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Review of Mary McAuley “Remembering Leningrad: The Story of a Generation”

Rights in Russia

Review of Mary McAuley “Remembering Leningrad: The Story of a Generation”

The University of Wisconsin Press, 2019, $39.95, around £28

236 + xiv pages. No index.

This is a book for deep immersion, a book to be savoured.

I first met Mary McAuley in Moscow in 1997. She was at time the Head of the Ford Foundation’s office in Russia, from 1995 to 2002. I was a lecturer in Human Rights at Essex University, had first visited Russia in 1983, in the time of Andropov, and after many visits to Russia, had won a contract to advise the new Department for International Development (DfID, now sadly closed) on initiating and funding projects on “Human Rights and Law Reform in Russia”. Mary had taken up the Ford post after teaching at Essex and Oxford Universities, and was a rather powerful person in Russia: she was one of the main grant-makers for civil society, especially human rights and media, and she was able to give me unique advice and contacts. Mary is also rather formidable.

I also met her husband Alastair McAuley, my colleague at Essex, who had taken a year out to help direct the New Economic School (housed in the 1963 Soviet modernist “house with an ear”, the Central Economic Mathematical Institute), and they took me to dinner at a restaurant around the corner from Mary’s grand office in Tverskaya Ulitsa. I have vivid recollections.

Based in particular on her experience with Ford, she has written a splendid book Human Rights in Russia: Citizens and the State from Perestroika to Putin (I. B. Tauris 2015, reprinted in paperback in 2016) which I have reviewed elsewhere (SCRSS Digest 2015 No 3, p.14).

Mary’s new book is very much more autobiographical. She kept a wonderfully detailed diary, starting with her first visit to Moscow, St Petersburg and Kiev in September 1959 (16). This was also when she met El’mar Sokolov, one of the people, residents then of Leningrad and later of St Petersburg, who are central to the book. He became her close friend. He died in 2003 (220), born in 1932, and his name is an amalgamation of Engels, Lenin and Marx – not uncommon at that time. His parents, who moved to Leningrad in 1941, were people who never doubted the rightness of Communist Party rule or the superiority of socialism over capitalism.
In 1961, back in Russia, Mary met El’mar’s groups of friends from school, and they too are our companions in this richly detailed series of stories. Their group photographs as they were together at school are reproduced on pages 18 and 19, and El’mar’s photo at the time Mary first met him, a lecturer in the philosophy department of the Herzen Institute – the pedagogical university today – in 1961 is at p.23. On page 188 there is a photo of El’mar (and his school friend Leva) as they were when Mary visited them in Pskov in 1993, 32 years older. This is the history of Russia in the second half of the 20th century, in one individual.

Two others whose lives we follow with Mary are the twins Leonid and Liuba Romankov: their photos in 1961 are at pages 26 and 27, and in 1993 at page 190. On page 191 there is a moving detailed recollection of their birthday party in November 1993.

Indeed, this is really less an autobiography of Mary McAuley, but much more a biography of the city and some of its inhabitants. The book is dense with vivid detail, and brings the city to life.

In 1961 Mary, studying at St Antony’s College, a graduate college at Oxford, won a place on the ten month research visits organised by the British Council and the Soviet Ministry of Higher Education, and sailed on the Soviet cruise ship Baltika, from Tilbury to Leningrad. She is pictured as she was then on page 37. Life as a student is captured in Chapter 2, “Stalin’s Children”. She studied Labour Disputes in the USSR (Chapter 3). She returned in 1965 with Alastair as a tourist, and caught up with her friends.
She also met a new friend, the historian of free-masonry in Russia, Vitaly Startsev, who was also a good friend of mine, a warm and generous individual. I helped in his research in London in 1993, and met him and his wife also in St Petersburg on several occasions. As noted above, the book sadly has no index, but Professor Startsev makes several more appearances (e.g. pages 91, 184). He died in 2000.

In 1990 Mary was back in St Petersburg, as it was renamed in 1991, attached as a visiting scholar to the new Institute of Sociology (83), working on the new social and political movements.

That stormy period, with the unexpected collapse of the Soviet Union in December 1991, is not to be forgotten. I was in Moscow in June and July 1991, taking a three week immersive course in Russian at the excellent Russian language school for foreigners at the Moscow Motor Road Construction Institute (MADI). As Mary too recalls, that was a time of acute shortages: there were no matches to be found for a period, and no-one turned off their gas, for fear that they would not be able to light it again – and so as to be able to light their cigarettes. On 10 July 1991 I watched on TV the pomp and ceremony of the inauguration of Boris Yelstin as first elected President of Russia, with Mikhail Gorbachev, unelected President of the USSR, sitting alone in a corner. The following month, in the “putsch”, the government of the USSR tried to take power, and failed. Yeltsin standing atop a tank in front of the White House is an indelible image.

In 1992 Mary was granted two more years research leave at the Institute (118) and she bought an apartment in Vasilevsky Island. Chapter 7, “An Apartment and a Telephone” will tell you everything you could ever want to know about the nightmare of acquiring a place to live and a means of communication, neither at all straight-forward, in those tumultuous years.
Chapter 9, “From the Caucasus to the Far North” describes, with some evocative photographs, her exotic travels in Russia in 1992 and 1993.

In 1995 Mary was already in charge of the Ford Foundation’s Moscow office. In St Petersburg she funded civil society organisations and activists very well known to me too: the Memorial Society (my partners since 2003 in the European Human Rights Advocacy Centre, EHRAC, taking cases against Russia at the European Court of Human Rights); Smolny College, set up with Bard College in the USA, where I also taught human rights; Citizens Watch, led by the fearless Boris Pustintsev; and the fearless human rights advocate Yury Schmidt, my colleague in the trials and acquittal of Alexander Nikitin in 1998-9, who died in 2013.

The final visit to St Petersburg in this book was in October 2015 (201), with her daughter in law, Marina. October 30 is the commemoration day for victims of political repression, and they laid flowers at the Troitsky stone, a boulder from the Solovetsky Islands in the White Sea, a place of exile and death in the 1920s and 1930s.

Chapter 12 is entitled “Farewell to St Petersburg”. Finally, Mary’s Postscript (235) takes us to her flat in Bloomsbury, and in an elegiac page and a half, shows us her Russian paintings and artefacts.

Review of Robert Stephenson “We are building Capitalism! Moscow in transition 1992-1997” for SCRSS Digest

Robert Stephenson We are building Capitalism! Moscow in transition 1992-1997 , Glagoslav Publications, 2019, 210 pages, Foreword by Vladimir Gel’man pages 7-12, Paperback £25

Robert Stephenson lived and worked in Moscow from 1992 to 1997. A civil servant, he had been head of the IT Strategy team for the UK’s Employment Service, and was invited in 1992 to become a Consultant to the new Federal Employment Service, and then a capacity builder for trainers in business and commercial skills. In 1995, in Moscow, he married the brilliant sociologist Svetlana Stephenson (Sidorenko – now at LondonMet, essential reading – Gangs of Russia: From the Streets to the Corridors of Power, 2015). So he did not experience Moscow as capital of the former USSR.

Robert is also an accomplished photographer with an eye for the telling detail, and there are over 100 fascinating photos in this book, most of them taken in 1992-1993. The final photo, however, taken in 2012 (p.208), shows the “Moscow City” skyscraper complex looming over the Garden Ring and Krymsky Most (bridge). The photo on the opposite page taken in the same place, in 1992, 20 years previously, shows an utterly different view, with no advertising, very little traffic – and no skyscrapers. Should we feel nostalgia?

As Vladimir Gel’man comments in his Introduction on Bob’s photos “… with his focus not only on major political events… but also on the manifestations of the societal change in many details of Moscow life, from the rapidly changing patters of consumption to the outward appearance of Moscow and its inhabitants.” Indeed, as Gelman says, the book has its own protagonist, Moscow.

The book has 11 chapters, each with an insightful introduction and commentary by Bob. The chapters’ titles give a good indication of their contents: “The shadow of the past”; “Inflation, speculation and accumulation”; “Reform and resistance”; “Religious resurgence”; “Out with the old and in with the new”: “Reaching for the stars”; “Attractions and distractions”; “On the road”; “The view from the street”; “Strange sights”; and “The shape of things to come”.  

The book is beautifully produced in landscape A4 format, and the photos are vividly reproduced. I found myself reliving my own experiences during those turbulent years, One of the first photos (p.28) is of a rock concert held at the White House on 19 August 1992 on the first anniversary of the failed coup of April 1991 (which Bob missed – I was in Moscow). But there are no photos of Yeltsin’s use of tanks in 1993 to storm the White House, where the Supreme Soviet was sitting, though Bob has a brief account of events on pages 69-70.

This Chapter, 4, “Reform and Resistance” (pages 69 to 79), has photos of demonstrations in 1992-3. Bob comments that “…the streets of the city became a forum for protest against, and promotion of, social change”. But he is detached, apolitical observer.

This gorgeous book is recommended to anyone who wants to view, if not experience, how life carried on.

Review of Vladlen Loginov “Vladimir Lenin – How to Become a Leader” – for SCRSS Digest

Vladlen Loginov (translation by Lewis White); Vladimir Lenin – How to Become a Leader; Glagolit Publications, 2019; 328 pp, Introduction by Professor Geoffrey Swain pages 7-18; £19 paperback

I thoroughly enjoyed reading this new book, in its excellent and highly readable translation by Lewis White.

But I have to start by arguing with the translation of its title. The book was published in 2005 in Russia, with the title Выбор пути: Биография (Vybor puti: Biografiya), which may be literally translated as “Choosing a path: Biography”, which gives a much better idea of the content of the book. This is not at all an instruction manual for would-be leaders, nor does it explain how Lenin became a leader. Instead, it is a detailed and well-researched chronological account of Lenin’s early life from his birth as Vladimir Ulyanov in 1870, to 1900, when he was 30 years old. In 1901 he began to sign his works with a new pseudonym – Lenin. There were 24 momentous years before his death aged 54.

Vladlen Loginov was born in 1929, now 91 years old. In the course of his long life he has published over 400 books and articles, many on Lenin, and his latest book was published in 2018, Ленин. Сим победиши (Lenin. Sim pobedishi), as an electronic book, free access at https://leninism.su/images/PDF/loginov.pdf, covering the last years of Lenin’s life, from the end of the Civil War, to his conflicts with Stalin and his Testament.

Loginov certainly knows his subject-matter, and every page is thoroughly referenced to many sources. The reader will find much fascinating detail as to Lenin’s immediate ancestors, and his early life. I thought I knew a lot about Lenin, who is one of my own special subjects, but I learned a great deal, and with pleasure. For example, details of Lenin’s practice as a criminal defence advocate in Samara, from 1892 to 1893 (pages 126-128); and of his life with Nadezhda Krupskaya in Shushenskoye (pages 228 to 237).

What was the task Loginov actually set himself? His own Introduction is entitled “What colour were Lenin’s eyes?”, that is, the various descriptions of Lenin’s short stature, and his “agreeable, swarthy face with a touch of the Asiatic to it”, but in particular his force of personality. But Lenin, still lying in the Mausoleum (contrary to his own wishes) has become the subject of myth upon myth, especially in the Soviet period, when he became “a kind of symbol of the “new faith”… For millions, an object of near religious veneration.” In Loginov’s view, “… searching for the roots of modern problems in Lenin’s past deeds is at the very least unfair, since it has now become a wholly separate narrative: it is akin to blaming Christ for the Crusades and the bonfires of the Inquisition…”

Loginov’s aim is very modest: “… not to offer an explanation, but to present some material for consideration, a few details of his biography hitherto unknown…”

Russia and the European Convention (or Court) of Human Rights: The End?

Special issue of the Revue Québécoise de Droit International on the 70 years of the European Convention of Human Rights

Bill Bowring, Birkbeck College

Introduction

Russia has been a member of the Council of Europe (CoE) for 25 years, and of the European Convention on Human Rights (ECHR) for 22 years, which is in itself in my view a remarkable achievement on both sides.[1] This article asks the questions: how has this been this possible? And is the close and mostly positive relationship between Russia and the Council of Europe and the ECtHR about to come to an end?

In order to answer these questions, I first provide an overview of the USSR’s late acknowledgment of the need for compliance in its internal affairs with UN standards, and especially the contribution of Mikhail Gorbachev. I follow this with an account of Russia’s accession to the CoE and ratification of the ECHR under Boris Yeltsin, and a snapshot of the popularity for Russians of complaining to Strasbourg. Second, I turn to the very controversial rulings by the Constitutional Court of the Russian Federation (CCRF) and new legislation on the question of the CCRF ruling on the “impossibility” for Russia of implementing judgments of the European Court of Human Rights (ECtHR). Third, I analyse the controversial Yukos case. This was in fact the second and last until now such ruling. Fourth, the Parliamentary Assembly of the Council of Europe (PACE) imposed sanctions on Russia following the illegal annexation by Russian of Crimea. Russia seemed poised to leave or be expelled from the CoE. But in 2019 a controversial deal was done. Fifth, I ask whether President Putin’s 2020 amendments to the 1993 Constitution really pose a threat to Russia’s continuing relationship with the CoE and the ECHR.

1. The USSR, Russia, and the CoE

I first visited Russia in December 1983. Yuriy Andropov was in his last year as General Secretary of the Communist Party of the USSR. Had he lived longer, it is possible that the USSR would have followed a similar path to that taken by China, still ruled by its Communist Party. But he died on 9 February 1984, followed by the lack-lustre leadership of Konstantin Chernenko, who in turn died on 10 March 1985.

Mikhail Gorbachev, after a short-lived return to Leninism, began in 1986 the process which would lead to the collapse of the USSR in December 1991, with his call for a revolution in the USSR, in his speech to party officials in Vladivostok on 29 July 1986[2]. His book Perestroika: New Thinking for Our Country and the World was published in November 1987, and he announced a new policy of a Common European Home in 1989.  

In April 1990 a new Committee for Constitutional Supervision, conceived in 1988, started work, and during 1991 brought the USSR closer to the UN human rights systems. In its Ratification of the Optional Protocol Case (4 April 1991)[3], the CCS requested the Supreme Soviet of the USSR to secure ratification by the USSR of the First Optional Protocol to the UN International Covenant on Civil and Political Rights (ICCPR). On 5 July 1991 the Supreme Soviet adopted two Resolutions acceding to the Optional Protocol and recognising the jurisdiction of the UN Human Rights Committee.[4] This was already a giant step in recognising international human rights standards. Previously there had been tow pillars of Soviet international law, state sovereignty, and the prohibition of interference in the internal affairs of states.[5]

But there was no question while the USSR still existed of joining the Council of Europe (CoE), or, in obligatory consequence, ratifying the Europe Convention on Human Rights (ECHR).[6]

The Council of Europe

Russia applied to join the Council of Europe on 7 May 1992, at a time when there were a number of progressive developments, in terms of legislation and in the work of the new Constitutional Court. Despite the fact that it was then engaged in bitter internal armed conflict in Chechnya, Russia became a full member of the Council of Europe on 28 February 1996. On 28 February 1998 the State Duma of the Russian Federation voted to ratify the ECHR. A total of 294 (65.3the per cent) deputies voted for, with only 11 (2.4 per cent) against and two (0.4 per cent) abstentions. The Federal Law of the Russian Federation ‘On ratification of the ECHR’ entered into force on 30 March 1998. The ECHR itself entered into force for Russia on 1 November 1998.[7]

I had been practising at the ECtHR since 1992, mostly in cases on behalf of Kurdish applicants against Turkey.[8] In 2000 I applied to the European Commission for a grant to assist Russian human rights activists to take cases to the European Court of Human Rights (ECtHR, the Court), and in 2002 I was awarded €1 million for a partnership between the “Memorial” society in Moscow and its Human Rights Centre, the Bar Human Rights Committee of England and Wales, and the University of North London where I was then teaching. The European Human Rights Advocacy Centre (EHRAC) was founded in 2003, in partnership with Memorial, and is still going strong.[9]  EHRAC has assisted applicants in securing 247 judgments from the Court establishing Russian responsibility for aerial bombardment, extra-judicial killings, enforced disappearances and torture during the conflict in Chechnya.

Vladimir Putin became President of the Russian Federation in April 2001, after starting the Second Chechen War as Prime Minister in 1999, and has effectively been in power for more than 20 years. He is not a friend of human rights, to say the least. Nevertheless, as noted above, Russia has now been a member of the CoE for 24 years, and of the ECHR for 22 years. During his period of rule the supremacy of international law and of the ECHR in particular has been further strengthened by the Supreme Court of the Russian Federation (SCRF).

On 10 October 2003 the SCRF adopted a Resolution ‘On application by courts of general jurisdiction of the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation.’[10] This Resolution, drafted with the participation of the justices of the CCRF and Anatoliy Kovler, then Russia’s judge at the ECtHR, is binding on all lower courts and contained the following with reference to the ECHR:

10. It is clarified to the courts that international treaties should be interpreted in accordance with the Vienna Convention on the Law of Treaties of 23 May, 1969 (Section 3; Articles 31-33).

In accordance with item “b” of paragraph 3 of Article 31 of the Vienna Convention, any subsequent practice in the application of a treaty, which establishes the agreement of the parties regarding its interpretation, should be taken into account along with its context for the purposes of interpretation of the treaty.

As a member state of the [ECHR], the Russian Federation recognizes the jurisdiction of the [ECtHR] as compulsory in issues of interpretation and application of the Convention and its Protocols in the event of presumed breach of provisions of said treaty acts by the Russian Federation, if such a breach took place after their entry into force in respect of the Russian Federation (Article 1 of Federal Law “On Ratification of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols”, No. 54-FZ of 30th March 1998). This is why the said Convention should be applied by courts with regard to the practice of the [ECtHR] in order to avoid any violation of the Convention.

On 27 June 2013 the SCRF passed a Ruling ‘On application of the ECHR by the courts of general jurisdiction.’[11] This affirmed the principles contained in the 2003 Resolution, and directed that the judgments of the ECtHR in cases against Russia are mandatory for Russian courts, and judgments against other countries must be taken into account.

2. As follows from Article 46 of the Convention, Article 1 of [the Federal Law on Ratification], the legal positions of the European Court of Human Rights contained in the final judgments of the Court delivered in respect of the Russian Federation are obligatory for the courts.

Indeed, the ECtHR dealt with 9,238 applications concerning Russia in 2019, of which 8,793 were declared inadmissible or struck out. It delivered 198 judgments (concerning 445 applications), 186 of which found at least one violation of the European Convention on Human Rights.[12] Russia complies with almost all judgments in terms of payment of just satisfaction (compensation), and there are many examples of substantive implementation.

2. Russia, the ECtHR, the Constitutional Court and “impossibility[13]

Very soon after the 2013 Resolution, Russia was taking a rather different position.

On 14 July 2015 the CCRF handed down its Postanovleniye (Resolution) of 14 July 2015, No. 21-P.[14] This judgment resulted from a request by a group of 93 deputies of the State Duma as to whether a number of legislative enactments were compatible with the Constitution. These were Article 1 of the 1998 Law “On Ratification of the ECHR”; Article 32(1) and (2) of the Federal law “On international treaties of the Russian Federation”; and provisions of the Civil Procedural Code, Arbitrazh (Commercial) Procedural Code, Code of Administrative Misdemeanours, and the Criminal Procedural Code. In the view of the deputies, these enactments were incompatible with Articles 15(1),(2) and (4), and Article 79 of the Constitution, since they in fact obliged Russian organs of legislative, executive and judicial power, to unconditionally implement judgments of the ECtHR, even in cases where such judgments contradicted the Constitution.

The Court ruled that these provisions were compatible with the Constitution, but laid the basis for the amending Law discussed below. The judgment, for which the Judge-Rapporteur was the Court’s Deputy Chairman Sergey Mavrin, confirmed the subsidiary nature of the Strasbourg system and the obligatory nature of Strasbourg judgments, and paid close attention not only to the provisions of the 1969 Vienna Convention on the Law of Treaties, but also to the case-law of the German Constitutional Court (the Gorgulu and Solange-1 judgments), the Italian Constitutional Court in its judgment of 31 May 2011 on the Maggio v Italy case and its 22 October 2014 judgment following the ICJ’s Jurisdictional Immunities of the State (2012) case; the Austrian Constitutional Court’s judgment of 14 October 1987; and of course the UK Supreme Court’s judgment of 16 October 2013 following Hirst v UK. State organs could apply to the Constitutional Court in a concrete case to ask whether a judgment of the ECtHR was “impossible” to implement because it contradicted the foundations of the Russian constitutional order.

The Court gave as an example the judgment in Anchugov and Gladkov v Russia of 14 July 2013[15], the Russian Hirst, on prisoners’ voting rights. In the Court’s view, to implement the judgment would mean violating a series of Articles of the Constitution (Article 15(1), 32(3), and 79), or adopting a new Constitution.

Anna Pushkarskaya, writing on the day of the judgment in Kommersant, pointed out that the background to the application was the Yukos just satisfaction decision, and expected that there would be a further application to the CCRF in respect of that decision.[16] However, the following day she published an interview with Sergey Mavrin in which he stated that the CCRF would always seek a compromise with Strasbourg and avoid a direct collision. The effect of an application to the CCRF in a concrete case would be to provide a breathing space.[17] I will turn below to some recent compromises.

On 14 December 2015 President Putin signed the Federal Law “On enacting amendments to the Federal constitutional law on the CCRF.”[18] One headline on the day of signature read, “Putin approved a law permitting the non-implementation of decisions of the European Court of Human Rights.”[19] The Law came into force on its publication on 15 December 2015 in the Russian Gazette[20]. It amended Article 3(3) of the Federal Law “On the Constitutional Court” so as to give the Court the jurisdiction to decide the question on the possibility (vozmozhnost) of implementing the decision of an international organ for the protection of the rights and freedoms of the person; the CCRF can declare “possibility” or “impossibility.”

The word “possibility” is not defined. I now turn to its deployment in the CCRF’s Resolution of 14 July 2015 in the context of the judgment of the ECtHR in Anchugov and Gladkov v. Russia of 14 July 2013,[21] the Russian Hirst v. UK,[22] and the Yukos judgment.

On 19 December 2015, Philip Leach and Alice Donald wrote under the headline: “Russia Defies Strasbourg: Is Contagion Spreading?”[23] This was a reference to their article of 21 November 2013, “Hostility to the European Court and the risks of contagion,”[24] which focused not on Russia but on the United Kingdom’s position. They quoted the former President of the European Court, Sir Nicolas Bratza, who had expressed his concern about the risks of contagion:

There is a risk of this attitude in the UK to judgments of the Court negatively impacting on other states and complaints being made of double standards … [which] could result in a wider refusal to implement ECtHR judgments across the Council of Europe. (p. 176)

And they referred to the Commissioner for Human Rights of the CoE, Nils Muižnieks, who suggested in a memorandum to Nick Gibb MP that

… continued non-compliance would have far-reaching deleterious consequences; it would send a strong signal to other member states, some of which would probably follow the UK’s lead and also claim that compliance with certain judgments is not possible, necessary or expedient. That would probably be the beginning of the end of the ECHR system, which is at the core of the Council of Europe.[25]

Their fears of “contagion” seemed to be confirmed by the new Russian law. In their view, it did not “simply concern the relationship between the Strasbourg Court and the domestic courts (reflecting, for example, the long-standing debate in the UK about the implications of Section 2 of the Human Rights Act).”[26] It went, they asserted, much further than that. It denied the enforceability of ECtHR judgments as regards the Russian state altogether, thereby purporting to extinguish the effect of Article 46 of the ECHR, unprecedented in the history of the European human rights regime.

The response of the CoE was more measured. On 15 December 2015 the then Secretary General of the CoE, Thorbjørn Jagland, said:

[I]t will be up to the Constitutional Court of Russia to ensure respect for the Convention if it is called upon to act under the new provisions. The Council of Europe will only be able to assess Russia’s compliance with its obligations when and if a specific case arises. The compatibility of Strasbourg judgments with the national constitutions has been examined in some other member States. So far, countries have always been able to find a solution in line with the Convention. This should also be possible in Russia.[27]

The Russian Hirst?

However, on 19 April 2016 the CCRF rendered a judgment[28] in which it examined the question of the possibility of executing the judgment of the ECtHR of 4 July 2013 in the case of Anchugov and Gladkov v. Russia in accordance with the RF Constitution.[29]

There were amicus curiae briefs before the CCRF arguing that the problem could be resolved by interpreting the RF Constitution, rather than seeking to amend it, which the CCRF cannot do. The CCRF, with three powerful dissents, disagreed and held that in 1998, when Russia ratified the ECHR, there was no case law under Article 3 of Protocol 1 (right to democratic elections) prohibiting a “blanket ban” on prisoners’ voting. Otherwise, ratification would have contradicted the RF Constitution. However, the CCRF suggested that by an amendment to the criminal law persons detained in Russian “open prison” correctional colonies could be reclassified so that they do not fall within Article 32(2) of the RF Constitution. If this was done, Russia would in effect implement the ECHR’s judgment. The CCRF emphasized the priority of international law, especially the ECHR, over Russian domestic law, while insisting that it is the final judge in issues concerning the RF Constitution.[30]

Indeed, the pragmatism of the CCRF prevailed, and on 25 September 2019, the Committee of Ministers (CM) of the CoE, which pursuant to Article 46(2) of the ECHR supervises the execution of judgments of the ECtHR, adopted a final resolution[31], which closed the supervision of Anchugov and Gladkov v. Russia.[32] The closure of the case means that Russia, taking the advice of the CCRF, has complied with the ECtHR’s judgment, according to the CM’s assessment. According to the Action Report[33] submitted by the Russian authorities on 27 June 2019, the judgment was executed through the introduction to the Russian Criminal Code of a new category of criminal punishment – “community work” (translation provided in the Action Report)[34]. The Action Report further explained that such punishment is carried out through “placement in correctional centres for community work and may be imposed for committing a small or medium gravity offence or in case of a grave offence is committed for the first time.” These persons would have the right to vote, and in this way Russia was able to comply with the ECtHR’s judgment.

The ECtHR seeks to maintain good relations with Russia

The ECtHR had in any event attempted to maintain good relations with Russia. On 6 December 2016 it was reported that the IX Congress of Judges of the Russian Federation had been addressed by Guido Raimondi, the then president of the ECtHR.[35] According to the report, he was careful to sidestep difficult issues, and praised the Russian authorities for the fact that they were implementing the decisions of the ECtHR. He approvingly observed that Russia was no longer the main source of complaints to the Strasbourg Court. Mr Raimondi also praised the practice of reversing sentences in connection with violations of Article 6 of the ECHR on the right to a fair trial. And in the work of the CCRF, he was attracted by the way in which it interwove the practice of the ECtHR in its decisions.

As to the problems in relations between Russia and the ECtHR, he preferred to pass them by, preferring to “look at the picture as a whole.” He did not mention, for example, that on 15 December the Russian CC was to consider the question of the possibility of implementing the judgment of the ECtHR as to paying €1.8 billion to the former shareholders of Yukos. In fact, the question of noncompliance with this judgment was soon to be considered by the Committee of Ministers[36]. Also, he did not call to mind that on 16 November 2016 the RF Supreme Court had overturned the sentence in the Kirovles case concerning the opposition leader and fighter against corruption, Aleksei Navalny.[37] Mr. Navalny did not agree with the RF Supreme Court’s decision that there must be a retrial, considering that the ECtHR had ruled that there was no criminal element in his activities[38].

3. The Yukos Case – Had Russia Finally Decided against Strasbourg?

The long-awaited judgment in the Yukos case was delivered on 19 January 2017.[39] Once again, the Court was furnished with, and accepted for consideration, expert amicus curiae briefs. On 30 November 2016 Kanstantsin Dzehtsiarou of Liverpool University and Maxim Timofeyev of the European Humanitarian University in Vilnius submitted their eighteen-page amicus brief,[40] and on 7 December 2016 the Institute for Law and Public Policy provided a closely argued thirty-three-page brief, drafted by the young advocate Grigoriy Vaipan[41], arguing against a finding of “impossibility,” both briefs warning of damage to the reputation and authority of the CCRF.[42]

In his dissenting opinion, Judge Yaroslavtsev argued that the judgment of the CCRF contradicted the principle of legality and by taking on the function of a legislator exceeded its competence.[43] Judge Aranovskiy concluded: “But taking the judgment as a whole, the court does not find a correct basis for its decision, and, shifting its coordinates, loses itself in a general series of political, administrative and financial considerations, which are not equal to legal reasoning.”

On 21 January 2017 the co-rapporteurs of the Monitoring Committee for the Russian Federation of PACE expressed their deep concern at the CCRF judgment.[44] They reiterated that the full implementation of the judgments of the ECtHR is a legal commitment to which Russia has subscribed under the ECHR. They added:

Unconditionally honouring the Convention is an obligation incumbent on all member States and it is therefore unacceptable that Russia would not enforce a judgment of the European Court of Human Rights. The Russian authorities should therefore consider implementing the recommendation of the Venice Commission of the Council of Europe that the authorities consider revising the constitutional provisions at odds with the implementation of the ECtHR judgment. One cannot accept a selective implementation of the ECtHR’s judgments.

As Maxim Timofeyev, the coauthor of one of the amicus briefs, commented on 26 January 2017,[45] this was the first time the apex court of a CoE member state had concluded that it should not pay just satisfaction. He summarized three main reasons given by the CCRF for its decision.

Firstly, the CCRF noted that both the prosecution of the company for tax evasion and subsequent enforcement proceedings were based on legal provisions that it earlier had found to be in compliance with the Russian Constitution. Secondly, the CCRF relied on the historical context of the 1990s, the “economic uncertainty,” and the fact that the Russian state was seeking to take special measures to defeat the tax avoidance strategies of Yukos and to pay for social welfare. If the government had decided to apply the statutory time-bar in the Yukos case, it would have acted in contradiction with the Constitution, which requires the state to ensure the payment of taxes by every person as required by the principles of equality and fairness. Thirdly, the CCRF emphasized that Yukos was acting in bad faith by using tax avoidance schemes. Yukos should have foreseen the government’s actions. Thus, payment of just compensation from the Russian budget to the shareholders of a company that was involved in vast tax avoiding activities would be contrary to the constitutional principles of equality and fairness.

On this reasoning, execution of the ECtHR judgment on just satisfaction was not possible. In Timofeyev’s view, this judgment only deepened the distance between Russia and Strasbourg and increased the chances of escalating the confrontation even farther.

The response of the ECtHR has so far been more muted. On 26 January 2017, Mr Raimondi addressed the annual press conference of the ECtHR and answered a question concerning the Yukos judgment of the CCRF. His answer has not been published by the court but can be seen and heard on the Court’s website.[46] Mr. Raimondi made the point that enforcement of judgments is not a matter for the ECtHR but for the Committee of Ministers (CoM), which had the Yukos case under review. His remarks were greeted with enthusiasm by Russia. The official Russian news agency TASS announced that “Strasbourg court chief says Russia fulfils 95% of court’s rulings. Russia’s judicial authorities generally demonstrate their full readiness for cooperation with the Strasbourg court, the ECHR president said.”[47]

TASS quoted Mr. Raimondi as follows[48]:

Very much positive can be said about relations with the Russian Federation. The Court has excellent relations with the Russian judicial authorities. I made a visit to Russia in late 2016 and held quite fruitful negotiations, in particular, with Chairman of the Supreme Court Mr. Lebedev and Chairman of the Constitutional Court Mr. Zorkin. They have big willpower to cooperate with the ECHR and with the Council of Europe as a whole. We could state with Chairman Lebedev that the Supreme Court is carrying out excellent work for preparing judges and we know that Russia has a large judge corps, which depends on the Supreme Court’s preparation programs. In most cases, up to 95% of our court’s decisions are fulfilled duly in Russia and this is a positive aspect in Russia’s relations with the ECHR.

Russia did not seek to appeal the Yukos judgment of the ECtHR to the Grand Chamber, and some years have passed.[49] Russia has agreed to pay some costs and expenses, but still refuses to pay the just satisfaction ordered. On 22 February 2019 the applicants submitted a strongly worded protest at failure to enforce the judgment[50]. No more has been heard from the ECtHR or the CM.

