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. The more powedul it remained dogma that base determines Hitler became, the more traditional superstructure; but if one assigned inter­ Soviet international law became. national law to the base, then one After the Second World War, the denied the primacy of productive rela­ Soviet Union came to playa leading role tionships and called into question the in world politics. The Soviet attitudes 104 toward the structure of international The striking thing about that quotation politics have undergone certain changes, is that it was published twenty-eight and the distribution of emphasis in years ago.) Soviet international law is correspond­ At present the Soviet Union is one of ingly being modified. The process was the most active participants in interna­ submerged for a while in the suppres­ tional relations and a prominent actor in sion of foreign contacts that accom­ the stages of international law. Though panied the purges of the late nineteen the Soviet Union is absent from some forties and early fifties, but there is important international organizations, it considerable evidence that it had begun is present and active in many, and some well before Stalin's death. The chief of these are closely concerned with factors in the process seem to have problems of international law. It has included, beside the temporary power sent judges to the International Court of vacuum in Europe and the emergence of Justice; it takes part in the work of the a loosely bipolar confrontation, the International Law Commission; its increasing inability to tolerate high risks representatives make legal arguments in of large-scale war after the development many bodies of the United Nations; it of nuclear weapons, particularly after sends delegations to nongovernmental the development of the hydrogen bomb; bodies like the International Law Asso­ the emergence of new nations from the ciation and the International Associa­ passing of the old colonialism in Africa tion of LegaL Sciences; its scholars pro­ and Asia; and the coming to power in duce yearbooks of international law, neighboring countries of regimes called textbooks on international law (one of socialist and prepared, on the whole, to which was published in English transla­ act in accord with Soviet moves in the tion not long ago), and numerous mono­ international arena graphs and articles; it is party to scores In Soviet foreign policy these factors of bilateral and multilateral ~rrreements, led to the peace campaigns, in new not all limited to the Soviet camp; its form; the support for "national-libera­ agents conclude many foreign trade tion movements" even at the cost of agreements, providing for arbitration in temporary eclipse for local communist Moscow before a vigorous, and, we are parties; the grant of a substantial told, reasonably fair arbitration com­ amount of foreign aid, deployed of mission. course for political effect, but often This activity is enough to provide useful, nevertheless; and the renewal of some evidence of the characteristics of the campaign for general and complete Soviet utterances in international law. I disarmament. (By the way, for those of should say the chief characteristics, you who might otherwise be inclined to aside from the current emphasis upon date the Soviet campaign for general the principle of coexistence (to which I and complete disarmament from the shall return), are that contemporary Khrnshchev period, it would be instruc­ Soviet utterances in international law tive to consider the judgment made by are predominantly officia~ moralistic, George Grafton Wilson that: projective, offensive, and underdevel­ One of the most striking oped. These traits are not wholly absent features of Soviet policy has been from Western work in international law, advocacy of complete disarma­ but the differences of degree are great. ment, land, maritime and aerial, in As someone has said, the difference contrast to the policy of most between a difference in kind and a states, which have favored varying difference in degree is in itself only a degrees of mere limitation of difference in degree. armament. By official I mean that Soviet work 105 in international law supports current strictly observing international Sovict foreign policy with unremitting law, cannot either impose or fidelity. Current Soviet foreign policy is accept any of its norms that always defended as legal; even past would contradict the principles of Soviet foreign policy is defended as legal internal law of the contracting though the policies may have been states. On the other hand, strictly abandoned. Never is there a public observing international agree­ statement by a Soviet private jurist ments, they cannot utter any calling into question the action of the norms of internal law that would Soviet government To put it shortly, contradict their international obli­ every Soviet writer on international law gations. is on active duty. Variations do not Again, on the right of asylum, a often exist, and when they do they tend statement is made that convinces only to be either on subjects of slight current one who is already committed to the practical importance, or on the question major premise: of which reason is to be preferred for The right of asylum is formally supporting the legality of given Soviet acknowledged by all states as a behavior or the illegality