Part I Histories, Ch.13 International Legal Theory in Russia: A Civilizational Perspective, or Can Individuals be Subjects of International Law?
Edited By: Anne Orford, Florian Hoffmann
- Customary international law — General principles of international law — Sources of international law
A Civilizational Perspective, or
Can Individuals be Subjects of International Law?
The civilizational approach to international law has become increasingly popular in scholarship. For example, Onuma Yasuaki from Tokyo has used it for critically analysing the Western-centric historiography of international law, the mainstream doctrine of sources of international law, and the predominant concept of human rights.1 Onuma’s core message is that international law, in order to become truly (p. 258) universal, must do much more than in the past, and today take into account the experiences and values of ‘other’, non-Western civilizations. For example, since China is widely considered to be the rising power in the twenty-first century, scholars and practitioners are increasingly interested in what Chinese approaches to international law are and will be, postulating that these would necessarily be shaped by China’s unique history, culture, and civilization.2
Yet many in the West encounter the civilizational approach to international law with mixed feelings. ‘Civilization’ is a notoriously ambiguous concept and, consequently, scholars often do not agree on how many civilizations there are nowadays.3 In the colonial period and during the time of so-called classical international law, Europe and the West abused the civilizational rhetoric.4 Moreover, the theory of international law has been traditionally preoccupied with ‘states’, not ‘civilizations’. What does it then mean for international law, particularly in the context of the claim regarding its universality, that different civilizations matter or should matter more? Is focusing on the civilizational differences not the opposite of universality and, thus, a step backwards for international law? Throughout centuries, the intellectual culture of international law in the West has been characterized by a powerful universalist ideal associated with natural law. More than that, to the extent that legal positivism aimed at being scientific and followed the self-perceived ideal of progress, it also contained a universal message. Thus, today’s realists might argue that the call for taking other civilizations into account to a greater degree in the context of international law just amounts to a call for the global redistribution of power, this time to the disadvantage of the West.
However, the notion of ‘civilization’ does not need to be used in order to promote it, but also in order to understand the world better. In this chapter I argue that the concept of ‘civilization’, although admittedly an ambiguous and problematic one, may be a useful analytical lens for making sense of international legal theory outside the West. Throughout the last centuries, other non-Western civilizations have struggled with the predominance of the West, and have related and referred to it one way or another. We can therefore presume that this dialogue—and often contest—of civilizations and the ways they have been constructed by political leaders and intellectuals has left its marks on international legal theory as well. David Kennedy has pointed out that international law is ‘different in different places’,5 (p. 259) and my starting point here is that, by analogy, international legal theory may also be that.
Specifically, I will in the following focus on international legal theory in Russia and in the Russian language, broadly sketching an international legal theory in the country from the mid-nineteenth century onwards.6 My claim is not an essentialist one—that Russia ‘is’ a separate civilization—rather, my starting point is, much more cautiously, that the debate about whether it is a distinct civilization and its stances towards the West have deeply influenced international legal theory in the country. Moreover, certain elements of the theory of international law, such as the relationship between the state and the individual in the context of international law may involve choices that can indeed be called ‘civilizational’. For one reason or another, but perhaps also for reasons of cultures, histories, and civilizations differing from each other, scholars outside the West such as in Russia tend to put different emphases in terms of how they construct international law.
2 Russia as Part of ‘the’ (European) Civilization: International Legal Theory during the Late Tsarist Period
Russia’s encounter with international law goes far back in history and is an intriguing subject. Princes of Kiev concluded treaties with Byzantium in at least the tenth century. However, during the Mongol–Tatar Yoke (around 1220–1480), Russia remained separated from the mediaeval European/Catholic respublica Christiana.7 The country was officially included in the European community of nations only as a consequence of the Great Northern War (1700–21) in which Tsar Peter the Great defeated Sweden in the Baltic region. However, during the eighteenth and early nineteenth centuries imperial Russia had a more or less passive attitude to the ius publicum Europaeum and rather than developing its own independent scholarship, merely translated several major European treatises of international law.