4. The illegal annexation of Crimea[51] and PACE sanctions on Russia

Sanctions were imposed on Russia and on a large number of Russian officials and businessmen, following inter alia the annexation of Crimea in March 2014[52]. This led to very serious economic costs to Russia.[53]

But even more painful for Russia were the sanctions imposed by the CoE. In April 2014, after the Russian parliament’s backing for the occupation of Crimea and Russian military intervention in Ukraine, PACE decided to suspend the Russian delegation’s voting rights as well as the right of Russian members to be represented in PACE’s leading bodies and to participate in election observation missions. However, the Russian delegation remained members of PACE. The sanction applied throughout the remainder of the 2014 session and was renewed for a full year in January 2015, lapsing in January 2016. The sanction applied only to Russian parliamentarians in PACE, the CoE’s parliamentary body, and Russia continued to be a full member of the CoE as a whole.

In response, the Russian parliamentary delegation suspended its co-operation with PACE in June 2014, and in January 2016 – despite the lapsing of the sanctions – the Russian parliament decided not to submit its delegation’s credentials for ratification, effectively leaving its seats empty. It did so again in January 2017, January 2018 and January 2019.

On 30 June 2017 the Russian Foreign Minister, Mr Lavrov, announced that Russia was cancelling its annual subscription payment to the CoE after claiming its 18 delegates to PACE were being “persecuted” in response to the annexation of Crimea. A Foreign Ministry statement said Moscow’s contribution for 2017 was being withheld in response to a “rampant campaign…launched to persecute [Russian] parliamentarians”. No future payments will be made until the rights of the Russian delegation to PACE  “are fully restored”, it added.[54] 

Some kind of deal was done, though the details are obscure. On 17 May 2019 the CoM, meeting in Helsinki, voted overwhelmingly in favour of a declaration that said “all member states should be entitled to participate on an equal basis” in the CoE’s CoM and PACE. This decision was condemned strongly by Ukraine. [55] Dmytro Kuleba, Ukraine’s representative at the CoE, said: “This is not diplomacy, this is a surrender”. According to his tweet[56] on the same occasion, five other countries opposed the decision, so the fight to keep Russia out of the Parliamentary Assembly was not over.  And Vyecheslav Volodin, speaker of the Russian State Duma also expressed caution.[57]

Next, on 26 June 2019, PACE members voted for a resolution in support of three key regulatory norms stipulating that the “rights to vote, speak and be represented in the Assembly and its bodies cannot be suspended or revoked or withdrawn in the context of a challenge to or reconsideration of credentials.” The following day all powers of the Russian delegation were confirmed in full and without any exemptions. After that the Russian delegates rejoined the PACE activities as full-fledged participants.

Proposals by Ukraine to impose further limitations on Russian participation were rejected. PACE adopted recommendations that Russia should implement, including: releasing the 24 detained Ukrainian sailors; and immediate payment of all financial contributions to the CoE. PACE also requested Russia’s full co-operation with the investigations of the shooting down of Malaysian Airlines’ flight MH17 and the murder of Boris Nemtsov, and urged vigorous measures to prevent violations of the human rights of lesbians, gays, bisexuals, transgender and intersex people, especially in Chechnya.[58]

On 2 July 2019, it emerged that Russia had paid its subscription to the CoE’s budget for 2019.  Lize Glas commented in a blog entitled “Russia left, threatened and won: Its return to the Assembly without sanctions.”[59] She continued:

Russia has won. The Assembly has not only lost this fight, but also part of its credibility by permitting Russia to return without attaching any ‘internal sanctions’. As can be inferred from the debate and the report of the Monitoring Committee, the Assembly was prepared to make this ‘concession’, not only because Russia threatened to leave the Council of Europe, which would be a major blow to the Russian population of about 145 million people[60], but also because non-payment of the Russian contribution to the Organisation’s budget would cause considerable difficulties for the Council of Europe. Therefore, one cannot help but wonder whether the Assembly would have taken a more principled stance, had the State in question been a State with a lower membership fee and, therefore, with less leverage (a third of the member States pays contributions that do not even cover the costs of a judge to the Court, an administrative officer and an assistant working full time).

On 29 August 2019, the Russian Prime Minister, Dmitry Medvedev, signed a decree ordering that Russia should additionally pay its debts to the CoE for 2017-2018. This payment amounted to € 54.6 million at the expense of the Federal budget.[61] President Macron of France gave his full support to Russia’s return. At the PACE session in October he said: “”I fully support the choice made in favor of letting Russia stay in the Council of Europe, because I am certain that the Russian people are close to European humanism. They participated in creating this humanism themselves.”[62] The EU is therefore split on the question of Russia.

So Russia had indeed won, and the nature of the deal which had been done is still not clear. Russia is still in illegal occupation of Crimea, and has not complied with the other PACE recommendations.

5. Constitutional amendments in 2020

Amendments to the Constitution of the Russian Federation[63] were proposed by President Putin in his message to the Federal Assembly on 15 January 2020[64] and adopted as the Law on Amendment No. 1-FKZ “On improving regulation of certain issues of the organisation and functioning of public authorities” dated 14 March, 2020[65]. On 16 March 2020 the CCRF ruled that the proposals were in accordance with the Constitution.[66] A total of 206 amendments were proposed to the Constitution, and all of them were submitted to the so-called all-Russian vote as a package. This was a “referendum” held in conditions of pandemic from 25 June to 1 July 2020, in accordance with Article 2 of the Law “On Amendments to the Constitution”. The referendum is legally referred to as an “All-Russian vote” (Russian: общероссийское голосование, romanized: obshcherossiyskoye golosovaniye), for it was not held in accordance with the Federal Constitutional Law “On the Referendum.”[67]

The amendments received public support, and on 3 July 2020, Mr Putin signed a decree on their entering into force the following day.

On 8 April 2020 Yulia Khalikova of the University of Bremen published an article on the Riddle website entitled “Russia’s cat and mouse game with international courts”[68]. She pointed out that Article 79 of the amended Constitution will now stipulate that decisions made by international institutions are not enforceable in Russia if their legal interpretation is contrary to the constitution. Secondly, the powers of the CCRF will be expanded: the amended Section Five of Article 125 of the Constitution gives it jurisdiction to consider such cases. Thus the CCRF will hear cases on the possibility of enforcing rulings made by international or foreign courts, including international arbitrations, if they are deemed contrary to the principles of public order.

According to Article 15 (4) of the 1993 Constitution international law already has priority over Russian law. However, according to Article 79 there are two conditions under which Russia cannot take part in the activities of international organisations: if doing so leads to a restriction of human rights and freedoms, and if it contradicts the fundamental principles of the country’s constitutional system. These restrictions will now affect all actions undertaken on the basis of international treaties ratified by Russia. Furthermore, the restriction on “decisions contrary to the principles of public order” establishes an additional basis for failing to comply with decisions of international courts. At the same time, it will be the task of the CCRF to clarify what exactly these principles are.

Conclusion

The ECHR and the case-law of the ECtHR are now deeply embedded in the Russian constitutional and legal systems. Very many judgments of the CCRF are replete with references to and citations from ECtHR judgments. Valery Zorkin, Chairman of the CCRF and Vyacheslav Lebedev Chairman of the SCRF, have made it clear that there is one court which is superior to them, the Strasbourg Court. As I have shown, the Secretary General of the CoE and the President of the ECtHR are frequent visitors to Moscow and St Peterburg, and it is more than apparent that Russia wants to stay in and that the CoE is equally anxious for Russia to stay. Many observers said that the crisis over PACE representation would lead either to Russia leaving or to its expulsion. But Russia won. The chances are that despite everything, Russia will, to the great advantage of those within its jurisdiction, for whom the ECtHR is indeed a final court of appeal, remain a member of the international institution it joined in 1996.   


[1] For my own contributions from 1997 see:

  • “Russia’s Accession to the Council of Europe and Human Rights: Compliance or Cross-Purposes?” (1997) 6 European Human Rights Law Review pp.628-643. This has been translated into Russian, and appears in Rossiiskii Byulleten po Prava Cheloveka (Russian Bulletin on Human Rights) Issue 10 1998, pp.12-23;
  • “Russia’s accession to the Council of Europe and human rights: four years on” (2000) European Human Rights Law Review Issue 4, p.362;
  • “Russia in a Common European Legal Space. Developing effective remedies for the violations of rights by public bodies: compliance with the European Convention on Human Rights” in Kaj Hober (ed) The Uppsala Yearbook of East European Law 2004  (London: Wildy, Simmonds and Hill, 2005) pp.89-116;
  • “Tensions Multiply between Russia and Council of Europe: Could the Malaise be Terminal?” (April 2008) Issue 6 The EU-Russia Review pp.4-12; at eu-russiacentre.org/assets/files/Review_FINAL16March_08.pdf;
  • “Russia and Human Rights: Incompatible Opposites?” Vol 1, No 2 (2009) Göttingen Journal of International Law pp. 257-278 at http://gojil.uni-goettingen.de/ojs/index.php/gojil/article/view/37/bowring.pdf;
  • “The Russian Federation, Protocol No. 14 (and 14bis), and the Battle for the Soul of the ECHR” Goettingen Journal of International Law 2 (2010) 2, 589-617;
  • “The Russian Federation and the Strasbourg Court: The Illegitimacy of Sovereignty?” in  Katja S Ziegler, Elizabeth Wicks, Loveday Hodson (eds) The UK and European Human Rights: A Strained Relationship? (Bloomsbury, 2015) pp.415-437;
  • “Does Russia have a human rights future in the Council of Europe and OSCE?”  in Doutje Lettinga & Lars van Troost (eds) Shifting Power and Human Rights Diplomacy: Russia (2017) Amnesty International Netherlands, pp. 53-63. at https://www.academia.edu/31979697/Shifting_Power_and_Human_Rights_Diplomacy_Russia?auto_accept_coauthor=true;
  • “Russian cases in the ECtHR and the question of implementation” in Lauri Mälksoo and Wolfgang Benedek (eds) Russia and the European Court of Human Rights: The Strasbourg Effect (Cambridge, Cambridge University Press, 2018), pp.188-221;
  • “Politics and Pragmatism: The Constitutional Court of the Russian Federation and Its 20 Years of Engagement with the European Convention on Human Rights” in v.1 n.1 (2018) East European Yearbook on Human Rights, pp.5-31;
  • “Russia and the Council of Europe: an incompatible ideology, and a transplanted legal regime?” in P. Sean Morris (ed) Russian Discourses on International Law: Sociological and Philosophical Phenomenon (Abingdon, Routledge: 2018) pp. 133-157;
  • “The crisis of the European Court of Human Rights in the face of authoritarian and populist regimes” in Avidan Kent, Nikos Skoutaris, Jamie Trinidad (eds) The Future of International Courts: Regional, Institutional and Procedural Challenges (Routledge 2019) pp.76-92.

[2] https://www.nytimes.com/1986/07/29/world/excerpts-from-gorbachev-s-speech.html . I watched this speech on TV in Krasnodar, and it was clear that the assembled apparatchiks were aghast when Gorbachev announced “Comrades, there will be a revolution!”.

[3] VSND SSSR ibid, 1991 No. 17, 502; see also Sovyetskaya Iustitsiya I 23 December1991, 17

[4] Vedomosti SSSR , 1991 No. 29, 842, 843

[5] See Lauri Mälksoo Russian Approaches to International Law (Oxford: OUP, 2015). For a critique see Bill Bowring, Review, v.85 n.1 (2015) British Yearbook of International Law, 189–193

[6] Bill BowringHuman Rights in Russia: A Discourse of Emancipation or Just Another Mirage?”in Istvan Pogany (ed) Human Rights in Eastern Europe (London: Edward Elgar, 1995) pp.87-110

[7] It should be noted that on the same day the state Duma voted, by an even larger majority, to ratify the European Convention for the Prevention of Torture and Inhuman and Degrading Treatment (CPT)

[8] More than once in front of Judge Jean-Paul Costa, for whom I have the highest regard, including an in-country fact-finding hearing in Ipek v Turkey (Application no. 25760/94, judgment of 17 February 2004), from 18-20 November 2002, in Ankara.

[9] https://ehrac.org.uk/ ; https://ehrac.org.uk/about-our-work/where-we-work/russia/

[10] Ruling of the Plenary session of the Supreme Court of the Russian Federation No 5 ‘On application by courts of general jurisdiction of the commonly recognized principles and norms of the international law and the international treaties of the Russian Federation’ 10 October 2003 at www.supcourt.ru/catalog.php?c1=English&c2=Documents&c3=&id=6801

[11] Ruling of the Plenary session of the Supreme Court of the Russian Federation No.21  ‘On Application of the Convention for the Protection of Human Rights and Fundamental Freedoms of 4 November 1950 and Protocols thereto by the Courts of General Jurisdiction’ 27 June 2013. Available in English at www.supcourt.ru/catalog.php?c1=English&c2=Documents&c3=&id=9155

[12] https://www.echr.coe.int/Documents/CP_Russia_ENG.pdf

[13] See Bill Bowring ‘Russian cases in the ECtHR and the question of implementation’ in L. Mälksoo and W.Benedek (eds) Russia and the European Court of Human Rights: The Strasbourg Effect (2018) 188

[14] Published in Rossiiskaya Gazeta 27 July 2015, Federal edition No. 6734, at http://assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=5720&cat=15

http://www.rg.ru/2015/07/27/ks-dok.html

[15] Applications nos. 11157/04 and 15162/05

[16] http://www.kommersant.ru/doc/2767837

[17] http://www.kommersant.ru/doc/2768367 (accessed on 31 December 2015)

[18] Федеральный закон Российской Федерации от 14 декабря 2015 г. N 7-ФКЗ “О внесении изменений в Федеральный конституционный закон “О Конституционном Суде Российской Федерации” (Federalniy zakon Rossiiskoi Federatsii ot 14 Dekabrya 2015 N 7-FKZ “O vnesenii izmeneniy v Federalniy konstitutionniy zakon “O Konstitutsionnom Sude Rossiiskoi Federatsii”).

[19] http://newsru.com/russia/15dec2015/podpisal.html

[20] http://www.rg.ru/2015/12/15/ks-site-dok.html

[21] Application Nos. 11157/04 and 15162/05.

[22] Hirst v. the United Kingdom (No 2) [2005] ECHR 681, Application No. 74025/01, Judgment (Grand Chamber) of 6 October 2005.

[23] http://www.ejiltalk.org/russia-defies-strasbourg-is-contagion-spreading/ (accessed on 14 January 2018).

[24] http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/

[25] Nils Muižnieks “Observations for the Joint Committee on the Draft Voting Eligibility (Prisoners) Bill” 10 October 2013, at https://wcd.coe.int/com.instranet.InstraServlet?command=com.instranet.CmdBlobGet&InstranetImage=2933800&SecMode=1&DocId=2062696&Usage=2

[26] http://ukhumanrightsblog.com/2013/11/21/hostility-to-the-european-court-and-the-risks-of-contagion-philip-leach-and-alice-donald/

[27] http://www.coe.int/en/web/secretary-general/news/-/asset_publisher/EYlBJNjXtA5U/content/russia-s-new-law-on-the-constitutional-court-jagland-a-solution-should-be-possible-/16695?desktop=true  (13 January 2018).

[28] No. 12- П/2016, 19 April 2016.

[29] For an early analysis, see Marina Aksenova “Anchugov and Gladkov Is Not Enforceable: The Russian Constitutional Court Opines in Its First ECtHR Implementation Case,” 25 April 2016, at http://opiniojuris.org/2016/04/25/anchugov-and-gladkov-is-not-enforceable-the-russian-constitutional-court-opines-in-its-first-ecthr-implementation-case/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+opiniojurisfeed+%28Opinio+Juris%29 – this article has very useful links.

[30] See J. Haak, ‘Constitutional Court of the Russian Federation, Decision from 19 April 2016, No. 12-P/16. An Assessment from a German Point of View’ 6 Journal of Siberian Federal University. Humanities & Social Sciences  (2017) 845

[31] CM/ResDH(2019)240

[32] See, for a very critical response, Gleb Bogush and Ausra Padskocimaite “Case Closed, but what about the Execution of the Judgment? The closure of Anchugov and Gladkov v. Russia” 30 October 2019, EJIL: Talk!, at https://www.ejiltalk.org/case-closed-but-what-about-the-execution-of-the-judgment-the-closure-of-anchugov-and-gladkov-v-russia/

[33] https://hudoc.exec.coe.int/eng#{%22EXECIdentifier%22:[%22DH-DD(2019)740E%22]}

[34] http://www.consultant.ru/document/cons_doc_LAW_10699/fbf561e8e76ded47846e0b625229d7933bbcc93a/

[35]https://zakon.ru/discussion/2016/12/06/predsedatel_espch_pohvalil_rossiyu_za_ispolnenie_reshenij_suda__otkrytie_devyatogo_sezda_sudej_prosh

[36] http://kommersant.ru/doc/3162703

[37]https://zakon.ru/discussion/2016/11/16/prezidium_vs_otpravil_delo_kirovlesa_na_novoe_rassmotrenie__posle_resheniya_espch_o_narushenii_prav_

[38] Navalny and Ofitserov v. Russia, Application Nos. 46632/13 and 28671/14, Judgment of 23 February 2016. The Russian courts had found the applicants guilty of acts indistinguishable from regular commercial activities. In other words, the criminal law had been arbitrarily construed to the applicants’ detriment. The courts had failed to address Mr. Navalny’s arguable allegation that the reasons for his prosecution were his political activities.

http://hudoc.echr.coe.int/eng?i=001-161060

[39] See https://rg.ru/2017/01/19/reg-szfo/konstitucionnyj-sud-rf-vynes-reshenie-po-delu-iukosa.html

Text of the judgment with the two dissenting judgments at http://doc.ksrf.ru/decision/KSRFDecision258613.pdf

[40] This is to be found on the website of the Russian CC at http://www.ksrf.ru/ru/Sessions/Documents/Yukos_Zaklyucheniye_30_11_2016.pdf

[41] A member of the Russian team from Moscow State University which became World Champion in March 2012 in the final in Washington DC of the Jessup International Law Moot Court Competition, see https://www.facebook.com/StudyInRussiaStudyInMoscow/photos/msu-team-wins-jessup-international-law-moot-court-competitionmoscow-state-univer/263034803802841/

[42] http://ilpp.ru/netcat_files/userfiles/Litigation_Treinings/Amicus/8_YUKOS_Amicus%20Curiae%20Brief_07-12-2016.pdf

[43] And see Anna Pushkarskaya, 24 January 2017, Kommersant, at http://www.kommersant.ru/doc/3200196

[44] http://www.assembly.coe.int/nw/xml/News/News-View-EN.asp?newsid=6484&lang=2&cat=9

[45] Maxim Timofeyev “Money Makes the Court Go Round: The Russian Constitutional Court’s Yukos Judgment,” at

[46] https://vodmanager.coe.int/cedh/webcast/cedh/2017-01-26-1/lang

[47] http://tass.com/world/927460. For a different point of view, see http://kommersant.ru/doc/3202083

[48] I have checked this against the Court’s webcast note 132.

[49] See I. Marchuk, ‘The Tale of Yukos and of the Russian Constitutional Court’s Rebellion against the European Court of Human Rights’ AIC Osservatorio Constituzionale 1, at http://www.osservatorioaic.it/download/_rNqUPZ7lCzoX8S2kDDq8rd_vfJT0AMXT3K31xgeAYY/marchuck-aksenova-definitivo.pdf

[50]DH-DD (2019)186; 1340th meeting (March 2019) (DH) – Rule 9.1 Communication from the applicant (21/02/2019) in the case of OAO NEFTYANAYA KOMPANIYA YUKOS v. Russian Federation (Application No. 14902/04) Drafted by Piers Gardner, counsel for the applicants. https://search.coe.int/cm/Pages/result_details.aspx?ObjectId=0900001680932355; http://rm.coe.int/native/0900001680932355;

[51] See Bill Bowring “Who Are the “Crimean People” or “People of Crimea”? The Fate of the Crimean Tatars, Russia’s Legal Justification for Annexation, and Pandora’s Box” in Sergey Sayapin and Evhen Tsybulenko (eds) The Use of Force against Ukraine and International Law” Jus Ad Bellum, Jus In Bello, Jus Post Bellum (T M C Asser / Springer 2018) pp. 21-40,

[52]  The sanctions were imposed by the United States, the European Union (EU) and other countries and international organisations against Russian individuals, businesses and officials

[53] Leonid Bershidsky “Five Years Later, Putin Is Paying for Crimea” Bloomberg Opinion 16 March 2019 at  https://www.bloomberg.com/opinion/articles/2019-03-16/russia-s-annexation-of-crimea-5-years-ago-has-cost-putin-dearly

[54] https://www.independent.co.uk/news/world/europe/russia-cancels-council-of-europe-payment-members-persecuted-a7816951.html

[55] Jennifer Rankin, The Guardian, 17 May 2019, at

https://www.theguardian.com/world/2019/may/17/council-of-europe-votes-to-maintain-russia-membership-crimea

[56] https://twitter.com/DmytroKuleba/status/1129306035943071744

[57] http://tass.com/politics/1058908

[58] https://globalvoices.org/2019/09/24/russias-return-to-the-parliamentary-assembly-of-the-council-of-europe-diplomacy-or-defeat/

[59] https://strasbourgobservers.com/2019/07/02/russia-left-threatened-and-has-won-its-return-to-the-assembly-without-sanctions/

[60] See the Memorandum by Russian NGOs at

[61] https://tass.com/economy/1076413

[62] https://tass.com/world/1080748

[63] See William Partlett “Russia’s 2020 Constitutional Amendments: A Comparative Perspective” (Melbourne Legal Studies Research Paper Series No. 887) June 2020, at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3625390

[64] http://kremlin.ru/events/president/news/62582

[65] http://www.consultant.ru/document/cons_doc_LAW_346019/

[66] Zakluchenie No.1-3/2020, http://doc.ksrf.ru/decision/KSRFDecision459904.pdf

[67] Olga Sadovskaya, EU-Russia Civil Society Forum: “The New Russian Constitution as a Pandora’s Box” at

[68] https://www.ridl.io/en/russia-s-cat-and-mouse-game-with-international-courts/

Keir Starmer and the Haldane Society of Socialist Lawyers: I can send some historical documents

Keir Starmer was Secretary of the Haldane Society of Socialist Lawyers when I was Chair in the early 1990s. I don’t think he was ever a socialist, certainly not a Marxist, although I have a PDF of his 1987 article in “Socialist Alternatives” entitled “Wapping – beyond a defeat”. But then the Labour Party is not a socialist party. It is a trade union party.

Keir was a very good human rights lawyer, and acted pro bono for ten years for the defendants, Helen Steel and David Morris, in the McLibel case brought by McDonalds.

In 1992 he led a Haldane mission to Northern Ireland. I have the Report entitled “Upholding the rule of law? Northern Ireland: criminal justice under the “emergency powers” in the 1990s”, and can send it and the 1987 article to anyone who emails me. b.bowring@bbk.ac.uk.

He became DPP through his work in the peace process in Northern Ireland. In 2007 before he became DPP he led me in Carter v Russia, the poisoning of Alexandr Litvinenko by the Russian state, brought by his widow Marina. The case is still proceeding at Strasbourg, and I am still representing Marina (now with Ben Emerson QC).

Keir was always intensely ambitious.

Bill Bowring’s review of ‘The Corporation, Law, and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy’ by Grietje Baars

Grietje Baars
The Corporation, Law, and Capitalism: A Radical Perspective on the Role of Law in the Global Political Economy

Haymarket Books, Chicago, 2020. 498 pp. £42.99 pb
ISBN 9781642591873

Reviewed by Bill Bowring

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Grietje Baars’s monumental – nearly 500 pages – work, The Corporation, Law, and Capitalism is now published in paperback at a reasonable price. This reviewer hopes that readers will delve into her passionately and clearly written engagement not only with the corporation as the engine of capitalism, but with law itself.

Baars’s call to action is comprehensive, drawn from Marx’s On the Jewish Question: ‘Our resistance must turn against the concept of private property, against capitalism and against law: away from legal emancipation and toward human emancipation.’ (379) Baars is against ‘cause-lawyering’, and attempts to hold corporations criminally liable. For her, such activism and critique inadvertently strengthens and creates value for capitalism. She supports her arguments with a wide range of scholarship.

Baars is well qualified for such an undertaking. She started as a commercial solicitor, and studied for her PhD under Catherine Redgwell at UCL, from 2004 to 2012. The book was conceived in 2009. Baars was then an in-house lawyer at Habitat, which enabled her ‘to understand the real-life effects of the intricacies of global corporate group structures as well as the relationship between human rights, contract law and international production chains’. (xiii) Her life changed dramatically when she spent time in the Occupied Palestinian Territories, and participated in international conferences on the enforcement of International Humanitarian Law there.

It was while she was in Palestine that, in her words, her ‘mind was blown’ reading China Miéville’s 2006  Between Equal Rights: A Marxist Theory of International Law. She was converted to the ‘commodity form theory of law’ of Yevgeniy Pashukanis, the most interesting Soviet theorist of law, and his Law and Marxism: A General Theory (1924). This is the theoretical heart of Baars’s The Corporation, Law, and Capitalism.

She also spent time with the European Centre for Constitutional and Human Rights (ECCHR) in Berlin, cause lawyers par excellence. Using litigation, it tries to hold state and non-state actors responsible for egregious abuses. Corporations have been particular targets. Baars respects the work of ECCHR, but in her view it is counter-productive, it achieves the opposite of what it intends.

Baars starts by setting out her theoretical framework. This is entitled ‘Introduction: ‘Das Kapital, das immer dahinter steckt’, which means, literally, she says, ‘the capital that always lurks behind it’. She helpfully adds in a footnote: “I owe this phrase to Fabian Schellhaas, who used it in his presentation in March 2010 at Prof. Werle’s Doktorandenseminar at the Humboldt University of Berlin.” To which one can only respond “Gott hilf mir!” Thankfully, Baars has few such impenetrable asides, though this is on p. 1.

After this, the structure and contents of the book are as follows. Baars has four chapters, and a short conclusion which is also a substantive chapter, on ‘Corporate Imperialism’.

Chapter 2 is much longer than the Introduction, over 100 pages, and is ambitiously entitled “The Roots, Development, and Context of the Legal Concept of the Corporation: the making of a Structure of Irresponsibility and a Tool of Imperialism”. This is the chapter in which Baars presents her substantive and very interesting research on law and on the Corporation.

Chapter 3 is about the same length, and at first glance has not much to do with the theory of the corporation or of law. It is entitled ‘Capitalism’s Victors’ Justice? The Economics of World War Two, the Allies’ Trials of the German Industrialists and their Treatment of the Japanese Zaibatsu’, with two sections, on the Nuremburg and Tokyo International Military Tribunals respectively. Baars’s purpose in this chapter is primarily to criticise individual criminal responsibility, and, in passing, the evident failure of the allies to prosecutes the German corporations. This chapter is also the fruit of meticulous research.

Chapter 4 is rather shorter, and is entitled ‘Remaking ICL: Removing Businessmen and Inserting Legal Persons as Subjects’. It is divided into three sections. 4A is “The Remaking of ICL: Lawyers Congealing Capitalism”. I will return to this innovative transitive use of “congeal”. 4B is “ ‘No Soul to Damn and No Body to Kick’? Attribution, Perpetration and Mens Rea in Business”, and 4C is “Re-making ICL: Who wants to be an International Criminal? Casting Business in Contemporary ICL”. This again is Baars’s critique of international criminal law, rather than corporations.

Chapter 5 is much shorter, less than half the length of the first two substantive chapters, and also has an interesting title ‘Contemporary Schreibtischtäter: Drinking from the Poisoned Chalice’. This chapter has a strong doctrinal focus on the International Criminal Tribunals for Yugoslavia and Rwanda, the Special Court for Sierra Leone, and the International Criminal Court itself. Baars tells us that ‘Schreibtischtäter’ can be translated ‘desk murderers’, ‘… carrying out the seemingly innocuous tasks that lead or contribute to ‘physical’ crimes at some distance removed from the office.’ (309)

This unusual structure, with two chapters of over 100 words, one of almost 70, and three of something over 30, is somewhat reminiscent of the Holy Qu’ran, in which the chapters are organised in order of decreasing length.

As to the theoretical basis of the book, Baars states that ‘I use a Marxist theoretical framework and method.’ Baars wants to define the nature of capitalist law, where it came from ‘and how and why it was created or why law specifically was selected as opposed to other forms of social organisation’. (9) However, the notion that law under capitalism was created or selected (by whom?) seems rather un-Marxist. Laws have been around since at least the Babylonian Code of Hammurabi in about 1754 BC. Most Marxists, especially adherents to ‘historical materialism’, insist that the laws of a social order, such as capitalism, are rooted in material conditions (forces of production), and production relations. Elsewhere in the text, Baars is much closer to such a conception.

The ‘commodity form theory of law’ (CFTL) as put forward by Pashukanis in 1924 and applied to international law by Miéville in 2004, says Baars, ‘provides a clear and persuasive explanation of where law comes from and why it (was) developed’ (10). She adds that employing this theory enables her to show that the corporation ‘came from somewhere’. (11) She claims that in her book ‘for the first time the [CFTL] has been applied in a sustained way to a specific societal problem.’ (14) She briefly outlines CFTL in just a little over two pages (16-18), which does not enable her to do justice to the complexity of Pashukanis’s thought, or to its critics. Nevertheless, she highlights her own advances: ‘Without departing from the main tenets of the [CFTL], I adjust a number of Miéville’s parameters to better fit some aspects of Marxist theory and the questions I seek to answer’ (18). These adjustments are threefold: first, her notion of ‘law’ rather than Miéville’s distinction between national and international law; second, the concept of global classes rather than Miéville’s emphasis on the international state-system; and third, her foregrounding of imperialist economic violence ‘perpetrated and participated in by the various types of members of the global capitalist class rather than inter-state war per se.’ (19)

Baars has two notable theoretical innovations of interest to Marxists, the first of which I have already mentioned is her transitive use of the word ‘congeal’. For her, law ‘congeals’ capitalism. The second is her notion of ‘canned morality’. Both make regular appearances from the beginning to the end of the book.

The word ‘congeal’ is employed by Baars in a number of different ways as the book progresses. First, it is said that ‘law congeals capitalism’, which means that the form and content of law are determined by the mode of production. She adds: ‘Whatever material relations exist, we design law, or law functions, so as to confirm, support, congeal or concretise them.’ Further, the work of legal scholars is ‘…the dialectical process of law(yers) congealing capitalism’. (26) The next section is headed ‘Lawyers Congealing Capitalism: Who Constructs the Structure?’. (Ibid)  Baars subsequently adds: ‘…lawyers, through law, congeal capitalism. I deliberately use the verb to congeal incorrectly here, to emphasise the hidden agency behind a process that seems ‘natural’. (28)

In Chapter 2 Baars starts by referring to our failure to see law as the ‘congealing’ of property relations. She links her own concept to Marx’s ‘commodity fetishism’ and to the ‘congealing of the corporate purpose of profit extraction in the 1844 [Joint Stock Companies] Act’ (69). She continues that the corporation is a ‘structure of irresponsibility’ which is ‘capitalism congealed’ (74), and adds that ideological forms ‘congeal’ the state and the corporation. (92)

Leaving Corporations as such behind, Baars turns to the Nuremburg International Military Tribunal. She explains why it was not a failure: ‘by producing capitalism’s victor’s justice it played an important part in this process of further congealing capitalism and institutionalising international law.’ (198)  It was ‘members of the (literal) ruling elite congealing capitalism’.  Indeed, she says, ‘… lawyers’ construction of ICL (International Criminal Law) ideology serves partly to congeal ICL’s fluidity…’. (240) Later in the chapter, Baars again emphasises the role of lawyers, whose ‘congealing serves to further rationalise criminal justice policy’ (266). She asks whether if the International Criminal Court regime were to congeal into Customary International Law, it would be less useful for capturing corporate actors. (274) Finally, she writes that ‘ICL thus forms an integral part of the structure of rules congealing the economically exploitative relationships between the GCC (Global Capitalist Class) and the GWC (Global Working Class).’ (341) This last use of the word ‘congeal’ is rather opaque.