of given be· current principle of international havior of an adversary. Thus every law. In the USSR and the coun­ utterance from a Soviet source on inter­ tries of People's Democracy it is national law must be taken as "inter­ available to progres­ ested," that is, the source must be sives.... Asylum in socialist considered. This fact need not always countries is not afforded to diver­ tell against the intellectual quality of sionists, terrorists and others of what they write; in this country, law­ that ilk. In many capitalist coun­ yers' briefs often make impressive con­ tries, the representatives of lead­ tributions to the thinking of the judges ing and progressive mankind are in to whom they are directed, but they are fact deprived of asylum, which, recognized nonetheless as briefs. however, is widely afforded to all Soviet argument on questions of in­ sorts of diversionists, terrorists ternational law is easy and cogent once and traitors who have committed you grant the invariant major premise grave crimes against their home­ tllat the Soviet Union is right. From this lands. premise, combined with the minor pre­ In final illustration of this official mise describing in tendentious terms characteristic I should like to correct whatever the Soviet Government has the statement made yesterday, referring done or advocated in a particular case is to violations of treaty by the Soviet right Government. This is contradicted by the If this judgment seems harsh to you, following information furnished by the consider the following typical illustra­ authoritative current Soviet textbook tion. A respected Soviet international on international law, which reports: jurist discusses the relations between The Soviet Union, like the states within the Soviet orbit when other socialist countries, stands faced with internal law on the one hand for the strict observance of obliga­ and international law on the other: tions assumed under international In the practice of the Soviet agreements, as has been demon­ Union and the People's Democ­ strated by the entire history of r a cies, conflicts between the Soviet foreign relations.... The norms of international law and Soviet Union's strict fulfillment of ilie norms of internal law are its obligations under the U.N. impossible. The socialist states, Charter and other international 106 treaties clearly demonstrates the tionallife. Such are the principles Soviet Union's adherence to one of sovereignty and equal rights of of the basic principles of interna­ states, non-intervention ... in­ tional law-the principle pacta violability of state territory, the sunt seroanda. institutions of citizenship, plebi­ scite, rights of asylum for political The imperialist states fre­ emigrants, etc. These democratic quently refuse to fulfill their obli­ principles and institutions, which gations, and make international reflected in their time the de­ treaties mere scraps of paper. But mands of "the broad masses who it must not be concluded from took part in bourgeois revolutions this that international treaty links an dna tional-liberation move­ are unstable. There are now strong ments, were taken up and raised social and political forces op­ to a new height hy the Soviet posing arbitrary action. Union and other socialist states. Perhaps at the time when yesterday's The same moralistic tone can be ob­ speaker mentioned Soviet treaty viola­ served in the Soviet espousal of disarma­ tions he did not have present in his ment, now about to be proclaimed not mind the major premise that the Soviet merely a policy, but also an existing Union does not vjolate treaties. principle of international law. Ex­ Sovet international law is official, pediency is (officially) shuffled; then. It also is moralistic. In interna­ morality is trumpeted. tionallaw, as in domestic law and some Official, moralistic, projective. I use other areas of culture, Soviet thinking the term projective in the sense in which has undergone a transformation since psychologists use it when speaking of the days when the Revolution was the tendency to attribute to others the young. The very values and principles ideas and intentions that one must deny and even rules that used to be derided as in one's self. For example, it is commo~ bQurgeois are now not merely accepted to meet in Soviet work condemnation but expropriated. No longer is the of the United States for concluding Soviet Union presented as the bearer of agreements "involving unequal rights" a supermorality, transcending the hypo­ as with the Marshall Plan-which, as you critical and outworn morality of the will remember, the Soviet Union kept bourgeois past; now it is the Soviet some Central European satellites from Union that has inherited the obligations joining when they wished to. For that used to be borne by the bourgeoisie another example, I heard a Soviet schol­ in the days of its vigor. A Soviet scholar ar in Moscow insist to some colle~rrues mentions as one category of "generally planning a work on disarmament that recognized principles of international they must expose the Western practice, law": which he said was to advocate dis­ principles and concepts that armament not merely hypocritically and entered into international law dur­ without intending to disarm, but pre­ ing the struggle of the bourgeoisie cisely in order to lull the Soviet Union with feudalism under the influ­ and other