forces in Europe ([done 19 November 1990] (1991) 30 ILM 6), which was based on a definition of troop ceilings on a bloc-to-bloc basis, was replaced by the Agreement on Adaptation of the Treaty on Conventional Armed Forces in Europe (‘Agreement on Adaptation of the CFE’) signed on 19 November 1999 and based on a system of national and territorial ceilings. The treaty has only been ratified by four out of 30 signatories (Russia, Kazakhstan, Belarus, and Ukraine) due to controversies about Russia’s obligations on the basis of the so-called ‘Istanbul Commitments’ contained in the annexes to the Final Act of the Conference of the States Parties to the treaty on Conventional Armed Forces in Europe and the OSCE Istanbul Summit Declaration. According to the Joint Statement of the RF and Georgia of 17 November 1999, annexed to the Final Act, Russia was expected to withdraw her troops from Russian military bases in Vaziani and Gudauta by 1 July 2001 and to complete negotiations regarding the duration and modalities of the functioning of the Russian military bases at Batumi and Akhalkalaki. Regarding the situation in Trans-Dniestria, Russia committed herself to complete withdrawal of the Russian forces from the territory of Moldova by the end of 2002 as stated in the Istanbul Summit Declaration. The NATO States reproached Russia for not fulfilling these duties. As they refused to ratify the Agreement on Adaptation of the CFE Russia first suspended and then withdrew its ratification in November 2007.

20  Formal contacts and co-operation between Russia and NATO started in 1991 within the framework of the North Atlantic Cooperation Council, which was later renamed the Euro-Atlantic Partnership Council. In 1994 Russia joined the Partnership for Peace programme which provided for joint military planning, exercises, and other activities including co-operation in defence research and technology with NATO members. In 1997 the Russia-NATO Permanent Joint Council was founded on the basis of the Founding Act on Mutual Relations, Cooperation and Security between NATO and the RF, which expressed a joint commitment to build a lasting and inclusive peace in the Euro-Atlantic region and included a road map for future NATO-Russia co-operation. The Permanent Joint Council was replaced by the NATO-Russia Council at the NATO-Russia Summit held in Rome in May 2002, but suspended its activities as a consequence of the war between Georgia and Russia in 2008; it formally resumed its meetings on 3 March 2009.

21  Despite all those agreements on co-operation there are ongoing controversies between Russia and NATO in several areas of international law. According to the Foreign Policy Concept of the RF adopted by President Medvedev in 2008:

Russia maintains its negative attitude towards the expansion of NATO, notably to the plans of admitting Ukraine and Georgia to the membership in the alliance, as well as to bringing the NATO military infrastructure closer to the Russian borders on the whole, which violates the principle of equal security (at para. IV).

(c)  Russia’s Role in International Economic Co-operation

22  The negotiations with the World Trade Organization (WTO) about membership are still ongoing. The accession process started in 1992 when the RF took over the USSR’s observer status to the General Agreement on Tariffs and Trade (1947 and 1994). A working party on accession to the WTO was established on 16 June 1993; difficult questions remain above all subsidies for the agrarian sector, the functioning of State enterprises under the WTO regime, and the protection of intellectual property rights (Intellectual Property, International Protection). The negotiation process was called into question both by the US and Russia in the aftermath of the Georgian-Russian crisis. The application for membership of the Organization for Economic Co-operation and Development (OECD) was submitted in 1996; negotiations started on 16 May 2007, the roadmap for accession was approved on 3 December 2007.

23  Within the post-Soviet period various economic forms of co-operation were created not only within the framework of the CIS, but also on the basis of other regional integration agreements, the most prominent of which are the Agreement between the RF and the Republic of Belarus on a Customs Union ([signed 6 January 1995, entered into force 30 November 1995] 2212 UNTS 85), the Agreement on a Customs Union and a Common Economic Zone ([signed 26 February 1999, entered into force 23 December 1999] 2212 UNTS 219), and the Treaty on the Establishment of the Eurasian Economic Community ([signed 10 October 2000, entered into force 30 May 2001] 2212 UNTS 309). Economic co-operation between the CIS countries started out with an Agreement on the Regulation of Mutual Relations between the CIS Members in the Sphere of Trade-Economic Cooperation in 1992 still adhering to principles of a command economy, but at the same time already promoting mechanisms of the free market. In 1993 the principles of economic co-operation were formalized in the Charter of the Commonwealth of Independent States. In the same year the CIS Treaty on Creation of Economic Union ([done 24 September 1993] (1995) 34 ILM 1298) was adopted. The model proposed was inspired by the common market of the EU calling for the progressive establishment of a free trade association, a customs union, a common market for goods, services, capital, and labour, and subsequently a monetary union (see also Monetary Unions and Monetary Zones). As first steps the Free Trade Agreement between Azerbaijan, Armenia, Belarus, Georgia, Moldova, Kazakhstan, the RF, Ukraine, Uzbekistan, Tajikistan, and the Kyrgyz Republic was signed and the Inter-State Economic Committee created. However, for political reasons, the legal obligations remained largely on paper. Although in 2003 it was declared that the legal formation of a free trade area in the framework of the CIS was substantially completed (Decision of the Council of Heads of States [30 May 2003]) the integration process lost its force after the reorientation of Ukraine towards the EU in 2004. Ukraine, Georgia, Moldova, and Azerbaijan have formed a competing organization called GUAM Organization for Democracy and Economic Development pursuing integration in Euro-Atlantic organizations.

24  Neither were the goals of a common economic area and the introduction of a single currency implemented within the Russian-Belorussian Union. The integration process has not lived up to the wide-ranging plans due to the incompatibility of the economic systems, the weakness of the organs of the Union State, the lack of political will to conduct necessary reforms, and the imbalance between the partners.

25  Various attempts to build up economic associations in the post-Soviet era have been moulded into the Eurasian Economic Community, comprising Russia, Belarus, Kazakhstan, Kyrgyzstan, Tajikistan, and Uzbekistan. The aim of the organization is the elaboration of unified foreign economic policies, tariffs, and prices in order to create a single economic area; the form chosen for economic integration is inspired by the model of the EU. Although a comprehensive legal and institutional framework has already been worked out, the realization of the project evolving slowly. One of the main structural problems is the lack of an economic and political balance between the Member States as Russia’s population and gross domestic product (‘GDP’) is more than 10 times higher than that of Kazakhstan, which is the second largest and economically powerful Member State. Due to the heterogeneity of the members a multi-level and multi-speed integration is favoured taking the different levels of per capita GDP and trading regimes into account. Russia remains the driving force behind the various attempts at economic integration.

(d)  Russia’s Role in International Co-operation in the Field of Human Rights

(i)  Human Rights Obligations within the Framework of the United Nations

26  The RF has ratified the major UN human rights treaties: the International Convention on the Elimination of All Forms of Racial Discrimination (ratification 1969), the International Covenant on Civil and Political Rights (ratification 1973), the International Covenant on Economic, Social and Cultural Rights (ratification 1973), the Convention on the Elimination of All Forms of Discrimination Against Women (ratification 1981), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratification 1987), and the Convention on the Rights of the Child (ratification 1990).

27  The RF is also bound by several optional protocols allowing for individual complaints on human rights issues. It was still the Soviet Union which acceded to the Optional Protocol to the International Covenant on Civil and Political Rights on 1 October 1991, just a few weeks before its dissolution. Russia has also ratified the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination Against Women in 2004 and signed the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict in 2001. Furthermore, it is bound by 53 out of 188 conventions of the ILO concerning human rights and minimum standards in the sphere of labour and social security.

(ii)  Human Rights Obligations within the Framework of the Council of Europe

28  Russia’s accession to the Council of Europe (COE) was a difficult and prolonged process. Although the Soviet Union had been accepted as the first country with a special guest status already in 1989, it took from 7 May 1992 up to 28 February 1996 before Russia’s application for full membership was accepted. The process was suspended in 1995 because of the first war in Chechnya and resumed only after Russia’s reassurance that it intended to settle the conflict in a peaceful manner and to investigate human rights violations. Furthermore, there were doubts about Russia’s ability to fulfil the provisions for membership in the COE as set forth in Art. 3 Statute of the Council of Europe ([signed 5 May 1949, entered into force 3 August 1949] CETS No 1). Therefore membership was linked to demanding ‘commitments and understandings’ concerning the ratification of COE conventions and the adoption of fundamental legislation in various fields. Despite its obligations, Russia has not yet ratified Protocol No 6 to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning the Abolition of the Death Penalty ([opened for signature 28 April 1983, entered into force 1 March 1985] CETS No 114). Although the death penalty is not applied, it still figures in the Constitution as well as in the Criminal Code. As Russia is the only country of the COE that has only signed, but not ratified Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, amending the Control System of the Convention ([done 13 May 2004] CETS No 194), it blocks the reform of the judicial control of human rights on the basis of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (‘ECHR’).

29  Russia ratified the ECHR together with Protocols Nos 1, 4, 7, 9, 10, and 11 on 5 May 1998. In 2002 the European Court of Human Rights (ECtHR) decided the first two cases on Russia. Since then almost 800 decisions have been handed down. More than 27,000 cases are pending. The majority of the judgments concerns fair trial issues, above all the length of procedure and the non-execution of final decisions (see also Fair Trial, Right to, International Protection), but also violations of the prohibition of torture and the right to life, especially in connection with the military conflict in Chechnya. The implementation of the ECtHR decisions necessitates structural legal reforms especially in the judiciary and penitentiary system. From the point of view of international law the Ilaşcu Case (Ilaşcu v Moldova and Russia [ECtHR] Reports 2004-VII 179) was the most controversial one since Russia was condemned for human rights violations in Transnistria, which legally belongs to Moldova. Remarkably the RF ratified the European Social Charter (Revised) ([adopted 3 May 1996, entered into force 1 July 1999] CETS No 163) on 16 October 2009.

4.  Focal Points in Russia’s Foreign Relations

(a)  Russia and the War in Georgia in August 2008

30  The military confrontation between Georgia and Russia in August 2008 has had strong repercussions on Russia’s position in international relations. According to the report of the Independent International Fact-Finding Mission on the Conflict in Georgia, Russia had the right to defend the peacekeepers attacked by Georgian military forces, ‘but violated international law as the defensive action went far beyond the reasonable limits of defense’. Neither the question of the exact circumstances of the outbreak of the war nor the question of responsibility has been settled. Russia’s recognition of the independence of South Ossetia and Abkhazia as a consequence of the war was seen as a violation of international law by the COE (Resolution No 1633/2008: The Consequences of the War between Georgia and Russia) as well as by the US and many European States. Russia interpreted it as justified in accordance with the precedent set by the recognition of the Kosovo as an independent State in 2007 by many States (see para. 151 below).

(b)  Russia and the United States of America

31  Despite fundamental changes in the relations between the ‘Western hemisphere’ under the lead of the US, and the ‘Eastern hemisphere’ under the lead of the Soviet Union in the time of perestroika, the relationship between the RF and the US can still be called antagonistic. This is underpinned by different socio-political conceptions of State organization, although at the outset both the US and the RF are democratic and federal States. Both in Soviet times and afterwards periods of stagnation characterized by aggressive rhetoric have been interspersed with periods of pragmatic co-operation: the Cuban Missile crisis in the early 1960s was followed by a period of détente in the late 1960s, early 1970s. Relations once again worsened due to the Soviet invasion of Afghanistan and improved during perestroika. The NATO bombing of Serbia, the US invasion of Iraq, as well as plans for NATO enlargement to Georgia and Ukraine caused serious tensions in the Bush era; with Russia’s disproportional reaction to the Georgian attack on South Ossetia and Russian peacekeepers in 2008 relations hit rock bottom. According to former President Putin’s Speech at the 43rd Munich Conference on Security Policy on 10 February 2007 Russia favours a multipolar system of international relations ‘searching for a reasonable balance between the interests of all participants in the international dialogue’. Such a new system should replace the monopolar system dominated by the US in the 1990s after the collapse of the Soviet Union.

32  Many important issues in the relationship between the US and Russia have not yet been settled in a definitive way. Nevertheless, even if agreements are not ratified and do not formally enter into force, both sides abide by their obligations as in the case of SALT II (see para. 12 above) or in the case of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary ([signed 1 June 1990, not yet entered into force] (1990) 29 ILM 942) that is applied on a provisional basis. Other issues such as the recently abandoned US missile defence in Poland and the Czech Republic were controversially debated for a long time.