To turn to ‘canned morality’, this is introduced as a feature of International Criminal Law (12). Baars explains: ‘Criminal law, more than any other area of law, functions as society’s ‘moral guide’ and is thus a powerful ideological tool that can be deployed at opportune political moments in the service of capitalism, as ‘canned morality’. (23) The International Military Tribunals after WWII were, she says, a display of ‘canned morality’ which ‘served the prevailing mode of production by allowing ‘liberal lawyers’ to express their individual humanitarianism and through this to construct the ideological ‘play’ of the trials, while simultaneously creating a ‘diversion’ for far-reaching economic intervention.’ (134)

Baars reveals ‘An Alternative Foundational Narrative for ICL’. Her sub-heading ‘Canned Morality: a Commodity Form Theory of ICL’ reveals the ambition of her innovation. This is commodified morality, producing ‘accountability’ in the Weberian sense, so that commodified morality can be deployed to control and optimise public sentiment. It unites us with the state against the accused, and away from the structural questions. ‘This is what ICL is for’, she declares (263). The ICL industry, she says, produces canned morality to divert our attention from the structural causes of conflict (308). Later, she explains that ‘corporate accountability thus equals ‘commodified (and canned) morality’ or ‘moral’ behaviour with a clear economic benefit.’ (359) She adds that ‘… canned morality is as far away from democracy as we can get.’ (374) Canned morality also makes its appearance in the impassioned final pages of the book, where Baars inveighs against cause lawyering, and legal emancipation.

The reader must judge for themselves whether Baars has achieved a significant development of Marxist theory, and whether her reading of CFTL bears the weight she wishes to place on it, in particular ‘canned morality’ as the ‘commodity form theory of International Criminal Law’. But there can be no doubting the passion and scholarship, especially concerning the corporation itself and its history, and the development of ICL, which are to be found on every page of The Corporation, Law, and Capitalism. The book is indeed a rewarding if lengthy read.

18 July 2020

URL: https://marxandphilosophy.org.uk/reviews/18226_the-corporation-law-and-capitalism-a-radical-perspective-on-the-role-of-law-in-the-global-political-economy-by-grietje-baars-reviewed-by-bill-bowring/

Marx, Engels, Lenin, and the Right of Peoples to Self-Determination in International Law

Draft for Elgar Handbook on Law and Marxism edited by Paul O’Connell and Umut Özsu. Accepted draft.

Marx, Engels, Lenin, and the Right of Peoples to Self-Determination in International Law

Bill Bowring

Introduction

The right of peoples to self-determination is a continuing scandal at the heart of post-Second World War international law. Prior to the Second World War, collective self-determination was a revolutionary principle deployed by Marx, Engels and Lenin, and was enshrined as such in the first constitutions of Soviet Russia and the Soviet Union.[1] With the establishment of the United Nations in 1945, self-determination found expression in that organization’s founding constitutional instrument, the UN Charter including among its four ‘purposes’ a provision that spoke of the need ‘[t]o develop friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, and to take other appropriate measures to strengthen universal peace’.[2] In 1945 self-determination was therefore a ‘principle’, but not a ‘right’ under international law. Nevertheless, as a result of the hard-fought ‘battle for international law’ in the context of decolonisation,[3] the legal right of peoples to self-determination was enshrined in the two 1966 human rights covenants, both of which are legally binding multilateral treaties ratified by most of the 193 current members of the United Nations.[4] As a result, self-determination was controversially confirmed as a human right, at the foundations of both civil and political rights, going back to the 1789 Déclaration des droits de l’homme et du citoyen, and to social, economic, and cultural rights, first grudgingly conceded by Western capitalist states in 1919 with the creation of the International Labour Organisation in response to the Russian Revolution.[5] Indeed, the right to self-determination is not simply enshrined in binding treaty law; it enjoys an even higher status, being understood by most international lawyers as a norm of customary international law, binding on all states. It is also understood as an erga omnes obligation—an obligation owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all.

In my 2008 book, The Degradation of the International Legal Order?,[6] I wrote that ‘[t]he Bolshevik and then Soviet doctrine of the right of nations to self-determination had its origin in the uncompromising pre-World War I struggle between Lenin, Stalin and Trotsky (and orthodox Marxists with Karl Kautsky at their head) on the one side, and the Austro-Marxist theorists such as Karl Renner and Otto Bauer on the other’.[7] The ‘right of nations to self-determination’ was a key element of Lenin’s policy from 1914 onwards. In fact, the right of ‘nations’ (a term that is now often replaced by ‘peoples’) to self-determination has a long history, and was an important matter of principle for Marx and Engels.

This chapter proceeds in three parts. First, I begin by considering recent orthodox accounts of self-determination in international law, which generally seek to downplay the importance and content of the right of peoples to self-determination. I pay particularly close attention to the role of Marx and Lenin—and also, paradoxically, the Soviet Union—in propagating the concept of self-determination and related political programmes. I also pay close attention to the success of the Soviet Union and other ‘socialist’ states in making self-determination a core element of international law after the Second World War. Second, I turn to the mid-life conversion of Marx and Engels to support national self-determination in the cases of Poland and Ireland, and the vexed question of whether this simply amounted to a rehearsal of the Hegelian (and Eurocentric) theory of historical and non-historical nations. Engels borrowed the concept of non-historical peoples from Hegel, who had identified nationhood with a tradition of statehood.[8] Third, I examine Lenin’s principled support of the right of nations to self-determination, his return to Marx’s position, and his decisive role in placing the right at the centre of early Soviet policy and constitutionalism. Finally, I trace the role of the Soviet Union in helping to bring about a revolution in international law, and at the same time securing its own downfall.[9]

Self-Determination and International Struggle, 2004 and 2019

The right to collective self-determination was recently—and clearly—reaffirmed by the International Court of Justice (ICJ) in two advisory opinions, dealing with two exemplary instances of the anti-imperialist struggle, itself an aspect of the class struggle. These two opinions were delivered in 2004 (on the question of Israel’s construction of its West Bank wall, which runs through occupied Palestinian territories)[10] and 2019 (on the United Kingdom’s violation of the Chagos Islanders’ right to self-determination.[11]

In its 2004 advisory opinion on the West Bank wall, the ICJ recalled[12] that common article 1 of the ICESCR and ICCPR ‘reaffirms the right of all peoples to self-determination’, and lays upon all states parties to these instruments the obligation to promote the realization of that right and to respect it, in conformity with the UN Charter. The ICJ held that Israel had violated the right to self-determination of the Palestinian people by constructing a wall, which it termed a ‘separation barrier’, through occupied Palestinian territories.

In its more recent advisory opinion on ‘the legal consequences of the separation of the Chagos Archipelago from Mauritius by the United Kingdom in 1965’, the ICJ held that ‘the nature and scope of the right to self-determination of peoples, including respect for “the national unity and territorial integrity of a State or country”, were reiterated in the 1970 Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations’ which ‘confirmed its normative character under customary international law’.[13] Further, the ICJ stated that ‘since respect for the right to self-determination is an obligation erga omnes, all States have a legal interest in protecting that right’.[14] The ICJ held that the United Kingdom violated this right when it separated the Chagos Islands from Mauritius prior to the latter’s independence in March 1968. On 8 November 1965, the islands were joined to formally established as an overseas territory of the United Kingdom—that is, a new British colony—to be known as the ‘British Indian Ocean Territory’. In 1971 the United Kingdom and the United States concluding a treaty to lease the island of Diego Garcia, the largest of the Chagos Islands, to the United States, so that the latter might build an air and naval base on the island. The inhabitants of the Chagos Islands were subsequently exiled in secret to Mauritius, where they became chronically impoverished.[15] The ICJ concluded that ‘the United Kingdom has an obligation to bring to an end its administration of the Chagos archipelago as rapidly as possible, and that all Member States must co-operate with the United Nations to complete the decolonization of Mauritius’.[16]

On 22 May 2019 the UN General Assembly adopted a resolution welcoming the ICJ’s advisory opinion on the legal consequences of the Chagos Archipelago’s separation from Mauritius, and also demanding that the United Kingdom unconditionally withdraw its colonial administration from the area within six months.[17] The vote was 116 in favour of the resolution to six against, with 56 abstentions.[18] The right of peoples to self-determination continues, it would seem, to retain its importance—indeed, its revolutionary anti-colonial power—today. It is unlikely that the United Kingdom will acquiesce in the General Assembly’s demand, or that the United States will be made to leave Diego Garcia. It is now known that the island has played a central role in the US policies of torture and rendition to Guantánamo Bay,[19] in which the United Kingdom has colluded.[20]

Umut Özsu contends that the development of international human rights law since 1945 should not be explained either as ‘an incremental unfolding of some inexorable logic’ or as a hierarchy of norms, but rather as ‘an outgrowth of a series of wide-ranging struggles over which social claims and relations were to receive legal sanction’.[21] I argue more concretely that the right of peoples to self-determination is a hotly contested irruption of politics into law, with its roots in the 19th century—and that while it is uncontestably a legal right in international law, both as enshrined in treaties and as customary international law, it is by no means accepted as such. Self-determination struggles continue to rage throughout the world, for example in the ongoing cases of the Basque. Irish, Kurdish and Palestinian peoples.[22] I contend that the claim to a right of peoples to self-determination had its origins entirely outside any discussion of international law. Marx, Engels, and Lenin had no interest whatsoever in international law, and what was for a long period a political slogan or demand only acquired legal status in the context of struggles for decolonization and the break-up of colonial empires. And in the context of the United Nations.

Downgrading Self-Determination?

Although the Soviet Union, paradoxically and hypocritically, was instrumental in transforming the principle of self-determination into a legal right, a central norm of international law, most orthodox texts on international law portray the Soviet approach to the right to self-determination as merely hypocritical and contradictory.

The entry for ‘self-determination’ in the Max Planck Encyclopedia of International Law, for example, maintains that, according to Soviet doctrine, self-determination existed ‘only for cases where it served the cause of class struggle and so-called socialist justice; it was only a tactical means to serve the aims of world communism and not an end in itself’.[23] Similarly, Stefan Oeter passes a similar judgment in a well-known commentary on the UN Charter, characterising Lenin’s insistence on the right of ‘nations’ to self-determination as nothing more than a ‘political weapon’, whereas Woodrow Wilson, with his ‘Fourteen Points’ on the reorganisation of Europe after the First World War, is presented as the political actor who enabled self-determination to make its way from politics to international law.[24] In a similar vein, Lauri Mälksoo, an Estonian scholar of international law, has suggested that it is ‘misleading to pick and choose certain pro self-determination moves by the Bolsheviks in 1917 and 1920, and then conclude that the Soviets advanced this right in international law’.[25]

In order to get a broader sense of the way in which the role of socialist states in shaping the international law of self-determination, it is useful to consider two recent books that engage closely with self-determination: Jörg Fisch’s The Right of Self-Determination of Peoples: The Domestication of an Illusion,[26] and Fernando Tesón’s edited volume, The Theory of Self-Determination.[27] Both books recognize the significance of the contradictory role played by the Soviet Union in decolonisation.

Fisch’s book starts by recognising the role played by Lenin: ‘Lenin’s position on the right to self-determination was already clear in 1914, while Wilson probably did not even know of the expression “right of self-determination of peoples” in 1914’, Fisch suggests controversially, adding that because the Second World War was a ‘traditional power struggle’ the right to self-determination might have disappeared ‘definitively’.[28] However, the victorious powers were unable to keep their colonies in check, and in the summer of 1945, when the Soviet Union introduced the ‘principle of self-determination’ into the UN Charter,[29] ‘[t]his secured the Soviet Union the approval of the colonial regions’.[30] Fisch adds that ‘the Soviet bloc and the Third World took over the substance of the concept that had been created in the Americas between 1776 and 1865, but had not yet been designated as self-determination’.[31] According to Fisch, the Third World, supported by the Soviet Union and its allies, succeeded after 1945 in ‘monopolising the discourse of self-determination and the right to self-determination for itself.’[32] He concludes that ‘Lenin’s venture in 1917–18 was a resounding success’, and that ‘Wilson became a prophet of the right to self-determination, but not of his own concept of it, but rather Lenin’s’.[33]

Tesón’s collection, by contrast, has very little to say about the decolonization period, save only for a chapter authored by Patrick Macklem.[34]. Unlike Fisch, Macklem seems determined to ensure that the Soviet Union should disappear from the history of common article one of the two 1966 human rights covenants. Thus, he begins by informing his reader that it was Arab, Asian, and Latin American delegations that began to press for recognition of a legal right to self-determination during the 1950s, much to the alarm of ‘European officials’, who saw this as a pretext for attacks on colonial powers.[35] Lenin and the Soviet Union make no appearance in Macklem’s account of the emergence of the concept, as a discourse justifying the liberation of eastern European peoples.[36] He asserts that ‘[a]fter a decade of efforts by the African, Arab, Asian and Latin American delegations to attempt to persuade numerous UN bodies to recognise self-determination as a human right’, the General Assembly adopted Resolution 1514 (XV).[37] And he further adds that ‘[t]he elevation of self-determination to the status of a human right was a spectacular political achievement by the Arab, Asian, and Latin American delegations’ at the United Nations.[38]

It is worth comparing these recent additions to the literature on decolonisation with Antonio Cassese’s magisterial 1995 book on the topic, Self-Determination of Peoples: A Legal Reappraisal.[39] Cassese was clear that ‘Lenin was the first to insist, to the international community, that the right of self-determination be established as a general criterion for the liberation of peoples.’[40] He engages in detail with the positions of Lenin and Wilson, Lenin’s call for the immediate liberation of those living under colonial rule, and Wilsons’ championing of ‘orderly liberal reformism’.[41] Cassese’s claim that it was the Soviet Union that insisted on the proclamation of the right to self-determination in the text of the UN Charter is supported by several sources and discussed in detail.[42] Cassese gives the 1955 Bandung Conference its proper place as an important contributor to a legal right to self-determination. But he maintains that the socialist countries were the most active advocates of anti-colonial self-determination, and ‘adopted and developed Lenin’s thesis that self-determination should first and foremost be a postulate of anti-colonialism’.[43] Further, it was the Soviet Union, he argues, that ‘strongly advocated the need for both Covenants formally to enshrine the right of peoples to self-determination, which, in the Soviet view, was a precondition for the respect of individual rights.’[44] Self-determination, for Cassese, is an ‘international political postulate’ with a revolutionary content.[45]

Karl Marx on Self-Determination

Marx himself used the phrase ‘right of nations to self-determination’ on at least three occasions. First, in his 1843 ‘Critique of Hegel’s Philosophy of Right’, Marx wrote that ‘in democracy the constitution, the law, the state, so far as it is political constitution, is itself only a self-determination of the people, and a determinate content of the people’.[46] Marx’s phrase ‘self-determination of the people’, in the context of democratic struggles, is significant in relation to positions he would adopt later in life. It was immediately after this passage that Marx added his famous statement about democracy:

Democracy is the resolved mystery of all constitutions.[47] Here the constitution not only in itself, according to essence, but according to existence and actuality is returned to its real ground, actual man, the actual people, and established as its own work. The constitution appears as what it is, the free product of men.

Marx’s use of ‘self-determination of nations’ in a more directly political, and less theoretical, sense dates at least as early as 1865. In his letter of 20 November 1865, Marx referred, under the heading ‘International Politics’, to ‘[t]he need to eliminate Muscovite influence in Europe by applying the right of self-determination of nations, and the re-establishment of Poland upon a democratic and social basis’.[48] Additionally, on 22 February 1866, the Belgian newspaper L’Echo de Verviers published a letter Marx had helped to write, containing the following language: ‘The Central Council …  has founded three newspapers … one in Britain, The Workman’s Advocate, the only English newspaper which, proceeding from the right of the peoples to self-determination, recognises that the Irish have the right to throw off the English yoke.’[49]

The cause of Poland, subject to three partitions by Russia, Austria, and Prussia during the course of the eighteenth century (in 1772, 1793, and 1795 respectively), and complete elimination in the final partition, engaged Marx’s particular enthusiasm. Marx was a passionate enemy of the Russian Empire, the ‘gendarme of Europe’, as the following passage from 1856–57 shows: ‘It is in the terrible and abject school of Mongolian slavery that Muscovy was nursed and grew up. It gathered strength only by becoming a virtuoso in the craft of serfdom. Even when emancipated, Muscovy continued to perform its traditional part of the slave as master.’[50]

Furthermore, in a speech on Poland delivered on 22 January 1863 , Marx once again referred to self-determination in strong terms:

What are the reasons for this special interest of the Working Men’s  Party in the fate of Poland? First of all, of course, sympathy for a subjugated people which,  by continuous heroic struggle against its oppressors, has proven its historic right to national independence  and self-determination. It is by no means  a contradiction that the international  Working Men’s Party should strive for the restoration  of the Polish nation.[51]

Needless to say, Poland was not the only nation for the liberation of which Marx became a strong advocate. Ireland was another.

Marx underwent a dramatic change of mind (not the only occasion on which he did so) concerning Ireland, in 1867. As Lenin made a point of noting, prior to the 1860s Marx thought that Ireland ‘would not be liberated by the national movement of the oppressed nation, but by the working-class movement of the oppressor nation’. ‘However’, he noted, ‘it so happened that the English working class fell under the influence of the liberals for a fairly long time, became an appendage to the liberals, and by adopting a liberal-labour policy left itself leaderless. The bourgeois liberation movement in Ireland grew stronger and assumed revolutionary forms. Marx reconsidered his view and corrected it.’[52] Lenin cited a letter from Marx to Engels of 2 November 1867,[53] in which Marx wrote as follows:

The Fenian trial in Manchester was exactly as was to be expected. You will have seen what a scandal ‘our people’ have caused in the Reform League. I sought by every means at my disposal to incite the English workers to demonstrate in favour of Fenianism … I once believed the separation of Ireland from England to be impossible. I now regard it as inevitable, although Federation may follow upon separation.[54]

The trial in question was that of the ‘Manchester martyrs’: William Philip Allen, Michael Larkin, and Michael O’Brien, all members of the Irish Republican Brotherhood. These three were executed after having been found guilty of the murder of a police officer during an escape from prison that took place close to Manchester’s city-centre in 1867.[55] For his principled position on the matter, Marx would now be prosecuted for ‘glorifying terrorism’.[56]

Jeremy Smith, writing on the ‘national question’,[57] notes that in 1848 Marx blamed the Irish for the chauvinism of British workers, viewing the English Chartist movement as the only force capable of liberating the Irish people. But the rise of the Fenian movement in the 1860s forced Marx to urge the English workers to support them, and to recognise that revolution in Ireland might even precede and encourage revolution in England. Marx and Engels’ new position was that all national liberation movements were by nature revolutionary and should therefore in every case be supported by communists. Nigel Harris also contends that the views of Marx and Engels  changed ‘quite radically’. On his account, “In 1848 Engels was completely insensitive to the complicated class issues of the Austrian Empire,  subordinating all to the fate of Magyars, Poles, and Italians, and the need to stop Russia.” All the other nations were “… reduced to the non-historical, the rubbish of ages.” Harris continued “All Slavs except the Poles became “Panslavists”.  But by about 1870, “… for Marx and Engels the discovery of Ireland changed the motivation, not simply the strategic balance”.[58]

As to Marx’s radical change of position, Michael Heinrich has rightly argued that rather than a single, consistent oeuvre, or (for Althusser) a simple break between a younger, more philosophical Marx and a later, properly scientific one focused on political economy, ‘we find in Marx a whole series of attempts, discontinuations, shifts, new concepts and new beginnings’.[59] Indeed, ‘there are no texts to be found that show directly or indirectly that he wanted to build any kind of -ism’.[60]

The Debate Concerning Marx and the ‘National Question’

At this point I have referred to the positions of Marx and Engels with respect to the right to self-determination of Ireland and Poland. In his 1991 Marxism and Nationalism,[61] Ephraim Nimni, the leading scholar of the Austro-Marxists Otto Bauer and Karl Renner and their approach to the question of non-territorial cultural autonomy, accuses Marx and Engels of ‘superficial discussions, apparent conceptual gaps, and great differences of interpretation from one historical context to another’.[62] This he ascribes to their adherence to Hegel’s theory, referred to above, of ‘historical versus non-historical nations’.[63] He attributes their support for Polish and Irish self-determination and their strong opposition to any such right for the Slavic peoples of the Balkans to their ‘rigid evolutionary model, epiphenomenal economism, and the Eurocentric approach which permeated their interpretations of the processes of social change’.[64]

Nimni accuses Marx and Engels of adhering to Hegel’s position in his Philosophy of History—a position according to which, as Nimni himself puts it, ‘peoples (“Völker”) who had been proven incapable of building a state will never be able to do so and are damned culturally to vanish in the stream of history’.[65] He cites the scathing remarks of Marx and Engels, often in their pre-1860s journalism, about Mexicans,[66] Scandinavians,[67] the Chinese (their ‘hereditary stupidity’),[68] and North African Bedouins[69] as only a few samples, arguing that ‘Marx and Engels were, to put it mildly, impatient with and intolerant of ethnic minorities’.[70]

Kevin Anderson notes Nimni’s use of the phrase ‘hereditary stupidity’ as an example of Marx’s ‘abusive language’ and ‘intense hostility’ to many non-Western ‘national communities’, but insists that Marx’s real target in this newspaper article about China was British imperialism and what he saw as its unconscionable opium trade.[71] He cites the editor of Marx’s journalism, James Ledbetter, to the effect that with the possible exception of human slavery, ‘no topic raised Marx’s ire as profoundly as the opium trade with China’.[72]

He acknowledges the troubling nature of Marx’s language about ‘hereditary stupidity’, but argues that Marx’s focus was ‘not Chinese backwardness, but a Chinese national awakening’.[73]

The African-American Marxist scholar August Nimtz has also addressed what he calls the ‘myth’ of Marx’s Eurocentrism.[74] Nimtz explains how, from 1870 onwards, Marx and Engels ceased to expect the rebirth of a revolutionary movement in England, following the demise of the Chartists. Instead, they turned to Russia as the revolutionary vanguard, despite the fact that Russia was an overwhelmingly peasant country that had only one foot in Europe, and not the Europe that the Eurocentric charge refers to, that is, Western Europe with its developed capitalist industry and world-wide colonies.[75] He recalls that in 1849 Marx and Engels insisted that only a world war could provide the Chartists with the opportunity for a successful uprising, and that any European war in which England was involved would be a world war, since world-wide colonies would be involved.[76]

Nimtz shows how Marx and Engels reversed their earlier position and gave support to religious-led Arab resistance to French imperialism in Algeria in 1857; expressed strong sympathy for the Sepoy Mutiny against Britain in India in 1857–99; and by 1861 wrote, as the US Civil War loomed, that US expansion into Texas and what is now Arizona and New Mexico, brought with it slavery and the rule of the slaveholders.[77] At the same time, they were quite clear that the ‘booty of British imperialism’ had begun to corrupt and compromise the English proletariat.[78]

For his part, Pranav Jani focuses on Marx’s response to the 1857 revolt in British India, the so-called ‘Indian Mutiny’.[79] Jani maintains that ‘under the impact of the Revolt, Marx’s articles increasingly turned from an exclusive focus on the British Bourgeoisie to theorise the self-activity and struggle of the colonised Indians’.[80] He demonstrates that Marx’s historical-materialist methodology allowed him to move beyond his prejudices and weak formulations and develop a more complex understanding of the relation between coloniser and colonised, in much the same way that the Paris Commune forced him to reassess his theory of the state.[81] For Jani, Marx was thereby transformed from a ‘mere observer’ of the anti-colonial struggle into an active participant in the ideological struggle over the meaning of the revolt. This also enabled him to refute racist representations of Indian violence in the British press, ‘by drawing a sharp division between the violence of the oppressed and that of the oppressor and dialectically linking the two’.[82] Jani concludes that if Eurocentrism makes Western Europe the centre of the globe, then the Marx he presents is not Eurocentric.

Lenin and Self-Determination

I return to the context in which Lenin engaged in his polemic against Rosa Luxemburg, and, as I noted above, explained the radical change in Marx’s position. It was in December 1913 that Lenin began to write on the question of the ‘right of nations to self-determination’. In a short polemic on the question of independence for Ukraine, he insisted on ‘freedom to secede, for the right to secede’, while conceding that ‘the right to self-determination is one thing, of course, and the expediency of self-determination, the secession of a given nation under given circumstances, is another’.[83] Later that month he again declared that ‘[a] democrat could not remain a democrat (let alone a proletarian democrat) without systematically advocating, precisely among the Great-Russian masses and in the Russian language, the “self-determination” of nations in the political and not in the “cultural” sense’.[84] The latter, he said, meant only freedom of languages.

In mid-1914 Lenin published ‘The Right of Nations to Self-Determination’, a substantial work on the question and a polemic against Luxemburg, who opposed the breakup of the tsarist empire and instead urged the creation of autonomies within the existing empires.[85] In his first chapter, Lenin insisted that ‘it would be wrong to interpret the right to self-determination as meaning anything but the right to existence as a separate state’.[86] He further argued that ‘the national state is the rule and the “norm” of capitalism: the multi-national state represents backwardness … from the standpoint of national relations, the best conditions for the development of capitalism are undoubtedly provided by the national state’.[87] Lenin’s understanding of the historical significance of the demand is highly significant, and merits substantial reproduction here:

The epoch of bourgeois-democratic revolutions in Western, continental Europe embraces a fairly definite period, approximately between 1789 and 1871. This was precisely the period of national movements and the creation of national states. When this period drew to a close, Western Europe had been transformed into a settled system of bourgeois states, which, as a general rule, were nationally uniform states. Therefore, to seek the right to self-determination in the programmes of West-European socialists at this time of day is to betray one’s ignorance of the ABC of Marxism.

In Eastern Europe and Asia the period of bourgeois-democratic revolutions did not begin until 1905. The revolutions in Russia, Persia, Turkey and China, the Balkan wars—such is the chain of world events of our period in our ‘Orient’. And only a blind man could fail to see in this chain of events the awakening of a whole series of bourgeois-democratic national movements which strive to create nationally independent and nationally uniform states. It is precisely and solely because Russia and the neighbouring countries are passing through this period that we must have a clause in our programme on the right of nations to self-determination.[88]

Thus, Lenin’s conception of self-determination in 1914 was intended to apply not only to the Russian Empire, or the Austro-Hungarian Empire, but also to the colonial empires of European states. This was one of the key differences between him and Wilson, who contemplated self-determination mainly for the new central and eastern European states emerging from the ruins of those two empires, as well as the Ottoman Empire.  Otto Bauer, Karl Renner, and the Jewish Bund all proposed forms of autonomy within the existing states.[89]

Lenin returned to this question in 1916, in the midst of the First World War and before the October Revolution, and summed up his thoughts on the question of self-determination, writing that autonomy might enable a nation, until then forcibly retained within an existing state such as Russia, to ‘crystallise into a nation’ entitled to self-determination and independence as a sovereign state.[90] He had in mind Norway’s declaration of sovereignty from Denmark in 1814, and envisaged a declaration by a multi-ethnic Poland that it would no longer be ruled by the Russian tsar.

In May 1917 the issue of independence for Poland and Finland was again at the forefront of European political and diplomatic attention in a hotly contested debate within the Bolshevik Party. Lenin drafted a resolution on the ‘national question’.[91] His starting-point was clear: recognition of the right of all nations forming part of Russia freely to secede and form independent states. To deny them such a right, or to fail as a Russian government to take the necessary measures to guarantee the realisation of the right to secede in practice, would in effect be to support a policy of forcible seizure or annexation. For Lenin, opposed by a number of leading Bolsheviks including Nikolai Bukharin and Georgy Pyatikov, the right to self-determination was not a mere slogan but a policy to be put into practice with immediate effect within the former Russian Empire after the Bolshevik Revolution.

Igor Blishchenko, in his time one of the most authoritative Soviet scholars of international law,[92] wrote, in a text ironically published in 1968, the year the Soviet Union crushed the ‘Czech Spring’, that it was the ‘Decree on Peace’ of 26 October 1917, drafted by Lenin,[93] which for the first time explicitly extended the principle of the right to self-determination to all nations, thereby discarding the imperialist distinction between ‘civilised’ and ‘uncivilised’ nations.[94] In response to Western scholars who claimed that this decree was hypocritical, having no application to peoples within the Soviet Union and applicable only to Finland in the former tsarist empire, Blishchenko pointed to the 1924 Soviet constitution (which remained in force until Stalin’s 1936 constitution). Article 4 of that constitution enshrined the right of the Soviet Union’s constituent republics freely to leave the union, this being a point on which Lenin had insisted.[95] More importantly, Blishchenko underlined the degree to which the principle was indeed put into practice by Lenin during the early years of the Soviet Union. Poland, Finland, and the three Baltic countries, until then part of the Russian Empire, became independent sovereign states. Writing thirty years later in a collection published by the Russian human rights non-governmental organisation Memorial, after the Soviet Union collapse in 1991, Blishchenko argued that the early Soviet government was remarkably consistent in implementing self-determination.[96]

According to Blishchenko, it was clear even before the October Revolution that Lenin and the Bolsheviks favoured not only a right of secession from Russia by the ‘captive nations’ but also a right to territorial autonomy for minorities that did not enjoy the status of nationhood. In ‘The Tasks of the Revolution’, published in October 1917, Lenin declared that a democratic peace would be impossible without explicit renunciation of annexation and seizure. He emphasised that every nation without exception, whether in Europe or in the colonial world, should have the right to decide for itself whether it should form a separate state.[97] This right was later enshrined in the 1918 constitution of the Russian Soviet Federated Socialist Republic (RSFSR), which stated that every nation was entitled to decide whether it wished to participate in the RSFSR and on which basis.[98] This was the only basis for creating a “free and voluntary state” as proclaimed in the 1918 Constitition.

What Blishchenko failed to point out in 1968, writing in the Soviet Union when Lenin had been in effect deified, with Stalin as his true disciple, was the fact that one of Lenin’s most bitter struggles with Stalin concerned question of independence for Georgia. As Moshe Lewin described in detail, Lenin was strongly in favour of Georgia’s right to independence—just as he had been for Finland, the Baltic states and Poland.[99] Stalin, of Georgian origin, was opposed. As Lewin points out, Lenin’s criticism of Stalin’s national policy and of his treatment of the Georgians explains how he changed his mind about Stalin, and urged that Stalin should be deprived of his post.[100] On 31 December 1922, shortly before his death, in ‘The Question of Nationalities or “Autonomisation”’, Lenin warned against Stalin: ‘It is quite natural that in such circumstances the “freedom to secede from the union” by which we justify ourselves will be a mere scrap of paper, unable to defend the non-Russians from the onslaught of that really Russian man, the Great-Russian chauvinist, in substance a rascal and a tyrant, such as the typical Russian bureaucrat is’.[101] Lenin regarded Stalin as just such a ‘Great-Russian chauvinist’. Stalin was utterly opposed to self-determination for Georgia. Lenin supported Georgia’s secession, even if it were under Menshevik rule.[102]

Self-Determination, International Law, and the Soviet Union

The right of peoples to self-determination is the ‘revolutionary kernel’ of post-Second World War international law, and is both reflected in and energised by the struggles of national liberation movements for independence from colonial empires.[103] The Soviet Union played a leading role in bringing about this development, in the teeth of fierce resistance from colonial powers. It is particularly noteworthy that the Soviet Union gave significant support to national liberation movements and the newly independent states, engaging in a sustained diplomatic effort to secure legal recognition for an international right of collective self-determination. At the same time, Soviet tanks appeared in 1956 and 1968, in Budapest and Prague, in order to extinguish any signs of self-determination in Hungary or Czechoslovakia. The Crimean Tatars, who suffered genocide at the hands of Stalin in 1944 and were deported en masse to central Asia, only won the right to return to their homeland in the late 1980s, and since the annexation of Crimea by Russia in 2014 are once again finding themselves persecuted.[104]

The role of the Soviet Union could, of course, be dismissed as blatant hypocrisy, given that it, together with the territories it occupied as a result of the Yalta and Potsdam agreements, constituted the greatest territorial expanse of any Russian-dominated polity. There was at the very least a stark contradiction between Soviet theory and practice with respect to self-determination.[105] Writing in 1976, Boris Meissner emphasised that the opposition of non-Russian ethnic groups in the Soviet Union to Brezhnev’s policies of centralisation and russification grew significantly after 1968.[106] Soviet dissidents like Andrei Sakharov often took up the injustice suffered by the Crimean Tatars, deported from their homeland to central Asia in 1944, and the Meskhetians, who had been similarly expelled from Georgia. On 19 March 1970, two years after first mentioning the Crimean Tatars in writing, Sakharov sent a letter to the Soviet leadership demanding full restoration of all rights—including rights of national autonomy and the right to return to ancestral homelands—for those nations that had been forcibly resettled under Stalin. These demands were reiterated in a further memorandum from Sakharov to Brezhnev of 5 March 1971.[107]

Then, in his book published in English in October 1975, entitled ‘My Country and the World’,[108] Andrei Sakharov again expressed his opposition to the oppression of the non-Russian nationalities. He drew attention to the fact that many political prisoners were so-called ‘nationalists’ from Ukraine, the Baltic republics, and Armenia. These individuals had originally been brought to trial principally because of their concern for the preservation of their national culture in the face of Russification, and had been given particularly heavy sentences. In addition to the Crimean Tatars, the fate of the Volga Germans and the Jews were the subject of Sakharov’s attention.[109] Thus the seeds were sown for the ‘parade of sovereignties’ that followed the collapse of the Soviet Union in 1991,[110] a development that threatened the continuing existence of the Russian Federation itself and the continuing relevance of self-determination to Russia’s actions in Crimea, eastern Ukraine, Abkhazia, Transnistria, South Ossetia, and elsewhere.[111]

It is clear to Russia’s present rulers that Lenin’s wholehearted advocacy and implementation of the right to collective self-determination played a crucial role in the destruction of the Russian Empire and in the collapse of the Soviet Union, and continues to pose an existential threat to contemporary Russia.