(p. 260) Original international legal theory in Russia acquired its momentum only in the second half of the nineteenth century. The name of FF Martens (1845–1909), professor of international law at St Petersburg University is well known in the West,8 as is the fact that Martens was a vocal proponent of the theory that international law applied and could only apply between ‘civilized peoples’ which in his estimation, at least since Peter the Great, included Russia.9 What is not so well known in the West is that Russian international legal theory during the late Tsarist period was altogether much more diverse than the overarching doyen figure of Martens as an individual could be. Vladimir Grabar (Hrabar) (1865–1956)10 and David Levin (1907–90)11 have analysed and compared the works of other Russian international legal theoreticians of that time, such as NM Korkunov (1853–1904), MN Kapustin (1828–99), PE Kazanskyi (1866–1947), LA Kamarovskyi (1846–1912), VP Danevskyi (1858–98), AS Yaschenko (1877–1934), AN Stoyanov (1830–1907), O Eichelmann (1854–1943), and others. One reason why the works of other Russian legal theoreticians beside Martens have not resonated so much in the West is that these scholars published almost exclusively in the Russian language. Some other Russian internationalists of the late Tsarist era, such as M Taube (1869–1961), B Nolde (1876–1948), and A Mandelstam (1869–1949) became slightly more well known in the West because their post-1917 works written in emigration were published in Western European languages.12
Not all international law scholars in Tsarist Russia agreed with the central tenets of the theory of Martens, including his premise that international law was applicable to ‘civilized nations’ only.13 Yet if one ought to generalize, the outlook and orientation of international legal theory in late Tsarist Russia appears ‘European’. The arguments and disagreements between liberals (Martens) and conservatives (for example, Eichelmann or Kazanskyi) were themselves carried out in a liberal and pluralist fashion. Cosmopolitan ideas were widespread and the doubt about the usefulness of state sovereignty nagged many authors at the time.14
(p. 261) In this chapter, I will use the question of whether theorists accepted individuals as subjects of international law (besides states) as a central question for examining how international legal theory has been constructed in Russia throughout different periods. Of course, other similar ‘test questions’ are conceivable—such as the questions of whether international law is truly law or only negligible positive morality, when was international law born (a popular one in the Russian scholarship), how international law and domestic law of a country relate to each other, among many others. However, there is not enough space to review all such (sub-)debates in Russian scholarship here.
The question of who are the subjects of international law is a central question in the theory of international law. At first glance, it may appear relatively unpractical. Ultimately, however, it has a strong influence on how one sees the whole field including such central principles of international law as state sovereignty and human rights. It is not necessary to give a sophisticated definition of the notion of the subject of international law here, except that, typically, it is used to denote the capacity to have rights and obligations under this particular branch of law.
International law can be constructed either via individuals as cosmopolitan (global) law or via states as inter-state law. The representatives of the English School of International Relations have pointed out that the Grotian and Kantian approaches to the international system and international law differ from each other.15 It does make a difference whether one constructs international (or cosmopolitan) law primarily through states or individuals. We can speak of a certain Zeitgeist in terms of what (and who) have been enlisted as subjects of international law in the scholarship. I would even argue that the question ‘are individuals subjects of not?’ is not primarily a matter of proof but of what one prefers to believe in; of what one’s underlying political philosophy of the world is. The answer reflects one’s ideology of international law.
In post-Second World War Europe (on the Western side of the Iron Curtain) and the US, the theoretical position that besides states individuals can also be subjects of international law has gained widespread recognition.16 Altogether, the debate on ‘could individuals also be subjects of international law?’ is currently not a source of major excitement among the theoreticians in the West.17 It is clear that there is no single ‘logical’ answer to the question whether they can be or not. Pragmatically, the main question that most scholars in the West seem to agree with is how to better protect human rights in the framework of international law. In this sense, (p. 262) there is little disagreement and the emphasis on the importance of the protection of human rights continues to be a quasi-consensus in the West. Nevertheless, it is interesting to note that the more conservative position that questions the wisdom of raising individuals to the status of subjects of international law continues to exist in the West as well.18 In this sense, the conservative, state-centric—some would say, classical—approach differs from theories of transnational law or global administrative law, for example, which emphasize transnational networks that all, one way or another, focus on private actors.
It is interesting to note that in contemporary Russia the whole debate has a specific weight and character. Whether individuals and other non-state entities could be formally accepted as subjects of international law seems to have become the major international legal-theoretical debate. It is also evident that this debate is primarily a proxy for a larger debate whether Russia should follow the Western extensive concept of human rights or should remain faithful to its state-centred tradition of governance. In the following, let us look at the historical trajectory and the context of this debate in Russia.
During the Tsarist period, a number of scholars accepted individuals as subjects of international law and even constructed international law as the cosmopolitan law of the whole of humankind, that is, not just the law between sovereign states (governments). Martens, who has otherwise been extremely favourable of human rights and even defined ‘civilization’ in his international law of civilized nations via human rights,19 was in this context not even the most liberal-’progressive’ Russian scholar since while he argued with conviction that international law protected the individual, the latter was in his opinion nevertheless not a subject of international law. Along with Martens, Korkunov and Eichelmann considered states to be the only subjects of international law, but Kazanskyi, Kamarovskyi, and Iashchenko included individuals as well.20
A specific feature of pre-1917 international law scholarship in Russia was that its representatives were almost entirely expelled or escaped from Bolshevik Russia. Baron Michael Taube, the successor of Martens at the international law chair at St Petersburg University, did not hesitate to call Russia’s turn in and after 1917 a civilizational break. In his view other, ‘non-European’ forces had seized power in Russia since 1917.21 Post-1917 Bolshevik Russia also experienced the territorial loss of the Baltic provinces of Estonia, Livonia, and Curonia which had been among the (p. 263) traditional hinterlands of the capital’s St Petersburg’s pro-European elites, including in the field of international law.
