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Russia’s Global Legal Trajectories: International Law in Eurasia’s Past and Present

By Lisa J Walters, on 29 May 2018

Review by Julia Klimova, PhD candidate at UCL SSEES.

On 16 and 17 of February 2018, School of Slavonic and East European Studies (SSEES) at UCL hosted an international workshop on “Russia’s Global Legal Trajectories: International Law in Eurasia’s Past and Present”. Organized by Dr. Philippa Hetherington with generous support of the British Academy for Arts and Sciences and Pushkin House, the workshop was dedicated to the history of legal issues in Russia from the Russian Empire, Soviet Union and Russian Federation. The workshop lasted for two days and consisted of 6 panels and the total of 14 speakers. It united historians with legal scholars, which provided a rich basis for discussions of issues of legality at various points in Russian history.

Since the panels were arranged in chronological order, the first two panels were concerning legal issues of the Russian Empire, followed by three dedicated to the Soviet Union, and the final one focusing on Russian Federation. In the opening panel Tatiana Borisova (Higher School of Economics) presented a paper directly addressing the topic of the workshop. She examined broader Russian legal trajectories and came to the conclusion that the interpretation of law is a sensitive issue in Russia, since the legal system developed within a local administrative apparatus. Gregory Afinogenov (Georgetown University) discussed the legality of Russia’s annexation of the Amur region in 1850-1860. He stressed the incoherence of the standard of legality around this issue and noted that some Russian scholars have interpreted this annexation as a legitimate unification of supposedly ‘inherently Russian’ territories. These scholars thus presented what was arguably an act of imperial annexation as in line with peaceful co-existence with China, based on their reading of the long history of Russia-China relations. Afinogenov’s presentation was followed by Julia Leikin (University of Exeter), who examined international Maritime Laws and the Russian Empire in the 19th century. In particular, Leikin explored the ways in which Russian jurists reacted to the introduction to the 1780 Declaration of Armed Neutrality, and the international legal innovation that resulted in early nineteenth century interpretation and reinterpretation of this moment.

The next panel addressed questions of Just war: Jus ad bellum/Jus in bello. Peter Holquist (University of Pennsylvania) approached this topic with a case study of Brussels conference in 1874, where Fedor Martens represented the Russian Empire in the international attempt to codify the laws of war. Legal scholars were seen as increasingly necessary participants in peace conferences at this time. As Holquist demonstrated, the nineteenth-century conventions regarding the laws of war that resulted from these conferences were thus not merely objects of great power competition, but also sites of real intellectual and legal debate and innovation. Lauri Mälksoo (Tartu University) discussed the tension between the Balance of Power and Just War theory as they have manifested in international legal thought, and asked if the existence of one preempts the other. He looked in particular at the history of Russian attitudes to Just War theory, which held that a true sovereign does not need to justify his actions, which inevitably led Russia to turn towards the Balance of Power option. Both panelists agreed that different nations had different impressions of international law, and that it is important to explore the national particularities of international legal traditions.

The third panel, concerning property rights, was dedicated to the legal history of the Soviet Union. Kristy Ironside (McGill University) presented an interesting study of copyright laws in the USSR in 1917-1962. Until the 1960s, the Soviet Union refused to sign the Universal Copyright Convention of 1952, only committing itself to bilateral agreements with France and Great Britain. This allowed them to neglect to pay royalties to foreign writers, while Soviet writers were protected and supported by the state. Her presentation was followed by Scott Newton (SOAS), who reflected on the subject of Soviet internationality, finding parallels between the Soviet federal microcosm and the Western international project. He argued that, although the importance of Soviet Federalism may be dismissed on the legislative and executive level as all republics were under control of CPSU, its cultural and institutionalist value should not be discarded, as it led to the standardization of republics, which Soviet leaders saw as a stepping stone to a World Union of Soviet Socialist Republics.

In the end of the first day of the conference, three panelists (Philippa Hetherington, Gregory Afinogenov and Tatiana Borisova) also shared their thoughts on Russia as the maker and breaker of International Law on a public forum at Pushkin House, which provided a wonderful opportunity to engage with wider non-academic public on the debate.

