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DR. ERIC ENGLE* |
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INTRODUCTION ................................................................................................. |
99 |
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I. THE COLD WAR .......................................................................................... |
100 |
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A. Marxism.............................................................................................. |
100 |
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1. |
Marxist Economic Theory............................................................. |
101 |
2. |
Marxist Legal Theory.................................................................... |
103 |
B. The Soviet Union ................................................................................ |
104 |
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1. |
Soviet Law..................................................................................... |
104 |
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a. Antinomianism in Soviet Law.................................................. |
104 |
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b. Human Rights to Soviet Law ................................................... |
105 |
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c. The Soviet State ....................................................................... |
107 |
2. |
Soviet Economics.......................................................................... |
109 |
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a. The Planned Economy ............................................................. |
109 |
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b. Autarchy................................................................................... |
110 |
C. The Cold War ..................................................................................... |
112 |
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II. FROM COLD WAR TO COLD PEACE ........................................................... |
114 |
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A. Economic Collapse and Corruption ................................................... |
114 |
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B. The Commonwealth of Independent States (CIS) ............................... |
115 |
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C. The Eurasian Economic Community (EurAsEC) ............................... |
118 |
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III. THE COLD PEACE ..................................................................................... |
119 |
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A. Differences Between the Cold War and the Cold Peace .................... |
119 |
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1. |
A Market Economy ....................................................................... |
119 |
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a. Trade (Resources) .................................................................... |
120 |
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b. Investment (Sanctions)............................................................. |
123 |
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c. Sanctions .................................................................................. |
124 |
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d. The Energy Weapon? ............................................................... |
127 |
2. |
Democratic Legitimation............................................................... |
129 |
3. |
Market Economy ........................................................................... |
130 |
* Dr. Jur. Eric Engle J.D. (St. Louis) DEA (Paris II) LL.M. (Humboldt) was a Fulbright specialist (Ukraine). He can be reached at eric.engle@yahoo.com. His works can be seen at: http://papers. ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=879868. Dr. Engle wishes to thank the Fulbright foundation for supporting this research and the editorial team at the St. Louis University Law Journal.
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B. Similarities Between the Cold War and the Cold Peace |
.................... 130 |
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1. Ideology: Great Russian Orthodox Corporatism in a Clash of |
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Civilizations .................................................................................. |
131 |
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a. Great Russian, Nationalist, Inclusive, Expansive..................... |
131 |
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b. Orthodox .................................................................................. |
133 |
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c. Corporatism.............................................................................. |
135 |
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d. Clash of Civilizations ............................................................... |
138 |
2. |
Authoritarianism: “Vertical Hierarchy” ........................................ |
139 |
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a. The Concept of Law................................................................. |
140 |
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b. Corruption ................................................................................ |
144 |
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i. Corruption as a Governance Strategy.................................. |
144 |
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ii. Political Prisoners and Amnesties....................................... |
148 |
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c. The Patriarchal Family ............................................................. |
150 |
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i. “The Family” and the Orthodox Church
as |
|
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Corporatist Institutions in Russia ........................................ |
151 |
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ii. “The Family” as a |
|
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Adoption.............................................................................. |
154 |
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d. Civil and Political Rights (Bürgerrechte)................................. |
155 |
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e. Human Rights........................................................................... |
159 |
3. International Law and Foreign Policy: Geopolitics and “Clash |
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of Civilizations” ............................................................................ |
161 |
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a. Trade Policy ............................................................................. |
161 |
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b. Rearmament and Arms Sales ................................................... |
162 |
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c. Terrorism.................................................................................. |
163 |
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d. The Use of Force Under International Law.............................. |
164 |
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i. Georgia................................................................................ |
168 |
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ii. Syria .................................................................................... |
168 |
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iii. Ukraine................................................................................ |
170 |
CONCLUSION................................................................................................... |
172 |
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INTRODUCTION
The Cold War featured constant covert
conflicts, such as terrorism and proxy wars ranging “from one
end of the globe to the other.”1 These
conflicts repeatedly threatened to erupt into overt (nuclear)
warfare. Russia and NATO are on the edge of a new cold war
because of the illegal annexation of Crimea2
and more than a half dozen other issues, such as Syria,3 gay rights,4 Magnitsky
list,5 et cetera. I call the current
situation a cold peace. This cold peace features isolated and
exceptional regional conflicts as opposed to the systemic global
conflict that was the Cold War. Furthermore, there is much less
state- sponsored terrorism in the cold peace than occurred in
the Cold War. Consequently, exceptional regional conflicts such
as Ukraine, Georgia, and Syria may be manageable but must be
understood as occurring in an asymmetric field, with
Consequently, Russia will most likely be
increasingly isolated politically and economically, and Russian
foreign relations will be increasingly
1.Aaron
David Miller, Five Myths About the
Ukraine Crisis, CNN (Mar. 14, 2014, 6:00 AM),
2.See
Fred Dews, NATO
3.Holly
Yan, Syria Allies: Why Russia, Iran and China Are
Standing by the Regime, CNN (Aug. 29, 2013,
9:01 PM),
4.Russia:
5.Michael R. Gordon, U.S. Imposes New Sanctions on 12 Russians, N.Y. TIMES, May 21, 2014, at A8.
6.Dews, supra note 2.
7.Contra
Peter Baker, Pressure Rising as
Obama Works to Rein in Russia, N.Y. TIMES, Mar. 3, 2014, at A1
(quoting Chancellor Angela Merkel of Germany). Anne Applebaum
wondered aloud whether Putin might be irrational: “[U]nless
Russian President Vladimir Putin suddenly becomes
8.RICHARD SAKWA, PUTIN: RUSSIA’S CHOICE 267 (2d ed. 2008).
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of human rights. Russia presents a real risk to the global rule of law due to domestic corruption and international lawlessness, as most recently seen in Ukraine in Donetsk and Crimea, but also in Georgia and the various “frozen” conflicts in other former Soviet Republics (Moldova, Azerbaijan, and Armenia).9 However, that challenge is regional, not global, and cannot become global because Russian ideology is involuted and unattractive. Furthermore, though rational actors, President Putin and/or Foreign Minister Lavrov overestimate Russia’s power and possibilities and underestimate the resiliency of NATO Member States.
To reduce the risks of a new cold war with rampant proxy wars and state- sponsored terrorism and to effectively foster the rule of law, the protection of human rights, and democratic internationalism, NATO Member States must recognize the exact nature of the challenge with which they are confronted. A proper appreciation of Russia’s real strengths and weaknesses will enable the North Atlantic alliance to firmly and appropriately meet the challenge it now faces, neither overreacting nor underreacting. Some refer to the Russian challenge as “Soviet Union 2.0.”10 However, that overstates and misapprehends the challenge. To understand the challenge Russia presents and why it is not “Soviet Union 2.0,” we must understand the roots of the challenge in the Cold War and the collapse of the USSR.
I. THE COLD WAR
To understand the Cold War we must understand Russia and the Soviet Union; to understand the Soviet Union we must understand Marxism. Thus, we start our inquiry with an examination of Marxism, then the Soviet Union, and finally the transformation from cold war to cold peace. This inquiry proceeds in historical order.
A.Marxism
The Cold War was driven in theory by a pervasive and irreconcilable ideological conflict between liberal individualist capitalism versus collectivist authoritarian socialism. To understand the Soviet Union and why the Russian Federation is not “Soviet Union 2.0,” we must understand Marxist theory. Although Marxist ideology drove the USSR, Marxist thinking is remarkably absent in the ideology of Putin’s United Russia party. We examine Marxist theory first from the economic base, which is the foundation of the ideological
9.Volodymyr
Valkov, Expansionism: The Core of Russia’s Foreign
Policy, NEW E. EUR. (Aug. 12, 2014),
10.See
Charles Clover, Clinton Vows
to Thwart New Soviet Union, FIN. TIMES (Dec. 6, 2012)
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superstructure in Marxist thought. After understanding Marxist economics, we then look at the Marxist ideological superstructure built on that base11 in order to understand the USSR as the precursor and predecessor state to the Russian Federation.
1.Marxist Economic Theory
According to Marxism, history follows
progressive development through successive stages in a
dialectical spiral12 of class
conflict: thesis versus antithesis leading to their synthesis at
a higher level of systemic order. Marx believed the numerous
social classes in history had been reduced by economic progress
to a
11.Often,
when people analyze
12.See
JEAN RIVERO,
LES LIBERTÉS PUBLIQUES
13.See
KARL MARX
& FRIEDRICH ENGELS, THE COMMUNIST MANIFESTO
14.See id.
15.See 1 KARL MARX, CAPITAL: A CRITICAL ANALYSIS OF CAPITALIST PRODUCTION 455– 58 (Frederick Engels ed., Samuel Moore & Edward Aveling trans., Int’l Publishers Co. 1947) (1867).
16.IAN WARD, INTRODUCTION TO CRITICAL LEGAL THEORY 116 (2d ed. 2004) (citing Marx for the proposition that the natural tendency of capitalism is to monopolize).
17.See id.
18.See id.
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Monopoly is terrible, per Marxism, because oligarchs can exploit workers who are essentially helpless in the face of concentrated economic power.19 This essential weakness of the exploited individual explains Marxist skepticism toward individualism. To Marx, “individual freedom” is not just the freedom to starve and be homeless while unemployed; it is also the paralysis of any effort to collectively organize the exploited so as to defend themselves from concentrated economic power.20
History shows that the Malthusian predictions
of
19.See ANTHONY BREWER, MARXIST THEORIES OF IMPERIALISM: A CRITICAL SURVEY 50– 51 (2d ed. 1990).
20.See,
e.g., MICHAEL A. LEBOWITZ, BEYOND
CAPITAL: MARX’S POLITICAL ECONOMY
OF THE WORKING CLASS
21.Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III) (Dec. 10, 1948), available at http://www.un.org/en/documents/udhr/.
22.International Covenant on Civil and Political Rights, adopted and opened for signature, ratification and accession Dec. 16, 1966, 999 U.N.T.S. 171, available at http://www.ohchr.org/ en/professionalinterest/pages/ccpr.aspx.
23.International Covenant on Economic, Social and Cultural Rights, adopted and opened for signature, ratification and accession Dec. 16, 1966, 993 U.N.T.S. 3, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CESCR.aspx.
24.International Convention on the Elimination of All Forms of Racial Discrimination, adopted and opened for signature and ratification Dec. 21, 1965, 660 U.N.T.S. 195, available at http://www.ohchr.org/EN/ProfessionalInterest/Pages/CERD.aspx.
25.Convention on the Elimination of All Forms of Discrimination Against Women, adopted and opened for signature, ratification and accession Dec. 18, 1979, 1249 U.N.T.S. 13, available at http://www.un.org/womenwatch/daw/cedaw/cedaw.htm.
26.General Agreement on Tariffs and Trade, Oct. 30, 1947, T.I.A.S. No. 1700, available at http://www.wto.org/english/docs_e/legal_e/gatt47_e.pdf (forerunner to the World Trade Organization).
27.INT’L MONETARY FUND, http://www.imf.org (last visited Oct. 13, 2014).
28.INT’L BANK FOR RECONSTRUCTION & DEV., http://go.worldbank.org/SDUHVGE5S0 (last visited Oct. 13, 2014).
29.FED. DEPOSIT INS. CORP., http://www.fdic.gov (last visited Oct. 13, 2014).
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Marxist prediction of a natural tendency of
capital to monopolize seems accurate because monopolistic
production is generally more efficient.30 Nevertheless,
capitalist economies do not feature ever more extreme and ever
more rapid economic cyclicity (hysteresis) triggering global war
and global revolution, at least not since 1945.31 Capitalism in the developed world
seems to have mostly tamed the business cycle and to have
definitively
2.Marxist Legal Theory
Marxism argues that the economic base, the material conditions of production, generally determine the ideological superstructure, and that the ideological superstructure merely justifies and rationalizes the relations of productive forces.32 Marxism sees private property as the final mechanism of oppression and a source of separation between men.33 To Marx the state is merely the executive committee of the bourgeoisie.34 Capitalist law, per Marxism, is purely formal,35 an illusion,36 which justifies exploitation by a dominant class over a dominated class.37 Thus, Marx wanted to abolish the state and its laws. Consequently, Marxist legal theory is fundamentally antinomian.38 None of this is part of United Russia’s worldview, but partly explains why Russia has difficulty forming itself as a rule of law state.
30.See BREWER, supra note 19, at 24.
31.See Steve Keen, Is Capitalism Inherently Unstable?, PIERIA (Apr. 29, 2013), http://www.pieria.co.uk/articles/is_capitalism_inherently_unstable.
32.See KARL MARX, A CONTRIBUTION TO THE CRITIQUE OF POLITICAL ECONOMY 20 (Maurice Dobb ed., S.W. Ryazanskaya trans., 1970).
33.
34.MARX & ENGELS, supra note 13, at 28.
35.
36.Eric Engle, Human Rights According to Marxism, 65 GUILD PRAC. 249, 255 & n.10 (2008) (“Civil rights are merely the rights of the bourgeoisie.” (quoting PHILOSOPHISCHES WORTERBUCH 780 (Georg Klaus & Manfred Buhr eds., 1974))).
37.JEAN ROCHE & ANDRÉ POUILLE, LIBERTÉS PUBLIQUES 11 (11th ed. 1995).
38.EVGENY BRONISLAVOVICH PASHUKANIS, THE GENERAL THEORY OF LAW & MARXISM
61 (Chris Arthur ed., Barbara Einhorn trans., Transaction Publishers 2002) (1978) (“The withering away of certain categories of bourgeois law (the categories as such, not this or that precept) in no way implies their replacement by new categories of value, capital and so on.”).
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B.The Soviet Union
1.Soviet Law
Having understood the basics of Marxist economics, we can now proceed to try to understand the USSR. We examine Soviet law to understand some of the reasons why contemporary Russia has difficulty forming a rule of law state.
a.Antinomianism in Soviet Law
The basic problem facing Soviet law was the fact that its teleology was the dissolution of the state into society. Antinomianism undermined the concept of the rule of law39 in the Soviet system: Why build the rule of law if the objective of state power and the inevitable trend of history is the transformation of state power into social peace? Furthermore, for Pashukanis, the leading Soviet legal theorist, the rule of law is a mirage used to delude the working class.40 Thus, “socialist legality,”41 the attempt to implement the formal rule of law42 to govern ordinary transactions of daily life43 in the USSR, was doomed from the start due to dictatorship,44 the absence of separation of powers,45 political purges,46 and a reign of systematic terror47 during both the
39.Kazuo
Hatanaka, The “Rule of Law” State Notion in the USSR
and the Eastern
40.PASHUKANIS, supra note 38, at 146.
41.Hatanaka,
supra note 39, at 7 (“[T]he
concept of socialist legality originally included the observance
of the law and other legal norm by the people, as its essential
component.”); Pierre Lavigne, La Légalité
Socialiste et la Développement de la Préoccupation Juridique
en Union Soviétique, REVUE D’ETUDES COMPARATIVES
42.Hatanaka,
supra note 39, at
43.The Law of Nov. 30, 1918: On the People’s Courts, Collection of Laws of RSFSR, 1918, No. 85, art. 22 (noting that People’s Judges must decide on written law; lacunes to be covered via “revolutionary legal conscience”).
44.See Karl Marx, Marx to J. Weydemeyer, March 5, 1852, in KARL MARX & FREDERICK
ENGELS: SELECTED WORKS IN ONE VOLUME 679, 679 (9th prtg. 1986) (“[T]he class struggle necessarily leads to the dictatorship of the proletariat . . . [and] this dictatorship itself only constitutes the transition to the abolition of all classes and to a classless society . . . .” (quoting Marx in a letter to J. Weydemeyer in New York)).
45.Id. at 291 (“The Commune was to be a working, not a parliamentary, body, executive and legislative at the same time.”); KONSTITUTSIIA SSSR (1936) [KONST. SSSR] [USSSR CONSTITUTION] arts. 35, 59, 67, 81, 91.
46.But see Harold J. Berman, Principles of Soviet Criminal Law, 56 YALE L.J. 803, 805 (1947) (containing no reference whatsoever to the trials of 1936 and 1937).
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Lenin48 and Stalin
eras, which literally put the nails into the coffin of the rule
of law, as shown by the execution of Pashukanis
b.Human Rights to Soviet Law
Marxist legal theory, though antinomian, is not without teleology. Marxism seeks to subordinate the state to society and ultimately replace the state with society in order to end exploitation and war.49 Marx saw capitalist human rights as progress relative to feudalism.50 Marx regarded human rights as necessary for the achievement of socialism.51 Marxist human rights laws are collective52 social claims of all persons to substantive goods, subject however to the limitations imposed by the material facts and contextualized by history53
47.Id.
(“[T]he courts should not do away with
48.Resolution of Council of People’s Commissars of Sept. 5, 1918, Collection of Laws of RSFSR, 1918, No. 710 (noting that enemies of the state are to be imprisoned; if necessary, shot). See also White Terror, IZVESTIA, Sept. 5, 1918, at 1.
49.KARL MARX, CRITIQUE OF THE GOTHA PROGRAMME 31 (C.P. Dutt ed., 1933).
50.Engle,
supra note 36, at 254 &
n.1 (“Already in his ‘On the Jewish Question’ Marx had proven
that the so called Human rights are class
51.Id.
at
52.Engle,
supra note 36, at 254 &
n.1 (“The goal of socialist civil rights is neither absolute
individualism or the loss of the individual within the masse.