On 25 January 2016 Mr Putin accused Lenin of placing an ‘atomic bomb’ under Russia.[112] In Mr Putin’s opinion Lenin was responsible both for destroying, with German money and backing for his travel from Switzerland to Russia in 1917, the great Russian Empire; but also of preparing the destruction of the great USSR. Thus, Mr Putin was particularly critical of Lenin’s concept of a federative state with its entities having the right to secede, saying it had heavily contributed to the 1991 breakup of the Soviet Union. He added that Lenin was wrong in his dispute with Stalin, who, in Mr Putin’s words, advocated a unitary state model. For Mr Putin, Stalin was in the line of great Tsars, from Ivan IV, to Peter I, to Catherine II.

Mr Putin also said that Lenin’s government had whimsically drawn borders between parts of the USSR, placing Donbass under the Ukrainian jurisdiction in order to increase the percentage of proletariat, in a move Mr Putin called “delirious”.[113]

These statements were made not long after Russia argued that Crimea’s secession from Ukraine and its accession to the Russian Federation in March 2014 were the result of the ‘people of Crimea’ exercising their right to self-determination. This position was legally incorrect,[114] and has opened something of a Pandora’s box, since there are many peoples in Russia, not least 5.5 million Tatars, with strong and long-standing claims to self-determination—claims of the kind that Lenin recognised and supported.[115]

Conclusion

In this chapter I have paid particular attention to the surprisingly Marxist content of a cornerstone of post-Second World War international law. In doing so, I have grappled with the vexed question for Marxism of the ‘national question’, and also with claims that Marx and Engels were Eurocentric and subscribed, at least tacitly, to Hegel’s discredited theory of ‘historical’ and ‘non-historical’ nations.

Lenin’s life and legacy have become increasingly controversial, not least as new evidence has emerged of the slaughter that followed the 1920 to 1921 Tambov (or Antonov) peasant uprising against the Bolsheviks, suppressed by the Red Army using chemical weapons, with 100 000 arrested and 15 000 killed.[116] This was in addition to the well-known suppression of the 1921 Kronstadt uprising. Official Soviet figures claimed that approximately 1000 rebels were killed, 2000 wounded, and between 2300 and 6528 captured, with 6000 to 8000 defecting to Finland, while the Red Army lost 527 killed and 3285 wounded.[117] Lenin then turned to the partial restoration of capitalism in Russia, the New Economic Policy from 1921 to 1928.[118] However, one of Lenin’s lasting legacies pertained to his implementation of his controversial policy of the ‘right of nations to self-determination’, and his insistence on a federal structure for the new Soviet Union. His mummified remains are still resting in his mausoleum in Red Square, but he is anathematised by the Putin regime for precisely these policies.

This chapter has shown that although Soviet diplomacy, based as it firmly was on the principles propounded by Marx and Lenin, was key to the recognition of the right to self-determination as a specifically legal right under international law. It has also shown that Soviet Union made enormous contributions to the process of decolonisation, both materially and diplomatically, and that it did so notwithstanding significant contradictions in the positions espoused by the Soviet Union with respect to self-determination, contradictions which ultimately helped to bring about the collapse of the Soviet Union itself.


[1] Bill Bowring “The First Soviet Constitutions, Self-Determination and the Rights to Secession” (2019) September, SCRSS Digest, 8–10, at http://www.scrss.org.uk/Documents/SCRSSDigest_Autumn2019_Supplement.pdf

[2] Art. 1(2), United Nations, Charter of the United Nations, 24 October 1945, 1 UNTS XVI

[3] Bill Bowring ‘The Soviets and the Right to Self-Determination of the Colonized: Contradictions of Soviet Diplomacy and Foreign Policy in the Era of Decolonization’ in Jochen von Bernstorff and Philipp Dann (eds), The Battle for International Law: South-North Perspectives on the Decolonization Era (OUP 2019) 404.

[4] International Covenant on Economic, Social and Cultural Rights (ICESCR) Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 3 January 1976, UNTS, vol. 993, p. 3. at https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx ; and International Covenant on Civil and Political Rights (ICCPR) Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966 entry into force 23 March 1976, UNTS, vol. 999, p. 171 at https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx]

[5] The ILO’s structure is tripartite, involving states, employers, and trade unions.

[6] Bill Bowring, The Degradation of the International Legal Order? The Rehabilitation of Law and the Possibility of Politics (Routledge Cavendish 2008).

[7] Bowring, Degradation, 13.

[8] ‘A nation with no state formation . . . has, strictly speaking, no history—like the nations which existed before the rise of states and others with still exist in a condition of savagery’. GWF Hegel,.  Encyclopaedia of the Philosophical Sciences, Part III; Hegel’s Philosophy of Mind, trans. William Wallace [Zusätze trans. A.V. Miller] (Oxford: Clarendon Press, 1971); para 549

[9] For Putin’s denunciation of Lenin’s policy, and his blaming Lenin for the destruction of the Russian Empire and the collapse of the Soviet Union, see Bill Bowring ‘The First Soviet Constitutions, Self-Determination and the Rights to Secession’ (2019) SCRSS Digest, 8–10, available at http://www.scrss.org.uk/Documents/SCRSSDigest_Autumn2019_Supplement.pdf.

[10] Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, at https://www.icj-cij.org/en/case/131/advisory-opinions. The Opinion is at https://www.icj-cij.org/files/case-related/131/131-20040709-ADV-01-00-EN.pdf

[11] Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion of 25 February 2019, at https://www.icj-cij.org/en/case/169. The Opinion is at https://www.icj-cij.org/files/case-related/169/169-20190225-01-00-EN.pdf

[12] Paragraph 88

[13] Opinion, para 155.

[14] Opinion, para 180.

[15] Stephen Allen, The Chagos Islanders and International Law (Hart 2014).

[16]  Opinion, para 182

[17]  UNGA Resolution 73/295 of 22 May 2019, at https://undocs.org/pdf?symbol=en/A/RES/73/295; and see the Press Statement with summaries of statements

https://www.un.org/press/en/2019/ga12146.doc.htm;

[18] Samuel Osborne “Chagos Islands: UN officially demands Britain and US withdraw from Indian Ocean archipelago” The Independent 22 May 2019 at https://www.independent.co.uk/news/world/americas/chagos-islands-uk-un-resolution-general-assembly-vote-indian-ocean-a8924656.html

[19] See Cori Crider “7 things you should know about Diego Garcia and renditions”, The Guardian 11 July 2014, at https://www.theguardian.com/commentisfree/2014/jul/11/7-things-diego-garcia-rendition-flights-documentaton-water-damage. Cori Crider heads the abuses-in-counterterrorism team at Reprieve, where she serves as Guantánamo attorney, legal director and strategic director.

[20] James Hanning “British government suppressing key documents on allegations of UK collusion in torture and rendition. Files reveal Tony Blair and Jack Straw discussed treatment of British detainees in Guantanamo with US officials” The Independent 5 March 2016, available at https://www.independent.co.uk/news/uk/politics/british-government-suppressing-key-documents-on-allegations-of-uk-collusion-in-torture-and-rendition-a6914666.html

[21] Umut Özsu, ‘The Necessity of Contingency: Method and Marxism in International Law’, in Kevin Jon Heller and Ingo Vezke (eds) Situating Contingency: How International Law Could Have Been (OUP, forthcoming).

[22] See ‘The Right to Self-Determination’ (2009) 53 Socialist Lawyer 18–29, available at https://www.haldane.org/s/SocialistLawyer53.pdf. The symposium contains Bill Bowring ‘Self-Determination’, 18-20; Tim Potter, ‘Basques: Battle for Identity Endures Struggle’, 20–22; Sean Oliver, ‘Irish: “United Ireland” is Back on the Agenda’, 22–23; Alex Fitch, ‘Kurds: A Marginalised and Criminalised People’, 24–25; Annie Rosa Beasant, ‘Palestinians: Resisting Israel’s Illegal Occupation’, 26–28.

[23] Daniel Thürer and Thomas Burri, ‘Self-Determination’, in Rüdiger Wolfrum (ed), Max Planck Encyclopedia of Public International Law (online edn), MN 3.

[24] Stefan Oeter, ‘Self-Determination’, in Bruno Simma et al. (eds), The Charter of the United Nations: A Commentary, vol 1 (3rd edn OUP 2012), MN 5. On Wilson’s see eg Michla Pomerance, ‘The United States and Self-determination: Perspectives on the Wilsonian Concept’ (1976) 70 American Journal of International Law 1, 16–20; Anthony Whelan, ‘Wilsonian Self-determination and Versailles Settlement’ (1994) 43 International and Comparative Law Quarterly 99.

[25] Lauri Mälksoo, ‘The Soviet Approach to the Right of Peoples to Self-determination: Russia’s Farewell to jus publicum europaeum’ (2017) 19 Journal of the History of International Law 200, 214.

[26] Jörg Fisch, The Right of Self-Determination of Peoples: The Domestication of an Illusion (CUP 2015).

[27] Fernando R Tesón (ed), The Theory of Self-Determination (CUP 2016).

[28] Fisch, Right of Self-Determination of Peoples, 121, 190.

[29] UN Charter, arts 1, 55.  See note 2, above, for the formal citation.

[30] Fisch, Right of Self-Determination of Peoples, 191.

[31] Fisch, Right of Self-Determination of Peoples, 191.

[32] Fisch, Right of Self-Determination of Peoples, 218.

[33] Fisch, Right of Self-Determination of Peoples, 240.

[34] Patrick Macklem, ‘Self-Determination in Three Movements’, in Fernando R Tesón (ed), The Theory of Self-Determination (CUP 2016) 94.

[35] Macklem, ‘Self-Determination’, 94.

[36] Macklem, ‘Self-Determination’, 97.

[37] Macklem, ‘Self-Determination’, 99.

[38]  Macklem, ‘Self-Determination’, 100.

[39] Antonio Cassese, Self-Determination of Peoples: A Legal Reappraisal (CUP 1995).

[40] Cassese, Self-Determination of Peoples, 14.

[41] Cassese, Self-Determination of Peoples, 14–23, with Wilson quoted at 21, n 30.

[42] Cassese, Self-Determination of Peoples, 38.

[43] Cassese, Self-Determination of Peoples, 44.

[44] Cassese, Self-Determination of Peoples, 47.

[45] This is the title of ch 2 of Cassese, Self-Determination of Peoples.

[46] MECW, Vol.3,  Contribution to the Critique of Hegel’s Philosophy of Law,  (Lawrence & Wishart 1975) 29. and at  https://www.marxists.org/archive/marx/works/1843/critique-hpr/ch02.htm  

[47] Susan Marks drew upon this phrase for the title of her The Riddle of All Constitutions: International Law, Democracy, and the Critique of Ideology (CUP 2000).

[48] Karl Marx ‘Marx To Hermann Jung In London’, 20 November 1865, in MECW , Vol 42, (Lawrence & Wishart 1987) 200. And at https://marxists.catbull.com/archive/marx/works/1865/letters/65_11_20a.htm  

[49] Documents of the First International. The General Council of the First International, 1864-1866. The London Conference 1865. Minutes, published by the Foreign Languages Publishing House, Moscow, for the Centenary of the First International in 1964, pp. 355-356; at https://www.marxists.org/archive/marx/iwma/documents/1866/l-echo-letter.htm.

[50] Karl Marx (1856) Revelations of the Diplomatic History of the 18th Century, in MECW , vol 15 (Lawrence & Wishart) 87.t and at http://www.marxists.org/archive/marx/works/1857/russia/index.htm

[51]  MECW Vol. 24 (Lawrence & Wishart 1989) 57.  

[52] Vladimir Lenin “The Right of Nations to Self-Determination” Chapter 8 “The utopian Karl Marx and the practical Rosa Luxembourg” Published: April-June 1914 in the journal Prosveshcheniye Nos. 4, 5 and 6.  Vol.20. V, I. Lenin Collected Works, (Progress Publishers 1972) 393-454. Also at https://www.marxists.org/archive/lenin/works/1914/self-det/ch08.htm]

[53] Ibid, 440.

[54] Karl Marx ‘Marx to Engels in Manchester’, 2 November 1867, MECW, Vol 42, (Lawrence &  Wishart 1987) 451.

[55] Owen McGee The IRB: The Irish Republican Brotherhood from the Land League to Sinn Féin (Four Courts Press 2005) 36.

[56] Eric Barendt, ‘Incitement to, and Glorification of, Terrorism’, in Ivan Hare and James Weinstein (eds), Extreme Speech and Democracy (OUP 2009): ‘The Terrorism Act 2006 introduced into UK law a new offence of encouragement of terrorism. Statements which are likely to be understood as a direct or indirect encouragement or other inducement to the commission of terrorist acts may be caught by the offence. One clause in the Act was particularly controversial: it provides that among the statements likely to be understood as indirectly encouraging an act of terrorism are those glorifying such acts, at least where members of the public would reasonably infer that they should emulate them.’

[57] Jeremy Smith, The Bolsheviks and the National Question 1917 to 1923 (Macmillan 1999) 9.

[58] Nigel Harris, National Liberation (Penguin 1990) 47.

[59] Michael Heinrich, ‘A Short History of Marx’s Economic Critique’, in Sara . Farris (ed), Returns of Marxism: Marxist Theory in a Time of Crisis (Haymarket 2016) 63.

[60] Heinrich, ‘A Short History’, 66.

[61] Ephraim Nimni, Marxism and Nationalism: Theoretical Origins of a Political Crisis (Pluto Press 1994).

[62] Nimni, Marxism and Nationalism, 17.

[63] Nimni, Marxism and Nationalism, 17.

[64] Nimni, Marxism and Nationalism, 25.

[65] Nimni, Marxism and Nationalism, 28. Nimni does not give a reference to Hegel for this passage.

[66] Nimni, Marxism and Nationalism, 29.

[67] Nimni, Marxism and Nationalism, 29–30.

[68] Nimni, Marxism and Nationalism, 30. Marx’s remark concerning the Chinese appeared in a newspaper article published in 1853: Karl Marx, ‘Revolution in China and in Europe’, New York Daily Tribune, 14 June 1853, MECW Vol. 12 (Lawrence & Wishart 1979) 95-6. and at https://www.marxists.org/archive/marx/works/1853/06/14.htm

[69] Nimni, Marxism and Nationalism, 30.

[70] Nimni, Marxism and Nationalism, 30.

[71] Kevin Anderson, Marx at the Margins: On Nationalism, Ethnicity and Non-Western Societies (University of Chicago Press 2016). Anderson ‘upholds a view of Marx as a multilinear, non-determinist thinker who over time became increasingly sensitive to the need for a variety of pathways of development and toward revolution for societies outside Western Europe and North America’ (xii). As to Marx’s condemnation of John Bowring, the erstwhile radical and literary executor of Jeremy Bentham, and his role in perpetrating the Opium Wars, see Bill Bowring, ‘Did the States Which Founded the UN Have Liberal or Illiberal Governments?’ (2016) 15 Baltic Yearbook of International Law 31.

[72] James Ledbetter (ed), Dispatches for the New York Tribune: Selected Journalism of Karl Marx (Penguin 2007) 1.

[73] Anderson, Marx at the Margins, 31.

[74] August Nimtz, ‘The Eurocentric Marx and Engels and Other Related Myths’, in Crystal Bartolovich and Neil Lazarus (eds), Marxism, Modernity and Postcolonial Studies (CUP 2002) 65.

[75] Nimtz, ‘The Eurocentric Marx and Engels’, 66.

[76] Marx 1849.

[77] Nimtz, ‘The Eurocentric Marx and Engels’, 68–69.

[78] Nimtz, ‘The Eurocentric Marx and Engels’, 71

[79] Pranav Jani ‘Karl Marx, Eurocentrism, and the 1857 Revolt in British India’, in Crystal Bartolovich and Neil Lazarus (eds), Marxism, Modernity and Postcolonial Studies (CUP 2002) 81.

[80] Jani, ‘Karl Marx’, 82.

[81] Jani, ‘Karl Marx’, 83.

[82] Jani, ‘Karl Marx’, 90–91.

[83] Vladimir I Lenin, ‘The Cadets and “The Right of Nations to Self-Determination”’, in VI Lenin, Collected Works, vol 19 (4th ed. Progress Publishers 1977) 525–27.

[84] Vladimir I Lenin, ‘National-Liberalism and the Right of Nations to Self-Determination’, in VI Lenin, Collected Works, vol 20 (3rd edn, Progress Publishers 1977) 56–58.

[85] Vladimir I Lenin, ‘The Right of Nations to Self-Determination’, in VI Lenin, Collected Works, vol 20 (3rd edn, Progress Publishers 1977) 393.

[86] Ibid. 397.

[87] Ibid.  400.

[88] Ibid  405–6 (original emphasis). [

See for example Roni Gechtman “A “Museum of Bad Taste”?: The Jewish Labour Bund and the Bolshevik Position regarding the National Question, 1903-14” 43.1 (2008) Canadian Journal of History 31-67.

[90] Vladimir Lenin, ‘The Discussion On Self-Determination Summed Up’, in VI Lenin, Collected Works, vol 22 (4th edn, Progress Publishers 1977) 320.

[91] Vladimir I Lenin, ‘Resolution on the National Question’, in VI Lenin, Collected Works, vol 24 (4th edn, Progress Publishers 1977) 302–3.

[92] Blishchenko’s best-known work, translated into English, is International Humanitarian Law (Progress Publishers 1987). I worked with Blishchenko for a number of years, in particular on the draft of the Rome Statute of the International Criminal Court. For a touching obituary by the International Committee of the Red Cross, see Jose Doria, Aslan Khuseinovich Abashidze, and Vassily Fyodorovich Poriouvaev, ‘Igor Pavlovich Blishchenko, 1930–2000’ (2001) 83 International Review of the Red Cross 885.

[93] Vladimir I Lenin, ‘Decree on Peace’, in VI Lenin, Collected Works, vol 26“ (249-253. Progress Publishers 1964)     

[94] IP Blishchenko, Antisovetizm i mezhdunarodnoe pravo [Antisovietism and International Law] (Mezhdunarodnye otnosheniia 1968) 69.

[95]  There is no known print version available in the UK, but the text is to be found on the Site of the Constitutions of the Russian Federation at http://constitution.garant.ru/history/ussr-rsfsr/1924/ .  there is an abridged English translation at

http://pwerth.faculty.unlv.edu/Const-USSR-1924(abridge).pdf  ]

[96] IP Blishchenko, ‘Soderzhaniye prava narodov na samoopredeleniye’ [The Content of the Right of Peoples to Self-determination], in AG Osipov (ed), Pravo narodov na samoopredeleniye: ideya i voploshcheniye [Right of Peoples to Self-Determination: Idea and Realisation] (Memorial 1997) 71. On national liberation movements see also DI Baratashvili, ‘Natsionalno-osvoboditel’noye dvizheniye i razvitiye mezhdunarodnogo prava’ [The National Liberation Movement and the Development of International Law], (1967) Sovyetskoye gosudarstvo i pravo 69.

[97] Vladimir I Lenin, ‘The Tasks of the Revolution’, VI Lenin, Collected Works, vol 26( Progress Publishers 1964) 59-68. 62.

[98]  There is no known print version available in the UK, but the text is to be found on the Site of the Constitutions of the Russian Federation at http://constitution.garant.ru/science-work/modern/3988990/ . In English at https://www.marxists.org/history/ussr/government/constitution/1918/

[99] Moshe Lewin, Lenin’s Last Struggle (University of Michigan Press 2005).

[100] Lewin, Lenin’s Last Struggle, 89.

[101] Vladimir I Lenin, ‘The Question of Nationalities or “Autonomisation”’, in VI Lenin, Collected Works, vol 36 (4th edn, Progress Publishers 1977) 606.

[102] Lewin, Lenin’s Last Struggle, 61. More recently, Nikolay Svanidze has argued that Lenin and Stalin had very different positions on the nationalities question, and that Lenin’s views on the rights of nations were irreproachable. Paul Goble “Putin’s Criticism of Lenin on Nationality Issues about More than Federalism, Svanidze Says”, 5 February 2020 at https://windowoneurasia2.blogspot.com/2020/02/putins-criticism-of-lenin-on.html; commenting on https://echo.msk.ru/programs/beseda/2579066-echo/

[103] Bowring, Degradation, ch 1; Harris, National Liberation.

[104] Bill Bowring, ‘Who Are the “Crimean People” or “People of Crimea”? The Fate of the Crimean Tatars, Russia’s Legal Justification for Annexation, and Pandora’s Box’ in Sergey Sayapin and Evhen Tsybulenko (eds), The Use of Force Against Ukraine and International Law: Jus ad Bellum, Jus in Bello, Jus Post Bellum (TMC Asser/Springer 2018) 21.

[105] Bill Bowring, ‘Positivism versus Self-Determination: The Contradictions of Soviet International Law’ in Susan Marks (ed), International Law on the Left: Re-examining Marxist Legacies (CUP 2008) 133.

[106] Boris Meissner, ‘The Soviet Concept of Nation and the Right of National Self-Determination’ (1976–77) 32 International Journal 56.

[107] Ibid. 76. See also  F J M Feldbrugge Samizdat and Political Dissent in the Soviet Union (Brill 1975) 219.

[108] Andrei Sakharov, My Country and the World (Harvill Press 1975).

[109] Meissner, ‘Soviet Concept’, 76–77.

[110] For a detailed account see Bill Bowring ‘The Russian Constitutional System: Complexity and Asymmetry’ in Marc Weller and Katherine Nobbs (eds), Asymmetric Autonomy and the Settlement of Ethnic Conflicts (University of Pennsylvania Press 2010) 48.

[111] See Bill Bowring “International law and non-recognized entities: towards a frozen future?” in Benedikt Harzl and  Roman Petrov (eds)Non-Recognised Entities in International and EU Law  (Brill Nijhoff, forthcoming)

See also the website ‘After Empire: Regionalism and Federalism in Russia’, available at http://afterempire.info/2016/11/02/why-after-emp/ for continuing news and comments concerning the future of Russian federalism.  

[112] See the transcript of a meeting of the President’s Council on Science and Education, on 21 January 2016, at http://kremlin.ru/events/councils/by-council/6/51190

[113] https://www.theguardian.com/world/2016/jan/25/vladmir-putin-accuses-lenin-of-placing-a-time-bomb-under-russia

[114] See eg Khazar Shirmammadov, ‘How Does the International Community Reconcile the Principles of Territorial Integrity and Self-Determination? The Case of Crimea’ (2016) 4 Russian Law Journal 61.

[115] Bill Bowring, ‘“Who Are the “Crimean People” or “People of Crimea”? The Fate of the Crimean Tatars, Russia’s Legal Justification for Annexation, and Pandora’s Box” in Sergey Sayapin and Evhen Tsybulenko (eds) The Use of Force against Ukraine and International Law” Jus Ad Bellum, Jus In Bello, Jus Post Bellum (T M C Asser / Springer 2018) 21-40.

[116] Eric C. Landis Bandits and Partisans: The Antonov Movement in the Russian Civil War (University of Pittsburgh Press 2018) 

[117] Paul Avrich Kronstadt 1921   (Princeton University Press 2006)  

[118] Alan M Ball  Russia’s Last Capitalists: The Nepmen, 1921-1929 (University of California Press 1990); and Sheila Fitzpatrick, Alexander Rabinowitch, Richard Stites (eds)  Russia in the Era of NEP: Explorations in Soviet Society and Culture (Indiana University Press 1991) 

Marxist international law methodology?

For Handbook on international law methodologies, edited by Nicholas Tsagourias, forthcoming. Accepted draft.

“Marxist international law methodology?”

Professor Bill Bowring, Birkbeck College

Introduction

Methodologies of international law often have their foundations in ideological positions. Positivism is the best known, and one of positivism’s leading competitors is the “New Haven” or policy-oriented approach[1], while another is social constructivism[2], to which a number of prominent international law scholars have subscribed[3]. There are now a number of scholars who identify as Marxist. Their work is summarised by Robert Knox in his comprehensive 2018 entry in the Oxford Bibliographies, “Marxist Approaches to International Law”.[4] He and I both had chapters ten years earlier in Susan Marks’s 2008 International Law on the Left: Re-examining Marxist Legacies.[5]

But this is a chapter which does not focus on approaches, or on legacies, but on methodology. In his entry, Robert Knox states that “In Marxist international legal scholarship, one can observe a number of recurring themes. These themes are closely linked to the methodological, theoretical and—crucially—political positions of the Marxist tradition.” This is his only reference to methodology.  What if any were the methodological positions of the Marxist tradition?

Indeed, it could be said that most international legal practitioners, and many scholars of international law, do without an overt methodology, without any noticeable adverse side-effects.

Fortunately, I am able in this chapter to take as my starting point the 2007 entry in the Max Planck Encyclopedia of Public International Law  on “Methodology of International Law” by Martti Koskenniemi.[6] Second, I turn to Marx and Engels themselves, who said very little about law, save for a rather pithy 1887 article by Friedrich Engels and Karl Kautsky on “Juridical Socialism”[7], and, to my knowledge, nothing at all about international law. Indeed, Marx declared famously that if anything was certain, he was not a Marxist.

Third, I tackle the most impressive attempt to work out a Marxist theory of law, Yevgeny Pashukanis’s General Theory of Law and Marxism[8], as promoted and reinterpreted by Robert Knox and China Miéville.

Fourth, I turn to the recent work of B. S. Chimni, with his Integrated Marxist Approach to International Law, IMAIL, before concluding with some thoughts of my own.

It is my contention throughout that while scholars who identify as Marxist wrote about international law, and some, particularly Chimni, have sought to outline a Marxist course in international law, a Marxist methodology is almost always nowhere to be found. Instead, as Marx and Engels themselves insisted, legal demands are an essential weapon in the class struggle, but there can be no socialist law or indeed socialist legal theory.

Methodology of International Law – Martti Koskenniemi

It is significant for this chapter that Martti Koskenniemi is both a high level practitioner, and a leading critical legal scholar[9]. He served in the Finnish Diplomatic Service from 1978 to 1996, lastly as director of the Division of International Law. He was Finland’s counsel in the International Court of Justice in the Passage through the Great Belt case (Finland v. Denmark) case (1991–1992). From 1997 to 2003 he served as a judge in the administrative tribunal of the Asian Development Bank, and was a member of the International Law Commission from 2002–2006, writing a major report on Fragmentation of International Law.[10]

He is the author of The Gentle Civiliser of Nations: The Rise and Fall of International Law 1870-1960[11], published in 2001. In 2008[12] he summed up the story he had told “… of international law’s emergence as part of liberal modernity in the latter half of the nineteenth century. That it has been a part of ‘modernity’ has meant that it has been animated by a progressive and universalistic spirit, firm confidence in the ability of liberal political institutions to transform the world into a democratic rule-governed Kantian Völkerstaat.[13] He is best known for his insistence on law’s indeterminacy. Though there would be no point in being a practitioner if the result was always determined beforehand.

It can be no surprise, then, that Koskenniemi’s starting point in his entry on “Methodology of International Law” in the Max Planck Encyclopedia is that “International Law is an argumentative practice. It is about persuading target audiences such as courts, colleagues, politicians and readers of legal texts about the legal correctness… of the position one defends,” Note that courts come first and readers of legal texts last. Therefore “The methodology of international law is best seen as being about criteria that legal arguments ought typically to fulfil in different contexts – including the academic context – in order to seem plausible.”

Koskenniemi acknowledges that an appeal to international law, especially against the brute force of state power, must be able to appeal to a standpoint outside or above sovereign power. If such a standpoint relies on ideas such as justice, self-determination, human rights or peace, then the plausibility of any arguments depends on highly contested political and moral concepts. Thus “The technique of legal sources intervenes precisely to protect professional arguments from the critique of being too political because dependent on unverifiable abstractions.” In fact, Koskenniemi appears to be rather dismissive of legal method or methodology except as it serves the purposes of effective argumentation. He asserts that “Much of what passes for legal method has to do with the development of chains of argument that refer back to formal legal sources of international law.” Which is why all students of Public International Law must start with the 1920 Statute of the Permanent Court of International Justice, which was later preserved – antiquated language and all – in Article 38(1) of the 1946 Statute of the International Court of Justice.[14] Koskenniemi examines the “finely tuned argumentative methodology” based either on State consent or an appeal to consensual principles such as good faith, equity and reasonableness. This enables him to identify the “methodological competence” of lawyers as the ability to identify the professional consensus or preference and “gear the argument” so as to appear to meet it. This is of course for the benefit of the audience, most likely a court, and knowledge of its preferences will be crucial.

So after providing an effective (in my view) critique of “sociological jurisprudence”, “policy-approach, instrumentalism, legal engineering”, and formalism, Koskenniemi returns to his starting point: “The basic methodological question remains: How to convince this audience, here and now?”. On this basis a specifically Marxist methodology (whatever that might be) is ruled out from the start.

The closest Koskenniemi has come (to my knowledge) to Marxism was his 2008 chapter “What should international lawyers learn from Karl Marx?”.[15], for Susan Marks’s collection on “re-examining Marxist legacies”. His starting point was quite rightly that he was not writing as a Marxist. Marx, he emphasises, would not have written about justice or injustice, and only then with the greatest reluctance.[16] “For him, notions such as ‘justice’ and of course ‘international law’ – had he given it a second’s thought, which he never did – were part of the problem, not of its resolution.”[17] Koskenniemi compares what he takes to be Marx’s “dialectics” with deconstruction, and introduces “indeterminacy”, a term prominent in critical legal theory, and for which he is best known. He says:

The move in thinking from a logic of identity for which the dichotomies of law are fatal, into dialectics that uses the dichotomies as frameworks for historical explanation is what lawyers should learn from Marx – just as they should today accept the indeterminacy of each such framework, that is, unlearn the essentialism through which Marxism and subsequent realisms thought about them.[18]

This passage is hardly a prescription for a methodology for international law. Koskenniemi  concludes that international lawyers can, “… learning from Marx, … see international law’s emancipatory promise.” But as he already pointed out, Marx did not think about international law at all.

I turn therefore to what Marx and his close colleague and comrade Engels actually said.

Marx, Engels, and “Marxism” – and international law

In his 1865 “confession”, a form popular at the time, Marx wrote that his motto was De omnibus dubitandum (doubt everything).[19] Marx’s chosen method was immanent critique,  to criticise an object ‘on its own terms’[20], and his most famous book does not set out a philosophical system, and is no kind of a textbook on economics. Instead, it is a “critique of political economy”, building on and taking to and beyond their limits the classical economists, the materialist Adam Smith (1723-1790) and David Ricardo (1772–1823), with his “labour theory of value”. That is the same procedure to which Marx subjected Hegel, especially in his 1843 manuscript “Hegel’s Philosophy of Right” (Zur Kritik der Hegelschen Rechtsphilosophie).

First of all, the notion that Marx created a system should be disposed of.

