0. Prologue
If you had to summarise your life in two paragraphs, how would you present yourself?
I would say that I was lucky, at least professionally, to have three lives. I grew up and went to school in Estonia (which was then of course part of the Soviet Union, but had kept a separate cultural identity). When I was drafted against my will to the Soviet Army I found myself in Moscow. After my athletic career in the capital of the USSR I entered Moscow University and was for quite some time what you may call an ‘ivory tower’ scholar in the same university and later at the Academy of Sciences of the USSR. Things changed radically at the end of the 1980s, not only for the country, but for me personally as well. In 1987, I became the Head of the International Law Department at the Academy of Sciences of Moscow. This prompted a change of ‘hat’, as I became also an advisor on international law matters to Mikhail Gorbachev. During that period, I was elected to the membership of the United Nations (UN) Human Rights Committee. After the collapse of the Soviet Union, I became the first deputy foreign minister of Estonia. From that post I moved to London, and was at first professor at the LSE (a Centennial Professor), then at King’s College. My London years added to my set of experiences not only a Western dimension, but also allowed me to satisfy my curiosity regarding non-Western worldviews and cultures: Besides working in 2004 and 2005 as UN Regional Advisor for Central Asia, I visited the region multiple times in various other capacities. Hence, I have been almost equally influenced by three different cultures; my initial small country mentality has been ‘spoilt’ by great-power mindsets attained in two different imperial capitals – Moscow and London. Such a mixture, uncomfortable sometimes at a personal level, gives wider perspectives at a professional level.
1. Of the deep past and of second chances
The past feels very much like a foreign country when a people confronts the repressed elements of their history, or when an individual human being discovers parts of the biography of her grandparents which were unknown to her. In your memoires,Footnote 1 there are very touching passages precisely about this radical foreign character of some element of your past, as an individual and as an Estonian.
At a personal level, it was extremely important for me to learn about my family history when I was already well over fifty. It was a genuine revelation. However, no matter how interesting it was, I do not think it changed my views or my position as a scholar. What disturbs me deeply is how collective memories can shift from one extreme to another, so to say. The Soviet occupation of Estonia made life harsh for many; my father was one of those who were sent in 1941 to Siberia, barely two weeks before the Nazi invasion. My grand-uncle was a general in the Estonian army who escaped to Sweden, and from there to London. Does this justify considering those Estonians who fought, sometimes in SS uniform, against the Soviets as our national heroes? Does the negative experience of the Soviet occupation turn the Nazis into liberators? That seems to me totally wrong. Think about the monuments to the Estonians who were part of the SS. Or think about Stepán Bandera, who many in Ukraine now regard as a national hero, despite being responsible of the extermination of scores of Jews and Poles. Fighting one evil cannot result in whitewashing other evils. I find that extremely disturbing. Propaganda plays a key role in that regard. Many people in the USSR were brainwashed, but manipulation of the public opinion has become more intense and sophisticated also in the West. This is the impression I get while watching Russian news. I see how people are brainwashed. But then I shift to Estonian or British channels and I am forced to draw the same conclusion. Maybe some French sources are a bit more sophisticated. The content and the direction of the propaganda are different in the East and the West, but the techniques are rather similar.
You were more than three times lucky perhaps. Your passion for sports made you abandon your studies quite early, and it was not until you were 25 that you went back to finish your secondary education. You got a second chance to make something different out of your life. That is quite remarkable. And something which perhaps teenagers do not enjoy nowadays.
Friends and schoolmates at Moscow University keep on telling me that even if it may have been true that the Bolshevik revolution of 1917 was a disaster for Russia and for the world, as I would argue, my own case proves that it had also positive side effects. And I was not the only one. My colleague and friend Allan Pellet, the doyen of French international law, was of a similar view when we first met in Geneva at the end of the 1980s: the Soviet system may have had many negative aspects, but it had also allowed you to restart your life at 25 and now you – an Estonian – represent a superpower in the UN on human rights matters. This wouldn’t have been so easy in the bourgeois West. It is all true, but it is not fair to judge historical events depending on their impact on personal success or failure.
2. The Moscow years
What kind of institution was the Academy of Sciences in Moscow, and in particular the State and Law Institute in which you worked?
My perception is much shaped by the leeway that my supervisor and mentor, Grigory Tunkin,Footnote 2 allowed me. Starting with the theme of my dissertation, which was rather ‘classical’ even by ‘Western’ standards: it focused on the law of treaties. I became also interested in the life and works of Friedrich Martens, a Russian international lawyer of Estonian origin, who made his career in St Petersburg, becoming an advisor to Tsar Nicolas II almost a hundred years before I became an advisor to President Gorbachev. As my thesis was mostly written in The Hague Academy of International Law, it did not contain any references to Marx and the ‘founding fathers’ of the USSR. Tunkin read it and approved. However, immediately somebody drew my attention to this terrible omission (political incorrectness, in today’s parlance) and I had to pepper the already finished text with the ‘necessary’ references. It goes without saying, that in Moscow in the 1970s, such an omission could have had dangerous consequences for me.
What were your key cultural references?
My military service, notwithstanding that I did almost everything to avoid being conscripted, helped me to discover my aptitude for languages. I quickly became proficient in Russian and could even converse in Latvian and Georgian. After 15 days of confinement (for going AWOL) together with a guy from Ukraine, I could babble also in Ukrainian. Later, while teaching in Guinea Bissau, I also learnt Portuguese. In parallel with my law studies at Moscow University, I also graduated as English-Russian interpreter from the Faculty of Languages. This was particularly helpful since it allowed me to listen to the BBC World Service, and through it, to somewhat overcome the ‘narrow’ perspectives of the Soviet media. I studied languages not only because I was interested in international law but also because I wanted to ‘break free’ of the confines of forced ‘like-mindedness’. Now not only Russia is in that respect moving back closer to the Soviet past but the West is following suit. Any information differing from the accepted mainstream is considered as a virus against which people have to be inoculated (i.e. brainwashed). Today I am horrified by the closure of Russian ‘propaganda’ channels in the West and limitation of the access to Western ‘propaganda’ in Russia.