Rather, fundamental rights contribute to the formation of
53.As Frederick Engels wrote:
Freedom does not consist in the dream of
independence from natural laws, but in the knowledge of these
laws, and in the possibility this gives of systematically making
them work towards definite ends. This holds good in relation
both to the laws of external nature and to those which govern
the bodily and mental existence of men
FREDERICK ENGELS,
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and the finality of the socialist construction: the abolition of law and the state54 and the replacement of the state with society.55 Early soviet legislation was consequently very open textured, seeking to exhort56 and educate,57 to teach the masses to read,58 to participate in political discourse, and to grow as
54.EVGENY
B. PASHUKANIS, LAW
AND MARXISM: A GENERAL
THEORY 61 (Chris
Arthur ed., Barbara Einhorn trans., 1978) (“The withering away
of certain categories of bourgeois law (the categories as
such, not this or that precept) in no way implies their
replacement by new categories of proletarian law, just as the
withering away of the categories of value, capital, profit and
so forth in the transition to
55.See ROCHE & POUILLE, supra note 37, at 27 (“The freedoms of 1789 are linked to the capitalist regime, the freedoms of the rich.”).
56.Csaba
Varga, Lenin and Revolutionary
CULTURES 515, 516
(Csaba Varga ed., 1992) (“The main features typical of
revolutionary legislation are its very general nature, the fact
that the laws and statutory instruments frequently take the form
of an appeal or a proclamation or a declaratory character or a
statement of principle, the wording of the clauses, which is
clear, fluid and direct, and the often almost total liberty of
structure, to be noted in particular in the lack of separation
between the ‘whereas’ clauses and the legal provisions. In
general, such legislation has the character of an instrument of
revolutionary propaganda designed to stimulate and educate,
partly because of the language and structure adopted for the
norms; in other
57.26 V.I. LENIN, Report on the Activities of the Council of People’s Commissars January 11 (24), in COLLECTED WORKS 455, 464 (George Hanna ed., Yuri Sdobnikov & George Hanna trans., 1964) (“[W]e transformed the court from an instrument of exploitation into an instrument of education . . . .”).
58.N. BUKHARIN & E. PREOBRAZHENSKY, THE ABC OF COMMUNISM 293 (Eden Paul & Cedar Paul trans., 1969). The following graph demonstrates the efforts towards literacy:
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individuals in society.59 The
Soviet concept of human rights as hortatory claims of groups to
collective resources entailing workers’ rights to housing,
shelter, and medical care are different from the legally binding
civil and political rights of the
c.The Soviet State
To understand the cold war, we must understand
the Soviet state. The USSR was a
Dynamics of Literacy
Aged
Population |
|
1897 |
1920 |
1926 |
1939 |
1959 |
1970 |
1979 |
|
|
|
|
|
|
|
|
|
Rural |
M |
35.5 |
52.4 |
67.3 |
91.6 |
99.1 |
99.6 |
99.6 |
|
F |
12.5 |
25.2 |
35.4 |
76.8 |
97.5 |
99.4 |
99.5 |
|
All |
23.8 |
37.8 |
50.6 |
84.0 |
98.2 |
99.5 |
99.6 |
Urban |
M |
66.1 |
80.7 |
88.0 |
97.1 |
99.5 |
99.9 |
99.9 |
|
F |
45.7 |
66.7 |
73.9 |
90.7 |
98.1 |
99.8 |
99.9 |
|
All |
57.0 |
73.5 |
80.9 |
93.8 |
98.7 |
99.8 |
99.9 |
Total |
M |
40.3 |
57.6 |
71.5 |
93.5 |
99.3 |
99.8 |
99.8 |
|
F |
16.6 |
32.3 |
42.7 |
81.6 |
97.8 |
99.7 |
99.8 |
|
All |
28.4 |
44.1 |
56.6 |
87.4 |
98.5 |
99.7 |
99.8 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Source: Narodnoe obrazovanie, nauka i kul’tura v SSSR: Statisticheskii sbornik (Moscow, 1977), 9; SSSR i zarubezhnye strany, 1987: Statisticheskii sbornik (Moscow, 1988), 83.
59.Varga, supra note 56, at 519 (“Lenin’s theory of the need for legislation to be general in character was intended to be applicable only during a transition stage, and carried with it the requirement that the subsequent legislation, based on an appraisal of past experience and making provision for specific matters, should be more directly dependent on the practical results achieved and on the political, social and technical experience acquired in the course of the enforcement of existent laws in a creative manner.”).
60.KONSTITUTSIIA SSSR (1936) [KONST. SSSR] [USSSR CONSTITUTION] art. 1 (“The Union of Soviet Socialist Republics is a socialist state of workers and peasants.”).
61.See Eric Engle, From Russia with Love: The EU, Russia, and Special Relationships, 10 RICH. J. GLOBAL L. & BUS. 549, 551 (2011).
62.Id.
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of the CPSU (the “nomenklatura”) claimed to
govern on behalf of and for the benefit of the workers and
peasants, i.e. the peoples of the Soviet Union, to obtain the
Over time however, the Soviet system degenerated and increasingly worked to the benefit of the party establishment (the “nomenklatura”)73 at the expense of the broad masses of workers and peasants. Meanwhile, the threat of
63.KONSTITUTSIIA SSSR (1977) [KONST. SSSR] [USSSR CONSTITUTION] art. 1 (“The Union of Soviet Socialist Republics is a socialist state of the whole people, expressing the will and interests of the workers, peasants, and intelligentsia, the working people of all the nations and nationalities of the country.”).
64.See,
e.g., V.I. LENIN, STATE AND REVOLUTION
5 (Int’l Publishers 1932) (1917); V.I. LENIN, WHAT IS TO BE DONE: BURNING QUESTIONS
OF OUR MOVEMENT
65.See FREDERICK ENGELS, SOCIALISM: UTOPIAN AND SCIENTIFIC 68 (Andrew Moore ed., Edward Aveling trans., Mondial 2006) (1880).
66.See, e.g., KONSTITUTSIIA SSSR (1936) [KONST. SSSR] [USSSR CONSTITUTION] art. 4 (“The socialist system of economy and the socialist ownership of the means and instruments of production firmly established as a result of the abolition of the capitalist system of economy, the abrogation of private ownership of the means and instruments of production and the abolition of the exploitation of man by man, constitute the economic foundation of the U.S.S.R.”).
67.Engle, supra note 61.
68.Id.; see also Boris N. Mironov, The Development of Literacy in Russia and the USSR from the Tenth to the Twentieth Centuries, 31 HIST. EDUC. Q. 229, 243 (1991).
69.Engle,
supra note 61; see also Jeff Coplon, In Search of a Soviet
Holocaust: A
70.Engle, supra note 61; see also STEPHEN WHITE, RUSSIA GOES DRY: ALCOHOL, STATE,
AND SOCIETY 43 (1996).
71.THE CONCISE OXFORD DICTIONARY OF POLITICS 466 (Iain McLean ed., 1996).
72.See Engle, supra note 61, at 552; see also GAIL WARSHOFSKY LAPIDUS, WOMEN IN
SOVIET SOCIETY: EQUALITY, DEVELOPMENT, AND SOCIAL CHANGE 136 (1978).
73.Engle, supra note 61, at 552; see also MICHAEL VOSLENSKY, NOMENKLATURA: THE
SOVIET RULING CLASS
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invasion diminished. From this perspective,
which I call dual
2.Soviet Economics
a.The Planned Economy
The Soviet planned economy succeeded at
shifting the USSR from a semi- feudal economy facing literal
starvation and illiteracy producing but a score of basic goods
into an industrial economy. However, the newly created
industrial economy produced a myriad of different goods.75 This production diversity doomed the
centrally planned economy: an
74. Capitalism is a system of economic
production predicated on the private ownership of capital. It is
distinct from state capitalism wherein capital is held by the
state or through public- private partnerships. Capitalism is
also defined as an industrial rather than a feudal mode of
production. The Tsarist economy was
COMPARATIVE ECONOMIC SYSTEMS: CULTURE, WEALTH, AND POWER IN THE 21ST CENTURY
183(2002).
75.See
Eric Engle, A
76.See, e.g., WORLD BANK, BELARUS: PRICES, MARKETS, AND ENTERPRISE REFORM 1
(1997).
77.See LUDWIG VON MISES, ECONOMIC CALCULATION IN THE SOCIALIST
COMMONWEALTH 4 (S. Adler trans., 1990).
78.See
Engle, supra note 61, at 568;
see also Robert Whitesell, Why Does the Soviet Economy Appear to be
Allocatively Efficient?, 42 SOVIET STUD. 259,
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production goals had to be met.79 In sum, the quality of Soviet life did
not match Western European standards. This was mostly because so
much of the government’s resources were wasted on building a
b.Autarchy
The Soviet leadership sought to create socialism in one country81 via economic autarchy.82 While historically justified by Russia’s history of invasion after invasion, autarchy is suboptimal to trade. This, along with the inefficiencies of the planned economy, partly explains the collapse of the Soviet Union.
Pursuant to the policy of autarchy, a ruble
currency economic zone was
79.See Engle, supra note 61, at 568; see also Zigurds L. Zile, Consumer Product Quality in Soviet Law: The Tried and the Changing, in 2 SOVIET LAW AFTER STALIN: SOCIAL
ENGINEERING THROUGH LAW 183, 202 (Donald D. Barry et al. eds., 1978) (explaining the rising quality of Soviet goods between the 1960s and 1970s).
80.See Engle, supra note 75.
81.J.V. STALIN, The October Revolution and the Tactics of the Russian Communists, in
PROBLEMS OF LENINISM 117, 121 (1976).
82.Ronald A. Francisco, The Foreign Economic Policy of the GDR and the USSR: The End of Autarky?, in EAST GERMANY IN COMPARATIVE PERSPECTIVE 189, 190 (David Childs et al. eds., 1989).
83.Engle, supra note 61, at 554.
84.Id.
85.Id.
86.Id.
87.Id.
88.Engle,
supra note 61, at 554; see also José F. Alonso & Ralph J.
Galliano, Russian Oil-
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everyday life, albeit of questionable
legality.89 “Gifts” however could be
justified as a “social” and “fraternal” act under the Marxist
logic of transforming monetary economic compulsion into
cooperative voluntary social acts.90 However,
with capitalist restoration, the primitive version of a “gift
economy” became warped into generalized bribery, undermining the
rule of law in the
Preferential tariff treatment for the COMECON
and Soviet client states was a key feature of the international
trade policy of the Socialist bloc.92 High
tariff barriers were created to protect the autarchic COMECON
home market.93 These tariff barriers
would also encourage infant industries.
89. Engle, supra note 61, at
90.Engle, supra note 61, at 555.
91.Id.
92. Id.; see also MARIE LAVIGNE, INTERNATIONAL POLITICAL ECONOMY AND SOCIALISM
ASSISTANCE: THE THORNY PATH FROM POLITICAL TO ECONOMIC INTEGRATION 8 (1989).
93.Engle, supra note 61, at 555. COMECON (also known as the CMEA) was the USSR’s effort to form a common market within the Soviet bloc. See, e.g., JENNY BRINE, COMECON: THE
RISE AND FALL OF AN INTERNATIONAL SOCIALIST ORGANIZATION, at xvi (1992).
94.Engle, supra note 61, at 555. Intellectual property remains but is weakly protected in the
Russian federation and the USSR successor states. As noted by the European Union Commission:
[C]ounterfeiting and piracy activity in Russia
remains on a high level. The lack of effective enforcement
affect Russian markets on a large scale. To be fully integrated
in the world trading system, to continue to attract foreign
investment and to prevent major losses for
95. Engle, supra note 61,
at 555; see also Shane Hart, Computing
in the Former Soviet Union and Eastern Europe,
CROSSROADS,
March 1999, at 23,
96. Engle, supra note
61, at
ENFORCEMENT OF INTELLECTUAL PROPERTY RIGHTS IN THIRD COUNTRIES, EUROPEAN
COMMISSION 17 (2013), available at http://trade.ec.europa.eu/doclib/docs/2013/march/tradoc_1 50789.pdf.
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roads, airports) via forced saving97 and also, more ominously, for military production in order to wage war.
C. The Cold War
As seen, there were essential fundamental differences between individualist capitalist liberalism and Marxist dictatorship. These ideological and economic differences manifested in the Cold War. The Cold War was characterized by constant conflict, overt and covert. Arms control was a perennial political issue of the Cold War to prevent or limit the arms race, and arms control remains a key issue with respect to Russia today.98
The U.S. and U.S.S.R. expressed their Cold
War conflicts through proxy wars, most notably in Korea,
Vietnam, Israel, and Afghanistan, as well as in dozens of
smaller conflicts over several decades.99
Afghanistan,100 but it is fairly obvious that groups such as the Red Brigades, the Japanese Red Army, and the Red Army Faction,101 as well as the
Palestinian Liberation Organization, obtained
covert funding, covert weapons deliveries, and covert training
by the USSR102 and/or China
(including the
Geopolitically, the Soviet system can be described as a series of concentric rings. At the center was the USSR, then Eastern Europe,103 then Third World
97.For a detailed explanation of the import substitution industrialization model in the context of Soviet development theory, see Engle, supra note 75.
98.Shannon
N. Kile, Mar. 10: Making a New START in
99.Julia
Gallivan, U.S. Proxy War Policy During the Cold War, INTRO TO GLOBAL SEC. (Feb. 26, 2013, 2:10 AM),
100.Steve Galster, Afghanistan: The Making of
U.S. Policy,
101.Nick Lockwood, How the Soviet Union
Transformed Terrorism, THE ATLANTIC (Dec. 23, 2011,
8:30 AM),
102.Andrew Campbell, Moscow’s Gold: Soviet Financing of Global Subversion, NAT’L
OBSERVER, Autumn 1999,
at 19,
103.See JOSEPH G. WHELAN & MICHAEL
J. DIXON, THE
SOVIET UNION
IN THE THIRD WORLD: THREAT TO WORLD
PEACE?
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Marxist states, and finally Third World
The U.S. response to the failure of rollback
and the Brezhnev doctrine was to compete in fields where the
USSR could not compete due to technological inferiority or its
structure as a closed dictatorship; prominent examples were
computers and telecommunication.108 Consequent
to this asymmetric arms race, the USSR and its Warsaw Pact
allies wasted almost all their surplus production on
unproductive military spending,109 trying
to make up for quality differences with quantity, just as Russia
today tries to use nuclear weapons to compensate for its
technological inferiority. The U.S. aimed to bankrupt the USSR
by forcing it into an unsustainable arms race, a policy that
worked110— and in my estimate would
work again. The arms race was most evident in the Strategic
Defense Initiative (SDI or “Star Wars”) which sought to create a
missile shield against the USSR.111 The
SDI certainly violated the spirit of the
104.Engle, supra note 61, at 553.
105.See PETER GROSE, OPERATION ROLLBACK: AMERICA’S SECRET WAR BEHIND THE IRON
CURTAIN 210 (2000).
106.See MATTHEW J. OUIMET, THE RISE AND FALL OF THE BREZHNEV DOCTRINE IN SOVIET
FOREIGN POLICY
107.Richard Weitz, Moscow’s
Afghan Endgame, HUDSON INST. (June 25, 2014),
108.See Engle, supra note 61, at 557.
109.Russian Military Budget, GLOBAL SECURITY, http://www.globalsecurity.org/military/
Until the early 1980s, Soviet defense expenditures rose between 4 and 7 percent per year.”). See
also ANDERS ÅSLUND, BUILDING CAPITALISM: THE TRANSFORMATION OF THE FORMER SOVIET
BLOC 131 (2002).
110.1 ENCYCLOPEDIA OF THE COLD WAR
source).
111.4 CATHAL J. NOLAN, THE GREENWOOD ENCYCLOPEDIA OF INTERNATIONAL
RELATIONS 1600 (2002).
112.See Donald G. Gross, Negotiated
Treaty Amendment: The Solution to the
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evidently in Afghanistan and Nicaragua.113 The economic strains on the Soviet
system, which resulted from the arms race and proxy wars, led to
constant shortages that seriously undercut the USSR’s claim to
be creating a workers’ paradise with the highest standard of
living for ordinary people on earth.114 “The
party of Lenin,” despite initial success, was ultimately unable
to match capitalism in the quality and abundance of consumer
goods.115 This, coupled with the
increasing tendency of the nomenklatura to serve its own
interest rather than to seek the
II.FROM COLD WAR TO COLD PEACE
A.Economic Collapse and Corruption
The collapse of the USSR was marked by chaos, corruption, and economic failure116 and was followed by asset stripping and mafia wars, which resulted in declining average life expectancy in Russia during the 1970s.117 The U.S. at least tolerated criminal tendencies of certain Russian classes118 if only because much legitimate economic activity was defined as economic crime by Soviet
113.WOLFF HEINTSCHEL VON HEINEGG, CASEBOOK VÖLKERRECHT § 399 (Beck ed., 2005) (unverified source).
114.31 V.I. LENIN, COLLECTED WORKS 516 (Julius Katzer ed., 1966) (“Communism is Soviet power plus the electrification of the whole country.”). That is, the Soviet system justified itself as the fastest route to development, which it was for at least one generation. However, ultimately, the system lost legitimacy as it became clearer and clearer that the West produced better quality consumer goods and in greater numbers.