3 Key Features of International Legal Theory in the USSR
International legal theory was an important subject matter for the Soviet international law scholarship and a solid number of monographs were published. Marxism-Leninism as an ideology was in itself quite ‘theoretical’ or philosophical and therefore attempts to apply it directly to the context of international legal theory were persistently made in Soviet scholarship.22 In this sense, the Soviet approach to theory differed from Anglo-American pragmatism and orientation to the solution of practical problems of the international community or the concrete state. In 1976, Grigory Tunkin (1906–93) wrote in his diary quite programmatically: ‘We must show our theory of international law’.23 Subjectively, Soviet scholars were convinced that in terms of theory of international law the socialist tradition was superior to the Western one. For example, Tunkin wrote in his diary when lecturing in South Korea in 1993:
I think about the Korean professors. Not strong and from where [sic]. Studied in the United States where the science of international law does not shine. Except for English, they do not know other languages. The teaching of international law has only practical, narrowly practical purposes. They understand very little of theory.24
The Soviet theory of international law has inspired quite interesting academic commentary in the West. Different Western interpretations have been offered on the merits and weaknesses of international legal theory in the USSR. While the German-Baltic school of Ostrecht was highly critical of the Soviet international legal theory and exposed its logical weaknesses and political hypocrisies,25 Anglo-American scholars of the political left have emphasized its positive features, such as (p. 264) the Soviet emancipatory program on self-determination of peoples26 or the USSR’s progressive social legislation which globally influenced the advancement of social and economic rights in the twentieth century.27
Yet the main puzzle for Soviet theory of international law was whether after the Bolshevik revolution in Russia international law could be considered universal or whether it had become regionally fragmented along ideological lines. In the early 1920s, Yevgeni A Korovin (1892–1964) had argued that international law was no longer universal and that the Soviets now had their own international law.28 Later on, this position was rejected in Soviet scholarship (including by Korovin himself) and the existence of universal international law was reaffirmed in principle. Yet at the same time, Soviet scholars continued to promote the concept of ‘socialist international law’ as a specific and privileged regional form of international law applicable between the USSR and socialist states. For example, it was this concept that was meant to justify the Soviet intervention in Czechoslovakia in 1968. Thus, the affirmation of the universality of international law by later Soviet scholars was at best relative; in reality the Soviet theory made a clear distinction between international law applicable between socialist and capitalist countries, and international law applicable between socialist countries. The claim of the universality of international law may have been merely a tactical one since in reality international law and its central concepts were understood quite differently in the West and the USSR.
Altogether, Soviet approaches to international law followed from Soviet approaches to law and world history more generally. One central tenet was that law as such was merely a political means in the class struggle, both within the state and internationally. Law was not at all autonomous from politics, as it was at least theorized by most legal scholars in the West. Thus, along these lines, observers in the West during the Cold War pointed out that the Soviet doctrine of international law closely followed Moscow’s foreign policy. To the extent that Soviet foreign policy changed—from Stalin to Khrushchev, for instance—international legal doctrine changed as well, and instead of the more hostile Korovin, the more conciliatory Tunkin became more prominent. The other central tenet of Soviet approaches to international law was that the Soviets built on Muscovy’s tradition of state-centrism. Compared to the Soviet doctrine, elements in Tsarist-era theories of international law—and this is a paradox because Tsarist Russia was not known as a liberal stronghold in Europe—appeared liberal.
As I have already argued, the debate on whether individuals could be subjects of international law is primarily a proxy debate on what is the correct relationship (p. 265) between the principles of state sovereignty and human rights. In the context of subjects of international law, Soviet theoreticians strongly opposed the idea that individuals (or, worse, transnational corporations) could be subjects of international law. For example, David I Fel’dman (1922–94) from Kazan State University argued in 1971 that Western attempts to make individuals subjects of international law were ideologically nourished by rejections of state sovereignty and an erroneous understanding of domestic and international law as being intertwined or even ‘one’.29 In the same work, Fel’dman emphasized: ‘Socialist theory of international law rejects the concept of individuals being subjects of international law.’30 Even in a study dedicated to Immanuel Kant’s influence on international legal theory, Fel’dman concluded that Western adherents of natural law theory misrepresented the relationship between state sovereignty and human rights—according to the Soviet theory, human rights were to be protected within the state only and could not pierce the veil of state sovereignty.31 Fel’dman repeated this position in a later collective monograph written by Kazan University scholars.32 David B Levin (1907–90) concluded in 1974 that individuals could not be subjects of international law.33 Levin held that with the help of this theory, Western scholars attempted to undermine state sovereignty and propagated their ‘reactionary’ idea of the transformation of international law into supranational world law.34
The economic and political crisis in the USSR brought along Gorbachev’s perestroika and a ‘wind of change’, including new thinking along humanist lines on what the relationship between the state and the individual should be. During the last years of the perestroika period, the leading Soviet international law scholars published another edition of the prestigious seven-volume course on international law.35 While in the first volume, the rest of the chapters on the subjects of international law volume was written by NA Ushakov (1918–2001), the younger scholar Rein Müllerson (1944) received the task of writing the section on individuals as potential subjects of international law. What Müllerson wrote in 1989, in the liberal tradition of Martens, must have sounded a little like an ideological earthquake in Soviet international law theory:
Categorical denial of international legal subjectivity of the individual in Soviet international legal literature is to a certain extent connected to the étatist approach to international law and relations, aggrandizement of the role and meaning of the state not only (p. 266) inside society but also in the international arena. A new political thinking, placing at the centre of our concerns the human being and demanding the humanization of international relations, recognizes the active role of the individual in the determination and protection of its rights and liberties . . . Consequently, the breadth of international legal subjectivity of the individual expands.36
Yet already in the second volume of the course, dedicated to the general principles of international law, Anatoli P Movchan (1928–98) wrote about the principle of the protection of human rights in a way that would have been hardly comprehensible in the West. According to Movchan, human rights were not directly applicable and yet their very existence in international law was very much owed to the efforts of the USSR, and so on.37 In earlier Soviet literature, too, human rights was treated as merely one of a number of central principles of international law, almost in passing, and in importance very much ‘behind’ other principles related to state sovereignty and non-intervention.38 However, the very possibility that individuals could also be recognized as subjects of international law, as indicated by Müllerson, VS Vereshchetin (1932), and some others during the perestroika period,39 constituted a potential break from Soviet theoretical thinking and in some ways a return to the pre-1917 tradition and debates in Russia.