In May 1880 the French workers’ leader Jules Guesde came to visit Marx in London, and together they drafted the Programme of the French Parti Ouvrier, Labour Party. The Preamble was dictated by Marx himself, while the other two parts of minimum political and economic demands were formulated by Marx and Guesde, with assistance from Engels and Marx’s son in law Paul Lafargue, who with Guesde was to become a leading figure in the Marxist wing of French socialism. The programme was adopted, with certain amendments, by the founding congress of the Parti Ouvrier at Le Havre in November 1880[21].

After the programme was agreed, however, a clash arose between Marx and his French supporters over the purpose of the “minimum section”. Marx saw this as a practical means of agitation around demands that were achievable within the framework of capitalism. It is notable that the minimum economic demands are explicitly legal demands.[22]

Guesde took a very different view. Discounting the possibility of obtaining these reforms from the bourgeoisie, Guesde regarded them not as a practical programme of struggle, but simply as bait with which to lure the workers from Radicalism. The rejection of these reforms would, Guesde believed, “free the proletariat of its last reformist illusions and convince it of the impossibility of avoiding a workers ’89.”[23] Marx accused Guesde and Lafargue of “revolutionary phrase-mongering” and of denying the value of reformist struggles. [24]

Marx is reported – by Engels – to have shown his impatience by saying to Lafargue:  ‘Ce qu’il y a de certain c’est que moi, je ne suis pas Marxiste.’ [If anything is certain, it is that I myself am not a Marxist][25]. The contemporary German Marx scholar, Michael Heinrich, in a short article entitled “Je ne suis pas Marxiste”[26], expressed the following opinion, with which I agree:

Marx himself, in any case, did not seek final certainties. He was far more interested in the critical business of undermining certainties in order to open up new spaces for thought and action – in which it’s not immediately clear what the correct result will be.

In contrast to the “Marxism” that Marx rejected, with its identity-defining certainties, this critical, unfinished Marx has an extremely stimulating and subversive effect. Which of his analyses and concepts are useful, what can help to change the world, and what can’t, is not fixed for all time. One will always have to constantly discuss and make new judgements: “De omnibus dubitandum.”

Furthermore, Marx had very little to say about law constructed by humans as such.[27] His attitude to (man-made) law remained consistent throughout his life.

In the 1857 Introduction to the Grundrisse, he wrote for the first time about “human laws” – as opposed to laws of nature, or the “law of value” which plays an important role in his critique of political economy[28]:

Quite apart from this crude tearing-apart of production and distribution and of their real relationship, it must be apparent from the outset that, no matter how differently distribution may have been arranged in different stages of social development, it must be possible here also, just as with production, to single out common characteristics, and just as possible to confound or to extinguish all historic differences under general human laws. For example, the slave, the serf and the wage labourer all receive a quantity of food which makes it possible for them to exist as slaves, as serfs, as wage labourers. The conqueror who lives from tribute, or the official who lives from taxes… all receive a quota of social production, which is determined by other laws than that of the slave’s, etc.

The two main points which all economists cite under this rubric are: (1) property; (2) its protection by courts, police, etc. To this a very short answer may be given: …to 2. Protection of acquisitions etc. When these trivialities are reduced to their real content, they tell more than their preachers know. Namely that every form of production creates its own legal relations, form of government, etc… All the bourgeois economists are aware of is that production can be carried on better under the modern police than e.g. on the principle of might makes right. They forget only that this principle is also a legal relation, and that the right of the stronger prevails in their ‘constitutional republics’ as well, only in another form.[29]

This is not a crude theory of base and superstructure, or anything like that. For Marx, it is a statement of fact. Law in itself is not interesting to him.

In the Preface to his A Contribution to the Critique of Political Economy (Zur Kritik der Politischen Oekonomie), published in Berlin in 1859,  the text in which his ideas concerning Capital achieved their explicit shape, Marx wrote;

My inquiry led me to the conclusion that neither legal relations nor political forms could be comprehended whether by themselves or on the basis of a so-called general development of the human mind, but that on the contrary they originate in the material conditions of life, the totality of which Hegel, following the example of English and French thinkers of the eighteenth century, embraces within the term “civil society”; that the anatomy of this civil society, however, has to be sought in political economy.[30]

Fifteen years later, in his 1875 Critique of the Gotha Programme, Marx wrote:

Do not the bourgeois assert that the present-day distribution is “fair”? And is it not, in fact, the only “fair” distribution on the basis of the present-day mode of production? Are economic relations regulated by legal conceptions, or do not, on the contrary, legal relations arise out of economic ones? Have not also the socialist sectarians the most varied notions about “fair” distribution?[31]

This was one of many points on which Marx and Engels were in complete agreement.

In their 1887 polemic Juridical Socialism[32] (the German title, Juristen-Socialismus, would be better translated as “Lawyers’ Socialism”) Friedrich Engels and Karl Kautsky[33] explained – and Marx, who died four years earlier, would not have disagreed – how the main battle cry of the bourgeoisie became “equality before the law”, because their struggle had to be based around legalistic demands. “This solidified a world view based on legal rights… at first the proletariat had embraced the world view of legal rights, and sought weapons in it for use against the bourgeoisie.”[34]

Engels and Kautsky insisted that “Marx… presents no legalistic demands at all in his theoretical work… Legal rights, which always reflect the economic conditions of a specific society, are treated only in a very secondary manner in Marx’s theoretical studies, as opposed to the primary historical topic of situating particular circumstances, means of acquisition, and social classes in specific periods.[35]” But they also insisted that socialists would not fail to present certain legalistic demands: “Every struggling class must therefore formulate its demands as legalistic demands within a program… however, no existing socialist party has thought of making a new legal philosophy of its program, and this will not happen in the future.”

Peter Schöttler explained their position as follows:

“… there is indeed no proletarian or socialist legal ideology (just as there can be no socialist philosophy of law), but there are proletarian, or socialist, legal demands, and these are necessary, nay indispensable, if the proletariat wishes to articulate its interests politically in opposition to the bourgeoisie and the bourgeois state. The political class struggle includes making legal demands.”[36]

In precisely the same sense, Marx and Engels would have had no difficulty in associating themselves with 20th and 21st century demands framed within the international law right of peoples to self-determination[37].

Yevgeniy Pashukanis and international law

It is not generally known that, like Martti Koskenniemi, Yevgeniy Pashukanis started as a practitioner of international law.

Born in 1891, in 1909 he commenced a study of law in Petersburg, but left Russia for Germany in 1910. He continued his studies at the Ludwig-Maximilians-Universität in Munich, where he specialized in the contemporary philosophy of law, and in political economy. His dissertation was entitled Statistik der Gesetzwidrigkeit im Arbeitsschutz (Statistics of legal infractions in labour protection). This was not at all, therefore, a work of legal theory, but an indication of his interest in the workers’ movement in Germany.[38] During World War I, he returned to Russia and joined the Bolsheviks, serving as a revolutionary judge.

However, from 1920 to 1923 Pashukanis served in the Peoples’ Commissariat for Foreign Affairs, as the deputy head of the Economic Law Department. He was a legal adviser in the Soviet Russian representation in Berlin. For example, on 3 December 1921 he was the author of a telegram to Georgy Chicherin, People’s Commissar for Foreign Affairs, on the vexed question of “prize ships”, and styled himself временного поверенного (vremennovo poverennovo), Chargé d’Affaires[39].

He was centrally involved in one of first and most important actions of Soviet Russia in the field of international law. Namely the preparation of the Treaty of Rappalo with Germany.[40]

In her monumental account of European history following World War I, Zara Steiner analysed the context of this work.[41] She started with the provisional Russo-German trade agreement of May 1921.[42] According to her, “[it] was Lenin who plotted the strategies pursued at the forthcoming Genoa conference (10 April -19 May 1922), Lloyd George’s grand design for the reconstruction of Europe”[43], and Lenin personally recruited the members of the negotiating delegation[44], which included Georgy Chicherin[45], who served as People’s Commissar for Foreign Affairs in the Soviet government from March 1918 to 1930, Maxim Litvinov[46], the deputy chief of the Commissariat of Foreign Affairs, and the former organiser of Bolshevik bank robberies, Leonid Krasin[47].

According to Steiner, “It was in the hope of strengthening their negotiating hand that Chicherin and Litvinov stopped in Berlin in early 1922 on their way to Genoa.”[48] There they worked very closely with Pashukanis on a number of issues, not only Genoa and Rapallo. The multi-volume Dokumenty vneshnei politiki SSSR (Documents of the foreign policy of the USSR – the Documents) contains a letter dated 17 March 1922 from Maxim Litvinov to Yevgeny Pashukanis advising him as to how to deal with the reactionary government of Admiral Miklós Horthy, who came to power after the downfall in 1920 of the short-lived Hungarian Soviet Republic.[49]

In 2001 the Russian historian of Germany G. M. Sadovaya published Walter Rathenau and the Rapallo Treaty.[50] She relates that in February 1922 Soviet-German negotiations started again. However, the Germans did not want to talk about credits for Soviet Russia, referring to their own need for money and their anxiety about interference from the Reparations Commission. But contacts continued. Sadovaya notes that Karl Radek participated in these discussions, together with the representative of Soviet Russia in Germany N. N. Krestinsky, the chairman of the Ukrainian SSR, Kh. G. Rakovsky, and the trade representative of the RSFSR in Berlin, B. S. Stomonyakov[51] – with his adviser, Yevgeniy Pashukanis. Information about the negotiations in January-February 1922 can be found in a number of sources: the letter of G. V. Chicherin of 10 April summarising what was going on; the account of “the Soviet diplomat Ye. V. Pashukanis” and other sources.[52]

Sadovaya relates that on the evening of 1 April 1922 there was a crucial meeting of the Soviet delegation with Radek, Stomonyakov and Pashukanis.[53] They decided to separate negotiations concerning political recognition, from negotiations about possible loans for the RSFSR. It was necessary to include in the political agreement the restoration of diplomatic relations and full mutual withdrawal of claims, including any claims for reparations for damage done to Germany in Russia in the course of nationalisation. It is plain that Pashukanis as Adviser to the Soviet Russian diplomats played a key role in arriving at this decision.

A detailed account of this meeting was given by Pashukanis in his Telegram of 5 April 1922 “from the Adviser of the Representation of the RSFSR in Germany to the Peoples Commissariat of Foreign Affairs RFSFR”.[54] This is also to be found online.[55] The Soviet delegation focused its energy on the attempt to get everything signed before leaving for Genoa. Pashukanis wrote that this question was raised at breakfast with Rathenau and in meetings which took place for almost the whole day on 3 April, from 10 am to 5 pm. In discussion with Rathenau, wrote Pashukanis, a compromise formula began to take on more defined and correct – for the Russian delegation – features. Namely, in the agreement it must be stated that Germany relinquishes all claims relating to nationalisation, on condition that the Soviet Russian side rejects similar claims of other states.

Pashukanis was not only engaged as a legal adviser for treaty negotiations. As he disclosed rather later, in 1930, it was while in Berlin in 1921-22 that he prepared his A general theory of law and Marxism. An attempt at a critique of fundamental juridical concepts, which was completed in 1923 and appeared in 1924[56]. This is the text for which he is best known. There are many references in this text to the German legal scholars whom Pashukanis read in Munich and during his time in Berlin.

However, Pashukanis’ paramount reason for writing the General Theory was to identify “…law in its general definition, law as a form…”.[57]  Or – what is legal about law. That is, to tackle the question of the nature of law as a materially grounded abstraction. Pashukanis is now best known for his “commodity-form” theory of law, expounded in the General Theory, but  more recently extended by China Miéville and others to a “commodity-form theory of international law”.[58] For this reason Pashukanis was adamantly opposed to the possibility of “socialist law”, Under socialism, law would disappear.

In the first of several recantations of his work in 1921, published in 1930, Pashukanis wrote the following about the genesis of the General Theory:

It is clear that much which was written in the first years of NEP[59] deserves criticism and suffers from obvious anachronisms and now and then simply mistakes… But the question is not only that of particular formulations. The question concerns some defects of a general character. This was the overestimation of the role and significance of market relations which was without doubt characteristic of my first work. It is impermissible to hide from view the fact that this book was written at a time when the collective of Marxist legal scholars had not come together. It was written when I was alone, and it could not be exposed to the process of critical re-working. It was written finally, before the publication of Lenin’s notebooks on dialectics and on the works of Marx which were published in the “Archive”… Therefore it was completely natural, that the book, which was written in 1923, and prepared still earlier in 1920-1921, displays defects, when we look at it from our higher present day theoretical and methodological point of view.[60]

This concerned Pashukanis’ theoretical work from 1920 to 1923. Pashukanis became in the next ten years a staunch loyalist of the regime – in my opinion, by conviction rather than any sort of pressure. In 1931, following the dramatic recantation of his previous views noted above, Pashukanis became the Director of the Institute of Soviet Construction and Law of the Communist Academy. He was effectively the USSR’s director of legal research and legal education. The American scholar John Hazard[61], who studied under Pashukanis from 1934 to 1937, summarised his effect on legal education, as follows:[62]

Believing that the state was slowly withering away as socialism came nearer to achievement, Pashukanis advocated the cessation of courses in civil law. He understood civil law to be the regulation of the relations of men under the trading conditions of capitalism, and, as such, no longer of importance, as the remnants of capitalism disappeared.

His influence was so marked that the courses in civil law in the law school were abolished, and to replace them there appeared a course called economic-administrative law, concerning itself with regulation of the relations between state enterprises.[63]

Following Pashukanis’ fall in 1937, courses on (Soviet) civil law were reintroduced to the syllabus.

By 1932, Pashukanis, who had become editor in chief of the official law journal Soviet State, was able to write a “hallelujah” in response to Stalin’s letter “Some questions on the history of Bolshevism”.[64] Pashukanis’ major work on international law, Essays in International Law, appeared in 1935[65]. Most copies of the Essays were destroyed after he was denounced in 1937, but in this culminating work he declared that any attempt to define the “nature of international law” was scholastic.[66] In his view, such attempts were the result of the continuing influence of bourgeois legal methodology, which, he said, rested on the association of law with substance developing in accordance with its own internal principles. That is, law as an autonomous entity.

For Pashukanis, in 1935, international law was a means of formulating and strengthening, in custom and treaties, various political and economic relationships between states; the USSR could use international law to further Soviet interests in the struggle with capitalist states. He saw no reason to believe that in using these principles of international law for its own purposes the USSR was compromising its principles, in a world in which most states were capitalist. In his view there was no point in seeking to determine whether international law was “bourgeois” or “socialist”; such a discussion would be “scholastic”.[67] International law was there to be used by the USSR instrumentally. Talk about law’s indeterminacy would have been meaningless to him.

This conclusion could be expected from the former legal adviser playing a crucial role in hammering out the treaty between the defeated Germany and the defeated Soviet Russia, a treaty which was of crucial importance to both states.

An Encyclopedia entry on International Law published in 1925[68] was included in full as an Appendix in China Miéville’s Between Equal Rights, which is probably the most notable contemporary rehabilitation of Pashukanis.[69] However, Miéville saw clearly that in contrast to the General Theory, Pashukanis seemed “to accept the existence of antique international law, and to deny its historical particularity.”[70] That is, it would appear according to the General Theory that there is no law as such until its appearance under capitalism, and then only private law; but there has been international law throughout recorded history. Pashukanis rejected the positivist arguments of Austin and others that without a sovereign there can be no international law. Even for the young USSR there could be international law. Pashukanis noted that:

The formalization of our relationship with bourgeois states, by way of treaties, is part of our foreign policy, and is its continuation in a special form. A treaty obligation is nothing other than a special form of the concretization of economic and political relationships. But once the appropriate degree of concretization is reached, it may then be taken into consideration and, within certain limits, studied as a special subject. The reality of this object is no less than the reality of any constitution – both may be overturned by the intrusion of a revolutionary squall.[71]

Pashukanis, unlike later Soviet jurists, did not oppose the existence of customary international law as a source of international law, which, he said, was “…the totality of norms regulating the relationships between states.”[72] He continued: “To the extent that states have no external authority above them which could establish their norms of conduct, then in the technical legal sense the sources of international law are custom and treaty.”[73] As an international legal practitioner, an author of the Rapallo Treaty, Pashukanis was perfectly comfortable with orthodox conceptions of international law. He did not attempt a “commodity-form theory” of international law, nor in my view does Miéville really seek to expound such a theory either in his 2004 article or 2005 book.

Instead, as Knox summarises Miéville’s work in his “Marxist Approaches to International Law”[74]:

Miéville systematises Pashukanis’s insights and combines them with Martti Koskenniemi’s theory of indeterminacy. He argues that indeterminate legal arguments will be resolved in favour of whoever can make their interpretation “stick”. Given the structural connection between imperialism and international law, it will be generally be the ruling class that will win contests of interpretation.

Or, as Miéville put it, going beyond questions of interpretation, “The attempt to replace war and inequality with law is not merely utopian – it is precisely self-defeating. A world structured around international law cannot but be one of imperialist violence. The chaotic and bloody world around us is the rule of law.” [75] This is not in any sense a methodology.

B. S. Chimni, CMILS and IMAIL

The formidable Indian scholar B. S. Chimni is perhaps best known for his contributions to TWAIL – Third World Approaches to International Law, which has, from its start at Harvard University in 1996, developed into a leading school of critical international law scholarship.[76] Chimni not only published in 1993 an impressive critique of the “classical realism” of Morgenthau and others, of Soviet International law, and of the “New Haven” “policy-oriented” School of Harold Lasswell and Myres McDougal,[77] International Law and World Order: A Critique of Contemporary Approaches, but in 2017, at last, after more than 20 years, published a second edition, to which I turn below.

This followed his article in 2004, “An Outline of a Marxist Course on Public International Law”[78], proposing a “critical Marxist international law scholarship (CMILS)”. Chimni explains that “CMILS advances more meaningful definitions that distinguish the character of international law and its doctrines and its doctrines in different historical phases and identifies the groups/classes/states that are the principal movers and beneficiaries.”[79]It advances “a comprehensive strategy that furthers the interests of the subaltern classes without entirely undermining a rule-oriented approach”.[80] Thus, Chimni does not seek to deal in detail with the various topics of international law, but has short sections on “Sources of international law”[81],  “The relationship between international law and municipal law: growing integration”[82], “The jurisdiction of states”[83], “International economic law”[84], “International environmental law”[85], “International human rights law”[86], “The international law of state responsibility”[87]; and “International law and the use of force”[88]. All his proposals are progressive, but do not specify a Marxist methodology. Indeed, there is very little of Marx or Marxism in these sections. Chimni, it appears, wants to make international law a more effective instrument in the class struggle. But international law is not itself emancipatory, and Chimni, as a Marxist, is not interested in questions of morality, or of supervening values.

It may be said that Wade Mansell and Karen Openshaw have followed Chimni’s lead in their textbook, first published in 2013, with a second edition in 2019,  International Law: A Critical Introduction.[89] This is the text I recommend to my students. It does what it says on the tin – it is a critical introduction; it is not a Marxist text. Rather, “Underlying the book is the assertion that international law is political in content (in the sense of being concerned with the exercise of power) but that it draws much of its effectiveness from its self-portrayal as being apolitical, or at least politically neutral.”

In 2010 Chimni published “Prolegomena to a Class Approach to International Law”[90], a key-note lecture which he had delivered at the Critical Legal Conference in Glasgow in 2008, with a response at the conference by Akbar Rasulov. The article, wrote Chimni, was written “on the premise that a class approach to international law offers critical insights into the structure and process of international law whatever the theoretical frame used: be it that of Marx, Weber or Bourdieu.”[91] He did not specify a Marxist methodology here either. Nor did he seek to develop CMILS, which to my knowledge has not re-appeared..

The new edition of International Law and World Order has the same title as the first, but is very much expanded, from 318 pages to 649.[92] There are new chapters on David Kennedy’s NAIL (“New Approaches to International Law”)[93], and feminist approaches to international law, as exemplified by Hilary Charlesworth, Christine Chinkin and  Catherine McKinnon[94]. Of particular interest to this chapter he proposed an “integrated Marxist approach to international law” (IMAIL)[95], with a critique in particular of Pashukanis and his latter day disciple China Miéville[96].  My former student Akbar Rasulov in his review article comments as to the idea of IMAI: “Not that one can immediately work what exactly it stands for.”[97] He continues: “Although Chimni himself never puts it in so many words, IMAIL for him is, essentially, the concept of intersectionality writ large… the basic argument Chimni is revisiting here is essentially a combination of Louis Althusser’s theory of overdetermination and its logical centrepiece the concept of the ‘determination in the last instance’.”[98]

And while Rasulov admires Chimni’s ambition, he concludes that “None of these concepts, however, indicates an actual methodology.”[99] Chimni, I think, would not, and in any event could not, disagree.

Conclusion

If there is a “Marxist” (or Marxian) methodology, in respect of any field of inquiry, including international law, what would its characteristics be? Or at any rate, what might scholars of international law draw from the many writings, most unpublished in their lifetimes, of Marx and Engels. The following is what I tell my students

Ruthless radical materialism – derived from Aristotle and Spinoza in particular

For Marx is there is no question of transcendence much less an interventionist deity. He changed his mind as to whether humans have a specific “species being”. Marx was not a moralist. Capitalists are no more wicked or greedy than anyone else, but if they are to survive as capitalists they are driven by the remorseless necessity of capitalist accumulation and the “law of value”.

Immanent critique – the title of Capital:  the critique of political economy

Marx does not erect his own philosophical system, from which he will criticise Hegel, Smith or Ricardo. That is, transcendental critique. Instead, based on years of empirical study of the workings of capital, assisted by Engels who was himself a capitalist, Marx delved into the highpoints of philosophy and political economy of his time, in order to expose their inner contradictions and identify the developments required for a better understanding. This is immanent critique – critique from within.

No doctrine of political organisation

Marx was politically active all his life, author of the Communist Manifesto, a founder of the International Working Mens Association (the First International), a strong supporter of Irish and Polish struggles for self-determination. But he never founded a political party and never developed a theory of political organisation. He always intervened, as a revolutionary intellectual, often as an engaged journalist, in the actual movements and struggles of his day.

No utopian vision of the future

Marx wrote practically nothing about the future socialist or communist society. His life was dedicated to the struggle to overcome the horrors of capitalism, and the exploitation, racism, and environmental degradation which it irresistibly generates. I think Marx and Engels would agree with me that the moment the earthly paradise was achieved, a large blue gas giant planet, as in Lars Von Trier’s extraordinary 2011 film Melancholia, would arrive from behind the sun and obliterate us, communism and all.

At the September 2017 London conference Capital.150: Marx’s ‘Capital’ Today[100] on 150 years of Marx’s Capital, the great German Marx scholar Michael Heinrich was asked to sum up the whole of Marx’s thought in one word. He answered, without hesitation, “Struggle”.


[1] For an incisive critique, see B. S. Chimni International Law and World Order: A Critique of Contemporary Approaches (Cambridge University Press, 2nd edition, 2017),

[2] Christian Reus-Smit (ed)  The Politics of International Law (Cambridge: Cambridge University Press, 2004)

[3] Notably Dino Kritsiotis, Antony Anghie and Nicholas Wheeler. For my own critique, see Bill Bowring “What is Realism in International Law and Human Rights?” in Jonathan Joseph and Colin Wight (eds) Scientific Realism and International Relations (Palgrave Macmillan, 2010) pp. 101-114

[4] At https://www.oxfordbibliographies.com/view/document/obo-9780199796953/obo-9780199796953-0163.xml – requires a subscription or log-in. Knox deals in turn with Marx and Engels: Soviet Approaches; Approaches: Commodity-Form Theory; Hegemony, Ideology, and Ideology Critique; Third Worldism; Class-Struggle Approaches; Themes: History; Colonialism, Imperialism, and Race; Reform or Revolution; Legal areas: International Criminal Law; Use of Force; International Economic Law and Development; Global Constitutionalism and the Rule of Law; Corporations; Human Rights.

[5] Susan Marks (editor) International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008)

[6] At https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1440, requires a subscription or log-in

[7] Friedrich Engels and Karl Kautsky “Juridical Socialism” 7:2 (1977)  Politics and Society pp.203-220; “Juristen-Socialismus” Die Neue Zeit, 1887, no.2 (Stuttgart), translated by Piers Byrne. Byrne explained that this was one of a series of articles confronting reformist tendencies in German Social Democracy, in this case the legalistic demands for social reform made by the Austrian jurist Anton Menger. The original manuscript was prepared by Engels in October 1886, but when he became ill he suggested that the article be completed by the editor of Die Neue Zeit, Karl Kautsky. See Piers Beirne, “Introduction to ‘Juridical Socialism’” 7:2 (1977) Politics & Society 199-201

[8] Obshchaia teoriia prava i marksizm: Opyt kritiki osnovnykh iuridicheskikh poniatii (1924), Sotsiahsticheskoi Akademii, Moscow, 1st edition. In English in Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.32-131. Translated by Peter B. Maggs. In 1987 another edition and translation appeared: Law and Marxism: A General Theory, (London: Pluto Press, 1987) translated by Barbara Einhorn, edited and introduced by Christopher J. Arthur

[9] See Bill Bowring “Critical Legal Theory and International Law” in Emilios Christodoulidis, Ruth Dukes, Marco Goldoni (eds) Research Handbook on Critical Legal Theory (Edward Elgar 2019), pp.495-508

[10] Fragmentation of International Law: Difficulties Arising From the Diversification and Expansion of International Law. Report of the Study Group of the International Law Commission. 13 April 2006. Finalized by Martti Koskenniemi, at https://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf , And see Tomer Broude “Keep Calm and Carry On: Martti Koskenniemi and the Fragmentation of International Law” (May 1, 2013). ILF Research Paper No. 10-13. 27(2) (2013) Temple International & Comparative Law Journal. Available at SSRN: https://ssrn.com/abstract=2297626. Also Sean D. Murphy “Deconstructing F Deconstructing Fragmentation: Koskenniemi’s 2006 ILC Project”, 27 (2013) Temple International &

Comparative Law Journalhttps://scholarship.law.gwu.edu/cgi/viewcontent.cgi?article=2207&context=faculty_publications

[11] Martti Koskenniemi The Gentle Civiliser of Nations: The Rise and Fall of International Law 1870-1960 (Cambridge: Cambridge University Press, 2001)

[12] Martti Koskenniemi  “What should international lawyers learn from Karl Marx?” in Susan Marks (ed) International Law on the Left. Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 30-52

[13] Ibid, p.30-31

[14] https://www.icj-cij.org/en/statute

[15] Martti Koskenniemi  “What should international lawyers learn from Karl Marx?” in Susan Marks (ed) International Law on the Left. Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 30-52

[16] He cites Stephen Lukes Marxism and Morality (Oxford: Oxford University Press, 1985), 48-70

[17] Ibid, p.31

[18] Ibid, p.44

[19] At https://www.marxists.org/archive/marx/works/1865/04/01.htm; and W. Blumenberg “Ein unbekanntes Kapitel aus Marx’ Leben” 1(1) (1956) International Review of Social History, 54-111, in English

[20] See, for example, James Gordon Finlayson “Hegel, Adorno and the origins of immanent criticism”. 22(6) (2014) British Journal for the History of Philosophy,. 1142-1166, 1143

[21] See https://www.marxists.org/archive/marx/works/1880/05/parti-ouvrier.htm, editorial note

[22] The first seven “minimum economic demands” were:

  1. One rest day each week or legal ban on employers imposing work more than six days out of seven. – Legal reduction of the working day to eight hours for adults. – A ban on children under fourteen years working in private workshops; and, between fourteen and sixteen years, reduction of the working day from eight to six hours;
  2. Protective supervision of apprentices by the workers’ organizations;
  3. Legal minimum wage, determined each year according to the local price of food, by a workers’ statistical commission;
  4. Legal prohibition of bosses employing foreign workers at a wage less than that of French workers;
  5. Equal pay for equal work, for workers of both sexes;
  6. Scientific and professional instruction of all children, with their maintenance the responsibility of society, represented by the state and the Commune;
  7. Responsibility of society for the old and the disabled;

[23] Jules Guesde caused a scandal by describing in 1883 the Great Revolution of 1789 as “thievery”. See Jean-Numa Ducange Jules Guesde: the Birth of Socialism and Marxism in France (London, Palgrave Macmillan: 2020) p.33

[24] Bernard H. Moss, The Origins of the French Labour Movement. The Socialism of Skilled Workers 1830-1914, (University of California Press 1976), p.107.

[25] Engels To Eduard Bernstein In Zurich, London, 9 August 1882, MECW Volume 46, p. 353; First published: in full, in Marx Engels Archives, Moscow, 1924; https://marxists.catbull.com/archive/marx/works/1882/letters/82_11_02.htm

[26] Michael Heinrich, April 2015: “Je ne suis pas Marxiste”, at

https://libcom.org/library/%E2%80%9Eje-ne-suis-pas-marxiste%E2%80%9C

[27] For a characteristic Soviet presentation of Marx ’s “theory of law” see L. S. Mamut “Theory of Law” Sovetskoye Gosudarstvo i Pravo (1967) No. 12, in Csaba Varga (ed) Marxian Legal Theory (New York: New York University Press, 1993), pp.3-10

[28] See Bill Bowring “The law of value and the law” in Ugo Mattei and John Haskell (eds) Research Handbook on Political Economy and Law (Cheltenham: Edward Elgar, 2015), 158-176

[29] Karl Marx Grundrisse  (translated by Martin Nicolaus) (London: Penguin Books, 1993) pp.87-8

[30] Karl Marx Preface to the Critique of Political Economy in Karl Marx Friedrich Engels Collected Works Vol 29 (London: Lawrence & Wishart, 1987) p.262

[31] Karl Marx Critique of the Gotha Programme http://www.marxists.org/archive/marx/works/1875/gotha/ch01.htm (accessed on 29 October 2013)

[32] Friedrich Engels and Karl Kautsky Juridical Socialism 7:2 (1977)  Politics and Society pp.203-220; “Juristen-Socialismus” Die Neue Zeit, 1887, no.2 (Stuttgart), translated by Piers Byrne

[33] The translator, Piers Byrne, explained that this was one of a series of articles confronting reformist tendencies in German Social Democracy, in this case the legalistic demands for social reform made by the Austrian jurist Anton Menger. The original manuscript was prepares by Engels in October 1886, but when he became ill he suggested that the article be completed by the editor of Die Neue Zeit, Karl Kautsky.    See Piers Beirne, “Introduction to ‘Juridical Socialism’” 7:2 (1977) Politics & Society 199-201

[34] Ibid p.204

[35] Ibid p.212

[36] Peter Schöttler “Friedrich Engels and Karl Kautsky as Critics of “Legal Socialism” in Csaba Varga (ed) Marxian Legal Theory (New York: New York University Press, 1993), pp.11-42, at p.28-29

[37] See also Bill Bowring “The Soviets and the Right to Self-Determination of the Colonized: Contradictions of Soviet Diplomacy and Foreign Policy in the Era of Decolonization” in Jochen von Bernstorff and Philipp Dann (eds) The Battle for International Law: South-North Perspectives on the Decolonization Era (Oxford University Press 2019), pp.404-425; and Bill Bowring “Marx, Engels, and Lenin on the Right of Nations (Peoples) to Self-Determination, and Its Impact on International Law” in Paul O’Connell and Umut Özsu (eds) Elgar Handbook on Law and Marxism (Edward Elgar, forthcoming)

[38]  Andreas Diers ‘Opfer des ‘Grossen Terrors’: Eine biographische werknotiz zum 75. Todestag von Eugen Paschukanis’ (Victim of the ‘Great Terror’: a biographical note for the 75th anniversary of the death of Yevgeny Pasukanis), 3 September 2012, at 

https://www.rosalux.de/fileadmin/rls_uploads/pdfs/sonst_publikationen/Paschukanis_Sept_2012.pdf; see also Andreas Harms Warenform und Rechtsform. Zur Rechtstheorie von Eugen Paschukanis  (Commodity form and legal form. On the legal theory of Yevgeny Pashukanis) Freiburg: ça ira Verlag, Neuauflage 2009

[39]  Sovetsko-germanskiye otnosheniya ot peregovorov v Brest-Litovske do podpisaniya Rapallskovo dogovora. Sbornik dokumentov. (Soviet-German relations from the negotiations in Brest-Litovsk to the signing of the Rapallo Treaty. Collected documents.) In two volumes. (Moscow: Politizdat 1968-1971) Vol 1: 1917-1918. Vol 2: 1919-1922. At

http://militera.lib.ru/docs/da/sov-german/index.html, Document No.236. Telegramma vremennovo poverennovo v delakh RSFSR v Germanii narodnomu komissaru inostrannikh del RSFSR G V Chicherin (Telegram from the Chargé d’Affaires in Germany to the people’s commissar of foreign affairs of the RSFSR G V Chicherin) 3 December 1921, № К292

[40] See Bill Bowring “Yevgeniy Pashukanis, His Law and Marxism: A General Theory, and the 1922 Treaty of Rapallo between Soviet Russia and Germany” v.19 (2017) Journal of the History of International Law pp.274-295

[41] Zara Steiner The Lights that Failed: European International History 1919-1933 (Oxford: Oxford University Press 2005)

[42] Ibid 161

[43] Ibid 163

[44] Ibid 164

[45] Georgy Vasilyevich Chicherin, 1872-1936, born into an old noble family (related to Pushkin), father was a diplomat, in 1904 transferred his family wealth to the Bolsheviks, was personally very close to Lenin

[46] Maxim Maximovich Litvinov, 1876-1951, born Meir Henoch Wallach-Finkelstein

[47] Leonid Borisovich Krasin, 1870-1926, died in London of a blood disease, 6000 mourners attended his funeral at Golders Green Crematorium

[48] Ibid 165

[49] Dokumenty vneshnei politiki SSSR. (1961), Moskva (Documents of the foreign policy of the USSR Volume 5, 1 January 1922 – 19 November 1922 Moscow: Politicheskoi Literatury, 1961,156-7, Document No.87

[50] G. M. Sadovaya (2001) Valter Ratenau i Rapallskiy Dogovor  (Samara: Samarskiy Universitet 2001, available at

http://refy.ru/71/248883-g-m-sadovaya-valter-ratenau-i-rapallskiy-dogovor.html

[51]  Boris Spiridonovich Stomonyakov (1882 to 1940), was an ethnic Bulgarian anti-Tsarist revolutionary who later became a trade representative and diplomat for the USSR the 1920s and 1930s. He was arrested in 1938 and shot in 1940.