3. The Gorbachev years
Politicians tend to prefer legal advisers that act as fixers, solving problems in the less conspicuous manner possible. Still, in Dawn of a New Order you refer that your role as legal advisor to Gorbachev was different, more fitting into that of a lawyer that prevents problems by figuring out which consequences decisions might have. Can this role be played in a technical fashion, or does it require enormous amounts of political sensibility if only to understand how law will actually play out in society?
Most of the times I would get a call late at night asking for a few pages of executive reporting to be ready by the morning. Not infrequently, on the hoof assessments were required. How I performed my role as advisor depended very much on the exceptional character of those revolutionary times when we were in uncharted waters with few reference points. Consider the vexed question of the dispute on the sovereignty over the Kuril Islands. On this issue, for example, Gorbachev instructed me: ‘I don’t want the usual gibberish about “eternal Russian territories”. I can talk like that myself. I need a memo where not only our strong points are emphasised, but where the arguments, which the Japanese may use, would be also highlighted’. This was a period, rare not only in the history of the USSR but also in the life of any major power, where advisors could hardly guess dominant trends and mindsets of political leaders in order to modify their advice to please the Boss, as is often the case in many countries notwithstanding differences of their political systems.
I remember one meeting in the Soviet Foreign Ministry, chaired by Eduard Shevardnadze, that had an enormous impact on my career. The issue was the ratification or not by the Soviet Union of the Additional Protocol to the 1966 Covenant of Civil and Political Rights under which Soviet citizens could complain to the UN Human Rights Committee about violations of their rights. There were ministers and generals in the room, and it was quite obvious that ratifying the Protocol was not unproblematic. I had prepared a three-minute speech in favour of ratification. I stuck to it despite the fact that almost everybody else seemed to be against the ratification (and, may I add, I was perhaps the youngest and the lowest ranking person in the room). I left the meeting entertaining gloomy thoughts on my future career, or rather on the lack of it, despite its having be so far rather promising . However, the following morning I got a phone call from the Ministry. My candidature for the membership of the UN Human Rights Committee was to be announced. To put it mildly, that was not the most obvious outcome. But was one which broadened my mind. In particular, being at the UN gave me further insights into the different trends and positions within the Soviet state. I also remember quite vividly the discussion in the Committee of a report on human rights in Vietnam (then an ally of the Soviet Union), which was experiencing an outflow of forced migrants, the so-called ‘boat people’. I took the floor and engaged with the issue, touching upon why people fled and what the government could do to avoid this situation. The Vietnamese government made an official protest to the Soviet Embassy in Hanoi on this unfriendly behaviour of the Soviet representative in the UN. A meeting was held in the Soviet Foreign Ministry to discuss my case. Having listened to the experts, Shevardnadze concluded that the Vietnamese friends should be told that Müllerson was sitting in the Committee on his individual capacity (as was really the case), not as a representative of the USSR. He also added: ‘But do not tell our Vietnamese comrades that Müllerson is right’.
If you were now given not only the benefit of hindsight but also the chance to change what you did, what would you do differently?
I am not sure that this is a question that can really be answered. Retrospection is never enough: you have to be the right person, at the right time and at the right place. Few are capable and lucky enough to find themselves in such a situation. But the question is also slightly off the mark because I never enjoyed the kind of access to decision-making that would have been really determinant. But assuming that I had been the closest advisor to Gorbachev, and I would have been equipped with the benefit of hindsight, there are three things that I would have tried to change. Firstly, Gorbachev underestimated the force and implications of nationalism. Nationalism has played a liberating role against imperial domination, also in the USSR. But it has had also its dark side. Gorbachev underestimated the force of nationalism in the last days of the USSR. Secondly, the impact of economic reforms, and especially of the so-called ‘shock therapy’, was extremely negative. It was all shock and not much therapy. The absence of real reforms accounts for the oligarchisation of Russian society under Boris Yeltsin, leading to pillage and robbery at an industrial scale almost in the whole post-soviet world (Estonia being a rare exception). In that regard, it is funny that by means of freezing the assets of oligarchs in the recent months, the USA and the EU have increased the popularity of Putin in Russia (a result which Putin himself could have obtained had he confiscated their assets in 2000). Thirdly, both Gorbachev and Yeltsin were wrong in assuming the unqualified goodwill of the West vis-à-vis Moscow. Sincerely (Gorbachev) or opportunistically (Yeltsin), they tried to follow the trajectory of the West, especially of the USA. It was only a matter of time before such a policy led to a countermovement. The war in Ukraine (wrong and catastrophic for the Russians, and of course, for the Ukrainians) has only accelerated the speed of divergence.
4. The roaring 1990s, with the benefit of hindsight
Some argue that the tragedy of the last thirty years is that the solution of the German problem (first through European integration, then through reunification) came hand in hand with the recreation of the Russian problem. But during years and years, scholars were oblivious to the gathering of the storm, distracted by the voices which announced the end of history and the irreversibility of ‘Western’-led and dominated globalisation.
I myself went with the current when I started working in 1992 in London. Probably, I knew a bit better than my colleagues at the LSE or King’s that things were more complex than they seemed to be because I had gone through different experiences. But the spirit of the age was very strong. It was assumed that we had left behind for good dark times in which, to use the concepts developed by Wolfgang Friedman in the 1960s, the international law of coexistence was of essence. That was passé: the future was for the international law of cooperation and integration. A world governed by supranational institutions was within the reach. In a paradoxically pseudo-Marxist narrative, the European Union was meant to show the whole world its not-so-distant future. Peaceful coexistence was taken for granted because great power confrontation was a thing of the past. Several elephants remained in the room, however, although nobody seemed to be willing to pay attention to them. In particular, the visions of the brave new world order of international cooperation and integration failed to give an account of countries, which were continental in scope and breadth, such as Russia and China, and which wouldn’t gladly and blindly follow the lead of Washington. Russia tried in the 1990s to reconcile itself with the Western world order and failed miserably. China followed much more independent policies and, perhaps for this very same reason, was spared failure. The heart of the matter is that many fundamental questions remained unsolved, and now we have to go back to the drawing board, so to say, and think how to solve these issues of coexistence between different societies. Europe is no longer a valid paradigm for the world. Indeed, the European Union has been experiencing one crisis after another in the last fifteen years.
