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International Law and Non-liberal States: The Doctrine and Application of International Law in the Russian Federation

Final Report Summary - INTLAWRUSSIA (International Law and Non-liberal States: The Doctrine and Application of International Law in the Russian Federation)

This was a project in comparative international law. Russia's relations with the West have an important international law dimension and the main question asked in this research project was whether Russia and the West have a similar or different concept of international law, and why. Answering these questions required examining the history and theory of international law in Russia, as well as studying in depth specific sub-fields of international law such as human rights, international trade law and the international law of the sea.

The main result of this project was the insight that contemporary Russia indeed has a concept of international law that partly differs from the Western mainstream. State sovereignty and collectivist values are preferred over human rights and individualist values in the international order. Mostly, this difference has something to do with the specific history of constitutionalism and public law in Russia. For example, during the Soviet period, international law was kept as safe distance from Russia's domestic legal order; it was never directly applicable to citizens. Also, the approach that Russia has taken to international law has historically varied depending on the country's relationship with Europe and the West at the given time. The project exemplified this by taking a closer look at the discourse of international law during the Tsarist period in particular. Since Russia has been authoritarian country throughout most of its history, the scholarship could not develop as freely from the state power as in some Western countries, and this situation has repercussions until our days. In foreign policy, international law is often understood as function of the state's power, in Russia's case the UN Charter of 1945 as the main treaty in international law is understood as defining Russia's global power, and any suggestions for the evolutionary interpretation of the UN Charter are constructed as violations of international law in Russia. This tendency leaved Russia's participation in the Council of Europe and the European Convention on Human Rights as a kind of anomaly.

The theoretical dimension of the project - whether there is a systematic difference in international law understanding of liberal and illiberal states - took a constructivist rather than liberal-dogmatic turn. Liberalism and illiberalism are constructed notions and Russia's theory and practice feature both segments of liberalism and illiberalism. Rather than saying that Russia's approach to international law is determined by the fact that it is an illiberal (authoritarian) country, it is more precise to say that Russia's approach to international law is dependent on the state of rule of law domestically, and on country's practice in domestic (constitutional) law. The criticism of some Russian constitutional law scholars, legal philosophers and politicians - that the country's culture is shaped by the phenomenon of "legal nihilism" - is also partly relevant in the context of international law.

The project's main results can be read in Lauri Mälksoo's monograph "Russian Approaches to International Law: An Interpretation of History, Theory and Recent State Practice" (Oxford University Press, March 2015).