[52] Sadovaya draws extensively from Sovetsko-germanskiye otnosheniya ot peregovorov v Brest-Litovske do podpisaniya Rapallskovo dogovora. Sbornik dokumentov. (Soviet-German relations from the negotiations in Brest-Litovsk to the signing of the Rapallo Treaty. Collected documents.) In two volumes. (Moscow: Politizdat, 1968-1971). Vol 1: 1917-1918. Vol 2: 1919-1922. At

http://militera.lib.ru/docs/da/sov-german/index.html

[53] Sadovaya Valter Ratenau 2001 (n.23), 56

[54] Documents Foreign Policy 1961 (n.22), 184-5

[55] Soviet-German Relations 1968-1971 (n.26) Volume 2, Document No. 258. Из письма советника представительства РСФСР в Германии заместителю народного комиссара иностранных дел РСФСР Л. М. Карахану, 8 апреля 1922 г., № 438 (From the letter of the adviser to the representation of the RSFSR in Germany to the deputy commissar for foreign affairs of the RSFSR L M Karakhan, 8 April 1922, No.438, available at http://militera.lib.ru/docs/da/sov-german/index.html

[56] Yevgeniy Pashukanis (1924) Общая теория права и марксизм. Опыт критики основных юридических понятий  (Obshchaya teoriya prava i marksizm) A general theory of law and Marxism. An attempt at a critique of fundamental juridical concepts) (Moscow: Communist Academy 1924) (English translation, Ye Pashukanis Law and Marxism: A General Theory. Towards a Critique of the Fundamental Juridical Concepts  (London: Pluto Press, 1983))

[57] Ibid, 68

[58] For a recent exposition and defence of this theory, see China Miéville ‘The Commodity-Form Theory of International Law: An Introduction”’ 17(2) (2004) Leiden Journal of International Law, 271-302, and China Miéville Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic Publishers, 2005), and the review article by Susan Marks “International Judicial Activism and the Commodity Form Theory of International Law” 18(1) (2007) European Journal of International Law, 199-211

[59] The New Economic Policy, a partial restoration of capitalist market relations, under state control, was introduced by Lenin in 1921. Despite Lenin’s death in 1924 the success of the policy meant that it continued until sharply reversed by Stalin in 1928. 

[60] Yevgeniy Pashukanis (1930) “Polozheniye na teoreticheskom pravovom fronte (The situation on the theoretical legal front)” 11-12 (1930) Sovetskoye gosudartsvo i revolutsiya prava (Soviet state and revolution of law), 16-49, 26

[61] 1909-1955

[62] John Hazard ‘Housecleaning in Soviet Law’ 1 (1938)  American Quarterly on the Soviet Union pp.5-16, at http://www.unz.org/Pub/AmQSovietUnion-1938apr-00005?View=PDF; and John Hazard ‘Cleansing Soviet International Law of Anti-Marxist Theories’ 32(2) (1938) American Journal of International Law, 244-252

[63] Hazard Housecleaning 1938 (n.70) 13

[64] Ye Pashukanis ‘Pismo tov. Stalina i zadachi teoreticheskovo fronta gosudarstvo i pravo (The letter of comrade Stalin and the tasks of the theoretical front of state and law)’ 1 (1932) Sovetskoe gosudarstvo (Soviet State) 4-48, cited in E. A. Skripilev, ‘Nashemy zhurnalu – 70 let” (Our journal is 70 years old)’ no. 2 (1987)Sovetskoye Gosudarstvo i Pravo (Soviet State and Law) 17.

[65] Ye. Pashukanis, Ocherki po Mezhdunarodnomu Pravu (Essays in International Law) (Moscow: Soviet Legislation, 1935)

[66] Cited (16) in John Hazard ‘Pashukanis is No Traitor’ 51(2) (1957) American Journal of International Law, 385-388, 387.

[67] Ibid  387.

[68] “Mezhdunarodnoe pravo” (International law), in  Entsiklopediia gosudarstva i prava (1925-1926), (lzdatelstvo Kommunisticheskoi akademii), Moscow, vol.2, pp.858-874; English translation in Evgeny Pashukanis, Selected Writings on Marxism and Law (eds. P. Beirne & R. Sharlet), London & New York 1980, pp.168-83, 184-5. Also at  https://www.marxists.org/archive/pashukanis/1925/xx/intlaw.htm

[69] China Miéville Between Equal Rights: A Marxist Theory of International Law (Leiden: Brill Academic Publishers, 2005) Appendix, 321-336

[70] Ibid, 160; and see Piers Beirne and Robert Sharlet (eds) Pashukanis: Selected Writings on Marxism and Law (London and New York: Academic Press, 1980), 175

[71] Beirne and Sharlet Pashukanis, (1980) 181

[72] Ibid (1980) 168

[73] Ibid (1980) 181

[74] Note 4 above

[75] Miéville (2004) 302

[76] B. S. Chimni “Third World Approaches to International Law: A Manifesto” 8 (2006) International Community Law Review  3–27; and Luis Eslava “TWAIL Coordinates” 2 April 2019 Critical Legal Thinking at  https://criticallegalthinking.com/2019/04/02/twail-coordinates/ , concluding “TWAIL is a movement, not a school; a network, not an institution; a sensibility, not a doctrine. This restlessness and commitment to openness are nourished, above all, by the diversity of the world to which TWAIL responds and from which its momentum arises.”

[77] B. S. Chimni International Law and World Order. A Critique of Contemporary Approaches (New Delhi/Newbury Park/London: Sage Publications, 1993)

[78] B. S. Chimni “An Outline of a Marxist Course on Public International Law” 17 (2004)  Leiden Journal of International Law, 1-30; also in Susan Marks (editor) International Law on the Left: Re-examining Marxist Legacies (Cambridge: Cambridge University Press, 2008), 53-91

[79] Ibid, 3

[80] Ibid, 13

[81] Ibid, 11

[82] Ibid, 17

[83] Ibid, 18,

[84] Ibid, 21

[85] Ibid, 23

[86] Ibid, 24

[87] Ibid, 25

[88] Ibid, 27

[89] Wade Mansell and Karen Openshaw International Law: A Critical Introduction (2nd ed, London, Hart Publishing, 2019)

[90] B. S. Chimni “Prolegomena to a Class Approach to International Law” 21(1) European Journal of International Law,57-82

[91] Ibid, 81

[92] B. S. Chimni International Law and World Order. A Critique of Contemporary Approaches (2nd ed, Cambridge: Cambridge University Press, 2017)

[93] Ibid, Chapter 5, pages 246-357

[94] Ibid, Chapter 6, pages 358-439

[95] Ibid, Chapter 7, pages 440-550

[96] China Miéville Between Equal Rights: A Marxist theory of International Law (New ed, London: Pluto Press 2006)

[97] Akbar Rasulov “A Marxism for International Law: A New Agenda” 29(2) (2018) European Journal of International Law, 631-655, at 635

[98] Ibid, 648

[99] Ibid, 652

[100] Recordings of all presentations and discussion may be found at https://www.kcl.ac.uk/archive/news/european-studies/2017-18/capital.150-conference-a-brief-summary

Amicus Brief on Russian assassinations

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

BILAL ABDUL KAREEM,

 

Plaintiff-Appellant,

 

v.

 

GINA HASPEL, Director, Central Intelligence Agency, et al.,

 

Defendants-Appellees.

 

  Case No. 19-5328

 

 

 

 

 

BRIEF OF AMICUS CURIAE

RUSSIAN EXPERT PROFESSOR WILLIAM BOWRING

 

 

Santha Sonenberg
[]

202-494-7083

santhasonenberg@yahoo.com

 

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

 

BILAL ABDUL KAREEM,

 

Plaintiff-Appellant,

 

v.

 

GINA HASPEL, Director, Central Intelligence Agency, et al.,

 

Defendants-Appellees.

 

  Case No. 19-5328

 

 

 

 

 

BRIEF OF AMICUS CURIAE

RUSSIAN EXPERT PROFESSOR WILLIAM BOWRING

 

Professor William Bowring hereby files the following brief as Amicus Curiae in this case in support of the Appellant:

INTEREST OF AMICUS

Professor William Bowring, amicus here, is a citizen of the United Kingdom.

My interest in the case before this Court is the effect of United States law and practice in encouraging other states, in this case the Russian Federation, to carry out and to legalise programs of assassination at home and abroad. In other words, the general policy being publicly espoused by the U.S authorities in this case (that they have the power to assassinate anyone including American journalists), combined with the insistence that this policy should be secretive and unreviewable, makes it impossible for governments and human rights advocates to strive to rein in the assassinations being committed by regimes such as the Kremlin and Putin in Russia.

I am a Professor of Law at Birkbeck College, University of London, and a practising Barrister of England and Wales. I have been travelling the Russia since 1983, when it was still part of the USSR, and have written many books and article on Russian law and practice. As a Barrister I have taken hundreds of cases against Russia since 2000 to the European Court of Human Rights (Russia ratified the European Convention on Human Rights in 1998), and in 2003 I was awarded €1 million by the European Commission to found the European Human Rights Advocacy Centre (EHRAC) in partnership with the leading Russian human rights organization Memorial. With my colleagues I have won many cases on behalf of applicants complaining of murder, torture, disappearance and other human rights violations committed by Russia against Chechens, in the context of the Second Chechen War initiated by President Putin in 1999. I am a member of the legal team representing Marina Carter (Litvinenko) in her case at the ECtHR concerning the murder of her husband Alexander Litvinenko in London in November 2006. I attach my qualifications and experience in Russia in the Annex hereto.

CONSENT OF THE PARTIES

Undersigned counsel hereby states that both parties have consented to the timely filing of this Amicus brief.

CERTIFICATE OF COMPLIANCE

I hereby certify that no counsel for a party authored the brief in whole or in part; that no party nor a party’s counsel contributed money that was intended to fund preparing or submitting the brief; and that no person—other than amicus curiae or its counsel—contributed money that was intended to fund preparing or submitting the brief.

/S/ SANTHA SONENBERG        .                   

ARGUMENT OF AMICUS

  1. THE ASSASSINATION OF INDIVIDUALLY SELECTED PEOPLE AROUND THE WORLD BY THE UNITED STATES GOVERNMENT IS AN ISSUE OF IMMENSE PUBLIC INTEREST, WITH A NEGATIVE IMPACT ON HUMAN RIGHTS WORLDWIDE, AND SHOULD NOT BE CONDUCTED WITH TOTAL SECRECY AND IMPUNITY

 

Difficult though it is for advocates of human rights to believe, it is well known that the U.S. conduct an assassination program.

 

A.           The Russian legal basis for and their use of assassination conforms with and may well be influenced by the US theory and practice

Nobody would suggest that the current Russian regime only began to engage in illegal acts after the U.S. publicized its own extra-legal activities. However, by creating a rendition program, by engaging in torture (albeit called “Enhanced Interrogation Techniques”),[1] by the supposedly law-free detention centers ranging from Guantánamo Bay to prisons dotted around foreign countries, and now by advertising its assassination program, the U.S. essentially encouraged repressive regimes to expand their own such policies. My focus in these Amicus Curiae observations is on Russia.

The U.S. Executive claims that such activities are rendered lawful by the 2001 Authorization of the Use of Military Force (AUMF),[2] periodically renewed. The AUMF permits the President to use “all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harbored such organizations or persons.”

The Russian government followed the U.S. example in 2006. The Russian legal basis for assassination is to be found in the Federal Law of the Russian Federation of 6 March 2006 “On countering terrorism”.[3] Article 22 provides:

Legitimate Infliction of Harm

The deprivation of life of a person committing a terrorist act, as well as causing harm to the health or property of such a person or other interests of the person, society or state protected by law during the suppression of a terrorist act or the implementation of other measures to combat terrorism with actions prescribed or permitted by the legislation of the Russian Federation, are lawful.

This law was soon amended to extend the powers of the Russian state to the carrying out of assassinations abroad. On 29 July 2006, on publication in the official Russian Gazette, another new law came into force, with the anodyne title “On amendments to separate legislative acts in connection with the enactment of the Federal Law “On ratification by the Russian Federation of the European Convention for the Prevention of Terrorism” and the Federal Law “On countering terrorism””[4] (the 2006 Law). Fifteen laws were amended, and substantial changes included the re-introduction of trials in absentia, following their abolition in 2002. The most controversial amendments related to the functions and powers of the security services.

Article 13(6.2) of the Federal Law of 1995 No 40 FZ “On the Federal Security Service” is amended by Article 3 of the 2006 Law so as to provide expressly for the execution of counter-terrorist operations beyond the borders of the Russian Federation. This has been described by commentators as a Russian “007 law”, giving the Russian secret services for the first time the right to use deadly force abroad. Article 6(2) provides that the Russian government may:

… use special forces of the federal security service and use military equipment, weapons, special equipment adopted by the federal security service, as well as physical force against terrorists and (or) their bases outside the territory of the Russian Federation to eliminate threats to the security of the Russian Federation;

On 3 July 2006 the staff journalist Vladimir Fedosenko published an article in the official Russian Gazette entitled “The Russian special sub-units are ready to execute the order of the President. The right of retribution has been taken upon itself by the Russian state in the war on terrorism.”[5] He correctly identified the issue at stake in the new law as the legitimacy of preventive actions by the special services outside Russia, especially in the context of President Putin’s order to find and liquidate the murderers of Russian diplomats in Iraq. The deaths of the diplomats were confirmed on 26 June 2006.[6] The men were seized in Baghdad on 3 June 2006, and the kidnappers said the executions were in revenge for “torture, killing and displacement by the infidel Russian government” in Chechnya. I doubt whether this event was the only reason for enacting the new legislation, but served as a pretext in my opinion.

To my knowledge, no senior Russian official said on record that Russia was following the US example, which is understandable enough. But there is a startling similarity in a number of areas – from the purported legal justification for assassination to the strategic leaks – which leads me and others to conclude that the Putin regime was almost certainly copying the regime supposedly adopted by the AUMF. This, he would rightly have decided, neutralizes the capacity for Western states, international organisations, and for human rights defenders to be critical of such human rights abuses.

After this, the Director of the FSB, Nikolai Patrushev, announced that the recently created National Anti-terror Committee of the Russian Federation would coordinate the work of the Russian special services for carrying out the President’s order. In the words of Sergey Mironov, Speaker of the Federation Council, Russia’s upper house, this initiative was consistent with Russia’s right to self-defence enshrined in Article 51 of the UN Charter.

On 11 January 2007 the opposition newspaper Novaya Gazeta published an article, “How in Russia murders are committed in the interests of the state”, describing a document which had come into their possession, apparently leaked from the FSB.[7] According to this 70-page document, which appeared to be a secret FSB instruction, parallel structures had been created within the FSB for the purpose of carrying out “extra-judicial sentences”, that is, murders. The document appeared to have been signed by Colonel Seliverstov of the FSB. When “Novaya Gazeta” approached him, his response was that he had not signed the document, but that whoever had passed it to the newspaper had committed a state crime. Former FSB members confirmed that such a document, even though signed by a colonel, would have required approval at government level.

The article discussed at length not only the notorious Litvinenko and Politkovskaya cases (Anna Politkovskaya was murdered outside her home in Moscow on 7 October 2006)[8], but also the unsolved murders or suspicious deaths of a large number of opposition journalists and others.

 

The laws cited above authorise three Russian agencies to exercise the right to conduct assassinations abroad – FSB (Federal Security Service), GRU (Main Intelligence Directorate) and SVR (Foreign Intelligence Service).

The U.S. has admitted the existence of its own assassination project, as well as such particular elements of it as “Terror Tuesday”.[9]

It therefore becomes difficult for the U.S. (or anyone else) to be critical of the Russian program, without being accused of hypocrisy.

 

B.           These changes to the law have been followed by an increase in the alleged Russian assassinations and attempts with the murder of Alexander Litvinenko and the murder and attempted murder of others in the United Kingdom

 

While the U.S. might seek to distinguish assassination under the AUMF as targeted on “terrorists” in a “war zone”, the definitions are sadly rather flexible. The U.S. has adopted the “Global War on Terror” concept, meaning that the “battlefield” may be anywhere and everywhere. It is also a “war” of potentially eternal duration. In the context of Guantánamo Bay, and the legal justification for detaining people without trial forever, consistent with the Geneva Conventions, the Executive has represented that the “war” may go on for a century[10]

When Judge Thomas Hogan asked if, in the government’s view, the war could last 100 years, Justice Department attorney Ronald Wiltsie said, “Yes, we could hold them for 100 years if the conflict lasts 100 years.”

 

Indeed, the U.S. budget for the global “War on Terror” shows no sign of ending, and while the funds allocated in 2002 were $59.1 billion, in 2019 the figure was $150.8 billion.[11]

The investigative website Buzzfeed News published the following on 12 June 2017:

“The Kremlin has aggressively stepped up its efforts to eliminate and silence its enemies abroad over the past couple of years – particularly in Britain,” one senior US spy told BuzzFeed News.”[12]

 

A few days later Buzzfeed continued

“The existence of American intelligence linking the 14 deaths in Britain to Russia was confirmed by four current US intelligence officials with direct knowledge of the information the spy agencies had gathered on each case. In certain instances, they said, it was possible to say with high or moderate confidence that assassinations had been carried out on Putin’s command. In others, it could not be determined with certainty whether individuals had been targeted by the Kremlin, murdered by Russian mafia figures, or deliberately driven to suicide – and they could not rule out the possibility that some of the deaths could be unconnected to Russia. But in all 14 cases, “based on what we know and intelligence gathered in the field and analysed,” one of the officials said, “you can safely say that the strongest conclusion is that circumstances suggest Russian involvement in the deaths of these men and then demand more investigation from UK.””[13]

 

Some further examples are:

(i)                  Alexander Perepilichny was murdered using a deadly poison fern, Gelsemium elegans, in Weybridge on 10th November 2012

It is alleged that the Russian state security service carried out the murder of a fraud whistleblower, Alexander Perepilichny. He was 44 when he “died after collapsing while running near his Surrey home in November 2012. His death was originally attributed to natural causes, but traces of a chemical that can be found in the poisonous plant gelsemium elegans were later found in his stomach.”[14]

Perepilichny had provided evidence to Bill Browder’s investigation into the fraudulent activity of senior Russian officials that culminated in the theft of $230 million from the Russian tax revenue. Browder’s lawyer, Sergei Magnitsky, was investigating this same case when he was arrested and ultimately murdered by Russian officials. The man suspected of carrying out the assassination was arrested in Turkey, but according to The Independent newspaper on 10 May 2016, the Russian authorities sought to protect him:

A pre-inquest hearing was told that the suspected hit-man – Valid Lurakhmaev – has now been arrested in Turkey on an unrelated matter and it was vital for British investigators to make efforts to gain access to the 45-year-old Chechen, who is already wanted by Interpol for attempted murder and theft.

Lawyers for Hermitage Capital, the international investment firm targeted for the £150m tax fraud, told the Surrey Coroner’s Court in Woking that it was possible that Mr Lurakhmaev would be extradited to Russia and put out of the reach of British police.[15]

I have found no information concerning this person since 2016.

In her 2019 book From Russia with Blood: Putin’s Ruthless Killing Campaign and Secret War on the West[16] the Buzzfeed investigative journalist Heidi Blake devotes part of Chapter XVIII to the case of Mr Perepilichny.[17] She records that the British government remained unflinching in its insistence that there was nothing to suggest that the murder of Mr Perepilichny was anything other than natural. However:

The spies at Langley were infuriated. They had warned their colleagues in England that the Kremlin was aggressively stepping up its assassination program on UK soil. Now they agreed among themselves that the “incompetent” British authorities needed to be held accountable for failing to put a stop to the disturbing trend. America’s top intelligence official prepared a highly classified report for Congress “on the use of political assassination as a form of statecraft by the Russian Federation”, which listed multiple deaths in Britain. The report asserted with “high confidence” that Perepilichny had been assassinated on direct orders from Putin or people close to him, and the intelligence it outlined was passed to MI6. But the British government ignored that and other evidence connecting the Kremlin to another brazen hit on British soil. So Russia grew yet more emboldened.[18]

Sadly, as will be seen below, the British law enforcement authorities appear to have been less than diligent in investigating and reaching any conclusions as to the disturbing series of assassinations carried out in Britain.

(ii)           Boris Berezovsky is alleged to have been murdered by hanging on 23rd March 2013 in Sunninghill

Boris Berezovsky was the subject of a number of assassination attempts, culminating in 2013. He was a Russian business oligarch, government official, engineer and mathematician. He was a member of the Russian Academy of Sciences. Berezovsky was politically opposed to the President of Russia Vladimir Putin, since Putin’s election in 2000 and remained a vocal critic of Putin for the rest of his life. Indeed, it is commonly known that it was Mr Berezovsky who raised Mr Putin to high office as Director of the FSB in April 1999 in order to secure the dismissal of the General Prosecutor Yury Skuratov, who was investigating President Yeltsin’s corruption. Mr Putin was then appointed Prime Minister, in which capacity he started the Second Chechen War, and on 1 January 2000 became Acting President when Mr Yeltsin stepped down. By April 2000 Mr Putin told Mr Berezovsky that he was no longer beholden to him, and that Mr Berezovsky must leave Russia.

In late 2000, after the Russian Deputy Prosecutor General demanded that Berezovsky appear for questioning, he did not return from abroad and moved to the UK, which granted him political asylum in 2003. I was an expert witness in 2003 in Mr Berezovsky’s defence to a Russian request for his extradition, and acted as his expert on several occasions afterwards.

In Russia Mr Berezovsky was later convicted in absentia of fraud and embezzlement. The first charges were brought during Primakov’s government in 1999. Despite an Interpol Red Notice for Berezovsky’s arrest, Russia repeatedly failed to obtain the extradition of Berezovsky from Britain, which became a major point of diplomatic tension between the two countries.

Mr Berezovsky was found dead at his home, Titness Park, at Sunninghill, near Ascot in Berkshire, on 23 March 2013. A post-mortem examination found that his death was consistent with hanging and that there were no signs of a violent struggle. However the coroner at the inquest into Berezovsky’s death later recorded an open verdict.

In her 2019 book Heidi Blake devotes Chapter XIX to Mr Berezovsky.  She writes:

The police position was that Berezovsky had sustained his additional injuries when the scarf snapped and his body fell, and they told the coroner they were “content” that Berezovsky had taken his own life… [his daughter Elizaveta did not agree] The Kremlin had been trying for years to silence Berezovsky, and his daughter believed it had finally succeeded… With such conflicting testimony, the coroner, Dr Peter Bedford, said he could not determine beyond all reasonable doubt how Berezovsky had died, and the inquest recorded an open verdict.

The official police position did not sit easily in all quarters at Scotland Yard. Several officers in the Specialist Protection and counterterrorism units, who had spent years monitoring the threats to Berezovsky, would always suspect that he had, finally, been murdered. They knew Russia was perfectly capable of faking a person’s suicide, having slipped the victim mind-altering drugs beforehand to make it look believable.[19]

That is my own view, having got to know Mr Berezovsky since 2003.

(iii)       Scot Young appears to have been assassinated by the Russians

Chapter XX of Heidi Blake’s book concerns the case of Scot Young,[20] illustrating that the Putin Government does not merely go after “traitorous” Russians. His body, impaled on railings after falling from the fourth floor, was found on 8 December 2014. She writes:

The onetime superfixer was by then the ninth in Berezovsky’s circle of friends and business associates to die under suspicious circumstances in Britain. But when the police entered his penthouse… they didn’t even dust for fingerprints. They declared his death a suicide on the spot and closed the case.

 

There was more evidence which could have pointed to murder rather than suicide, but was never properly investigated. Once again the inquest into Young’s death recorded an open verdict. The coroner said “I have concluded that there is inconclusive evidence to determine his state of mind and intention when he came out of the window.” Blake concludes:

But while the police shut down the case, dismissed the Russian connection, and rebuffed their [his daughters’] concerns the spies in River House were secretly asking their American colleagues if the fixer’s risky dealings with Moscow had finally caught up with him.

 

The spies at Langley replied that yes, they did indeed suspect another assassination had slipped through Scotland Yard’s dragnet. Young’s death was yet another reason why US intelligence officials believed the Kremlin’s killing campaign was accelerating.[21]

 

(iv)               Gareth Williams is alleged to have been murdered by Russia

In Chapter XVII of her book[22] Heidi Blake assesses the death, in August 2010, of the British spy – a code breaker at Britain’s Government Communications Headquarters (GCHQ), but currently working in London at MI6 – Gareth Williams. After his sister was concerned at not hearing from him, police notified by GCHQ went to his flat and found his body, dead for ten days, inside a padlocked sports bag placed inside a bathtub. He could not have locked himself in the bag. Blake writes that the coroner, Dr Fiona Wilcox

…went on to deliver a devastating verdict for MI6 and Scotland Yard’s counterterrorism command. [She] dismissed the theory that the spy had suffocated in a sex game and condemned the leaks to the media about his private life as a possible attempt “by some third party to manipulate a section of the evidence.” She ruled that Williams’s death was “unnatural and likely to have been criminally mediated,” blaming the spies and counterrorism cops for obfuscation and failures in the handling of the evidence that made it impossible to determine exactly how he had been killed.

 

It turned out that Williams had been working on Russia. He had just qualified for operational deployment, and in the months before his death he had been traveling regularly to the Fort Meade headquarters of the US National Security Agency (NSA), in Maryland, where he was helping to crack complex financial webs used by Kremlin-linked mafia groups to move illicit money around the globe. His work was so sensitive that he had been given security clearance to visit the NSA’s facility in the Utah desert, which is classified as “above top secret”.

The US State Department demanded that none of this should be disclosed to the inquest, and that MI6 should spread the theory that Williams had died as a result of his “unusual sexual proclivities.”[23] However, “[i]ntelligence coming from US sources and listening posts suggested Williams was the victim of another Russian hit on British soil.”

 

  • The attempted murder of Sergei Skripal and his daughter Yulia in Salisbury

 

On 4 March 2018 senior officers of the Russian GRU attempted to murder the Skripals at their home in Salisbury, using weapons grade nerve agent, a novichok. This was not only an illegal use of force by Russia, but constituted an armed attack on the United Kingdom in international law. The UK’s response was muted to say the least.

Sergei Skripal was born in Kaliningrad on June 23, 1951. He was a military officer who had been co-opted to the military intelligence (GRU). In 1995 he was supposedly recruited to British Intelligence by Pablo Miller, and given the codename Forthwith. He is alleged by Russia to have blown the cover of 300 Russian agents. In 1999, he retired at the rank of colonel, and turned to other work, before being arrested in 2004, and subsequently convicted of high treason for which he was sentenced to 13 years in prison. On July 9, 2010, he was part of a spy swap and he went to live in Salisbury.

Skripal’s wife died of cancer in 2012, and his son died of unknown causes in Moscow in March 2017. Then, on March 4, 2018, he and his daughter were found poisoned on a bench in Salisbury.

On 12 March 2018, the Russian Ambassador, Alexander Yakovenko, was summoned by Foreign Secretary, Boris Johnson. The Foreign Secretary said that the nerve agent used against Sergei and Yulia had been identified as “A-234”. He invited Russia to respond, before the end of the next day, whether this was a direct act by the Russian State or acknowledge that the Russian government had lost control of this nerve agent. He also demanded Russia to provide full and complete disclosure of its chemical weapons programme to the Organisation for the Prohibition of Chemical Weapons (OPCW). Later that day Prime Minister Theresa May made a statement in Parliament:

It is now clear that Mr Skripal and his daughter were poisoned with a military-grade nerve agent of a type developed by Russia. It is part of a group of nerve agents known as Novichok. Based on the positive identification of this chemical agent by world-leading experts at the Defence Science and Technology Laboratory at Porton Down, our knowledge that Russia has previously produced this agent and would still be capable of doing so, Russia’s record of conducting state-sponsored assassinations and our assessment that Russia views some defectors as legitimate targets for assassinations, the Government have concluded that it is highly likely that Russia was responsible for the act against Sergei and Yulia Skripal. There are, therefore, only two plausible explanations for what happened in Salisbury on 4 March: either this was a direct act by the Russian state against our country; or the Russian Government lost control of their potentially catastrophically damaging nerve agent and allowed it to get into the hands of others. This action has happened against a backdrop of a well-established pattern of Russian state aggression”.

 

She added: “Should there be no credible response, we will conclude that this action amounts to an unlawful use of force by the Russian state against the United Kingdom, and I will come back to this House to set out the full range of measures that we will take in response”. [24]

The Skripals were saved only by the fact that they lived so close to Porton Down. An unfortunate woman who found the discarded container used by the GRU officers, a perfume flask, died.

Conclusion

Buzzfeed referred to 14 deaths in Britain which have raised questions as to Russian involvement. I have concentrated on five leading examples, in 2010, 2012, 2013, 2014 and 2018, where there is strong evidence of murder and attempted murder by the Russian authorities and their agents. These have all followed the dramatic changes in the law of 2006.

It would appear that Russia has followed and been encouraged by the behaviour of the United States. This may be a reason why the response of UK law enforcement and government has been weak and at times incompetent.

 

PRAYER FOR RELIEF

Amicus respectfully requests that the Court reverse the lower court and reinstate Appellant’s complaint, with guidance as to how best to assess the legal rights of an American citizen facing potential assassination by his or her own government.

 

Dated: 17 March, 2020

 

/S/ SANTHA SONENBERG        . 

Santha Sonenberg
[]

202-494-7083

santhasonenberg@yahoo.com

 

Professor William Bowring

Birkbeck College, University of London

Malet Street

London WC1E 7HX

+44 203 926 1598

b.bowring@bbk.ac.uk

 

Certificate of Service

I hereby certify that the foregoing brief has been served electronically upon the parties through their lawyers, Eric Lewis (Eric.Lewis@LBKMLAW.com) & Tara Plochocki (Tara.Plochocki@LBKMLAW.com) for Appellant, and Bradley Hinshelwood (Bradley.A.Hinshelwood@usdoj.gov) for Appellee this 17th day of March, 2020.

/S/ SANTHA SONENBERG        . 

 

CERTIFICATE OF COMPLIANCE

  1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because:

this brief contains 4,247 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).