When was the moment in which your initial optimistic mood turned less so? Was the Kosovo war the turning point?
The NATO war against Serbia over Kosovo was for me, indeed, an eye-opener. I felt uncomfortable not only because of the war itself but also because of the levels of propaganda around the war. Knowing about the region a little more than some of my colleagues, I found problematic the unqualified demonisation of the Serbs and the sudden shift in the narrative about the Kosovars. Overnight, the UÇK (the Kosovo Liberation Army) ceased being regarded as a terrorist organisation and came to be seen as a group of freedom fighters. In less articulated and more intuitive terms, I guess, such a reevaluation began even earlier. When I started working as a Centennial professor at the LSE, I was asked to teach international criminal law. I had had a small chapter on the matter in my very theoretical doctoral thesis, which was also translated into English. That is why in 1992 I was among the few who had ventured at all into the subject matter (the main exception being Cherif Bassiouni, classmate of Butros Butros-Ghali, who was among the few who had kept alive the memory of the Nuremberg trials with his books and articles). The first year I taught the course, I had only about ten students. The following year, 1993, there were more than 100 students, allured by the creation of international tribunals for the ex-Yugoslavia and for Rwanda. I found that excessive and, indeed, wrong. Firstly, criminal law is an important branch of domestic law where criminals are seen as such not only by law enforcement authorities but more importantly also by the public at large. This is not the case in international relations, where one man’s (country’s) freedom fighter may be the other man’s (country’s) terrorist. Secondly, the idea that criminal law would save the world and bring us peace was problematic, especially if one judged by reference to how the international courts for Yugoslavia and Rwanda worked. Of course, there is a place for international criminal law and jurisdiction. But the expectations were clearly inflated. International relations are primarily political relations since states, as main subjects of international law and politics, are political entities per se. Within countries political relations are governed by constitutional, not by criminal, law. In international relations, it is public international law underpinned by balance of power that should play a similar role. However, in the 1990s international law became undermined by attempts to create a unipolar law for the unipolar world, a kind of world law enforced by the ‘indispensable nation’, to use the words of Madeleine Albright. In such a world order, only those who were on the wrong side of history would be subject to international criminal law.
In the 1990s, there was almost unlimited belief in the role of law. But the fact of the matter is that the authority of law has declined in these last three decades. Not only that of international law but also of national and European law, which in many cases are no longer the form of power.
NATO’s bombardment of Serbia over Kosovo was the first clear case where legitimacy (at least a certain understanding of legitimacy) trumped legality. It goes without saying that legitimacy is in the eye of the beholder, while legality is a more precise concept.
The expectation was that legitimacy anticipated a new kind of legality, as Habermas argued in 1999 in his famous intervention on the war in Kosovo. Therefore, we had new branches of law (many the result of adding global to preexisting subject matters: from global human rights to global constitutional law). But now we are faced with the return of power in its harshest forms. Was the overcharging of the expectations about what could be achieved through law a recipe for frustration?
Years ago I read with great interest different works of Jürgen Habermas, but already for some time I have entertained serious reservations about the implications of his cosmopolitan reading of international law. In one of my recent articles,Footnote 3 I have argued that it is too early to send the nation state to the dustbin of history. Do not misunderstand me. To reiterate what the reader already knows: I have lived what may be described as a cosmopolitan life, split between three different countries. My wife is a Estonian citizen whose mother tongue is Russian, and depending on the context, I speak to my children in different languages. But I do not see the world becoming more cosmopolitan; rather the opposite seems closer to the truth. Sovereign nation states are coming back. Once this is duly registered, it becomes clear that the proliferation of new global legal disciplines (and global law centres!) was one of the excesses of globalisation. The harsh reality is imposing itself. And I am not reacting exclusively to the war in Ukraine, even if that compounds the problem. We had been moving towards a world split into rival camps, in which the role of law is becoming smaller and smaller. Pessimism is further compounded by feeling that the war in Ukraine may not be big enough so as to create the necessary conditions for the emergence of new leaders, or what is the same, of the right people, who happen to be at the right places at the right time. Without such leadership, it would not be possible to come up with new security structures for Europe, the only possible means to avoid the dangerous spiral of war. We need something more similar to the Congress of Vienna that led to a century of relative peace in Europe than to the Versailles Conference that paved the way to World War II, forcing some historians to consider these two wars as different stages of the same major conflict. The Treaty of Versailles not only humiliated and weakened Germany but also excluded it from what could be considered as a Concert of Europe for the 20th century: the League of Nations. This was quite different from what had been achieved in the Congress of Vienna of 1815.Footnote 4
5. The life of a contrarian?
You have a certain tendency to end up taking contrarian positions, which has always been rare. Do you relish being a contrarian, or do you suffer as a result?
I really have not thought about my work in such a way. Consider my recent memoirs.Footnote 5 I wrote them knowing that my personality is relatively uninteresting for the wider public. I am not a famous actor, a football player or something of the kind. The reason I sat down to write them was to reflect on my own views, to clarify why they are as they are. Or what is the same, how living and working in different worlds has affected them. Perhaps my tendency not to follow the current is related to the fact that I am bound to feel myself a relative outsider almost everywhere. This is an experience shared by some others, including international lawyers, such as my late friend Thomas Franck, torn between his German and Jewish origins, his academic life divided between the USA and Canada. It might be the case that the disappointed expectations of the perestroika and glasnost era vaccinated me against the almost messianic beliefs common in the 1990s. Probably my engagement with non-Western civilisations, such as the Chinese and the Muslim, to say nothing of my 20-odd years plunge into the Russian culture (which I consider to be an important part of the European culture), has also prevented me from easily falling for fads, as well as forcing me to consider different perspectives. This might have helped in the early 2000s, when a certain understanding of international law as an instrument of the ‘liberal’ reshaping of the world came to the fore. Think about the fashionability of talk about regime change before and after the invasion of Iraq by the USA and the ‘coalition’ of the willing. After those events I published a book critical of such tendencies.Footnote 6
I imagine the experience of going against the current was different in different contexts, circumstances and times, wasn’t it?