(c)  Russia and the European Union

33  As early as 1989 the Agreement between the EEC, Euratom and the USSR on Trade and Commercial and Economic Cooperation ([signed 18 December 1989, entered into force 1 April 1990] [1990] OJ L068/2) was concluded. In 1995 the relationship between the RF and the EU was based on the Interim Agreement on Trade and Trade-Related Matters between the EC, the European Coal and Steel Community and the European Atomic Energy Community, of the One Part, and the Russian Federation, of the Other Part ([signed 17 July 1995, entered into force 1 February 1996] (1995) OJ L247/2) removing many restrictions previously imposed on exports to the EU, granting better protection of intellectual property rights, and removing differences in duties on imports. Subsequently this preliminary document was replaced by the Agreement on Partnership and Cooperation Establishing a Partnership between the European Communities and Their Member States and the RF ([signed 24 June 1994, entered into force 1 December 1997] [1997] OJ L327/3; ‘Partnership Agreement’), which entered into force after a difficult ratification process interrupted due to Russian forces’ military hostilities in Chechnya. The Partnership Agreement set out the basic principles of the relations between Russia and the EU in a very comprehensive manner. Its aim was to provide an appropriate framework both for political dialogue and for the promotion of trade, investment, and harmonious economic relations; respect for human rights and democratic processes was placed at the very core of the Partnership Agreement. Another important aspect was the approximation of legislation. According to Art. 55 Partnership Agreement Russia was expected to ‘endeavour to ensure that its legislation will be gradually made compatible with that of the Community’.

34  The implementation of the Partnership Agreement was secured by a Co-operation Council consisting of the members of the Council of the EU and members of the Commission of the European Communities on the one hand, and of members of the Government of the RF on the other. EU enlargement to Central European countries required a redefinition of the relations between the EU and Russia. An additional protocol to the Partnership Agreement was adopted in 2004 settling difficult questions such as the visa regime for the Kaliningrad region. The EU defined four common spaces as strategic aims for the relationship with Russia: a common economic space, a common space of freedom, security, and justice, a common space of co-operation in the field of external security as well as a common space of research and education, including culture. The Partnership Agreement was initially concluded for a period of 10 years but automatically renewed year by year according to Art. 106 Partnership Agreement. It was decided not to extend or modernize the Partnership Agreement, but to draft a new one. The start of the negotiations of a new agreement was first postponed due to preconditions set by EU members Poland and Lithuania and subsequently due to the Russian-Georgian war in 2008. The new agreement on a strategic partnership is expected to re-define the framework for pragmatic co-operation; the negotiations are under way.

35  Specific questions concerning energy relations were basically regulated in the Energy Charter Treaty ([signed 17 December 1994, entered into force 16 April 1998] [1998] OJ L380/24) providing for the protection of foreign investment, non-discriminatory conditions for trade, the resolution of disputes by international arbitration, and the promotion of energy efficiency. The Energy Charter Treaty was signed by Russia in 1994, but never ratified. Pending ratification it was applied provisionally to the extent that such provisional application was not inconsistent with Russia’s constitution, laws, and regulations (Art. 45 (I) Energy Charter Treaty). On 30 July 2009 the Russian Prime Minister signed Government Ordinance N 1055-r that Russia is to terminate provisional application of the Energy Charter Treaty. Termination of provisional application will take effect upon the expiration of 60 days from the date on which written notification was received by the Depositary.

(d)  Russia and East Asia

36  According to the Foreign Policy Concept of the Russian Federation, Asia enjoys a steadily growing importance in the context of Russian foreign policy. Priority is given to friendly relations with China and India, which is called the ‘Troika’ in the 2008 Concept of Foreign Policy. Strengthening the relationship with other important players in the region such as Japan and Korea and the participation in integration mechanisms in the Asia-Pacific Region such as the Association of Southeast Asian Nations (ASEAN), including the ASEAN Regional Forum, are further explicit aims of Russian foreign policy in the Asian region.

37  Whereas Soviet-Chinese relations had been tense since the 1950s due to ideological differences and border disputes, the relations between the RF and China have significantly improved. The question of the delimitation of the border has been peacefully settled (see para. 52 below; Boundary Disputes between China and Russia). Russia’s foreign policy towards China aims at preserving a counterweight against US influence in the Pacific, preventing Chinese regional hegemony in the Far East and at the same time fostering economic and military co-operation. In 2001 the Treaty of Good-Neighbourliness and Friendly Cooperation between the People’s Republic of China and the RF was concluded, in which both partners guarantee mutual support ‘in its policies on the issue of defending the national unity and territorial integrity’ (Art. 4). The treaty encompasses a co-operative approach in many areas such as international security, disarmament, economy and trade, protection of the environment, and the promotion of human rights and fundamental freedoms. Russia acknowledges that ‘the People’s Republic of China is the sole legal government representing the whole of China and that Taiwan is an inalienable part of China’ (Art. 5; see also Taiwan). Russia and China also co-operate within the framework of the Shanghai Cooperation Association (see para. 18 above).

B.  The Russian Federation as a Subject of International Law

1.  Status of the Russian Federation

38  The RF is a sovereign and independent State, and as such an original subject of international law. According to the Constitution of 1993 adopted by referendum on 12 December 1993 it is a democratic federative law-governed State with a republican form of government.

2.  Territory

39  The RF is the largest State in the world with a territory that covers an area of more than 17 million square kilometres and stretches over two continents. It shares land borders with Norway, Finland, Estonia, Latvia, Lithuania, Poland, Belarus, Ukraine, Georgia, Azerbaijan, Kazakhstan, China, Mongolia, and North Korea. According to the Constitution of 1993 sovereignty shall extend to the entirety of its territory (Art. 4 (1)); the RF shall ensure the integrity and inviolability of its territory (Art. 4 (3)).

(a)  Concept of ‘Territory’ in Russian International Law

40  The Constitution defines the territory of the RF explicitly. According to Art. 67 Constitution of 1993 it comprises the territories of its constituent entities, inland waters and territorial sea, and the airspace over them. Furthermore it is laid down that the RF has sovereign rights and exercises jurisdiction on the continental shelf and in the exclusive economic zone ‘in accordance with the procedure specified by federal law and norms of international law’ (Art. 67 (2) Constitution of 1993). The relevant laws on the continental shelf and the exclusive economic zone were passed in 1995 and 1998 respectively.

41  The delimitation of Russia’s continental shelf in the Arctic Region remains controversial. Russia claims that the underwater Lomonosov ridge directly links Russia’s Arctic coast to the North Pole; this is contested by the other Polar countries, the United States, Canada, Norway, and Denmark. Another controversial point is the transfer of the 47,000 square kilometres piece of the Bering Sea separating Alaska from Russian Chukotka on the basis of the Agreement between the United States of America and the Union of Soviet Socialist Republics on the Maritime Boundary signed by both parties in 1990, but applied only on a provisional basis pending its ratification by the Russian Parliament.

(b)  Boundaries with Neighbouring Countries

42  In line with the uti possidetis doctrine the boundaries between the RF and the former Soviet republics Belarus and Ukraine were recognized in Art. 5 Minsk Agreement of 8 December 1991. On the basis of the Protocol to the Agreement Establishing the Commonwealth of Independent States signed at Minsk on 8 December 1991 by the Republic of Belarus, the RF, and the Ukraine, this guarantee applies also to the other CIS countries sharing common borders with Russia, ie Kazakhstan, Georgia, and Azerbaijan. The inviolability of existing borders is confirmed in the Preamble to the 1994 CIS Declaration on the Observance of Sovereignty, Territorial Integrity and Inviolability of Borders of States Members of the CIS. Nevertheless, many disputes about boundaries are still unsolved.

43  The Ukrainian SSR and the RSFSR have recognized their territorial integrity within their current borders in the Treaty on Friendship, Good Neighbourliness and Cooperation ([signed 19 November 1990, entered into force 14 June 1991] 1641 UNTS 227); it was confirmed in the Russian-Ukrainian Treaty on Interstate Relations of 25 June 1992. But these agreements did not settle the controversy over Crimea. The Crimean Autonomous Soviet Socialist Republic as part of the RSFSR had been established by decree in 1921. After the deportation of the Crimean Tatars the status had been changed to an ‘oblast’ within the RSFSR in 1945. In 1954 it had been detached from the RSFSR and incorporated into the Ukrainian SSR to commemorate the 300th anniversary of the Pereyslav agreement, a decision that the Supreme Soviet of the RF tried to annul in 1992. The ensuing declaration of Sevastopol as a Russian city in 1993 was denounced by the UN Security Council (UNSC ‘Note by the President of the Security Council’ [20 July 1993] UN Doc S/26118). Only after lengthy and difficult negotiations a compromise confirming the status quo was reached in the Russian-Ukrainian Treaty on Friendship, Cooperation and Partnership on 31 May 1997, by which Russia and Ukraine agreed to respect the territorial integrity of each other and the inviolability of the existing borders between them. The negotiations on the question had been linked to the problem of the division of the Black Sea Fleet that was settled in three agreements signed on 28 May 1997. An additional treaty on the Russian-Ukrainian borderline was concluded between the RF and Ukraine on 28 January 2003; questions concerning common territorial seas (smezhnoe morskoe prostranstvo) are explicitly left open. Negotiations are ongoing.

44  Another important issue is the controversy about the demarcation of the Caspian Sea where Azerbaijan, Russia, Kazakhstan, Turkmenistan, and Iran negotiated on access to mineral resources, access for fishing, and access to international waters. The treaty between Russia and Kazakhstan entered into force on 16 May 2003, dividing the northern part of the Caspian Sea into two sectors along the median line and thus defining the respective exclusive economic zone. The treaty between Russia and Azerbaijan entered into force on 4 August 2003.

45  The determination of the border-line between Georgia and the RF is rendered difficult because of the existence of territories the international status of which is not yet settled (see para. 31 above). The sea border in the Black Sea has not been fixed either.

46  The Treaty between the Republic of Lithuania and the RF on the Lithuanian-Russian State Border that had been signed in Moscow on 24 October 1997 and ratified by the Lithuanian Parliament on 19 October 1999 was ratified by Russia on 9 June 2003 (see also Baltic States). Problems concerning the transit from Russia to Kaliningrad were regulated in the Joint Statement of the EU and the RF on Transit between the Kaliningrad Region and the Rest of the RF of 11 November 2002. The Preamble to Protocol No 5 to the EU Accession Treaty on the Transit of Persons by Land between the Region of Kaliningrad and Other Parts of the RF clearly states that problems connected with transit are considered to be a ‘matter concerning the Union as a whole and should be treated as such and must not entail any unfavourable consequence for Lithuania’.

47  After becoming independent, Latvia wanted to restore the pre-war borders fixed in the Treaty of Peace between Latvia and Russia ([signed 11 August 1920, entered into force 4 October 1920] 2 LNTS 195). However, the Russian position was based on the 1975 Helsinki Final Act interpreted as the acceptance of later changes of the territory, ie the integration of the Abrene district (former Latvian Abrenskaya Wolost) into the territory of the then RSFSR. The Treaty on the State Border of Latvia and Russia finally settling the differences was ratified both by Latvia and the RF and entered into force on 18 December 2007. In line with the treaty, a 9.5 kilometre sector of the border was moved 30 metres to the west, passing the Abrene district from Latvia to Russia. This was declared constitutional by the Lithuanian Constitutional Court (Case No 2007-10-0102 [29 November 2007]) although the claim to restore statehood in the borders of 1920 was explicitly upheld.

48  The disputes between Estonia and the RF were similar to those of Latvia and the RF. Estonia relied on the original Treaty of Peace between Russia and Estonia ([signed 2 February 1920, entered into force 30 March 1920] 11 LNTS 29; ‘Peace Treaty of Tartu’) that had been unilaterally altered by the Soviet Union in 1945; the RF argued that Estonia had accepted the status quo with the Helsinki Final Act in 1975. The Estonian-Russian Border Treaty between the Republic of Estonia and the RF was signed by both sides in 2005. The Estonian Parliament ratified it, but added a preamble declaring that the Peace Treaty of Tartu remained valid and that the occupation of Estonia between 1940 and 1991 had been illegal. The Russian Foreign Ministry reacted with a note of 6 September 2005 stating that it did not see itself as being bound by the object and purpose of the treaty any longer. In August 2006 Russia offered new negotiations.

49  With Finland and Norway the pre-existing boundaries were confirmed in agreements on the continuation of certain bilateral treaties concluded in the aftermath of the dissolution of the Soviet Union. With Norway an additional agreement was concluded in 2008 on the sea borderline in the region of the Varangerfjord. Nevertheless, there is still a boundary dispute between Norway and Russia about the delimitation of the territory in the Barents Sea, with the Norwegians favouring the median line and the Russians arguing for a meridian based sector.