peace-loving states into a ence of the democratic and na­ dangerous reduction of their armed tional-liberation movement. They strength. For a final example, when above all define basic rights and Soviet publicists a couple of years ago duties of states in international stepped up their campaign against pub­ relations, and then guarantees of lished American discussion of orbiting the rights of the population and space weapons, it was fairly clear that various other sides of intern a- the Soviet Union was well on the way to 107 a decision to develop those weapons. developed. In one sense it is underdevel­ Official, moralistic, projective, offen­ oped in that it seems designed to win sive. This term is used in the military the support and the votes of the under­ sense. Soviet work in international law developed nations, or, as we are now is predominantly polemical, and the calling them in an effort to seem less polemics are based on the theory that condescending, the new or newly devel­ the best defense is a good offense, like oping nations. The analysis of interna­ the theories held by the French general tional law, the choice of emphasis, the staff before the First World War or the thrust of the moralizing, is calculated to old management of the Boston Red appeal to ex-colonial countries and Sox. Thus the condemnation by the other suffering from the present fact or United Nations of the use of Soviet the recollection of Western domination. tanks and troops to suppress the Hun­ The attitudes that seemed to suit the garian revolution in 1956 is referred to Soviet Union in the days of its weakness by a Soviet seholar of international law are found appropriately transferable to in this way: those countries, and the gulf between The Soviet Union and other (say) Mali or Bolivia and the Soviet socialist states spoke out de­ Union of today is ignored. There are cisively against the efforts of the still gains to be made by playing the role U.S.A. and its partners to make of the underdog. use of the United Nations Organi­ In another sense, Soviet international zation as an instrument of inter­ law today is intellectually underdevel­ vention in the internal affairs of oped. When I looked in yesterday on the Hungarian People's Republic Professor Sohn's class I heard him say after the counterrevolutionary that, if you look at Soviet work in rebellion, inspired by foreign re­ international law and deleted the obei­ action, had been crushed in No­ sances to Lenin and the criticism of the vember 1956. imperialists, what you would have left The same observation of offensive­ would be something like our own work ness can be made of the continuing in international law, only not as good. Soviet emphasis upon outlawry of ag­ He attributed this to restrictions on gression, or the combination of high access to Western literature and Western military expenditures with high volume jurists. He did not, as I understood of disarmament campaigning, or the him-nor do I-make any reflections on criticism of the American "voting the personal abilities of Soviet jurists. machine" in the United Nations to draw He might have added that in interna­ fire away from the Soviet veto. You tional law activity, as in many other may not all be familiar with the old respects, Soviet society today has points story of the visitor to Moscow who, on in common with the Western world of being shown a new subway station, two or three generations ago, not with admired the decoration but after a while the Western world of today or (let us asked his host why there weren't any hope) with the Western world of, say, trains, and was answered, "And what 1984. The improvement in the quality about the lynching of negroes in your of the work of the newer generation of Southern states?" (Correspondingly, it Soviet jurists is welcome but still minor. is no answer to Soviet criticism of U.S. Soviet international law, far from being racial discrimination to say that the the wave of the future, is intellectually a Soviets have a housing shortage or even stagnant pool left over from the past. that they have racial discrimination.) Professor Lissitzyn once put it more My last epithet was that present-day kindly when he wrote of their technical Soviet international law was under- conservatism. Many rules are stated and 108 restated without criticism or reflection. pronouncements of Soviet at..thorities, Soviet doctrine on the sources of law the principle of peaceful coexistence has follows older practice, as you know, in been said to be not merely the basis of exalting treaties and depreciating cus­ the Soviet view of international law, but tom. Soviet doctrine on the supposed the basis of all international law today, conflict between internal law and inter­ and not merely the basis, but the key, national law comes down-except for or the core, of all international law. It is relations between states in what is mis­ even said that international law today leadingly called the socialist camp-on has become the law of peaceful co­ the side of the primacy of internal law. existence. So important a concept You heard yesterday of the rapid deserves our attention. growth of legal doctrine on the conti­ At the outset we are not to confuse nental shelf from the time of President "Peaceful Coexistence," in quotation Truman's proclamation in 1945 to the marks and with initial capitals, with Geneva Conference on the Law of the