The Soviet Approach to the Right of Peoples to Self-Determination: Russia’S Farewell to Jus Publicum Europaeum

Journal of the history of International Law 19 (2017) 200–218 JHIL brill.com/jhil

The Soviet Approach to the Right of Peoples to Self-determination: Russia’s Farewell to jus publicum europaeum

Lauri Mälksoo University of Tartu, Tartu, Estonia

Abstract

The aim of this article is to explore the theory and practice of the Soviet position on the right of peoples to self-determination in 1917 and afterwards. It is a misunderstanding to mention Lenin’s (the Bolsheviks’) and Wilson’s concepts of self-determination in one breath, as ‘precursors’ in international law. The Soviet concept of the right of peoples to self-determination was adopted for tactical and propagandistic purposes, and it had little in common with the liberal democratic concept of this right that saw the right of peoples to self-determination as an end in itself. The real contribution of the Russian Bolsheviks to the history of international law has, to some extent, been overlooked. Throughout the 20th century, the West and the USSR had different regional standards and usages of the right of peoples to self-determination, thus presenting a continuous challenge to the idea of the universality of international law.

Keywords self-determination of peoples − Russian Empire − USSR − peace treaties − Lenin − Bolshevik − jus publicum europaeum − universality of international law

1 Introduction

In 2017, the world marks the centennial of Russia’s October Revolution that brought the Bolsheviks a.k.a. Communists to power for more than seventy years.

* Research for and the writing of this article has been supported by a grant of the Estonian Research Council No IUT 20–50.

In Russia and elsewhere in the world speeches will be delivered, thematic con- ferences organized and publications issued. People interested in the politics of history can observe with what ideological messages the centennial will be remembered by the political elite of today’s Russia. On the one hand, it has been said that the main keyword of the centennial celebrations in Russia will be ‘national conciliation’.1 On the other hand, the conservative trend is towards the glorification of imperial Russia that existed before the Bolsheviks came to power. This implies a certain criticism of and dis- tance from the Bolsheviks even though almost all current power holders were Communist Party members in their youth. For example, recently President Putin went on record as saying that Vladimir Lenin placed a ‘nuclear weapon under the building that is Russia’.2 He has also said that victory in World War I was ‘stolen’ from Russia.3 Logically, apart from some foreign powers, the main domestic actor in Russia that could have ‘stolen’ victory was the Bolsheviks, who were agitating against the war. In any case, it is clear that the October Revolution of 1917 is of continued relevance and discussions about its meaning are simultaneously discussions about our own time and directions in the future. The Soviet government and international law scholars emphasized the world historical significance of the October Revolution and were convinced that it gave birth to an entirely new epoch of international law begun in 1917, what Tunkin called ‘new international law’.4 Moreover, at least some Western scholars have considered the impact of the October Revolution, and subsequent Soviet contributions to the development of international law, as significant and lasting.5 One of the specific areas in which the Soviets are considered to have signifi- cantly influenced the development of international law is the right of peoples to self-determination. In international law scholarship, it has become part of

1 Ilya Barabanov/Natalia Korchenkova/Sophia Samokhina, ‘Oktiabr vperedi. Kak Rossia otprazdnuet vek revoljutsii’, Kommersant, 11 December 2016, available at: http://kommersant .ru/doc/3163935. 2 Ivan Sinergiev, ‘Vladimir Putin obvinil Vladimira Lenina v razvale SSSR’, Kommersant, 21 January 2016, available at: http://kommersant.ru/Doc/2897423. 3 See e.g. Vladimir Socor, ‘Putin Re-Interprets Russia’s Participation in the First World War’, The Jamestown Foundation, 5 August 2014, available at: https://jamestown.org/program/ putin-re-interprets-russias-participation-in-the-first-world-war/. 4 See e.g. Grigory I. Tunkin, Theory of International Law, edited and translated by William E. Butler (Cambridge, MA: Harvard University Press 1974). 5 John Quigley, Soviet Legal Innovation and the Law of the Western World (Cambridge: Cambridge University Press 2007).

Journal of the History of International Law 19 (2017)Downloaded 200–218 from Brill.com10/01/2021 07:43:47PM via free access 202 Mälksoo the established narrative that the Bolsheviks and their leader Vladimir Lenin in particular, were among the very first who recognized the right of peoples to self-determination, not just as a significant political principle as was already being discussed in Europe in the second half of the 19th century, but promoted it to the level of a principle of international law, even accepting secessions based on it.6 Often, in this historical narrative of international law the names of two statesmen are mentioned essentially in one breath: Vladimir Lenin in Soviet Russia and President Woodrow Wilson in the US, who raised the right of peoples to self-determination in his Fourteen Points speech on 8 January 1918. Technically, Lenin was the first, though, because he turned his attention to the right of peoples even before President Wilson, who came to focus on it only as the end of the war approached.7 Later, Moscow’s claim for its pivotal role as promoter of the right of peoples to self-determination in international law seems to have been further strength- ened by the strong support that the USSR gave to this right after World War II and especially during the process of decolonization. For example, Soviet diplomacy strongly supported inclusion of the right of peoples to self-determination in two UN human rights covenants of 1966. When the two covenants were rati- fied, the right of peoples to self-determination became part of universal posi- tive international law – even though heated debates on what this right exactly implies and to whom it applies persist to this day. Until the end of the USSR, Soviet scholars and diplomats continued propagating the position that the USSR had from the outset been particularly supportive of the right of peoples to self-determination in international law. At the same time, a certain historical paradox and puzzle exists here. At its philosophical core, the right of peoples to self-determination is an exten- sion of human freedom from individuals to peoples. In the case of President Wilson and perhaps the Americans more generally, it is relatively obvious why the idea of self-determination of peoples would appear appealing to them. If the Americans could liberate themselves from foreign rule, so could other peoples govern themselves and become free. Whether this narrative is always true, or so relatively black and white, is another matter. In this Wilsonian sense,

