The Degradation of the International Legal Order?

The Rehabilitation of Law and the Possibility of Politics

Bill Bowring

• Publisher: Routledge-Cavendish
• Year: 2008
• ISBN:
  9781135330903
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Providing the basis for critical engagement with the pessimism of the contemporary age, The Degradation of the International Legal Order? argues passionately for a rehabilitation of the honour of historic events and processes, and of their role in generating legal concepts. Drawing primarily from the Marxian tradition, but also engaging with a range of contemporary work in critical theory and critical legal and human rights scholarship, this book analyses historical and recent international events and processes in order to challenge their orthodox interpretation. What is thus proposed is a new evaluation of international legal principles and human rights norms, the revolutionary content of which, it is argued, turns them from mere rhetoric into powerful weapons of struggle.

Accessibly written, but theoretically sophisticated, this original and timely book is intended for critical teachers and students of international law, human rights, and international relations, as well as legal and political activists.

Chapter 1
Self-determination – the revolutionary kernel of international law

Introduction

In this chapter I set the scene by examining the historical origins of what is for me the most significant gain of post World War II international law, the right of peoples to self-determination.¹ It is my case that this was welded to international law in the context of the Russian Revolution, in theoretical and practical struggles both before and after October 1917. This leads me to an analysis of the contradictions of Soviet international law, and, necessarily, to the question whether a Marxist theory of international law is possible. This section takes the form of a respectful engagement with the work of China Miéville, whose Between Equal Rights is the most important recent contribution to the field. Finally, I contrast the Soviet theory of international law, positivist to the core, with Soviet practice. The USSR gave crucial support for the anti-colonial movement, while ruthlessly suppressing deviation within the Soviet camp.

Soviet international law neglected

The Soviet theory and practice of international law, if it is the subject of any consideration today at all, is usually dismissed as a purely historical example of an extreme species of positivism, and of no contemporary interest. Most often it is ignored. For example, in his article ‘What Should International Lawyers Learn from Karl Marx?’,² Martti Koskenniemi does not mention Soviet international law at all. Even an avowed Marxist scholar of international law does little more. In his article,³ ‘An Outline of a Marxist Course on Public International Law’⁴ B. S. Chimni contrasts the definition of ‘treaties’ in what he terms ‘Mainstream International Law Scholarship’:

…with the definitions offered by the Soviet scholars Korovin and Pashukanis: ‘Every international agreement is the expression of an established social order, with a certain balance of collective interests’;⁵ ‘A treaty obligation is nothing other than a special form of the concretization of economic and political relationships’.⁶ These definitions, through drawing in extra-textual reality, offer greater insight into the meaning of a treaty than the formal definition offered by MILS. They refer us to both the fact of an established (capitalist) social order and to its concretization as economic and political rules embodying a certain balance of collective (class) interests.⁷

However, these authors are not introduced save as ‘Soviet scholars’, no context at all is given, nor the fact that they were bitter enemies. Soviet international law even in this Marxist account barely exists; in the standard genre of the history of international law it is mentioned only to be dismissed.

I wish to take a very different position. I seek to argue in the following paragraphs that the contradictions of Soviet international law have generated some of the most important propositions and principles of contemporary international law, and are of continuing relevance.

This chapter starts with a typical description in the standard genre, by a distinguished contemporary international legal scholar. I then trace the development of Soviet international law through a double refraction: what it said about itself, in some bitterly fought theoretical struggles; and what was said about it by the attentive scholars of the United States. For this purpose I trace the trajectory of Yevgeny Pashukanis, the best known Marxist theorist of law in the West, in part as refracted in the writings of US scholars of international law. I show that despite following developments in Soviet international law with close interest, these observers entirely misunderstood what they sought to analyse. It should be said that the leading Soviet theorists did so too. This tradition of misunderstanding has continued until the present day. I contend that this is true also of the most sophisticated and committed of contemporary Marxist scholars of international law, China Miéville. I engage respectfully with his impressive work.