4 International Legal Theory in Post-Soviet Russia
During the second biannual conference of the European Society of International Law in Paris in 2006, Professor Yuri M Kolosov (1934–2015) from Moscow’s MGIMO University was asked during the question and answer session of his panel what in Russian scholarship of international law had changed since the collapse of the USSR in 1991.40 Kolosov gave his answer along the lines that if you took (p. 267) the Marxism-Leninism away from Soviet theory, the main features of international legal theory and doctrine in the Russian Federation remained essentially the same as it was in the USSR: legal positivism and an emphasis on state sovereignty. Positivism as opposed to natural law and state-centrism as opposed to individual-centrism remained the continuous threads from the Tsarist period up until the post-Soviet period. Apparently, this has been connected with the historical strength of statehood in Russia and with the prevalence of the authoritarian model of governance.41 With some remarkable liberal exceptions during the Tsarist period, the Russian tradition has tended to be Hegelian rather than Kantian. Notwithstanding the views of Martens and some other liberal theoreticians during the Tsarist period, state practice in Russia has certainly been étatist and Hegelian rather than Kantian.
One can see at least as many continuities as breaks in Soviet and Russian international legal theory over the last half-century. After the collapse of the USSR, the Soviet Association of International Law, established in 1957, was named Russian Association of International Law and continues to publish its yearbooks and hold annual meetings in Moscow.42 In the post-Soviet period, leading Soviet international law scholars such as Evgeny T Usenko (1918–2010), Igor I Lukashuk (1926–2007), and Stanislav V Chernichenko (1935) continued publishing on international legal theory. One difference, however, is that after the collapse of the USSR, some formerly leading Soviet international law scholars (for example the Georgian Levan Aleksidze (1926)43 and the Estonian Rein Müllerson44) ended up living and working outside the ‘russkyi mir’. At the same time, some noteworthy younger authors outside Russia such as in the independent Ukraine have published on international legal theory in the Russian language also during the post-Soviet period.45
Kolosov’s point would indicate that since old ideological divisions have disappeared, an approximation between Western and Russian international legal theory has taken place. Does it then mean that Western mainstream and Russian scholars nowadays share the view that individuals could also be subjects of international law? As I already indicated, in contemporary Russia there is an active debate about the interrelationship between state sovereignty and human rights. In (p. 268) terms of the subject status of individuals, the balance has certainly moved towards the Western position. Yet it has not reached that and it seems that compared to the perestroika era moment of liberal awakening, state-centric conservatives have regained their positions.
