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Treaties and Other Sources of Order in International Relations: The Soviet View*

Published online by Cambridge University Press:  28 March 2017

Jan F. Triska  and
Robert M. Slusser
Jan F. Triska
Affiliation:
Cornell University
Robert M. Slusser
Affiliation:
Hoover Institution on War, Revolution and Peace, Stanford University
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Extract

Speaking before the American Society of International Law, Aleksandr Troianovski, the first Soviet Ambassador to the United States, summed up his views on the basic sources of order in international relations. He began by rejecting the idea of a “supernational support” for international law, since the source of the rules regulating the relations among nations “lies in the nations, and not in a superforce acting from above the nations.”

Type
Research Article
Information
American Journal of International Law , Volume 52 , Issue 4 , October 1958 , pp. 699 - 726
Copyright
Copyright © American Society of International Law 1958

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Footnotes

*

This study was written in connection with the Soviet Treaty Project being conducted at the Hoover Institution on War, Bevolution and Peace, Stanford University, under the direction of the authors. The findings of the project are to be published in three volumes, tentatively entitled Calendar of Soviet Treaties, Analysis of Soviet Treaties, and Bibliography on Soviet Foreign Policy (all 1917-1957), by the Stanford University Press in the Hoover Institution Documentary Series in 1959-1960.

References

1 Address delivered on April 28, 1934, 1934 Proceedings, American Society of International Law 195-196.

2 For earlier treatment of the subject in the West, see Josef Kunz, ‘ ‘ Sowjet-Bussland und das Völkerrecht,” 13 Zeitschrift für Völkerrecht 580 (1926); B. Mirkine- GuetzéVitch, “ La doctrine soviétique du droit international public,” 33 Revue général de droit international public 69 (1926) ; idem, “Les Traités internationaux de la Russie sovietique,” Eevue de droit international, 1928, p. 1012; A. N. Makarov, “Die Vijlkerrechtswissenschaft in Sowjet Eussland,” 6 Zeitschrift fiir ausländisches öffentliches Eecht und Völkerrecht 479 (1936); T. A. Taracouzio, “The Effect of Applied Communism on the Principles of International Law,” 1934 Proceedings, American Society of International Law 105; idem, The Soviet Union and International Law 13 (New York, 1935); Brown, Philip M., “ The Russian Soviet Union and the Law of Nations,” 28 A.J.I.L. 733 (1934)Google Scholar; John N. Hazard, “The Soviet Concept of International Law,“ 1939 Proceedings, American Society of International Law 33; Ivo Lapenna, Conceptions soviétiques du droit international public 160 (Paris, 1954); Boris Meissner, “Die Sowjetische Bewertung der Völkerrechts-Quellen,” 1 Osteuropa Eecht 2 (1955); idem, Die Sowjetunion, die Baltischen Staaten und das Volkerrecht 165 (Cologne, 1956).

3 Golubev, N. N., ‘ ‘ Novye zadaehi sovremennoi nauki mezhdunarodnogo prava,'’ Pravo i zhizn', No. 3 (1922), pp. 36-44.Google Scholar

4 Kotliarevski, S. A., “Krizis mezhdunarodnogo prava “ (The Crisis of International Law), Pravo i zhizn', No. 1 (1922), pp. 80-82.Google Scholar

5 Golubev, loc. cit. 36.

6 Cf. Triepel, Völkerrecht und Landesrecht (1899), and Bergbohm, Staatsverträge und Gesetze als Quellen des Völkerrechts 77 ff., for the famous controversy of the early part of the twentieth century concerning the distinction between “treaty-contracts“ (Verträge, traités-contrats) and “law-making treaties” (Vereinbarungen, traitiés).