50  Although with the Joint Declaration by the Union of Soviet Socialist Republics and Japan of 19 October 1956 the state of war between Japan and Russia was terminated and diplomatic relations were restored, there is still no border treaty because of the controversy over the status of the Southern Kuril Islands (Iturup, Kunashir, Shikotan, and Habomai). The borderline to North Korea was fixed in Soviet times by a treaty which entered into force on 27 November 1991.

51  Disputes between China and Russia concerning the Sino-Russian border date back to Tsarist times. On 16 May 1991, the USSR and the People’s Republic of China signed an agreement on the delimitation of the eastern passage of the border which the RF decided to accept as binding. On 3 September 1994, an agreement on the western section followed. On the basis of these agreements a joint commission was set up for the demarcation of the border. On 14 October 2004 the Complementary Agreement between the People’s Republic of China and the RF on the eastern section of the China-Russia Boundary was signed in order to solve the remaining open questions, with Russia renouncing on 337 square kilometres; it entered into force on 2 June 2005. An agreement signed in Beijing on 21 July 2008 finalized the border demarcation and ended negotiations.

3.  Population

52  The RF has a population of about 143 million people. It comprises about 80% ethnic Russians and over 160 other ethnic groups among which the numerically most relevant are the Tatars, Ukrainians, Bashkirs, Chuvashs, Chechens, and Armenians. The Russian name ‘Rossiyskaya Federaciya’ indicates the multi-ethnic composition of the population as the word ‘rossiyskiy’ comprises not only ethnic Russians (russkie), but also other ethnicities. But according to the Constitution of 1993 (Art. 1) the two denominations ‘Rossiya’ and ‘Rossiyskaya Federacija’ are equipollent. The ‘multinational people’ is also explicitly referred to in the Preamble of the Constitution of 1993; it is seen as the ‘bearer of sovereignty and the sole source of power in the Russian Federation’ (Art. 3). Although the Russian language is defined as the State language for the entire territory, republics have the right to establish their own State languages (Art. 68 (2)); the right to preserve the native language and the assurance that conditions for its study and development are guaranteed (Art. 68 (3)).

53  The Constitution of 1993 explicitly guarantees ‘the rights of indigenous small peoples in accordance with the generally recognized principles and norms of international law and international treaties of the Russian Federation’ (Art. 69). But this guarantee is not very far-reaching as Russia has not ratified ILO Convention No 169 Concerning Indigenous and Tribal Peoples in Independent Countries ([adopted 27 June 1989] 72 ILO Official Bulletin Series A 59). Art. 9 Constitution of 1993 states that ‘land and other natural resources shall be utilized and protected in the RF as the basis of the life and activity of the peoples living on the territories concerned’. Apart from those provisions, the general non-discrimination provisions and the explicit prohibition of racial, religious and national hatred and propaganda of supremacy, the Russian Constitution of 1993 does not contain specific guarantees for the rights of minorities (see also Minorities, International Protection).

54  The RF has ratified the COE Framework Convention for the Protection of National Minorities ([opened for signature 1 February 1995, entered into force 1 February 1998] 2151 UNTS 243) adding a declaration directed against the exclusion of permanently resident non-citizens from the protection of the convention. The Russian law implementing the convention has neither specified which minorities should be protected, nor given any concrete definition of the term ‘minority’. The COE European Charter for Regional or Minority Languages ([adopted 5 November 1992, entered into force 1 June 2000] CETS No 148) has been signed, but not ratified. The same is true of the Convention on the Protection of the Rights of Persons Belonging to National Minorities elaborated within the CIS in 1994. The RF has not ratified the Convention concerning Indigenous and Tribal Peoples in Independent Countries ([adopted 27 June 1989, entered into force 5 September 1991] (1989) 28 ILM 1382).

55  The RF has concluded several bilateral treaties including provisions on minority rights with neighbouring countries, especially with the Member States of the CIS. Whereas the treaties on basic principles of inter-State relations concluded in the early 1990s only confirm the general obligations in international human rights law, guarantee free national and cultural development (Estonia, Latvia), or oblige the partners to develop and observe the identity of minorities and to protect unique ethno-cultural regions (Kazakhstan, Belarus), the treaties on friendship and co-operation concluded in 1992 and 1993 with Kazakhstan, Kyrgyzstan, Uzbekistan, Turkmenistan, and Tadjikistan as well as the treaty concluded with Belarus in 1995 contain special regulations on minority protection similar to those fixed in the Helsinki Final Act. Duties on positive discrimination do not figure in those treaties. Comparable guarantees are included in treaties with Azerbaijan and Ukraine in 1997; the latter one was extended for another 10 years in 2008. A special treaty on minority protection was concluded with Turkmenistan in 1995 according to which learning and schooling in the mother tongue has to be publicly financed in regions with compact minority settlements. The Friendship Treaty with Armenia concluded in 1997, refers to a more specialized treaty that has not yet been adopted. Provisions on the promotion and protection of minorities also figure in the Treaty on Good-Neighbourliness, Partnership and Cooperation between Germany and the USSR ([signed 9 November 1990, entered into force 5 July 1991] 1707 UNTS 387) and are valid in the relationship between Germany and Russia, in the Agreement between the Government of the Federal Republic of Germany and the Government of the RF concerning Cultural Cooperation (with Annex) ([done 16 December 1992, entered into force 18 May 1993] 1931 UNTS 175), in the Russian-Polish Treaty on Friendly and Good-Neighbourly Cooperation ([22 May 1992] [1993] Dziennik Ustaw Nr 61 Poz 291), and in the Russian-Hungarian Declaration on the Rights of National or Ethnic, Religious and Linguistic Minorities of 11 November 1992. The gradual restoration of the former Republic of the Russian Germans in the Volga Region was envisaged in a Russian-German protocol of 10 July 1992, but has not led to tangible results.

56  The Treaties on Friendship, Cooperation and Mutual Aid concluded with Abkhazia and South Ossetia on 17 September 2008 contain explicit provisions on minority protection, but do not grant any privileges involving costs such as schooling programmes in the mother tongue.

57  Within the supervision process based on the Framework Convention for the Protection of National Minorities the comprehensive minority legislation of the RF was welcomed. Nevertheless, the non-implementation of anti-discriminatory provisions contained in national law and international treaties was criticized.

58  Georgia has lodged an inter-State complaint against Russia before the ECtHR because of the discrimination against and forceful expulsion of Georgian citizens after the political crisis in 2007. In Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v Russian Federation) (Request for the Indication of Provisional Measures) (Order) ([15 October 2008] ICJ Doc 2008 General List No 140) the International Court of Justice (ICJ) ordered provisional measures both against Georgia and Russia because of discriminatory practices during the Russian-Georgian War in 2008. Both cases are still pending.

4.  Federal Structure

59  According to the Constitution of 1993 Russia is a federal State with 89 explicitly named constituent entities: republics, krays, oblasts, one autonomous oblast, autonomous okrugs, as well as Moscow and St Petersburg as cities of federal significance (see also Federal States). Between 2003 and 2007 the number of the constituent entities was reduced to 83 mostly by uniting autonomous okrugs with the krays and oblasts in which they were situated. The relevant changes were confirmed by referenda in the regions concerned; the creation of the new constituent entities was based on federal laws. The unification was not always uncontroversial, especially if, as in the case of the Buryats, one ethnic group having been forced to live in two different autonomous okrugs since 1937 was split up in two new constituent entities instead of being reunified. The process of regrouping the constituent entities of the RF is still continuing.

5.  Status of the Constituent Entities of the Russian Federation in International Law

(a)  General Regulations

60  The status of the constituent entities of the RF is regulated by three Treaties on the Delimitation of Subjects of Jurisdiction and Power (generally referred to as ‘Federation Treaty’) as well as by the Constitution of 1993. The transitional provisions of the Constitution of 1993 subordinate the treaties to the Constitution (Sec. 2 (1) Constitution of 1993).

61  According to the Constitution of 1993 all constituent entities have equal rights as constituent entities of the RF; this applies also to their relations to federal State government bodies (Art. 5 (1) and (4)). The relations of autonomous okrugs within krays and oblasts may be regulated by federal laws and treaties (Art. 66 (4)).

62  Despite the principle of equality, the republics have certain privileges such as the right to establish their own State languages (Art. 68 (2)) or the right to enact their own constitutions, whereas the other subjects can enact only ‘charters’ (ustavy) or ‘fundamental laws’ (osnovnye zakony; Art. 5 (2)). The status of the constituent entity can be changed by mutual agreement in accordance with federal constitutional law (Art. 66 (5)). The borders between the constituent entities can also be changed upon mutual consent (Art. 67 (3)).

63  Based on the Federation Treaty, between 1993 and 1998 an asymmetrical federalism was established. In a ‘parade of treaties’ (Kahn 160) more than half of the subjects of the RF defined their relationship to the Federation in an individual way on the basis of contracts. The development of asymmetrical federalism was stopped by federal law first in 1999 and finally in 2003. The new federal law stipulated that existing treaties lapsed in July 2005 unless reconfirmed by the Federal Assembly.

64  According to Art. 72 Constitution of 1993 the constituent entities of the RF may establish their own ‘international and foreign economic relations’, ie are granted limited treaty-making power at least in those areas where they have exclusive jurisdiction. The coordination of these activities falls within the joint jurisdiction of the Federation and the constituent entities. In the early 1990s some of the economically prosperous regions were very active in building up international relations. According to the Federal Law on State Regulation of Foreign Economic Activity adopted in 1995, the economic activities of the regions included receipt of foreign credits underwritten by regional budgets, and the creation and implementation of interregional programmes including information supply and transborder commerce. As many details of the establishment of international economic relations by the regions were unclear and the centre wanted to stop the regions acting on their own authority, in 1999 the Federal Law on the Coordination of International and External Economic Relations of the Subjects of the RF curtailing the international activities of the regions was passed. According to this law economic and external relations can only be established with subjects of foreign federal States and only with the consent of the federal government. Agreements between constituent entities of the RF and of the subjects of a foreign federal State are not considered as international treaties. Therefore the RF is not responsible for the implementation unless it provides official guarantees or specifically grants permission to conclude the agreement. Due to a re-orientation of the power towards the centre at the beginning of the 21st century, the role played by the international foreign activities of the regions has been greatly diminished. The 1995 Law on State Regulation of Foreign Economic Activity was replaced by a new law in 2003 transferring all the relevant powers in the field of foreign trade to the central authorities.

65  The Federal Law on International Treaties of the RF ([adopted 16 June 1995, entered into force 15 July 1995] reprinted in WE Butler and JE Henderson 767–90), stipulates that the texts of international treaties to be signed on behalf of the central government should be checked with the regions if the treaty affects that region. A similar regulation is contained in the law on foreign economic activity. A violation of these regulations is not sanctioned and does not have any effect on the validity of a treaty concluded.

(b)  The Status of Tatarstan

66  During the dissolution process of the Soviet Union the Republic of Tatarstan, an economically rich region with a Turk ethnic majority, declared its State sovereignty on 30 August 1990 and on 21 March 1992 held a successful referendum on independence. But unlike the former Soviet Constitution neither the Constitution of the RSFSR of 1978 nor the Constitution of the RF provided for the right of the republics to secede from the Federation (Secession). The Russian Constitutional Court therefore denied Tatarstan’s right to secession and explained that the right of the peoples to self-determination had to be accompanied by respect for the principle of territorial integrity. Despite the ruling of the Russian Constitutional Court ([13 March 1992] [1993] 1 Vestnik Konstitucionnogo Suda Rossijskoj Federacii 43) Tatarstan did not change its new constitution, which explicitly stated that Tatarstan was a sovereign State and subject of international law, associated with the RF on the basis of a treaty determining the respective powers and competences. Unlike the other subjects of the RF, Tatarstan—as well as Chechnya—refused to ratify the Federation Treaty. On 15 February 1994 the RF and Tatarstan concluded the Treaty on Delimiting the Subjects of Jurisdiction and Mutual Delegation of Powers between Agencies of State Power of the RF and Agencies of State Power of the Republic Tatarstan ([signed 15 February 1994, entered into force 22 February 1994] reprinted in WE Butler and JE Henderson 73–9; ‘RF-Tatarstan Treaty of 1994’), granting Tatarstan far-reaching rights such as the right to set up a national bank, to conduct foreign relations on its own and to organize its foreign economic activities independently. The preamble to the RF-Tatarstan Treaty of 1994 explicitly referred to the right to self-determination, to the principle of territorial integrity and the unity of the economic area. Between 2000 and 2002 Tatarstan was forced to amend its constitution. The special status granted by the RF-Tatarstan Treaty of 1994 was finally lost in 2005 as the centre refused to confirm it as required by the new 2003 law. In 2007 the RF and Tatarstan concluded the Treaty on Delimitation of Jurisdictional Subjects and Powers between Bodies of Public Authority of the RF and Bodies of Public Authority of the Republic of Tatarstan (‘RF-Tatarstan Treaty of 2007’) still conveying privileges, but in a much reduced form. The right to self-determination is not mentioned any more. Tatarstan can issue passports with a Tatar emblem and an addendum in Tatar language. It can also require its president to know the Tatar language and support Tatars living outside Tatarstan. But the privileges in the economic field and in foreign relations were not upheld. Thus international agreements concluded by Tatarstan must be authorized by the Russian Ministry of Foreign Affairs. Whereas in the RF-Tatarstan Treaty of 1994 Tatarstan could independently decide on the exploitation of its natural resources (Art. II (6)), now it only has the right to conclude agreements with the Government of the RF concerning the resolution of questions in this field (Art. 2 (2) RF-Tatarstan Treaty of 2007).