6 Quigley, Soviet Legal Innovation 2007 (n. 5), 47–48; Bill Bowring, Law, Rights and Ideology in Russia. Landmarks in the Destiny of a Great Power (London: Routledge 2013), 84; Antonio Cassese, Self-Determination of Peoples. A Legal Reappraisal (Cambridge: Cambridge University Press 1995), 14. 7 Jörg Fisch, Das Selbstbestimmungsrecht der Völker. Die Domestizierung einer Illusion (Munich: C.H. Beck 2010), 181.

Journal of the History of InternationalDownloaded Law from 19 Brill.com10/01/2021(2017) 200–218 07:43:47PM via free access Lenin, Wars of Liberation & Soviet on the use of force 203 self-determination of peoples was also a corollary of democracy and the indi- vidual capacity to possess rights.8 However, what was the right of peoples to self-determination for the Bolsheviks? It is not immediately clear why the Soviets, who were aiming to establish a dictatorship of the proletariat, would support this right. It is a paradox in itself that the world’s largest territorial state should be considered a historical pillar of the right of peoples to self-determination. Moreover, whatever the contribution of the Bolsheviks to the economic and societal modern- ization of Russia, the advancement of civil and political rights was not their main agenda or achievement. On the contrary, in their pursuit of establishing a dictatorship of the proletariat, they killed many people, while in particular the rule of Stalin turned into outright state terror with millions of victims. Starting from the 1930s, elements of this terror were also specifically directed against ‘suspicious’ minority ethnic groups in the USSR. So how exactly did the right of peoples to self-determination fit in this picture? It seems that the Bolsheviks must have arrived at this right from another ideological angle and platform than Wilson. In any case, a number of Western scholars have registered con- tradictions and hypocrisies in the Soviet approach to the right of peoples to self-determination and in this sense maintained a dose of scepticism about Soviet attitudes to this right.9 The aim of this article is to explore the theory and practice of the Soviet position on the right to self-determination, mainly immediately after 1917 but also, though more sketchily, afterwards. What was the effect of the respective Soviet claims and practices on international law? My argument is that it is a misunderstanding to mention in one breath Lenin’s (the Bolsheviks’) and Wilson’s concepts of self-determination as ‘precursors’ in international law. The Soviet concept of the right of peoples to self-determination was adopted for tactical and propaganda purposes and had little in common with the liberal democratic concept of this right, which saw in it an end in itself. For the Soviets, the right of peoples to self-determination was entirely subjugated to

8 Cf. Fisch, Selbstbestimmungsrecht 2010 (n. 7), 63. See also Jörg Fisch, Die Verteilung der Welt. Selbstbestimmung und das Selbstbestimmungsrecht der Völker (Munich: Oldenbourg 2011) (opening up the right of peoples to self-determination and its antecedents in the European and American history of ideas). 9 See e.g. Daniel Thürer/Thomas Burri, ‘Self-Determination’, in MPEPIL, para. 3, available at: http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e873?rsk ey=ylBORq&result=2&prd=EPIL; Antonio Cassese, Self-Determination of Peoples. A Legal Reappraisal (Cambridge: Cambridge University Press 1995), 6.

Journal of the History of International Law 19 (2017)Downloaded 200–218 from Brill.com10/01/2021 07:43:47PM via free access 204 Mälksoo their higher aim: that the working classes would come to and stay in power, changing the economic and political governance of society. Instead, I argue that the real contribution of the Russian Bolsheviks to the history of international law has been overlooked. They brought ‘old international law’, jus publicum europaeum, to an end in its classical form and at least separated Soviet Russia from this historical legal family. Instead of being one of the European colonial states, as imperial Russia was, Soviet Russia became the main external critic of European colonialism and its remnants. The price for this was that two separate legal spaces with different understandings of international legal standards emerged. Throughout the 20th century, what became known as the West and the USSR with its Soviet bloc followed different standards and usages of the right of peoples to self-determination, thus presenting a persistent challenge to the idea of the universality of international law. Soviet claims and practices on self-determination became a manifestation of the regional fragmentation of international law.

2 Lenin, the 1917 Declaration of the Rights of the Peoples of Russia and the Subsequent Practice of Supporting Bolshevik Self-determination

The revolutionary Vladimir Lenin famously called the Tsarist Empire ‘the pris- on house of peoples’ and was already intellectually preoccupied with the nationality question and the right of peoples to self-determination in the early years of the 20th century. The so-called nationality question was already taken up at the Congress of the Social Democratic Labor Party in 1903.10 In his 1914 writing ‘On the Right of Nations to Self-Determination’, Lenin distinguished between the nationalism of small peoples and bigger, predominant peoples such as ethnic Russians, considering the nationalism of the former harmless and potentially even progressive but the latter a real evil because of the im- mense violence it usually implied.11 However, it is vital to emphasize that for Lenin and his Bolsheviks – unlike for Wilson – the right of peoples to self-determination was not a political end in itself, nor the ultimate cure to the world’s ills. Rather, it was a means to their

10 Fisch (2010), ibid., 54. 11 See further Terry Martin, The Affirmative Action Empire. Nations and Nationalism in the Soviet Union, 1923–1939 (Ithaca: Cornell University Press 2001), 6–8; Francine Hirsch, Empire of Nations. Ethnographic Knowledge and the Making of the Soviet Union (Ithaca: Cornell University Press 2005), 28–29.