Certainly. In that regard, I especially enjoyed my years in the UK. British higher education in the 1990s and 2000s, at least at the LSE and at King’s College, was remarkable. Take the LSE. The university was made of people with very different views. I remember, for example, the mock trial of Karl Marx that was staged there in the early 1990s, in which Labour Lord Meghnad Desai played Marx, as conservative Kenneth Minogue acted for the prosecution, while students and the staff that attended made up the jury. On another note, I well remember that my son George was required at school to write two opposing essays on the same issue: the role of Richard III in the death of his nephews – one accusatory, the other for the defence. Perhaps requiring children to defend opposing ideas is not the best method to teach history, but it certainly fosters freedom of thought, and that has been characteristic of British universities, at least those I knew, at least then. Maybe therefore one of my favourite aphorisms comes from Francis Scott Fitzgerald: ‘The test of the first-rate intelligence is the ability to hold two opposing ideas in mind at the same time and still retain the ability to function’. In the USSR, it helped me a lot that I did not follow the usual educational path, as I already mentioned. True, I wasted many years dreaming that I would become a great Olympian, but as a result I was less brainwashed that I would have otherwise been. Precisely because I was not expected to become a scholar, they largely left me alone. I was not even pressured into becoming a member of the young communist league (Komsomol). Maybe therefore I entertained some funny ideas. So, once at Moscow University I tried to explain to the examiner that after communism, according to Marx, there should emerge a slave-owning society, only at the highest level of its development. I produced such an answer based on a spiral view of history, perhaps of Hegelian lineage. Of course, the ‘right’ answer should have been that nothing would come after communism, that communism would be the end of history, to use a phrase that has become fashionable in a different context and for different purposes. You can imagine the reaction of the examiner. And then, when I started my academic career, I was very lucky to work with professor Tunkin, who probably saved me from being expelled from the academia. At the very same time, he left an indelible mark on my understanding of what was to be a scholar. In particular, I was lucky that he was not only a professor but also a practitioner. He was keen to go to the roots of all problems, without forgetting that the point of knowledge was to achieve specific ends, not the mere pursuit of scholarship for the sake of it. He made theory with the feet safely on the ground, even within the limits of the Soviet society.
6. Capitalism, democracy and the new Cold War
In several of your writings, you highlight the uneasy relationship between what are said to be two foundations of the Western model: democracy and ‘free markets’. Democracy has become so constrained that is hard to determine what is meant by it beyond the mechanical motions of voting. If we persist on following that path, we should not be surprised if the tired reactionary clichés of Donoso Cortés, perhaps as reheated by Carl Schmitt, will become again alluring to far too many people. But is it not also the case that portraying capitalism as the market system is equally distorting?
Capitalism and democracy are intrinsically in a dialectical (friend/enemy style) relationship: the less restrains upon capitalism, the more ‘unleashed’ capitalism is, the less room for democracy. And vice versa. ‘Free markets’ are a myth, not an existing institutional structure. Those who are stronger in economic and geopolitical terms push for ‘free markets’ because they can benefit from them. Right now, quite predictably, it is China, not the USA, which has become the global champion of ‘free markets’ (as Chinese companies are increasingly buying stakes everywhere, including in the USA). It is Grotius’ Mare Liberum redux.Footnote 7 The same old story again. The former editor of The Times of London, William Rees Mogg (father of the famous Brexiteer Tory of the same name) put it quite brutally: The shape of the world will be determined by business, nothing else really counts. Ayn Rand’s Atlas Shrugged in action, we might say. When Yeltsin came to power in Russia, Russia got high doses of free marketism without any legal restraints; privatisation started before laws on privatisation were in place. There were no limits. At that time, one of my schoolmates, who was practising as a lawyer in Moscow, came to London to buy properties and we went out for dinner. I remember he paid the bill with large notes, and this brought us into a discussion of how much he earned. He told me how he started making a fortune counselling on the privatisation of the car industry in which Boris Berezovsky was involved. The state sold AvtoVAZ for 100 million dollars, only to see it later resold for 700 million. Not only lawyers’ fees (and notaries’ fees: 4.5 per cent of the total) were involved, but also bribes. With no taxes to speak of in place.
The war in Ukraine has rendered the conflict between Russia and the West spectacularly and tragically visible, but this is a conflict that was gathering for years. Realities are different, and perceptions of reality are very different. You have described shock therapy as all shock without the therapy. The results were catastrophic for Russia: life expectancy experimented a decline without precedents anywhere in the world in recent history. This is known in the USA and in Europe, but still this is something which is not assigned the political importance that it actually has. Why do you think this is the case?
When the Russian military invaded Ukraine in February 2022, many defined it as an unprovoked aggression (what is a provoked aggression, nobody knows, and at any rate, the Russian invasion was not so unprovoked after all. As, Pope Francis put it: ‘Russian invasion was encouraged by the “barking of NATO at Russia’s door”’). For me personally it was, first of all, a great tragedy since I am intimately familiar with many good people from both of these nations. In 2014, I published an article ‘Ukraine: Victim of Geopolitics’Footnote 8 analysing the main aspects of the conflict in the light of international law, such as the annexation, or as Russia put it ‘reunification with the motherland’, of Crimea. Both of these qualifications could be used for describing what was going on in March 2014. One could have even used the formula ‘unlawful, but legitimate’, borrowing from Western justifications of its illegal uses of military force. In January 2015, some months after the publication of the aforementioned article, I happened to be in Mexico City lecturing in several Mexican universities. One evening, however, I had a call from the Foreign Ministry of Mexico and was invited to meet the Minister, José Antonio Meade Kubriñena. It is an understatement that I was surprised. I could not imagine that the Minister may be even aware of the presence of an insignificant professor in his country. To say nothing about the desire to meet me. However, a car from the Ministry soon picked me up and late at night I arrived at the building of the Secretaría de Relaciones Exteriores. Drinking tea with the Minister and talking on European affairs, I could not suppress my curiosity and asked the Minister what had prompted him to see me. He told me that one of his assistants – an international lawyer by training – had read my article on Ukraine and having seen on the internet an announcement of my lecture at the National University of Mexico, had advised the Minister to talk to me on this conflict in Europe. As the Minister a bit jokingly said, he had liked my non-aligned approach. For me it sounded, especially from the mouth of the Foreign Minister of the country that had been one of the leaders of the so-called ‘non-alignment’ movement, as the highest praise of my professionalism.