peaceful coexistence in the literal sense Sea in 1958; but before that the Soviet of the term. For example, it is clear that publicis.ts had poured scorn on the idea the term in Soviet usage does not mean that the rights of a coastal state to condemnation of all war. Wars that resources on the continental shelf were serve the ends of Soviet foreign policy becoming recognized in international are given the label of wars of national law. As one of them said: liberation or revolutionary civil wars Thus a unilateral declaration and are accepted as just. proclaiming the seizure of open It is fairly clear also that the term in sea belonging to all and making it Soviet usage does not connote relation­ one's own property is turned into ships of trust, friendship, agreement, or a norm of international law with free communication between the the naked use of the machinery of peoples of the "peacefully coexisting" the "legalization" of seizures, [the states. A striking confirmation of the Americans declare, the satellites freedom of maneuver left to the Soviet "follow," "scholarship" recog­ Union by the principle of peaceful nizes-and behold, a norm is coexistence was noticed last year by born!]. some close readers of the Soviet press. Technical conservatism does not On January 30, 1962, Suslov, the chief mean that the Soviet Union is satisfied Soviet Marxist theoretician (next to with the present state of generally Chairman Khrushchev), made a speech accepted international law. Usually they at a conference of Soviet university cannot directly admit dissatisfaction teachers in the social sciences. His without denying to the norms with speech was published in Pravda on which they disagree the dignity of being February 4th. According to that report, called existing rules of international law; he said: and they can playas many games as we Peaceful coexistence means the can with the lex lata and the tex coexistence of states with dif­ ferenda, which may be rudely translated ferent social systems. It means the as calling the rule that helps you the law rejection of war, the settlement of that is, and calling the rule that helps disputes between states through the other man the law that he wishes negotiations. It means the refusal were the law. But they have other to violate the territorial integrity devices too. To look at those devices in of states, the refusal to export perspective, let us return to their theme revolution and export counter­ of peaceful coexistence. revolution. Finally, peaceful co­ Peaceful Coexistence. In some existence is economic rivalry of 109

states, agreements, trading rela­ perialism in the international arena." tions on the basis of mutual ad­ The current Program of the Communist vantage between states. Party uses similar language. Notice the refusal to export revolution Thus the fact that the considerable and export counterrevolution. resources of scholarly and lay communi­ Thirteen days later the same speech cation at the disposal of the Soviet was published again in the chief theo­ leaders are directed toward the celebra­ retical magazine, Kommunist, here tion of the importance of "Peaceful Suslov was made to say: Coexistence" says nothing necessarily Peaceful coexistence means about the probable foreign policy of the . . . the refusal to violate the terri­ Soviet Union . torial integrity of states, the in­ The term, as such, has been found in admissibility of the export of Soviet literature bearing as early a date coun terrevolu tion .... as 1920. Though contemporary Soviet The reference to the refusal to export writing invariably describes the principle revolution had now been deleted, ap­ of peaceful coexistence as Leninist, by parently at the last minute from galley the way, the term does not seem to have proof or page proof; the key sentence in been used by Lenin. It was Chicherin, Kommunist is very widely spaced to People's Commissar for Foreign Affairs, make up for the deletion. who referred to the Peace Treaty with Peaceful coexistence in the sphere of Estonia as the "first experiment in ideology has been repudiated by the peaceful coexistence with bourgeois Soviet leadership in many statements, states." Twenty years later, as we know, directed principally at the Soviet popu­ the state of Estonia ceased to exist and lation to make sure they do not get any it became unnecessary to coexist with wrong idea. That the idea, though not her, except in the sense that the robin, the precise words, of "peaceful co­ in Don Marquis's old poem, coexisted existence" was used as a tactic in with the worm it had swallowed. foreign policy, was made clear in the While peaceful coexistence was often earlier and more candid days of the mentioned by Stalin, especially during Soviet regime when Lenin said, in a the period of the United Front in the letter to his representative at the Genoa thirties and the period of wartime col­ Conference of 1922: laboration in the early forties, it is only •.. we, communists, have our since 1956 that the slogan has become own communist program [Third central to Soviet pronouncements. At In ternational ] ; nevertheless we that time it took off from the Panch consider it our duty as merchants Sheela, the Five Principles, which had to support [even if there is only been proclaimed in the Sino-Indian pact 1/10,000 chance] the pacifists in of 1954 and expanded in the Bandung the other, i.e., bourgeois