Journal of the History of InternationalDownloaded Law from 19 Brill.com10/01/2021(2017) 200–218 07:43:47PM via free access Lenin, Wars of Liberation & Soviet on the use of force 205 real ends, which were to come to power and establish the rule of the working people inter alia by nationalizing the means of production.12 By offering their support to the principle of self-determination, the Bolsheviks hoped to win over the proletariat among Russia’s minority ethnic groups and combine the progressive energy of national self-determination with their own agenda. Moreover, it is also relevant to remember that Tsarist Russia was a multi-ethnic Empire and that non-ethnic Russians were also well represented among the Bolshevik leadership. On 15 November 1917, the Bolshevik party adopted the Declaration of the Rights of the Peoples of Russia. In this document, they advanced their support for the right of peoples to self-determination to the point at which they recognized the right to secession from Russia. However, upon closer reading it appears that secession was not a goal in itself, rather a way of first taking a deeply flawed construction (the Tsarist Empire) to pieces where necessary, and later putting it together again, based on correct and progressive (i.e., Marxist- Leninist) construction principles. The Declaration of the Rights of the Peoples of Russia affords important in- sights into Bolshevik thinking in 1917. It lamented that during the Tsarist period ‘the peoples of Russia were systematically incited against one another.’13 The Declaration then suggested a cure:

An end must be put to this unworthy policy of falsehood and distrust, of fault-finding and provocation. Henceforth it must be replaced by an open and honest policy which leads to complete mutual trust of the people of Russia. Only as the result of such a trust can there be formed an honest and lasting union of the peoples of Russia. Only as the result of such a union can the workers and peasants of the peoples of Russia be cement- ed into one revolutionary force able to resist all attempts on the part of the imperialist-annexationist bourgeoisie.14

The Declaration then went on to recognize the right of peoples to self- determination, ‘even to the point of separation and the formation of an independent state’. However, it is important to note that the text refers simultaneously to ‘the people of Russia’ and ‘peoples of Russia’. The desirable goal

12 See Martin, Nations and Nationalism 2001 (n. 11), 20. The observation is not new; see already Boris Meissner, Sowjetunion und Selbstbestimmungsrecht (Cologne: Verlag Wissenschaft und Politik 1962), 25. 13 See https://www.marxists.org/history/ussr/government/1917/11/02.htm. 14 See https://www.marxists.org/history/ussr/government/1917/11/02.htm.

Journal of the History of International Law 19 (2017)Downloaded 200–218 from Brill.com10/01/2021 07:43:47PM via free access 206 Mälksoo expressed in the Declaration was still the ‘honest and lasting union of the peoples of Russia’. At the very least, the two conflicting goals – tolerance for secession and creating a lasting union – co-existed with each other, as they often do in political documents. Thus, the Bolshevik political offer to the minority peoples in Russia was more like a time-out in the constitutional relationship; but not its ultimate abolition. One of the ways in which the Bolsheviks wanted to deal with the right of peoples to self-determination in practice was to proclaim independent Soviet republics in separatist regions which the Bolshevik government in Moscow would then quickly recognize as the representative of the respective nation expressing its desire for self-determination. Thus, the Russian Soviet Federated Socialist Republic recognized the independence of Estonia, Latvia and Lithuania in December 1918.15 However, importantly, this was a recognition given to Soviet formations that the Bolsheviks had themselves helped to create – essentially the mes- sage was that we, the Russian Bolsheviks, recognize you, Estonian Bolsheviks, as independent. Just as in Russia, civil war broke out between the Reds and various factions of Whites in territories compactly inhabited by imperial Russia’s minority peoples, where the proclaimed yet short-lived Bolshevik national formations faced military resistance from nationalists who wanted self-determination in the bourgeois fashion, as classic nation states. For these political forces and factions, the Soviet determination to recognize self- determination for Russia’s minority peoples was insincere from the beginning because the Russian Bolsheviks would fight alongside Bolsheviks represent- ing minority peoples against the establishment of these bourgeois republics. For national Bolsheviks, independence was more like tactical bait to win over the hearts and minds of their respective non-Russian peoples. In any case, for Bolsheviks one’s ethnic belonging was less important than to which class one belonged. In their act of recognition of Soviet Estonia, Latvia and Lithuania in December 1918, the Russian Bolsheviks literally highlighted that on the basis of self-determination and of the seizure of power by the working class in the Baltic States ‘a voluntary and inviolable federation of the workers of all nations living in the territory of Russia would emerge.’16 Later, the leading Soviet international lawyer Grigory Tunkin explained:

15 Emphasized by Cassese, Self-Determination of Peoples 1995 (n. 9), 258; Bowring, Law, Rights and Ideology 2013 (n. 6), 85. 16 ‘O priznanii sovetskikh sotsialisticheskikh respublik Estonii, Litvy i Latvii’, in Akademia Nauk SSSR, Institut Prava imeni A. Ya. Vyshinskogo (ed.) Istoria Sovetskoi Konstitutsii. Sbornik dokumentov 1917–1957 (Moscow 1957), 103; cited in Marianne Wannow, Das

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. . . as the experience of the self-determination of the nations that had been part of the former Russian Empire confirmed, self-determination can be realized most completely and profoundly when one finds expressed therein the interests and the will of the working people, the over- whelming majority of a nation.17

Thus, secession as an expression of self-determination promised by the Bolsheviks in 1917/1918 actually came with important strings attached. The Russian Bolsheviks did not grant self-determination to any of imperial Russia’s minority peoples as a free gift but the secession of those peoples was fought for the hard way, militarily.

