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Soviet International Law: an Exemplar for Optimal Decision Theory Analysis

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Soviet International Law: an Exemplar for Optimal Decision Theory Analysis Case Western Reserve Law Review Volume 20 Issue 1 Article 6 1968 Soviet International Law: An Exemplar for Optimal Decision Theory Analysis James L. Hildebrand Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation James L. Hildebrand, Soviet International Law: An Exemplar for Optimal Decision Theory Analysis, 20 Case W. Rsrv. L. Rev. 141 (1968) Available at: https://scholarlycommons.law.case.edu/caselrev/vol20/iss1/6 This Note is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 19681 NOTE Soviet International Law: An Exemplar for Optimal Decision Theory Analysis I. INTRODUCTION HE CZARIST CONTRIBUTION to the formation of international law in Russia amounted only to a passive social aggrandize- ment of the bourgeois institutions which were at that time actively fostered by the Western Nations. Nonetheless, by the early eight- eenth century Russia had been accepted in the world community; and she continued to act under those institutions of international law which were, by then, as much a part of her legal system as they were of any other nation. With the Revolution in 1917 and the complete reversal of the social stratification within Russia, the dilemma arose as to how the Soviet Union should participate in international affairs without accepting the bourgeois institutions of international law that the deposed Czars had helped to establish. During the first half of the twentieth century, many attempts were made by the leading Soviet legal theorists to reconcile inter- national law with Marxist doctrine. First Korovin, then Pashuka- nis, later Vyshinskii, and finally Tunkin tried to solve this dilemma. With Khrushchev backing the theme of peaceful coexistence, in 1956, a compromise of the divergent legal systems was acknowl- edged by the Soviet government. The latest shift in Soviet inter- national legal policy has been from Khrushchev's coexistence theme to Brezhnev and Kosygin's theme of co-operation - a significant change in terminology and approach. Indeed, the current East- West ddtente era has created a "new" international law made up of consensually-based rules. Through all of these shifts in interna- tional legal theory, Soviet national interest has been the guideline for change.1 1The [Sloviet theory of international law has undergone dramatic and far- reaching changes from the inception of the [S]oviet State until now. By far the largest part of this change is inextricably interwoven into the fabric of U.S.S.R. foreign and domestic policy. It is a remarkable record of tortuous weavings between the Scylla of reality and the Charybdis of theory. Snyder & Bracht, Coexistence and International Law, 7 INT'L & CoMP. L.Q. 54 (1958). See also Snyder, The Communist Theory of International Law, 2 VA. J. INT'L L. 80 (1962). CASE WESTERN RESERVE LAW REVIEW [Vol. 20:141 The Soviet's pragmatic use of international law, when compared with the United States own foreign policy justifications, provides an exemplar for current optimal decision theory analysis. Such analysis attempts to determine the appropriate evaluative method for policy determination when information levels are imperfect and varied. The ideological glasses through which the East and the West view the world give distorted, if not false, pictures of inter- national conflict situations. However, optimal decision theory analysis may provide the understanding for a mutual reevaluation of the espoused opposing ideological outlooks and may establish the basis for the necessary mankind perspective in this pluralistic in- ternational society. The purpose of this Note is to delineate: (1) the Soviet herit- age of Czarist Russia's contributions to traditional international law; (2) the theoretical concepts which give rise to the Soviet dilemma of reconciling Marxist doctrine with international law; (3) the attempts by certain Soviet legal theorists to shorten the horns of the dilemma; and (4) the recent changes in the dominant theory of public Soviet international law. Modern evaluation and decision-making theory will be employed as a vehicle to explain differing approaches to international conflicts resolution, including the Soviet Union's recent intervention in Czechoslovakia. A brief critical comparison will then be made between the Soviet "hang- ups" in effectuating a valid theory of international law and the inconsistency between the United States democratic ideals and American international relations. Finally, an operational socio- logical approach based on a trans-cultural consensus will be sug- gested as a potential solution to the dilemmas in international jurisprudence which have been created by a world of polarized ideological beliefs. II. HISTORICAL PERSPECTIVE Russia was slow coming into full intercourse with the Western Nations due to the continuance in the seventeenth century of her serfdom 2 society and her ingrained isolationism, which in part was 2 The Russian serfs were the mass body of unemancipated tillers of the soil. The expression "feudalistic society" is often used, or rather misused, by American writers to denote a society which is aristocratic and not democratic. Russia, unlike most of Europe, never knew the feudal system; and therefore, in the strict sense, there never was a feudalistic society in Russia. There was, however, a serfdom society. Compare J. CLARKSON, A HISTORY OF RussrA 71, 203 (1962), with B. PAREs, THE FALL OF THE RussiAN MONARCHY 40 (1961). See also J. BRIERLY, THE LAW OF NATIONS 2-4 (6th ed. 1963). 