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The Transformation of the Soviet Union: from a Socialist Federation to a Commonwealth of Independent States

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The Transformation of the Soviet Union: from a Socialist Federation to a Commonwealth of Independent States Loyola of Los Angeles International and Comparative Law Review Volume 14 Number 3 Symposium on Unconscionability around the World: Seven Perspectives on the Article 9 Contractual Doctrine 7-1-1992 The Transformation of the Soviet Union: From a Socialist Federation to a Commonwealth of Independent States Urs W. Saxer Follow this and additional works at: https://digitalcommons.lmu.edu/ilr Part of the Law Commons Recommended Citation Urs W. Saxer, The Transformation of the Soviet Union: From a Socialist Federation to a Commonwealth of Independent States, 14 Loy. L.A. Int'l & Comp. L. Rev. 581 (1992). Available at: https://digitalcommons.lmu.edu/ilr/vol14/iss3/9 This Article is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles International and Comparative Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. The Transformation of the Soviet Union: From a Socialist Federation to a Commonwealth of Independent States URS W. SAXER I. INTRODUCTION: THE REVOLT OF THE SOVIET UNION'S REPUBLICS .................................. 585 II. THE LEGAL FRAMEWORK OF FEDERATIONS AND CONFEDERATIONS .................................... 590 A. Federalism as the Exception, Unitarianismas the R ule ............................................. 590 B. Federalism and Decentralization .................. 592 C. Common Features of Federations................... 594 1. General Remarks ............................. 594 2. A Federation's System of Government ........ 597 3. Basic Features of Federal Constitutions ....... 598 4. The Federation as a State ..................... 600 5. Member States of Federations as Subjects of International Law ............................ 602 D. Common Featuresof Confederations .............. 603 III. THE PAST: FEDERALISM AS UNDERSTOOD IN THE SOVIET UNION ....................................... 606 A. Leninist and Stalinist Conceptions of Federalism ... 606 B. The Dismemberment of the Unitary Tsarist State .. 609 C. The Road to Establishing the Soviet Union as a Union ............................................ 611 1. Contract-Based Cooperation Among the Republics: Confederative Structures .......... 611 2. Conclusion of the 1922 Union Treaty ......... 612 D. ConstitutionalDevelopments from 1924 to 1977 ... 615 1. The Union Constitution of 1924 .............. 615 2. The Union Constitution of 1936 .............. 616 3. The Union Constitution of 1977 .............. 619 IV. CRISIS: PERESTROIKA AND THE DISINTEGRATION OF THE U NION ........................................... 622 A . Issues ............................................ 622 B. Disintegration of Socialist Federalism: The Decline Loy. L.A. Int'l & Comp. L.J[ [Vol. 14:581 of Basic Integrative Forces of the Communist State ............................................. 623 C. The Challenge to the Legal Framework of the Socialist Federation: The Republics' Declarationsof Legal Sovereignty ................................. 626 1. The Breakdown of the Socialist Rule of Law.. 626 2. Declarations of Sovereignty ................... 627 3. Supremacy of Republic Law .................. 628 D. The Challenge to the Economic Framework of the Socialist Federation: The Republics' Declarationsof Economic Sovereignty ............................. 629 E. The Challenge to Territorial Unity of the Socialist Federation:The Republics' Declarationsof Independence in 1990 ............................. 632 1. Secessionist Moves in the Baltic and Other R epublics .................................... 632 2. Self-Determination and Secession in International Law ............................ 633 3. Did the Soviet Republics Have an International Law-Based Right to Secede? . 637 F Destruction of Vertical Ties: ContractualForms of Interrepublic Cooperation ......................... 639 G. The Soviet Republics as States in the Pre-Coup Period of 1990 to 1991? ........................... 641 V. MOVING TOWARD A NEW EQUILIBRIUM IN THE SOCIALIST FEDERATION: NEW UNION LAWS, A REFERENDUM, AND PROSPECTS FOR A NEW UNION TREATY .............................................. 644 A. New Union Laws to Preserve the Federation ....... 644 B. Republic Sovereignty and Self-Determination as the Starting Point of a New Union .................... 645 C The First Negotiationsfor a New Union Treaty and the Principle of Self-Determination ................ 646 D. The Referendum of March 17, 1991 .............. 648 E. Continuing the Negotiations...................... 649 F The Position of the Republics That Were Unwilling to Sign a New Union Treaty ...................... 