  1. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in a proportionally-spaced typeface using Microsoft Word in 14 point Times New Roman font.

/S/ SANTHA SONENBERG        . 

 

 

 

Annex 1

 

Amicus’ Experience in Russia

 

  • I am fluent in Russian, and have since 1983 visited Russia and other countries of the former USSR regularly, and have studied the Russian language, history, and Soviet and Russian law and practice. I have published over 100 books, articles and book chapters on these and related subjects.[25]
  • From 1997 to the end of 2003 I was the contracted Adviser to the UK Government’s Department for International Development on “Human Rights in Russia”, and for the latter three years on “Access to Justice and Rights Issues in Russia.” In this capacity I initiated and monitored large projects in the Russian Federation in the field of judicial reform, reform of the penitentiary system, human rights monitoring, and alternative dispute resolution. This work took me to all parts of Russia, and allowed me to meet official and civil society actors at all levels.
  • The projects included the £1.2m Judicial Support Project working with the Courts of General Jurisdiction and Arbitrazh Courts in Russia, the £600,000 Independent Monitoring Project enabling NGOs to monitor human rights in Russia; and two large projects in the penitentiary system – the Alternatives to Imprisonment Project (with Penal Reform International) introducing community services orders across Russia, and the Prisons Partnership Project (with the International Centre for Prison Studies), twinning Moscow remand prisons with UK prisons.
  • In the course of these projects I became one of a relatively small number of Western experts in Russian law and practice, in all fields of law, especially in relation to the administration of justice and judicial reform. I have intimate knowledge of courts administration and practice, the drafting and implementation of judicial procedural laws, and the actuality of the judicial system in Moscow, St Petersburg and many regions of Russia.
  • The Russian government and Supreme Court (through its Judicial Department, responsible for administration and training) have on a number of occasions called on me to carry out training for senior judges and court administrators. Two examples are: first, training for senior judges of the Southern Federal District in 2005, when my two fellow trainers were the former Russian Agent (representative) at Strasbourg, Pavel Laptev, and the head of the Russian prison system, Yuri Kalinin; and second, in November 2007, when I trained senior judges of Astrakhan Oblast in the south of Russia. I also became closely acquainted with a wide range of Russian interlocutors, including senior judges, officials, and policy-makers, as appears below.
  • I am regularly called upon to assist and advise the Foreign and Commonwealth Office and other UK Government departments, and am also invited to give papers and take part in discussions at the Royal Institute for International Affairs (Chatham House).
  • I have also regularly acted and continue to act as an expert on Russian and other post-Soviet law and practice for the Council of Europe, European Union, Organisation on Security and Cooperation in Europe (OSCE), the US Department of Justice, and other national and international organisations.
  • I was one of the three experts nominated by the Council of Europe to work with senior Russian officials on the new Criminal Procedural Code which came into force on 1 July 2002. I worked closely with Dmitrii Kozak, formerly in charge of President Putin’s judicial reform programme, as well as senior figures from the courts, Ministry of the Interior (Police), Federal Security Service (FSB), and the parliament.
  • I was also nominated by the Council of Europe to work on the World Bank’s “Diagnostic Project” on the Russian judicial system in early 2002. I presently act regularly as expert and consultant with the European Union and the Council of Europe on human rights and minority rights issues.
  • I have worked in an expert capacity for EU projects since 1994, in the fields of reform of social welfare, reform of local government, and presently the establishment of a system of administrative courts in Russia. In October 2004 I hosted a week-long visit to London by the First Deputy Chairmen of the Supreme Court and Higher Arbitrazh Court of the Russian Federation, together with leading parliamentarians and members of the executive branch of government.
  • I have also advised professional clients on many occasions on questions of Soviet and Russian law, as well as conflict of laws (English and Russian) in civil cases. Details of these cases are given on my Chambers website.[26]
  • In March 2005 I gave written and oral expert evidence to the Bow Street Magistrates’ Court in the extradition application Russian Federation v Chernysheva and Maruev. On 18 March 2005 Senior District Judge Timothy Workman, referring to my evidence and that of other witnesses, held that the extradition proceedings were barred by virtue of section 81 of the Extradition Act 2003.
  • On 25 October 2005 I gave written and oral expert evidence in the Bow Street Magistrates Court in the further extradition case of Russian Federation v Temerko. Aleksandr Temerko was second in command to Mikhail Khodorkovsky in YUKOS. On that day there was time only for my evidence in chief, and the hearing was adjourned to 15 December 2005 for cross-examination.
  • On 15 November 2005, before my return to the court for cross-examination, I arrived at Moscow Airport at 0500 am and was detained at Passport Control and held for six hours. I was then deported from Russia, and my multi-entry visa was cancelled. On 23 December 2005, Judge Workman made a similar finding to that in Russian Federation v Chernysheva and Maruev, based to a large extent on my evidence, and refused extradition.
  • In his judgment of 23 December 2005, Judge Workman considered the circumstances of my deportation from Russia, and held:

In absence of any explanation I have concluded that it is more likely than not that the actions of the Russian authorities [by deporting me – WB] were directly associated with the fact that Professor Bowring had given evidence to this Court.

  • In January and February 2006 I also gave written and oral evidence for the Larnaca District Court, Cyprus, in the YUKOS-related extradition case of Russian Federation v Kolesnikov. The court refused extradition in that case, but for the reason that Russia had failed to comply with a number of the requirements of the 1957 European Extradition Convention (Article 12).
  • I have acted as expert witness in a number of extradition cases before the English and Cypriot courts. In the period immediately before Christmas 2007 the City of Westminster Magistrates Court (District Judge Nicholas Evans) refused extradition in the case of Russian Federation v Azarov, for which I also provided evidence for the defendant. I also gave evidence in late December 2007 in the extradition request against Vladislav Kartashov in the District Court of Nicosia, and was cross-examined on my expert report for six hours.
  • In 2008 I gave evidence in London in further extradition cases concerning the Russian Federation. On 8 December 2008 Senior District Judge Workman gave judgment in the case of Russian Federation v Nikitin and Skarga. The defendants in that case were not connected with YUKOS but with shipping interests. On the basis of my evidence and that of Professor Richard Sakwa, Judge Workman held that the prosecution was “mounted of political and economic reasons” and was barred. On the question of diplomatic assurances submitted by the Russian Government, he concluded on the basis of my evidence that “because I find that the charges preferred in this case are politically motivated I have concluded that it is more likely than not that the assurances offered will not be met.” He further held “By virtue of the influences which can be exerted both over the court and over the rights of defence advocates, I am satisfied that there is a strong likelihood of breach of Article 6 of the European Convention on Human Rights.”
  • On 22 December 2008 Judge Workman delivered his judgment in the case of Russian Federation v Izmaylov and Mikhaylyuk and reached very similar conclusions. He said as follows:

“16. The evidence of both Professor Bowring and Professor Sakwa is authoritative and compelling. It is, in my view, based on sound foundation based upon the historical evidence of the YUKOS and other cases. On that basis of that unrebutted evidence, I am satisfied that it is more likely than not that the request for their extradition has been made for the purpose of prosecuting them or punishing them on account of their political opinions.

  1. For the same reasons I am satisfied that the defendants might, if returned, be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their political opinions.”
  • In early 2009 I gave evidence before Judge Workman once more in the case of Russian Federation v Makhlay and Makarov. On 8 May 2009 Judge Workman discharged both defendants referring to my “clear, balanced and well informed evidence” and accepting the conclusion I reached. He found that their prosecutions were politically inspired and that there was a risk of prejudice at trial on account of their political opinions.

“On the uncontested evidence before me, I am satisfied that these extradition proceedings are brought for the purpose of prosecuting or punishing the defendants for their political opinions and that they will be prejudiced at their trial or punished, detained or restricted in their personal liberty by reason of their political opinions. Both defendants extradition is therefore barred by reason of extraneous considerations under Section 81(a) and (b).”

  • It is worth referring to an extract from his judgement which illustrates the clear evidence of political interference in the judicial process:

“Judge Valyavina is a Judge of the Supreme Arbitration Court in Russia. In May 2008, she gave evidence before a Russian Court in relation to a defamation case. In the transcript of those proceedings, she said:- “At the beginning of my work in the summer of2005, I received a case from the Presiding Judge of the Second Judicial Bench with the message that other Judges did not want to examine it because they feared being pressured, and so the only person that could examine the case was myself. The case was connected with the Tolyatti Azot Corporation. I undertook the supervision of this case ….. I then issued a ruling to request the case file and immediately afterwards a call came from Boyev, then he came for a meeting. I thought this was connected with Human Resources and did not expect the conversation to turn out the way it did. It was a long conversation and he spoke in length about state interests, adding that I was probably failing to understand them correctly, and when we began to speak of this particular case, I reminded him that I was the Judge in this case and that he had no right to give me instructions. He was asking me to annul my determinations in this case. We did not discuss the details of the case, on the contrary, he said “Eleanor Valyavina, you still have to be reappointed!” Deputy Presiding Judges are appointed for six years and have a right to work for two six-year terms in a row ….. Boyev is present as the representative of the Presidential Administration and can gather material and voice his opinion including a negative opinion. The speed with which Judges are appointed depends on objections from people like him and Judges are afraid that they will not get what they should or what they have earned, if they take such principled positions.” This unchallenged evidence clearly implicates officials from the Presidential Administration in an attempt to influence a Judges decision in respect of the TOAZ Corporation.”

  • I also acted as an expert witness in Cherney v. Deripaska [2008] EWHC 1530 (Comm)[27] on the issue of forum non conveniens, whether Mr Cherney would have the prospect of a fair trial against Mr Deripaska in Russia, or whether he should have a trial in England. At para 202 Christopher Clarke J said at para 202:

“Mr Cherney instructed Professor Bowring, the Professor of Law at Birkbeck College.  He is a fluent Russian speaker with a particular interest in the independence of the Russian judiciary. It is apparent from his curriculum vitae that he is well qualified to give such a report, having extensive experience of the workings of the Russian legal system, having advised UK Government departments and European and other bodies on the Russian legal system and on access to justice in Russia, and having carried out training for senior Russian judges and administrators and worked with senior figures in the system. He has given expert evidence in a number of extradition cases. I am satisfied that he has an open minded attitude to the system, of which, as it happens he appears to have been both the victim and the beneficiary.”

  • In his judgment Christopher Clarke J concluded:

“264. Taking all those considerations into account, I am persuaded that the risks inherent in a trial in Russia (assassination, arrest on trumped up charges and lack of a fair trial) are sufficient to make England the forum in which the case can most suitably be tried in the interests of both parties and the ends of justice and, accordingly, the proper place for the determination of this claim.

265 I shall, therefore, give permission for the claim form to be served outside the jurisdiction.”

  • The judgment of Christopher Clarke J was upheld in the Court of Appeal.
  • In May 2010 I gave evidence in London before Judge Workman in the case of Russian Federation v Yuri Shefler. On 8th June 2010 he discharged the defendant, finding that the prosecution and extradition request were politically motivated, that the defendant would be prejudiced on his return on account of his imputed political opinions, and that his rights under the European Convention on Human Rights would be violated. My evidence to that effect was therefore accepted. Judge Workman said this at para 34 of his judgment:

“Both Professor Bowring and Professor Sakwa gave evidence to me about the independence of the Judiciary in Moscow.  Both Professors have given evidence to me in the past and contrary to the assertions of the Russian Federation in their response to the defence evidence, they both have an extensive knowledge and expertise and both have been extremely careful to see that their view is balanced and objective.  It is clear that their misgivings about the independence of the Judiciary are specific and well documented.”

  • Judge Workman said the following as to political motivation:

“31. I note that the Russian Federation has (with one exception) been unsuccessful in recovering in civil proceedings the international trademarks vested in the defendant’s company. I conclude that the Government now has only limited opportunities to take control of these trademarks and it would appear that one effective way to succeed with their political aims would be to secure the defendant’s return to Russia and incarceration.

  1. I have therefore concluded that there are substantial grounds for thinking that this extradition request is made for the purpose of prosecuting or punishing the defendant on account of his political opinions.”
  • Following a successful application in the Russian courts for judicial review of the decision to exclude me, the circumstances of which are set out above, I have returned to Russia on many occasions.
  • In February 2007 I acted, with the late Lord Slynn of Hadley and others, as one of the judges in the Russian round of the Philip C. Jessup international law moot court competition (the Jessup Competition). I returned in September 2007 to chair the International Steering Group of EHRAC in Moscow, and to train advocates from Chechnya and other regions of Russia in Pyatigorsk. In November 2007, as noted above, I travelled to Astrakhan on the Caspian Sea at the invitation of the Judicial Department of the Supreme Court of the Russian Federation in order to train judges of the district and appeal (Oblast) courts.
  • In February 2008 I returned once more to judge the Jessup Competition. I was a key speaker at a conference at the Moscow State Institute of International Relations (MGIMO) in March 2008. In June 2008, at the invitation of the Federal Service for Execution of Sentences (FSIN) of the Russian Federation, I took part as lead expert for Directorate General of Human Rights and Legal Affairs of the Council of Europe, at the Conference in Pskov, Russia: “The penitentiary system of the Russian Federation in the light of European standards”. In September 2008 I chaired the International Steering Group of the European Human Rights Advocacy Centre (EHRAC) in Moscow and carried out training of the project’s Russian lawyers from Chechnya and other regions.
  • I was invited in March 2009 by the Ministry of Foreign Affairs of the Russian Federation to accompany the High Commissioner on National Minorities of the Organisation for Security and Cooperation in Europe (OSCE) as his expert to investigate the situation of the Ukrainian minority in Russia (we returned to Ukraine with respect to the Russian minority in April 2009). We visited Moscow, Ufa (the capital of Bashkortostan) where we met the President of Bashkortostan, and Voronezh Oblast, on the border with Ukraine.
  • I returned to Russia twice in September 2009. I was a key speaker at a seminar marking the start of a joint Council of Europe and European Union project on minority rights in Russia, on the invitation of the Ministry of Regional Development. Later that month, I chaired once again the International Steering Group of EHRAC, and took part in training activities. I returned again for the minority rights project in November 2009 and February 2010. Also in February 2010 I acted once more as a judge of the Jessup Competition. I returned to Russia to take part in a seminar at the Moscow State Institute of International Relations (connected to the Russian Ministry of Foreign Affairs) in May 2010.
  • In 2010 I travelled to St Petersburg to speak at a conference “Higher Education and Civil Society: A New Social Mission of the University” organised by Smolniy College. It is now a Faculty of St Petersburg State University, the most prestigious university in Russia. In November 2010 I returned first to take part once again in a Working Group meeting of the joint Council of Europe, European Union and the Russian Federation programme “Minorities in Russia: Developing Languages, Culture, Media and Civil Society”, and I gave a paper at the annual conference of the Russian Association of Political Science (RAPN) in Moscow.
  • I returned in January 2011, and January 2012 again as a judge in the Jessup Competition, and in March 2011 and March 2012 I taught a course in the human rights law of the European Union at the Moscow State Institute for International Relations (MGIMO), one of the three leading universities of Russia, connected to the Ministry of Foreign Affairs of the Russian Federation.
  • In 2012 I taught at the universities at Novgorod Velikiy and Kaliningrad, and in 2013 returned for the 10th anniversary of my EHRAC litigation project[28]. I also travelled to Moscow with Sir Henry Brooke (formerly Lord Justice Brooke) for meetings connected with projects of the Slynn Foundation.
  • In January 2014 I was again in Moscow judging the Jessup Competition. My fellow judges included leading Russian lawyers and also Russian Court Registry lawyers at the European Court of Human Rights. I returned to Russia at the end of February 2014 as an expert in a project on constitutional litigation at the Constitutional Court of the Russian Federation, and in May 2014, to teach once again at the Mari State University in Yoshkar-Ola. I also met, in Kazan (the capital of Tatarstan) the founder of the leading Russian NGO “Agora”, Pavel Chikov, and his wife, the advocate Irina Khrunova, who represents one of the “Pussy Riot” defendants. “Agora” has now been placed against its will on the “Foreign Agents” list.
  • In October 2014 I took part as a project expert in a round table meeting in Moscow at the Institute of Law and Public Policy for the project on litigation at the Constitutional Court, with Tamara Morshchakov, the former Deputy Chairman of the Constitutional Court and now an outspoken critic of the regime’s legal and judicial policy, and Anatoly Kovler, until recently the Russian judge at the European Court of Human Rights.
  • In November 2014 I was invited by the former Minister of Finance, Mr Kudrin, to take part in the II All-Russia Civil Forum, with 700 NGO representatives from all over Russia. I returned inDecember 2014 to teach for the fourth time in Yoshkar-Ola, and to meet in Kazan two clients in an ongoing case (of confession obtained by torture) at the European Court of Human Rights. I once again acted as a judge in the Jessup Competition in Moscow in January 2015.
  • In April 2015 I lectured at the conference “Problems of the reform of the penitentiary system of Russia”, organised in Yekaterinburg by Sutyazhnik, the Yekaterinburg human rights NGO founded 20 years ago. I worked with them since 1997. Participants in the conference were members of ONK, Public Independent NGO Prison Monitoring Commissions, from all over Russia.
  • In June 2015 I visited once again Yoshkar-Ola, in the Republic of Marii El, Russia, to work with the Law Faculty at the State University. I also had two meetings with the local human rights NGO “Chelovek i Zakon” (Person and Law), which has been placed on Register of Foreign Agents under President Putin’s Law on Foreign Agents, and is taking a case to the European Court of Human Rights. I also visited Kazan, the capital of the Republic of Tatarstan, and met once again with Pavel Chikov the founder and head of the “Agora” and his wife Irina Khrunova, an advocate who is taking many cases to Strasbourg.
  • In July 2015 I participated in a Workshop at the Institute for Law and Public Policy (ILPP) in Moscow on effective litigation at the Constitutional Court of the Russian Federation.
  • In November 2015 I was invited to participate in the III All-Russian Civic Forum in Moscow by the former Minister of Finance, Mr Kudrin, whose acquaintance I made there. The Forum was attended by 1,200 delegates from all over Russia, including many leading judges and lawyers who are well known to me.
  • In February 2016 I once again acted as a judge in the Jessup Competition, and delivered lectures in events at Moscow State University and the National Research University – Higher School of Economics.
  • I returned to Moscow at the end of June 2016 to take part in events at ILPP. During that visit I met colleagues in order to discuss the applicability of transitional justice in Russia – I am a founder and on the Advisory Board of the Transitional Justice Institute at Ulster University in Belfast – and unknown to us we were filmed in the café where we met by the FSB, and this was then used as part of a scandalous programme on NTV, known to be the “voice of the FSB”, smearing the opposition for the forthcoming parliamentary elections. My presence was supposed to indicate that the Russian opposition is sponsored by the United Kingdom’s intelligence services. A photograph of me was used to publicise the programme. [29]
  • Notwithstanding this unwanted fame, I was again granted visas to visit Russia, in November 2016 to participate once again at the invitation of Mr Kudrin, the former Minister of Finance, in the All-Russian Civic Forum, and then to judge, for the 15th time, the Jessup Competition in Moscow, in February 2017. The Russian team I judged went on the win the world International finals – 90 countries – in Washington DC. The team members are now carrying out very important law reform work in Russia.
  • I returned in August 2017 to Russia to carry out human rights training and to lecture in Yekaterinburg, and met in Moscow with the leading human rights defender and prison reformed Lev Ponomaryov. I returned to Russia to present a paper in St Petersburg in October 2017, and to Yekaterinburg to teach at the end of October.
  • In 2018 I have once again acted as a judge in the Jessup Competition in Moscow, and have taken part in academic conferences in Moscow and St Petersburg. I returned to participate in conferences in Moscow and St Petersburg in May 2018. I will speak in a conference at Ivanovo State University in September 2018, so long, of course, as I am granted entry to Russia given the increasingly bad relations between Russia and the UK.
  • I visited Russia several times in 2019, for the Jessup competition, at which I had the honour to preside as President of the court in the Russian National Final, and also for academic conferences. My most recent visit was again for the Jessup competition in January-February 2020.
  • In all these visits I renew my acquaintance with legal practitioners, judges, and human rights activists.

 

[1] It is unfortunate that the U.S. chose to use this term, which had been coined by the German authorities prior to and during World War Two. See “Verschärfte Vernehmung”, The Atlantic (May 29, 2007), at https://www.theatlantic.com/daily-dish/archive/2007/05/-versch-auml-rfte-vernehmung/228158/ (accessed Nov. 21, 2019) (the phrase translates as enhanced interrogation, and while “the Nazis were adamant that their ‘enhanced interrogation techniques’ would be carefully restricted and controlled, monitored by an elite professional staff” the techniques they used were later deemed in some cases to be war crimes worthy of capital punishment).

[2] The Authorization for Use of Military Force (AUMF), Pub. L. 107-40, codified at 115 Stat. 224 and passed as S.J.Res. 23 by the United States Congress on September 14, 2001.

[3] No.35-ФЗ of 6 March 2006, at  http://www.consultant.ru/document/cons_doc_LAW_58840/

[4] Федеральный закон “О внесении изменений в отдельные законодательные акты Российской Федерации в связи с принятием Федерального закона “О ратификации конвенции совета Европы о предупреждении терроризма” и Федерального закона “О противодействии терроризму” от 27.07.2006 N 153-ФЗ (последняя редакция) Law no. FZ 153, first reading on 19 April 2006, signed by the President on 27 July 2006. http://www.consultant.ru/document/cons_doc_LAW_61802/ (Amended in 2011 and in 2016 by 06.07.2016 N 375-ФЗ).

[5] “Right to retribution (возмездие)” at http://www.rg.ru/2006/07/03/pravo.html.

[6] See http://news.bbc.co.uk/2/hi/middle_east/5118702.stm

[7] http://www.newsru.com/russia/11jan2007/ng.html; https://novayagazeta.ru/articles/2007/01/11/35242-zapasnye-organy.

[8] See http://news.bbc.co.uk/1/hi/world/europe/6035133.stm

[9] See, e.g., John W. Whitehead, Terror Tuesdays, Kill Lists And Drones: Has The President Become A Law Unto Himself? (June 20, 2012), at

https://www.huffpost.com/entry/terror-tuesdays-kill-list_b_1606371

[10] Shilpa Jindia, As Eight Guantánamo Detainees Ask For Freedom, The Trump Administration Says It Could Hold Them For 100 Years, The Intercept (July 12, 2018), https://theintercept.com/2018/07/12/trump-guantanamo-detainees-release/.

[11] Kimberly Amadeo, War on Terror Facts, Costs, and Timeline (June 25, 2019), at https://www.thebalance.com/war-on-terror-facts-costs-timeline-3306300.

[12] Heidi Black, Jason Leipold, Jane Bradley & Alex Campbell, Poison in the System, BuzzFeed (June 12, 2017), at https://www.buzzfeed.com/heidiblake/poison-in-the-system?utm_term=.msXLxak6E3#.nxgMkPBpVz.

[13] Heidi Black, Jason Leipold, Jane Bradley & Alex Campbell, From Russian with Blood, BuzzFeed (June 15, 2017), at https://www.buzzfeed.com/heidiblake/from-russia-with-blood-14-suspected-hits-on-british-soil.

[14] http://www.telegraph.co.uk/news/uknews/law-and-order/11880005/Russian-spies-may-have-killed-supergrass-Alexander-Perepilichnyy-inquest-hears.html.

[15] https://inews.co.uk/essentials/news/suspected-hit-man-target-list-questioned-british-police-urgently-perepilichnyy-case/.

[16] Heidi Blake From Russia with Blood: Putin’s Ruthless Killing Campaign and Secret War on the West (London, William Collins, 2019)

[17] Id. at 257-263.

[18] Id. at 266.

[19] Id. at 276.

[20] Id. at 281-293.

[21] Id. at 288.

[22] Id. at 239-245.

[23] Id. at 244.

[24] See Ashley Cowburn, Theresa May Says It’s ‘Highly Likely That Russia Was Responsible’ For Poisoning Spy Sergei Skripal, Independent (March 12, 2018), at https://www.independent.co.uk/news/uk/politics/theresa-may-russia-poisoning-spy-nerve-agent-sergei-skripal-salisbury-elections-crimea-a8252381.html and https://www.gov.uk/government/speeches/pm-commons-statement-on-salisbury-incident-12-march-2018

[25]     A full list of my publications is to be found at my Birbeck web-site,

http://www.bbk.ac.uk/law/our-staff/department-of-law/academic-staff/bowring

[26]  http://fieldcourt.co.uk/barrister/bill-bowring/

[27]     http://www.bailii.org/ew/cases/EWHC/Comm/2008/1530.html

[28] http://www.ehrac.org.uk/

[29]     http://www.ntv.ru/video/1308544/

A Lawyer’s View on Russia

Supplement: SCRSS Digest, September 2019

Contents

Introduction

Law, Rights & Ideology in Russia

The New Russian FBI – President Putin’s Bloodhound

Gay Rights in Russia

Russian Prisons: From GULAG to FSIN

The First Soviet Constitutions, Self- Determination & the Right to Secession

Russia’s Criminal Justice System: From Tsar Alexander II to President Putin 

This special supplement celebrates the 70th birthday this year of the SCRSS President, Bill Bowring. Professor Bowring has taught international law, human rights, and Soviet and Russian law at Birkbeck College, University of London, since 2006; he is a Barrister, taking cases to the Strasbourg Court; and a fluent Russian speaker and regular visitor to Russia.

Introduction
By Professor Bill Bowring
I am not the first lawyer to serve as President of the SCRSS (and its predecessor the SCR) since the Society was founded in 1924. Indeed, I am the fourth. I have been President since 19 May 2007 and was also Chair from 1989 to 1997. DN Pritt QC was Chair of the SCR for eighteen years from 1937 to 1955; a year later he became President, in which capacity he served for sixteen years until his death in 1972 at the age of 84. John Platts-Mills QC became President in July 1989 and served until his death in 2001, followed by the solicitor Jack Gaster who died on 12 March 2007 at the age of 99.
All four lawyers have been proud members of the Haldane Society of Socialist Lawyers, founded in 1929 and named after Viscount Richard Haldane. As a Liberal, Haldane had been Asquith’s Lord Chancellor from 1912 to 1915. He was hounded out of office by the Daily Mail, moved leftwards politically and was Labour’s first Lord Chancellor in the short-lived government of 1924. By 1929, when Labour was elected again, Haldane himself was dead. A small group of barristers formed the Haldane Club to provide legal expertise to the government, trade unions and the co-operative movement. Ever since, the Haldane Society has been a legal thorn in the side of every government, lobbying for law reforms, civil liberties and access to justice for all; supporting national liberation movements against colonialism; providing unstinting support to the trade union movement; and campaigning against racism and all forms of discrimination.
I became involved in the SCR (Society for Cultural Relations with the USSR) as a result of serving as an elected Lambeth Labour Councillor from 1978 to 1986, first for Herne Hill Ward, then for Angell. In 1986, together with my comrades on the Council, I was surcharged £120,000 and banned from holding public office for five years for “wilful misconduct”, namely protesting against Thatcher’s cuts. I joined the Haldane Society in 1986, served as its Chair in 1991–92, and am now its International Secretary. I am President of the European Lawyers for Democracy and Human Rights, of which Haldane was a founder member in 1992.
My first visit to the USSR was in 1983 as part of the long-standing (since 1946) town-twinning relationship between Lambeth and the former Moskvoretsky District in Moscow. I started learning Russian in 1985 through the SCR, and joined the SCR Council in 1987.
The articles that follow are edited versions of some of my contributions to the SCRSS Digest between 2012 and 2019.

Law, Rights and Ideology in Russia
SCRSS Digest, Spring 2012
The usual response, if the words ‘Russia’ and ‘ideology’ are put together, is to think of Marxism-Leninism or Scientific Communism. And my book Law, Rights and Ideology in Russia (Routledge 2013) explores, as I show below, the relationship of the ideology of the USSR to law and rights.
In fact, ideology, as the system of ideas legitimating Russia’s statehood and development, has much deeper roots and has taken a wide variety of forms. The ideology of the Putin regime and the ideas of ‘sovereignty’ and ‘sovereign democracy’ developed by the regime’s chief ideologist, Vladislav Surkov, have, as I explore below, surprising foundations.
A constant thread in Russian ideology is that of ‘messianism’, the idea that Russia has a special or sacred task of saving the world. With the fall of Constantinople in 1453, there was a growing tendency to refer to Moscow as the ‘Third Rome’. In 1510, during the reign of Henry VIII of England, the Russian Orthodox monk Filofey composed a panegyric letter to Vasily III (1479–33) in which he warned: “And now I say unto Thee, take care and take heed, pious Tsar: all the empires of Christendom are united in Thine. For two Romes have fallen, and the Third exists and there will not be a fourth. Thy Christian Empire, according to the great theologian, will not pass away […].” Moscow thus became, symbolically, the ‘Third Rome’ and the ‘Second Jerusalem’, inheritor of both the Roman Empire and the Christian Church.
The double-headed eagle was the symbol of the late Byzantine Empire, and symbolised the unity between the Orthodox Church and the Empire. It was adopted by Ivan III when he married the Byzantine princess Sophia Paleologue, whose uncle Constantine was the last Byzantine Emperor. It is the state symbol of Russia today.
One of the factors that precipitated the Crimean War was the Russian Empire’s claim to lead and protect the Christians of the Ottoman Empire, to reclaim Hagia Sophia in Istanbul as the ‘Mother Church’, and to re-establish Constantinople as the capital of Orthodoxy connecting Moscow to Jerusalem. Part of the reason for the downfall of Nicholas II in World War I was his ambition, egged on by Rasputin, to reclaim Constantinople for Orthodox Christendom.
Soviet ideology, too, had more than a trace of messianism: Soviet leadership of the Third International was intended – at least at first – to save the world from capitalism.
In the twentieth century the project of ‘Eurasianism’, first mooted by Count Trubetskoy in the White emigration after 1917, has become an important source of the ideology of the Putin regime. Aleksandr Dugin (born 1962), started as a propagandist of ‘Russian fascism’ and was deeply engaged in occultism. He summed up his ‘Eurasianism’ in 1997 as follows: “In principle, Eurasia and our space, the heartland Russia, remain the staging area of a new anti-bourgeois, anti-American revolution […] The new Eurasian empire will be constructed on the fundamental principle of the common enemy: the rejection of Atlanticism […] and the refusal to allow liberal values to dominate us.” Eurasianism is intended to unite the traditional religions of Russia – Orthodoxy, Islam, Judaism and
Buddhism – in common opposition to Western materialism and consumerism.
So, it is no surprise that many of the leading legal philosophers of Russia have been motivated by religious concerns. One of the most influential to this day is Vladimir Solovyov (1853–1900). His objective was the unification of all Christians, followed by a messianic Kingdom of God on earth, with political motivation under the Russian Tsar.
There are two other important sources of ideology affecting law and rights in Russia. First, the first full professor of law in Russia was Semyon Desnitsky (1740–89). He was sent to study at the University of Glasgow from 1760 to 1767 at the time of the Scottish Enlightenment, attended lectures by Adam Smith, successfully defended his doctorate on civil and church law, and was Professor of Law at Moscow University from 1767 to 1787. He was the first to teach in Russian rather than German. He translated William Blackstone’s Commentaries on the Laws of England into Russian. As a result of his inspiration, the academic discipline of law in Russia has remained strong to the present day.
Second, Marx and Engels both exerted great influence. Marx mastered the Russian language in his later years and entered into correspondence with the Russian Narodniks, including Vera Zasulich. In his letter to her of March 1881 he took very seriously the role of the Russian peasant and the ‘rural commune’. Marx wrote: “Theoretically speaking, then, the Russian ‘rural commune’ can preserve itself by developing its basis, the common ownership of land, and by eliminating the principle of private property which it also implies […] It can gain possession of the fruits with which capitalist production has enriched mankind, without passing through the capitalist regime […].”
Engels was the primary influence in relation to law. The article he wrote with Karl Kautsky in 1887, ‘Juridical Socialism’, was the touchstone for the Russian social democrats. Engels emphasised that the world view of the bourgeoisie was the ‘juridical world view’. He endorsed the dominant theory of legal positivism and saw law as an instrument of class domination. This view was taken up by Georgy Plekhanov and other social democrats and, after the 1905 Revolution, provoked a spirited response by the Russian ex-Marxist, liberal and religious legal theorists in the famous collection Vekhi (Landmarks, republished in paperback in 2011), in which writers such as Peter Struve and Bogdan Kistyakovsky argued for liberal values. Lenin denounced Vekhi as “an encyclopaedia of liberal renegacy”. In the early Soviet period there was a strenuous theoretical battle between Yevgeny Pashukanis, who held that law, like the state, must wither away under socialism, and Peter Stuchka, for whom the USSR must develop specifically socialist law. This became the USSR’s position, although the legal codes of the USSR were, in fact, based on German models.
Vladislav Surkov (born 1964) has emerged as the pre-eminent ideologist of the Putin regime. He was responsible for the doctrines of ‘sovereignty’ and ‘sovereign democracy’. In 2006 a collection entitled Sovereignty appeared, edited by the ‘young conservative’ Nikita Garadzha, with essays by Putin, Medvedev, Surkov and others. The key essay in this collection is ‘Sovereignty as a Political Choice’ by Aleksandr Filippov, the chief Russian translator and exponent of the Nazi legal theorist Carl Schmitt. Indeed, the whole collection is infused with Schmitt’s ideas. Surkov and his circle have strongly influenced senior figures in the judiciary, especially Valery Zorkin, the chairman of the Constitutional Court of the Russian Federation. Zorkin’s speeches and articles make frequent reference to ‘sovereignty’ in the special sense given to it by the Putin regime. Their main targets are liberalism and what is seen as the Western conception of human rights.