More importantly however, there was in my contention a clear-cut contradiction between the positivism of the legal textbooks, and the actual practice of the Bolshevik and then Soviet doctrine of the ‘Right of Peoples to Self-Determination’. Thus, the USSR gave enormous material and moral support to the National Liberation Movements, and led the successful drive to see the principle and then right to self-determination placed at the centre of public international law in the twentieth and twenty-first centuries.

The standard account of Soviet international law

Western scholars are familiar with what is generally termed the ‘Marxist-Leninist theory’ in international law, and with its standard characterisation.⁸ Iain Scobbie in a recent comparison of Soviet and ‘New Haven’ theories refers to ‘the Soviet theory of international law propounded by G. I. Tunkin’.⁹ For Scobbie, Soviet theory amounted to a ‘constitutive’ (rather than a ‘facilitative’) theory.¹⁰ It relied on ‘the objective rules of societal development and the historical inevitability of socialism’.¹¹ That is, it was thoroughly mechanical in spirit and exposition.

There can be no surprise that Scobbie refers only to Tunkin. William Butler’s translation of Tunkin’s textbook made available to a Western audience the only substantial Soviet text in English on international law.¹² Tunkin, born in 1906, died aged 87 in 1993, while completing the last edition of his Theory of International Law, and having just submitted an article – on customary international law – to the European Journal of International Law. Here he wrote of the attempt ‘… to create a new world order based on the rule of law’.¹³

Scobbie comments that Soviet theory was structurally highly traditional, and firmly rooted in Marxist-Leninist theory to the extent that ‘at times, it seems simply to amount to taking the dogma for a walk’.¹⁴ This was certainly true of Tunkin’s textbook. It was also very conservative, recognising only rules and State consent to rules: as Damrosch and Müllerson explained it, Soviet theory treated ‘the existing corpus of international law as a system of sufficiently determinate principles and norms which all states are obliged to observe in their mutual relations …’.¹⁵ As a direct consequence, Soviet theory rejected ‘the general principles of law recognised by the civilised nations’.¹⁶

The existence of two opposed social systems meant that the only norms of ‘customary’ or ‘general’ international law could be those which were neither socialist nor capitalist. Tunkin asserted that: ‘only those international legal norms which embrace the agreement of all states are norms of contemporary general international law.’¹⁷ Thus, Soviet theory recognised only treaties and custom – narrowly defined as above – as sources of international law.

The US scholar Alwyn Freeman (1910–1983),¹⁸ writing much earlier, also noted that Soviet international law embraced:

…the most extreme form of positivism … The Soviet brand of positivism is much more restricted, much narrower, and is, in sum, a rejection of a great portion of international legal principles … Soviet positivism has been distinguished by the exclusion of customary practice as a source of international obligations. It views international law as embracing only those principles to which states have expressly consented through an international agreement or have otherwise manifested their acquiescence.¹⁹

Indeed, writing in 1948, at the time of his frenetic activity in the United Nations as leader of the Soviet delegation, the notorious Andrey Vyshinsky²⁰ wrote that: ‘… the Soviet theory of international law regards the treaty, resting on the principles of sovereign equality of peoples and the respect for mutual interests and rights as the basic source of international law. This secures for international law and its institutions full moral as well as juridical force since at their base will lie the obl...

Table of contents

• Contents
• Table of cases
• Introduction
• Chapter 1 Self-determination – the revolutionary kernel of international law
• Chapter 2 The degradation of international law?
• Chapter 3 The legality of the invasion and occupation of Iraq
• Chapter 4 After Iraq – international human rights law in crisis
• Chapter 5 Ideology in international law, and the critique of Habermas
• Chapter 6 A substantive account of human rights
• Chapter 7 Human rights as the negation of politics?
• Chapter 8 ‘Postmodern’ reconstructions of human rights
• Chapter 9 The challenge of methodological individualism
• Chapter 10 The scandal of social and economic rights
• Chapter 11 The problem of ‘legal transplantation’ and human rights Introduction
• Conclusion – what have I sought to do in this book?
• References
• Index