Know Your Enemy and Know Yourself

Five years into the submission of my doctoral thesis and three years after the publication of “Russia and the Right to Self-Determination in the Post-Soviet Space”, Polina Kulish’s and Tero Lundstedt’s review essay for Völkerrechtsblog provides a welcome opportunity to revisit some of my findings and arguments and to also engage with another recent review essay by Bill Bowring, published in the Review of Central and East European Law and made available in open access on the occasion of this Review Symposium (for earlier reviews of my book see, e.g., here, here, and here, another review essay by Caroline von Gall is forthcoming). Corresponding to the structure of Kulish’s and Lundstedt’s review, I will respond in two parts, one dealing with the conceptual framework, one addressing substantial aspects. By way of conclusion, I will respond to Kulish’s and Lundstedt’s question whether analysing Russian approaches to international law continues to be relevant.

Situating Oneself (And Others) in the Discourse on Russia’s Approach to International Law

The first part of Kulish’s and Lundstedt’s review is devoted to the conceptual framework of my book. Rather than situating their own perspective within the wider discourse on regional approaches to international law generally or the different traditions dealing with Russian approaches to international law specifically, Kulish and Lundstedt focus on the critique of Eurocentrism of international law and suggest applying Arnulf Becker Lorca’s idea of “mestizo” international law, which, in their view, “offers a more comprehensive understanding of Russia’s role in shaping legal regimes”. How and to what extent peripheral actors particularly in the Caucasus have shaped (Soviet) Russia’s role in the evolution of the right to self-determination certainly deserves more scholarly attention and will bring interesting new insights. As important as this additional perspective is, it is however not the one taken in my book.

Rather, in what has been appreciated in Bowring’s review as “an excellent German pedigree”, the book builds on the discipline of Ostrecht within international law, primarily developed in pre- and post-Second World War Germany (in fact, the title can be seen as a reference to the most comprehensive contribution on the subject at the time, Boris Meissner’s “Sowjetunion und Selbstbestimmungsrecht“). Although the continued relevance of the tradition of Ostrecht following the dissolution of the Soviet Union has been questioned by some of its most influential disciples and eventually led to the renaming of the Institute for the Study of Ostrecht at the University of Cologne in 2014, “Russia and the Right to Self-Determination in the Post-Soviet Space” was the first in a series of new books dealing with a distinct Russian approach to international law written against the background of that tradition. In addition, and as discussed in my book’s introduction but for some strange reason largely absent in Kulish’s and Lundstedt’s otherwise thoughtful review, my analysis is informed by the work of Lauri Mälksoo who embeds himself in a distinct Estonian tradition of international law (which in turn had a strong influence on Ostrecht scholarship in post-Second World War Germany in the person of Meissner and others). Even if Mälksoo’s main contribution to the field, “Russian Approaches to International Law”, was also criticized for its “civilizational” perspective, it was otherwise widely celebrated and had a significant impact on the revival of an almost forgotten discourse on regional-specific narratives of international law.

A central theme in Mälksoo’s work is the usefulness of Carl Schmitt’s theory of Großraum for the reading of Russia’s state practice and theory. As also acknowledged by Mälksoo in his book (Mälksoo, p. 4, n. 9), this observation was first made by Ostrecht scholars in relation to the Soviet Union’s hegemonic claim of a distinct regional international law applicable in its sphere of influence. In the more recent literature, it was used first by Mälksoo and later also in my own book as the key functional equivalent for the comparison of Soviet and post-Soviet approaches to international law and to make sense of Russia’s contemporary state practice in its “Near Abroad”, as it likes to call the surrounding countries that were formerly part of the Soviet Union. While otherwise seeing a lot of common ground, it is this reference to Schmitt’s idea of Großraum (which itself isn’t that original and was inspired by the Monroe Doctrine) with which Bowring has a “principled disagreement” in his review. While he doesn’t explain his reasons, Bowring’s references to a book chapter by Robert Knox arguing for the use of Marxist conceptions of hegemony and imperialism to make sense of international law provides at least a clue for situating Bowring’s own position.

Where Mälksoo’s and my position diverge is the extent to which “civilizational” arguments are given weight in the analysis. As much as I admire Mälksoo’s work, his elegant style and ability to integrate Russian literature, philosophy, sociology, theology and even pop culture into the legal discourse, I felt that my own contribution would need to be more grounded in state practice, contextualized and interpreted through historical developments before and after the dissolution of the Soviet Union (the continuity question) and comparative analysis (the fragmentation question). I therefore consciously left it open “to what degree Eurasianist and Neo-Eurasianist ideas of Russia as a Reich (or, in the Russian terminology: derzhava) shape Russia’s post-Soviet approach to international law” (p. 9) and warned against the dangers of exoticizing Russia in my conclusions (p. 212). It is unfortunate that Kulish and Lundstedt nevertheless chose to use the “Russian soul” as the primary angle of their review, notwithstanding that “the frame is noteworthy absent in Socher’s direct analysis”, as they also note – only to then “delve into it”.