7 Korovin, Te. A., Mezhdunarodnoe pravo perekhodnogo vremeni (International Law of the Transitional Period) (Moscow, 1924).Google Scholar

8 Ibid. 25-26.

9 Ibid. For a slight change in emphasis, see Korovin, Sovremennoe mezhdunarodnoe publichnoe pravo (Contemporary International Public Law) 8-9 (Moscow-Leningrad, 1926). In the latter Korovin added that “decisions of the highest organs of the League of Nations constitute a source of international law for member states.“

10 Mezhdunarodnoe pravo perekhodnogo vremeni, op. (At. 26.

11 Korovin, “Soviet Treaties and International Law,” 22 A.J.I.L. 753 (1928), italics added. While the first part of Korovin's statement was true, the second part was not: we have found 29 references to principles or common practice of international law in 20 Soviet treaties concluded with partners other than Germany between 1920 and 1927. See the treaties with Estonia of Feb. 2, 1920, Art. 7, par. 4b; Georgia, May 7, 1920, Art. 5, par. 8; Latvia, Aug. 11, 1920, Art. 4, par. 4; Persia, Feb. 26, 1921, Art. 22; Afghanistan, Feb. 28, 1921, Art. 3; Latvia-Ukraine, Aug. 3, 1921, Preamble and Art. 2, par. 4; Norway, Sept. 2, 1921, Art 2, par. 2 and Art. 4, par. 2; Estonia-Ukraine, Nov. 25, 1921, Preamble, Art. 3, par. 4 and Art. 14; Austria, Dec. 7, 1921, Art. 6, par. 1, Art. 8, par. 1, and Art. 12; Italy, Dec. 26, 1921, Art. 4; Turkey-Ukraine, Jan. 2, 1922, Art. 11; Finland, June 1, 1922, Art. 6; Czechoslovakia, June 5, 1922, Arts. 2 and 16; Czechoslovakia-Ukraine, June 6, 1922, Arts. 2 and 16; Denmark, April 23, 1923, Art. 1, par. 4 and Art. 3, par. 4; Italy, Feb. 7, 1924, Art. 1; Sweden, March 15, 1924, Art. 3; Norway, Dec. 15, 1925, Art. 1; Turkey, March 11, 1927, Art. 13; and Sweden, Oct. 8, 1927, Art. 6.

12 Korovin, Mezhdunarodnye dogovory i akty novogo vremeni (International Treaties and Acts of the Modern Period) 225 (Moscow-Leningrad, 1925); idem, Mezhdunarodnoe pravo perekhodnogo vremeni, op. cit. 27. Italics added.

13 Sabanin, Andrei, “Pervyi sovetskii kurs mezhdunarodnogo pra va “ (The First Soviet Course in International law), Mezhdunarodnaia zhizn', No. 2 (1925), pp. 119-120.Google Scholar

14 Ye.Pashukanis, , Ocherki po mezhdunarodnomu pravu (Essays on International Law), Ch. 2 (Moscow, 1935).Google Scholar

15 Ibid.

16 Ibid. Pashukanis again divided international conventions into ‘ ‘ (a) general treaties in which general principles are established and the parties to which are all or a majority of states (for example the Geneva Convention on Aid to the Wounded in War of 1864; the General Documents of The Hague Conferences on the Law of War of 1899-1907, etc.) and (b) treaty-contracts which establish obligations between or among parties and which do not constitute general rules.” “This distinction,” he wrote, “ is quite conventional and it is difficult to draw a. dividing line between the two types of treaties.“

17 Ratner, L., “ Mezhdunarodnoe pravo v marksistskom osveshchenii” (International Law in the Marxist Interpretation), Sovetskoe gosudarstvo i pravo, No. 6 (1935), pp. 129-130.Google Scholar

18 Ibid.

19 Pashukanis, op. cit. Italics added.

20 Ibid.

21 See Pravda, Jan. 20 and April 27, 1937; T. Ingulov in Bol'shevik, No. 1 (1937); and especially M. Rapoport, “Protiv vrazhdebnykh teorii mezhdunarodnogo prava“ (Against Hostile Theories of International Law), Sovetskoe gosudarstvo, Nos. 1-2 (1937), pp. 92-98. Pashukanis was posthumously exonerated in September, 1956, and Vyshinski, who had led the attack on him, became the target of criticism instead. See Hazard John N., “Pashukanis is No Traitor,” 51 A.J.I.L. 385-388 (1957).