67  From the international point of view the uti possidetis principle applies to Tatarstan. As Tatarstan was always an integral part of the RSFSR which became independent within its former borders as a republic of the Soviet Union, it was not accorded the right to secession. Neither could it base its claim to independence on the right to self-determination as long as the central government agreed to determine its status on the basis of special legal regulations.

(c)  The Status of Chechnya

68  The conflict with Chechnya, which has historical roots dating back to the 18th century, began in the late 1980s. In opposition to the Supreme Soviet of the Chechen-Ingush Autonomous Socialist Soviet Republic an All-National Congress of the Chechen People was established in November 1990 which adopted a declaration of sovereignty of the Chechen-Ingush Autonomous Socialist Soviet Republic on 27 November 1990, ie before the dissolution of the USSR. In 1991 parliamentary and presidential elections were held; Dudaev was elected president. On 6 September 1991 the newly elected parliament declared the independence of the former Chechen-Ingush Autonomous Socialist Soviet Republic, whereas a part of the former autonomous republic, Ingushetia, insisted on remaining part of the RF. The status of the Republic of Ingushetia was confirmed by a Russian law. In March 1992 a constitution was adopted for the Chechen Republic of Ichkeria (Constitution of Chechnya 1992 [adopted and entered into force 12 March 1992] in P Raworth [ed] Constitutions of Dependencies and Territories [Oceana Dobbs Ferry] vol 4 [Supp 05-5] 1–28). Legally, the situation was similar to that of Tatarstan; unlike the former Soviet republics the Chechen-Ingush Autonomous Socialist Soviet Republic could not base its right of secession on the Constitution of the USSR, as it was part of the RSFSR (Art. 78 (1) RSFSR Constitution of 1978). Despite a decision of the Constitutional Court declaring the elections unconstitutional, the declaration of a state of emergency and other measures of the RF government intended to bring Chechnya back into the Federation (see also Emergency, State of), Chechnya refused to ratify the 1992 Federation Treaty and to accept the validity of the Constitution of the RF of 1993 and the Russian federal laws.

69  On 11 December 1994 the First Chechen War began on the basis of the ‘Decree of the President of the RF on Measures to Repress the Activity of the Illegal Armed Formations on the Territory of the Chechen Republic and in the Area of the Ingush-Ossetian Conflict’ ([9 December 1994] [1994] 33 Sobranie Zakonov Rossiyskoj Federatsii Pos 3422), which authorized the RF government to apply all means at the disposal of the State to ensure State security, legality, citizens’ rights and freedoms, and public order protection, to combat crime and to disarm all illegal armed formations. The legality of the Presidential Decree was challenged before the Russian Constitutional Court on 31 July 1995 (Judgment of the Constitutional Court of the RF on the Constitutionality of the Presidential Decrees and the Resolutions of the Federal Government concerning the Situation in Chechnya [31 July 1995] [1995] 5 Vestnik Konstitucionnogo Suda Rossijskoj Federacii 3). The Court held that the decree of the President was in conformity with the Constitution of 1993. Furthermore it stated that the right to self-determination did not grant a right to secession. At the same time the Court criticized the legislator for not implementing the provisions of the Geneva Conventions Additional Protocol II (1977) which the Soviet Union had ratified on 4 August 1989 and which was also binding for the RF. The Court held the Additional protocol II applicable for both sides of the conflict, but argued that the Court did not have the competence to assess violations of the provisions of the protocol; it vaguely referred this task to ‘other competent organs’ (at para. 8 (5)).

70  The Khasavyurt Peace Agreement ([31 August 1996] reprinted in R Sakwa [ed] Chechnya: From Past to Future [Anthem Press London 2005] 295) stopped the hostilities; on 12 May 1997 the Treaty on Peace and the Principles of Mutual Relations between the RF and the Chechen Republic of Ichkeria ([signed and entered into force 12 May 1997] ibid at 297) was concluded, but without determining the legal status of Chechnya.

71  The second war in Chechnya, which started on 23 September 1999 and officially ended in March 2000, was said to have been provoked by a Chechen incursion in Dagestan and the blowing-up of apartment buildings in Moscow ascribed to Chechen rebels. Subsequently, the Chechen Republic was reintegrated into the Federation. The new Constitution of the Chechen Republic ([adopted 23 March 2003] in P Raworth [ed] Constitutions of Dependencies and Territories [Oceana Dobbs Ferry] vol 7 [Supp 04-4] 7–47) was adopted by referendum. The retreat of Russian military forces from Chechnya was officially announced on 15 April 2009.

72  From the international point of view the situation in 1991 when Chechnya declared its independence was similar to the situation of Tatarstan; according to the uti possidetis principle Chechnya did not have a right to secession. But the situation might have to be assessed differently after the First, as well as after the Second, Chechen War. The extent to which, in those changed circumstances, the Chechen people could rely on their right to self-determination is debatable—and if they could, did the right to self-determination encompass secession? Parallels to the situation in Kosovo on the one hand and in South Ossetia and Abkhazia on the other hand are evident: the existence of an ethnically different group fighting for independence for centuries, deportation, and massacres that can be classified as genocide in the past, ie in Stalinist times, long-term suppression of the culture and traditions, an interim period with diplomatic, judicial, and political attempts to solve the crisis after the declaration of independence, and finally a violent and long-lasting war not only against separatists, but against the whole population. But unlike Kosovo, South Ossetia, and Abkhazia, in Chechnya there was no direct international involvement, neither of neighbouring States nor of the UN Security Council.

73  The legal assessment of the situation has to balance the principle of self-determination of peoples and the principle of territorial integrity, both enshrined in the UN Charter. As recent conflicts outside the context of decolonization show, the principle of territorial integrity is given priority over the right to secession. The only relevant case decided differently is the case of Kosovo, a solution to which Russia vehemently objected. But as Kosovo is considered to be a case sui generis and the right to secession has been recognized only by a minority of States worldwide, it cannot be interpreted as having generated new international customary law.

74  Therefore it was not so much the fact that the Russians waged a war against separatist forces that stirred international criticism, but the way in which this war was conducted causing countless numbers of casualties among the civilian population and high losses on the Russian side as well. As a consequence of the First Chechen War, the EU and the COE suspended ongoing treaty negotiations and ratification processes. The Second Chechen War was also criticized sharply by Western politicians. But the linkage to jihad and to terrorist attacks, especially in the aftermath of the terrorist attacks on 11 September 2001, changed the legal assessment of the conflict, which was declared to be a ‘counter-terrorist operation’ by the Russian president. Nevertheless, the human rights situation in Chechnya remained a matter of concern for international organizations such as the COE (see Resolutions Nos 1323/2003 and 1403/2004: The Human Rights Situation in the Chechen Republic) and for non-governmental organizations.

75  Since the leading case Isayeva v Russia the ECtHR has condemned Russia in more than a dozen cases for serious human rights violations in Chechnya. The status of the Chechen Republic within the RF has not been an issue in the jurisprudence of the ECtHR; the condemnations are based on the misuse of power by the Russian authorities, especially by the military forces.

C.  Historical Development of Russia as a Subject of International Law

1.  The Russian Empire up to 1917

(a)  Structure of the State

76  The Russian Empire was a multinational State comprising the territory now belonging to the RF as well as the central Asian territories now belonging to Kyrgyzstan, Kazakhstan, Uzbekistan, Tadjikistan and Turkmenistan and the territory of the Baltic States, Finland, and parts of Poland, Ukraine, Belarus, Moldova and the Transcaucasian States. It stretched from the Arctic Ocean in the North to the Black Sea in the South, from the Baltic Sea in the West to the Pacific Ocean in the East. The Russian Empire was proclaimed in 1721 by Tsar Peter I following the Treaty of Peace between Russia and Sweden ([signed 30 August 1721] [1718–24] 31 CTS 339) and ended with the Russian Revolution in 1917. It was a highly centralized absolute monarchy. According to the first Constitution adopted on 23 April 1906 to the ‘All-Russian Emperor belongs the Supreme Autocratic power. To obey his power, not only for wrath, but also for conscience’s sake, is commanded by God Himself’ (Art. 4 Code of Fundamental State Laws).

(b)  Doctrine of International Law

77  Russian international law can be traced back to the beginning of the 18th century. It oscillates between the acceptance of the ius publicum europaeum developed in the West and the idea of the singularity and superiority of ‘Moscow as the third Rome’ as a continuation of the Byzantine legacy. Peter Shafirov’s A Discourse Concerning the Just Causes of the War between Sweden and Russia: 1700–1721 (Oceana Dobbs Ferry 1973) is seen as the first Russian contribution to the literature of international law. The major works of Western international lawyers were translated into Russian. The most important international lawyer of the Tsarist times, Friedrich Martens, advocated the idea of Russia’s ‘civilization’ through Europeanization and thus took a stand for the Westernizers against the Slavophiles in the 19th century. Generally, positivist thinking was dominant in the international law of the Russian Empire; this is true both for Friedrich Martens and for other German-Baltic lawyers such as August von Bulmerincq, Carl Magnus Bergbohm, Michael Freiherr von Taube, and Baron Boris Nolde. After the revolution most international lawyers had to emigrate. The impact of Russian lawyers on the development of international law is controversial. Whereas Nussbaum argues that international law is something external for Russian thought, Meissner stresses its substantial influence, especially on the codification of the laws of war and the realization of the Hague Peace Conferences (1899 and 1907).

2.  The Russian Soviet Federated Socialist Republic between 1917 and 1922

78  On 7 November 1917 the RSFSR was declared the successor of the Russian Empire. The first Constitution of the RSFSR was promulgated on 19 July 1918; it explicitly referred to the principle of self-determination. Independence was linked to a radical change of the legal and political system and the creation of a new form of State based on the ideology of Marxism-Leninism (Marxism) in which the ‘working-class’ was led by the ‘avant-garde’, the Bolshevist party. Power was concentrated within the hands of the Central Executive Committee, which issued basic decrees defining the new legal order such as the Decree on the Land and the Decree on Peace. Recognition of the RSFSR as an independent subject of international law was implicit in the conclusion of manifold agreements terminating hostilities with the governments of the newly independent neighbouring States such as Finland, Estonia, Latvia, and Lithuania as well as in the conclusion of the Treaty of Peace between Austria, Hungary, Bulgaria, Germany, and Turkey of the One Part, and Russia, of the Other Part ([signed 3 March 1918, entered into force 29 March 1918] 123 BSP 740; Brest-Litovsk, Peace of [1918]) and other treaties on exchanges of prisoners, delimitation of boundaries, and trade.

3.  The Russian Soviet Federated Socialist Republic between 1922 and 1991

(a)  Legal Foundation of the USSR

79  On 30 December 1922 a new Federation entitled the ‘Union of Socialist Republics’ was formed on the basis of the Treaty on the Establishment of the Union of Soviet Socialist Republics (‘Union Treaty’) ratified by the original RSFSR, the Ukrainian and Byelo-Russian Soviet Socialist Republics, and the Transcaucasian Soviet Federated Socialist Republic; they were considered as constituent republics. The text of the treaty remained valid and was incorporated into the Constitution of the USSR of 1924. Since then Russia has been formally defined as a ‘federal republic’ (the RSFSR) within the federal USSR.