Declaration of 1955. Later the major camp .... It will be both biting share of the credit' was ascribed more and "amicable" and will help to directly to Lenin. As a principle in demoralize the enemy. With such international law, it has been treated in tactics we will win even if Genoa numerous Soviet monographs and arti­ fails. cles since 1956 and pressed vigorously As recently as early 1961, Chairman by Soviet representatives at interna­ Khrushchev referred to the policy of tional meetings of governmental and peaceful coexistence as "a form of nongovernmental organizations. intensive economic, political and To distinguish between the political ideological struggle of the proletariat and the legal purposes of the Soviet against the aggressive forces of im- emphasis on "Peaceful Coexistence" 110 implies a distinction between law and but they are assisted by the durable policy that is not made by the Soviets, propensity of us all to hear what wc except for external consumption; but wish to hear and close our ears to what we can distinguish between general stra­ we would rather not hear. tegic purposes and technical doctrinal For some of these purposes, the purposes. content of the principle has to be The strategic uses of "Peaceful Co­ spelled out, though not in great detail. existence" vary with the audience. Afro­ A minimum statement would include Asian audiences in general are assured the Panch Sheela: these five points refer that the Soviet Union sides with them in to respect for sovereignty, nonaggres­ their campaigns for the Panch Sheela sion, nonintervention in the internal and, more basically, that the Soviet affairs of other states, respect for Union as an important European power equality of states, and peaceful coexist­ takes seriously a form of words that the ence itself, which in Afro-Asian usage is Mro-Asians profess to take seriously. one of the five points, but in Soviet With other non-Soviet audiences, except usage embraces all the others. Under for Communist Party members or pressure from international diplomatic sympathizers, the aim is to influence and legal questioning, some additional non-Soviet disarmament, to attract East­ content, still at a high level of abstrac­ West trade, and to enlist support for tion, has been given to the principle of various specific Soviet moves in foreign peaceful coexistence; it has been said to affairs from time to time. With commu­ include, for example, in Dr. Lapenna's nist audiences, the declaration of ad­ convenient summary: herence to the policy of peaceful co­ existence is a taking of sides on one of 1. Coexistence is "a funda­ the main issues between the Chinese and mental principle of international Soviet communist leadership, which law. " may be defined as the issue whether the expansion of the communist system can 2. Peace without threat or use be rapidly achieved without actions that of force; settling disputes by increase the risk of worldwide nuclear peaceful means; individual or col­ war. Recently, before ~ Soviet audience, lective measures, in accordance some Soviet international lawyers took with the United Nations Charter, pains to distinguish to prevent or suppress acts of the concept of peaceful coexist­ aggression; prevention or suppres­ ence, as the fundamental principle sion of war propaganda; promo­ of international law which is also tion of the implementation of the basis of the foreign policy of general and complete disarma­ peace-loving states [from] ... the ment. concept of coexistence [note the absence of the adjective] of the 3. Cooperation in the field of two systems as an indication of economy, social and political the stage of history referred to by questions, science and culture. V.I. Lenin, a stage which is inevit­ able by virtue of the fact that the 4. Sovereignty and territorial socialist revolution does not tri­ integrity; the right of peoples and umph simultaneously in all coun­ nations to self-determination; tries. anticolonialism. The fact that all these various audiences eavesdrop on one another has compli­ 5. Noninterference in the m­ cated the task of Soviet propagandists, ternal affairs of other states. III 6. Equality of states; represen­ the doctrines of international law in tation of states in international many respects disagreeable or hamper­ organizations in conformity with ing from the Soviet point of view, but the interest of the three groups of the processes by which international states. This is a promoting of the legal doctrine was made and applied Troika idea to the rank of a seemed, under Soviet analysis, to be principle of coexistence. necessarily exclusive and anti-Soviet. The facts indeed lent some support to 7. Fulfillment in good faith of this opinion. international obligations arising In such a situation, Soviet interna­ from treaties and other sources of tional law theory, whatever its twists in international law. accompaniment to the course of Soviet On the whole, it is fair to say that foreign relations, made use of a variety the Soviet publicists have not shown of techniques to depreciate the existing themselves jealous for the purity of process of international norm-formation their principle; they have seemed willing and to enlarge the role to be reserved provisionally to accept many of the for the Soviet Union in those processes. formulations offered by others as com­ There was the time when international ponents of