115.See ALEX F. DOWLAH & JOHN E. ELLIOTT, THE LIFE AND TIMES OF SOVIET SOCIALISM
182 (1997).
116.See Privatization: Lessons from Russia and China, INT’L LAB. ORGANIZATION, http://www.ilo.org/public/english/employment/ent/papers/emd24.htm
(last visited June 25, 2014) (“By the beginning of 1997 the
Russian economy had perhaps reached its lowest point. GNP fell
by 6 per cent [sic] in 1996, compounding a decline of more
than 50 per cent [sic] since 1991 (although the shadow economy
has expanded). Many enterprises are on the brink of collapse;
the proportion of
117.See Donald A. Barr & Mark G. Field, The Current State of Health Care in the Former Soviet Union: Implications for Health Care Policy and Reform, 86 AM. J. PUB. HEALTH 307, 308 (1996).
118.See Carlos Escude, When
Security Reigns Supreme: The Postmodern
SYSTEM PERSPECTIVE 69, 85 (Ryszard Stemplowski ed., 2002); ALFRED W. MCCOY, THE
POLITICS OF HEROIN: CIA COMPLICITY IN THE GLOBAL DRUG TRADE 385 (1991).
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standards:119 All Russian economic actors in the early 1990s were “criminals,” at least according to Soviet law.
B.The Commonwealth of Independent States (CIS)
The CIS arose in the chaotic aftermath of the
collapse of the USSR.120 Unlike the
USSR, the CIS never had
119.See WILLIAM A. CLARK, CRIME
AND PUNISHMENT IN SOVIET
OFFICIALDOM: COMBATING
CORRUPTION IN THE POLITICAL
ELITE,
120.Michael Roberts & Peter Wehrheim, Regional
Trade Agreements and WTO Accession of CIS Countries, 36 INTERECONOMICS 315, 315 (2001) (“Shortly after the collapse of
the Soviet Union most of its successor states, with the
exception of the Baltic States, joined the Commonwealth of
Independent States (CIS). At the same time many CIS countries
opened up their trade regimes by dismantling various trade
restrictions, state trading monopolies, multiple exchange rate
regimes as well as formal tariff barriers. However, in the
course of the 1990s pressure for the protection of domestic
industries has increased. Import tariffs on ‘sensitive
imports,’ such as refined sugar, have started to pop up. By
far the most serious barriers to trade and the ones most
frequently used are
121.STEPHEN K. BATALDEN & SANDRA L. BATALDEN, THE NEWLY INDEPENDENT STATES OF EURASIA: HANDBOOK OF FORMER SOVIET REPUBLICS 19 (2d ed. 1997) (discussing the factional conflict within the RSFSR at formation of the CIS); Georgi M. Derluguian, The Process and the Prospects of Soviet Collapse: Bankruptcy, Segmentation, Involution, in QUESTIONING
GEOPOLITICS: POLITICAL PROJECTS
IN A CHANGING
NEW ELITE IN
122.Roberts & Wehrheim, supra note 120, at 323 (“Ten years after
the break up of the USSR, CIS countries are still struggling to
find the appropriate format to govern their mutual trade
relations. At present a patchwork of
123.See Commonwealth of Independent States (CIS), GLOBAL SECURITY, http://www.global security.org/military/world/int/cis.htm (last visited Oct. 20, 2014).
124.Joop de Kort & Rilka Dragneva, Department of Economics Research Memorandum 2006.03: Russia’s Role in Fostering the CIS Trade Regime 9 (Leiden Univ. Dep’t of Econ. Res.
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regards to market liberalization126 and the rule of law. Moreover, some of the new managerial class were Soviet era “economic criminals,”127 while others were former nomenklatura. The CIS’s failure is unsurprising, and was perhaps even inevitable given those conditions.128 Lacking a common vision, the CIS defaulted into the role of the clearinghouse for the USSR’s remarkably peaceful dissolution via two distinct factors: (1) privatization, and (2) the devolution of former federal powers to individual Republics.129
The institutional problems mentioned contributed to the breakdown of CIS. For example, the CIS’s transnational trade policy was characterized by incoherence. Numerous overlapping multilateral and bilateral treaties covered similar issues,130 leading to economic disputes due to the contradictory obligations imposed by the various treaties. However, these overlapping multilateral and bilateral treaties also left many issues unaddressed.131 For example, the CIS’s agreements were not sophisticated enough to take into
Memorandum 2006.03), available
at http://ssrn.com/abstract=1440809
(“The CIS was burdened with ambivalent goals. On the one hand,
it aimed to assist the newly independent countries to gain
economic independence, while on the other hand it was the
intended institution to bring the newly independent states
together in an economic union. The ambivalent character of the
CIS, and the increasing
125. See Margot Light, International Relations of Russia and the Commonwealth of Independent States, in EASTERN EUROPE AND THE COMMONWEALTH OF INDEPENDENT STATES
64, 65 (2d ed. 1994).
126.Philip Hanson, The Economics of the Former USSR: An Overview, in EASTERN EUROPE AND THE COMMONWEALTH OF INDEPENDENT STATES, supra note 125, at 43, 43.
127.See, e.g., Leonard Orland, Perspectives on Soviet Economic Crime, in SOVIET LAW AND
ECONOMY 169, 169 (Olimpiad S. Ioffe & Mark W. Janis eds., 1987); Charles A. Schwartz,
Economic Crime in the U.S.S.R.: A Comparison of the Khrushchev and Brezhnev Eras, 30 INT’L
COMP. L.Q. 281,
128.Nonetheless, its failure was remarkable in that
it contributed to the peaceful transition from
COSTS, BENEFITS, AND PRECONDITIONS OF FEDERAL POLITICAL SYSTEMS 325, 325 (Joachim Jens Hesse & Vincent Wright eds., 1996).
129.Id. at
130.de Kort & Dragneva, supra note 124, at 1 (“What can be observed in the CIS is that economic cooperation takes the form of overlapping bilateral and multilateral agreements of very distinct legal quality. From an economic point of view it does not make sense that countries that have concluded a multilateral free trade agreement, as the CIS countries did in 1994, an agreement that they amended in 1999, subsequently conclude bilateral free trade agreements with their partners as well. It creates overlap, it increases transaction costs, and it obfuscates the status of both the multilateral and bilateral agreement.”).
131.Id. (“The agreements that are concluded often are partial and selective, while their ratification and implementation also is a mixed affair . . . .”).
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account
Any effort to bring the USSR’s customs and monetary union into the CIS era was thus doomed for several interlocking reasons. There was an absence of useful legal concepts such as “basic economic rights” (the four freedoms)137 as a necessary means to the desirable end of economic integration to obtain peace and prosperity. The absence of legal concepts in the CIS treaties, such as subsidiarity, proportionality, and acquired community positions (acquis communautaire),138 further crippled the CIS because those are methods of coordinating supranational and intergovernmental tendencies in order to attain
132.Id. at 3 (“The CIS trade regime can be
described as a symbiosis between bilateral and multilateral
regimes, both of which can be described as weak regimes.
Bilateral agreements cover some key free trade rules, such as
tariffs, but remain minimal and quite basic.
133.Roberts & Wehrheim, supra note 120, at 319 (“Though most CIS countries have FTAs with each other on a bilateral basis, not all of them are practically implemented or enforced.”).
134.de Kort & Dragneva, supra note 124, at 2 (“[F]ragmentation
poses a danger of rule clashes, patchy implementation, and a
135.Id. at 1 (“[Ninety] per cent [sic] of all multilateral documents that create the legal base of the CIS, and there are more than 1,000 of them, are ineffective. According to many observers, the CIS seems to have failed in becoming an effective framework of economic cooperation and (re)integration.“).
136.Id. (“[T]he CIS applies the ‘interested party’ principle, which implies that a state could choose not to participate in a certain agreement or decision without afflicting its validity.”).
137.The central concept to the foundation of the European Union as an economic area is the four freedoms (basic rights): the free movement of goods, workers, capital, and enterprises among the Member States. See Eric Engle, Europe Deciphered: Ideas, Institutions, and Laws, FLETCHER
F. WORLD AFF., Fall 2009, at 63, 75.
138.Knud Erik Jorgensen, The Social
Construction of the Acquis Communautaire: A Cornerstone of the
European Edifice, EUR. INTEGRATION ONLINE PAPERS, Apr. 29, 1999, at 1, 2, available at
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by accretion the objectives of economic integration.139 Finally, common institutions such as the Economic Court of the CIS were weak140 because of an absent common will, an absent common goal, and absent common concepts and a general failure to form the rule of law state in former Soviet republics.
C. The Eurasian Economic Community (EurAsEC)141
Following the instauration of market mechanisms to replace the planned economic system, and because of the continual success of the EU as an institution of transnational governance, the Russian Federation, Belarus, and Kazakhstan together instituted a customs union known as the “Eurasian Economic Community,”142 which has become the “Eurasian Union.” Russian efforts to form something like the EU in the former Soviet Union have been criticized, notably by Hillary Clinton,143 as “Soviet Union 2.0”144 or a “dictators’ club.” Given that Belarus is still an overt dictatorship, the attempt by Yanukoyvich in Ukraine to restore dictatorship through draconian anti-
139.de Kort & Dragneva, supra note 124, at
140.Id. at
141.About EurAsEc, ЕврАзЭС, http://www.evrazes.com/en/about/ (last visited Oct. 20, 2014) (“[H]eads of state Alexander Lukashenko, Nursultan Nazarbayev, Kurmanbek Bakiyev, Vladimir Putin, Emomali Rakhmon and Islam Karimov made a decision to establish a customs union within the EurAsEC framework, with the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation as initial members. Other EurAsEC member states will join the customs union when their economies are ready to take this step.”).
142.Roberts & Wehrheim, supra note 120, at 321 (“Russia and two
other CIS countries— Kazakhstan and
143.Clover, supra note 10.
144.
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protest laws,145 and the illegal annexation of Crimea by Russia, those criticisms now have credibility.146 However, the fundamental ideological and economic differences between the Soviet Union and the Russian Federation explain why the Russian Federation and its alliances and trade networks are not “Soviet Union 2.0.” Russia is pursuing a rational policy of power maximization using both “hard” military power and “soft” cultural and economic influence, and Putin is consolidating political power through limitations on civil and political rights. However, United Russia is hardly a vanguard party exercising the all- around dictatorship of the proletariat, let alone atheist or even undemocratic.
III.THE COLD PEACE
A.Differences Between the Cold War and the Cold Peace
Although Russia and the West are once again
in conflict, the conflicted character of current
1.A Market Economy
After the Cold War and collapse of the USSR, Russia abandoned communism as an ideal and central planning and became a market economy, albeit with the state as an important economic actor in key sectors such as petroleum (Gazprom, Rosneft) and arms (Rosoboron).148 The absolute clash
145.Dmytro Gorshkov & Oleksandr Savochenko, Ukraine
Leader Signs Controversial Anti- Protest Law,
YAHOO NEWS (Jan. 18, 2014),
146.Sergei Guriev, Corruption Has Laid Waste
to the Russian Economy, FIN. TIMES (Apr. 2, 2014, 7:21
PM),
147.See Alexander A. Pikayev, Russia’s Black Sea Military Bases, in MILITARY BASES: HISTORICAL PERSPECTIVES, CONTEMPORARY CHALLENGES 165, 165 (L. Rodrigues & S. Glebov eds., 2009).
148.See Russia Prepares to Attack the Petrodollar, VOICE OF RUSS. (Apr. 4, 2014),
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between two different economic models that characterized the Cold War is past. This is reflected in patterns of trade and investment.
a.Trade (Resources)
One key difference between the Cold War and
the cold peace is the extent of trade between Russia and Europe.
Whereas the USSR was largely autarchic, with very little trade
and investment with
Russia trades intensively with the European Union (EU),150 which is Russia’s largest trading partner,151 although Russia is not Europe’s largest trading partner.152 Prior to sanctions, trade between the EU and Russia had been growing rapidly,153 due to Russia’s comparative advantage in hydrocarbons154 and, to a lesser extent, atomic energy, as well as the asymmetric European comparative advantage in certain industrial goods.155 In contrast, trade and investment between Russia and the U.S. is virtually non- existent,156 though U.S. trade with Russia had been growing.157
149.Eric Engle, The EU, Russia, and the Commonwealth of Independent States (CIS), in
RUSSIA, THE EUROPEAN UNION AND THE CIS 1,
150.In 2013 the EU exported €119.8 billion to Russia and imported €206.5 billion from Russia. Directorate General for Trade, Russia Statistics, EUROPEAN COMM’N (Sept. 10, 2014), http://trade.ec.europa.eu/doclib/docs/2006/september/tradoc_111720.pdf.
151.Trade: Russia, EUROPEAN
COMM’N,
152.Id.
153.Memorandum from the Brussels European Council,
Review of
154.Balance Human Rights & Energy With Russia says Knut Fleckenstein MEP, EUROPEAN
PARLIAMENT (June 23,
2010), http://www.europarl.europa.eu/sides/getDoc.do?language=EN&
155.See Trade: Russia, supra note 151.
156.In 2013, U.S. exports to Russia were just over
ten billion dollars ($11.1B) and imports just over
157.Michael A. McFaul, Message
From Ambassador McFaul, U.S. EMBASSY,
http://mos
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Most Russian exports are resources,158 particularly petroleum, but also gold and diamonds. Russia exports few finished goods.159 However, Russia is an energy powerhouse, a key producer of natural gas, oil, and petroleum products. Russia’s natural gas reserves account for roughly a quarter of the world’s total proven reserves.160 Russia also exports uranium and nuclear power plant technology.161 Much of Russia's petroleum resources are in regions with significant minority Muslim populations (local majorities, but federal minorities).162 Consequent to the separatist war in Chechnya, led by Muslim separatists and fought over oil,163 Russia, like the West, faces terrorism.164 Thus, Russia and NATO Member States have a common interest in the suppression of terrorism, specifically Jihadist terrorism,165 a possible point of future cooperation.
158.Gunther H. Oettinger & Sergey I. Shmatko, Opportunities for Our Future Energy Partnership,
159.ANDREW WILSON, VIRTUAL POLITICS: FAKING DEMOCRACY
IN THE
WORLD 57 (2005) (“Russia doesn’t have many export industries.”).
160.U.S. ENERGY INFORMATION
ADMINISTRATION, RUSSIA: COUNTRY ANALYSIS
BRIEF 10 (2014), available at http://www.eia.gov/countries/analysisbriefs/Russia/russia.pdf.
Russia holds the world’s largest natural gas reserves and the
second largest coal reserves. Id. at 10, 16. Russia was the third largest producer
of liquid fuels in 2012. Id. at 1. Russia is the
161.See Summer Said, U.A.E., Russia Sign Nuclear Deal, WALL ST. J. (Dec. 17, 2012, 2:09 PM), http://online.wsj.com/news/articles/SB10001424127887324407504578185101605699498.
162.See Dipak Basu, The Conflict of Chechnya: The Cause, IVARTA (Sept. 13, 2004), http://www.ivarta.com/columns/ol_040913.htm.
163.See Craig Pirrong, Russia’s Chechen War: It All Comes Down to Energy Rents, SEEKING
ALPHA (Apr. 4,
2010, 7:47 AM),
164.See Basu, supra note 162; see also MARX & ENGELS, surpa note 13.
165.See Simon Shuster, How the War on Terrorism Did Russia a Favor, TIME (Sept. 19, 2011), http://www.time.com/time/world/article/0,8599,2093529,00.html.
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The following chart shows the growth of the Russian economy during the Putin era, and also the fact that Russia’s exports are mostly raw materials, particularly petroleum products, not finished goods.166
166. Dinah Deckstein et
al., Promising but Perilous: German Firms Put Off by
Russian Corruption, SPIEGEL (Apr. 3,
2013, 11:53 AM), http://www.spiegel.de/international/europe/
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The existence of significant ties of trade
between Russia and other states creates mutual dependence,167 which makes covert conflicts such as
proxy wars and
b.Investment (Sanctions)
Russia is a
1)Russia’s sovereign debt default in 1998.169
2)The quasi nationalization of Yukos.170
3)The
similar, though less serious,
4)A climate of corruption, both public and private (e.g., “reiderstvo”).172
5)Imposed and possible economic sanctions.173
Even speculative investors, who are not risk
averse, recognize that investing in Russia carries real risks of
selective taxation, extortion, nationalization, and
167.See Europe and Russia’s Resources: “We Are Mutually Dependent on Each Other,” SPIEGEL (July 14, 2006, 1:46 PM), http://www.spiegel.de/international/spiegel/0,1518,426555, 00.html.
168.Other scholars disagree and believe we are already in a new cold war. See, e.g., SAKWA, supra note 8, at viii.
169.See Sebastian Walsh, A
History of Debt Defaults: Russia 1998, FIN. NEWS (July 27, 2011),
170.Gregory L. White & Bhushan Bahree, Russian Government Sets Plan to Nationalize Yukos’s Chief Unit, WALL ST. J., Dec. 31, 2004, at A1.
171.Julia Werdigier & Andrew E. Kramer, BP to Exit Its Venture in Russia, N.Y. TIMES, June 2, 2012, at B1.
172.Carl Schreck, The Danger of Doing Business in Russia, TIME (Dec. 19, 2009), http://con tent.time.com/time/world/article/0,8599,1948140,00.html.