80  Subsequently, additional union republics were set up: the Turkmen and the Uzbek SSR in 1924, the Tajik SSR in 1929, and the Kazakh and the Kyrgyz SSR in 1936. After the dissolution of the Transcaucasian Republic on 5 December 1937 the territory was divided between three new republics: the Armenian, the Azerbaijan, and the Georgian SSR. In 1940 the Karelo-Finnish, Moldavian, Estonian, Latvian, and Lithuanian SSR were established, although the Baltic States never accepted that they had lost their independence, and the US as well as many other Western States refused to recognize their annexation and incorporation into the USSR (see also Doctrines [Monroe, Hallstein, Brezhnev, Stimson]). In 1956 the Karelo-Finnish SSR became an autonomous republic inside Russia, leaving a total of 15 union republics.

(b)  Legal Status of the RSFSR within the USSR

81  De jure, the republics retained their sovereignty and their right to secede. The provision of the Union Treaty guaranteeing the right to freely leave the union (Art. 26) was reiterated in the Constitution of the USSR of 1924 (Chapter II (4)), in the Constitution of the USSR of 1936 (Art. 17), as well as in the Constitution of the USSR of 1977 (Art. 72). The Constitution of 1977 also stated explicitly that each union republic was a sovereign State (Art. 76). But de facto the centralist elements prevailed. In the Stalinist period the union was transformed into a unitarian State. The provision in the Soviet Constitution that the USSR was a uniform multinational State (Art. 70) outweighed the federal or even seemingly confederal elements. The State was under the all-embracing control of the unitary Communist Party.

82  According to the Constitution of 1936 the jurisdiction of the Federation comprised the representation of the union in international affairs and the conclusion of political and other treaties with foreign States (Art. 1 (a) and (f) Union Treaty, inserted in Art. 14 (a) Constitution of 1936). An amendment introduced in 1944 granted every union republic ‘the right to enter into direct relations with foreign States, to conclude agreements with them, and to exchange diplomatic and consular representatives’ (Art. 18 (a) Constitution of 1936 as amended in February 1944). The new constitutional provision served as an argument at the Dumbarton Oaks Conference (1944) in order to request 16 seats for the 16 union republics, but did not lead to an independent foreign policy of the union republics. Therefore the assumption of the Soviet legal doctrine that all republics of the Soviet Union were subjects of international law was rejected by non-socialist legal doctrine. The Constitution of 1977 repeated the amended provision of the Constitution of 1936, but added the right to participate in the activity of international organizations (Art. 80).

(c)  Disintegration of the USSR

83  Secessionist manifestations started only at the end of the 1980s. The 19th Union Party Conference gave rise to expectations that the union might be transformed into a real federation, but the constitutional reform of the relationship between the centre and the regions was delayed. In April 1990 a law on the definition of competences between the USSR and the subjects of the federation was adopted. Only in March and December 1990 were the unitarian elements in the Constitution changed. At that time the so-called parade of sovereignties had already led to the adoption of declarations of sovereignty (Estonia, November 1988; Lithuania, May 1989; Latvia, July 1989; Azerbaijan, September 1989) or even declarations of independence (Latvia, February 1990; Estonia, March 1990; Lithuania, March 1990; Armenia, August 1990) in most of the Soviet republics. The Declaration on the State Sovereignty of the RSFSR was adopted on 12 June 1990. It referred to the right of self-determination, declared the priority of the Russian Constitution and the Russian laws over the Soviet laws and restricted the validity of Soviet laws on the Russian territory to those not contradicting ‘the sovereign rights of the RSFSR’ (para. 5). The USSR Law on Procedures for Resolving Questions Related to the Secession of Union Republics from the USSR ([3 April 1990] reprinted in H Hannum [ed] Documents on Autonomy and Minority Rights [Nijhoff Dordrecht 1993] 753–60), which in theory recognized the right to exit, but built up difficult procedural obstacles, could not stop the process of dissolution. In the so-called Novo-Ogarevo process President Gorbachev tried to salvage the process of dissolution and proposed the foundation of a Union of Soviet Sovereign Republics based on a new union treaty that would have replaced the 1922 Union Treaty. But conservative forces tried to prevent the signature of the treaty on the Union of Sovereign States and rose up against Gorbachev on 18 August 1990. The failure of the putsch linked with the attempt to restore the old Soviet Union spurred the process of disintegration; all the republics with the exception of the RSFSR declared their independence; the independence of the Baltic republics was recognized within days not only by the European Communities, but also by Russia and the Soviet Union itself. The attempt to elaborate a new version of the Union Treaty was deemed to have failed so that the project of a renewed union treaty was abandoned. The final step in the process of disintegration was the Minsk Agreement of 8 December 1991 concluded between the heads of State of the RSFSR, the Ukrainian SSR, and the Byelorussian SSR. In the Preamble to the Minsk Agreement it was stated that ‘the Union of Soviet Socialist Republics as a subject of international law and a geopolitical reality no longer exists’ (‘Soius SSSR kak sub’’ekt mezhdunarodnogo prava i geopoliticheskaia real’nost’ prekrashchaet svoe sushchestvovanie’) and in Art. 14 (2) that ‘the activities of organs of the former Union of Soviet Socialist Republics in the territories of the States members of the Commonwealth are hereby terminated’. At the same time the CIS was established. The Minsk Agreement entered into force for each contracting party from the moment of its ratification. The Russian Parliament ratified it on 12 December 1991.

84  Whether the Minsk Agreement can be considered as an international treaty is debatable. If the union republics were still to be considered as parts of a federal State they could not conclude international treaties among themselves. Furthermore it was impossible for three out of twelve members to dissolve the union.

85  But the legal deficiencies of the Minsk Agreement could be smoothed over by the subsequent ‘Alma Ata Agreements’. In Alma-Ata five new documents were adopted on 21 December 1991: the Alma Ata Declaration, the Agreement on Joint Measures with respect to Nuclear Weapons, the Agreement on Coordinating Bodies of the Commonwealth of Independent States, the Decision by the Council of Heads of State of the Commonwealth of Independent States, and the Minutes of the Meeting of Heads of Independent States.

86  The Alma Ata Declaration, which confirms the termination of the existence of the USSR, was signed by 11 of the 15 former Soviet Republics; whereas Georgia joined later on 9 December 1993, the three Baltic States refused to participate in the whole process. The relevant statement about the termination of the Soviet Union is not only contained in the Preamble—as in the Minsk Agreement—but in the resolutive part of the Alma Ata Declaration. The relevant text reads:

The Independent States, the Republic Azerbaijan, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Kyrgyzstan, the Republic of Moldova, The Russian Federation (RSFSR), the Republic of Tajikistan, Turkmenistan, the Republic of Uzbekistan and Ukraine…declare that…[w]ith the establishment of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist.

87  The Preamble to the Decision by the Council of Heads of State of the Commonwealth of Independent States confirms the CIS States’ willingness to fulfil their duties on the basis of the UN Charter, recalls the fact that the Republic of Belarus, the USSR, and Ukraine were the first members of the UN and states with satisfaction ‘that the Republics of Belarus and Ukraine continue to participate in the United Nations as sovereign independent States’. In the resolutive part of the Decision the CIS States ‘support Russia’s continuance of the membership of the Union of Soviet Socialist Republics in the United Nations, including permanent membership in the Security Council, and in other international organizations’.

88  Furthermore, on the same day the Protocol to the Agreement Establishing the Commonwealth of Independent States signed at Minsk on 8 December 1991 by the Republic of Belarus, the RSFSR, and Ukraine was signed, declaring that:

The Republic of Azerbaijan, the Republic of Armenia, the Republic of Belarus, the Republic of Kazakhstan, the Republic of Kyrgyzstan, the Republic of Moldova, The Russian Federation (RSFSR), the Republic of Tajikistan, Turkmenistan, the Republic of Uzbekistan and Ukraine, on an equitable basis and as High contracting parties, shall constitute the Commonwealth of Independent States.

Georgia acceded to the Protocol on 3 December 1993 and ratified it on 9 December 1993.

D.  Problems of Succession

89  Among international lawyers there is disagreement over how to interpret the transition processes in 1917, in 1922, and in 1991. They all brought about changes in the social and political structure of the State and changes to the territory.

1.  The Transition from the Russian Empire to the Russian Soviet Federated Socialist Republic

90  The first question of State succession arose in the context of the October Revolution that led to the dissolution of the Russian Empire and the formation of the RSFSR on a part of the Russian Empire’s territory. According to the majority of international lawyers such a revolutionary change of the State structure as well as the secession of various parts of the State are not to be considered as a case of State succession, but leave the international personality of the State unaffected. Therefore the RSFSR and the Russian Empire are to be seen as identical subjects of international law. Contrary to this assessment, the Bolshevik government claimed that the revolution had led to the extinction of the Russian Empire. The RSFSR as a State created by a proletarian revolution was seen as a new State free to decide which obligations of the Russian Empire it wanted to accept and which obligations it refused to fulfil. This theory of the emergence of a new subject of international law as a consequence of the class struggle was also put forward in the Soviet international legal doctrine (see Tunkin; MM Avakov, Pravopreemstvo sovetskogo gosudarstva [Legal Succession of the Soviet State] [Gos Izdat Juridičeskoj Literatury Moscow 1961] 7 et seq), but not accepted unanimously (see Korovin 5 et seq; see also State Succession in Other Matters than Treaties; State Succession in Treaties).

2.  The Transition from the Russian Soviet Federated Socialist Republic to the Soviet Union

91  The interpretation of the formation of the USSR on the basis of the Union Treaty of 1922 is controversial as well. On the one hand the conclusion of the Union Treaty can be seen as the foundation of a new subject of international law, not identical with either of its constituent parts (Schweisfurth [1994] 100). This means that the founding States were dissolved. On the other hand the creation of the USSR can be interpreted as the partial restoration of the original territory of the Empire, not having any influence on State continuity (M Silagi Staatsuntergang und Staatennachfolge mit besonderer Berücksichtigung des Endes der DDR [Lang Frankfurt am Main 1996] 59–61; W Czaplinski ‘La continuité, l’identité et la succession d’Etats: Evaluation de cas récents’ [1993] 26 RBDI 374–92, at 383). The latter approach is consequent if the social and political changes of the State structure are considered to be irrelevant for the assessment of State succession. The conclusion of the Union Treaty can then be seen as a partial actus contrarius to the secession of parts of the Russian Empire. As the secessions were deemed not to affect State continuity, their reversal cannot have a different effect.

3.  The Transition from the Soviet Union to the Russian Federation

92  The most controversial question is the legal evaluation of the dissolution of the Soviet Union. Three concepts have generally been advanced. Interpreting the dissolution of the USSR as a series of secessions, Russia is regarded as legally identical with the former Soviet Union, whereas the other republics are considered as successor States of the USSR (A Zimmermann Staatennachfolge in völkerrechtliche Verträge [Springer Berlin 2000] 372–422; L Antonowicz ‘The Disintegration of the USSR from the Point of View of International Law’ [1991/1992] XIX PolishYIL 7–16; M Bothe and C Schmidt ‘Sur quelques questions de succession posées par la dissolution de l’URSS et celle de la Yougoslavie’ [1992] 96 RGDIP 811–42, at 824; M Weyer ‘Die Mitgliedschaftsrechte der ehemaligen Sowjetunion in den Vereinten Nationen’ [1992] 36 Recht in Ost und West 166–76, at 170; R Mullerson ‘The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia’ [1993] 42 ICLQ 473–93). The opposite view holds that the USSR as a subject of international law has completely disappeared because of dismemberment (Dismemberment of States). In this case the 15 republics would all be successor States (Schweisfurth [1994] 106–8; Seiffert ‘Die Fortgeltung der völkerrechtlichen Verträge und Gesetze der untergegangenen Sowjetunion in der Russischen Föderation (RF)’ [1992] 137; VV Pustogarov ‘CIS as an International Regional Organization’ [1992] Russian Yearbook of International Law 39–53; H Beemelmans ‘Die Staatennachfolge in völkerrechtliche Verträge: Bemerkungen zur neueren Staatenpraxis’ [1994] 40 Osteuropa-Recht 339–73, at 357 et seq; Y Blum ‘Russia Takes Over the Soviet Union’s Seat at the United Nations’ [1992] 3 EJIL 354–61, at 359; D Homann ‘Völkerrechtliche Konsequenzen des Zerfalls der Sowjetunion’ [1993] 69 FW 98–116, at 101). A differentiated view is offered by the Russian legal doctrine describing the RF as a ‘continuator State’ (gosudarstvo prodalzhatel), but not as legally identical (see I Lukašuk ‘Russland als Rechtsnachfolger in völkerrechtliche Verträge der UdSSR’ [1993] 39 Osteuropa-Recht 235–45, at 241–45; B Boiarshinov ‘Mezhdunarondnyje dogovory v pravovoi sisteme Rosijskoi Federacii’ [International Treaties and the Legal System of the Russian Federation] [1997] 4 Zakonodatelstvo 59).