During the early days of the independent statehood of the Russian Federation, Vladimir A Kartashkin (1934), currently professor at the Peoples’ Friendship University in Moscow, argued in favour of the view that the individual has become subject of international law.46 Yet this position was soon refuted by Lukashuk, the then Russian member of the International Law Commission (ILC) and the unofficial doyen of the country’s scholarly community at the time who argued that recognizing the individual as a subject of international law would not be the best way to protect its interests.47
Furthermore, Chernichenko, one of the most prominent international legal theoreticians in post-Soviet Russia, made it one of his main concerns that individuals could not be subjects of international law. His persistent rejection of the possibility that individuals could be (or could become) subjects of international law, besides states, occasionally resembles an ideological crusade (or, as he himself would probably argue, legitimate self-defence in the face of liberal/Western agitation).48 He connects the doctrinal position that individuals can be subjects of international law with the theory of monism, considers it unfounded and fights against its resurgence in the Russian doctrine, in particular among younger colleagues in legal academia.49 On the one hand, the scholarly exchange seems highly formalized and ritualized; at the surface, the conversation is merely about the correctness of the theoretical positions, particularly in terms of formal logic. However, in substantive and existential terms, it is as if Chernichenko is trying to say in his writings: ‘the individual as a subject of international law is a liberal Western conspiracy, I have seen through it, and I for one will not surrender my original position.’ In this way, Chernichenko is also ensuring the continuity of his Soviet-era views which rejected the possibility that the individual could be a subject of international law.50 In any case, it is the very opposite of what, for example, Thomas M Franck (1931–2009) (p. 269) tried to do in the 1990s—to empower the human being, also via international law.51 Similarly, Usenko has emphasized the link between the question of who could be a subject of international law and the question of whether international law and domestic law were different or ‘same’ fields of law. Western scholars would unnecessarily blur the line between international and domestic law—in reality, according to Usenko, individuals cannot be subjects of international law.52
Yet it would not be correct to say that the rejection of individuals as subjects of international law is exclusively a matter of different generations in Russia; all older scholars who matured during the Soviet era rejected this idea after the collapse of the USSR as well. For example, Gennady V Ignatenko (1927–2012) from Yekaterinburg propagated a favourable attitude towards the idea that individuals would be subjects of international law—the question, according to him, was no longer ‘whether individuals were subjects but to what extent’.53 According to Ignatenko’s and Oleg I Tiunov’s (1937) textbook, the expansion of the subjects of international law was connected with the spread of democratic principles in contemporary society.54 Since there is a tradition of collective textbooks in Russia and the authors sometimes even overlap with other textbooks, Ignatenko familiarized his Russian readers with the idea of individuals as subjects of international law elsewhere as well.55
Furthermore, the textbook compiled at Kazan State University in Tatarstan postulates that individuals can be subjects of international law, albeit in a limited manner.56 Yet some contemporary Russian textbook authors, such as Pavel Biryukov (1966) from Voronezh State University, are not yet quite sure whether individuals could be counted as subjects of international law.57 On the other hand, it is interesting to note that the textbooks of Russia’s grandes écoles of international law in Moscow, MGIMO and Diplomatic Academy, are both lukewarm towards the idea that individuals might be subjects of international law along with states.58 They adhere to the conservative tradition which constructs international law mainly via the states. Similarly, a textbook compiled by a group of scholars from Moscow and edited by Gennady M Melkov (1932), (p. 270) mentions quite thoroughly all conceivable pro and contra arguments in the debate about whether individuals could be subjects of international law, and comes to the conclusion that individuals, transnational corporations, and non-governmental organizations cannot be subjects of international law.59 In an article in an edited volume, Insur Z Farkhutdinov (1956) comes to the conclusion that only states can be full subjects of international law which is particularly fascinating because he uses private person-driven international economic law as the main example.60 Elsewhere, Farkhutdinov depicts how globalization and the flow of capital over borders in the form of investments can become a challenge for state sovereignty, and yet state sovereignty must remain the central principle in international law.61
The other side of the question of whether individuals could be recognized as subjects of international law is the attitude towards state sovereignty. During the post-Soviet period, the principle of state sovereignty received abundant attention in Russian scholarship. Aleksei A Moiseev (1971), international law scholar from Moscow’s Diplomatic Academy, has taken a quite conservative, even absolutist-Hegelian, take on state sovereignty.62 The problem of state sovereignty has been studied from the angle of political science,63 conservative philosophy,64 and even with reference to Orthodox writers and practices, that is, theology.65 Probably the most influential recent book on sovereignty has been a collection of speeches and essays of politicians and experts, reflecting the thinking of the current political elite around President VV Putin and Prime Minister DA Medvedev.66 This book, edited by Nikita Garadzha, lays out in a clear political language why the principle of state sovereignty remains a central one for Russia. For example, in his annual speech to the Federal Assembly, President Putin declared in 2002:
All our historical experience testifies: such a country as Russia may live and develop in the existing borders only if it is a powerful state [derzhava] . . . I would like to (p. 271) remind you: throughout its history, Russia and its citizens have been carrying out a truly heroic deed. Heroic deeds in the name of the territorial integrity of the country, in the name of stable life within it. Maintenance of the state in a vast space, preservation of the unique community of peoples while keeping strong positions of the country in the world—this is not only enormous work. These are also huge sacrifices and deprivations for our people.67
Perhaps then it is fair to conclude and admit that certain civil rights have been part of this deprivation in most historical periods in Russia. President Putin constructs the territorial integrity and historical grandness of Russia as a highest value to which other values, such as, tacitly, human rights and liberty, must subordinate themselves. Individuals and non-governmental organizations (NGOs), on the other hand, may have an undetermined relationship to the territorial integrity of Russia. In the same volume, Vladislav Surkov (1964), the then ideologist of the Putin administration, even complains that at some Russian universities, there are no longer ‘teachers’ but rather NGO representatives supported by foreign grants.68 The Russian Federation continues to be, even after the collapse of the USSR, by far the largest country territorially on Earth. That control over land and space would continue to be existentially important for Russia can already deduced from the fact that Russia’s economic development largely depends on natural resources that are extracted from its vast territory. Compared to the West, Russia may be a ‘peripheral’ empire, as Boris Kagarlitski (1958) has argued,69 but it has been an empire nevertheless.