the principle. The reason for law was generally repudiated, later to be this hospitality is, I think, the same as accepted during a period of transition the reason for the failure hitherto to admitted to be necessary before interna­ specify what Professor McWhinney calls tional law could be discarded along with concrete secondary principles, that is, the system of independent nation-states. principles sufficiently meaningful to be There was the assertion that a state arguable. To make clear what I believe whose polity was based upon a new and this reason to be, we should back up far juster social theory had the right and enough to look at the position of the duty to repudiate those particular doc­ Soviet Union in the international legal trines of international law that offended community and at some of the other that theory. There was the continued techniques advanced by the Soviet insistence upon the primacy of treaties Union in the past to improve that as sources of international law, the position. belittling of the rule of custom, the The Soviet Union began under condi­ stress upon the necessity of the consent tions that implicitly denied the validity of a state before that state could be of traditional international law as the bound by a rule. When the United regulating idea of the traditional system Nations Charter was adopted, with its of nation-states. Upon coming into the institutional arrangements allowing a international community the Soviet very important role to the Soviet Union, Union was very much in a minority. and its text corresponding in many ways Even today, though it is stronger, and to the demands upon which Soviet has several satellites and many friends in representatives had insisted. Soviet pub­ power and out of power throughout the licists began to exalt what was called the world, the Soviet Union.both feels itself international law of the Charter over to be in a minority still and finds it what was called traditional international useful for certain purposes of morals law. For some time it looked as though and ideology to emphasize, at times, primary stress was to be laid by Soviet that it is beleaguered by a hostile international law theorists upon the majority. To the extent that the interna­ institution known throughout the world tional community was a going concern, as "generally recognized principles of Soviet views were alien and Soviet law," or "the general principles of law policies were distrusted. Not only were recognized by civilized nations. " 112 While I have listed these techniques conceded by the rest of the world. To roughly in the chronological order of this end, many particular questions of their appearance, it should be kept in content can be sacrificed for the time mind that there was no neat sequence of being if the sacrifice will purchase agree­ use, abandonment, replacement. Many ment to the procedural claim, to the of them are alive today, though not essential idea that their notion of peace­ flourishing. They all have been over­ ful coexistence is central to interna­ shadowed, even if not quite superseded, tional law. At the Brussels meeting of by the emphasis upon the principle of the International Law Association a peaceful coexistence. What counts, for year ago, for instance, the Soviet delega­ this purpose, is not that the principle tion, led by the most eminent currently shall mean anything special rather than authoritative Soviet international law­ anything else, or indeed that it shall yer, were willing to admit a good many mean anything at all. What counts is topics to the list of issues discussable that something under the name of "the under the heading of "Principles of Principles of Peaceful Coexistence" Peaceful Coexistence;" but when an should win recognition-without defini­ attempt was made to change the name tion, preferably-as lying at the heart of of the pertinent committee to drop the international law; that it should be slogan of peaceful coexistence and bring acknowledged the world over that to the title into line with that used in the define "the Principles of Peaceful Co­ United Nations, the Soviet delegation existence" is the most urgent task of quit work in the committee until the contemporary international law; that it change of name was blocked. Their should be acknowledged that the attachment to the name was not an process of defining them requires the attachment to the fact described by the participation and consent of the Soviet name, or to the content they had been Union; and by implication, that any suggesting for the name, but a recogni­ principle or doctrine of international tion of the utility of the slogan in law that has not been accepted by the serving other goals than this one and of Soviet Union as part of, or consistent the energy that, having been invested in with, "the Principles of Peaceful Co­ its dissemination in international law existence" has to be rejected as being circles, would be wasted in part if it had for that reason invalid. to be transferred to a new set of words. There, in my opinion, we have the In drawing this picture of the inter­ chief significance of "the Principles of national law uses of the Soviet emphasis Peaceful Coexistence" in contemporary upon "Peaceful Coexistence," I may Soviet work on international law. There, have overrationalized the mental too, we have the explanation for the processes of Soviet lawyers, who