93  The different interpretations of the legal processes are based on objective and subjective factors. The focal point is the consensus of 11 out of 15 Soviet republics about the ‘termination of the existence of the USSR’ reached on 21 December 1991 in Alma Ata. But although the Alma Ata Declaration seems to support the theory of dismemberment, later developments do not confirm this finding. Due to the dynamics and the complexity of the whole process the last word could not have been spoken instantly.

(a)  Arguments for the Theory of Succession

94  The main argument for the assessment of the disintegration of the USSR as a ‘dismemberment’ is the wording of the Preamble to the Minsk Agreement that was repeated in the Alma Ata Declaration. Thereby all the former Soviet republics with the exception of the Baltic States and Georgia declare that ‘with the establishment of the Commonwealth of Independent States, the Union of Soviet Socialist Republics ceases to exist’. This statement is interpreted as the actus contrarius to the foundation of the USSR on the basis of the Union Treaty of 30 December 1922. The extinction of the USSR is therefore dated at 21 December 1991. It is argued that a subject of international law cannot cease to exist and continue at the same time.

95  Furthermore the resolution of the Supreme Soviet of the RSFSR adopted on 12 December 1991 denouncing the Union Treaty is interpreted as an equivalent to a declaration of independence. Therefore the RSFSR’s position is seen as similar to that of all the other republics having adopted declarations of independence. The process of dissolution of the USSR is thus interpreted as dismemberment and not as a series of secessions.

96  It is also argued that the RSFSR, and later on the RF, did not automatically take over the rights and obligations of the USSR, but explicitly consented to the transfer of rights and obligations in each individual case.

97  Neither is the ‘continuation’ of the membership of the USSR in the UN seen as an automatic process, but as a conscious decision reached by agreement of all the States signing the Alma Ata Declaration. This interpretation is based on the wording of the Declaration with respect to Russia that is different from the wording of the preamble concerning the continuation of the membership of Belarus and Ukraine.

98  The reaction of the international community is interpreted as a rapid process of recognition of the RF as a new State. This is supported by the wording of the relevant declaration of the US (on this see R Rich, ‘Recognition of States: the Collapse of Yugoslavia and the Soviet Union’ [1993] 4 EJIL 36–65, at 46). But the later State practice does not confirm this finding.

99  The assessment of the RF as a successor State to the USSR by many authors in the immediate aftermath of the statements made in Alma Ata has been upheld only exceptionally at a later stage of the events, as later developments clearly contradicted the first understanding.

(b)  Arguments for the Theory of Legal Identity

100  The opposite view stresses that the RSFSR—contrary to all other Soviet Republics—never declared its independence. Therefore, the process of dissolution of the USSR is not interpreted as dismemberment, but as secession of all the Soviet Republics with the exception of the RSFSR.

101  In this context the Alma Ata Declaration is not seen as an actus contrarius to the foundation of the Soviet Union in 1922, but predominantly as an act founding the CIS as a new international organization. It is argued that if the Soviet Union had been dissolved by dismemberment, the decisive last act would have been the denunciation of the Union Treaty by the resolution of the Supreme Soviet of the RSFSR adopted on 8 December 1991; it would then not have made sense to dissolve an already non-existant subject of international law.

102  Furthermore the reactions of other States and international organizations are taken as evidence for the acceptance of the legal identity of the RF with the Soviet Union. The European Community and its Member States officially recognized all the new CIS States, whereas they noted in the Statement concerning the Future Status of Russia and Other Former Soviet Republics ([issued 23 December 1991] (1991) 7 European Political Cooperation Documentation Bulletin 772) ‘that the international rights and obligations of the former USSR, including those under the UN Charter, will continue to be exercised by Russia’ and welcomed ‘the Russian Government’s acceptance of these commitments and responsibilities’ and explicitly stated that ‘in this capacity [they] will continue their dealings with Russia, taking account of the modification of her constitutional status’. In the Letter to the Secretary-General of the United Nations from the President of the RF ([24 December 1991] [1992] 13 HRLJ 70) the President wrote that:

the membership of the Union of Soviet Socialist Republics in the United Nations including the Security Council and all other organs and organisations of the United Nations system, is being continued by the Russian Federation (RSFSR) with the support of the Countries of the Commonwealth of Independent States.

103  The theory of legal identity of the USSR and the RF is further supported by external factors such as the share of the Russian territory and population in the Soviet territory and population (80% and 51%). Economic and military power also suggests the identity of the RF and the Soviet Union. Moscow continues to be the capital; State symbols both of the Russian Empire (eg the flag) and the Soviet Union (see for instance the reintroduction of the melody of the Soviet anthem) are still or once again in use. Soviet law continued to be applied as long as it was not in contradiction to the newly elaborated constitution or to new laws.

104  It is doubtful, though, if the confirmation of the ‘continuation’ of rights and obligations can be interpreted as an acceptance of legal identity. A closer examination both of international State practice and especially of the Russian understanding shows that the fact that the RF ‘continues’ to fulfil the treaty obligations of the USSR does not mean that it considers itself as ‘identical’.

(c)  Arguments for the Theory of the Continuator State

105  The theory of the RF as a ‘continuator State’ of the USSR is based on the notion of the ‘gosudarstvo prodolzhatel’ coined by the RF in order to describe the fact that it does not ‘automatically’ but ‘consciously’ accept the rights and obligations of the former Soviet Union. It was first used in a circular note dating from 13 January 1992 sent to all UN Member States stating that Russia continues the exercise of the rights and obligations based on the international treaties concluded with the USSR. The Russian Minister of Foreign Affairs, Kosyrev, also used the word ‘continuator State’ stressing the difference between a ‘successor State’ and a ‘continuator State’. However, Kosyrev did not confirm the idea of legal identity between the USSR and the RF, but used a metaphor: continuator State means that the thread of connection with the external world was transferred to the RF.

106  This theory is based on the idea that the dichotomy of the theoretical approaches presupposing either legal identity between Russia and the USSR or State succession cannot explain the process of disintegration of the USSR in a satisfactory way. From the very beginning it was clear that the position of the RSFSR was neither the same as that of the other CIS States, nor completely identical with that of the USSR. The RSFSR was not ‘automatically’ subject to the same rights and obligations as before, but it was ‘generally accepted’ that it should have the same rights and obligations. The rights and obligations were not transferred to a new subject of international law, but to a partially identical one.

107  This pragmatic approach has been generally supported by the other CIS States and accepted by third States. The term ‘continuator State’ was used for the RF in a great number of international agreements. It is able to explain the solution of the most important questions in the context of the disintegration of the USSR such as the take over of the Soviet Union’s seat at the United Nations, the continuation of the work of foreign diplomats in Moscow without being accredited anew, and the continuation of the jurisdiction of Russia over the Soviet military forces abroad. In questions of State debts, State assets, and property abroad another solution was sought in a treaty of 4 December 1991 granting adequate shares to all former Soviet Republics (Russia 61.34%, Ukraine 16.37%, Belarus 4.13%, etc). But, here too, in practice it was the RF assuming all the legal responsibilities in relation to third States by the end of 1993; in return all the other CIS States but Ukraine renounced their rights. A treaty between Ukraine and Russia of 9 December 1994 on the transfer of the Ukrainian shares to Russia was never ratified by the Ukrainian Parliament. Ukraine’s claim to renegotiate the treaty was refused by the Russian Government.

108  Thus the theory of Russia as the ‘continuator State’ of the USSR seems to be generally, but not unanimously accepted. It might cause problems, though, if Russia declined responsibility for wrongful acts committed by the USSR or the fulfilment of legal obligations incurred by the Soviet Union on the basis of this theory.

E.  Russian Doctrine of International Law

109  Whereas the Russian doctrine of international law developed in the time of the Russian Empire was generally in line with the classical doctrine of international law, the Soviet doctrine elaborated after the October Revolution of 1917 marked a sharp contrast to the traditional understanding of basic concepts of international law; above all the universality and binding character of classical international law was disputed (see also History of International Law, Basic Questions and Principles). In the course of Soviet history, despite the persistence of the ideological bias, a more pragmatic approach was found in many fields of international law. During the period of perestroika in the late 1980s the ideological differences between ‘Western’ and Soviet international law were smoothed out; international law became an important factor in the transformation of national law and the re-orientation on commonly shared values. The Constitution of 1993 allows an important role for international law in the national legal system and grants priority of international treaty law over national laws (see also International Law and Domestic [Municipal] Law). Nevertheless, remnants of the Soviet theory of international law can be traced in some fields.

1.  Main Characteristics of the Soviet Doctrine of International Law

110  The main characteristic of the Soviet doctrine of international law was its ideological underpinning, although, after a comparatively short truly revolutionary period many questions continued to be solved in a rather pragmatic way.

(a)  Development of the Soviet Doctrine of International Law

111  During the first years after the revolution the main thrust of the newly elaborated Soviet doctrine was to fight against the rules of international law developed on the basis of customary and treaty law and to replace them by a new socialist concept of international law. Controversies about doctrines were seen as a continuation of the class struggle.

112  The most influential international lawyer of the early period was EA Korovin. In his book The International Law of the Transitional Period of 1924 he tried to develop a Soviet conception of international law based on Marxist-Leninist ideology. The fundamental question of his study was how far international law could be applied in a new State based on the dictatorship of the proletariat. Korovin denied the existence of general and universal international law; according to him traditional international law was only valid in so far as it was explicitly acknowledged by the Soviet Union. He argued that during a transitory period up to the world revolution different systems of international law coexisted: continental European international law, Anglo-American international law, and a transitory international law necessary in relations with the Soviet Union. The idea of a uniform legal personality of the State was rejected; the relevant organizations of the dominant class were considered to be the only subjects of international law.

113  This approach was explicitly rejected in the 1930s as a consequence of Stalin’s ‘Revolution from above’ and the revival of the idea of the State. One of the most influential texts of that period was Pašukanis’ Essays on International Law. He characterized what he called ‘bourgeois international law’ as a legal form of the struggle of capitalist States among themselves for dominance over the rest of the world. The normative character of international law was denied; it was interpreted as an instrument in furthering political goals. Therefore, it was deemed possible for the Soviet Union to terminate legal obligations or to accept them as long as they were compatible with the dictatorship of the proletariat and the basic principles of Soviet foreign policy. National law was accorded priority over international law.

114  The re-orientation of Soviet international legal theory in the late 1930s was spurred by the conception of ‘communism in one country’ in the situation of ‘capitalist encirclement’. The idea of the withering away of State and law was abandoned. The more pragmatic approach allowed the USSR to become a member of the League of Nations in 1934, but it was expelled for aggression against Finland on 14 December 1939. In 1938 the dominant theoretician of international law, Vyshinsky, published 12 theses on international law defining the new conception. National law was understood as a source of international law; at the same time it was accorded priority over international law. But contrary to the revolutionary approach it was no longer exclusively understood as an instrument of battle, but also as an instrument of co-operation. Legal nihilism denying the normative force of international law was abandoned and replaced by the advocacy of the strong and binding nature of international law. The authoritative definition of international law given by Vyshinsky in 1948 was generally accepted:

we determine international law as the entirety of contractual and customary norms which regulate the legal relations of the States developing in the process of struggle and cooperation and expressing the will of the dominating classes the realization of which is guaranteed by force exercised individually and collectively by the States.

After the war the controversy about the existence of a distinct socialist international law continued. Korovin distinguished between three different forms of international law: socialist international law, capitalist international law, and intermediate international law acceptable for different systems.

115  During the period of the Cold War international law was based on the idea of the peaceful coexistence of different systems developed by Tunkin, the most influential Soviet lawyer of that time. Ideological differences were no longer seen as impediments to comprehensive regulations of international law. Peaceful coexistence was understood as a specific form of class struggle between socialism and capitalism controlled by the immutable laws of societal development (Tunkin [1974] 39). By that time the USSR had considerably enlarged its influence and promoted socialist upheavals in the countries that had come under Soviet dominance after World War II as a consequence of the agreements reached at the Conferences in Yalta and Potsdam (Yalta Conference [1945]; Potsdam Conference [1945]). The USSR also managed to have a strong influence in many developing countries. Peaceful coexistence was based on the ‘balance of terror’ due to the arsenals of nuclear weapons of the two ‘super-powers’, the US, and the USSR.