But Kulish and Lundstedt also point at another aspect in relation to the conceptual framework which could indeed have been worth discussing in more detail, namely how the Soviet Union had largely been successful in not being identified as a colonial power. While I briefly touch upon the question whether the Soviet Union (and by extension, its former space) could be considered a (post-)colonial context, I did not engage further with the increasingly popular view in neighbouring disciplines that the former Soviet space should be understood through the paradigm of postcolonialism (see, e.g., the widely reviewed “The Post-Soviet as Post-Colonial” by William Partlett and Herbert Küpper). As Kulish and Lundstedt note a little later in their review, Tom Sparks’ 2023 published book “Self-Determination in the International Legal System” attempts to bring new clarity in the difficulty with conceptualizing the right to self-determination by distinguishing between polity-based, secessionary, colonial, and remedial forms. Although Sparks does not explicitly categorize the self-determination claims in the former Soviet space under any of these forms (except for Crimea, which he discusses under the remedial form, see Sparks, pp. 186–91), from his analysis in relation to the dissolution of Yugoslavia one can assume that he would also place them not under the colonial but under the secessionary form (see Sparks, pp. 143–6). Another recent work on the right to self-determination is also “Reckoning with Empire” and explicitly identifies the dissolution of the Soviet Union and its resulting external self-determination claims as a non-colonial context (McKenna, p. 154).

Analysing Self-Determination Claims through the Prisms of Sovereignty, Secession, and Annexation

The persistent difficulty with conceptualizing self-determination in international law becomes particularly evident when its relevance is discussed for concrete cases. As I have concluded in my book, “there is reason to believe that even basic agreement on what self-determination as a concept of international law means and what related concepts (…) do or should play in that context seems almost unattainable” (p. 206). That these concerns are not only triggered by an analysis of Russian state practice and scholarship but are fuelled from various corners of the “invisible college of international lawyers” becomes clear when one reads the sections in Bowring’s review that deal with the case studies in my book. While Bowring names such different cases as Catalonia, Northern Ireland and Turkish Kurdistan as examples of self-determination struggles, he seems irritated by the choice to analyse some of the cases in the former Soviet space from that angle, claiming for example that “there is and was no self-determination issue” in South Ossetia and finding it “hard (…) to understand” how Nagorno-Karabakh could be discussed as a case of self-determination (for counter-examples of the former see, e.g., here, here, and here, for counter-examples of the latter see, e.g., here, here, and here).

It is also due to this disagreement among international lawyers over which struggles can legitimately be discussed as self-determination claims that I decided to analyse them through the prisms of three related concepts (sovereignty, secession, and annexation) and to group them accordingly. This by no means presupposed a hierarchical order of the different claims in terms of their legitimacy (e.g., of those of Abkhazia over those of Chechnya) but was meant to structure the analysis with the overarching aim to ascertain whether a distinct Russian approach to the right to self-determination in the former Soviet space exists and how it has evolved over time.

For the book’s second chapter on self-determination and sovereignty, Kulish and Lundstedt wish that the legal origins of the contemporary republics in the Russian Federation would have been further explored to provide a point of comparison to the case studies analysed in the other chapters on secession and annexation. As Kulish and Lundstedt themselves observe at an earlier stage of their review, all seven case studies in the book are structured in a similar way, each starting with an overview of the origins of the conflict and its evolution during the Soviet period. These sections consistently include a description of how the respective region’s legal status had changed over time. Consequently, it is mentioned for example in the first case study that today’s Tatarstan Republic in the Russian Federation has its origins in the Tatar ASSR within the Russian SFSR (p. 70), just like the case study on Transnistria in the book’s third chapter depicts how the self-proclaimed Pridnestrovian Moldovan Republic goes back to the Moldavian Autonomous Oblast within the Ukrainian SSR which was elevated to the status of an ASSR in 1924 before it got merged with parts of Bessarabia in 1940 as a result of the Molotov-Ribbentrop Pact and became part of the Moldavian SSR (pp. 113–4). Although these changes in the administrative hierarchy are important to understand the origins of these conflicts, I don’t see how they are relevant for the assessment of the regions’ legal status today beyond the interpretation of the dissolution of the Soviet Union, in which the application of the uti possidetis principle was, however, clearly limited to that of union republics – a status none of the discussed regions could claim for themselves at the time (see pp. 95–7, for the somewhat more complicated case of Abkhazia see pp. 134–6).

Turning to the book’s third chapter on self-determination and secession, both reviews start with the Kosovo case in front of the International Court of Justice, as I also do in my book. Unlike the other case studies, the Kosovo case is not discussed in detail and the main reason for including it at all at the beginning of the chapter on secession was to analyse Russia’s legal views as expressed in its written statement to the ICJ and how it affected its subsequent state practice in the former Soviet space. Bowring claims in his review that the statement “was diametrical opposite” to the position Russia adopted in relation to its annexation of Crimea, thereby “demonstrating a severe case of schizophrenia”. As argued in my book, I respectfully disagree with this reading (p. 174), as I do with Bowring’s suggestions that “Kosovo has not seceded at all” and that Transnistria, Abkhazia, and South Ossetia shouldn’t be discussed as cases of secession but “simply refused to become part of the newly independent states”. Apart from the fact that these conflicts often lie at the centre of scholarly debates on self-determination and secession, it strikes me as an oversimplification of the legal issues at play, an impression that Bowring almost seems to anticipate when he calls his work “sometimes controversial” at the end of his review.

