Home EJIL Analysis Does “Russian international law” have an international academic future?

Does “Russian international law” have an international academic future?

Published on September 21, 2015        Author: 

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.

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11 Responses

  1. Lauri Mälksoo Lauri Mälksoo

    Thank you, Maria, for this thought-provoking comment. Having read your post, I had to think of the book that I am currently reading: “Mestizo Inetrnational Law” by Arnulf Becker Lorca (CUP, 2014) which presents the history of international law from the point of view of semi-periphery and its international lawyers (including my own old favorite, Martens). Interestingly, Becker Lorca includes Russia as country (along with Turkey and Japan, etc) in the semi-periphery of the history of international law. This makes sense, I think. Russia was economically and ideationally not as strong as the Western core and yet of course it was never subjugated by the West either. Russia’s attitude to international law has been responsive rather than constitutive of the language – even though Russia has occasionally used the ‘language’ of international law quite successfully.

    Now what you describe, Maria, can perhaps be understood as difficulties that semi-periphery faces when making international legal arguments. I believe that it is a real dilemma for countries like Russia which are too big to become part of the West and too small to shape decisively the global discourse of international law in their native language. In countries like this, should the goal be to talk about international law ‘like in the West’? Or should it be to talk about it ‘as we are ourselves, including in our own language’, i.e. differently than in the West? To some extent, it is also choice between the nation’s isolation and going along with globalization. It is rewarding to see that the school of thought that is not so afraid of globalization and does not over-politicize the fact that English happens to be nowadays the predominant language of international law, still exists in Russia as well.

  2. Jordan

    Maria: at times you note that some issues involve other complexities, but I was struck by your seemingly strict rule against military intervention with respect to self-determination. Others note that self-determination assistance might be justified in certain contexts where, for example, a government is oppressing a given people or worse (e.g., genocide in East Pakistan, new state of Bangladesh as an outcome of self-determination of Bengali people). The 1970 Declaration on Principles of International Law seems to contemplate the propriety of such self-determination struggles and outside assistance — “Nothing in the foregoing paragraphs shall be considered as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political units of sovereign and independent State CONDUCTING THEMSELVES IN COMPLIANCE WITH THE PRINCIPLE OF EQUAL RIGHTS AND SELF-DETERMINATION OF PEOPLES … AND THUS POSSESSED OF A GOVERNMENT REPRESENTING THE WHOLE PEOPLE BELONGING TO THE TERRITORY….” And some states contain other peoples or nations within them (e.g., the United States, with a Navajo nation, etc.). The 1970 Declaration also recognizes that if a State is using forcible action to deprive a peoples of their right to self-determination that, “[I]n their actions against, and resistance to, such forcible action…, such peoples are entitled to seek and to receive support in accordance with the purposes and principles of the Charter” [which, of course, include human rights, self-determination, security, peace, etc. — the latter can even be viewed with respect to regional security, peace in the long term].
    There are actually wonderful complexities involved with policy-serving inquiries into claims to permissible self-determination and self-determination assistance, especially since Article 2(4) of the Charter does not facially prohibit all uses of force but only three and the last form requires consideration of the purposes of the Charter and their serving in particular contexts.

  3. Maria Issaeva Maria Issaeva


    I take your point that primary actors in international law are States, and that it is their attitude and approaches that we are meant to discuss and analyze in international law. However, as several judges put very recently in a dissenting opinion in a case Soro against Estonia, “It takes more than one dictator, a couple of generals and a bunch of executioners to run an oppressive regime. Such regimes rely on the collaboration and approval of a much larger number of individuals who themselves may have never committed any crimes but without whose support the whole system could not survive”.

    As regards the ‘real dilemma’ you mention. Russia’s core bones were broken by the Bolsheviks in 1917 and on with extreme cruelty, so I would indeed be very careful when making historical connections involving Russia-USSR/RSFSR-Russia back again throughout centuries. A lot in Russia these days is imitation, including imitation of strength of such historical connections. And I do believe that despite many previous failures, if Russia started to play by the rules one day instead of imitating such a play, it would be a huge win for everyone.

    Thirdly, I share your point that the choice of States’ attitudes in international law is ‘the choice between the nation’s isolation and going along with globalization’. In fact, this is to a large extent THE reason of the choices in attitude by Russia, in my opinion. Connected to this, and one of the major points where we appear to differ, is that I do not really accept the “West-Russia” dichotomy, unlike other comparative dichotomies, including “West-Middle East”, “West-Asia”, “West-South”, etc. I am extremely skeptical about the Western-Russian dichotomy’s genuine nature (the “West-North”?). It is quite convenient for a person to lock himself in a room and become a great winner just for himself in those four walls. However, to take it one step above mere fantasies, it is the opinion of the outside world that makes his achievement genuine.