173.Isabel Gorst, Russian Economy Staggering
as Sanctions Bite, IRISH
TIMES (May 2, 2014, 9:28 PM),
174.Deckstein et al., supra note 166. As the authors argue:
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deals. However, capital investments into Russia have repeatedly been shown to be a poor choice,177 most famously in the case of British Petroleum’s joint venture.178
c.Sanctions
The Russian economy performs
further disinvested.182 Capital flight from Russia is illustrated in the chart below:183
Volkswagen, for example, is already producing VW and Skoda models in two Russian plants. VW CEO Martin Winterkorn negotiated directly with Putin about building additional plants. “There was a lot of back and forth and hemming and hawing over whether or not to do it,” says Winterkorn. In the end, he decided that the company would build another engine factory in the western Kaluga region. But the decision was not entirely voluntary.
Id.
175.Id. (“With a law known as Decree 166, the Russia government compels foreign companies to build their own production plants in the country. High import duties increase the cost of models coming in from abroad. But starting in 2016, any automaker that produces at least 300,000 vehicles in Russia will be allowed to import additional cars at lower import duty rates.”).
176.See Europe and Russia’s Resources: “We Are Mutually Dependent on Each Other,” supra note 167.
177.Andreas Heinrich et al., Foreign
Investment and National Interests in the Russian Oil and Gas
Industry, 14
178.Marin Katusa, Putin Is
the New Global Shah of Oil, CASEY RES. (Oct. 26, 2012, 8:29 AM),
179.Anders Aslund, Russia Is Losing Sources
of Economic Growth, MOSCOW
TIMES (Jan. 22, 2014, 7:07 PM),
180.Gorst, supra note 173.
181.Kenneth Rapoza,
182.Russian Economy to Grow by 0.5 Percent in
183.Erin McCarthy, The
Economic Cost of Crisis, WALL ST. J. (May 6, 2014, 1:18 PM),
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Sanctions and the crisis in Ukraine caused an economic recession in Russia, illustrated in the graphs below:184
184. Kathrin Hille, Russia
Looks for Economic
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Sanctions also caused the Russian stock market to lose about 40 billion euros worth of value:185
and have also led to a significant decline in value of the Russian ruble.186
185.Phillip Inman et al., Ukraine Crisis Sends Russian Stock Market Tumbling, £34bn Wiped Off Shares Listed in Moscow as Investors Respond to Russia’s Intervention in Crimea, THE
GUARDIAN (Mar. 3,
2014, 1:58 PM), http://www.theguardian.com/world/2014/mar/03/ukraine-
186.Moran Zhang, Russia’s 2014 Economic
Outlook Bleak Amid Toughening Western Sanctions, INT’L BUS. TIMES (Mar. 27, 2014, 11:31 PM),
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In the graph above, the
Russia can always sell
d.The Energy Weapon?
Some argue that Russia can use energy pricing
and exports as a political weapon. However, that does not seem
to be the case. For example, despite
187.See MARSHALL I. GOLDMAN, PETROSTATE: PUTIN, POWER, AND THE NEW RUSSIA 144– 45 (2008).
188.See id. at
189.See Dina R. Spechler & Martin C. Spechler, The Soviet Union and the Oil Weapon: Benefits and Dilemmas, in THE LIMITS TO POWER: SOVIET POLICY IN THE MIDDLE EAST 96, 96– 98 (Yaacov Ro’i ed., 1979).
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experience shows that energy issues are not determinative of foreign relations between the Russian Federation and other states but merely constrain outcomes because energy dependence is relative, not absolute.
Russia’s ability to use energy as a political weapon is also limited by the fact that there are alternatives to Russian petroleum products. Fractured gas (“fracking”),190 shale oil,191 and tar sands192 are potential alternatives to Russian hydrocarbons. Solar energy is another, and has become much more efficient in the past decades.193 Wind turbines, too, are increasingly
Atomic energy is also an alternative to Russian hydrocarbons.195 Although Germany, at least at present, rejects atomic energy for environmental reasons,196 France uses nuclear energy extensively, obtaining thereby roughly eighty percent of her electricity.197 It is also possible, albeit expensive, to liquefy coal into petroleum products,198 and ethanol has been used successfully in Brazil as an alternative automotive
190.James Herron, Shale Gas Could Fracture Energy Market, WALL ST. J. SOURCE BLOG
(May 29, 2012, 1:34 PM),
191.John Funk, U.S [sic] Shale Oil Production Growing, Gasoline Could Average $3.38, Says U.S. EIA, CLEVELAND.COM (June 11, 2014, 5:03 AM), http://www.cleveland.com/business/ index.ssf/2014/06/us_shale_oil_production_growin.htm.
192.About Tar Sands, OIL SHALE & TAR SANDS PROGRAMMATIC EIS INFO. CTR., http://ostseis.anl.gov/guide/tarsands/ (last visited Oct. 20, 2014).
193.FED. MINISTRY FOR THE ENV’T, NATURE CONSERVATION & NUCLEAR SAFETY,
RENEWABLE ENERGY SOURCES IN
FIGURES: NATIONAL
AND INTERNATIONAL DEVELOPMENT
8 (2010), available
at
194.Id. at 9.
195.See Lisa Pham, Considering an Alternative Fuel for Nuclear Energy, N.Y. TIMES (Oct. 19, 2009), http://www.nytimes.com/2009/10/20/business/global/20renthorium.html?pagewant ed=all.
196.Eben Harrell, Germany Decides to Extend
Nuclear Power, TIME (Sept. 6, 2010),
197.Nuclear Power in France, WORLD NUCLEAR ASS’N,
198.Sasol’s Synthetic Fuels Go Global, SOUTHAFRICA.INFO (Mar. 16, 2007),
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fuel.199 In sum, energy dependence of countries such as the United States or Germany on petroleum imports is only relative. There are alternative energy sources. Thus, energy policy is of limited use as a political instrument. Similarly, although Russia has large gold reserves and diamonds,200 selling those resources would flood the market and drive the price of gold and diamonds down. Russian gold reserves and diamonds are certainly valuable, but less valuable than one might estimate. In sum, Russia’s resources do not seem to be particularly useful as instruments of Russian foreign policy.
2.Democratic Legitimation
The existence of genuine democratic legitimacy of the Russian government is another key difference between the Cold War and the cold peace. Putin has genuine support of a majority of Russians201 and does not need to engage in systematic flagrant voting fraud202 to win elections because he has developed a coherent Great Russian corporatist orthodox ideology, which appeals to a majority of Russian voters. Although the illegal annexation of Crimea came as a surprise to the West,203 it only strengthened Putin’s domestic democratic legitimacy and increased Putin’s approval rating from roughly sixty percent to roughly eighty percent of Russians surveyed.204
199.Larry Rohter, With Big Boost from Sugar Cane, Brazil Is Satisfying Its Fuel Needs, N.Y. TIMES, Apr. 10, 2006, at A1.
200.See R.J. Wilcox, From
Russia With Gold, MINING.COM (Nov. 1, 2013), http://www.min
201.See, e.g., Richard Rose, Putin in Perspective, Presentation at the University of Strathclyde Glaslow and Centre for the Study of Public Policy Scottish Russia Forum (Mar. 22, 2012) (powerpoint notes available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2158 614).
202.But see James Melik, Russia’s
Growth Stifled by Corruption, BBC NEWS (June 28, 2012, 7:05
PM),
203.Guriev, supra note 146.
Russia’s annexation of Crimea came as a great
surprise. After all, Russia was long thought to be a “normal”
developing country. True, it was governed by an undemocratic
However, what happened in Crimea is anything
but “normal”. The last country to annex a neighbour’s territory
was Iraq, which took over Kuwait in 1990. Russia is certainly
not Saddam Hussein’s Iraq. But it stands out in one
Id.
204. Putin’s
Approval Rating Rises to 80%
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3.Market Economy
Another key difference between the old Cold
War and the current cold peace is that the Russian economy,
though still featuring significant state ownership,205 is a market economy. Ownership and
transfers of capital are no longer completely forbidden or even
heavily regulated, though Putin is seeking to compel
repatriation of Russian owned capital which has fled Russia,206 arguing that doing so is an
B.Similarities Between the Cold War and the Cold Peace
Despite the rise of democracy and the development of a market economy, deep divisions still separate Russia from the West and explain why we are currently in a cold peace. Visa travel restrictions,213 espionage,214 diplomatic
205.William Tompson, Back to the Future?
Thoughts on the Political Economy of Expanding State Ownership
in Russia, CAHIERS
RUSSIE, no. 6, 2008, at 1,
206.For a discussion of capital flight mechanisms,
see Alena V. Ledeneva, ‘Underground’
Banking in Russia, 5 J. MONEY LAUNDERING CONTROL 268,
207.Russia Launches Crackdown on Government Worker’s
Offshore Accounts, RT (Apr. 4, 2013,
8:15 PM),
208.See Putin Backs Foreign Capital Repatriation, FOREXTRADING24 (Dec. 13, 2012),
209.Nadia Popova & Alexander Kolyandr, Timing Is Key for Russia’s IPO Hopefuls, WALL
ST. J. (Mar. 30, 2011,
12:01 AM), http://online.wsj.com/news/articles/SB1000142405274870455
9904576230653554503480. RosNeft is one example. See Andrew E. Kramer, Russia
Polishes Rosneft IPO in Time for
210.Neil Buckley, Russia
State
211.On Lenin’s New Economic Policy, see Nikolay
Nenovsky, Lenin and the Currency
Competition: Reflections on the NEP Experience
212.RICHARD SAKWA, RUSSIAN POLITICS AND SOCIETY 6 (4th ed. 2008).
213.Robert Bridge,
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collisions,215 sporadic saber rattling,216 blacklists of persona non grata, and even occasional exceptional proxy conflicts such as Georgia, Syria, and Ukraine217 are features of the cold peace.
The first similarity between the Cold War and
the cold peace we explore is ideological. Ideology influences
all other issues both in their perception and in the actions the
ideologue takes based on its ideology, at least to the extent
the ideologue believes its own propaganda.
1.Ideology: Great Russian Orthodox Corporatism in a Clash of Civilizations
Putin justifies Russia’s conflicted foreign relations by an ideology of Great Russian Orthodox corporatism, which sees itself in a clash of civilizations.218 I describe each of these elements below in detail.
a.Great Russian, Nationalist, Inclusive, Expansive
By Great Russian I
mean Rossiskiy:219 the Russian nation220 defined around language rather than
around race. This is a nationalist, inclusive, and expansive
ideology. Nationalist because it
defines itself as a nation at least as much as a
214.See, e.g., Miriam Elder,
Russia Reveals Identity of CIA Moscow Chief Following
Ryan Fogle’s Expulsion, THE GUARDIAN (May 17, 2013,
1:24 PM), http://www.theguardian.com/
215.See Sean Sullivan, Ambassador
McFaul: Russians Have Leaked My Conversations,
WASH. POST (Feb. 9, 2014),
216.Andrew Higgins & Steven Lee Myers, As
Putin Orders Drills in Crimea, Protesters’ Clash Shows Region’s
Divide, N.Y. TIMES, Feb. 27, 2014, at A12. NATO likewise has
recently held provocative drills. Adrian Croft & Aija
Krutaine, NATO War Games Worry Moscow,
REUTERS (Nov.
6, 2013, 6:51 PM),
217.See Spencer Kimball,
218.See, e.g., Robert C. Blitt, Russia’s “Orthodox” Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad, 33 U. PA. J. INT’L L. 363 (2011).
219.See Stephen Fidler, Putin
Depicts Russia as a Bulwark against European Decadence, WALL ST. J. (Sept. 20, 2013, 11:42 AM),
220.Russia is a vast
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nation.221 Inclusive because the national idea seeks to include all Russian speakers222 and even all Slavs in the idea of nation (“narod”). Expansive because this nationalist ideology seeks to express itself in the following ways:
1.Politically with hard power (including an information war)223 in places such as South Ossetia, Abkhazia, Crimea, and Novo Rossiya;
2.Culturally with soft power224 in other Slavic countries or indeed anywhere there is a Russian language minority;225 and
3.Economically, notably through the policies of Gazprom and RosNeft.226
This is a coherent ideology, not racist ravings or a conspiracy theory, but with no tenable claim as a universal model for global governance, unlike Marxism or liberalism.
221.See EARNEST GELLNER, NATIONS AND NATIONALISM 1 (1983).
222.Russia Military Looks to Recruit More Foreigners, RIANOVOSTI (Nov. 25, 2010, 2:02 PM), http://en.ria.ru/military_news/20101125/161492830.html.
223.Andrew Wilson, “Virtual Politics” in the
Information wars are alive and well in Russia, but in this sphere the Kremlin’s monopoly is less secure. Whereas the main oligarchs are in at least temporary retirement from running party “projects” since the arrest of Mikhail Khodorkovsky in 2003, they need to maintain media influence to run information wars for commercial purposes. Moreover, there is no logical reason why Putin’s settlement with the oligarchs could have been backdated to the destruction of kompromat. On the contrary, rival groups can be expected to have kept whatever materials they had, and the Kremlin has not been able to choke off the supply of new kompromat, which often comes through privatised KGB services. Also, the deliberately arbitrary nature of Russian law “enforcement” (the “principle of suspended punishment”) means it would be advisable to bolster up defences.
Id.
224.Id. (“New types of political technology
and even ‘soft power’ have also been deployed. The authorities
are now much better attuned to the use and abuse of the internet
than they were in 2004. Russia allegedly launched a ‘cyberwar’
on Estonia in May 2007 during the row over the shifting of a
Soviet war monument. Fake supporters for
225.See Международный совет российских
соотечественников выступил в защиту русского языка на Украине и
выразил свой решительный протест против массированного
наступления
226.See Isabel Gorst, Rosneft
and Gazprom: Two Behemoths Battle It Out, FIN. TIMES (July 2, 2014,
2:26 AM),
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b.Orthodox
I call United Russia’s ideological mix Orthodox because Putin has placed the
Russian Orthodox Church as the moral anchor and center of his
227.See, e.g., Russia
Moves to Enact
228.See Alexei Khlebnikov,
The Islamic
229.See RICHARD SAKWA, PUTIN: RUSSIA’S CHOICE 242 (1st ed. 2004).
230.See Maria Shabanova, Rights of LGBT Minorities in Russian Law and Practice, in
RUSSIA AND THE EU: UNEASY RELATIONS: A LOOK FROM BELGIUM 190, 194 (Nina Belyaeva ed., 2010). As Maria Shabanova noted in her article:
[C]reating a negative image of “the other” is a powerful method of consolidation . . . .
LGBT people are an easy target as
Id.
231.Leonid Grigoriev, Elites: The Choice for
Modernization, in RUSSIA: THE CHALLENGES OF TRANSFORMATION 191,
232.Other scholars have noted the confluence of authoritarianism and populism in Russia.
See, e.g., Richard
Sakwa, The Dual State in Russia, 26
233. Craig Calhoun, Foreword to RUSSIA: THE CHALLENGES
OF TRANSFORMATION,
supra note
231, at xi,
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are not Great Russian, Orthodox, and/or Slavs.234 Thus, though Putin’s ideology definitely secures Putin’s reelection, it is an inadequate base for global influence. Why would a Hindu nationalist or an Indian secular liberal see Great Russian corporate orthodoxy as at all relevant to his or her own living conditions or struggles? They would not.
As well as lacking global appeal, the ideology of Great Russian corporate orthodoxy does not address Russia’s problems with economic and political corruption235 and the absence of the rule of law. “Vertical hierarchy,” i.e., personal rule, which Putin sought to restore,236 is the opposite of the rule of law. In a rule of law state, the law is an objective, unbiased foreseeable prediction of what legal consequences are entailed by a given set of facts.237 “Vertical hierarchy” has greater legal uncertainty and thus increased transaction costs as compared with a rule of law state, resulting in suboptimal economic performance. “Vertical hierarchy” and corruption also lead to low protection of basic human rights238 and repel significant foreign capital investments.239 Why invest240 in Russia if you need to pay for a “крыша,” bribe the police,241 and face confiscation through tax penalties242 or strict selective enforcement of ambiguous laws?243 In practice, foreign investors in
234.See Mikhail K.
Gorshkov, The Sociology of
CHALLENGES OF TRANSFORMATION,
supra note 231, at 145, 149 (Siriol
235.See Melik, supra note 202 (“[Russia is] one of the most corrupt countries on earth.”).
236.Stephen K. Wegren & Dale R. Herspring, Introduction to AFTER PUTIN’S RUSSIA 1, 8– 10 (Stephen K. Wegren & Dale R. Herspring eds., 4th ed. 2010); see also Peter Rutland, The Oligarchs and Economic Development, in AFTER PUTIN’S RUSSIA, supra, at 159, 178.
237.See BLACK’S LAW DICTIONARY 1448 (9th ed. 2009).
238.Bill Bowring, Russian Legislation in the Area of Minority Rights, in MANAGING ETHNIC
DIVERSITY IN RUSSIA 15, 16 (Oleh Protsyk & Benedikt
Harzl eds., 2012) (“Russia’s
239.Ledeneva, supra note
206, at 268 (“Lack of transparency, insufficient accountability
and the consequent spread of corruption have often been
identified as a main, and a
240.See How bad is BP?, ECONOMIST, Jan. 22, 2011, at 16 (discussing the advantages and disadvantages of BP’s decision to invest in Russia).