22 “Tezisy po mezhdunarodnomu pravu,” Sovetskoe gosudarstvo, No. 5 (1938), p. 119.

23 Ibid.

24 Kozhevnikov, F. I., “ K voprosu o poniatii mezhdunarodnogo prava” (On the Question of the Concept of International Law), Sovetskoe gosudarstvo i pravo, No. 2 (1940), p. 101.Google Scholar

25 Kozhevnikov, P. I., “Pravo mezhdunarodnoe,” 46 Bol'shaia sovetskaia entsiklo pediia, cols. 635-643 (Moscow, 1940).Google Scholar

26 Idem, Uchebnoe posobie po mezhdunarodnomu publichnomu pravu (Textbook on International Public Law) 32-34 (Moscow, 1947), reviewed in 43 A.J.I.L. 387 (1949). See also his “Sovetskoe gosudarstvo i mezhdunarodnye dogovory” (The Soviet State and International Treaties), in Korovin (ed.), S.S.S.R. i problemy mezhdunarodnogo prava (The U.S.S.R. and Problems of International Law) 81-82 (Moscow, 1947). For essentially the same point of view, though now supported by new evidence, see his article “Nekotorye voprosy teorii i praktiki mezhdunarodnogo dogovora” (Some Questions of the Theory and Practice of the International Treaty), Sovetskoe gosudarstvo i pravo, No. 2 (1954), p. 65: “The international treaty is the major legal source of contemporary international law. This statement, belonging to the number of universally recognized principles of this law, is affirmed by the United Nations Charter. Thus, in the Preamble to the Charter, it is indicated that there must be created ‘ … conditions, under which may be observed justice and respect for obligations, emanating from treaties and other sources of international law… .“ “The primary significance of treaties, in the mentioned respect, is quite evident from the Preamble. The International Court of Justice of the United Nations, which is bound to resolve disputes submitted to it on the basis of international law, employs primarily international conventions, general as well as the special ones, which establish the rules, specifically recognized by the states in dispute (Art. 38 of the Charter of the International Court of Justice).“

27 S. B. Krylov in V. N. Durdenevski and S. B. Krylov (eds.), Mezhdunarodnoe pravo 20-21 (Moscow, 1947). See also Krylov, S. B., “La doctrine sovifitique du droit international,“ 70 Hague Academy Recueil des Cours 411-474 (1947, I ).Google Scholar

28 Mezhdunarodnoe pravo, loc. cit. 21. “Naturally, the great majority of treaties are bilateral for the simple reason that if each of the over 60 states concludes a single (bilateral) treaty with all the others, the result is 1770 treaties.” “La doctrine sovi6tique,“ loc. cit. 437.

29 Mezhdunarodnoe pravo, loc. cit. 23. Krylov cited the Soviet Consular Charter and the Code of Commercial Navigation of the U.S.S.E. as examples of the application of custom.

30 A distinction which Art. 38 (1) of the International Court of Justice, through “the curious drafting … tends to distort.” Herbert W. Briggs, The Law of Nations: Cases, Documents and Notes 46 (London, 2nd ed., 1953).

31 Mezhdunarodnoe pravo, loc. cit. 24.

32 Ibid. Decisions of “the highest organs of the League of Nations” had been introduced as far back as 1926 by Korovin as a third source of international law, though only for members of the organization. See note 9 above.

33 Ibid. 24-25. Italics added.

34 Krylov, S . B., “K obsnzhdeniu voprosov teorii mezhdunarodnogo prava” (Concerning the Discussion of Questions of the Theory of International Law), Sovetskoe gosudarstvo i pravo, No. 7 (1954), p. 78.Google Scholar

35 Mezhdunarodnoe pravo, loc. cit. 24-25.

36 Ibid. 25-26.

37 Ibid.

38 “Mezhdunarodnoe pravo” in A. Ya. Vyshinski (ed.), Diplomaticheskii slovar', Vol. 2, cols. 123-131 (Moscow, 1950). The article may well have been written by Korovin, who was a member of the editorial committee.