Mais revenons à nos moutons. What Russia did in February 2022 is quite different from what happened in 2014. First of all, it is a humanitarian disaster. From a geopolitical point of view, it may well be that Russia has miscalculated. Moreover, violations of the Minsk accords by Kiev and the inability or unwillingness of Ukrainian Western partners to put pressure on Kiev on this matter do not justify the Russian invasion. Even Washington’s militarisation of Ukraine, making it NATO’s de facto member, though without Article 5 security guarantees (this shows how little the USA cares about Ukraine and Ukrainians), could not serve as a basis for the use of force in Ukraine. Russia is responsible for its own actions. However, there were and there are those, both in Ukraine, and particularly in the West, who were working hard for years to transform Ukraine into a bridgehead, even a launching pad, against Russia, not caring at all what it may mean not only for Russia but also for Ukraine. Responsibility for a war should not be put not only those who pull the trigger first, but also on those who make conflicts, if not inevitable, then at least highly plausible. Russia’s use of military force in Ukraine, illegal under the pre-1990s international law and, I insist, probably a geopolitical miscalculation, has caused such a degree of shock and awe in many parts of the world even bigger than that caused by the 2003 American attack of Iraq, proudly baptised Operation Shock and Awe. Russia has certainly lost the propaganda war. However, this is not the first unlawful use of force in the post-WWII Europe. To return to something we have already discussed: NATO’s bombardment of Serbia in 1999 lasted two and a half months. And this is only in Europe. Twenty years of war of the USA and its allies in Afghanistan, the destruction of Libya in 2011, not to speak of the multiple military interventions in Africa, have drawn even less attention. There is certainly a whiff of racism in the fact that wars waged against people of non-European extraction, especially if they have chosen a ‘wrong side of history’, aren’t condemned as they must be. But how did the world, after the Wall of the Berlin Wall and the expectations of peaceful future it unleashed, find itself in a situation where use of military force has become almost normal, at least when it is not used against those Westerners who have chosen the ‘right side of history’? How and why, in the run towards the end of history, the most important principles of international law have become twisted and been reinterpreted to such an extent that soon there may not be a last man left to contemplate this end? Although we are today in unchartered waters, history nevertheless gives some hints about the right as well as the wrong ways of ending military confrontations.
Are we sleepwalking into a new Cold War which is dangerously close to becoming hot?
The Cold War ended with the triumph of the USA. Russia, notwithstanding all the efforts of Russian leaders in the 1990s to please Washington and to be liked in the West, was never included in the European security structures, which were led by the USA and centred on NATO. If you allow me to reiterate the point, today the question is: would Western leaders, after the arrival of relative calm in Ukraine, choose the way of Clemens von Metternich and Viscount Castlereagh or, on the contrary, will they imitate those who after the First World War paved the way for a new conflict? Moral indignation, especially as it is whipped up in order to consolidate the ranks, is a poor guide in foreign policy decision-making, even if it is justified. This is true for all sides. Ukraine’s best, maybe only, option would be neutrality and compromises. Fiat Iustitia, Pereat Mundus is a terrible maxim.
7. Getting to know others in their own terms broadens the mind: against relativism, in favour of pluralism
In your memories, you quote Spinoza’s motto: ‘non ridere, non lugere, neque detestare, sed intelligere’ (don’t ridicule, don’t deplore, don’t detest, but try to understand). To what extent do you identify with his words?
When I first read it, many years back, I realised that this maxim captured what I intuitively had believed was the proper approach to social sciences, perhaps the proper approach to all research. But, it must be said, it is very difficult to follow the motto in a consistent and coherent fashion. Today, in the context of the war in Ukraine, where not only human beings suffer but where the truth is obscured by propaganda from all the sides involved, such an approach is nevertheless especially important.
Do you think that your identification with the maxim is related to your own experience? Were you, so to say, driven to it by circumstances, by your living in different cultures, and a result, across cultures? Does that not end up forcing you to take several perspectives at the same time?
That plays a role. When I have reflected about why I think the way I think, why I write the way I write, I have been forced to admit to myself that I tend to think differently from most of the people that surround me. This was already the case when I was a student in Russia, and kept on being the case when I became a professor. I was already then conscious that I was thinking somewhat differently from my colleagues. And at all kinds of levels, also when participating in high-level meetings during my time as an advisor to Gorbachev. When I took part in negotiations between the Soviets and the Americans, I had the impression that, despite their disagreements on the concrete issues at hand, they understood each other well, because they were seeing problems through the lenses of great powers, and in the process, neglecting the viewpoint of smaller nations, to which however I was sensitive as an Estonian. Contrariwise, when, after 20 years of living and working in Moscow, I was back in Estonia, I realised that there everything was seen from the standpoint of a small nation, and there was a certain blindness to wider perspectives. You may say that this is a result of spending the three different thirds of my life in three different places, feeling almost at home in all of them, but at the same time remaining partially alien in all of them. This may favour a certain perspective, pushing one into Spinoza’s direction. Rendering you more disposed to understand why people are different and accept that. And in the process rendering you open to other perspectives. This may also explain why I enjoyed so much my period working for the UN in Central Asia, or my curiosity for China.
Spinoza is then the first step into embracing pluralism and rejecting the ‘flatness’ of the world, to quote the title of the once (in)famous book by Thomas Friedman. Still, pluralism does not necessarily boil down into relativism, doesn’t it?
True. The fact that the world is not flat does not mean that there aren’t many things that are unacceptable wherever they happen, at least that there are many things that are unacceptable to me, and I hope, to many people. Take an example. I recently read in the Estonian newspapers about the visit of a Saudi delegation to Tallinn. Estonian politicians welcomed them warmly, at the very same time that they engaged into harsh criticism of Putin, verging on demonisation. There is a clear tension there, given that, as my son who lives in London reminded me (if there was any need) the Saudis have one of the worst human rights records in the world. What is unacceptable when it happens in Moscow cannot be acceptable when it happens in Riyadh. There are things that are simply unacceptable. That is compatible with enjoying pluralism. And rejoicing in it. When I was in the Soviet Army, the colleagues the company of which I perhaps enjoyed most were the Georgians, who tended to be most different from Estonians. It was precisely that fact that made them interesting to me. I am probably a hetero in the widest sense of the term since differences usually attract me.