The second day of the workshop consisted of another three panels, two of which were devoted to the Soviet Union, while the last one analysed legal issues in the Russian Federation.

In a panel dedicated to Sovereignty, Bill Bowring (Birkbeck, University of London) shared his perspective on the first Soviet constitutions and their impact on international law from perspective of a lawyer. He analyzed Lenin’s first Soviet constitution and argued that it is criticized in contemporary Russia because Lenin stressed local governance in republics and voluntary basis for membership in the Soviet Union. Philippa Hetherington, the organizer of the conference, asked whether a “formal” approach to international law can be helpful in analyzing the relationship between legal theory and practice in a Soviet context. She represented this with a case-study of Soviet role in the UN anti-trafficking convention on 1947-1954, where the Soviets, by claiming to have eradicated prostitution under socialism, asserted a moral high ground and linked contestations over the international limits of commercial sex to debates regarding colonialism, decolonization, and the rights of non-self-governing territories.

The following, penultimate panel was devoted to the theme of Soviet Law and New Global Justice. Valentyna Polunina (University of Heidelberg) and Franziska Exeler (Freie Universität/Cambridge University) both discussed the Soviet Union’s role in post-World War II war crimes trials. The panelists agreed that the Soviet Union played a key role in organizing and running the trials. Polunina argued that the Soviets started to collect evidence of Nazi war crimes and form ideas of persecutions already before the end of the war, and later successfully influenced the Allies in the war crime tribunals were organized. Exeler examined the Soviet Union’s involvement in war crime tribunals both domestically and internationally, arguing that the Soviet Union helped to revolutionize international criminal law by pushing for creation of the international tribunal for the Nazi leaders and contributing to IMT’s legal framework, as well as holding Nazi soldiers legally accountable for wartime conduct. The panel considered a normative versus a constructivist approach to Soviet legal history, and asked if the subject can benefit from a normative approach.

The final panel considered various contemporary Russian legal issues, as examined by legal studies scholars. Marianna Muravyeva (Moscow Higher School of Economics/ Tampere) opened up the discussion with a paper on gender, human rights and national responses to austerity in Russia. She argued that conservative policy and “traditional values” discourses were introduced so successfully because Russia has not yet developed a consistent neoliberal agenda. Yet, Muravyeva came to an optimistic conclusion, noting that even under growing state pressure and public resistance, NGOs still manage to operate in Russia aiming at those groups whose needs are not addressed by the state policy. Devika Hovell (LSE) analyzed the role of ideology and international law in international security council, while Vladislav Starzhenetsky (Moscow Higher School of Economics) discussed the Russian approach to Jurisdictional immunities of foreign states. Hovell’s paper questioned the centrality of the balance of power, echoing Lauri Mälksoo’s paper in the second panel. She aimed to explore the relationship between law and power in the Security Council setting, ultimately asking if the Security Council is replacing international law and if international lawyers are attempting to solve questions that the balance of power system cannot account for. Starzhenetsky concluded the panel by analysing the reasons why Russia adopted the new law “On Jurisdictional Immunities of Foreign State and its Property in the Russian Federation” in 2015, which provided instances where foreign States may be sued in Russia and may not invoke State immunity, arguing that the law was adopted with a delay.

The panels were then followed by a roundtable and group discussion. Lauri Mälksoo (Tartu University) concluded that scholars should aim to treat international law as all-encompassing, without making provision for Russia, the US, or any other state. Geoffrey Hosking (UCL) noted that Russia feels like a threatened power and is always ready to return to the Balance of Power mode. All the participants shared the view that an inter-disciplinary approach to the question of Russia in international legal system is extremely beneficial, and Peter Holquist (University of Pennsylvania) pointed out that the discussion could be expanded further, if not only lawyers and historians, but also social anthropologists were contributing. Everyone parted on agreeing that analyzing longer patterns of the development of legal system in Russia from multi-disciplinary perspectives would greatly enrich the subject, which still provides endless opportunity for research.