39 Vyshinski, A. Ya., ‘’ Mezhdunarodnoe pravo i mezhdunarodnaia organizatsiia,'' Sovetskoe gosudarstvo i pravo, No. 1 (1948), p. 22.Google Scholar

40 Ibid.

41 Korovin, Ye. A., Mezhdunarodnoe pravo 16 (Moscow, 1951)Google Scholar. The volume -was prepared by a committee of members of the Institute of Law under the general direction of Korovin. Although approved for publication in August, 1950, it was not sent to the printer until April, 1951. See review in 46 A.J.I.L. 583 (1952).

42 Note 39 above.

43 Mezhdunarodnoe pravo, op. cit. 16-17.

44 Ibid. 18-19.

45 Polianski, N. N., Mezhdunarodnyi sud (Moscow, 1951).Google Scholar The volume was edited by Korovin.

46 Note 39 above.

47 Polianski, op. cit. 123.

48 Ibid. 127-128.

49 Ibid. 128-130.

50 Lisovski, V. I., Mezhdunarodnoe pravo (Kiev, 1955)Google Scholar; reviewed in 51 A.J.I.L. 135 (1957).

51 Op. cit. 28.

52 Ibid. For comparison, see Korovin, above.

53 Ibid. Italics added.

54 V. S., ‘ ‘ Obsuzhdenie knigy V. I. Lisovskogo, Mezhdunarodnoe pravo'’ (Discussion of the book by V. I. Lisovski, International Law), Sovetskoe gosudarstvo i pravo, No. 6 (1956), p. 121.

55 John N. Hazard, review of Lisovski's book in 51 A.J.I.L. 135 (1957).

56 The attack by Soviet scholars on Lisovski's book followed in the pattern of the blistering criticism accorded his earlier book on the unification of the Ukraine with Kussia (Kiev, 1954). See the review in Sovetskoe gosndarstvo i pravo, No. 5(1955), pp. 146-149.

57 Shurshalov, V. M., Osnovaniia deistvitel'nosti mezhdunarodnykh dogovorov (Moscow, 1957).Google Scholar

58 Ibid. 130-131. Italics added.

59 Ibid. 140-144.

60 Ibid. 148-154.

61 Pashukanis, Ocherki, loc. cit.

62 Diplomaticheskii slovar', op. cit., col. 124.

63 Krylov in Durdenevski and Krylov, op. cit. 16; Durdenevski, ibid. 113; Kozhevnikov, Uchebnoe posobie, op. cit. 24-25; Diplomaticheskii slovar', cols. 124-125; Levin, D. B., Sovremennoe mezhdunarodnoe pravo, No. 4, p. 268 (Moscow, 1946)Google Scholar; Shurshalov, op. cit. 138-158.