116  During this period the idea of the universality of international law was revived whereas the theory of the coexistence of three forms of international law was repudiated. Legal concepts such as territorial integrity and sovereignty, non-intervention in domestic jurisdiction, sovereign equality (States, Sovereign Equality), and the principle of mutual non-aggression were accepted as universally valid. Nevertheless, Marxist-Leninist theory continued to influence the understanding of basic concepts of international law. States were classified according to their class structure. Thus the will of the Soviet State was interpreted as the will of the Soviet people whereas the will of capitalist States was seen to represent only the will of the exploiting class. International law was defined as the totality of norms, developed on the basis of agreements between the States (Tunkin [1956]).

117  Tunkin’s idea of one general international law was reversed as a consequence of political events in the late 1950s, the Soviet armed intervention in Hungary, and the pressure on Poland. International law was once more split into two systems. As a reaction to the Soviet invasion of Czechoslovakia in 1968 the so-called Brezhnev doctrine was formulated; arguing that socialist international law protected not only the national sovereignty of the socialist States, but also the interests of the entire socialist camp and the achievements of the working class. Therefore armed intervention vis-à-vis other members of the socialist system was authorized in situations threatening the cohesion of the socialist system. Although socialist countries were granted some independence in managing their internal affairs, they had to accept the leading role of the Communist Party of the Soviet Union in determining the ideological orientation based on Marxism-Leninism. These ideas were first summarized in an article in the newspaper Pravda by Kovalev on 26 September 1968 and later repeated by Brezhnev in a speech at the Fifth Congress of the Polish United Workers’ Party on 13 November 1968.

118  The 1970s once more witnessed a new approach towards international law. The general aim was to break up economic isolation and to opt for a closer co-operation with the West. Parallel to the policy of détente which led to the Helsinki Final Act of 1975 and a number of treaties aiming at normalizing the relations between socialist and capitalist countries, the theory of international law was changed. It was again Tunkin who advanced the new concept based on the unity of the international community in spite of the existence of two camps, the unity of international law as governing the international community at large, and the unity of legal science on international relations. The basic document of this new approach is Tunkin’s book Theory of International Law of 1970 as well as his article ‘Tasks of the Science of International Law in the Light of the Decisions of the XXIV Meeting of the Communist Party’ of 1972.

119  Despite the changes in the doctrine of international law showing a tendency towards bettering the relationship between socialist and capitalist countries, the 1979 invasion of the Soviet army in Afghanistan justified by the request for support of the Afghan Communist Government and the ensuing occupation of the country hit the rock bottom of the Cold War.

(b)  Specific Conceptions of Soviet International Legal Theory

(i)  Concept of Sovereignty

120  From the very beginning the Soviet doctrine of international law defined the concept of ‘sovereignty’ in a classical way and contrasted it with attempts in Western international law theory to change the rigid concept inherited from the 19th century and to narrow its scope. Thus Korovin stressed that Soviet Russia is called upon to be the ‘champion of the doctrine of “classical” sovereignty’. Vyshinsky defined sovereignty as the independence of the State expressed in its right freely and at its own discretion to decide its internal and external affairs without violating the rights of other States, or the principles and rules of international law. A similar definition was given by Tunkin interpreting sovereignty as the supreme power of the State over its territory and its independence in international relations. According to the Brezhnev doctrine, national sovereignty of socialist States was limited on the basis of ‘socialist construction and progress towards communism’. The notion of ‘socialist sovereignty’ thus circumscribed limitations of national independence of socialist countries vis-à-vis the Soviet Union.

(ii)  Concept of Subject of International Law

121  The comprehensive understanding of sovereignty was correlated to the conviction that only States could be subjects of international law whereas individuals and international organizations were categorically excluded. Subjects of international law were thus defined as entities possessing not only rights or obligations arising on the basis of international law, but also able to create such norms and participate in ensuring compliance with them.

(iii)  Concept of State Immunity

122  According to Soviet legal theory States enjoyed absolute immunity in economic relations. This conception had been elaborated by Boguslavsky in his monograph Immunity of the State (1962) and was upheld up to the late 1980s (State Immunity). The principle that one State can never exert jurisdiction over another State was even regarded as part of ius cogens. Any form of ‘functional’ or ‘restricted’ sovereignty was considered as contradictory to basic principles of international law such as the equality of States. A differentiation between acta iure imperii and acta iure gestionis was explicitly rejected. Even if a State entered in a relationship governed by private law the State did not lose its quality as a sovereign.

(iv)  Concept of Sources of International Law

123  The understanding of sources of international law was based on voluntarism. The binding force of international law was exclusively derived from the will of the States. During the revolutionary first period of Soviet legal doctrine the creation of legal norms on the basis of customary law was rejected. Later on, customary law was accepted as a form of tacit agreement. Nevertheless, treaty law was accorded priority over customary law.

124  Despite the voluntarist approach, international principles such as the principle of friendly co-existence of States belonging to different social systems were accepted without proving the consent of the States. Soviet legal doctrine was also open for developments of international law on the basis of UN General Assembly resolutions if accepted by the two opposed systems.

(v)  Concept of Self-Determination

125  The concept of self-determination was central for the Soviet doctrine of international law as it was seen to be closely linked to the idea of class struggle, social liberation, and world revolution. Lenin explicitly referred to the principle of self-determination in his policy of recognition of the independence of non-Russian peoples living on the fringes of the former Russian Empire. The principle was also incorporated in the first Constitution of the RSFSR adopted on 10 July 1918 stressing the:

Soviet policy of denouncing the secret treaties, organizing most extensive fraternization with the workers and peasants of the combatant armies and achieving at all costs by revolutionary means a democratic peace for the working people, without annexations of indemnities on the basis of free self-determination of nations. (Art. 4)

It was repeated in Art. 70 Constitution of the USSR of 1977 explaining the principle of socialist federalism ‘as a result of the free self-determination of nations and the voluntary association of equal Soviet Socialist Republics’.

126  According to Soviet doctrine of international law only peoples of colonial and dependent States were granted the right to resort to armed force against the capitalist metropolitan State suppressing them. However, peoples already living under socialist regimes were denied the right to self-determination. This interpretation allowed for the deportation of whole nations during World War II, the dissolution of their autonomous status, and the grouping of territorial entities in contradiction to ethnic national boundaries (see also Forced Population Transfer). The revolutions in socialist countries (Hungary 1956, Czechoslovakia 1968, Poland 1980) were not understood as struggles for self-determination.

(vi)  Definition of the Relationship between International Law and Internal Law

127  The understanding of the relationship between national and international law was slightly changed during the different periods of Soviet legal theory, although the strictly dualistic approach was never abandoned.

128  Based on the concept of strict national sovereignty, international law and domestic law were considered to be completely separate systems. There was no constitutional rule providing for direct incorporation of international law into Soviet law. International treaties could not be invoked before national courts. It was generally denied that there could be contradictions between international law and the domestic law of socialist countries as socialist law was seen as a reflection of the principles of international law. International treaties contrary to these principles could not be concluded. In case contradictions should arise they had to be solved in favour of domestic law. The ‘bourgeois’ theory of the priority of international law over national law was understood as a means of ‘interfering in internal affairs’.

129  This theoretical approach was slightly changed at the beginning of the 1960s. Although the constitution was not changed, for the first time the dominance of international treaty law over national law was provided for in special clauses in some legal acts. Nevertheless, the Soviet doctrine upheld the dualistic point of view with slight modifications. It was accepted that there could be some interference between national and international law. Therefore theoretically the lex posterior rule could be applied in a conflict between an international treaty and a rule of municipal law. But the impact of international law on domestic law was considered to be only of a technical nature.

(vii)  Concept of International Human Rights

130  Soviet international doctrine in the field of human rights reflected the approach to human rights on the national level. Whereas the first two socialist constitutions of 1918 and 1924 did not contain any coherent codification of human rights, in the so-called Stalin Constitution of 1936 a comprehensive list of human rights was inserted. Economic and social rights prevailed over civil and political rights. Their realization was directly linked to the socialist conception of State and society. Thus rights such as the right to work were mainly ‘ensured by the socialist organization of the national economy, the steady growth of the productive forces of Soviet society, the elimination of the possibility of economic crises, and the abolition of unemployment’ (Art. 118 Constitution of 1936; see also Work, Right to, International Protection). Contrary to the human rights conception inspired by the ideas of the enlightenment, human rights were not considered to be inalienable and inherent to the human person from birth, but were granted by the State. Civil and political rights could only be exercised with the aim of strengthening the socialist system, ie within the State and not against the State. Therefore human rights were intrinsically linked to duties towards the State.

131  Based on the socialist conception of human rights the USSR was reluctant to support the universal human rights movement developing after World War II; in the vote on the Universal Declaration of Human Rights (1948) the USSR, together with the other socialist countries, abstained. The controversy on the priority and legal nature of economic and social rights in comparison to civil and political rights blocked the adoption of binding human rights treaties for almost two decades as the Soviet Union favoured the codification of all human rights within one treaty whereas the Western countries advocated a separate codification. On the basis of the strictly dualist conception of international law the Soviet Union condemned all forms of criticism of national human rights policy as interference in internal affairs.

2.  The New Thinking in the Gorbachev Era and Its Influence on the Doctrine of International Law

(a)  Perestroika and Glasnost

132  The general change in the political system started in the late 1980s after the nomination of Michail Gorbachev as leader of the Communist Party in March 1985. Due to serious economic problems reforms were deemed to be unavoidable. Under the slogans of ‘acceleration’ (uskorenie) and perfection (sovershenstvovanie) it was planned to speed up industrial production and distribution. But soon it became clear that the whole economic, social, and political system of the USSR had to be changed in order to preserve a decent standard of living for the Soviet population and to keep up with the developments in other parts of the world. The reform process initiated by Gorbachev therefore aimed at restructuring the system (perestroika) on the basis of transparency (glasnost), but without abandoning the ideological framework of Marxism-Leninism. It was planned to transform the State-planned economy into a socialist market economy and to democratize the organizational structures and decision-making of the Communist Party of the Soviet Union. But the intrinsic dynamics of the reform process reached out to the political sphere. Soon the reforms initiated by Gorbachev were no longer deemed sufficient. There was a demand for the transformation of the USSR from a one-party dictatorship to a democratic Rechtsstaat (pravovoe gosudarstvo) and from a factual unitarian State to a federal State. The reformers’ ideological recourse to Lenin’s New Economic Policy in the early 1920s was soon replaced by the values of democracy and free market economy. It was understood that the role of the State, of the nation, and particularly of the classes had been over-emphasized, forgetting the human being and humanity (Mullerson [1990] 33).

(b)  Effects of Perestroika and Glasnost on International Law

133  The reform of the domestic legal system was accompanied by fundamental changes in the international legal doctrine. To a certain extent, the diminishing trust in national institutions even fuelled expectations and hopes that international law might be used as a general problem solving mechanism.

134  First outlines of the new conception of international law were visible in the article published by Gorbachev in Pravda and Izvestiya on 17 September 1987 under the title ‘Reality and Guarantees for a Secure World’. It contained a new concept of international security comprising not only military-political, but also economic, ecological, and humanitarian aspects. Gorbachev suggested the creation of new institutions within the UN-system such as a centre for the reduction of the danger of war, a UN tribunal for the examination of acts of international terrorism, and an international space organization. He also supported the enhancement of the role of the ICJ and new efforts of arms reduction. These ideas were officially adopted by the Communist Party at the XIX Congress of the Communist Party and reiterated on 1 December 1988 in Gorbachev’s speech at the Plenary Assembly of the United Nations where he even suggested the unilateral reduction of troops in Europe. The agreement on the withdrawal of the Soviet troops from Afghanistan, concluded in August 1988, proved the sincerity of the proposals.

135  The main thrust of Gorbachev’s new conception was the democratization and humanization of international relations. His point of departure was the identification of the threat of self-destruction either in the holocaust of a nuclear war or in the process of ecological destruction as the two major threats to mankind. In his view, in the struggle of mankind for survival it was necessary to search for what unites socialism and capitalism and not for what divides them. Therefore he advocated the elaboration of an overall legal order in international affairs based on the primacy of international law over politics. His critique of the Soviet doctrine was directed against the divergence between theory and practice as well as against the ideological bias in interpreting international relations exclusively in the light of class struggle.

136  Gorbachev’s advances on the international political stage were immediately echoed in Soviet doctrine of international law. The first basic document of the new conception was the article published by Vereshchetin and Mullerson ‘New Thinking in International Law’.