In this sense, the debate about in which relationship the state and the individual should live—and whether individuals should be recognized as subjects of international law—are not merely theoretical exercises, Glasperlenspiele. Indeed, this theoretical debate seems to be a confirmation of the old adage, sometimes attributed to Kant, that nothing is more practical than a good theory. Russia’s survival as an independent power and its strength and greatness is the continuous political axiom; everything else, including the direction of international legal theory, seems to follow from this premise. In the contemporary Russian context, the doctrinal position that individuals are ‘below’ the state, in its effects if not in intentions, ends up justifying why the questionable practices that we can read about almost monthly in newspapers, are not really that bad or in any case not so much the business of international law. The reverse is true as well: those scholars who seem to be dissatisfied with the situation of human rights demand more and (p. 272) more vocally that the individual’s status as subject of international law be recognized in the doctrine.70
5 The Impact of Civilizational Thinking on Contemporary Russian Theory of International Law
One interesting phenomenon in contemporary Russia is that the rigid Soviet division of ‘bourgeois’ and ‘socialist’ authors in scholarship has been transformed into a division between ‘native’ (that is, Russian; otechestvennyi) and ‘foreign’ or ‘Western’ international legal theory and doctrine. For example, this conceptual dividing line is still pervasive in most textbooks of international law and appears in a recent monograph on international legal theory by EV Safronova from Belgorod State University.71 Foreign and Russian authorities on international law and legal theory are clearly distinguishable and the latter are usually given special visibility in the Russian scholarly literature.72 It is as if Russian scholarship of international legal theory would be trying to solve riddles that are not universal but primarily or at least simultaneously ‘Russian’. While it is possible to see in this tendency a certain intellectual parochialism (and sometimes it is, especially when Western authors are quoted through third sources as in Safronova’s otherwise interesting treatise), it can also be a hallmark of intellectual cultures in major powers insisting on ‘independence’, also in a cognitive sense. Such states and academic cultures tend to be self-centric and self-referential; they subjectively feel that intellectually they have already ‘got it all’ and do not need to refer to or ‘borrow’ much from the others who, through their otherness, also happen to appear less trustworthy.
Such a phenomenon may have deeper historical, cultural, and even theological roots than contemporary international lawyers themselves might realize. For example, the Moscow scholar of semiotics Boris Uspenski has demonstrated the important role Old Slavonic language historically played in Orthodox thinking in Russia.73 (p. 273) Truthful content and correct language could not be separated from each other; the Old Slavonic language served as an icon of Orthodoxy.74 Other languages were associated with other religious traditions; for example Latin symbolized Catholicism and was at least in sixteenth-century Muscovy seen as dirty, compromised, and heretical.75 Does the contemporary Russian scholarly practice of neatly distinguishing between the ‘native’ and the ‘foreign’ scholars of international law still echo these distant times in Europe, including Eastern Europe, when religion determined right and wrong? Are contemporary international legal theoreticians direct successors of medieval scholars and monks trying to prove the correct way of understanding God?
Oscar Schachter from Columbia University wrote in 1977 that the professional community of international lawyers
. . . though dispersed throughout the world and engaged in diverse occupations, constitutes a kind of invisible college dedicated to a common intellectual enterprise. As in the case of other disciplines, its members are engaged in a continuous process of communication and collaboration.76
Schachter’s image of the ‘invisible college’ has proven to be a very popular one. However, based on the Russian self-referential practice (which, however, Russians could object, is not very different from scholarly practices in the field of international law in the US), are international lawyers globally really all in the same college or temple? Perhaps instead there are a number of fragmented colleges, epistemic communities, each speaking a different language or at least a dialect of the same language, and thinking they are ‘predominant’ while being relatively ignorant about the others? Each of such temples seems to have its own leading authorities and hierarchies and a result is that the way international law is talked about has different accents—or even content—in places like New York and Moscow.