650 VI. AN EMERGING CONFEDERATION IN THE PRE-COUP DRAFT UNION TREATIES ............................. 652 A. PreliminaryRemarks ............................. 652 1992] Transformation of the Soviet Union B. Survival of the Basic Features of Lenin's Concept of Federalism ....................................... 653 C. Sovereignty of the Republics as the Basis for the New Union ....................................... 654 D. The Supremacy Problem: Dual Sovereignty ........ 657 E. The Soviet Republics' Position in the World Com m unity ...................................... 660 F Other Features of the Pre-Coup Draft Treaties ..... 661 G. Confederative Features Prevailed in the Pre-Coup Projectsfor a New Union ......................... 665 VII. THE FAILED AUGUST 1991 COUP AND ITS IMPACT ON THE SEARCH FOR A NEW UNION STRUCTURE ........ 667 A. The Failure of the Conservative Coup .............. 667 1. A Compromise Nearly Reached for a New Union Treaty ................................. 667 2. The August 1991 Coup: Starting Points and G oals ........................................ 668 3. The Failure of the Coup ...................... 670 B. The End of the Socialist Soviet Union ............. 670 1. The Definite End of the Socialist System of Government .................................. 670 2. The Resolution of the Power Struggle: The Republics as Victors, the Union as Victim .... 672 3. The Territorial Disruption of the Soviet Em pire ....................................... 673 C. Attempts to Find a New Union Equilibrium ....... 675 1. Continuation of Interrepublic Cooperation .... 675 2. The RSFSR-Ukraine and RSFSR-Kazakhstan Treaties as Nuclei of a New Confederation .... 676 3. Confederative Features of the Arrangement for an Interim System of Government ............ 677 4. The Project of an Economic Community ...... 679 5. An Emerging Confederative Political Structure ..................................... 681 VIII. PROBLEMS OF INTERNATIONAL LAW ................. 685 A . Issues ............................................ 685 B. Problems of InternationalRecognition of Soviet Republics as States ............................... 685 1. Doctrine of Recognition as Applied to Different Categories of Soviet Republics ....... 685 Loy. L.A. Int'l & Comp. L[o4 [Vol. 14:581 a. Category 1: The Baltic States .............. 686 b. Category 2: Other Republics Willing to Become New Independent States ........... 687 c. Category 3: Republics Willing to Remain in the Union ................................. 689 C. Problems of State Succession ...................... 689 1. State Succession: Continuity and Succession of States in the Former Soviet Union ............ 689 2. State Succession: Treaties and Debt ........... 691 a. Treaties ................................... 691 b. Public Debt ............................... 693 D. Problems of InternationalRepresentation and Membership in InternationalOrganizations ........ 694 1. International Representation in General ....... 694 2. Representation in International Organizations. 696 IX. THE ESTABLISHMENT OF THE COMMONWEALTH OF INDEPENDENT STATES ............................... 698 A. The Way to the Commonwealth of Independent States ............................................ 698 B. Nature, Structure, and Organization of the Commonwealth of Independent States ............. 700 C Purposes and Goals of the Commonwealth of Independent States ............................... 703 D. The Roles of the Commonwealth of Independent States and the Independent States in International Law and Politics ................................. 704 E. State Continuity and State Succession Revisited .... 706 1. Continuity Between the Soviet Union and the Commonwealth of Independent States or Its M ember States? ...... 706 2. Continuity Between the Soviet Union and the R SFSR? ...................................... 707 3. Secession or Dismemberment? ... 708 4. The RSFSR's Claims for Legal Heritage ...... 709 F. Does the Commonwealth of Independent States Establish an Equilibrium?......................... 710 X. CONCLUSION: THE TRANSITION FROM A FEDERATION TO A CONFEDERATION ............................... 713 1992] 585 The Transformation of the Soviet Union: From a Socialist Federation to a Commonwealth of Independent States URS W. SAXER* "Indeed, whereas Marx once described the tsarist Russian empire as the prison of nations, and Stalin turned it into the graveyard of na- tions, under Gorbachev the Soviet empire is rapidly becoming the vol- cano of nations."' I. INTRODUCTION: THE REVOLT OF THE SOVIET UNION'S REPUBLICS This Article examines the successful revolt of the republics of the Soviet Union against the Communist-dominated center and assesses the legal implications of these revolutionary developments.
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