The Legal Dimension in Cold-War Interactions: Some Notes from the Field Law in Eastern Europe A series published in cooperation with Leiden University, the Universities of Tartu and Graz and the European Academy of Bozen/Bolzano General Editor William Simons No. 62 The Legal Dimension in Cold-War Interactions: Some Notes from the Field Edited by Tatiana Borisova and William Simons Leiden • Boston A C.I.P. record for this book is available from the Library of Congress. Printed on acid-free paper. ISSN 0075-823X ISBN 978 90 04 15535 0 Copyright 2012 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishers, IDC Publishers, Martinus Nijhoff Publishers and VSP. http://www.brill.nl All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher. Authorization to photocopy items for internal or personal use is granted by Brill Aca- demic Publishers provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923 USA. Fees are subject to change. Printed and bound in The Netherlands. TABLE OF CONTENTS Preface vii Introduction Legal Front of the Cold War: Why? Tatiana Iu. Borisova and William B. Simons xi Talking Across the Fence: Cold-War Academic Cooperation in the Legal Sphere Jane Henderson 1 Soviet Law and Perestroika Revisited Albert J. Schmidt 41 The New Political Polarization of the World and the Reform of State Property Management in Russia Zlata E. Benevolenskaya 55 The Relevance of the Cold War for Russian Jurisprudence: Private Law Leena Lehtinen 73 Russian International Law and Indeterminacy: Cold War and Post-Soviet Dynamics Boris N. Mamlyuk 81 Separation of Powers without Checks and Balances: The Failure of Semi-Presidentialism and the Making of the Russian Constitutional System, 1991-1993 William Partlett 105 The Impact of the Cold War on Soviet and US Law: Reconsidering the Legacy Paul B. Stephan 141 Photographs 159 List of Contributors 167 Index 173 Name Index 179 Preface Unlike the hot war of WWII which preceded it, the end of the Cold War was not marked by an official document of capitulation nor followed by a blaming of those adjudged guilty, by a legal tribunal, of having started and pursued the war or by reconciling the alleged perpetrators and the victims by a truth com- mission. It seems that different rules governed this cold conflict. Thus, while there is a multitude of materials dealing with the end of the CW,1 on the one hand, on the other, remnants of unfinished business litter the byways of the path forward. So, the 1974 amendment to the US Trade Act—named after its two major co-sponsors in the US Congress, the late US Senator Henry “Scoop’ Jackson and the late Representative Charles Vanik, imposing sanctions on nations restricting emigration so as to “assure the continued dedication of the United States to fundamental human rights”2—is still US law ‘in books’. Most recently in 2011 and again in 2012, however, senior US politicians have called for the setting aside of this Cold-War milestone … two decades after the end of the USSR.3 Yet, there are those in the US (and elsewhere) who continue to pursue the (old) enemy on the trail of human-rights giving one pause to wonder about ‘ends’: “Sergei Magnitsky Rule of Law Accountability Act, named for a Russian lawyer who was arrested and died in prison after investigating official corruption. The Magnitsky measure requires that those responsible for human rights violations be denied visas and have their 1 Reflected, for example. in historian Nathan Vigil’s ‘endofcoldwar’ course (and website at the University of Georgia: <http://endofcoldwar.com/>) and the ‘okonchanie kholodnoi voiny’ page of <http://www.coldwar.ru/bases/bases7.php>. And it is but a short hop from history, law, and politics to art: “[…] there are no grand monuments to the American victory [in the Cold War]. All this raises the question, did the Cold War ever end? Maybe not. Now, artists Yevgeniy Fiks and Stamatina Gregory have released a call for proposals for a ‘Monument to Cold War Victory’.” The winning work of art to become this ‘Monument to CW Victory’ is selected by a panel “[…] that includes artist Vito Acconci, philosopher and professor Susan Buck-Morss, theorist and professor Boris Groys, artist Vitaly Komar, curator Viktor Misiano and Creative Time curator Nato Thompson”. See Hrag Vartanian (interview with Evgenii Fiks), “Did the Cold War Ever End?” (3 August 2012), at <http://hyperallergic.com/55171/monument-to-cold- war-victory/>. 2 19 US Code, Chapter 12, subchapter IV, part 1, §2432: Freedom of Emigration in East-West Trade. 