The collapse of Communism in Russia triggered hopes and optimistic predictions that the country would ‘return to’ Europe—including in relation to legal theory which in the West, and after Germany fully joined the West, is nowadays dominated by liberal thought. This did not happen or happened only insufficiently, and the increasingly visible argument in Russian legal theory for explaining this is the uniqueness of ‘civilization’. As the argument goes, Russia has a right to its own viewpoint and interpretation—also in the context of international law—since it is not the same as the West. Authors arguing for this view point out that Russia might be a different civilization after all, and international law should take the uniqueness of civilizations into account.77 Civilizational method has also become popular (p. 274) in the comparative study of politics.78 One does not necessarily need to look for logical consistency in these new approaches, at least when politicians start solving these riddles—for example Surkov has postulated somewhat puzzlingly that ‘Russia civilization belongs to European civilization’.79 On the one hand, contemporary Russia tries to be European and on the other hand, it rejects the ‘false’ (too liberal) Europe in the sense that Russia’s civilizational rhetoric ultimately becomes a camouflage for the rejection of liberal values and practices in Europe. This connection between arguing for a unique Russian ‘civilization’ and the rejection of liberal values is very visible in the sophisticated attack on the Western concept of human rights that has recently been undertaken by Patriarch Kirill of the Russian Orthodox Church.80
‘Civilization’ has made it into international legal theoretical analysis in Russia. EV Safronova argues in her recent monograph that the differences between the West and the rest, apparently including contemporary Russia, cannot be simply thought away with reference to opposing geopolitical interests. Safronova argues that civilizational differences explain why some favour state sovereignty to human rights and vice versa:
Values that have primary importance in European and American (Anglo-Saxon) civilization, are far less important for other peoples. Thus many Western ideas such as individualism, liberalism, democracy, separation of Church and state, and so on are not reflected in Orthodox, Muslim, Buddhist and Confucian cultures. The nature of the categories of ‘freedom’, ‘justice’ and ‘equality’ is understood differently. . . . Different civilizations, for example, do not reject human rights or human freedom, but understand and evaluate it differently . . . Unfortunately, current legal standardization takes place based on West European legal culture.81
Furthermore, Safronova argues that of all the general principles of international law, the West has been trying to raise the status of the protection of human rights at the cost of other main principles such as state sovereignty, a move which has been particularly visible in the context of humanitarian interventions such as in Kosovo in 1999.82 In the human rights literature too, theoreticians such as Elena A Lukasheva from the Institute of State and Law of the Russian Academy of Sciences, have attempted to explain differences between the West and Russia through civilizational factors.83 However, for Lukasheva these factors do not necessarily speak in (p. 275) favour of Russia but rather explain its backwardness compared to the West in the sphere of human rights.84
The debate about the interrelationship between the state and the individual, of which the question of whether individuals can be subjects of international law forms a part, is not unique to Russia. A similar chapter could probably be written on different views on international law in the US85 and probably elsewhere in major countries, not to speak of the evolution of international legal theory in a certain country within different time periods. Each time period has to tell where the balancing point between different principles of international law lies.
Yet one thing that has come out of this chapter is that the current ‘point of balance’ in Russia is somewhere elsewhere than in the West. For historical, ideological, and other reasons, Russia is now having the debate—or rather, a silent and rapid theoretical transition—that the West had after the Second World War. In this sense, there is a certain time-lag between Eastern Europe (Russia) and the West that may even indeed have civilizational dimensions. It is likely that when leaders of major powers and power blocs meet and the argument of ‘international law’ comes up between them, international law partly means ‘different things to different people’. International law scholarship should not overestimate these regional differences or make them out as more significant than they are, but it seems no more viable to think, under the disguise of universality of international law, that the rest of the world understands international law—or must understand it—in the same way as the West. Human history—and the history of international law and international legal thought—can be written as a centripetal search for unity and universality, but simultaneously also as a centrifugal pull of powerful regional and cultural differences. To the extent that the centrifugal forces remain active, international law will have to integrate regional fragmentation, and universal organizations such as the United Nations will continue to represent primarily the lowest common denominator between the states, regions, and ‘civilizations’ of the world.(p. 276)
* Research and writing of this chapter has been supported by grants of the European Research Council and the Estonian Research Council (IUT 20–50). All translations are by the author unless otherwise noted.
3 For classic historical and political texts on civilizations, see eg A Toynbee, A Study of History (Barnes & Noble New York 1995); SP Huntington, The Clash of Civilizations and the Remaking of World Order (Simon & Schuster New York 1996).
4 See eg M Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (CUP Cambridge 2001); A Anghie, Imperialism, Sovereignty, and the Making of International Law (CUP Cambridge 2004).
7 M de Taube, ‘Études sur le développement historique du droit international dans l’Europe orientale’ (1926) 11 Recueil des Cours 341–535. See further L Mälksoo, ‘Russia–Europe’ in B Fassbender and A Peters (eds), The Oxford Handbook on the History of International Law (OUP Oxford 2012) 764–86.
8 See VV Pustogarov, Our Martens: FF Martens, International Lawyer and Architect of Peace (WE Butler ed and trans) (Kluwer Law International The Hague 2000); the symposium on Martens, ‘The European Tradition in International Law: FF Martens’ (2014) 25(3) European Journal of International Law 811–91.
13 Nauka mezhdunarodnoga prava v Rossii v kontse XIX i nachale XX v (n 11) 86.
17 However, see MC Kettemann, The Future of Individuals in International Law: Lessons from International Internet Law (Eleven International Publishing The Hague 2013); A Peters, Jenseits der Menschenrechte. Die Rechtsstellung des Individuums im Völkerrecht (Mohr Siebeck Tübingen 2014).
19 FF Martens, Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov (2 vols Yuridicheskii Kolledzh MGU Moscow 1996 ) vol 1, at 8–9 (from the foreword of Martens to the first edition in 1882; interestingly, this part was not printed in the German edition, referred to at n 9).
20 Nauka mezhdunarodnoga prava v Rossii v kontse XIX i nachale XX v (n 11) 48.
22 DB Levin, Mezhdunarodnoe pravo, vneshnyaya politika i diplomatia (Mezhdunarodnye otnoshenia Moscow 1981); YY Baskin and DI Fel’dman, Mezhdunarodnoe pravo. Problemy metodologii (Mezhdunarodnye otnoshenia Moscow 1971).
