Since Russia’s annexation of Crimea in March 2014, we have had a chance to hear quite a few arguments advanced by Russian scholars at various legal conferences and law journals (see, for example, here and here) regarding the situation in Crimea, all purporting to justify the annexation of the peninsula by Russia. Most of these arguments have not been met with approval by international scholars.
With the Russian government’s current aggressive rollback to Soviet foreign policy, the post-Soviet doctrine of international law is back in the spotlight and requires, it appears, a fair amount of commentary.
A perfectly timed, thoughtful study by Lauri Malksoo, Russian Approaches to International Law, which was published this year, undoubtedly serves this purpose extremely well. A detailed overview of Russian lawyers’ positions on Crimea was also given by Anton Moiseienko about a year ago.
In this post I would like to add some reflections on the situation as seen from within Russia, albeit not from inside Russian academic circles.
The primary observation one is inclined to make when hearing the positions espoused by Russian academics these days is that they mirror – occasionally with some improvisation, but often word-for-word – the official Russian line expressed by the Russian President and Ministry of Foreign Affairs, including at the UNSC.
The positions asserted include, among other things, the now-infamous claim of a “coup d’etat” having occurred in Kyiv, cited as grounds for the Crimeans’ right to self-determination, with Russian troops having been deployed to “safeguard” the peaceful realisation of that right. New arguments were later added alleging that the transfer of Crimea back in 1954 was unlawful and that over the past two decades Ukraine had no valid legal title to Crimea.
Each of these arguments warrants a detailed legal discussion. Russia’s argument concerning the Maidan events in Ukraine as grounds for the Crimean situation raises the question of the compatibility of Russia’s conduct with the principles of sovereign equality and non-intervention into the internal affairs of its neighbouring state; the assertion that self-determination takes precedence over territorial integrity seems to forget Russia’s own prior positions, including those expressed before the ICJ in the Kosovo proceedings: use of force; definition of a “people”; permissibility of irredentism, etc. – just to name a few.
Yet – and this is the second striking moment – a common trend discernible at various legal conferences was the complete breakdown in effective communication between speakers from Russian universities and those from other localities. At various academic events Russian academic scholars have proven to be unable – or even unwilling – to engage in any substantive legal discussion of the arguments that are being asserted.
For the sake of fairness, the conduct of Russian officialdom has not made the task any easier for Russian international scholars who see their role as defenders of Russia’s position. For example, President Putin’s admission of the presence of Russian forces during the Crimean referendum in April 2014 rendered irrelevant some of the previous arguments raised by Russian academics regarding the absence of any use of force, which had been grounded in the Russian President’s earlier statements. Moreover, after a year in which arguments on self-determination of the Crimeans were actively elaborated in Russian international law scholarship, Russia’s President revealed during an interview in March 2015 that he had ordered the launch of a “special operation” with respect to Crimea as early as 22 February 2014.
The latter is particularly notable as the statement essentially confirms that Russia used self-determination only as a pretext for its “special operation” to return the peninsula.
In their arguments, Russian scholars, however, seem to disregard – or conveniently “forget” – the prohibition on external intervention and use of military force by third states in the process of lawful self-determination. For example, in a translated citation below, a professor from the Diplomatic Academy of the Russian MFA does not apparently see a problem with the Kremlin taking certain crucial decisions in the course of secession instead of Crimea:
“There is a nuance – indeed international law only speaks of the right to self-determination of a “people”, not a population of a specific territory. An elegant solution in this regard was found by the lawyers and Administration of our President, as three days before the referendum Crimea declared itself an independent State. And an independent State will always comprise a “people”, and not just a “population”.”
Whether such an approach reveals a lack of intellectual honesty, or the positions asserted are based on some entirely different understanding of international law where Russia is always right (or both), remains an open question.
Such a pro-government stance by Russian educational institutions of international law is hardly news. As Lauri Malksoo puts it in Russian Approaches to International Law, “leading lawyers of the older generation in Russia see it as their vocation to support the Kremlin with all the weight of the “science” of international law”, and have long appointed the government as “the holder of the truth” (Malksoo op cit., p. 81).
The system of the so-called “native science of international law” (as Lauri defines it in his book) has never been particularly welcoming of independent or alternative opinions and discussion. Dissenting voices are often subjected to various degrees of ostracism within the system.
Yet notwithstanding all of the above, the absence of an independent academic opinion appears to be a lose-lose strategy for Russian academia, i.e. not only internationally, but also within Russia.
Two observations seem important in this regard. The first is the minimal attention paid to the “native” Russian version of public international law by students at Russian law schools. Russian students of law are focused on gaining practical legal knowledge and skills, their motivation dictated by a very competitive Russian legal market in the past two decades. A traditional Russian legal education, with its emphasis on theory, tends to offer little in the way of solid practical or up-to-date knowledge, yet employers’ expectations remain high: a Russian student is basically expected to have a stronger grasp of any legal subject than s/he was taught at a Russian law school. Public international law has largely been “forgotten” as a theoretical discipline for most students, who regard it has having no bearing on their future as legal practitioners. That said, since graduates often have to come back to issues of investment, human rights and (of particular relevance these days) State responsibility in the course of their professional work, there is every chance that interest in public international law as a university discipline will be revived in Russia at some point.
Secondly of note is the consistent lack of involvement of leading proponents of Russian doctrine when it comes to representing Russia before international courts. If you look at the composition of Russia’s team of counsel at the ICJ in Georgia v. Russia, its counsel and advocates were Alain Pellet, Andreas Zimmermann and Samuel Wordsworth. In the Yukos arbitration Russia chose to hire international law firms rather than retain the services of any Russian international law professors. The background of Russia’s representatives at the European Court of Human Rights, where it has a continuous flow of cases, has also never been that of Russian public international law scholarship and was eventually delegated to the Russian Ministry of Justice. Similarly, a team of British QCs was hired to represent Russia before the ECtHR in the Yukos case, and in the interstate Georgia v. Russia cases.
One could argue that Russia’s hiring of foreign international law scholars and international law firms for important cross-border cases is not evidence of the “irrelevance” of the “native” international legal doctrine, but occurs mainly due to the fact that leading names in Russian international law academia simply do not speak English. Nor should the possibility be excluded that, if properly translated and exposed to international legal study substantively and in greater detail, the approaches developed in Russian international law doctrine will be, at least partially, accepted by other scholars.
Indeed, much in the Russian doctrine of international law happens exclusively in the Russian language. However, the question arises: aren’t these two questions intrinsically linked? Can a person really have a grasp of international law today if s/he does not speak at least English? The libraries of most Russian law schools do not offer any of the major international legal databases, supposedly due to a lack of demand. As a result, both a Russian student in training and a Russian scholar doing research are limited to referring to Russian sources only. Hence those sources tend to remain self-referential by virtue of their own isolation and limitation to Soviet and post-Soviet legal thought.
Thus, Russia’s role as a “non-native speaker of international law”, asserted from time to time, may partly have its roots in Russian university libraries and a lack of knowledge of the English language by the “standard-bearers” of Russian international law doctrine.
The academic system in Russia still bears the heavy weight of its Soviet legacy. The younger generation of Russian international lawyers continues to work under the pressure of a system originally designed to reproduce unified thought rather than engender independent thinkers. Whilst some younger Russian academics have started appearing in proceedings before international courts and the level of some Russian teachers of international law would surprise many in any established foreign law school, systemically Russian academia has little chance of living up to international standards of academic competition.