The Revival of Comparative International Law

By Malksoo, Lauri | Proceedings of the Annual Meeting-American Society of International Law, Annual 2015 | Go to article overview

The Revival of Comparative International Law


Malksoo, Lauri, Proceedings of the Annual Meeting-American Society of International Law


This panel was convened at 1:00 p.m., Thursday, April 9, by its moderator William W. Burke-White of the University of Pennsylvania Law School, who introduced the panelists: Congyan Cai of Xiamen University School of Law; James Gathii of Loyola University Chicago School of Law; Neha Jain of the University of Minnesota Law School; and Lauri Malksoo of the University of Tartu (Estonia).

Comparative International Law: Lessons Learned from Russia

By Lauri Malksoo ([dagger])

Comparative international law (CIL) is an especially important area of the law when differences in interpreting and applying international law are obvious and not marginal; particularly when there is a clear ideological and perhaps also cultural component to different understandings of international law. In these moments, it is necessary that nations viewed as "others" when it comes to interpretations of international law be considered powerful enough that their perspectives are worth studying. There was not much CIL in the nineteenth century because at that time, Europe was powerful enough that it could afford to dismiss the major differences it perceived in the rest of the world as not relevant for international law, which it considered exclusively as its own realm. For ages, international law has not just been a language of justice but also, and perhaps more so, power--something that we international lawyers sometimes tend to underestimate.

It is in this sense that one can currently see a revival of CIL. The world is much less homogenous and much more conflicts-ridden than was presumed and hoped in the immediate post-Cold War era. At the same time, there is a sense in the west that the world is changing rapidly and that the position of the west in the world order is decreasing economically, demographically, and generally power-wise. This, among other reasons, also triggers the curiosity: what do "others" actually think and do, inter alia, in the normative context of international law? When speaking of CIL, I am referring to the study of the reality of international law--both at the level of scholarly doctrine and state practice-- in different countries and power centers in the world.

Russia has been an important country, perhaps the most important country, in the history of CIL in the twentieth century. In a certain sense, the beginning of CIL as an intellectual project goes back to when the Bolsheviks came to power in Russia in 1917 and developed their own theory and doctrine of international law. The Boviet theory was highly critical of the capitalist west and its theory and practice of international law. The Soviet theory, at least during some periods, also directly challenged the unity and universality of international law. Even though the USSR collapsed in 1991 and Marxism/Leninism lost its ideological appeal in Russia, this did not result in a complete convergence of views on and usages of international law in the west and Russia. To the contrary, with the Russian annexation of Crimea and the war in Eastern Ukraine, normative differences between Russia and the west are bigger than they have ever been since the collapse of the USSR.

Recently, Russian politicians, and some international law scholars as well, rely increasingly on civilizational ideas in order to explain and justify Russia's specific stance and claims in international law, i.e. that Russia is a different civilization from the west, based on different values inherited from Orthodox Christianity and messianic political ideas about Russia as "third Rome," or at least a geopolitical counterbalance to the maritime west. In a recent monograph entitled Russian Approaches to International Law, (1) I studied in detail and, I believe, demonstrated quite extensively how contemporary Russian approaches to international law differ from the western mainstream, not just in the doctrinal details but also in some more fundamental aspects, including how the "big picture' of international law is constructed. …

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