241.Nataliya Vasilyeva, Bribes Part of Everyday Life in Putin’s Russia, HUFFINGTON POST
(Feb. 24, 2012, 4:18 AM),
242.
243.ALENA V. LEDENEVA, HOW RUSSIA REALLY WORKS
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Russia soon discover that between private244 and official corruption their
investment was unwisely made.245 These
facts lead to a lack of foreign investment, which limits the
economic growth of the Russian federation. Great Russian
corporate Orthodoxy is sufficient for
c.Corporatism
The corporatist element of Great Russian
Orthodox corporatism is the most complex and must be further
exposed so that the reader can understand whether and to what
extent Russia today is an example of state capitalism or a
system is characterized in the document by . . . ‘selective enforcement of laws or regulations, sometimes in ways that have been perceived as being motivated by political or financial considerations.’” (quoting a prospectus issued by Yandex)).
244.Alena Ledeneva & Stanislav Shekshnia, Doing
Business in Russian Regions: Informal Practices and
245.Ledeneva and Shekshnia, in discussing these problems, state:
In a study of Swedish companies in Russia,
analysts identify three modes of market entry for foreign
companies: export, joint venture, and direct investment; as well
as three stages at which
Id. at 10.
246.James P. Brennan, Introduction to PERONISM AND ARGENTINA, at ix, ix (James P. Brennan ed., 1998).
247.SAKWA, supra note 229.
248.See, e.g., Guillermo A. O’Donnell, Corporatism and the Questions of the State, in
AUTHORITARIANISM AND
CORPORATISM IN LATIN
AMERICA 47,
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utilitarianism) to build the national economy.249 According to corporatism, economic activity should be organized into social bodies, such as trade unions, confederations of artisans, merchant associations, and companies.250 The formation of peak associations (grouping of these groups) enables each peak association to clearly articulate the precise goals of its group, which the state then mediates in the best interests of all.251 Corporatism seeks to end labor- capital strife by creating a more secure economic system for all.252
Corporatism is associated with a
Corporatism tends to be associated with the idea of the autarchic national economy258 and a union of state and economy, because corporatism developed prior to globalization, i.e., when the world was still organized into autarchic
249.See, e.g., Thomas J. Biersteker, The “Triumph” of Liberal Economic Ideas in the Developing World, in GLOBAL CHANGE, REGIONAL RESPONSE 174, 193 (Barbara Stallings ed., 1995).
250.See SAKWA, supra note 229, at
251.See, e.g., MICHAEL J.
GORGES,
252.See Christian Joerges,
Sozialstaatlichkeit In Europe? A
253.Michael W. Doyle, A Liberal View: Preserving and Expanding the Liberal Pacific Union, in INTERNATIONAL ORDER AND THE FUTURE OF WORLD POLITICS 41, 50 (T.V. Paul & John A. Hall eds., 1999).
254.Calhoum, supra note 233, at xvi (“The financial crisis that came to a head in 2008 brought a renewal of Keynesianism with enormous financial bailouts and stimulus packages.”).
255.HARRY SHUTT, THE TROUBLE WITH CAPITALISM
256.See Economia [Economy],
CASA ROSADA,
http://www.presidencia.gob.ar/component/
257.See Trabajo y Seguridad Social [Labor and Social Security],
CASA ROSADA,
258.See, e.g., HOWARD J. WIARDA, CORPORATISM AND COMPARATIVE POLITICS 59 (1997).
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national economies rather than a
Contemporary corporatism should be distinguished from historical corporatism.269 Contemporary corporatists recognize that we now live in an interdependent world and that interdependence creates conditions of peace and prosperity for all.270 Thus, contemporary corporatists, unlike earlier corporatists, do not seek to build autarchic national economies or consider
259.WIARDA, supra note 258, at
260.Cristián Buchrucker, Interpretations of
Peronism: Old Frameworks and New Perspectives,
in PERONISM
AND ARGENTINA, supra note 246, at
3,
261.KATHERINE ISBESTER, THE PARADOX OF DEMOCRACY IN LATIN AMERICA 345 (Katherine Isbester ed., 2011).
262.SAKWA, supra note 229, at
263.Chris Leggett, Trade Unions in Singapore: Corporatist Paternalism, in TRADE UNIONS IN ASIA: AN ECONOMIC AND SOCIOLOGICAL ANALYSIS 102, 102 (John Benson & Ying Zhu eds., 2008).
264.See Edmund S. Phelps, Corporatism and Keynes: His Views on Growth, in 147 KEYNES’
GENERAL THEORY AFTER SEVENTY YEARS 91,
265.For a critical view of first generation
corporatism, outlining its link to fascism, see Thomas J. DiLorenzo, Economic Fascism, THE FREEMAN (June 1, 1994), http://www.thefreeman
266.JOSEPH M. PALACIOS, THE CATHOLIC SOCIAL IMAGINATION: ACTIVISM AND THE JUST SOCIETY IN MEXICO AND THE UNITED STATES 44 (2007).
267.The intellectual origins of the subsidiarity
doctrine are found in Catholic social thought. There, too, we
see theories of humanizing relations between labor and
capital. See Pope Leo XIII,
Rerum Novarum, LA SANTA SEDE (May
15, 1891), available at http://www.vatican.va/holy_fa
268.SAKWA, surpa note 8, at 95.
269.For a critique of
270.For an overview of transnational influences shaping neocorporatism, see Wolfgang Streeck, The Rise and Decline of Neocorporatism, in LABOR AND AN INTEGRATED EUROPE 80 (Lloyd Ulman et al. eds., 1993).
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themselves as functioning within an isolated autarchic national economy.271 Autarchic national economies haven’t existed in decades because autarchic national economies are poorer than networked interdependent specialized trading economies, and because economic isolation leads to conflicts over access to resources and markets. Increased productivity resulting from trade and specialization explain why economic interdependence leads to prosperity. Furthermore, economic interdependence discourages war.272 As a consequence of interdependence through trade, the global “core” (first world, the developed countries) no longer suffers from recurrent wars for market share and territory. Territory has become much less relevant due to changes in production and because market share is no longer linked to a national (monopolistic and territorial) economic order. Seeing these realities, Putin seeks to implement a free trading economy (Eurasian Economic Union), inasmuch as that is coherent with his consolidation and concentration of political power, e.g. by way of corporatism.
d.Clash of Civilizations
Putin has clearly taken up the logic that the world is a “Clash of Civilizations.”273 The clash of civilizations rhetoric unites Russians internally and expresses Russian ambitions on the world stage; its more helpful variant focuses on the idea of civilizational dialogue274 rather than civilizational conflicts. This logic of civilizations in conflict manifests in differences between concepts of law and human rights in Russian law and Western law and expresses itself through an authoritarian governance structure known as “vertical hierarchy.”275 Putin is currently consolidating and concentrating political power in his own hands and in his party, United Russia. Authoritarianism and centralization of formal power are, of course, characteristics of the USSR; however, there are at least as many divergences in the Russian Federation from the USSR as parallels and continuities.276 Aspects
271.On neocorporatism in the context of Eastern
Europe, see Dorothee Bohle & Béla Greskovits, Neoliberalism, Embedded Neoliberalism, and
Neocorporatism: Paths Towards Transnational Capitalism in
272.For a
273.See SAMUEL P. HUNTINGTON, THE CLASH OF CIVILIZATIONS AND THE REMAKING OF
WORLD ORDER 321 (1996).
274.Vladimir L. Yakunin, Russia and the West: Toward Understanding, in RUSSIA: THE
CHALLENGES OF TRANSFORMATION, supra note 231, at 433, 436 (“Mankind is currently going through a period of the ‘restructuring’ of the system of world organization that has engendered an intense ‘dialogue of civilizations.’”).
275.See infra notes
276.Alena Ledeneva, Sistema, Power Networks and Informal Governance in Putin’s Russia, WORLD FIN. REV. (Jan. 14, 2013), http://www.worldfinancialreview.com/?p=1040 (“Putin’s
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of this (supposed) “clash of civilizations” will be discussed in the next section as they manifest in various aspects of the consolidation of power.
2.Authoritarianism: “Vertical Hierarchy”
Personal power and the command theory of law
is still the governance style in
sistema functions
with some elements from the
277.MARIE MENDRAS, RUSSIAN POLITICS: THE PARADOX OF A WEAK STATE 283 (2012) (“Under Yeltsin and Putin, Russia has been a patent failure of constitutionalism and the rule of law.”).
278.See Vladimir Ryzhkov, The Church Has Replaced the Communist Party, MOSCOW
TIMES (Sept. 18,
2012),
279.RICHARD SAKWA, THE CRISIS OF RUSSIAN DEMOCRACY: THE DUAL STATE, FACTIONALISM
AND THE MEDVEDEV SUCCESSION, at xiv (2011) (“From the perspective of the dual
state model, it would be incorrect to label Putin’s Russia as
an authoritarian regime tout court, since not only did it remain formally committed
to constitutional democracy and liberal capitalism, and these
remained the source of its popular legitimacy but these
commitments moderated its behavior and allowed the formal
constitutional frameworks to structure and influence the
conduct of politics. Although many of the regime’s actions
were authoritarian in spirit, the formal niceties of a
constitutional democracy remained
280.See European Parliament Resolution of 17
June 2010 on the Conclusions of the EU/Russia Summit, 2011 O.J.
(C 236E) 101, 102 (“[W]hereas, as a member of the Council of
Europe and of the Organisation for Security and Cooperation in
Europe (OSCE), Russia has committed itself to protect and
promote human rights, fundamental freedoms and the rule of law,
and to respect the sovereignty of its European neighbours;
whereas
281.Id. at 103 (“Reaffirms its belief that
Russia remains one of the EU’s most important partners in
building
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somewhat miscast. Russia is
a
a.The Concept of Law
Soviet285 and Russian law are both essentially based on a command theory of law:286 law as lex (zakon), a clear command of the sovereign, rather than an objective unbiased objective neutral principle serving justice.287 Aristotle appears to be the earliest source of the ideas of the rule of law as a rational principle288 and the idea of democracy as alternating rule between factions of the ruling class.289 The idea of the rule of law as an objective standard in which transactions have predictable outcomes (foreseeability) is strikingly absent in Russian and Soviet law, despite a common Greek and Russian Orthodoxy. The Germanic idea of justice through law is likewise absent in Russian thinking. Law and justice are two different words with no necessary connection in
common challenges by means of a balanced,
282. See Europe and Russia: Building a Strategic Partnership, DELEGATION OF THE
EUROPEAN UNION TO RUSSIA, http://eeas.europa.eu/delegations/russia/eu_russia/political_rela
tions/political_framework/index_en.htm (last visited Oct. 24,
2014) (“Being members of the United Nations, the OSCE and the
Council of Europe, the EU and Russia are committed to upholding
and respecting the fundamental values and principles of
democracy, human rights, the rule of law and the market economy.
These values underpin the
283.Yakunin, supra note 274, at 439 (“[N]o one in Russia is opposed to democracy, but the sanctity of the authoritarian and paternalist principles are much more pronounced within the Russian people than in Europeans or Americans.”).
284.MENDRAS, supra note 277, at 7.
285.See PASHUKANIS, supra note 38, at 134.
286.JOHN AUSTIN, THE PROVINCE OF
JURISPRUDENCE DETERMINED, at
287.Others think that zakon and pravo coexist in Russia. See Sakwa, supra note 232, at 202 (“Thus, ‘rule by law’ coexists with ‘rule of law’ . . . .”).
288.ARISTOTLE, THE NICOMACHEAN ETHICS 123 (David Ryoss trans., Oxford Univ. Press 1998) (350 B.C.) (“[W]e do not allow a man to rule, but rational principle, because a man behaves thus in his own interests and becomes a tyrant.”).
289.ARISTOTLE, POLITICS
B.C.).
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Russian legal consciousness.290 At best, law in the Russian view is norms and commands, not a predictable structure for transparent governance with a serious divergence between “law in the books” and actual social practices.291
The
290.ALENA V. LEDENEVA, CAN RUSSIA MODERNISE?: SISTEMA, POWER NETWORKS
AND INFORMAL GOVERNANCE
291.ALENA V. LEDENEVA, RUSSIA’S ECONOMY OF FAVOURS: BLAT, NETWORKING AND INFORMAL EXCHANGE 10 (1998).
292.GEOFFREY HOSKING, RUSSIAN HISTORY: A VERY SHORT INTRODUCTION 1 (2012).
293.Efforts at innovation within Western democratic rule of law rights theory to meet Russian conditions such as democratic centralism, socialist legality, and human rights as positive claims to tangible social goods often are ignored or misapprehended in most Western analysis. For an effort to grapple with Soviet legal theory, see ERIC ENGLE, MARXISM, LIBERALISM, AND
FEMINISM: LEFTIST LEGAL THOUGHT (2010).
294.Oleg Kozlovsky, Lessons of Russia’s
Failed Liberalisation, in 20 YEARS AGO, 20 YEARS AHEAD: YOUNG LIBERAL IDEAS 86,
295.Lincoln C. Chen et al., The Upsurge of Mortality in Russia: Causes and Policy Implications, 22 POPULATION & DEV. REV. 517, 523 (1996) (“The transition in Russia has been accompanied by a breakdown of political institutions, the decay of state apparatus, and a general weakening of law and order.”).
296.Jonathan D. Weiler, Human Rights in
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increased investment and trade, leading to effective human rights protection297 and attainment.298
In other words, there are several problems with the command theory of law (CTL). CTL is uncertain and unpredictable. It is impossible to know with certainty what the sovereign will decide or how the sovereign will decide. This makes CTL appear to be arbitrary and unfair. Since decision making is not transparent or predictable, the losing party to any outcome will be much less likely to accept the decision of the sovereign as legitimate. Furthermore, this lack of transparency and objectivity may justifiably lead one to conclude that the CTL sovereign’s decisions are personal, based on family, clan, or bribery, rather than unbiased or objective, which again makes outcomes less likely to be accepted by losers. Moreover, lack of transparency in the CTL can cause or foster corruption. Another problem with CTL is error: What happens when the sovereign’s decision is wrong? The CTL is simple: everyone knows what the command is, but it is also simplistic, opaque, and unpredictable and thus does not create conditions which enable economic prosperity. For all these reasons, Putin’s model of governance through vertical hierarchy is, no matter how much intelligence, finesse, or good intentions Putin personally has, simply less efficient than the Aristotelian rule of law concept that took root by way of Lockean and Kantean liberalism.
If the rule of law state is the answer to the problems of CTL, we must look briefly at the concept of the rule of law state. Often, Eastern European jurists are uncertain about what is meant by “rule of law,” or why and how to attain it. In a rule of law state, the law is an objective neutral means to the goal of justice; the rules are the same for everyone, and the rules operate in foreseeable and predictable ways.299 Another feature of the rule of law state is transparent governance: people know who makes decisions and how they make them and have an opportunity for notice of legal hearings and to a hearing of their claims.300 The rule of law thus generates the best decisions and attracts voluntary compliance of the governed. In a rule of law state, laws must be definite and certain, not vague or ambiguous, so people can foresee outcomes
297.European Commission Country Strategy Paper
298.Murad Tangiev, Political Leadership and
Transitional Democracy in the Russian Federation: Challenges and
Prospects, J. PEACE, CONFLICT & DEV., Nov. 2007, at 1, 3 (“Democracy and human rights
are considered to be fundamental prerequisites for a
sustainable development and
299.European Commission for Democracy Through Law:
Report on the Rule of Law, at 6 (Apr.
4 2011), available at http://www.venice.coe.int/webforms/documents/default.aspx?pdffile=
300.See id.
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and structure their transactions and investments according to their own desires, which is more efficient due to reduced conflicts and the enablement of long- term planning.301 Transparent governance is required so that government may make the best decisions possible and so the people accept and comply with decisions that were fairly made. Compliance with legal decisions is likelier where the decision maker provides reasons for his or her decision.
In a rule of law state, legislation must be an ex ante general prediction, publically made and published.302 Judicial decisions, unlike legislation, are ex post applications of specific facts in the actual case to the relevant rules that the legislator made.303 Similarly, in a rule of law state, parties to proceedings have a right to notice of the proceeding and to hearing of their argument.304 The essence of the rule of law is the idea that public power is a public trust (Treuhand)305 exercised by the government on behalf of and for the benefit of the people. All of these ideas are basically the opposite of vertical hierarchy: vertical hierarchy is unpredictable and not transparent. No one knows when the government may decide to actually enforce a law or for what reasons. Despite those criticisms one must note: Russian authoritarian democracy is much more transparent than the Soviet party dictatorship and has greater popular democratic legitimation as well as greater protections of civil and political rights (Bürgerrechte) than the USSR.
Another challenge facing the rule of law in
Eastern Europe is that the basic ideas that justice can be
obtained through law, and can be best obtained through law, are
often absent there. This is because there may be no necessary connection between (positive)
law and (natural)
301.Id. at 10.
302.Id. at 11.
303.Id. at 12.
304.European Commission for Democracy Through Law: Report on the Rule of Law, supra note 299, at 12.
305.See id. at 5.
306.See supra notes
307.See Kathryn Hendley, ʽTelephone Lawʼ and the ʽRule of Lawʼ: The Russian Case, 1 HAGUE J. RULE L. 241, 242, 247 (2009).
