The Soviet View on International Law

101 THE SOVIET VIEW ON INTERNATIONAL LAW Leon S. Lipson The background of Marxist-Leninist International law in a bourgeois theory with which Soviet international setting, so the theory ran, was sanc law began permitted, and indeed re tioned by the transverse power of the quired, an analysis of the contemporary global bourgeoisie up to the point where nation-state system from without. So imperialistic conflict, caused by the long as a Soviet analyst could in thought growing contradictions of capitalist remain outside the system, he found not society and capitalist economics, was much difficulty with the conundrum expected to lead to a breakdown of the that has troubled so much of the writing system and open the way for a pro about international law since the fic letarian revolution and the establish tions of medieval universality broke ment of socialism. Under this analysis, down; that is, the problem to which you international law is trivial until the addressed yourselves yesterday after moment it becomes obsolete. noon, of the efficacy and even the Before and for some time after its existence of international law in the occurrence, the Russian revolution was absence of a single compelling enforce expected to touch off a continuing ment machinery. That problem has series of revolutions in the more indus seemed especially acute to Western trial countries of, at least, continental seholars under the influence of what Europe. As Taracouzio put it: they thought to be the implications of With ... the advent of a single Austinian positivism. It was taken care world-wide denationalized, class of in early Soviet terms by a theory of less society, there [would] be no the organization of society which re place for a system of law regu fused to look on states as the ultimate lating the international life of aggregates of legitimatized power. In independent states. International stead it emphasized the controlling role law [would] be converted into a of the bourgeoisie, a class that was purely domestic inter-Soviet law, supposed to overlie all society, regard a federal law for a world-wide less of political boundaries, in those union of Soviet Socialist Repub parts of the world which had attained lics. industrial civilization. We must remem It was no accident-to use a favorite ber that one of the reasons for calling Soviet phrase that is typically redun upon the proletarians of the world to dant, for under the philosophy of unite was that it was assumed that for dialectical materialism it never is an many purposes the bourgeoisie of the accident-that the name given to the world were already united. new federation at the time of its official 102 formation at the end of 1922 contained necessarily became a part of the interna no geographically limiting term. "Union tional community that its leaders anal of Soviet Socialist Republics, " while the yzed and assailed. Unable thenceforth word Soviet betrays its Russian origin, is to denounce all existing rules and in principle capable of expansion with processes of international law, the out incongruity to embrace any terri Soviet writers appealed openly to ex tory on earth, or beyond. pediency as the principle of selection. Events in the first five years after the As a Soviet writer remarked at the time: 1917 Revolution required a modifica The situation became rather tion of these perspectives. The revolu ambiguous. On the one hand, tion did not spread to all of Europe, Soviet Russia openly and loudly though there were brief episodes in declared its denunciation of all Germany and Hungary. Conflicts on the treaties inherited from Tsarism perimeter of the former Russian Empire and the Government of Kerensky, with national and anti-Bolshevist forces of all secret conventions, military along the Baltic coast, in Poland, and in debts, privileges of exploitation the Caucasus led to temporary inde and imperialist obligations, and on pendence for some and to inclusion the other, its official representa within the federation for others. For tive often demanded the execu eign intervention in Russia by some tion of minor agreements, refer fourteen states from 1917 to 1922, ring to the fact that beneath the aimed first mainly at supporting the text were affixed the seal and the forces continuing the war against Ger signature of the Imperial [Tsarist] many, later at safeguarding lives and Ambassador. property of foreigners and (in a con As the strategic retreat of the New fused and ineffectual way) assisting the Economic Policy in 1921-1928 required efforts of anti-Bolshevist armies, may some limited encouragement for foreign have helped to teach the Bolshevik technicians and supply contracts, it was publicists gradually that national bound discovered that even the dictates of aries can be ignored in more than one expediency can lead in different direc direction and that territorial integrity tions for the short term and the long; in has its uses. the longer-term interest of the Soviet The stabilization of the international Union it was thought to be expedient to situation in the early twenties included display-and here the etymology is in on the Soviet side a partial settling tentionally convergent-the status and down to statehood. For strategic rea stability of a state. Thus we saw the sons it proved necessary to coexist development, in the mid-twenties, of temporarily with other states that re "The International Law of the Transi mained opposed to the Bolshevik revo tional Period," in which an attempt was lution; for economic reasons it was made to reconcile the millennial per necessary for the young, ravaged, and spectives of pre-Revolutionary Marxist very poor Soviet state to establish com Leninist theory with the contemporary mercial relations abroad. True, Lenin coexistence of the Soviet Union and and his successors have presented the surrounding, or encircling states. At this case as though the economic necessity time, the attitude of the Soviet Union constrained not the Soviet Union but to the traditional norms of international the outside world; but that was a law was said by the conciliatory wing of common turn of Soviet, particularly Soviet international jurists to be what Leninist, argumentation that did not we might call consistently inconsistent, affect the substance. in the sense that the Soviet Union took In this state of affairs, Soviet Russia what it liked and rejected what it did 103 not like in conformity to its general uniqueness of Soviet society which was policies. Thus the Soviet Union was said so important for the self-image and the to "exclude" such notions as extraterri propaganda of the new leadership. toriality, special concessionary privi If this problem had arisen in the leges, and mandates; the Soviet Union early 1950's, when some of the founda "selected," meaning chose to accept, tions of Marxism-Leninism were being such institutions at consular and diplo revisited, it could have been swept matic immunities; the Soviet Union under by a stronger assertion of the "interpreted" other doctrines of inter superstructure's partial independence of national law as its interests dictated. the base. As it was, in the 1920's it was The differentiated attitude toward necessary to resort to two other ex traditional doctrines of international planations. The first of these was the law assured the conformity of doctrine compromise formula, which most Soviet to current foreign policy. It also, how definitions of international law have ever, presupposed an awkward conces included since, to the effect that inter sion on what in the martial Soviet national law is the complex of norms terminology was known as the theoreti that regulate relations between states in cal front. Here you must, for a minute the process of their struggle and collabo or two, wander with me through the ration, or conflict and cooperation, and thicket of Marxist dialectic. It had been so on. The second, which is a feature of accepted teaching that social institu the Stalin period, rests on the distinc tions, including law, must belong either tion familiar to us and found in many to the base or to the superstructure. The corners of Soviet thought between form base included preeminently the relation and content; just as a given internal ships of production. Between base and legal, economic, or social institution can superstructure was a causal connection, be bourgeois in form but Socialist in operating preponderantly in one direc content, so differing bases can infuse a tion: the base determined the super verbally identic form in international structure, though it was at times con law with different content. A similar ceded that in some respects the super problem encountered later, after the structure might have a back-influence Second World War, in characterizing the on the base. But if anything was central relations between countries in the to the Soviet Marxist catechism, it was Soviet camp, was met by the distinction that the base, in the Soviet Union, between letter and spirit; the rules that differed fundamentally from the base in were obeyed only in the letter by the countries of capitalism. That served bourgeois countries were infused with a as a convenient polemical framework in different spirit when applied between the Soviet comparative analysis of in friendly socialist countries. ternal legal systems; but it seemed to During the 1920's and 1930's the imply that the same international law Soviet Union carried on treaty relations, could not exist for the Soviet Union as entered into international supply con for "bourgeois" countries. The dilemma tracts, conducted exchanges of goods, was that if international law belonged to took part in certain international organi the superstructure, states with different zations, and lived an international life, bases could not be acknowledged to though at a level of activity far below agree upon international rules so long as that of the West.

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