So what you are saying is that we have to avoid relativism (because there are limits to what is normatively acceptable) and, once and the same time, the assumption that there is only one trajectory for humankind to follow. This has clear legal implications for law in general, and in particular for international law.
I believe in an international law that reflects those minimal normative standards. We have to be able to see them with a degree of detachment, though, realising the extent to which they cannot but be compromises. We have to stand by normative standards, but be aware of the tendency of human beings to judge others from their own point of view. Let me elaborate a bit. Believing to be a liberal and a democrat, I do not think that everybody in his or her right mind should necessarily hold the same values. The difficult but necessary balancing act is to avoid the trap of absolute relativism, without justifying the blatant imposition of the views of some upon all. I have to reconcile myself with the fact that others may see things differently, even if they are part of the same society as I am, and that differences are likely to be even bigger if we move across societies. This became crystal clear to me in the period I worked for the UN in Central Asia. I realised that it was possible to find people with whom I had deep differences (say religious fundamentalists albeit not extremists) and some of whose ideas I found unacceptable, but whose company I nevertheless enjoyed. There I met, for example, Musurkul Kabylbekov, a Kazakh, who became my good friend. Still, when my wife intervened in our serious conversations, Musurkul asked me if it was normal in the West for a woman to interrupt men who were talking to each other; he was clearly finding that odd to say the least. That is based on a premise (and a worldview) that is unacceptable to me. But then it happened that he saved my wife’s life taking her to hospital when I was not present. He is a very interesting person, even if I am firmly against quite a few of his views. Two strongmen on horseback in Tian Shan Mountains may well enjoy each other’s company and become enriched by their communion. However, when back to their families and communities where they live and work, they re-enter into different, more habitual for them, relationships. If we had to live in the same house for a long period of time, we would probably end up fighting. Which does not prevent me from enjoying other aspects of his personality.
You also told us that you spent one year in Guinea Bissau…
This was a different experience, mainly because the circumstances were very different. I was sent there immediately after my PhD. I went reluctantly, because I was recently married, my first son had been born, and I felt I needed to concentrate on my research, so I felt it like a distraction. Above all, there was the linguistic barrier. I did not know Portuguese when I arrived. I struggled hard and learnt it, so at the end of the year I could lecture in Portuguese. Still, I did not mix much with locals. I tried to speak to my students, but at most we spoke in the street: I never visited the homes of the Guineans. The fact that contacts with locals were not well seen in the USSR (even in friendly countries) did not help either. So what I learned was rather limited. The situation was radically different in Central Asia. Not only I was older, but the lingua franca in all these countries is Russian, so in many ways it was easier to relate to people there. The then foreign minister of Kazakhstan, now President, Kassym-Jomart Tokayev once invited me to a meeting at the Ministry of Foreign Affairs. I was supposed to participate in the discussion of some piece of human rights legislation. So I sit there and talked about the topic, but for one reason or another, they somehow forgot to invite me to leave when I had finished the topic. It took a while for somebody to realise they were discussing internal matters in the presence of a foreign diplomat. Or consider a story of my friendship with Murat Auezov, prominent intellectual, former presidential candidate and former ambassador of Kazakhstan to China. I came to know him during my time in Central Asia. When we met, I pointed out that I had read the most famous book of his father, one of the most illustrious writers in the USSR, as a boy, in Estonian. We immediately became friends. What these stories illustrate is that through language (and the culture associated with it) I gained a level of access to society that would have been otherwise impossible to get. Indeed, I mixed with locals much more than any foreigner could have done. I could see somehow from the inside societies that were very different from mine, thanks to a common language. This was an eye-opener in ways more than one. It forced me tothink again about pluralism, especially regarding human rights. All human rights cannot be universal, or, if they are, they are so only in a very general sense. There are always details which are different and the devil is usually hidden in them. There is quite similar to the theory of Jonathan Haidt, especially when he claims that three different types of morality coexist in the contemporary world: the one based on the ethics of autonomy, the second, on the ethics of community and the third, on the ethics of divinity. This is something I learnt intimately mixing with the locals in Central Asia. It helped a lot to be confident enough to take taxis instead of using my official UN car with a driver. Not only I could listen to the taxi drivers but also pretend to be a local. Even if they occasionally spotted that I was not a complete local, they opened up in ways which would have been impossible to imagine if I were to speak English, and which I would not have got from the official chauffeur.
8. What is law? Between international law and international politics
You retain a deep belief in the social function of law, both at the national and the international level, and, as we have just seen, you remain attached to a normative core. Still, you insist through your work on looking to law through the glass, darkly, of interests. One could say that all major theories of international law can be explained from such a perspective. But do interest really matter all the time? Say, the absolute prohibition of torture: If we can show that, at some point and in some sense, standing by the prohibition of torture plays a geostrategic role, does this mean that it is not, first and foremost, a remarkable civilisational achievement?
Perhaps the key is to be found in the specific issues we are considering within the whole realm of international law. Consider your example of the prohibition of torture. That is clearly a matter of values. There is a long history of strife behind the present prohibition of torture, not only as a punishment but also as a procedural means to establish the truth. No compromise is possible: states cannot simply say well, you torture your prisoners, I will torture mine, and that is it. No, torture is prohibited. However, not all issues are as value-loaded as the prohibition of torture. Most issues concern the resolution of conflicts of interests. In such cases, there is both the room and the need for compromise. And it is in such regard that international law works quite well, at any rate not any worse than domestic law. Consider for example the delimitation of maritime areas. Indeed, international law rapidly reaches its limits when conflicts of values are concerned (think about regime change).
In Central Asia, I became acquainted with societies and legal systems of ‘moderate’ Muslim countries. It was then and there that it became clear to me that the present practice of human rights is marked by its Western origins, and that it is simply impossible (if not totally counterproductive) to simply project it over societies that are very different in social, cultural, economic and political terms. I remember an exchange of views with an NGO in Tajikistan. I asked them what concrete activities they were focused on. One of the ladies in charge answered that they were busy training judges and policemen on human rights and lawyers on how to write petitions to the UN human rights bodies and that now most of the law-enforcers in the country were well trained on these issues. Then I wondered whether the record of human rights protection was actually improved. She honestly replied (we were talking tête-à-tête) that things were as they used to be. If at all, they have got worse.