64 Diplomaticheskii slovar', cols. 124-125. For official sources of these “principles“ and “concepts,” see 1 Mezhdunarodnoe pravo v izbrannykh dokumentakh (International Law in Selected Documents) 5-21 (ed. by L. A. Modzhorian and V. K. Sobakin, Moscow, 1957). The following documents are printed: (1) Arts. 1 and 2 of the U. N. Charter (Purposes and Principles); (2) Declaration of the Supreme Soviet of the U.S.S.R. of Feb. 9, 1955 (on peace, equality, non-intervention, non-aggression, sovereignty, national independence, peaceful co-existence, and against a new war); (3) Joint Declaration of the Soviet Union and the Chinese People's Republic of Oct. 12, 1954 (on mutual respect for sovereignty and territorial integrity, non-aggression, nonintervention in domestic affairs, equality and mutual interest, peaceful co-existence, and for creative international co-operation) ; (4) Joint Statement of the Chairman of the Soviet Council of Ministers, N. A. Bulganin, and Indian Premier Nehru, of June 22, 1955 (on mutual respect for territorial integrity and sovereignty; non-aggression; non-intervention in domestic affairs whatever the motives—economic, political or ideological; equality and mutual interests; and peaceful co-existence); (5) Joint Statement of the Chairman of the Soviet Council of Ministers, N. A. Bulganin, and the Premier of the Union of Burma, U Nu, of Nov. 3, 1955(on mutual respect for territorial integrity and sovereignty; nonaggression; non-intervention in domestic affairs; equality and mutual interests; peaceful co-existence and economic co-operation); (6) Declaration of the Governments of the U.S.S.R. and the Federative People's Republic of Yugoslavia of June 2, 1955 (on indivisibility of peace; collective security; respect for sovereignty; independence, territorial integrity and equal rights in relations with other states; recognition and development of peaceful co-existence independent of ideological differences and differences in social structure; mutual respect and non-intervention in domestic affairs whatever the causes—economic, political, ideological—since “differences in social structures and concrete forms of development of socialism are exclusively a problem of the different countries [sicl“; on “development of bilateral and international economic cooperation … to aid the U.N.; … against propaganda which spreads distrust among nations; … against domination of some countries over others; … and against military b l o c s “ ) ; (7) Agreement between the Chinese People's Republic and the Republic of India concerning trade and relations between the Tibet District of China and India of April 29, 1954(on mutual respect for territorial integrity and sovereignty; mutual nonaggression; non-intervention in domestic affairs; equality and mutual interest; and peaceful co-existence); (8) Communique1 about discussions between Prime Minister and Foreign Minister of the Chinese People's Republic Chou En-Lai and Prime Minister and Minister of Foreign Affairs of India Nehru of June 28, 1954 (on mutual respect for territorial integrity and sovereignty; non-aggression, non-intervention in domestic affairs; equality and mutual interests; and peaceful co-existence. “The Prime Ministers expressed the hope that these principles would be accepted not only in relations among various countries but also in international relations in general as fundamental principles of peace and security, irrespective of social and political systems in different coun t r i e s “ ) ; (9) Declaration on assistance to universal peace and co-operation accepted at the Conference of Asian-African Countries in Bandung on April 24, 1955 (on the interdependence of peace and international security through the U.N.; on effective international control of weapons and armaments; on the utilization of atomic energy for peaceful purposes; on the interdependence of freedom and peace; on social progress and freedom; the right to self-determination and independence as soon as possible for dependent countries; freedom to select their own political and economic system, their own way of life in accordance with objectives and principles of the U.N. Charter; on the respect for fundamental human rights and also the objectives and principles of the U.N. Charter; respect for sovereignty and territorial independence of all countries; recognition of equality of all races and all nations large and small; non-intervention in domestic affairs of other countries; respect for rights of all countries for individual and collective defense in accordance with the U.N. Charter; refraining from agreements concerning collective defense in the private interest of any big Power; refraining from exerting pressure on other countries; regulation of international disputes by peaceful means such as conciliation, arbitration, judicial decisions as well as other peaceful means which the parties may choose in accordance with the Charter of the U.N.; mutual interest and cooperation; and respect for justice and international agreements).

65 The rationale of the Soviet use of concepts of international law was frankly stated by L. Ratner: “Our task is not the creation of some new system of international law, but simply the application, the employment and, if necessary, the advancement of those concepts of international law which objectively aid the U.S.S.S. in its struggle for peace and for the realization of its great goals concerning the building of socialism. “We will utilize even the old concepts of international law which will serve these goals. Let us take, for example, the principle of sovereignty, which is not at all a socialistic principle, but which we nevertheless support because it helps us mobilize the strength of the oppressed peoples for a joint struggle against imperialism and is an important slogan in the national liberation struggle in the East . “ L. Ratner, Mezhdunarodnoe pravo v marksistskom osveshchenii, op. cit. 131-132.

66 Not counting Monaco, Liechtenstein and Andorra, the U.S.S.R. has had some treaty relations with all the countries of the world except the Republic of Korea, South Vietnam, and the Vatican City. (In the Soviet usage, the term “ treaty “ covers all agreements between governments founding relationships in international law, whatever their name, but excluding oral agreements).