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investment.308 In Russia, however, the rule of law is absent, and just one example of that fact is the political dependency of the prosecutors and even judges on the system, summarized with the rubric of “telephone justice.”309 “Telephone justice” is the idea that the vertical powers can at any time intervene in the case informally to indicate to the judiciary how the case should be decided.310 Although the “telephone” is an anecdote, the dependency is not.
b.Corruption
Whether as cause or consequence of the lack of the rule of law, Russia is
famous for endemic corruption.311 Corruption and the absence of the rule of law312 are partly a consequence of the absence of the rule of law during the
Marxist era,313 and partly a result of the chaotic privatization process in the 1990s marked by kleptocracy, which limited economic development.314 However, corruption in Russia can also be seen as a governance strategy.
i.Corruption as a Governance Strategy
By keeping all businesses in a state of
308.See European Commission for Democracy Through Law: Report on the Rule of Law, supra note 299, at 10.
309.Alena Ledeneva, Telephone
Justice in Russia, 24
325.
310.Id.
311.See, e.g., Russian Central Bank Closes Three More Banks in Crackdown, REUTERS
(Dec. 13, 2013, 9:21 AM),
312.Russia Has Yet to Improve Rule of Law: Deputy PM
Shuvalov, REUTERS
(Dec. 23, 2013, 1:51 PM),
313.Martin Krygier, Marxism and the Rule of
Law: Reflections After the Collapse of Communism, 15 LAW & SOC. INQUIRY 633,
314.MENDRAS, supra note 277, at 284 (“The primitive aspects of the state and the predatory behaviour of its leaders will inevitably operate as an impediment to economic and social dynamism . . . .”).
315.See Melik, supra note 202 (“Dozens of entrepreneurs are in prison on charges trumped up by officials trying to get their hands on their companies . . . .”).
316.See, e.g., Sean
Michaels, Madonna and Lady Gaga Accused of Breaking
Russian Visa Rules, THE GUARDIAN (Aug. 2, 2013,
7:21 AM), http://www.theguardian.com/music/2013/aug/
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undocumented migrant laborers,317 as well as ambiguities in the law.318 These public law aspects of economic
corruption are matched by private practices of corruption such
as keeping two sets of accounts (real and official)319 as well as the entire shadow economy
(pilfering, bribery, barter of influence, drugs, prostitution,
and illegal laborers from the Caucuses or China).320 All of these instruments of
corruption enable the Russian government to legally shut
however, notice that these instruments are all financial corruption, not blood crimes.324 The blood crime era of the 1990s325 is mostly over,326 and even
“mere” extortion has been waning for some years.327 Despite the murders of many journalists,328 murder is less and less a governance tactic in Russia. The
317.Tom Kelly,
318.See, e.g., Amiel Ungar, New Law Would Demonize Foreign Funded Russian NGOs, ARUTZ SHEVA (July 3, 2012, 4:40 AM), http://www.israelnationalnews.com/News/News.aspx/ 157437#.Uw8D4dyrVGI.
319.LEDENEVA, supra note 243, at
320.Id. at
321.As reported last year:
One such case was that of oil giant Yukos,
which was privatized in 1996 and later accused of tax evasion in
2004. The company’s chief executive, Mikhail Khodorkovsky, was
convicted of fraud and jailed. The Russian state then bought the
company and its assets at a
Holly Ellyatt, Is Russia Too Corrupt for International Business?, CNBC (June 11, 2013, 5:30 AM), http://www.cnbc.com/id/100805382.
322.Yukos Executive Khodorkovsky Charged with Fraud, Tax Evasion, BLOOMBERG (Oct. 26, 2003), http://www.bloomberg.com/apps/news?pid=newsarchive&sid=acD4lsuFwPy4.
323.Michaels, supra note 316.
324.LEDENEVA, supra note 243, at 11 (“[O]rganized crime seems to be on the retreat . . . .”).
325.See DAVID M. KOTZ & FRED WEIR, RUSSIA’S PATH FROM GORBACHEV TO PUTIN: THE DEMISE OF THE SOVIET SYSTEM AND THE NEW RUSSIA 267 (2007).
326.But see Melik, supra note 202 (“The case of Sergei Magnitsky, the lawyer employed by a western investment fund, who exposed corruption and then found himself thrown in prison by the very people he had accused, and who then died in prison, has served as a dire warning to all potential investors.”).
327.Ledeneva & Shekshnia, supra note 244, at 13 (“[T]he level of
direct extortion attempts by organized criminal groups in such
countries as Russia, Ukraine, and Belarus has declined
significantly since 2000. Yet, government officials at all
levels have increased pressure for economic gains and many
former mafia figureheads have entered political life. Another
tendency is that lump sum corruption has given way to more
sophisticated, legalized forms of income such as shares in
business and other forms of
328.See 56 Journalists Murdered in Russia Since 1992, COMMITTEE TO PROTECT
JOURNALISTS, https://cpj.org/killed/europe/russia (last visited Oct. 24, 2014).
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fact that Putin instilled at least basic order creating conditions for economic growth329 and increased average life expectancy and population growth explains why he maintains majority support, despite suppression of political and personal freedom and despite the system of corruption as a governance tactic.330 The problem is that these mechanisms of governance repel foreign investors because corruption threatens the security of economic relations.331 Lack of foreign investment in turn leads to suboptimal market performance.332 Cold weather is not the only reason Siberia’s vast mineral resources still remain largely underground. While vertical hierarchy might be justified as having been necessary to end the era of criminality that was the 1990s, it limits Russia’s industrialization by repelling foreign investors. Russia, unlike the USSR, does not seek autarchy and even desires foreign investment333 and foreign trade. Thus, instituting the rule of law is both in the interest of the Russian people and of the Russian government. The West is neither able nor planning to overthrow Putin, and Putin should consider his own eventual succession since the system in place would probably collapse into mafia wars between rival clans if he were to die.
Corruption as governance strategy also includes corruption of the electoral process,334 whether by crude voting fraud, smearing reputations (kompromat),
329.Alexander Rahr & Nicolai N. Petro, Our Man in Moscow, FLETCHER F. WORLD AFF., Summer 2005, at 5, 6.
330.Interview: How Russiaʼs ‘Sistema’ Leads to the ‘Modernization Trap,’ RADIO FREE
EUR. (Apr. 1, 2013),
331.European Union Action Plan on Common Action for the Russian Federation on Combating Organized Crime, 2000 O.J. (C 106) 5, 7.
332.Melik, supra note
202 (“According to Angus Roxburgh, former BBC Moscow
correspondent and later a
333.Igor Dunayevsky, Russia Waiting for U.S. Investors, RUSS. BEYOND HEADLINES (Feb. 27, 2014), http://rbth.ru/international/2014/02/27/russia_waiting_for_us_investors_34593.html.
334.As Wilson notes:
The
Wilson, supra note 223.
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political extortion335 or
more subtle manipulative campaigning336 and
information warfare (disinformation, maskirovka),
and various dissimulation strategies frequently described as
335.LEDENEVA, supra note 243, at
336.Id. at
337.WILSON, supra note 159, at 8 (“The denial of
truth in the Soviet Union throughout most of the twentieth
century created many of the preconditions for virtuality in the
338.Id. at 29 (“As was traditional in the
1970s, the tactics adopted by the local KGB and Party Central
Committee were open and crude to a degree that would have been
unacceptable in Moscow.
339.Id. at 33 (“Many of the active measures developed in the Soviet and even tsarist eras have been redesigned for contemporary use . . . .ˮ).
340.Id. at
341.According to Sakwa:
There is a process of ‘dual adaptation’ in
Russian politics, reflecting the bifurcated nature of the system
in its entirety. . . . On the one hand, elections are held . . .
. On the other hand, a parallel
SAKWA, supra note 279, at 3.
342.See id. at viii (“[A] dual state has
emerged in which the
343.Interview, supra note 330 (“[S]istema is not something very simple. It is an outcome of complex, anonymous, unpredictable, seemingly irrational forces. But it also glues society together. It distributes resources. It mobilizes people. It contributes to stability in people’s minds. It ensures its own reproduction.”).
344.As Ledeneva explains:
Sistema victims, as well as critics of Putin’s sistema, are emphatic about the negative features of his system of governance, but it is not exclusively dysfunctional. The network- based governance is complex, diffuse, unpredictable and seemingly unmanageable, but at the same time it serves to glue society together, to distribute resources and to mobilize cadres, to contribute to both stability and change and to ensure its own reproduction. . . .
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ii.Political Prisoners and Amnesties
When Putin came to power, he offered other
oligarchs a deal.345 They could
either abandon politics and keep their wealth or go into exile.346 Putin’s imposition of order rested on
a sort of amnesty. Khodorkovsky chose to challenge Putin and
keep his wealth, and so met ten years in Siberian prison.347 Putin ultimately amnestied his
political rival Khodorkovsky.348 Likewise,
Putin also finally amnestied his cultural rival Pussy Riot, as
well as the ecological activists in
Russia cannot modernize without modernizing
the
LEDENEVA, supra note 290, at 2.
345.UK Police Probe Death of Exiled Russian Oligarch
Berezovsky, FOXNEWS.COM (Mar. 24, 2013),
346.Id.
347.Putin ‘to Pardon’ Jailed Former Oil Tycoon
Khodorkovsky, BBC NEWS (Dec. 19, 2013,
10:54 AM),
348.Id.
349.Amnestie für
(Dec. 18, 2013, 3:40 PM),
350.See, e.g., Samuel
Rubenfeld, UK to Move Forward with
351.See Duncan Gardham, Russia ‘Gave Agents Licence to Kill’ Enemies of the State, THE
TELEGRAPH (Oct. 2,
2011, 10:23 PM), http://www.telegraph.co.uk/news/worldnews/europe/
352.Litvinenko Murder: Coroner ‘Said Russia Could Be
Involved,’ BBC News (Jan. 21, 2014, 10:55 AM)
353.Magnitsky v. Russia, OPEN
SOC’Y FOUND., http://www.opensocietyfoundations.org/litiga
354.See 56 Journalists Killed in Russia Since 1992, supra note 328. The most famous of the dozens of murdered journalists in Russia is Anna Politovskaya. See Charles Clover, Russia ‘Close
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possible amnesty allows Putin to distance himself from cases where the security services or local leaders eliminate enemies permanently.
Although Putin has developed resilient tactics and an internally coherent popular ideology, United Russia has yet to even develop, let alone implement, a concept of the rule of law as objective foreseeable measures which attain procedural and substantive justice in order to attract voluntary compliance and create legal certainty so as to encourage and attract investment. Nor has Russia developed a model to root out corruption. That may not entirely be the fault of Russia.355
A sensible plan to purge corruption from the
state would proceed
to Solving Journalist’s
Murder,’ FIN.
TIMES (Aug. 24, 2011, 6:24 PM), http://www.ft.com/intl/
355. Combatting corruption in Russia may prove more difficult than imagined:
The global corruption paradigm that has
prevailed since the 1990s is based on three premises: that
corruption can be defined, that corruption can be measured, and
that measurements can be translated into specific policies.
Since then, significant advances in corruption studies and
Firstly, corruption is an umbrella term for a variety of complex phenomena associated with betrayal of trust, deception, deliberate subordination of common interests to specific interests, secrecy, complicity, mutual obligation and camouflage of the corrupt act. In order to deal with such diverse practices in an effective way, we disaggregate “corruptionˮ into clusters of informal practices, widespread yet specific for businesses in Russian regions.
Secondly, the concept of corruption that
underlies international regulatory standards presumes completion
of the transformation from what Weber described as “patrimonial
power
Thirdly, majority of contemporary definitions of corruption presume that there is a clear distinction between public and private realms.
Ledeneva & Shekshnia, supra
note 244, at
356. Indeed, a series of arrests and firings may have less to do with politics than economics.
See Ben Aris, Putinʼs
(Feb. 28, 2013),
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In sum, Putin’s contemporary amnesties, rather than a reform to attain the rule of law, are part of his consolidation of political power, which by definition will not outlive Putin. This has long been the lament of dictatorship: the death of the dictator creates chaos while his successor is selected and uncertainty reigns.357 If Putin wishes to assure the stability of Russia after his death and attract western capital investments, then Putin’s Great Russian corporatist orthodoxy must ultimately comprehend the concept of law as an objective, unbiased measure serving justice and not merely as personal power or authoritative command.
c.The Patriarchal Family
When laws are weak or
357.ARISTOTLE, supra note 289, at
358.LEDENEVA, supra note 243, at 171 (“In a
359.BASIC LAW FOR THE FEDERAL REPUBLIC OF GERMANY art. 6, at 41 (Christian Tomuschat & David Curry trans. 1998).
360.Id. art. 4, at
361.Id. art. 5, at 41.
362.Id. art. 7, at 42.
363.THE CONSTITUTION OF THE RUSSIAN FEDERATION art. 38, at 16 (Finnish Lawyers’ Publ’g 1994).
364.Id. art. 29, §2, at 14.
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i.“The
Family” and the Orthodox Church as
The purpose of “family” and the Orthodox
Church as a
365. SEMEINYI KODEKS ROSSIISKOI FEDERATSII [SK RF] [THE FAMILY CODE OF THE RUSSIAN FEDERATION] art. 12.
366.Alexander Kondakov, Heteronormativity of the Russian Legal Discourse: The Silencing, Lack, and Absence of Homosexual Subjects in Law and Policies, 4 SORTUZ: OÑATI J. EMERGENT
367.Alexander Kondakov, Odnopolyĭ Brak v Rossii: «Temnoe Proshloe», Ser’īe Budni i «Svetloe» Posleėavtra
368.See id. at
369.See id. at 53.
370. Den’ v Istorii [Day in History], GAY RUSS., http://www.gayrussia.eu/day_in_history/ 7064 (last visited Oct. 24, 2014).
371.Gay Rights Not Violated in
372.Alexei Anishchuk & Thomas Escritt, Gay
Rights Activists, Topless Protesters Greet Putin, REUTERS (Apr. 8, 2013, 3:22 PM),
373.A Russian
374.See FAMILY & DEMOGRAPHY FOUND., COMMUNICATION TO THE COMMITTEE OF MINISTERS OF THE COUNCIL OF EUROPE CONCERNING ALEKSEYEV V. RUSSIA (APPLICATION NO. 4916/07), at 5 n.8 (2013), available at http://en.familypolicy.ru/read/240 (“Republic of
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regions376 restrict the rights of homosexuals377 to voice political protest378 and to adopt children.
The suppression of LGBT persons’ political rights to protest379 and civil rights to family are supposedly justified as somehow necessary for the “prevention of riots and protection of health, morals and the rights and freedoms of others,”380 i.e. to maintain public order and/or to protect children381 (from what?) and foster reproduction.382 While the goals of
Bashkortostan Law N
375.Id. at 5 n.4 (“St.
Petersburg Law N
‘On the protection of morals of children in
the Ryazan region’ passed by April 3rd
2006”); Id. at 5 n.7 (“Samara
Regional Law N
376.Kaliningrad zapryetil propagandoo pyedofilii i
gomosyeksooalizma [Kaliningrad
has banned the promotion of homosexuality and pedophilia], POLITIKUS.RU (Jan. 25, 2013, 7:08 PM),
377.Putin signed the law banning gay propaganda on June 29, 2013. Den’ v Istorii, supra note 370.
378.See Michael Schwirtz,
379.See Kondakov, supra note 366, at 7.
380.Kristen L. Thomas, Note, We’re Here, We’re Queer, Get Used to It: Freedom of Assembly and Gay Pride in Alekseyev v. Russia, 14 OR. REV. INT’L L. 473, 476 (2012).
381.Paul Johnson, ‘Homosexual Propaganda’ Laws in the Russian Federation: Are They in Violation of the European Convention on Human Rights? 8 (July 8, 2013) (working paper), available at http://ssrn.com/abstract=2251005.
382.As Putin stated:
I’ve tried to answer similar questions before. There is a rather acute demographic
problem in Russia, as in the rest of Europe. We are making serious efforts to improve the situation, and we are having success. I think we have the best indicators in Europe in terms of the rate of improvement. For the first time in the last 10 to 15 years, we are seeing a sustainable trend of rising births, and the country’s population has even increased somewhat this year.
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protecting people from riots and fostering reproduction are desirable, the means the Russian Federation has chosen to those ends are inapt. Contraception remains legal in Russia, for example.383 Although it is questionable whether suppression of homosexuality is even possible, let alone whether that would somehow contribute to protecting or preserving the family or increased reproduction, the suppression of LGBT rights in Russia shores up the domestic legitimacy of Putin and United Russia.384 It invokes Great Russian nationalism and the Orthodox Church385 to rally a majority of Russian people around Putin and United Russia in order to forestall any U.S. effort to instigate a “color revolution.”386 However, the Russian government’s policy of ignorance and suppression in fact has deadly consequences. There are several documented cases of hate crimes against LGBT individuals and groups in
As for
Transcript of Vladimir Putin’s Interview with CNN’s Larry King, RIA NOVOSTI (Feb. 12, 2010, 8:00 AM), http://en.rian.ru/interview/20101202/161586625.html.
383.Chloe Arnold, Abortion Remains Top
384.According to Maria Shabanova:
[C]reating a negative image of “the other” is a powerful method of consolidation . . . .
LGBT people are an easy target as
Shabanova, supra note 230.