I have recently arguedFootnote 9 (again) that the problem is the instrumentalisation of rights. Some human rights are, or should be, universal. But as with everything, it is necessary to consider the specifics. Consider the Soviet case. Activists were moved by genuine concerns, and pressure on human rights issues was overall positive. Still, the reason why Western governments pushed the human rights issue was hardly related to an interest in the fate of Soviet citizens. It was a strategic card, and the claims were not infrequently hypocritical. The less the context is known, the more there is a risk of exerting counterproductive pressure, or of triggering a backlash. Whether external pressure works depends to a considerable extent on the character and nature of the society upon which the pressure is exerted, not so much on the efforts of those intervening. At the end of the day, what you intend to do is pretty immaterial (as the Soviets learnt the hard way in Afghanistan). What matters, quite obviously, is what results you obtain.
What is clear is that aggressive promotion is counterproductive. In 2017, Theresa May and Emmanuel Macron publicly raised the issue of human rights before XI Jinping, the Chinese president. Such public criticism may not necessarily be counterproductive, but it does not help either. Is this an excuse for not doing anything, a way of licensing the conclusion that everything goes? I do not think that is necessarily the case. It remains a hard fact that Chinese people, to quote one of my former PhD students from China, have never had it so good, never have achieved such high living standards as today. The students protesting in 1989 at Tiananmen Square sincerely wanted more freedoms, but was there really such a simple choice between freedom and authoritarianism? Or was it rather between chaos and rapid economic growth? This does not entail, far from it, that the brutal reaction of the Chinese government was justified. There was no need to be ruthless. But governments of big countries tend to overreact. First they hit and then they talk. Letting things go may have led to chaos, not to democracy. Even if all the demands of the Chinese students were met, there wouldn’t have been a liberal democracy in China.
Rather polemically, you claim that who Schmitt was, and what Schmitt did, should not cloud our judgement regarding his (far from few) contributions to the analysis of law and politics, and in particular, international relations. In abstract terms one might feel tempted to agree, but, leaving aside the character of Schmitt for a second (which is hard to do), were his contributions really so fundamental? Were his reflections really that original and innovative? The thrust of his thinking was certainly alluring and powerful, but was there much beyond the aesthetics that was really original?
I have come to read Carl Schmitt rather late. If my memory is correct, only a decade or so ago. Mostly, by the way, in French translations since otherwise I may lose my French (unfortunately, I don’t speak German). My interest has been rather focused on his approach to international law (and has thus revolved around his Nomos of the Earth). On the one hand, it seems to me that of Schmitt can be said the same as of many philosophers: even if they are not fully original, even if 90 per cent of what they say has already been said, they add a 10 per cent that really matters. On the other hand, the relevance of what Schmitt says is intertwined with what he did, with his compromises with Nazism. That does not entail that one should not read him. His thought is important also because it is reflective of a specific time and age, something which should be kept in mind.
You are keenly aware of the dual (if not multifaceted) character of law: a normative order, but also one of the possible levers in ‘communication’ games. I find clear commonalities with Chomsky’s analysis, who has been a vocal contrarian through the years, and made very similar points to yours regarding the Kosovo war. What would you reply to those who argue that there is no chance of shielding the normative function of law once we start decoding the ‘communication games’?
Martti Koskenniemi, perhaps against his own instincts, has started to pledge for a formalistic approach to international law, clearly distinguishing himself from the ‘politically oriented’ approach characteristic of the ‘Yale’ school. His message seems to be that form can save law from being too politicised. Perhaps that is not far from my own approach: international law is a normative phenomenon, such as morality and ethics, but its formal aspects are fundamental, because they may create the room within which international law can be applied as independently from political influences as that is (humanly) possible. At the same time, to understand why international law is like it is, or for that matter, why it does not work, you need to go beyond law. In other words, as a researcher you cannot be normative. The tension (if not contradiction) is a very real one, but more for scholars than for practitioners. Academics are used to thinking outside the box, so to say; not so much practitioners. The normative character of law also sets limits on the creativity of those dealing with law. Too much creativity runs the risk of killing law itself. That is the risk that some critical approaches (exemplified by Koskenniemi’s earlier work) run: moving from the criticism of law to the getting rid of law. I remember a recruitment process at King’s College. The candidate was a disciple of Harvard’s David Kennedy. He was highly theoretical and critical, but he did not know much about the law as such. When I asked him about the Caroline case, he became puzzled.Footnote 10 Academics have to be creative, but if they are too creative, they lose sight of the law, and in the process, lose themselves as lawyers.
You have come once and again to the question of geopolitics, and even more, it seems to me, to the fundamental role of space and territory in politics and therefore into law. How do you explain the dematerialisation and despatialisation of legal scholarship in international law (and in law in general), precisely at a point in history in which, if only for sheer demographic reasons, space has become crucial (an increasingly scarce resource, if we would like to borrow for a second the economicist jargon?) Is not despatialisation of legal theory just an example of the propagandistic use of law?
It seems that much hinges on the rather narrow definition that tends to be given to geopolitics. I believe that geopolitics should be understood as an approach focusing on political as well as physical geography and economy, which is one of the specific ways of analysing international relations. In that sense, we can say that Putin is a pragmatic geopolitician, or that USA, China and Russia follow geopolitical approaches to world affairs (not to international law as such, because they do not necessarily respect the latter). The odd power out is Europe. Europe is different, and predictably so: Europe remains a composite of a number of small countries, that see the world differently than big players. Indeed, the key question is whether Europe can change its view on global affairs, whether it can become a geopolitical pole. That is closely associated with the one million euro question about Europe: can Europe become a federal power? To become a global power, Europe has to be more united. In my view, that would be good for the world, if only because Europe is and can be a more civilised player than other big powers. Divided Europe cannot become a geopolitical player. No matter how much European governments may be ‘normative’ powers (such as Scandinavian countries are perceived to be), they will not be able to muster actual geopolitical influence. Europe has to find its own specific identity as a way to distinguish itself from the USA. As things stand, it is hard to escape the conclusion that Europe remains an appendix to the USA, not least through NATO. That Europe gains an autonomous voice in geopolitical terms would clearly help redefining the position of European countries. Europe should become aware of the rather obvious fact that US interests are not necessarily European interests.