3 Self-determination in the Soviet Peace Treaties of 1920: An (Almost) Forgotten Chapter in the History of International Law

Nevertheless, when the separatist bourgeois republics had prevailed and facts had been established on the battlefield, both the Bolshevik centre and the bourgeois separatist regions were ready to formally recognize each other in 1920. During peace negotiations with the newly emerged nation states on its Western border, Soviet Russia suggested that the right of peoples to self- determination should be explicitly included in peace treaties. The Soviet Peace Treaties of 1920/1921 have been a somewhat underestimat- ed chapter in the history of the right of peoples to self-determination in international law. This was partly so because later, when Moscow had liquidated the independence of these states, it was not genuinely interested in promoting the historical importance of these Peace Treaties. Considering that it was the first time that a former imperial power explicitly recognized secession based on the right of peoples to self-determination, these treaties are nevertheless of historical significance in international law. The right of peoples to self-determination as part of bilateral and regional international treaty law starts here. The first such treaty was between Soviet Russia and the Republic of Estonia. Article II of the Tartu Peace Treaty that was concluded on 2 February 1920 between the Republic of Estonia and Soviet Russia stipulated the following:

Selbstbestimmungsrecht im sowjetischen Völkerrechtsdenken (Göttingen: Institut für Völkerrecht 1965), 52. 17 Tunkin, Theory of International Law 1974 (n. 4), 8.

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On the basis of the right of all peoples freely to decide their own destinies, and even to separate themselves completely from the State of which they form part, a right proclaimed by the Federal Socialist Republic of Soviet Russia, Russia unreservedly recognizes the independence and autonomy of the State of Estonia, and renounces voluntarily and for ever all rights of sovereignty formerly held by Russia over the Estonian people and territory by virtue of the former legal situation, and by virtue of international treaties, which, in respect of such rights, shall henceforth lose their force. No obligation towards Estonia devolves upon the Estonian people and territory from the fact that Estonia was formerly part of Russia.18

Similarly, on 7 May 1920, Georgia and Soviet Russia concluded the Moscow Peace Treaty in which Article I emphasized the same right of peoples to self- determination as a basis for Georgia’s separation from Russia.19 Moreover, Article I of the Moscow Peace Treaty concluded on 12 July 1920 between Lithuania and Soviet Russia included an almost identical formulation regarding the right of peoples to self-determination.20 Furthermore, Article II of the Latvian-Russian Peace Treaty concluded in Riga on 11 August 1920 stipulated in the same spirit:

By virtue of the principle proclaimed by the Federal Socialist Republic of the Russian Soviets, which establishes the right of self-determination for all nations, even to the point of total separation from the States with which they have been incorporated, and in view of the desire expressed by the Latvian people to possess an independent national existence, Russia unreservedly recognizes the independence and sovereignty of the Latvian State and voluntarily and irrevocably renounces all sovereign rights over the Latvian people and territory which formerly belonged to Russia under the then existing constitutional law as well as under international Treaties which, in the sense here indicated, cease in future to be valid.21

18 LNTS 1922 No 289, available at: http://www.worldlii.org/int/other/LNTSer/1922/92.html. 19 https://matiane.wordpress.com/2010/03/01/treaty-of-moscow-1920/. 20 LNTS 1921 No 94, available at: http://www.worldlii.org/cgi-bin/sinodisp/int/other/treaties/ LNTSer/1920/2.html?query=Lithuania. 21 LNTS 1920–1921 No 67, available at: http://www.worldlii.org/int/other/LNTSer/1920/63 .html.

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Apparently, the only country in the Baltic Sea region that did not have a similar stipulation on the right of peoples to self-determination as a basis for secession in its Peace Treaty with Moscow was Finland,22 which signed its Peace Treaty with Soviet Russia on 14 October 1920 in the Estonian university town of Tartu (Dorpat).23 Nor did Poland, which re-emerged from World War I as an independent state, include such a reference to self-determination in its Peace Treaty signed with Soviet Russia on 18 March 1921. There is an irony of history here because Finland and Poland were the only nations in this group of states that managed to preserve their statehood after World War II. Different interpretations are possible regarding why the right of peoples to self-determination was not included as ground of secession in Soviet Peace Treaties with Finland and Poland. Both countries were bigger than the three Baltic States of Estonia, Latvia and Lithuania and they may have wanted to avoid the impression of being born inter alia as result of the good will of the Russian Bolsheviks – thus also inevitably becoming useful examples for the Bolshevik propaganda. Moreover, in Poland’s case the country looked back at centuries of glorious statehood, which is why for Poles this was a resto- ration of statehood, not its creation. Poland’s ‘self-determination’ had already taken place during the Middle Ages. In contrast, Estonia and Latvia in the borders of 1920 had never before existed as independent states. Although a mediaeval Baltic German crusader con- federation called Old Livonia existed for more than three hundred years and could with some stretch be regarded as predecessor of Estonia’s and Latvia’s statehood in 1918,24 the borders of the Tsarist Russian Baltic provinces Estonia, Livonia and Curonia did not follow the ethnic borders there. For example, the northern part of Livonia was predominantly inhabited with ethnic Estonians and the southern part with ethnic Latvians. Thus, in 1920 the borders of the Republics of Estonia and Latvia had to be agreed upon from scratch and by and large the ethnic principle was used for this. Why were self-determination stipulations included in a number of Soviet Peace Treaties of 1920–1921? As already emphasized, the independence of the new nations had actually been fought for the hard way, militarily. In the end the fait accompli simply needed to be recognized. Presumably, too, in 1920 the Soviets needed references to self-determination of peoples also for reasons