24 Ibid 137.
28 EA Korovin, Das Völkerrecht der Übergangszeit. Grundlagen der völkerrechtlichen Beziehungen der Union der Sowjetrepubliken (Stilke Berlin 1929) at vii, 7–8. The original Russian edition was published in 1923.
34 Ibid 54, 79.
40 Kolosov’s written remarks at this conference are printed in: H Ruiz Fabri, E Jouannet, and V Tomkiewicz (eds), Select Proceedings of the European Society of International Law (Hart Oxford 2008) 165–8.
42 See International Law Association Russian Branch, <http://www.ilarb.ru/> [accessed 23 February 2016] and SV Bakhin (ed), Rossiiskaya Assotsiatsia Mezhdunarodnoga Prava 1957–2007. Biograficheskii slovar’ (St Petersburg State University St Petersburg 2007).
45 AA Merezhko, Nauka politiki mezhdunarodnoga prava: istoki i perspektivy (Iustinian Kiev 2009); AA Merezhko, Istoria mezhdunarodno-pravovykh uchenii (Takson Kiev 2006); AA Merezhko, Vvedenie v filosofiu mezhdunarodnoga prava (Iustinian Kiev 2002).
48 SV Chernichenko, Teoria mezhdunarodnoga prava (NIMP Moscow 1999) vol 1, at 113ff; SV Chernichenko, ‘Eshe raz o mezhdunarodnoi pravosub’ektnosti individov’ (2005) 4 Moskovskii zhurnal mezhdunarodnoga prava 11–26.
49 SV Chernichenko, Ocherki po filosofii i mezhdunarodnomu pravu (Nauchnayakniga Moscow 2009) at 651; SV Chernichenko, ‘Vopros o sootnoshenii mezhdunarodnoga i vnutrigosudarstvennogo prava kak pravovykh sistem (razmyshlenia po povodu nekotorykh knig kolleg)’ in SV Bakhin (ed), Mezhdunarodnye otnoshenia i pravo: vzglyad v XXI vek (St Petersburg State University Press St Petersburg 2009) 52–89.
54 Ibid 66.
55 See eg GV Ignatenko in VI Kuznetsov and BR Tuzmukhamedov (eds), Mezhdunarodnoe pravo (2nd edn Norma Moscow 2007) at 74. For his collected essays, see GV Ignatenko, Mezhdunarodnoe pravo i vnutrigosudarstvennoe pravo: problemy sopryazhannosti i vzaimodeistvia (Norma Moscow 2012).
60 IZ Farkhutdinov, ‘Mezhdunarodnaya pravosubyektnost’ v XXI veke: problemy i tendentsii’ in S Bakhin (ed), Mezhdunarodnye otnoshenia i pravo: vzglyad v XXI vek (St Petersburg State University St Petersburg 2009) 198–214, at 209–10.
61 IZ Farkhutdinov, ‘Suverenitet gosudarstva i mezhdunarodnoe pravo: vyzovy globalizatsii’ in AG Lisitsyn-Svetlanov (ed), Novye vyzovy i mezhdunarodnoe pravo (RAN Institut gosudarsvta i prava Moscow 2010) 53–66.
65 AV Sitnikov, Pravoslavie, instituty vlasti i grazhdanskogo obshestva v Rossii (Aleteia St Petersburg 2012); YE Svechinskaya, Imperskaya ideologia v Rossiiskoi gosudarstvenno-pravovoi mysli (Yurlitinform Moscow 2011).
67 VV Putin speech on 18 April 2012, quoted in ibid 21.
68 Suverenitet (n 66) 72. See further L Mälksoo, ‘Contemporary Russian Perspectives on Non-State Actors: Fear of the Loss of State Sovereignty’ in J d’Aspremont (ed), Participants in the International Legal System: Multiple Perspectives on Non-State Actors in International Law (Routledge London 2011) 126–38.
70 See TD Matveeva, ‘Evoliutsia doktriny mezhdunarodnoi pravosub’ektnosti’  Rossiiskiy ezhegodnik mezhdunarodnoga prava 27–42, at 33; TD Matveeva, ‘Chelovek i mezhdunarodnoe pravo (k voprosu o mezhdunarodnoi pravo sub’ektnosti individa’  Rossiiskiy ezhegodnik mezhdunarodnoga prava 52–67.
74 Vene kultuuri jõujooni (n 73) 310.
75 Ibid 311–15.
77 See EL Sadykova, ‘Mezhtsivilizatsionnyi dialog kak institut sistemy mezhdunarodnykh otnoshenii’ in AA Moiseev (ed), Vestnik Diplomaticheskoi Akademii MID Rossii. Mezhdunarodnoe pravo (Diplomaticheskaja Akademia Moscow 2013) 248–57.
79 V Surkov, Suverenitet—eto politicheskii sinonim konkurentosposobnosti in Suverenitet (n 66) 43f.
81 Mezhdunarodnoe publichnoe pravo (n 71) 42–3.
82 Ibid 115–16.
84 Chelovek, pravo, tsivilizatsii (n 83).