67 For summaries of Lenin's and Stalin's views on treaties as a source of international order between the Soviet Government and other governments, see G. P. Zadorozhnyi, “Voprosy mezhdunarodnogo prava v proizvedeniiakh Lenina i Stalina” (Problems of International Law in the Works of Lenin and Stalin), in Korovin, Ye. A. (ed.), Mezhdunarodnoe pravo 101 (Moscow, 1951)Google Scholar; Korovin, Ye. A., “Vklad SSSR v mezhdunarod- *noe pravo,” (The Soviet Contribution to International Law), Sovetskoe gosudarstvo i pravo, No. 11(1947), p. 23 Google Scholar; and Kozhevnikov, F. I., “ I . V. Stalin ob osnovnykh printsipakh sovremennogo mezhdunarodnogo prava “ (J. V. Stalin on the Basic Principles of Contemporary International Law), Sovetskoe gosudarstvo i pravo, No. 12 (1949), p. 104.Google Scholar

68 These figures are provisional and subject to revision, but may be taken as established minima.

69 Korovin, Mezhdunarodnoe pravo perekhodnogo vremeni, op. cit. 5.

70 Ibid. 75; Sovremennoe mezhdunarodnoe publiohnoe pravo, op. cit. 7.

71 Note 24 above.

72 Pashukanis, Ocherki, loc. cit. (note 14 above).

73 Briggs, The Law of Nations, op. cit. (note 30 above) 48.

74 Krylov in Durdenevski and Krylov, op. cit. 25.

75 Talalaev, A. N., “V. I. Lenin o mezhdunarodnykh dogovorakh” (V. I. Lenin on International Treaties), Sovetskoe gosudarstvo i pravo, No. 4 (1958), p. 24.Google Scholar The reference is to Lenin, Socbineniia, Vol. 23, p. 116.

76 Krylov in Durdenevski and Krylov, op. cit. 20.

77 Diplomaticheskii slovar', op. cit., cols. 124-125.

78 Mezhdunarodnoe pravo v izbrannykh dokumentakh, op. cit. 12-21.

79 See, for example, Fenwick, Charles G., International Law 69 (3rd ed., New York, 1948).Google Scholar

80 Charles De Visscher, Theory and Reality in Public International Law 156 (Princeton, 1957). Italics added.

81 Ibid. 268. See also Covey Oliver, T., “Contemporary Problems of Treaty Law,“ 88 Hague Academy Recueil des Cours 421-506 (1955, II )Google Scholar , which is essentially an eloquent plea for the salvation of international law through increased attention to international treaties. Professor Oliver lists treaties as the first and most important source of international law (pp. 453 ff.)

82 Similarly, the old distinction between treaty-contracts and treaty-laws, which the Soviet doctrine has rather consistently played down (c/. Korovin, Pashukanis, Kozhevnikov, Krylov et al., above), is at present minimized in the West as well, and both types of treaties are viewed as essential in the process of creation of norms of international order today. As J. G. Starke pointed out in his conclusion to “Treaties as a ‘Source' of International Law,” 23 Brit. Year Book of Int. Law 346 (1946), not only treaty law but “ t h e operation of treaty-contracts in the creation of rules of international law is generically part of the process whereby usage and practice crystallize into custom; and because of the peculiar authority of treaties the process is invested with additional value and weight. For this reason, apart from their constitutive effect, these treaties may often be of considerable evidential importance.“

83 The conceptual evolution which we have traced is a continuing process. A recent authoritative Soviet statement on the subject is provided in an address by Professor G. I. Tunkin, “ Forty Years of Co-existence and International Law,” which was read at the first annual session of the newly-organized Soviet Association of International Law held in Moscow, January 30 to February 1, 1958 (International Affairs (Moscow), No. 3 (1958), p. 125). Professor Tunkin recognized only two sources of “general international law“: international treaties and international usage. He nevertheless “pointed out that new progressive principles and norms … have appeared in general international law,” for example, “ the prohibition of the use of force in international relations.''