22 On developments in Finland in 1918–1920, see further Hermann Raschhofer, Selbstbestimmungsrecht und Völkerbund (Cologne: Verlag Wissenschaft und Politik 1969), 24 et seq. 23 LNTS 1921 No 91 available at: http://www.worldlii.org/int/other/LNTSer/1921/13.html. 24 See Ants Piip, Rahvusvaheline õigus [International Law] (Tartu: Akadeemiline Kooperatiiv 1936), 42–43.

Journal of the History of International Law 19 (2017)Downloaded 200–218 from Brill.com10/01/2021 07:43:47PM via free access 210 Mälksoo of domestic legitimacy in Russia: to justify to citizens who proceeded from the premise of the territorial integrity of the former Russian Empire why the Bolshevik government would ‘give away’ or let go territories historically ac- quired by the Empire. Many Russian Whites were not happy about these secessions and saw the emergence of new small states in the western border areas almost as an evil comparable to the Bolsheviks themselves coming to power in Russia proper. If we take the Peace Treaties that the Russian Bolsheviks concluded in 1920/1921 at their face value, we can say that they were ‘ahead of their time’ and that in the centre’s bilateral relations with former parts of the Tsarist Empire they recognized a standard of secession which did not yet exist in general international law as formulated at the League of Nations. In the case of the League of Nations, the Commission of Jurists found in its report dated 5 September 1920 that the principle of self-determination had not been firmly established in international law and did not automatically allow for secession. Thus, the Swedish-speaking inhabitants of the Åland islands could not join Sweden and separate from Finland. Another commission established in the framework of the League of Nations, the Commission of Rapporteurs, in its report of April 1920 also rejected application of the principle of self-determination as implying the right to secession.25 Thus, the right of peoples to self-determination as such was recognized as existing but not as a ground for secession. Compared to this cautious standard, the Russian Bolsheviks were indeed more consequential and radical in their Peace Treaties of 1920: if one already invokes self-determination then why not go to its logical conclusion by including the right to secession? The Russian Bolsheviks would indeed deserve credit for this standard if they would have upheld this standard that they proclaimed in the lands of the former Tsarist Empire in 1917/1920. However, as we will see next, they did not do so.

4 Meanwhile in State Practice: Self-determination (Only) in the Confines of the USSR

As indicated in the Declaration of the Rights of the Peoples of Russia in 1917 and in some Bolshevik writings: separation from Russia was conceivable but by the laws of historical materialism it would primarily be a temporary measure.

25 Sia Spiliopoulou Åkermark, ‘The Åland Islands Question in the League of Nations: The Ideal Minority Case?’, in Redescriptions – Yearbook of Political Thought, Conceptual History and Feminist Theory, Vol 13 (2009), 195–205, available at: http://www.jyu.fi/yhtfil/ redescriptions/Yearbook%202009/Spiliopoulou_2009.pdf.

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In this spirit, the secessionist republics on the western and southern borders faced almost constant ideological and often hybrid military pressure from Soviet Russia and the USSR, which was formed in 1922. One often forgotten example is Georgia. Hardly had the ink dried on the Soviet Russian-Georgian Peace Treaty of 1920 when the intruding Bolsheviks managed to liquidate the independence of the bourgeois republic. The Red Army, also relying on internal support from Georgian Bolsheviks, occupied and annexed Georgia in February 1921. Unlike the Baltic States, Georgia did not even have time to become a member state of the League of Nations. The Georgian- Russian Peace Treaty, unlike its equivalents in the Baltic States, was therefore not even published in the League of Nations Treaty Series. In the Baltic States, relations between Soviet Russia and the newly emerged bourgeois republics sometimes resembled what is nowadays called hybrid warfare.26 For example, on 1 December 1924 a group of about two hundred armed Bolshevik guerrillas, most of whom had managed to illegally enter the territory of Estonia from Soviet Russia, attempted an armed coup d’état in the capital city Tallinn during which twenty-six policemen and government loyal- ists were killed. The coup, supported by the Comintern in Moscow, failed but it did not look like the independence ‘for ever’ that was agreed upon in the 1920 Estonian-Soviet Russian Peace Treaty. When Stalin consolidated his power in the USSR, he made a straightforward and sincere move to restore imperial Russia’s borders. The opportunity was presented by the conclusion of the Hitler-Stalin Pact of 23 August 1939 and its secret protocols, which ultimately enabled Moscow to occupy and annex the three Baltic States of Estonia, Latvia and Lithuania as well as Bessarabia from Romania. The annexation was completed in August 1940; from the viewpoint of the bourgeois Baltic republics, their secession from Russia had lasted just twenty years. Most politicians, leading military and police officers were arrested and charged with anti-Soviet activity; thus, the Soviet reversal of recognition of the right of the Baltic peoples to self-determination even had a repressive criminal law dimension. This was evidence of a highly cynical and nihilist understanding of the principle pacta sunt servanda in international law; under Stalin, Moscow reduced its treaties with the western boundary states to merely tactical instruments. However, in Finland, the Soviet effort to reverse the situation that consolidated itself in 1920 failed in 1939/1940. The Finns stoutly resisted the Soviet