The New Russian FBI – President Putin’s Bloodhound
SCRSS Digest, Spring 2013
The fight against crime and, especially, corruption is a top priority for the Russian state. In the past two years Russia has taken steps to create its own FBI (Federal Bureau of Investigation in the USA). This is the Investigative Committee of the Russian Federation (ICRF) and, since September 2010, it has been completely independent of
its former parent, the Office of the General Prosecutor of the Russian Federation (the Prokuratura).
The history of the ICRF is as follows. In 1990, the last year of the USSR, 90 per cent of criminal investigations were carried out by investigators of the Ministry of the Interior (the police) and 9.1 per cent by investigators of the Prokuratura. The remainder were carried out by the KGB.
Since 1960 (Khrushchev’s ‘Thaw’) there had been a campaign to detach investigation from the police and in April 1990 the first attempt was made to legislate for a separate Investigative Committee. In 1993 a draft law was presented to the Supreme Soviet of the Russian Federation, but the abrogation of the Supreme Soviet meant that the law was never enacted.
Only in June and July 2007, in President Putin’s second term, was it possible to enact two new laws that effectively took away the investigative function from the Prokuratura. However, this legislation created an ‘Investigative Committee attached to the Prokuratura’, headed by the First Deputy General Prosecutor of the Russian Federation, Aleksandr Bastrykin, whose investigators were still part of the Prokuratura. A complicating factor was that, despite the apparent subordination of the Investigative Committee to the Prokuratura, both the Chairman of the Investigative Committee and the General Prosecutor were appointed by the Federation Council (the upper house of parliament) on the nomination of the President, and thus had equal status.
Mr Bastrykin is one of President Putin’s Leningrad protégés. He was born in 1953 and started work in the Soviet police. He was the senior member of the group in which Vladimir Putin studied law at Leningrad State University. They graduated together in 1975.
Mr Bastrykin made a brilliant career in the Leningrad State University Young Communist League (Komsomol). He then rose up through the ranks of the Prokuratura. The close relations he formed with President Putin at university have continued ever since. He worked in Leningrad / St Petersburg from 1975 to 2006, was an appointee and long-standing friend of Mr Putin, was close to Mr Putin’s colleague Igor Sechin, and on 7 September 2007 was appointed by President Putin as Chairman of the new Investigative Committee ‘attached to’ the Prokuratura. Mr Bastrykin has the rank of Colonel-General of Justice. The ICRF immediately came into conflict with its ‘parent’, the Prokuratura, headed by Yuri Chaika. In May 2008 Mr Bastrykin initiated a criminal case against the First Deputy General Prosecutor, Aleksandr Buksman (Mr Chaika’s closest deputy and colleague). Mr Chaika countermanded Mr Bastrykin’s order, and relations between them became very bad indeed. The conflict was resolved only in the Supreme Court, which in March 2009 ruled that Mr Bastrykin must rigorously obey any order given by Mr Chaika. However, even though he lost in court, Mr Bastrykin soon achieved independence from the Prokuratura. On 15 January 2011 a new law established the Committee as an independent agency outside the Prokuratura, with a view to ‘raising the objectivity of investigation’. In fact, many commentators would say that investigation has been brought under closer control by the regime.
The conflict burst out again in spring 2011 when the ICRF launched criminal investigations into a number of senior Moscow and Moscow oblast’ prosecutors, accusing them of providing krysha (paid protection), for a massive underground illegal gambling business. One of the prosecutors named was Mr Chaika’s son. Intense mass media interest in the conflict continued, and on 14 June 2012 Mr Bastrykin felt obliged to tell journalists that there was no such conflict between him and Mr Chaika. However, the fact that both are appointed by the President and have clearly overlapping competences makes conflict inevitable. Another major scandal broke in June 2012. This concerned alleged threats made by Mr Bastrykhin to a journalist of the critical and independent weekly newspaper Novaya Gazeta, owned by Aleksandr Lebedev, a former KGB agent based for five years in London who now owns the London Evening Standard and The Independent. In an open letter published on 13 June in the newspaper and on its website, the Chief Editor of Novaya Gazeta, Dmitri Muratov, accused Mr Bastrykin of threatening the senior editor, Sergei Sokolov.
In an interview in Izvestiya on 14 June Mr Bastrykin denied the allegation. However, on the same day he met Mr Muratov and apologised.
In 2012 Mr Bastrykin was playing the leading role in the regime’s reaction to Mr Navalny, whose renaming of Putin’s United Russia party as the ‘Party of Thieves and Rogues’ (Partiya Vorov i Zhulikov) entered the popular discourse. On 18 December 2012 it was announced on the Investigative Committee’s website that Mr Navalny was to face yet another criminal investigation.
Interviewed on the independent radio station Ekho Moskvy, Mr Navalny was asked whether he now had to choose between prison and emigration. He answered: “Of course, it will serve the interests of the regime much better if I am a political émigré, rather than a political prisoner. Because they will always be able to say – he fled. I do not intend to flee anywhere. Because I am absolutely innocent and I spit on what the investigators Markin, Bastrykin, Putin and ‘their own’ court have to say. I know that if all ordinary and normal people look at these documents and case materials, they will say that Navalny is innocent, naturally. And the opinions of those people are more valuable to me.”

Gay Rights in Russia
SCRSS Digest, No 2, Summer 2015
Homosexuality is not a criminal offence in Russia – since 1993. In 1999 it ceased to be regarded as a mental illness.
Indeed, Russian history has many famous homosexuals – the poet Alexei Apukhtin; Sergei Diaghilev, the founder of the Ballets Russes; and, of course, the composer Pyotr Ilyich Tchaikovsky. The younger brother of Tsar Alexander III, Grand Duke Sergei Alexandrovich Romanov, was famous for his homosexual exploits while serving as Governor of Moscow from 1891 to 1905.
Homosexuality was legalised following the Bolshevik Revolution in 1917. But in 1933, under Stalin, Article 121 of the Criminal Code made male homosexuality a crime punishable by up to five years of imprisonment with hard labour. This anti-gay law, like the prohibition of abortion at the same time, was strongly supported by the Russian Orthodox Church (ROC), which began to revive following the enactment of the 1936 USSR Constitution, Article 124 of which declared freedom of religion. The Church was fully rehabilitated by Stalin in 1943 to play a decisive role in the Great Patriotic War. The ROC is to this day a fierce opponent of gay rights.
In 2006 gay activists attempted to organise the first Gay Pride march in Moscow, but this was banned by the Moscow city authorities and marchers were forcibly dispersed. Applications to hold a Gay Pride march in Moscow have been rejected every year since. On 21 May 2015 the city once again rejected an application to hold a march on 30 May 2015. RIA Novosti news agency quoted the Mayor’s spokesman Alexey Mayorov as having said “[w]e have warned the organisers that the demonstration will not be authorised” and told them of the risks, should they ignore the ban. No reasons for the ban were given.
The gay rights activist Peter Tatchell was present with other foreign observers in 2006 and said: “We were immediately set upon by about 100 fascist thugs and religious fanatics who began pushing, punching and kicking us.” In 2007 Tatchell and the German parliamentarian Volker Beck were punched in the face by anti-gay protesters.
In 2007, 2008 and 2009 the leading Russian gay activist Nikolay Alekseyev applied to the European Court of Human Rights, complaining of a violation of his right to peaceful assembly on account of the repeated ban on public events he had organised in 2006, 2007 and 2008. He also complained that he had not had an effective remedy against the alleged violation of his freedom of assembly and that the Moscow authorities’ treatment of his applications to hold the events had been discriminatory.
He argued that his right under Article 30 of the Constitution of the Russian Federation, which provides that everyone has the right to freedom of association and peaceful assembly, had been violated. Article 55 (3) provides that rights and freedoms may be restricted by federal laws for the protection of constitutional principles, public morals, health, and the rights and lawful interests of others, and to ensure the defence and security of the State. The 2004 Federal Law On Assemblies, Meetings, Demonstrations, Marches and Picketing should, if applied properly, permit Gay Pride marches where application has been made beforehand.
On 21 October 2010 the Strasbourg Court unanimously – including the great Russian judge Anatoly Kovler – concluded that the ban on the events organised by Mr Alekseyev did not correspond to a pressing social need and was thus not necessary in a democratic society. Furthermore, he had been denied an effective legal remedy, and he had suffered discrimination.
This resounding judgment did not lead to a change in the policy of the Moscow authorities. Many more complaints to the European Court of Human Rights are pending. It is highly likely that the Court will adopt a ‘pilot judgment’ against Russia, setting out detailed instructions designed to resolve what is clearly a systemic issue.
On 13 December 2010 the Federal Law On Protection of Children from Information Leading to Harm to their Health and Development”, promoted by Yelena Mizulina, came into force, and has been amended – and made more severe – by amendments in 2012 and 2013. The 2013 amendment added “propaganda” promoting “non-traditional sexual relationships” as a class of harmful content under the Law. The Code of Administrative Misdemeanours (KOAP) provides by Article 6.17 for punishment of violation of the Law by large fines. Yelena Mizulina is the chairperson of the Russian Duma’s Committee on Family, Women and Children. She is the Russian Mary Whitehouse, a champion of high moral standards who promotes legislative initiatives to improve the morality of Russian society.
Nevertheless, there were few prosecutions. Here are two examples. In December 2013 Mr Alexeyev and Yaroslav Yevtushenko picketed outside a children’s library in Arkhangelsk holding banners that read: “Gays aren’t made, they’re born!” The two were fined 4,000 roubles and their appeal was rejected. The activist Dmitry Isakov protested the law in Kazan. Several months later, he was summoned to court after a teenager in Arkhangelsk had seen photos of his protest online and filed a complaint. Isakov was fined 4,000 roubles (about £50) in January 2014.
Every year 17 May is the International Day Against Homophobia, Transphobia and Biphobia. That date was chosen to commemorate the decision to remove homosexuality from the International Classification of Diseases of the World Health Organization (WHO) in 1990.
On 17 May 2015 various events devoted to the International Day took place all over the world. In Russia applications to hold LGBT pickets or demonstrations are highly likely to be rejected by the local authorities. Activists therefore organised ‘rainbow flash mobs’, and these and other events took place in sixteen Russian cities. Most rallies took place without serious incidents.

Russian Prisons: From GULAG to FSIN
SCRSS Digest, No 1, Spring 2017
On 8 December 2016 President Putin met his Council for Civil Society and Human Rights, which includes several leading Russian human rights activists and prison reformers. Some of them have been active in the independent prison Public Monitoring Commission (ONK), created in 2008 during Mr Medvedev’s presidency. The ONK, inspired by the British system of Prison Visitors, has rights to visit all places of detention, interview prisoners and report on conditions.
One of the members of the Council, the veteran human rights defender Ludmila Alekseeva (founder of the Moscow Helsinki Group), raised the issue of controversial recent elections to the new fourth composition of the ONK by the Civic Chamber of the Russian Federation. President Putin replied that he agreed with her on every point. She was followed by the journalist and former ONK member Elena Masyuk who made a forceful presentation about the fate of the ONK, and the attempted legal proceedings by her and others to overturn the Civic Chamber’s decision. She had written that the Civic Chamber was replacing all experts on the penitentiary system and human rights activists with unknowns from the penitentiary system itself, as well as former criminals. President Putin also agreed with her.
On 3 January 2017 President Putin published a list of orders (poruchenii) arising from the meeting of 8 December. One of these ordered the General Prosecutor of the Russian Federation Yuri Chaika to check the compliance of the Federal Penitentiary Service (FSIN) with public control of guarantees for human rights in prisons. He also ordered the Civic Chamber, together with the Council for Civil Society and Human Rights and the Federal Ombudsman for Human Rights, to analyse the effectiveness of the mechanism for appointing members of the ONK by the end of March.
What is the background to this? In part, it is the legacy of the GULAG (Chief Directorate of Camps), the USSR’s system of correctional labour camps whose population reached 100,000 in the 1920s, and in which it is estimated that 14 million people spent time between 1929 and 1953. The Russian Federation still has a prison population of more than 633,000, the third highest in the world after the USA with 2,217,947 and China with 1,649,804. In terms of its incarceration rate (the number of prisoners per 100,000 of population), Russia is now eighth in the world, having previously held the highest ranking: its rate is 439, compared with the USA’s 693, and 145 in England and Wales (the highest in Western Europe).
Indeed, Russia has experienced a dramatic fall in prison numbers – from more than 1,000,000 in 2000 (a rate of 729). Russia’s membership of the Council of Europe since 1996 has been one of the main drivers of reform. A condition of membership was transfer of the penitentiary system from the Ministry of the Interior (police and internal armed forces) to the Ministry of Justice, and Russia complied. In 2002 a new Criminal Procedural Code came into force (I was one of the Council of Europe experts working with senior Russian officials on the drafts), requiring judges rather than prosecutors to rule on bail or custody pre-trial. And there is a post-Soviet Criminal Code that has been amended many times. However, most prison officers are former servicemen and the service is highly militarised.
Convicted persons serve their sentences in 717 Correctional Colonies (IK), with compulsory paid work (much less well paid, relatively, than in the USSR). In many cases these are former GULAG camp establishments, in remote parts of Russia. Nearly eight per cent of prisoners are women, and 0.2 per cent are juveniles (under 18 years). The age of criminal responsibility in Russia is 14 years. According to a report published in January 2017, ten per cent of prisoners have HIV and four per cent drug-resistant tuberculosis. Narcotic abuse is rife in Russian prisons. Russia is presently suffering from what is described by officials as an HIV and AIDs epidemic. A major contributor to this crisis is the number of addicts and infected persons released from prison.
Russia’s greatest problem is the system of 217 pre-trial detention prisons called Investigative Isolators (SIZOs), which account for 17 per cent of prisoners. The most famous and notorious are SIZO No 1 (Matrosskaya Tishina), dating from the 1940s and where Mikhail Khodorkovsky was held during his trials, and SIZO No 2 (Butyrka), dating from the eighteenth century. I have visited both. SIZOs, which are obliged to accept every person sent to them by the courts, suffer from chronic and extreme overcrowding.
Since the case of Kalashnikov v Russia in 2002, the European Court of Human Rights had by 2012 ruled against Russia more than eighty times for violations of the right, under Article 3 of the European Convention on Human Rights, not to be subjected by reason of overcrowding to inhuman and degrading treatment. Cells with fifteen beds were at times holding forty-five prisoners, who were obliged to sleep in shifts, with an open toilet in the corner (horrifying conditions described in 1994 by Professor Nigel Rodley, then UN Special Rapporteur on Torture, as comparable only to Dante’s circles of hell or Hieronymus Bosch’s depiction of the sufferings of the damned). In 2012 the Strasbourg Court issued a ‘pilot judgment’ in Ananyev v Russia, ordering Russia to submit an Action Plan for reform of the SIZOs within six months. Russia submitted a Plan in time, but implementation is hampered by shortage of funds and corruption. The head of FSIN from 2009 to 2012, Colonel-General Aleksandr Reimer, was arrested in March 2015 and charged with embezzlement from FSIN on a grand scale. He is still in custody awaiting trial. He was appointed by Mr Medvedev, following the scandal of the death of the anti-corruption lawyer Sergei Magnitsky in custody in November 2009. FSIN is now led by a former intelligence officer.
On 8 January 2017, an article in the daily newspaper Vedomosti compared the responses to a survey on the Russian penitentiary system from 2000 and 2016. In 2000, 82 per cent of respondents said that they knew about problems in the penitentiary system, while 18 per cent did not know. By the end of 2016, 68 per cent said they knew nothing, while 32 per cent knew. This is due not only to the dramatic fall in the number of prisoners, but also to the fact that – with very few exceptions – the mass media in Russia are state-controlled, with news of prison conditions ‘filtered’.
That is why the future of the ONK is so controversial and at the top of the list of President Putin’s recent orders.

The First Soviet Constitutions, Self-Determination and the Right to Secession
SCRSS Digest, No 3, Autumn 2017 (1917 Russian Revolution Centenary Issue)
This article examines the central core of the first constitutions of Soviet Russia and of the USSR, and its continued relevance. Its predecessor, the Tsarist Russian Empire, was a multi-national, multi-ethnic empire whose components had varying degrees of autonomy. It included, among many others, Finland, a Grand Duchy with its own parliament, laws and Lutheran religion; Poland, incorporated into the empire as a result of the nineteenth-century Partitions; the Baltic territories, conquered from Sweden in the Great Northern War; the former Khanates of Kazan and Astrakhan, conquered by Ivan the Terrible in the sixteenth century; and the Khanate of Crimea, annexed by Catherine II in 1783.
Lenin had campaigned from before the outbreak of World War I for the destruction of the Tsarist (and other) empires, and for the principle of the right of nations to self-determination, on which he wrote a substantial book. He drew on the writings of Marx and Engels from the second half of the nineteenth century, as they fought for the right to self-determination of Ireland, Poland, Algeria, India and many others. Lenin’s opponents included Rosa Luxemburg, the Austro-Marxists Otto Bauer and Karl Renner, and the revolutionary Jewish Bund, all of whom rejected the break-up of their respective empires and regarded the right of nations to self-determination as a surrender to bourgeois nationalism. Their aim was to achieve socialism over the whole existing territories of the Russian and Austro-Hungarian Empires.
The first constitutional document of Soviet power, following victory in the October Revolution, was the Declaration of Rights of the Working and Exploited People1, drafted by Lenin on 16 January 1918 and published in Izvestiya on 17 January (note: this article uses New Style dates throughout). On 25 January it was approved by the Third All-Russia Congress of Soviets and subsequently formed the basis of the Soviet Russian Constitution of 1918. According to Chapter 1, Article 1: “Russia is hereby proclaimed a Republic of Soviets of Workers’, Soldiers’ and Peasants’ Deputies. All power, centrally and locally, is vested in these Soviets.” This was immediately followed by Article 2: “The Russian Soviet Republic is established on the principle of a free union of free nations, as a federation of Soviet national republics.”
The phrase “free nations” was crucial. Thus, Chapter 3 welcomed the proclamation of “the complete independence of Finland, commencing the evacuation of troops from Persia, and proclaiming freedom of self-determination for Armenia”.
These principles were put into practice immediately following the Revolution. On 19 December 1917 the Finnish Diet adopted a declaration of Finland’s independence; on 31 December 1917 the Council of People’s Commissars issued a Decree on the State Independence of Finland. At that meeting Lenin personally handed the text of the decree to Finnish Prime Minister Pehr Evind Svinhufvud. Following the signing of the armistice between Soviet Russia and the Central Powers (Germany, Austria-Hungary, Turkey and Bulgaria) at Brest-Litovsk on 15 December 1917, Soviet Russia and Persia worked out a common plan for the withdrawal of Russian troops from Persia. And on 11 January 1918 the Soviet Russian government issued the Decree on Turkish Armenia.
The next step was the Constitution of the Russian Socialist Federated Soviet Republic (RSFSR), which was adopted by the Fifth All-Russian Congress of Soviets on 10 July 1918.2 The Declaration, together with the Constitution, constituted a single fundamental law of the RSFSR. Altogether, they contained 90 articles, covering all constitutional aspects of the new socialist republic.
The following provision was of particular importance: “11. The soviets of those regions which differentiate themselves by a special form of existence and national character may unite in autonomous regional unions, ruled by the local congress of the soviets and their executive organs. These autonomous regional unions participate in the RSFSR upon a Federal basis.”
These were principles as to which Lenin was uncompromising. In 1919 the three Baltic republics of Estonia, Latvia and Lithuania became independent, despite their bourgeois governments, as did Poland, despite the war between it and Soviet Russia. In 1922, towards the end of his life, Lenin came into sharp conflict with Stalin as to whether Georgia should have the right to independence, albeit under a Menshevik government. On 31 December 1922 Lenin wrote in his Testament3: “It is quite natural that in such circumstances [i.e. Stalin’s actions in Georgia] the ‘freedom to secede from the union’ by which we justify ourselves will be a mere scrap of paper, unable to defend the non-Russians from the onslaught of that really Russian man, the Great-Russian chauvinist, in substance a rascal and a tyrant, such as the typical Russian bureaucrat is… Stalin’s haste and his infatuation with pure administration, together with his spite against the notorious ‘nationalist-socialism’ played a fatal role here.”4 Lenin died on 21 January 1924.
On 31 January 1924 the Constitution of the USSR was approved by the Second Congress of Soviets of the USSR.5 This formalised the December 1922 Treaty on the Creation of the USSR between the Russian SFSR, the Ukrainian SSR, the Byelorussian SSR and the Transcaucasian SFSR to form the Union of Soviet Socialist Republics.
It started with a Declaration, which included: “It is only in the camp of the Soviets, only under the conditions of the dictatorship of the proletariat that has grouped around itself the majority of the people, that it has been possible to eliminate the oppression of nationalities… The will of the peoples of the Soviet Republics recently assembled in Congress, where they decided unanimously to form the USSR, is a sure guarantee that this Union is a free federation of peoples equal in rights, that the right to freely withdraw from the Union is assured to each Republic…”
It was on this that Lenin had insisted in 1922. Article 4 proclaimed: “Each one of the member Republics retains the right to freely withdraw from the Union.” Article 6 stated: “The territory of the member Republics cannot be modified without their consent; also, any limitation or modification or suppression of [Article] 4 must have the approval of all the member Republics of the Union.”
Lenin’s principled position remains highly controversial in Russia.
As early as 1991, the year of the collapse of the USSR, Vladimir Putin denounced Lenin. A YouTube clip contains a number of such statements by him over the years.6 On 25 January 2016 Mr Putin accused Lenin of placing an ‘atomic bomb’ under Russia. In Mr Putin’s opinion, Lenin was responsible both for destroying the great Russian Empire, but also preparing the destruction of the great USSR. Thus, Mr Putin was particularly critical of Lenin’s concept of a federative state with its entities having the right to secede, saying it had heavily contributed to the 1991 breakup of the Soviet Union. He added that Lenin was wrong in his dispute with Stalin, who, in Mr Putin’s words, advocated a unitary state model. Mr Putin also said that Lenin’s government had whimsically drawn borders between parts of the USSR, placing Donbass under the Ukrainian jurisdiction in order to increase the percentage of proletariat, in a move Mr Putin called “delirious”.7
When the USSR collapsed in late 1991, the fifteen union republics, all of which had the right to secede under the 1978 Constitution of the USSR, duly became independent states, to the horror of Mr Putin and his fellow-thinkers. In 1990–91 many federative components of the RSFSR sought to gain the status of union republics, so as to have the right to secede. Several, including the republics of Chechnya, Tatarstan and Bashkortostan, declared sovereignty. Chechnya suffered two bloody wars from 1994 to 1997, and from 1999 to 2009; Tatarstan was granted special treaty status by President Yeltsin which it has only recently lost. Under the 1993 Russian Constitution there are twenty-one ethnic republics in the Russian Federation with, until recently, their own presidents, state languages (in addition to Russian) and other privileges, although no right to secede. Mr Putin is working hard to reverse Lenin’s policy of federative constitutionalism.
Footnotes
1 Marxists Internet Archive, URL: https://www.marxists.org/archive/lenin/works/1918/jan/03.htm
2 Ibid, URL: https://www.marxists.org/history/ ussr/government/constitution/1918/
3 Ibid, URL: https://www.marxists.org/archive/ lenin/works/1922/dec/testamnt/autonomy.htm
4 In 2010 Azbuka Klassika (St Petersburg) published this and other texts by Vladimir Lenin in a paperback edition of 5,000 copies under the title O natsionalnoy gordosti velikorossov (On the National Pride of Great Russians).
5 The Handwritten Constitution of the Russian Federation website, URL: http://constitution. sokolniki.com/eng/History/RussianConstitutions/10266.aspx
6 YouTube, URL: https://www.youtube.com/ watch?v=lIoEwESh320 (accessed 25 June 2019)
7 The Guardian website, URL: https://www.theguardian.com/world/2016/jan/25/vladmir-putin-accuses-lenin-of-placing-a-time-bomb-under-russia

Russia’s Criminal Justice System: From Tsar Alexander II to President Putin
SCRSS Digest, No 1, Spring 2019
A typical recent criticism of Russia reads as follows: “Although the equality of arms and the right to adversarial trial are guarantees of the Russian Constitution, many cases show deep flaws within the criminal justice system and gross misconduct of the judiciary and prosecution. This includes using fabricated evidence, forced confessions and impunity for perpetrators of crimes.”1 There is truth in this, especially in politically high-profile cases. But is it the whole story?
I start in the early nineteenth century. In March 1814 the Russian Army entered Paris, having defeated Napoleon – and returned to Russia having achieved its objectives. Russia appeared to be invincible. Ten years later, the Decembrist revolt of 26 December 1825, led by progressive aristocrats who wanted to prevent the accession of Nicholas I, to abolish serfdom and to establish a constitutional order in Russia, was crushed. Nicholas, a political conservative, ruled from 1825 to 1855.
Criminal justice under Nicholas I was aptly summed up as follows: “The secret inquisitional procedure, with its soulless records, with its formal evidence evaluated in advance and prescribing to the judge his decision, could be nothing else but a source of cruelty and inequity. The judge was deprived of liberty of decision, and bound by the rule of formal evidence. He could not acquit or condemn according to his conviction, but only act in conformity with the scale of value of evidence set forth by law. His sentence, though formally correct, was very often nothing but a flagrant injustice.”2 And “the best evidence in the whole world” was considered by the law to be the confession of the accused.
However, the Russian Empire lost the Crimean War, which lasted from October 1853 to February 1856, to an alliance of the Ottoman Empire, France, Britain and Sardinia. Nicholas I died on 2 March 1855, succeeded by his eldest son, Alexander II. Alexander was not a liberal, but could see that survival of the empire and of tsarism depended on radical reform. On 3 March 1861, in the Emancipation Manifesto, serfdom was abolished. Abolition of slavery in the USA came a few years later. Abraham Lincoln issued the Emancipation Proclamation on 1 January 1863, and the passage of the Thirteenth Amendment (ratified in December 1865) abolished slavery in the United States. Russia had led the way.
Abolition of serfdom was followed by the Great Legal Reforms of Alexander II. On 20 November 1864 he signed the decree that enforced four Regulations, including Regulations of Criminal Proceedings, and Regulations of Punishments Imposed by Justices of the Peace (in Russian Мировой суд, a direct translation from the English institution established by Edward II in 1361).
Alexander established a unified judicial system, and fundamental innovations in criminal trials. These included the principle of equality of the parties, the introduction of public hearings, trial by jury (again modelled on English practice) and a professional Bar. Previously there had been no legal representation in criminal cases. The powers of the procurator were substantially reduced, and mainly concerned prosecution in the criminal courts.
The most famous case of jury trial was the acquittal in 1878 of the social revolutionary Vera Zasulich (1851–1919). Her comrade, Alexei Bogolyubov, refused to remove his cap in the presence of Colonel Trepov, the notorious governor of St Petersburg. Trepov ordered him to be flogged. A group of six revolutionaries decided to assassinate Trepov. On 24 January 1878 Zasulich shot, and seriously wounded, Trepov in front of witnesses. She was tried by jury, with Anatoly Koni, the well-known reforming judge, presiding. The sympathetic jury found Zasulich not guilty. She went on to become a Marxist and, famously, corresponded with Karl Marx as to whether Russia could achieve socialism through the peasant commune. Judge Koni was a great legal reformer until the 1917 Revolution, became a leading law lecturer in Soviet Russia, and died in 1927.
The Bolsheviks abolished trial by jury and justices of the peace, but the Bar continued during the Soviet period as an independent profession, remunerated by fees, and defending the accused in cases of economic and political crimes. Fearless advocates in the Soviet period, often Jewish, included my colleagues Yuri Schmidt (1937–2013) in Leningrad and Semyon Ariya (1922–2013) in Moscow.3 However, the public prosecutors regained their full Tsarist powers and, as Vladimir Terebilov – Minister of Justice and Chairman of the USSR Supreme Court – wrote in his book The Soviet Court, published in Russian and English in 1973 and 1986, a prime function of the Soviet court was to educate the public in intolerance of crimes, respect for the law, and the rules of socialist community life.
The collapse of the USSR in 1991 has meant the restoration of many of the great reforms of Alexander II. An experiment in trial by jury in nine regions started in 1993, and covered the whole of Russia from 2003. Justice of the Peace courts were restored from 1998.
This restoration of the 1864 reforms took place against the backdrop of a revolutionary transformation in Russia’s attitude to international law. In the USSR there were two key principles of international law: state sovereignty, and non-interference in the internal affairs of states. Therefore, the USSR ratified UN human rights treaties but did not permit external scrutiny of domestic legality.
Under the first president of the Russian Federation, Boris Yeltsin, Russia adopted a new Constitution in 1993, with guarantees for the whole range of human rights and civil liberties, and a provision establishing the supremacy in the Russian legal system of international law. This has been explained by the Supreme Court in Resolutions of 2003 and 2013.
In 1996 the Russian Federation joined the Council of Europe (CoE) and in 1998 ratified the European Convention on Human Rights (ECHR), which immediately became part of Russian law. For the first time every person under Russian jurisdiction could complain of
violations of the ECHR to the European Court of Human Rights, and thousands have done so. As a result, legal textbooks and court judgments are now full of references to European human rights, and there have been substantial changes to Russian law and procedure.
In 2000 I had the honour of being nominated by the CoE to serve as one of three CoE experts working with Dmitry Kozak (now Deputy Prime Minister), Yelena Mizulina of the State Duma, Judge Radchenko of the Supreme Court, and Vladimir Shults, Deputy Director of the Federal Security Service (FSB). We drafted the new Criminal Procedural Code, which introduced the principle of adversariality into the Russian criminal process, transferred the power to remand on bail or in custody pre-trial, with a presumption for bail, from prosecutors to judges, and many other changes. These reforms have been strengthened by judgments of the Constitutional Court of the Russian Federation, referring to Strasbourg principles and judicial decisions.
Indeed, in the period from 2000 to 2003, President Putin encouraged these and other reforms, spoke often of the ‘dictatorship of law’, cited Judge Koni, and referred to himself as following in the footsteps of Alexander II. The arrest of Mikhail Khodorkovsky in late 2003, the expropriation of his oil company Yukos, his two criminal trials, and imprisonment in Chita (where Decembrists had been sent to serve their sentences after 1825), marked the end of this reform period.
Today, less than one per cent of criminal trials in Courts of General Jurisdiction end in acquittals (15–20 per cent in jury trials), lower than the acquittal rate in the USSR; and the judges are not, as in the UK, former advocates, but are drawn almost entirely from law enforcement and court administration. Members of the Russian Bar fight hard for their clients, but judges frequently read out the indictment prepared by the prosecutor by way of a judgment. All too often criminal proceedings are abused for the purpose of ‘criminal corporate raiding’, illegal takeovers and political vendettas. The further reform of criminal justice in Russia will require a new generation of genuinely independent judges.

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