Russia and International Law – Forthcoming Special Issue of the Goettingen Journal of International Law

GoJILBy Tobias Thienel

This coming Friday, May Day, will be a notable event in Russia – as it is every year. This May Day, the Russian Federation itself will also be at the centre of – hopefully – a good deal of attention, from international lawyers: The Goettingen Journal of International Law is going to publish its first theme-specific, and only its second-ever, issue. The title of this edition will be ‘Russia and International Law – From the North Pole to the Caucasus.’

Of course, Russia is a very big country, as well as a rather powerful one. It has also, on occasion, not exactly been afraid of throwing its weight around. Yet there are many signs that Russia has a measure of respect for international law. The forthcoming second issue of the Goettingen Journal is to examine to what degree such encouraging signs point to the truth. Do recent events, and systemic qualities of that huge State, bear witness to a largely positive attitude to international law, or is there serious cause for concern?

The articles in the Goettingen Journal address some of the most notable issues relating to Russia and international law.In order, the first contribution is by Dr Nele Matz-Lück, and is titled ‘Planting the Flag in Arctic Waters: Russia’s Claim to the North Pole.’ Of course, this topic has come to the fore when Russia literally planted the flag in – or: beneath – Arctic waters. International lawyers have already been concerned with the issues involved (see also Proelß and Müller, ‘The Legal Regime of the Arctic Ocean’, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht / Heidelberg Journal of International Law 68 (2008), 651-687) and the discussion will no doubt continue.

Next, Professor Bill Bowring writes about ‘Russia and Human Rights: Incompatible Opposites?’ The question, sometimes put in the context of the whole ‘cultural relativism’ debate, has often detained human rights lawyers – and may have occurred to many more on seeing the evidence of Russian compliance with the ECHR. It deserves to be shown that human rights are not in fact alien to Russian tradition. Russia is at least on speaking terms with international law in this respect.

But international law in Russia should speak Russian to be understood. It is important, therefore, if Dr Lauri Mälksoo examines ‘International Law in Russian Textbooks: What’s in Doctrinal Pluralism?’ Clearly, if there is no such pluralism, and of considerable quality, Russian respect for international law at all levels is going to suffer. If there is good debate and teaching, such respect is likely to improve.

That respect is not only important in the classic fields of international law, such as the law on the use of force or the laws of war. Turning to investment protection, Dr Max Gutbrod, Dr Steffen Hindelang and Yun-I Kim write about ‘Protection againt Indirect Expropriation under National and International Legal Systems.’ Russia and its neighbours being important jurisdictions for the practice of that field of law, they refer particularly to scenarios taken from Russian law.

But, of course, economic law isn’t everything. The use of force continues to play a role in international relations – even in Russia’s – and so it does in the forthcoming issue of the Goettingen Journal. Dr Peter W Schulze takes a political science point of view and looks at the role of the United States and of the European Union in the recent conflict between Georgia and Russia and in its settlement (‘Geopolitics at Work: The Georgian-Russian Conflict’). Finally, Professor Angelika Nußberger takes a legal and historical perspective in examining the differences between Georgia and Russia as to the status of South Ossetia and Abkhazia (‘The War between Georgia and Russia – Consequences and Unresolved Questions’).

This looks to be one of the more relevant specialised issues of an international law journal in recent times. Do have a look!

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2 thoughts on “Russia and International Law – Forthcoming Special Issue of the Goettingen Journal of International Law

  1. Good question, but where do I start?

    There’s a theoretical distinction between monist and dualist theories of the relationship between domestic and public international law. The monist theory holds that the two bodies of law form one legal order, whereas the dualist theory observes a distinction between international and domestic law.

    But never mind that. What is more important than these theoretical classifications is how national constitutions conceive of the relationship between their domestic law and international law. Quite simply, the constitutions decide if domestic courts and authorities get to apply international law or not.

    There is a wealth of different approaches in different constitutions. Some examples:

    In Germany, treaties concluded by the federal level form part of domestic law as federal statutes, having been ratified by parliament before the President notified the ratification of the treaty by Germany (Art. 59, para. 2 of the Constitution). Customary international law forms part of domestic law, ranking between federal statutes and the Constitution, by virtue of Article 25 of the Constitution.

    In the United Kingdom (or rather, the three legal orders within the UK), an international treaty, concluded by the Crown, does not form part of domestic law, unless and until Parliament makes it so (which it rarely does). Customary law, though, is said to automatically be a part of the common law (or Scots law, in the Scottish legal order) – though there has been some slightly adverse judicial comment recently, and there are exceptions relating to the criminal law.

    In the United States (federal law), treaties concluded by the United States become part of the ‘supreme law of the land’ (as per the Supremacy Clause) if they are (a) ratified by the US, having received the advice and consent of the US Senate, and (b) they are self-executing. The Senate is not altogether generous in giving its advice and consent, and self-executing effect is frequently expressly ruled out. (See http://opiniojuris.org/2008/01/24/self-executing-treaties-the-senate-and-a-bit-of-german-law)

    Customary law is, also in the US, said to be a part of federal common law, though that proposition is beset with problems. (See http://opiniojuris.org/2005/12/17/international-law-is-part-of-our-law-or-is-it and http://opiniojuris.org/2007/08/29/what-if-erie-had-nothing-to-do-with-the-status-of-customary-international-law-in-us-law)

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