19681 SOVIET INTERNATIONAL LAW a reaction to the early Tartar domination and Teuton oppression.' However, by the early eighteenth century, Russia had been received as a great power in the "family of nations." This recognition preceded that of the United States by only a little more than 70 years and was due largely to Peter the Great's innovations both in internal government and in international relations.5 A. InternationalLaw Under the Czars In the sixteenth century, Ivan III "the Great" (1462-1505) and Ivan IV "the Terrible" (1533-1584) 6 attempted to gain recogni- tion for Russia, but these rulers lacked not only Peter the Great's genius and energy but also the proper Zeitgeist - the external "time spirit"7 - and the internal means of production and coercive strength which would later allow Russia to change her position from that of a backward state to that of a recognized world power. Russia's slow ascendancy to the family of nations did not mean that the Czars were slow to learn about the subjects of interna- tional law. First the Kiev government of southwestern Russia and then the Muscovy government, further north, maintained treaty relations with neighboring empires, kingdoms, and cities.8 The Czars had "sent and received ambassadors, drawn boundaries, nego- tiated rights of navigation and commerce, even insisted on occasion upon formal and substantive rules of war."9 The increase of inter- 3 P. SOROKIN, RUSSIA AND THE UNITED STATES 36 (1944). 4 See C. FENWICK, INTERNATIONAL LAW 102 (3d ed. 1948). The "family of nations" is that group of nations recognized as having equal status under international law. 5W. WALSH, RussiA AND THE SOVIET UNION 107-08, 113-14 (1958); J.CLARK- SON,supra note 2, at 187-204. But compare note 10 infra. 6The dates in parentheses refer to periods of reign. See J.CLARKSON, supra note 2, at 815-17. 7 Zeitgeist can be defined as a deterministic causal factor, "some quintessential spirit of the time, some intellectual atmosphere or 'climate' of opinion, some unitary force ...... R. WELLEK & A. WARuEN, THEORY OF LITERATURE 62 (1956). See note 10 infra. Compare with Weltanschauung as defined in R. WELLEK & A. WAR- REN, supra at 106 and note 134 infra. 8F.CORBETr, LAW IN DIPLOMACY 83 (1959). For a discussion of Kievan Rus and the Muscovite State, see J.CLARKSON, supra note 2, at 46-48, 84-90. In this early period nationalism was still very disjointed and cities could be con- sidered subjects of what might then have been accepted as "international law," at least insofar as it was within the "sovereignty" of these cities to make trade and protection agreements. -See C. FENWIcK, supra note 4, at 10; J. RALSTON, INTERNATIONAL AR- BITRATION PROM ATHENS TO LOCARNO 177 (1929). For a discussion of present day "communities" not having the character of states as subjects of international law, see H. KELSEN, PRINcIPLES OF INTERNATIONAL LAW 158-88, 264-79 (1952). 9 P. CORBETT, supra note 8, at 83. CASE WESTERN RESERVE LAW REVIEW [Vol. 20: 141 national trade in the sixteenth and seventeenth centuries eventually brought the now centralized Moscow government into relationship with all the European States. Peter the Great (1682-1725), now referred to as "the first Bolshevik," did much to Europeanize Russia.10 He concentrated his expansionist energies in a series of successful aggressive wars which were concluded in treaties favorable to the growing Russian trade with other countries. "In one reign, Russia, a backward and ignored country, became a major power and a member of the Euro- pean community of states - a historical development unparalleled until the rise of Japan in the late nineteenth century."" Despite the fact that the earlier Czarist governments appear at first glance to have done relatively little to further developments of international law, the Marxist interpretation of the history and origins of international law is greatly tainted with nationalistic pride and attributes many of the advances in this field, as in the 10 Some historians, however, prefer to give more credit to the Zeitgeist of that time than to Peter the Great: Although for propaganda purposes the legendary figure of Peter I has been kept alive, costumed anew as "the first Bolshevik," it has long since become obvious that the continuity of Russian history was unbroken by the reign of Peter.
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