may hospitality of the Soviet publicists well not have planned it all at once. And toward so many of the items furnished I have no intention of asserting that the on provisional lists of principles of engine they have tried to build will roll peaceful coexistence by Yugoslavia, along the planned route, or even that Americans, Canadians, and others. They the route cannot change. The Yugoslavs are hospitable because at the present and the Communist Chinese know how stage of their campaign the content of wide the swings can be. "Peaceful Coexistence" does not matter Such are the main features of Soviet for their main purpose. There will be work in international law as they seem arguments about the content, but those to strike the observer today. Have we can expediently be postponed until a any warrant for expecting them to alter later stage when the centrality of the soon? In some directions we may be (undefined) "Principles" has been justified in supposing the changes in the U3 global situation of the Soviet regime to peacefully coexist with considerable so­ do their work in affecting Soviet inter­ phistication in the use of Soviet fishing national law. For example, the strong trawlers for not necessarily innocent emphasis placed by Soviet doctrine on passage; attacks upon the legality of territorial sovereignty may be affeeted United States reconnaissance satellites by several contemporary developments: may be made in the same breath, or First, the Soviet Union is acquiring speech, with assertions of the right of the power, influence, and attendant respon­ Soviet Union to make military use of sibilities in areas not contiguous to the space. Efforts to achieve a special theo­ Soviet Union, and the map on which retical position for legal relations among they, the Soviet leaders, plan their the states of the Soviet camp will be political moves, looks a little more like a combined with bitter resistance to re­ globe than it did in Stalin's time. gional groupings over which they have Second, trade and aid, while still minute no control; they are still uneasy with a by our standards, are beginning to play horizontal system, no matter whether a more significant role than before in the several units of that system are Soviet cconomy and in Soviet foreign single states or groups of states. The policy. Third, the Soviet Union is be­ mixture will be spiced with that self­ coming more active in impinging upon righteousness in which the Soviet au­ other states in ways that are within the thorities have had so much experience purview of international law, not least and defended by the enforced un­ in their deployment of naval and osten­ animity of the legal profession-unfortu­ sibly civilian vessels. (When Admiral nately they don't have a Quincy Wright Mott, by the way, spoke of the recipro­ of their own-but it will bear some cal interest in innocent passage, I was resemblance to the complex and many­ reminded of an old Russian proverb shaded relationship that other great with a liquid setting and perhaps a naval powers have toward international law. application: "Don't spit in the well: you This is not, except by indirection, a may want to drink from it later.') class on American work in international These factors are opposed, and per­ law, and I shall not proffer detailed haps still for a time will be outweighed, comment or advice upon the course we by the weight of history and training, might take in reaction to, or considera­ the continued situation of the Soviet tion of, or disregard of, the Soviet work. Union as a huge land power potentially My attitude toward desirable American threatened by action by sea and air, the policy is perhaps best expressed ob­ continuing political advantage to be liquely by a reference to the best derived among nations of the Southern defense ever given, as it seems to me, for Hemisphere by espousing extreme con­ Chairman Khrushchev's famous boast, cepts of sovereignty, the Soviet Union's "We will bury you." As you know, he perception of its minority status in most has had many times to insist that the international fora, and the continued statement was meant only figuratively, interest of the Soviet regime in restrict­ that it was not meant to refer to ing the access of its population to particular individuals, that it was com­ outside influence and the access of patible with peaceful coexistence, that outside influences to its population. it has been misunderstood. But the best We should not therefore be surprised answer on Khrushchev's behalf was to see inconsistencies, hitches, conflicts made for him more than twenty years of emphasis. Proclamations closing large before Khrushchev's statement. In areas of ocean to foreign fisheries, or 1936, at the tercentenary of the found­ enclosing large bays, and advocacy of a ing of Harvard College, President wide margin to the territorial sea, may Conant moved that the meeting be 114 adjourned to the same day of the year word in its favor. If I read history 2036. Ex-President Abbott Lawrence aright human institutions have Lowell intervened with a comment be­ rarely been killed while they re­ ginning with the words with which I tain vitality. They commit suicide should like to close: or die from lack of vigor, and then Before putting that motion [of the adversary comes and buries adjournment] I want to say a them •...

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