137  The new approach to international law was also reflected on the national level. International law was understood as a value system that could eventually replace legal norms based on Marxism-Leninism or at least help to find a new orientation for solving the problems in the national legal system. Visible steps in this direction were the allusions to international human rights in the declaration of sovereignty of the RSFSR on 12 June 1990 as well as in the Komitet Konstitutsionnogo Nadzora (Law on Constitutional Supervision in the USSR [adopted 23 December 1989] reprinted in Butler [1991] 185–194) as a new control institution. The first decisions of this Soviet predecessor of a genuine constitutional court show that international human rights were used to fight against legal acts of the so-called administrative command system, but also for declaring as invalid, legal acts of the Soviet republics striving for independence.

(c)  Changes of Basic Concepts

138  The new doctrine of international law was based on the premise of an international community consisting of different States having the same rights and the same position in international law regardless of their social structure. Peaceful coexistence was no longer understood as a means of class struggle in the international arena, but as a universally applicable principle of international law. The conception of socialist internationalism, defining a special relationship between socialist States, as well as the Brezhnev doctrine, was rejected.

139  One of the central points of the new thinking in international law was the acceptance of the primacy of international law over politics. Furthermore the strictly dualist approach to international law started to be discussed and was finally abandoned.

140  The changes in theory led to tangible consequences for the formation of international relations. International adjudication was recognized as an important mechanism for conflict resolution; it was argued that the binding character of the ICJ decisions should be accepted and that the role of international arbitration should be enhanced. Disarmament became a central issue of international politics. The argumentation relied on the principle of reasonable sufficiency for defence purposes instead of the principle of being overarmed.

141  As the interaction between States on the international level was no longer seen as a battle between different systems, but as co-operation for the achievement of common aims, the Soviet Union accepted the idea of an enlargement of the competences of international organizations. Even the transfer of competences was seen as possible, whereas according to the socialist doctrine of international law the formation of supranational structures had been rejected as a violation of international law. Therefore the legal personality of the EU was only accepted with the adoption of a Joint Declaration on the Establishment of Official Relations between the European Economic Community and the Council for Mutual Economic Assistance ([done 25 June 1988] [1988] OJ L157/35; Council for Mutual Economic Assistance [COMECON]).

142  All those changes showed an emerging tendency of moving away from a purely State-centred international law. The major change was to accept a new role of the human being in international relations and to redefine the individual’s relationship to international law (see also Individuals in International Law). The restrictive circle of subjects of international law was opened up and made way for a new conception including any person or entity possessing rights and obligations arising from norms of international law. Contrary to the classical Soviet theory, law-making and enforcement capabilities were no longer required as a precondition for subjects of international law.

143  These changes made it possible for the Soviet Union to accede to international control systems of human rights such as the individual complaint system based on the Optional Protocol to the International Covenant on Civil and Political Rights (see also Human Rights, Individual Communications/Complaints).

144  The changes in the Soviet doctrine of international law paved the way for the peaceful revolutions in the former socialist countries of Central and Eastern Europe as well as for the Unification of Germany (Germany, Unification of) and finally brought about the end of the Cold War.

3.  The Interaction between National and International Law on the Basis of the 1993 Constitution

145  The interaction of national and international law is explicitly regulated in the Constitution of 1993. Art. 15 (4) stipulates:

Generally recognized principles and norms of international law as well as international agreements of the Russian Federation shall be a constituent part of its legal system. If an international agreement of the Russian Federation establishes rules which differ from those stipulated by law the rules of the international agreement shall apply.

This provision shows that—contrary to Soviet legal theory—the approach of the Russian Constitution of 1993 towards international law is based on monism. Ratified international treaties become part of domestic law without any further act of transformation and are directly applicable following their promulgation, unless their application depends on the enactment of a statute. The Russian Constitution of 1993 is generally open to international law. Art. 17 (1) stipulates that the basic rights and liberties shall be recognized and guaranteed ‘according to the generally recognized principles and norms of international law’. Art. 55 (1) clarifies that the ‘enumeration in the Constitution of the Russian Federation of the basic rights and freedoms should not be interpreted as a denial or diminution of other universally recognized human and civil rights and freedoms’. Furthermore, the Constitution of 1993 contains an explicit provision allowing citizens to apply to international judicial bodies. Thus, it is the international dimension of human rights law that is seen to be of special importance. Corresponding provisions are inserted in ordinary laws as well.

146  In defining the position of international law in the hierarchy of norms, the Constitution of 1993 differentiates between international treaty norms and customary law. Whereas the amendments to the RSFSR Constitution of 1978 between 1989 and 1992 had provided for the first time in Russian legal history that generally accepted international norms relating to human rights have supremacy over the laws of the RF and directly give rise to the rights and obligations of citizens of the RF, the Constitution of 1993 provides only for the pre-emption of international treaty law. That is criticized as being unfounded from an international legal perspective, but can be explained by the traditional scepticism of Soviet and Russian international lawyers towards customary law.

147  The Russian Constitutional Court is competent to decide on the conformity of international treaties of the RF to the constitution as long as the treaties are not yet in force. Although international law is not explicitly mentioned as a yardstick to check the constitutionality of laws and other normative acts, it can be referred to in decisions. The Russian Constitutional Court as well as other courts often use international law to confirm their findings.

4.  Re-assessment of Basic Concepts of International Law

(a)  Attitude towards Humanitarian Intervention

148  The 2008 Foreign Policy Concept of the RF clearly condemns the concept of ‘humanitarian intervention’ although the term itself is not used:

Coercive measures with the use of military force in circumvention of the UN Charter and Security Council cannot overcome deep social, economic, ethnic and other differences underlying conflicts, undermines the basic principles of international law and leads to enlargement of conflict space, including in the geopolitical area around Russia. (para II)

This is in line with Russia’s negative reaction to the NATO bombing of Serbia. What was justified as ‘humanitarian intervention’ by NATO was considered to be an outright violation of international law due to the lack of a Security Council resolution. Russia also rejects the newly developed doctrine of a responsibility to protect, although it had accepted the concluding document of the World Summit 2005 (UNGA Res 60/1 ‘2005 World Summit Outcome’ [12 September 2005] GAOR 60th Session Supp 49 vol 1, 3).

149  On the other hand Russia repeatedly stressed that it would provide comprehensive protection of rights and legitimate interests of Russian citizens abroad. This argument was also used in order to justify Russian intervention in the conflict between Georgia and South Ossetia in 2008, as a majority of the South Ossetian population had acquired the Russian citizenship already before the outbreak of violence. Thus it can be argued that according to the Russian conception of international law humanitarian interventions are allowed if they are meant to protect a State’s own citizens in another State. In emergency situations Russia would even accept unilateral actions (Unilateral Acts of States in International Law). It is evident that this policy might cause tensions in the post-Soviet era where—as a historical heritage—a large number of Russian citizens reside in foreign States.

(b)  Concept of Self-Determination

150  Russia’s conception of the right to self-determination and secession shows different facets. On the one hand Russia condemned the recognition of the independence of Kosovo as a violation of international law, ie it did not accept the idea that the principle of self-determination might outweigh the principle of territorial integrity under special circumstances. Russia adopted the position of a persistent objector towards the creation of a new rule of international law. On the other hand Russia referred to the case of Kosovo as a precedent when recognizing the independence of South Ossetia and Abkhazia. Without explicitly using the term ‘right to self-determination’ President Medvedev justified the decrees on the international recognition of Abkhazia and South Ossetia (Ukaz N 1260 Prezidenta Rossijskoi Federacii o priznanii Respubliki Abkhazia; Ukaz N 1261 Prezidenta Rossijskoi Federacii o priznanii Respubliki Juzhnaja Osetija [Decree N 1260 and N 1261 of the RF President on Recognition of the Republic of Abkhazia and the Republic of South Ossetia] [26 August 2008] Rossijskaja Gazeta No 4740 of 29 August 2008) alluding to the ‘freely expressed will of the Ossetian and Abkhaz peoples’.

151  As heritage of Soviet nationality policy the situation of many peoples in the post-Soviet era is comparable to that of the Chechens, the Abkhaz, and the South Ossetian peoples. It will be decisive for peace and security in the region to define a consistent approach to the question of how far the right to self-determination encompasses the right to secession.

F.  Conclusion

152  According to the Foreign Policy Concept of the RF approved by President Medvedev, in 2008 the RF is at the same time ‘the biggest European State with multinational and multiconfessional society and centuries-old history’ (para. IV) and ‘the largest Euro-Asian power’ (para. II) and therefore one of the ‘influential centers in the modern world’ (para. I):

Russia, being a permanent member of the UN Security Council, participant in the G8 and other authoritative international and regional organizations, intergovernmental dialogue and cooperation mechanisms, and as a country possessing a major potential and significant resources in all spheres of human activities, vigorously developing relations with leading states and associations throughout the world and integrating consistently into the world economy and politics, exerts a substantial influence upon the development of a new architecture of international relations (para. II).

It advocates a multi-polar system of international relations reflecting the diversity of the modern world. Thus Russia’s contribution to the formation of modern international law and to the resolution of regional and international conflicts cannot be under-estimated. The ideological divide in the understanding of the basic concepts and the role of international law has been overcome, but Russia’s voice remains a determining factor in the discourse on international law.

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  • COE Parliamentary Assembly ‘Resolution No 1633/2008: The Consequences of the War between Georgia and Russia’ (2 October 2008).
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  • Constitution of the Union of Socialist Soviet Republics (adopted 5 December 1936).
  • Constitution of the Union of Socialist Soviet Republics (adopted 7 October 1977).
  • Declaration on the State Sovereignty of the Russian Soviet Federated Socialist Republic (adopted 12 June 1990) in WE Butler (ed) Collected Legislation of Russia (Oceana Dobbs Ferry) vol 1 (Rel 92-1) 65–67.
  • Decree on the Denunciation of the Treaty on the Formation of the USSR (12 December 1991) in WE Butler (ed) Collected Legislation of Russia (Oceana Dobbs Ferry) vol 1 (Rel 92-1) 83.
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  • Treaty on Delimitation of Jurisdictional Subjects and Powers between Bodies of Public Authority of the Russian Federation and Bodies of Public Authority of the Republic of Tatarstan (done 26 June 2007).
  • Treaty on Delimiting Subjects of Jurisdiction and Powers between Federal Agencies of State Power of the Russian Federation and Agencies of Power of the Sovereign Republics Within the Russian Federation; Treaty on the Delimitation of Subjects of Jurisdiction and Powers between Federal Agencies of State Power of the Russian Federation and Agencies of Power of the Territories, Regions, and Cities of Moscow and St. Petersburg of the Russian Federation; Treaty on the Delimitation of Subjects of Jurisdiction and Powers between Federal Agencies of State Power of the Russian Federation and Agencies of Power of the Autonomous Region and Autonomous National Areas Within the Russian Federation (31 March 1992) in WE Butler and JE Henderson (eds) Russian Legal Texts: The Foundations of a Rule-of-Law State and a Market Economy (Kluwer The Hague 1998) 51–72.
  • Treaty on the Establishment of the Union of Soviet Socialist Republics (30 December 1922) in Institut Prava Akademii Nauk SSSR (ed) Sjezdy Sovetov Sojuza Sovetskich Sotsialisticheskich Respublik. Sbornik Dokumentov vol III 1922–1936 (Institut Gosudarstva i Prava Akademii Nauk SSSR Moscow 1960) 18–22.
  • Treaty of Good-Neighbourliness and Friendly Cooperation between the People’s Republic of China and the Russian Federation (signed and entered into force 16 July 2001) in (2001) 37 China Report 577–84.
  • Treaty between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms (signed 31 July 1991, entered into force 5 December 1994) Treaty Doc No 102–20, 16 UN Disarmament Yearbook, Appendix II 450.
  • Treaty between the United States of America and the Union of Soviet Socialist Republics on the Reduction and Limitation of Strategic Offensive Arms (signed 3 January 1993, not yet entered into force).
  • Ukaz prezidenta Rossijskoi Federacii ob utverzhdenii Vojennoi doktriny Rossijskoi Federacii (Decree of the President of the Russian Federation on the Approval of the Russian Military Doctrine) (21 April 2000) (2000) 17 Sobranie zakonodatel’stva Rossijskoj Federacii Pos 1852.
  • UNSC ‘Comprehensive Proposal for the Kosovo Status Settlement’ in UNSC ‘Letter Dated 26 March 2007 from the Secretary-General Addressed to the President of the Security Council: Addendum’ (26 March 2007) UN Doc S/2007/168/Add.1.