The book’s fourth chapter on self-determination and annexation is the one that attracted the most criticism in both reviews. In particular, Kulish and Lundstedt criticize that the historical narrative in the Crimea case study “sidelines resistance of Crimean Tatars”. Bowring even claims that Crimea “was not conceivably a case of self-determination” and that “the only people on the Peninsula entitled to a right to self-determination in international law are the Crimean Tatars…”. This demand to include Crimean Tatars (Kulish and Lundstedt) or even replace them for Crimea as a territorially defined unit (Bowring) in the discussion points at yet another difficulty with conceptualizing self-determination, namely of the need to distinguish “peoples” from “indigenous peoples” as a separate category of international law and whether one should define them territorially and/or in terms of nationality and ethnicity (both aspects are discussed in my book on pp. 2–3 and again on p. 187 in comparison to Russian scholarship).

On the Continuing Relevance of Trying to Understand Russian Approaches to International Law

Kulish and Lundstedt end their review by coming back to the critical question posed at the beginning of their essay whether there is any value in trying to understand Russian approaches to international law if “Russia’s belief is not in their arguments, but that they can get away with them”. Although it is formulated as a rhetorical question, Kulish and Lundstedt arguably provide the answer themselves when they conclude in almost the same breath that my book “reveals a distinct pattern in Soviet and Russian state practice in self-determination” and that the Russian invasion of Ukraine in 2022 “only heightens its relevance”. Where we disagree is that Kulish and Lundstedt seem to think that “accepting at face value the legal justifications provided by a state” makes one somehow complicit with these positions. I don’t agree and continue to be convinced that critically engaging with Russian approaches to international law is a relevant exercise. As I have also shown above, the unclear standard of self-determination in international law leaves a lot of room for manoeuvre for opinion, while the field’s taken for granted, unquestioned truths is relatively small. However, this does of course not mean that everything is relative. Certain arguments simply make no sense, because they are badly reasoned, are found not in established facts, contradict other arguments of the same actor, have no basis in international custom or treaties, etc. (p. 8). Whenever this was the case for Russian arguments, I made a serious effort to deconstruct and reject them.

The main reason why it continues to be relevant to take Russia and their advocates seriously is simple. As long as they employ the language of international law to justify Russia’s actions, it will be important to critically engage with these arguments, even if only to reject them as nonsense. Beyond the right to self-determination, other concepts of international law could be similarly prone to abuse, and it will be critical to have a certain understanding of Russia’s interpretation of these concepts when they are tested in international forums. A possible example is the purported relevance of historical rights within the framework of prescription, resulting in the argument that a lapse of time can eventually “cure” an initially illegal act and create title to territory, even when acquired through the use of force (see already the brief discussion in my book on pp. 200–2). Suspiciously, this concept of historical consolidation of title was revitalized in Russian academia right around the time of Russia’s annexation of Crimea with an article co-authored by Alexander Vylegzhanin, the head of the international law department of one of Russia’s most prestigious universities, the Moscow State Institute of International Relations (MGIMO). As had already been noted in Mälksoo’s book (Mälksoo, pp. 139–40), Vylegzhanin is renowned for his contributions to territorial issues and his efforts to look for ways how international law can be used in Russia’s interest, until then in particular in relation to the Arctic Ocean and its continental shelf (for an overview of his main publications in English see here). Since Russia’s annexation of Crimea, Vylegzhanin has published a series of articles in which he challenges dominant interpretations of international law also in other areas (see, e.g., here, here, here, here, and here). It is therefore worrying to note that Vylegzhanin has recently started to act as an arbitrator in the case of the Sea of Azov registered at the Permanent Court of Arbitration. Although the case will not address sovereignty over the inland shelf sea connected to the Black Sea, Russia has recently questioned adherence to the UN Convention on the Law of the Sea and has announced that the Sea of Azov will be named “Russian internal waters”.

I ended my book with a call for conscious efforts in bridging existing translation problems between different national approaches to international law as arguably the only way towards a utopian “epistemic universalism” where arguments can be understood and replicated by individuals independent from their national background (p. 212). As I made clear, this includes rejecting arguments of international law when they are indefensible. To remain credible however, this calling out must arguably also be directed at one’s own academic community. With respect to the German-speaking discourse, it is therefore sobering to observe that there was room for Michael Geistlinger’s justification of Russia’s annexation of Crimea in a well-regarded international law journal as well as in the Handbook on the Russian Constitution, an edited commentary with contributions from almost the entire German-speaking Ostrecht community.  Geistlinger repeated these claims in a Russian journal article which is widely referenced in Russian scholarship. Needless to say, but these are not the kinds of bridge-building efforts I had in mind.

As this example shows, the tradition of Ostrecht has its own complicated history and controversial representatives. Nevertheless, especially the younger generation of German-speaking scholars should arguably not forget about and continue to critically engage with the scholarship, insights and legacies it has produced when researching comparative aspects of international law today.