26 See, e.g., Reigo Rosenthal/Marko Tamming, Sõda enne sõda. Nõukogude eriteenistuste tege- vusest Eestis kuni 1940. aastani [War before the War. On the Activities of the Soviet Special Services in Estonia before 1940] (Tallinn: SE ja JS 2013).

Journal of the History of International Law 19 (2017)Downloaded 200–218 from Brill.com10/01/2021 07:43:47PM via free access 212 Mälksoo military assault in the Winter War of 1939–1940 and maintained the independence of their nation. As a price for fighting back against the far bigger USSR, the Finns had to cede parts of their territory in the east. Because of its military attack on Finland, the USSR was expelled from the League of Nations; another low point of the Soviet reversal of the right of peoples to self-determination. In 1939–1940, the Soviets took their own rhetoric of the right of peoples to self-determination seriously in one sense, though – they tried quite hard to create the appearance that the re-unification of the small bordering nations with (now Soviet) Russia was entirely voluntary, an expression of the will of their peoples. For example, for Finland, the government of Terijoki was established by the Finnish Communist Otto Wille Kuusinen, who then quickly called the Soviet government in Moscow to help. In the Baltic States, Stalin’s emissaries Zhdanov, Vyshinsky and Dekanozov even staged ‘socialist revolutions’ in June 1940 in which again a propagandistic parallel reality was created, inter alia by bringing in Communist demonstrators from Russian border regions.27 Fake news and alternative facts is not a phenomenon of our own time only. Within Soviet Russia and later the USSR, the Bolsheviks started to insist that with reforms and promotion of national cultures in the USSR, the right of peoples to self-determination was already realized within what they started to call the federation, and thus the legitimate ground for separation from re- formist socialist Russia had disappeared. Indeed, an important aspect of Soviet policies was that, unlike the Russian Empire that, starting from the second half of the 19th century, attempted cultural and linguistic Russification of its minority peoples, in the 1920s the Soviets instead tried out elements of a policy of korenizatsiia (indigenization; sometimes also called nationalization), i.e. promoting national languages, cultures and elites in the newly created Soviet republics and autonomous territories – as long as they were Soviet republics.28 In a number of places, for example in Central Asia, it is not an exaggeration to say that the Soviets de facto acted as nation builders within the USSR. However, the bottom line was that secession from Soviet Russia was de facto not possible; where it had happened, there were serious geopolitical attempts to reverse the events. The result was a confusing situation that on the one hand there was a lot of talk of the importance of self-determination but on the other hand something unconventional and unusual, at least in the liberal European

27 See further Boris Meissner, Die Sowjetunion, die baltischen Staaten und das Völkerrecht (Cologne: Verlag für Politik und Wirtschaft 1956); Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR (Leiden: Brill 2003). 28 See further Martin, Nations and Nationalism 2001 (n. 11), 10 et seq.

Journal of the History of InternationalDownloaded Law from 19 Brill.com10/01/2021(2017) 200–218 07:43:47PM via free access Lenin, Wars of Liberation & Soviet on the use of force 213 sense was meant by it in Soviet Russia. Consider, for example, the meaning of this passage in the work of the leading Soviet international lawyer Grigory Tunkin:

Emphatically disassociating himself from the bourgeois understanding of the principle of self-determination as having the purpose to create ‘nation-states’, V.I. Lenin stressed that the principle of self-determination is, on the contrary, a means of bringing nations together on the basis of socialism. . . . The Russian Communist party struggled for the unification of all nations of Russia because the interests of the proletarian revolution required this; struggled for unification on a voluntary basis, so that indi- vidual nations exercising their right to self-determination have expressed themselves freely for unification with the other socialist soviet republics. The Union of Soviet Socialist Republics was created on this basis.29

The right of peoples to self-determination was interpreted through the prism of the highest goal of the Bolsheviks: to eventually get to the utopian ideal of a classless society by means of the rule of the proletariat. International law as such, to the extent that the Bolsheviks accepted and recognized it, was newly interpreted in the light of this higher goal. The Bolsheviks broke with ‘old’ international law, and in this process often gave new idiosyncratic meanings to notions that had been developed in European legal and political thought. It was like a distorting mirror in which the mirrored objects took a different form. The right of peoples to self-determination was one such example of Bolsheviks using a liberal vocabulary but giving to it a different content, at least in the space that they controlled. There were other cases when the customary liberal legal vocabulary re- ceived a new meaning in the USSR. For example, the Bolsheviks reconstituted the deceased Russian Empire as a ‘federation’ – although Western scholars have emphasized that it was so centralized that it could not have been a federation by Western standards and understandings.30 Furthermore, in their con- stitutionalist thinking the Soviets even called the constituent republics of the USSR ‘sovereign’ even though these republics had, for example, no competence in foreign and security policy and no right to limit immigration from within the USSR. The insight that the Soviets were hypocritical in their application of the right of peoples to self-determination is not in itself new. However, I want to go