    And last quick point is about semi-periphery. In our era of Internet, international education, and at least one globally shared language, I seem to tend to limit my perception of a periphery to a place with poor quality of education and limited access to information (which takes me to the contents of my post above again).

    Any thoughts in response?)

  4. Lauri Mälksoo


    I don’t even know whether in your points there is anything that I should disagree with.

    Concerning the dichotomy of Russia-the West: as is well known, this is a question that goes at least a couple of centuries back (Westernizers vs Slavophiles, etc). Some political thinkers and lawyers think that there is such a dichtotomy between the West and Russia and others argue vehemently that there isn’t. I think you make your position pretty clear. What interested me when doing research for “Russian Approaches to International Law” is how this old question/dilemma has reflected in the understanding of international law in Russia (and my argument is that it has done so).

    I should stop here because at the moment I have little to add on my side. Looking at the future rather than to the past, I remain hopeful that the globalization of legal education and scholarship – and scholarly exchanges like ours – will lead to mutual changes and new understandings. Another question is how quickly they will materialize, such changes. Anyway, as Goethe lets Mephisto say, sometimes even forces that mean bad end up doing good in the end. Perhaps this also applies to historical forces, not just to individuals.

  5. Nick N

    [Comment edited by moderator for civility] my position is that in academic writing, points which are disputable should be presented as such.

    The author starts the article with throwing out the term “annexation” as it is undeniable, however, not only Russian, but several Western scholars would not agree with it. For example, Prof. jur. Merkel from the University of Hamburg wrote “Hat Russland die Krim annektiert? Nein.” (

    The author then uses an expression “the now-infamous claim of a “coup d’etat” “, however how else, if not “the coup”, can this power transition be called? For example, Prof. Powell wrote “Clay and I are (“very tentatively”) considering this event to be a coup, albeit what Ulfelder has referred to as a “parliamentary coup.” ( Other terms are not better: for example, professor Dr. iur. et phil. Alfred de Zayas said about it: “Das ist ein Staatsstreich, ein Putsch, ein Coup d’état. Das hat keine Legitimität.” (

    With regard to the question of “compatibility of Russia’s conduct with the principles of sovereign equality and non-intervention into the internal affairs of its neighbouring state”, Turchynov-Yatsenyuk regime from the Russian POV of course did not represent Ukraine. Rather they were puppets of the West. Such an argument was predicted, for example, by Polish Prof. Andrzej Szeptycki. He wrote “In essence, states are sovereign in their activity on the international scene. Their free will determines whether they will recognise a state, establish diplomatic relations with it or join one international organisation or another. … The Charter of the United Nations of 1945 and, later, the norms of the Organisation for Security and Cooperation in Europe prohibit only the intervention in the internal matters of other states. Thus it is not permitted to overthrow governing authorities in a third state, replace it with new people and next recognise them as a government. The Russian Federation could use this argument by presenting the new Ukrainian authorities as puppets of the West.” (

    In her comment, the author regrets: “if Russia started to play by the rules one day instead of imitating such a play, it would be a huge win for everyone”. However, this regret is unjustified. The problem is that it must be clear that the West violated international law in Ukraine. In contrast, the Russian response possibly was in line with the international law.

    For example, as Prof. Doebbler has put it: “The recent situation in the Ukraine also raises questions of international law; … it is Russia that is left in the position of apparently defending international law. … While American lawyers and diplomats claim that the use of force against the Ukraine is illegal, they forget that the elected President of the Ukraine is requesting it. … The case is much different when foreign governments interfere in the domestic affairs of a state to change its government because they do not like it. In Ukraine this is exactly what the US and the EU did … Now that the elected President of the Ukraine—Viktor Yanukovich—has requested Russian assistance—including military forces—in writing, US President Obama is wrong in claiming that Russia is violating international law. In fact, action taken by the US to prevent Russia from assisting the elected government in the Ukraine is likely a violation of international law to the same extent that the United States and European efforts to change the government of the Ukraine were inconsistent with the prohibition of interference in the internal affairs of the Ukraine without the permission of its government.
    … It is perhaps ironic that its is Russia—a superpower during the cold war that still possess one of the world’s largest weapons arsenals and armies—that is relying on international law to triumph over brute force.” (

  6. Jakob Cornides Jakob Cornides

    We all know the famous dictum of Tsar Nikolay I.: “где раз подняли русский флаг, спускаться уже он не должен” (i.e., “where once the Russian flag is hoisted, it must not be taken down again!”). Crimea was conquered only in the late 18th century – but now many Russians consider it a part of the Russian heartland. Is Putin’s policy really based on any legal considerations, or is it not just a tribute to an opinio necessitatis prevailing among the populace?