Your preferred model of international order is one revolving around balance of power. Which is a political principle, governing political relations, but which has to have a legal translation. That entails a complex relationship of the principle to law. Is that peculiar to the principle of balance of power or do you see in that relationship a paradigm for the interface between politics, power and law?
My view is that there is simply no way (or no good way) out of balance of power. The arrogance of one power player can only be checked by the arrogance of another powerful player or players. It is from that perspective that international law is, and can be, a gentle civiliser of nations. Sometimes you need, however, a harsh civiliser of nations. Lord Acton is said to have claimed that power corrupts and absolute power corrupts absolutely. This observation is even truer in international relations. Excessive concentration of political power within a state can be checked by following the principle of separation of powers. In international society, it is multipolarity and balance of power that help avoid excessive concentration of power. Already Emmerich de Vattel wrote that balance of power is a sine qua non of the very existence of the law of nations, i.e. of international law. In a unipolar world, a kind of imperial law (world law) would replace international law.
9. Europe and European integration
Your perspective is a privileged one also when it comes to European integration, as you have seen it from three radically different perspectives. Let us start with the USSR. How were the then three communities, and especially the European Economic Community, perceived in the Soviet Union?
European integration was regarded as largely uninteresting: People simply did not think much about it. I remember that I got through Tunkin a French book on the EEC in the early 1980s. I read the book (I do not remember the author or the title) and wrote an article about the matter which was published in the journal of the Moscow University. Of course there was COMECON under Soviet leadership. But the EEC was regarded as irrelevant. Interest only emerged during the period of perestroika and glasnost, alongside with Gorbachev’s idea of the ‘European home’.
So the EEC was so irrelevant that it was not even worth criticising it?
There was knowledge that the EEC existed, but the interest was minimal. Some years ago, I got hold of a copy of the article I have just referred to, curious to see what I had written. I had to rely exclusively on European sources, because there was nothing written on the matter in Russian.
That changes quite radically when you become engaged into Estonian politics, during the so-called transition years.
It was a brief period, even if an intense one. At the time there was no talk yet about joining the European Union. But there was the perspective that this may happen one day. And that had major implications. The memory of the 1940s resulted in a draft constitutional provision that rendered unconstitutional for Estonia to surrender any of its sovereign rights. This was a provision against the USSR, not the EU, but one which could become an obstacle in the path to European integration. Aware of the extent to which some European states had had to change their constitutions to join the EEC or to ratify successive amending Treaties, I advised in favour of a more nuanced drafting of the Constitution. I would add that one thing should perhaps be remembered about this period, namely, that there was a larger majority of Estonians willing to join NATO than willing to join the EU. In fact, there was a sizeable part of the population that was against joining the EU before that happened. This has considerably changed since, and I would say that barely anybody in Estonia advocates nowadays leaving the EU, even if there are strong critical views on some specific EU policies.
And of course the UK is still a different story. When you arrived there Major was waving the 1992 sterling crisis. For some years still it was an open question whether the UK would join the Euro, even if that was never an obvious option. At the same time, the spirit of Thatcher 1988 Bruges speech was also in the air, with a growing force that would crystallise during the Brexit campaign.
Indeed the perspective was rather different from that of Estonia. While in Tallinn the EU was seen as a promising bright future, des lendemains qui chantent, the British relationship with the UK was always difficult. Trivial issues (such as the curvature of bananas) were turned into grievances at the same time that European institutions in general, and not only EEC/EU institutions (think about the European Court of Human Rights) were regarded as meddlers. In the 1990s and 2000s, I regularly frequented the Foreign Office, and I perceived quite a tepid attitude towards the EU and all things European. Even in the way of talking: when you travelled to the continent, you said you were going to Europe, which implied, somehow, that the UK was not part of it. And then there was the most peculiar connection to the USA in the form of a ‘special relationship’. Nevertheless, I did not expect the 2016 referendum to go the way it went. But I was not surprised either. I remember quite vividly that two days before the referendum after a day working with the help of my son on the editing of one of my books, we decided to watch the last TV debate of the Brexit campaign. Though Boris Johnson was part of it, it was deeply uninteresting. Remainers were unclear about the benefits of remaining, while Brexiteers were fluffy about the benefits of leaving. After fifteen minutes, we shifted channels and settled for House of Cards. My impression was that David Cameron thought it was a brilliant idea to make use of the referendum to extract concessions from the European Union. It was a threat that came handy, especially because he thought it would never materialise. These were the expectations. And they are telling in many ways.
Perhaps one of the paradoxes of European integration is that the decisive push came from the Truman administration through the Marshall Plan, but the key actors in the Little Europe of the six, led by the French government, managed to shape the ECSC and the EEC into a mould very different from that the key US political actors hoped for. In Milward’s terms, European integration was indeed about rescuing, not transcending, the nation state. Which brings us to a character that seems to elicit a very favourite judgement on your side, Charles De Gaulle.
General de Gaulle was one of the few leaders who was certainly the right person, at the right time (or perhaps one should say times) and at the right place. He combined intelligence and intuition with courage. He was not an ordinary general, but was well read, fully educated. I do not share the persistent view that he was a Euro-sceptic. His was a vision of a Europe made of nation states, capable of being genuinely autonomous. It seems to me that with the decision to leave the integrated military command of NATO in 1966 he showed the understanding of a great politician.
Another French President which you tend to regard positively is Chirac.
The famous speech of his Foreign Minister Dominique de Villepin before the Security Council of the UN was that of a real American ally warning Washington not to make a fatal error, moreover as it was also illegal and based on fake analysis. However, the USA expects obedience, not criticism, from its allies. And even Chirac reversed course when the USA started flirting with boycotting brie and renaming French fries, so in fact this was only a brief and fugitive moment of autonomy. But today Europe is facing anew its De Gaulle moment when leaders with brain and spine are in demand. The place (Europe) and moment (2022) are both ready for them.
Competing interests
The authors have no conflicts of interest to declare.
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