29 Tunkin, Theory of International Law 1974 (n. 4), 10–11. 30 See Martin, Nations and Nationalism 2001 (n. 11), 13–15.

Journal of the History of International Law 19 (2017)Downloaded 200–218 from Brill.com10/01/2021 07:43:47PM via free access 214 Mälksoo further from this insight and argue that the Soviet concept of the right of peoples to self-determination was just one reflection and function of the regional fragmentation of international law that happened when the Bolsheviks came to power in Russia in 1917. Not only did they create their own flexible standard of self-determination of peoples, they created their own regional language of international law as such. It did not matter that from the viewpoint of Western legal thought, the Soviet constituent republics could not have been ‘sovereign’; this is how the Soviets wanted them to be seen and who could forbid them? In the same way, when the Soviets started to insist that the self-determination of peoples was fully guaranteed in the USSR, then this was the de facto applicable national-regional standard or official understanding in the USSR. Altogether, the use of these key legal concepts by the Soviets confirms that the Soviets engaged in what the his- torian Francine Hirsch has called selective borrowing from Western European ideas.31 My argument is that the right of peoples to self-determination also belongs to European/liberal-progressive ideas which the Bolsheviks selectively borrowed and used – because it was interpreted through the overarching aim of building Communism. From the Bolshevik perspective, secession ‘for ever’ as guaranteed in Soviet Peace Treaties did not fully contradict their subsequent aggressive moves – because in their mind or propaganda the Russian Empire had been reconstituted as a ‘federation’ of ‘sovereign’ states in which the ‘right of peoples to self-determination’ was fully guaranteed. For example, had the Bolsheviks managed to be successful with their armed coup d’état in Tallinn on 1 December 1924, the newly constituted Soviet Estonia would have petitioned to join the USSR – and Estonia would have maintained both ‘sovereignty’ and ‘self- determination’; only that instead of capitalists, the workers themselves would have come to power. How Russian imperial thinking continued to flourish in these thought constructions often remained unnoticed by their exponents. My argument here is that it is misleading to pick and choose certain pro- self-determination moves by the Bolsheviks in 1917 or 1920, and then conclude that the Soviets advanced this right in international law. The Bolshevik rhe- torical pronouncements of 1917 and 1920 have to be seen in their historical and ideational context, and in the light of subsequent state practice, which tells a different story. The Bolshevik use of the right of peoples to self-determination had strong propaganda and tactical elements, whereas actual state practice spoke the language of restoring the borders of the Russian Empire. The very way Soviet Russia and later the USSR talked about and practised the right of

31 Hirsch, Empire of Nations 2005 (n. 11), 5.

Journal of the History of InternationalDownloaded Law from 19 Brill.com10/01/2021(2017) 200–218 07:43:47PM via free access Lenin, Wars of Liberation & Soviet on the use of force 215 peoples to self-determination revealed a new and different approach to international law as such, which was tactical, propagandistic, and flexible.

5 The USSR and the Standard of Self-determination during Decolonization

By the end of World War II, Stalin managed to organize large parts of Eastern Europe under Soviet control. Countries such as Poland and Hungary were not annexed but loyal governments led by local Communists were installed. Uprisings against Communist rule in GDR in 1953, in Hungary in 1956 and in Czechoslovakia in 1968 were militarily suppressed. For Western countries, this did not correspond to the right of these peoples to self-determination, but apparently, the Soviets did not want to see the irony and the contradiction in their policies. However, globally the main focus was on the so-called third world, usually former European colonies. As far back as 1916, Lenin had written that the right of peoples to self-determination also extended outside Europe.32 This enabled the Soviets to appear with some legitimacy as big supporters of decolonization. By the time that decolonization took place, the Soviets had developed double standards in the understanding of the right of peoples to self-determination. According to Soviet thinking, the world was divided into two parts: one part where the problem of self-determination had been fully and successfully solved (the Soviet bloc) and the other part where it had not yet been solved (the capitalist bloc of countries, especially the colonies of the former European Empires). Therefore, the international legal standard of self-determination was not really universal at that time in state practice, even though the covenants of 1966 spoke of the right in universal language. In terms of self-determination, the USSR completely refused to subject itself to criticism similar to its own regarding West European states and their former colonial empires. It is with this normative outlook that Soviet diplomacy supported the right of peoples to self-determination during UN debates on decolonization in the 1950s–1960s. The USSR energetically supported the independence of former European colonies but for itself claimed the absolute priority of the principle of state sovereignty and territorial integrity, arguing that self-determination within the USSR had already been expressed. Guinea Bissau could become independent but Latvia could not.