385.See Thomas Grove &
Steve Gutterman, Russia’s Gays Fear More Violence
After Brutal Murder, REUTERS
(May 13, 2013, 9:42 AM), http://www.reuters.com/article/2013/05/13/us-
386.Russia Moves to Enact
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Russia,387 including Russian homosexuals who were murdered simply for being gay.388
ii.“The
Family” as a
To further defend the patriarchal family and to express Russian grievances against the United States, Putin restricted foreign adoption of Russian children, first to the United States,389 then to those countries that recognize same sex marriage.390 These policies, though terrible for children, are politically popular in Russia.
The Russian government regards its views on
gay rights and
387.U.S. DEP’T OF STATE, 2010 COUNTRY REPORT ON HUMAN RIGHTS PRACTICES: RUSSIA
388.See Grove & Gutterman, supra note 385 (“They beat him. They
shoved beer bottles in his anus. They tried to set him on fire.
Then they crushed his head with a heavy stone. A
389.Kirit Radia, Russian Lawmakers Pass Ban
on Adoptions to U.S., ABC NEWS (Dec. 26, 2012, 8:22
AM),
390.Russia Bans Adoptions from Countries that Allow
Gay Marriage, THE TELEGRAPH (Feb. 13, 2014,
12:49 PM), http://www.telegraph.co.uk/news/worldnews/europe/russia/10635821/
391.See Thomas, supra note
380, at 485; Paul Johnson, Russian Ban on
Homosexual Propaganda Violates Human Rights, JURIST (Dec. 1, 2011, 8:00 AM), http://jurist.org/hotline/
392.James Joyner, EU: Georgia ‘Triggered’ Russia’s Illegal Invasion, ATLANTIC COUNCIL
(Sept. 30, 2009),
393.Convention Countries, INTERCOUNTRY ADOPTION, http://adoption.state.gov/hague_con vention/countries.php (last updated Aug. 2013).
394.Convention on Protection of Children and
395.Id. (“Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding.”).
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establishes minimum standards and harmonizes procedures for the adoption of
children throughout the world.396 Although Russia has signed the Convention of the Rights of the Child (CRC),397 the CRC does not oblige Russia to allow
adoptive family or cannot in any suitable manner be cared for in the child’s country of origin.”398 The treaty says “may” not “must.” The CRC centers
children’s rights on the “best interests of the child,” referencing the concept in articles 9, 18, 20, 21, 37, and 40.399 The Russian government can well argue
that the best interests of Russian children are to remain in the Russian language area, or even to be raised by heterosexual adoptive parents because the best interests standard is very vague. Are “best interests” defined culturally, materially, legally, or politically?400 The CRC does not answer that question401 because the “best interests” standard is inadequately defined in the treaty itself.402 The “best interests of the child” principle enables “governments to hide behind the veil of culture and avoid addressing human rights abuses of children in their countries.”403 Although “[i]t should be the goal of the international community to ensure that intercountry adoption is considered as a viable alternative in deciding the best interests of the world’s children,”404 the Russian government is under no international legal obligation to permit adoption of Russian children to foreign countries or to same sex couples.
d.Civil and Political Rights (Bürgerrechte)
Putin’s consolidation and concentration of political power also means suppression of formal freedoms and domestic dissent. Although the Russian
396.Id.
397.Boris Dittrich, Who
Speaks for Russia’s Children?, HUMAN
RTS. WATCH (Jan.
27, 2014),
398.Convention on the Rights of the Child art. 21(b), adopted and opened for signature, ratification and accession Nov. 20, 1989, 1577 U.N.T.S. 3 (emphasis added).
399.Id. at arts. 9, 18, 20, 21, 37 & 40.
400.Jonathan Todres, Emerging Limitations on the Rights of the Child: The UN Convention on the Rights of the Child and Its Early Case Law, 30 COLUM. HUM. RTS. L. REV. 159, 173 (1998).
401.See id. at
402.Id. at 173.
403.Id. at 175.
404.Linda J. Olsen, Comment, Live or Let Die: Could Intercountry Adoption Make The Difference?, 22 PENN. ST. INT’L L. REV. 483, 487 (2004).
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constitution guarantees the rights to freedom
of speech,405 peaceful public
assembly,406 and to freedom of
association,407 fundamental rights
under the Russian constitution may be limited by ordinary
federal legislation where such legislation is necessary to
protect the constitutional system, morality, health, and
national security.408 These
exceptions are broad enough to enable the Russian government to
suppress political expression. General clauses409
and “gaps in current Russian legislation . . . are
misused to allow and justify discrimination.”410
The freedoms of assembly411 and
of speech412 are also suppressed by
imposing substantial413 fines,414 supposedly justified by the paranoid
405.KONSTITUTSIIA ROSSIISKOI FEDERATSII [Konst. RF] [CONSTITUTION] art. 29(1) (Russ.) (“Everyone shall be guaranteed freedom of thought and speech.”).
406.Id. at art. 31 (“Citizens of the Russian Federation shall have the right to assemble peacefully, without weapons, hold rallies, mass meetings and demonstrations, marches and pickets.”).
407.Id. at art. 30(1) (“Everyone shall have the right of association, including the right to establish trade unions for the protection of his (her) interests. The freedom of activity of public associations shall be guaranteed.”).
408.Id. at art. 55(3) (“Human and civil rights and freedoms may be limited by federal law only to the extent necessary for the protection of the basis of the constitutional order, morality, health, rights and lawful interests of other people, and for ensuring the defence of the country and the security of the State.”).
409.Shabanova, supra note
230, at
410.Id. at 190.
411.See, e.g., Gay
Pride Parade Banned for 100 Years in Russia, HUMAN RTS. FIRST (June 7, 2012),
412.Eugene Feldman,
413.Another Saint Petersburg LGBT Agency Fined Half a
Million, RAINBOW
NEWS (June 19, 2013),
414.Zoornalistka “Novoy gazyeti” Yelyena
Kostyochyenko oshtrafovana soodom na 20,000 rooblyey za
uchastiye v Moskovskom
415.Head of “Coming Out” Fined For 300 Thousand as “a Foreign Agent,” RAINBOW
NEWS (June 27, 2013),
416.Thomas, supra note
380, at
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police abuse.417 Some
freedom of speech is tolerated in order to identify potential
opponents and then discredit or
417.Alexander Tikhomirov, Moscow Gay Pride Protests Blocked by Russia Police, WORLD
POST (May 27,
2012, 9:16 AM),
418.WILSON, supra note 159, at 22.
419.Yakunin, supra note 274, at 455.
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life expectancy,420
or population.421
420.Russian Male and Female Life Expectancy, ACADEMIC.RU, http://academic.ru/pictures/ wiki/files/82/Russian_male_and_female_life_expectancy.PNG (last visited Oct. 24, 2014).
421.Yakunin, supra note 274, at 454.
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Russia is better off under Putin than under Yeltsin.
e.Human Rights
Human rights in Western Europe and the United States are generally better protected than in Russia in part due to a poorer economy and the absence of the rule of law. Prisoners, conscripts, undocumented workers, and homosexuals are regularly abused in Russia, and political protest is often silenced.422 The Russian ombudsman for human rights is well aware of such abuses,423 and naturally wishes to improve human rights protection in Russia.424 However,
422.See Alexander Kondakov,
423.Russian Ombudsman: Gay Hate Law “May Lead to
Human Losses and Tragedies,” RAINBOW NEWS (June 12, 2013),
424.Kondavok, supra note 422 (“In the early summer 2010 the Russian ombudsman introduced his report about situation with human rights in Russia to the public (The Ombudsman’s Report 2009, 2010). The report carefully covered a wide range of issues concerning claims to respect for human rights from different groups of Russian citizens: Prisoners, military servants, immigrants. Discursively the report contributes to the established practice of political talk in Russia: There are things one can say something about (especially
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Putin’s consolidation of political power and maintenance of public order often seriously infringe on human rights in Russia.
The lack of a rule of law state, evident in the problem of judicial subordination to vertical power,425 is a serious problem for Russia, not only in human terms but also in economic and political terms. Foreign investment is repelled by lawlessness, hampering Russia’s domestic economy.426 The absence of the rule of law and the prevalence of human rights abuse in Russia result in less foreign investment, leading to suboptimal economic performance and emigration (“brain drain”), a vicious downward spiral.427 Trade and investment lead to prosperity, resulting in better protection of human rights.428 Increasing trade and investment also creates conditions under which the rule of law is likely to be increasingly respected for the following reasons: 1) increasing wealth reduces the relative incentive for law breaking (why break the law when you can get what you want legally?); 2) foreign investors do not wish to see their economic interests nationalized and thus press for functioning legal institutions; and 3) international commerce requires legal certainty429 so that contracts clear quickly and efficiently such that economic actors press for predictable legal institutions (procedural justice). Wealth creation also makes the real protection of human rights much likelier in practice by increasing life expectancy and quality of life, thereby reducing violent crime.
Lawlessness and poverty also make Russian governance no model for emulation in the developing world, thus hindering Russian foreign policy. Who wants to follow the Russian development model of institutionalized corruption and dependence on resource exports?
prisons, armed forces and international friendship) and there are things that must be kept in silence . . . .”).
425.MENDRAS, supra note 277, at 284 (“The subordination of the judges and the rulers’ irresponsibility are major obstacles to the respect for basic rights . . . .”).
426.Ellyatt, supra note 321 (“As a result of cases like this and others, foreign direct investment in Russia remained low compared to other major Emerging Market economies.”)
427.Id. (“Corruption is a big problem in
Russia but it is not the biggest
428.See, e.g., Craig Forcese, Human Rights Mean Business: Broadening the Canadian Approach to Business and Human Rights, in GIVING MEANING TO ECONOMIC, SOCIAL, AND
CULTURAL RIGHTS 71, 74 (Isfahan Merali & Valerie Oosterveld eds., 2001).
429.Deckstein et al., supra note 166 (“What German companies expect more than anything is legal certainty and economic reforms. For them, the Russian market, which, unlike many others, continues to grow, is both promising and potentially treacherous. Indeed, whether a business venture succeeds or fails in Russia is still largely determined by politics.”).
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3.International Law and Foreign Policy: Geopolitics and “Clash of Civilizations”
Russian foreign policy generally expresses
itself as in conflict in a “clash of civilizations”430 between Great Russian Orthodox
corporatism on the one hand and the
Russia’s conflicts range across the spectrum
from trade policy, to terrorism, to
a.Trade Policy
Economic interactions are usually positive
sum. Nonetheless, judging by its actions, Russia sees trade
policy in
430.Alexander Rahr, Pussy Riot Ushers in a New Clash of Civilizations, RUSS. BEYOND
HEADLINES (Aug. 10, 2012), http://rbth.com/articles/2012/08/10/pussy_riot_ushers_in_a_new_ clash_of_civilizations_17221.html.
431.Pomerantsev explains it in this way:
[F]ar from being in transition towards
democratic capitalism, 21st century Russian rulers have learnt
to use the techniques of democracy for distinctly undemocratic
ends. Russia has elections, but they are arranged so as to
strengthen the Kremlin, rather than strengthen checks and
balances. Russia has a civil society, but it is hard to know
which non- governmental organisations (NGOs) are actually
created by, and support the state, while genuinely independent
bodies struggle to survive under evolving restrictions and
harassment. Outside the federal TV channels, critical media does
exist in Russia, but they are framed by the centre, so as to
ultimately undermine any real opposition. Russia also has
private companies, but they are controlled in a
. . . 21st century Russia takes a much more ‘postmodern’ approach to control. Postmodern in the sense that it uses many of the techniques associated with postmodern art and philosophy: pastiches of other’s narratives, simulacra (i.e. fake) institutions, and a ‘society of spectacle’ with no substance. The regime’s salient feature is a liquid, shape- shifting approach to power. Freed from the cumbersome body of ‘hard’ totalitarianism, the leaders of today’s Kremlin can speak like liberal modernisers in the morning and religious fanatics in the afternoon.
Peter Pomerantsev, Russia:
A Postmodern Dictatorship?, LEGATUM
INST., Oct. 2013, at 1, 3, available at
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and thus barred from import into Russia432 is obvious nonsense, a clear
violation of Russia’s WTO obligations.433
b.Rearmament and Arms Sales
The risk of a new cold war is also evident in
Russia’s military policies. Russia is rearming and consolidating
power through corporatism in its military services.436 Putin is transforming the Russian
military from a badly paid and abused conscript army into a
smaller well paid and better armed force with motivated
volunteers directed to elite units. Consistent with Great
Russian Orthodoxy, Putin both permits the Russian army to
recruit
432.Panty Riot: Eurasian Women Draw a Visible Line Against Lingerie Law, THE
GUARDIAN (Feb. 18,
2014, 8:33 PM),
433.See, e.g., Duma
Seeks Moratorium on GMO Production in Russia,
RT NEWS (Feb.
26, 2014, 9:42 AM),
434.Id.
435.Russia Blasts PACE’s ‘Double Standard’ Resolution
on Ukraine, RT NEWS (Jan. 30, 2014,
4:03 PM),
436.Russian Military Pay Rises, But Draft to
437.Russia’s Military To Recruit More Foreigners, RTT NEWS (Dec. 16, 2011, 12:57 AM),
438.Jolie Lee, Who Are Russia’s Cossack Militiamen in Pussy Riot Beating?, USA TODAY
(Feb. 20, 2014, 3:08 PM),
439.Russia Restores Bomber Patrols, CNN (Aug. 17, 2007, 12:48 PM), http://edition.cnn. com/2007/WORLD/europe/08/17/russia.airforce.reut/index.html; see also Russian Bombers to Continue Patrols Over South America, RIA NOVOSTI (Nov. 1, 2013, 12:44 AM), http://en.ria.ru/
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Kaliningrad Oblast,440 and
testing
c.Terrorism
Russia and the U.S. claim a desire to cooperate in the fight against terrorism and narcotics.448 However, I have little hope for actual cooperation
440.Eastern Europe: Russian Missiles in Kaliningrad Annoy Poland and Lithuania, SPIEGEL
(Dec. 16, 2013, 6:21 PM),
441.Warren Mass, U.S. Says Russia Violated
INF Treaty with Test, NEW AMERICAN (Jan. 31, 2014,
3:29 PM),
442.Vladimir Isachenkov, New Russian Nuclear Submarine Enters Service, YAHOO NEWS
(Jan. 10, 2013, 11:48 AM),
443.Russia’s Missile Forces to Replace
444.First Russian
445.Russia Threatens to Quit START as US Deploys Aegis Destroyer to Spain, RT NEWS
(Feb. 4, 2014, 9:22 AM),
446.India’s New Flagship: Russia Hands Over
Modernized Aircraft Carrier to New Delhi, RT NEWS (Nov. 16, 2013, 6:17 PM),
447.Russia Seeks Several Military Bases
448.Cooperation with US, EU on Fighting Drugs
Continues Regardless of
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given the cyber attacks Russia launched
against Estonia,449 the bombings at
Domodedovo450 and Boston,451 as well as the conflicts in Syria and
Crimea. I expect Russia and the U.S. to act as if they are fully
cooperating in their struggle against terrorist violence, while
simultaneously questioning if they should even bother or simply
go back to
d.The Use of Force Under International Law
The general principles of the sovereign
equality of States,454 of non-
interference in other States’ domestic affairs,455 of
449.Adam O’Donnell, Russia
450.N.B., The Domodedovo Airport Bombing: Did the Moscow Bomber Skip Security?, THE
ECONOMIST (Jan. 29, 2011, 4:56 PM), http://www.economist.com/blogs/gulliver/2011/01/domo dedovo_airport_bombing.
451.Eileen Sullivan & Matt Apuzzo, Russia
Wiretapped Boston Bombing Suspect, Recorded Conversation with
Mother: Officials, HUFFINGTON
POST (Apr. 27, 2013, 5:18 PM),
452.Greg Bruno, State
Sponsors: Iran, COUNCIL ON FOREIGN RELATIONS (Oct.
13, 2011),
453.Declan Walsh, WikiLeaks Cables Portray
Saudi Arabia as a Cash Machine for Terrorists,
THE GUARDIAN (Dec. 5, 2010,
10:30 AM), http://www.theguardian.com/world/2010/
454.Even in the Soviet era, this was the case. See GRUNDRISS VÖLKERRECHT 53 (Edith Poeser & Walter Poeggel eds., 1983) (unverified source).
455.Id. at 59; see also Military and Paramilitary Activities in and Against Nicaragua (Nicar.
v.U.S.), 1986 I.C.J. 14, 19 (June 27).
456.HEINEGG, supra note 113, §§
457.James Mayall,
458.See Karsten Nowrot & Emily W. Schabacker, The Use of Force to Restore Democracy: International Legal Implications of the ECOWAS Intervention in Sierra Leone, 14 AM. U. INT’L L. REV. 321, 373 (1998); Any U.S. Attack on Syria Will Need U.N. Approval, MIDDLE EAST IN
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outlaws the use of force without Security Council approval.459 When can a state use force for humanitarian purposes?460 Prior to the U.N. Charter, humanitarian intervention, like the use of force generally, was legally permitted to any state.461 Since the implementation of the Charter, however, it remains uncertain whether and when intervention may be justified by human rights violations.462 What is certain: if approved by the Security Council, humanitarian intervention is legal. However, unauthorized armed intervention is presumptively illegal. Might an unauthorized humanitarian intervention be justified? Under the Charter logic, only as an act of defense of the state or its citizens or nationals.463 Even if legal, the use of force in humanitarian intervention is subject to the general rule that force must be necessary to prevent some greater harm and must be likely to be effective thereto.464 That is, the use of force under international law must be strictly necessary (no alternative) and proportional (limited) to the threat it is intended to neutralize.