    My question to you, Maria, would be: is there any particularly and typically “Russian” line of thought in “Russian International Law”? Or is the current approach not rather dictated by political interest, and not by a a consistent and long-standing school of legal thought?

  7. Maria Issaeva Maria Issaeva

    – To the person calling himself “Nick N” –

    It was unnecessary, but thanks for a very vivid illustration of my argument. It appears (behind the moderator’s comment above) that the traditional “first meal” of the Russian doctrine’s approach to a critical opinion – a personal attack – has been served. Well done, well done. Secondly, I am glad that you find some gentlemen you agree with, but newspaper articles are not quite the sources of international law. Your argument is basically “one professor said X, and I agree with it”. This still does not stand for a proper international legal argument (and to have a proper international legal argument with you guys on this and other current topics would in fact be very interesting). Further, on this: “The problem is that it must be clear that the West violated international law in Ukraine”. It is a funny sentence. You see, one cannot make it clear simply by ordering that it must be so – things do not work this way on competitive markets. Lastly, re: annexation. Your response is totally out of place as the use of the term “annexation” in the English language does not bear the connotation “unlawful” which it has by default in Russian and possibly in some other languages. Check it.

    – Lauri –

    It was a great exchange, many thanks. It may in fact be that we differ mostly in terms of the degree of reverence to this school and this old problem (zero tolerance on my part, with reasons thereto illustrated above).

    – Jakob Cornides –

    I can only refer you to the book The Russian Approaches to International Law written by Lauri Mälksoo (there is a link to it in my blog article). You could also have a look at our exchange with Lauri in the comments above to trace down my personal position on this question.

  8. Nick N

    Maria Issaeva:

    With regard to “It appears (behind the moderator’s comment above) that the traditional “first meal” of the Russian doctrine’s approach”.

    There was no personal attack at all in my post. The moderator erased my negative comment on the correspondence between your post and the academic standard as I see it. Hence, now my post starts with the sentence explaining how I see the academic standard.

    In any case, your generalization from what you have imagined about the erased part of my post to the “Russian doctrine” is troublesome in itself.

    The same can be said about expressions like “At various academic events Russian academic scholars have proven to be unable … “. They are simply offensive.

    BTW, I am not closely familiar with the Russian doctrine since my legal degree is Western. Please note that I cited only Western scholars.

    With regard to the substantive issues, I am happy to accept your challenge. Therefore, in order to check whether our positions still diverge, I would like to ask you to explain your view whether the power transition in Ukraine, including Yanukovych removal, Turchynov appointment, and changes in the Constitutional Court, were constitutional, whether there was a coup, and whether the Western countries violated international law in this process and shortly after it.

  9. Maria Issaeva Maria Issaeva

    The mere fact that your comment was “edited for civility” speaks for itself. And there are more things in your text, even in the edited version – I take it that you do not see them (referring to your degree as “Western” is one of them, but this one at least is not offensive – this is just very ironic, especially in combination with your attempt to hide identity).

    My challenge is two words only. Be convincing. I would suggest that you proceed with it in proper publications, and not anonymously in comments. The same applies to the “offensive” part. All the material I refer to is publicly available, so as my position on the matter. If you can present your own view and results of research in a convincing manner, as I said, I am sure that many will read them with interest.

  10. Heiko Recktenwald

    I was surprised that in the first days of the “Russian intervention” in Syria on the side of Assad the question of the legality of such an intervention in the time of a civil war was raised. In some newspaper in Russia. This is a common question. On the other hand we may only see the things we like. The Crim was Russian and Yelzin gave it its freedom as a part of the Ukraine. The Ukraine became independent. But did that really mean that the Crim was now a part of on independent Crim?

    This is a question for realists v. dreamers. Not a question of Western v. Eastern law. IMHO. The realistic point of view would be to ask whether the Ukraine was able to think that it was now in the position to give the Crim to NATO without anby real problem. To ask this question alone means to say no.

  11. Heiko Recktenwald

    (But did that really mean that the Crim was now a part of on independent UKRAINE?)