3 Steven Lee Myers and David M. Herszenhorn, “Clinton Tells Russia That Sanctions Will Soon End”, The New York Times (8 September 2012); and “Biden Urges Repeal of Jackson- Vanik Amendment” (14 March 2011), Voice of Russia, available at <http://english.ruvr. ru/2011/03/14/47359712.html>. Tatiana Borisova and William Simons, eds. The Legal Dimension in Cold-War Interactions: Some Notes from the Field vii-ix © Koninklijke Brill NV, Leiden, 2012 viii Tatiana Borisova and William Simons assets frozen. The State Department has already denied visas for some officials implicated in Mr. Magnitsky’s death.”4 The contributors to this sixty-second volume of the Law in Eastern Europe series (LEE) will enlighten the reader about several key aspects of the legal dimension in Cold-War interactions. While the chapters in this collection are not intended to exhaustively deal with this complex patchwork, they surely will stimulate the reader to appreciate—with clarity—the topics dealt with by our authors’ collective. Much has been done to consider the history of, and to analyze developments in, the field of East European law in particular—and in the comparative-law field more in general—and is reflected (albeit, of course, only in part) in this series. But there is more work to be done to further demystify the past as well as to consider the trends in current thinking and the possible course(s) of future developments. Science-citation and other such useful indices notwithstanding, there are no tools to measure—with any precision—the impact of writings, academic or otherwise, on policymakers or on the public at large (or which one is more important). But we hope that the sixty-one previous LEE volumes will have played a modest role in broadening an understanding among specialists and generalists of developments in law in Eastern Europe; of the interactions of law with other parts of society; of how these developments and interactions proceed in their own exceptional way (the ‘spetsifika’ to which reference often is made in discussions about law reform in the region) and how they relate to debates in other parts of the region and the world. This volume marks the fifty-fifth year of publication of the series, and the works in this collection are a fine addition to its traditions in offering to its readers the thinking of senior and, also, of up-and-coming scholars and practitioners. First of all, I offer heartfelt thanks to the authors of this volume. In addition, several others also have made invaluable contributions to this work; we also are grateful to them for their many efforts in bringing this work to print: Ms. Alice Engl, at the European Academy (Bozen/Bolzano), Ms. Ingeborg van der Laan at Brill Publishers (Leiden), and Ms. Kärt Pormeister at the University of Tartu (a Master of Law candidate in the Faculty of Law in Tartu, Estonia, who inter alia compiled and refined the index with skill and verve). This is also the first volume in the LEE series which bears the University of Tartu’s name. Support for and encouragement of further work on the series was expanded, several years ago, to include the University of Graz and the European Academy of Bozen/Bolzano. The close involvement of these institutions has been invaluable and is something for which I am most grateful. For a few years, this also included the University of Trento in Northern Italy; another contribution to our work for which I have similar sentiments. Now, the University of Tartu and Estonia’s Centre for EU Russian Studies in Tartu—along with the Tartu 4 Peter Baker, “Senate Panel Advances Trade Bill with Russia” (18 July 2012), at <http:// thecaucus.blogs.nytimes.com/2012/07/18/senate-panel-advances-trade-bill-with-russia>. Preface ix Faculty of Law—are generously adding, to this effort, their many intellectual and administrative resources. The contributions to this work which have made by my Tartu colleagues already have proven, likewise, to be invaluable. A refreshing sense of vision for the future is reflected in this Tartu team—something which has not always been as visible in the field as one might expect after the ‘end’ of the Cold War. This collective intellectual input and administrative drive from these institu- tions represent a welcome strengthening of the platform for this LEE series (and for the quarterly law journal Review of Central and East European Law) so as to continue sharing the work of interested and interesting scholars and practitioners with our readers. Suur aitäh! The General Editor Tartu, October 2012 Introduction Legal Front of the Cold War: Why? Tatiana Iu. Borisova and William B. Simons1 “Had the atomic bomb turned out to be something as cheap and easily manufactured as a bicycle or an alarm clock, it might well have plunged us back into barbarism, but it might, on the other hand, have meant the end of national sovereignty and of the highly-centralised police state.