To clarify the ambiguity regarding the legality of humanitarian intervention, I distinguish humanitarian relief from humanitarian rescue and humanitarian intervention.
DEPTH (Aug. 27,
2013),
459.Nowrot & Schabacker, supra note 458. Although, with Security Council approval, an
intervention to secure democratic rights may well be legal
intervention in the internal affairs of another state. See id. at 373, 378 (explaining lawful,
460.For an early effort in the U.N. era to grapple
with the idea of whether and when humanitarian intervention
might be lawful, see
461.Cf. Nowrot & Schabacker, supra note 458, at
Even if the international community of states once accepted a customary doctrine of humanitarian intervention, it is not at all clear that the doctrine survived the United Nations Charter. Given the recent United Nations authorized humanitarian interventions in Somalia, Iraq, and the former Yugoslavia, however, it is possible to conclude that humanitarian intervention may be legally authorized by the Security Council. The legal status of unauthorized interventions, however, is tenuous.
Id. at 372.
462.U.N. Charter arts. 32, 42; HEINEGG, supra note 113, §§ 451, 454. See also Ian Hurd, Is Humanitarian Intervention Legal? The Rule of Law in an Incoherent World, 25 ETHICS & INT’L
AFF. 293, 299, 311 (2011) (“Contemporary international law can be read as either allowing or forbidding international humanitarian intervention, and the legal uncertainty around humanitarian intervention is fundamental and irresolvable. Contradictory and plausible interpretations about the legality of any act of intervention exist simultaneously, and neither can be eliminated.”). I agree that ambiguity exists, but I regard the ambiguity as resolvable through structured coherent logic.
463.U.N. Charter art. 51.
464.HEINEGG, supra note 113, § 455.
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1)Provision of humanitarian relief aid465 (devoir d'ingèrence)466 does not involve the use of armed force and thus does not require U.N. Security Council authorization. Therefore, the current U.S. humanitarian relief in Syria is legal under international law.
2)Humanitarian
rescue of hostages, an actual state practice,467 whether by Russia in Tartus, Israel
at Entebbe, or France at Kolwezei, is lawful under international
law as a form of
3)Humanitarian intervention (droit d’ingèrgence) is the use of armed force to protect people468 and is distinct from humanitarian relief aid.469 Humanitarian intervention may seek merely to separate warring parties (peace-
keeping) or may go further and seek to protect
people, or to remove a person, persons, or even a government
While some authors argue for an international duty to respect and protect human rights,471 which would entail a general right to humanitarian intervention,472 the U.N. Charter makes the rules on jus ad bello clear. The “responsibility to protect” doctrine, to present, is only de lege ferenda.
“Responsibility to protect” is merely a hortatory political claim, not a legal right.473
465.See 10 U.S.C. § 2561(a) (2000) (stating Department of Defense humanitarian assistance funds should be used for transporting humanitarian relief or for other humanitarian purposes).
466.Devoir et Droit d’Ingèrence, RÉSEAU DE RECHERCHE
SUR LES OPÉRATIONS
DE PAIX,
467.Actual state practice is one element of customary
international law. See Military
and Paramilitary Activities in and Against Nicaragua (Nicar. v.
U.S.), 1986
I.C.J. 14,
27)(noting that to form a new customary rule, there must be actual state action).
468.HEINEGG, supra note 113, § 451.
469.See Lois E. Fielding, Taking the Next Step in the Development of New Human Rights: The Emerging Right of Humanitarian Assistance to Restore Democracy, 5 DUKE J. COMP. & INT’L L. 329, 340 (1995) (distinguishing humanitarian assistance from humanitarian intervention).
470.HEINEGG, supra note 113, §§
471.For an argument that sovereignty consists of the
responsibility to protect, see id.
§ 384. I regard that as desirable but wishful
472.See
DIPLOMATIQUE (May
2011),
473.But a political right may nevertheless at times be effective. See Louis Henkin, NATO’s Kosovo Intervention: Kosovo and the Law of “Humanitarian Intervention,” 93 AM. J. INT’L L.
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Russia’s argument that its interventions in Georgia and Ukraine were somehow legal is thus unfounded since the U.N. Security Council did not authorize the Russian interventions. Without the approval of the U.N. Security Council,474 humanitarian intervention, however desirable it may be to some,475 is presumptively illegal476 for otherwise there would be abuse of such right.477 For example, if the Russian logic in Crimea were the rule, China might choose to annex parts of Siberia to protect the undocumented Chinese living there, or any of the various Chinatown exclaves around the world. Likewise, France could intervene in Québec to secure Québec’s liberation. The rules Russia purports to uphold are untenable because they would destabilize the entire world and are unacceptable because every state on earth has an interest in its own territorial integrity. Thus, Russia is and will increasingly remain isolated, particularly since China must be concerned about secessionist movements in Tibet, Taiwan, or even Hong Kong, as well as insular claims of China’s neighbors to islands that it regards as Chinese territory.478 We now look briefly at the interventions in Georgia, Syria, and Ukraine to see the contours of the cold peace.
824,
474.Russia’s position, likewise, seems to be that the Security Council approval of humanitarian intervention is required if such a right exists at all. See L.N. Tarasova, K Diskoossii o Pravomyernosti Goomanitarnoy Intyervyentzii [To the Discussion on the Legality of Humanitarian Intervention] 9 VOPROSE TZIVILISTICHYESKOY NAOOKI I SOVRYEMYENNOSTJ
[QUESTIONS OF SCIENCE AND MODERNITY] 99, 100 (2011) (noting that the legal status of humanitarian intervention under international law is ambiguous, but probably does not exist without U.N. Security Council approval).
475.Often, U.S. authors argue, perhaps understandably
and certainly from good intentions, for a unilateral right to
humanitarian intervention to prevent gross violations of basic
human rights. I think those arguments are wrong as a matter of
positive law and do not recognize the fact that enabling
unilateral humanitarian intervention for one state enables it
for all states. See Amy
Eckert, The
LEGAL THEORY 49,
476.Henkin, supra note 473, at 824.
477.The reason that unilateral intervention is illegal is because of the fact that otherwise spurious claims to “humanitarian” intervention would be made any time any state wished to interfere in the internal affairs of other weaker states. The Russian literature is reserved regarding the right to humanitarian intervention, and critical of its potential for abuse. As early as 1910, scholars noted the human rights atrocities committed in the name of humanitarian intervention and the problem of pretextual abuse of the idea of the right to humanitarian intervention. See generally Antoine Rougier, La Théorie de l’Intervention d’Humanité, 17 REVUE GÉNÉRALE DE
DROIT INTERNATIONAL PUBLIC 468 (1910).
478.J.M. Norton, Why Chinese Study the
Warring States Period, THE DIPLOMAT (Dec. 12,
2013),
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i.Georgia
Russia always asserts that all its actions are
consistent with international law, even when that obviously is
not the case. In Georgia, for example, Russia claims that its
military intervention and creation of the barely recognized
puppet states of “Abkhazia”479 and
“South Ossetia”480 were perfectly
legal under international law481 despite
the clear prohibition of the use of force under the U.N.
Charter. In the 2008 Georgia war, the U.N. Security Council did
not authorize the use of force. Moreover, there was no issue of
ii.Syria
In Syria, an ally483 of Russia,484 President Assad violated the international right to life485 by perpetrating mass killings486 of unarmed persons, a crime
479.Abkhazia, populated by Russian nationals, is
recognized de jure only by the Russian Federation, Nicaragua,
Venezuela, and Nauru, as well as by Transnistria and South
Ossetia, neither of which are recognized states as their
absence at the UN makes clear. See
Abkhazia Profile, BBC NEWS (June
3, 2014, 10:50 AM),
480.South Ossetia Profile, BBC NEWS (Oct. 17, 2013, 9:23 AM), http://www.bbc.com/news/
481.Nicolai N. Petro, The Legal Case for Russian Intervention in Georgia, 32 FORDHAM
INT’L L.J. 1524, 1531 (2009); Press Release, Ambassade de la Fédération de Russie au Royaume de Belgique, The Guns of August: The Russian View on the Origins of the 2008 War in the Caucuses and on the Way Forward for the Region (Aug. 2009) (available at http://www.belgium. mid.ru/press/247_en.html).
482.REPORT OF THE INDEPENDENT
INTERNATIONAL
CONFLICT IN GEORGIA 23 (2009), available at http://www.ceiig.ch/pdf/IIFFMCG_Volume_I.pdf.
483.Their alliance is exemplified by an agreement
between the USSR and Syria on Soviet use of naval facilities
at Latakia and Tartus in exchange for delivery of adopted air
defence missiles and jet fighter planes. See GEORGE GINSBURGS & ROBERT
M. SLUSSER, A CALENDAR
OF SOVIET TREATIES
484.The Russian led Eurasian Economic Community (EurAsEC) had been considering
entering into a free trade agreement with
Syria. Tamoʐyenniy soyoz i Siriya mogoot podpisatʲ dogovor o sozdanii
zoni svobodniy torgovli [Customs
Union and Syria Could Sign a Treaty on the Establishment of
Free Trade], 100 TELEVISION RUSSIA (May 28, 2012, 8:05 AM),
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against humanity.487 War
crimes,488 crimes against humanity,
and torture489 are
Russia takes inconsistent positions on armed intervention in Georgia versus Syria. Although Russia somehow regards its interventions in Georgia and Crimea as legal under international law, Russia simultaneously asserts that
(July 9, 2012),
485.Syrian Activists Say Dozens Killed in Hama
Province, CBC NEWS (June 6, 2012, 6:36
PM),
486.Sévane Garibian, Crime Against Humanity, ONLINE ENCYCLOPEDIA MASS VIOLENCE
(June 19, 2008),
487.Egon Schwelb, Crimes
Against Humanity, 23 BRIT.
Y.B. INT’L L.
178,
What is Crime Against Humanity?, 10 J. POL. PHIL. 231, 233, 248 (2002).
488.War crimes today probably include rape, certainly because it is a systematic practice intended to degrade, subjugate, and destroy an entire people. Theodor Meron, Rape as a Crime Under International Humanitarian Law, 87 AM. J. INT’L L. 424, 425, 428 (1993).
489.Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III), at art. 5 (Dec. 10, 1948); Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 222; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 4, adopted and opened for signature, ratification and accession Dec. 10, 1984, 465 U.N.T.S. 113.
490.For an overview of ius cogens, see Tahmina
Karimova, Derogation from Human
Rights Treaties in Situations of Emergency, RULAC,
491.MATTHIAS HERDEGEN, VÖLKERRECHT §§ 14, 16 (7th ed. 2008) (unverified source).
492.For a theoretical overview, see David Luban, A Theory of Crimes Against Humanity, 29 YALE J. INT’L L. 85 (2004).
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any Western intervention in Syria would be a
violation of the general international law principle of
Given the illegal annexation of Crimea by
Russia, it is entirely possible that the conflict in Syria will
devolve into an illegal proxy war. So far, Syria has only proven
to be a very indirect proxy war, with Saudi Arabia financing
rebels and Iran backing Assad.494 To
present, it seems both Russia and the United States are trying
to restrain their rogue suzerains, Iran and Saudi Arabia
respectively. The illegal annexation of Crimea, however, may
have already broken that restraint. The U.S. has expelled the
Syrian Embassy from Washington after the Crimean annexation.495 Perhaps unsurprisingly to some,
Israel launched the heaviest air raids on Syria in years,496 while Turkey shot down a Syrian jet
fighter.497 Although inter arma silent leges, international
legal rights and duties are still relevant to the Syrian
conflict, at least for now, because the U.S. and Russia are not
yet overtly committed to proxy war in
iii. Ukraine
Ukraine is the most recent major conflict
point between Russia and the West. In Ukraine, it was entirely
evident that Russia was willing to tolerate the formation of an
authoritarian dictatorship, another Belarus, as a part of its
formation of a Great Russian imperium: failing to attain that,
Russia annexed Crimea to guarantee control of its naval base,
using the protection of Russian nationals in Crimea from
493.Alexei Anishchuk, Russia Warns Against
Military Intervention in Syria, REUTERS (Aug. 26, 2013,
10:20 AM),
494.Doyle McManus, Syria
and the Perils of Proxy War, L.A. TIMES
(Jan. 12, 2014),
495.Chairman Royce, Ranking Member Engel Support U.S.
Expulsion of Syrian Diplomats, U.S. HOUSE COMMITTEE ON FOREIGN AFF. (Mar. 18, 2014), http://foreignaffairs.house.gov/press
496.Lebanese Media: IsraeliAir Raid Hits Hezbollah
‘Missile Site,’ Kills Militants, JERUSALEM POST (Feb. 25, 2014, 9:17
AM),
497.Sebnem Arsu, Turkey Downs Warplane from Syria After Warning, N.Y. TIMES, Mar. 24, 2014, at A5.
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a matter of international law:498 Russia’s annexation was a violation of its treaty obligation under its Treaty of Friendship to respect Ukraine’s territorial integrity499 and under the universally recognized general principle of the territorial integrity of each State under customary international law.500 Russia’s argument that the annexation was somehow an exercise of national self- determination is nonsense since there is no Crimean nation. Russian nationals living in Crimea who wished to live in Russia were in fact free to move to Russia, and were not facing discrimination or human rights abuses, contrary to the claims of the Russian federation.501
Russia’s comparison of its illegal annexation
of Crimea to Kosovo’s separation from Serbia is also wrong.
Kosovo was not annexed by any state and faced actual grave human
rights violations, and it was also the subject of a U.N.
Resolution.502 The so called
“republic of Crimea” existed for only one day, was recognized by
only one state, and was immediately annexed by that state.503 Russia’s illegal annexation is a
violation of international law and of Ukrainian national law.504 Consequently, an isolation of Russia
through economic sanctions has already started.505 Hopefully this process will not end
in proxy wars and
498.This illegality was reflected by the U.N. General
Assembly Resolution condemning the annexation. Louis
Charbonneau & Mirjam Donath, U.N.
General Assembly Declares Crimea Secession Vote Invalid,
REUTERS (Mar. 27, 2014, 2:43 PM), http://www.reuters.com/article/2014/
499.Treaty between the Russian Federation and Ukraine
on Friendship, Cooperation and Partnership,
500.U.N. Charter art. 2.
501.Amnesty International and Human Rights Watch both
make clear that the human rights abuses in Crimea are against
journalists and Ukrainians, not against the Russian language
“minority” in Crimea. Crimea:
Attacks, ‘Disappearances’ by Illegal Forces Rein in Units
Operating Outside Law, HUMAN RTS. WATCH (Mar.
14, 2014), http://www.hrw.org/news/2014/
502.Iñigo Urrutia Libarona, Territorial
Integrity and
AUTONÒMICS I FEDERALS, Oct. 2012, at 107,
503.Matt Smith & Alla Eshchenko, Ukraine
Cries ‘Robbery’ As Russia Annexes Crimea, CNN
(Mar. 18, 2014, 6:20 PM),
504.CONST. OF UKR., art. 73 (2010).
505.Marcus Walker et al., Europe, U.S.
Significantly Expand Sanctions Against Russian Economy, WALL ST. J. (July 29, 2014, 11:15 PM),
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Inconsistent Russian positions on
intervention in Syria versus Georgia and Ukraine and
CONCLUSION
Since Putin clearly casts Russia within a clash of civilizations, we can rightly ask ourselves: What exactly is this clash about?
Economically, Russia and the West are in conflict over trade ties and resources, a conflict that expresses itself through different visions of the role of individual rights, the rule of law, and democracy in the theory of law and the state.
Ideologically, the conflict between Russia and the West is between Great Russian corporatist orthodoxy with a weak rule of law and “vertical hierarchy” and the Western triumvirate of “the rule of law,” “human rights,” and “democracy.” While Europe tries to foster the rule of law, democracy,508 and the protection of human rights,509 Russia is at best ambivalent, at worst cynical,
506.Sanctions Against Ukraine Blackmail, Double
507.Alessandra Prentice, Russia Accuses U.S. of Double Standards Over Syria, REUTERS
(Feb. 22, 2013, 5:10 PM),
508.Freedom, Security and Justice, EUROPEAN UNION EXTERNAL ACTION, http://www.eeas. europa.eu/russia/common_spaces/fsj_en.htm (last visited Oct. 24, 2014) (“The EU has supported the development of democracy, the protection of human rights and the development of a healthy civil society in Russia notably through the European Initiative for Democracy and Human Rights (EIDHR).”).
509.Id. (“With democracy, respect for human
rights, fundamental freedoms and the rule of law an essential
element of
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and/or hypocritical about human rights and the
rule of law. Russia misperceives itself as trapped in a
Thus, it is unlikely that the constant
conflicts between Russia and the West will degrade into the
endemic worldwide proxy wars and
Although Putin has elaborated a viable
ideology and governance structure for maintaining personal rule
within Russia, that structure cannot, as currently cast, outlive
him, nor can it attract significant foreign investment, nor does
it have global appeal. Thus, until Russia transforms itself into
a rule of law state, we can expect continued suboptimal economic
performance, lack of industrialization, and further eclipse of
Russia by
situation in Chechnya and the rest of the
North Caucasus, including torture and
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