32 Hirsch, Empire of Nations 2005 (n. 11), 51.

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It must be said that for a while Soviet diplomacy was quite successful with this approach. It was finally agreed in Western doctrine of international law that secession was acceptable as a manifestation of the right of peoples to self- determination but only in ‘colonial situations’. These in turn were defined by what some started to call the ‘salt water doctrine’ according to which colonial situations concerned overseas territories. This interpretation favoured the USSR as opposed to maritime West European former colonial states because the Russian Empire was a continental Empire and had hardly any overseas colonies. Thus, after World War II it became evident that the Soviets used different legal-political standards at home and abroad; instead of a universal standard of the right of peoples to self-determination, two regional standards emerged in which even the phrase ‘self-determination of peoples’ was understood with different accents. The West was unwilling to concede the right to secession and eventually only accepted it in ‘colonial situations’ or in a somewhat abstract situation when the suppression of a minority became intolerable and no ‘internal self-determination’ was possible. For the USSR, the right of peoples to self-determination as secession really only concerned other countries because the problem of self-determination was arguably fully resolved in the USSR. However, in the Western liberal sense (emphasizing democracy and human rights) there was no ‘internal self-determination’ within the USSR either, presumably not even for the Russian people. Altogether, it is doubtful whether a universal standard of the right of peoples to self-determination emerged in international law either in 1917/1920 or even after 1966, because capitalist states (‘the free world’) and the socialist camp controlled by the USSR employed different concepts of the right. The understanding and application of the right of peoples to self-determination remained situational and often contradictory. It was less flowing from an abstract natural law-like universal idea but in practice always emerged as a manifestation of konkrete Ordnung such as Soviet dominance in Eastern Europe after the arrangement of Yalta and Potsdam.

6 Conclusion

In retrospect, the main point is not that the Soviets were hypocritical about the right of peoples to self-determination in international law. They were nei- ther the first nor the last great power to be hypocritical about international legal norms that they arguably promoted. The point is rather that the Soviet

Journal of the History of InternationalDownloaded Law from 19 Brill.com10/01/2021(2017) 200–218 07:43:47PM via free access Lenin, Wars of Liberation & Soviet on the use of force 217 use of the concept of the right of peoples to self-determination revealed that after 1917, international law had become regionally fragmented. There were two different regional orders but also two different languages about international law in which the same words meant at least partly different things. This reveals what actually happened with international law in 1917: the Bolsheviks led Russia to its separation from jus publicum europaeum. From Peter the Great to 1917, Imperial Russia made enormous efforts to act and appear as one of the European powers and also to contribute to the understanding of international law as a European power. Russia’s leading international law scholars such as Friedrich (aka Fyodor) Martens (1845–1909) assumed that whatever the future relationship might be between empires and their ethnic groups, the European great powers – France, England, Germany, Austro-Hungary and Russia – would be in this order together as ‘civilized states’.33 Of course, jus publicum europaeum of the pre-World War I era was not universal international law, because control over international law belonged only to civilized nations, which were not constrained by international law in their relations with uncivilized or semi-civilized nations. The Bolsheviks helped to liquidate this old order, but as their use of the right of peoples to self- determination demonstrates, the new international legal order that emerged was not truly universal international law either. Socialist international law with its idiosyncratic standards differed from Western concepts of international law, and in the realm of self-determination too the main criterion was to increase and not diminish Soviet influence and power. Jus publicum europaeum did not disappear entirely and instead continued in new forms – first in the League of Nations and then, after World War II, in the form of the law of the European Communities and the Council of Europe. Even today, post-Soviet Russia continues to have a quite painful and strained relationship with elements of the contemporary European legal space, especially in the European Court of Human Rights. In and after 1917, Russia, led by the Bolsheviks, broke with ‘civilized’ (Western) Europe and attempted instead, and not without success, to become a leader of the ‘non-European’ world. The two regional standards of the right of peoples to self-determination simply reflected this wider trend. Obviously, no Soviet author of international law saw the end of jus publicum europaeum in such a nostalgic way as did, for example, the German public law theoretician

33 Fyodor F. Martens, Sovremennoe mezhdunarodnoe pravo tsivilizovannykh narodov (Moscow: Iuridicheskii kolledzh MGU 1995), 119–121. (The first edition of this leading text- book was published in 1882.)

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Carl Schmitt writing after World War II.34 The Soviets were looking at the ruins of jus publicum europaeum (what Soviet scholars like Tunkin called ‘old international law’) already from the outside while Schmitt as a German conservative nationalist still looked at them from the inside. As the propagandistic promoter of the right of peoples to self-determination, the USSR had to give up almost nothing; its territory still almost matched that of the Tsarist Empire (minus Poland and Finland which, however, had Soviet strings attached to their statehood during the Cold War). Of course, this situation was not sustainable in the long run and ended with the fall of the Berlin Wall in 1989 and the collapse of the USSR in December 1991. Thus, paradoxically, although Lenin proclaimed the right of peoples to self-determination as long ago as 1917, it truly arrived for the larger minority peoples of the former Russian Empire only when the USSR collapsed in 1991. However, in today’s Russian legal doctrine there is no doubt that on a conceptual level territorial integrity has priority over the right of peoples to self-determination35 – except perhaps when it concerns the Russian-speaking population in Ukraine’s Crimea, which seems to be an expression of the same legal flexibility that the Soviets already introduced in Russia in the interwar period. Al-though international law since 1966 firmly includes the right of peoples to self-determination, the exact contours of that right in the 21st century remain very much debated, and its realization usually remains highly situational and concrete (often bloody too) rather than following a clear universal blueprint.

34 Carl Schmitt, Der Nomos der Erde im Völkerrecht des Jus Publicum Europaeum (Berlin: Duncker & Humblot 1997) (originally printed in 1950). 35 See, e.g., V. Shumilov, Mezhdunarodnoe pravo, 2nd ed. (Moscow: Mezhdunarodnye otnoshenia 2012), 437.

Journal of the History of InternationalDownloaded Law from 19 Brill.com10/01/2021(2017) 200–218 07:43:47PM via free access