1

Decolonization as a Cold War Imperative:

Early Soviet International Law As a Precursor to Bandung

Boris N. Mamlyuk1

The Conference is agreed:

(a) in declaring that colonialism in all its

manifestations is an evil which should speedily

be brought to an end;2

The Bandung Conference (1955) was convened, in part, to explore ways that newly

independent states could navigate the dangerous terrain of Cold War bipolarity between a

U.S.-led ‘capitalist’ bloc and the Soviet-led ‘socialist’ bloc. The adversarial and existential

stand-off between the two blocs could be said to have opened a space for dialogue, which

later gave rise to the non-aligned movement and its late more concrete institutional forms.3

Drawing on Mary Dudziak seminal argument that Cold War inter-bloc policy competition and

propaganda accelerated the end of de jure segregation in the U.S., the thesis could be

expanded to suggest that decolonization in the early 1950s and 1960s, too, was the product of

Cold War ideological confrontation. Thus, between Western promises of liberal transitions

for former colonies and Soviet suggestions that colonies and newly independent states would

receive material aid if they embraced socialism and allied with the USSR, decolonization as a

Cold War imperative suggests, among other things, a race to highlight commitment to self-

determination, sovereign equality, and non-intervention. Yet if the Soviet position is to be

believed, that is, if Soviet critiques of ‘Western’ or ‘capitalist’ exploitative practices were part

of what contributed to rising self-awareness amongst the colonized peoples of the world,

leading them to unite as proletarians against imperialism as the highest stage of capitalism,

then why was the Soviet Union excluded from the Bandung Conference? How did the Soviet

state transform from a Bolshevik-led revolutionary movement that explicitly defined itself in

opposition to imperialism to a perceived imperialist actor in its own rite? What can the

strange legacy of ‘Soviet imperialism’ teach contemporary students of encounters in which

imperial powers sincerely profess anti-imperial or anti-colonial sentiments while

simultaneously taking imperial strides? And, of course, how does international law frame

these questions?

To speak of ‘Soviet international law’ as a precursor to Bandung in even the most general

terms suggests an inquiry into the dual role that Soviet international legal doctrine played in

enabling independence movements that culminated in statehood and recognition for former

colonies, while simultaneously constraining internal self-determination movements within its

vast territory. This type of argument could be developed in at least four ways: (1) by

exploring various realist justifications for exploitative Soviet state practice despite high-

minded decolonization doctrinal talk; (2) it can rest on critical lines of thought that suggest

1 Assistant Professor of Law, University of Memphis, School of Law (bmamlyuk@memphis.edu). 2 Final Communiqué of the Asian-African conference of Bandung (24 April 1955), Art. D(1)(A); The Ministry

of Foreign Affairs, Republic of Indonesia (ed.). Asia-Africa speak from Bandung (Djakarta: 1955), 161-169 (hereafter Bandung Final Communiqué).

3 Mourad Ahmia, ed., The Group of 77 at the United Nations (London: Oxford University Press, 2014).

2

the indeterminacy of international legal argument more generally, without distinguishing

between Soviet or ‘Western’ positions; (3) by revisiting settled historical episodes (such as

‘exclusion’ of the Soviets from Bandung) through new empirical or archival research; (4) by

tracing the evolution of Soviet decolonization discourse through the writings of several

leading theorists in effort to understand, as much as possible, the types of constraints and

anxieties these scholars labored under, and the actual effect of their work on particular

emancipatory projects.

Despite the inherent intellectual merit and policy-relevance of these research questions, the

Soviet experience remains an often overlooked dimension of the intellectual, institutional and

professional development of the discipline of international law. Typically, histories of

international law treat Soviet approaches to international law as anomalous, as aberrational

moments in the continuous teleological development of liberal international law doctrines and

institutions.4 More recent attempts to rethink the place of Soviet approaches to international

law vis-à-vis ‘Western’ international law either describe the Soviet experience in terms of a

‘civilizational dialogue’ with Europe5 or as an integral part of a longer historical narrative

dating back to Russia’s imperial era.6 Furthermore, in the contemporary moment, when

Russian aggression or economic expansion is frequently, if erroneously, labeled ‘Soviet’,7 any

attempt to explore fractures in Soviet modes of argumentation on decolonization may appear

revisionist and/or trivial,8 akin to an aesthetic study of the monumental grace of Werner

March’s 1936 Olympiastadion in Berlin as a proxy for understanding Nazi ideology. Without

suggesting the resurrection of Soviet-style critiques or political postures, this chapter seeks to

reframe our understanding of Soviet participation in particular anticolonial projects by

focusing on the writings of early Soviet international lawyers Evgeny Korovin and Evgeny

Pashukanis, and, later, fragments of recollections by the late Soviet ambassador to Indonesia

during the Bandung Conference.9 Revisiting this history is important for, at least, two main

4 See, e.g., Bardo Fassbender, Anne Peters, Simone Peter, Daniel Högger, eds., The Oxford Handbook of the

History of International Law (Oxford: Oxford University Press, 2012) (engaging with Soviet Union through the framework of ‘encounters’ with universal international law or assessing challenges and doctrinal positions that Soviet Union raised); cf Alexander Orakhelashvili, ed., Research Handbook on the Theory and History of International Law (Cheltenham: Edward Elgar, 2011). Canonical treatises and textbooks similarly elide the concept of ‘socialist international law’ or distinct Soviet approaches to international law. See, e.g., James Crawford, Brownlie's Principles of Public International Law (Oxford: Oxford University Press, 2012); Damrosch, Henkin, Murphy, Smit, International Law: Cases and Materials (5th ed., 2009). For a classic exposition of the teleologies of international law pursued by leading ‘Western’ international lawyers, see Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960 (2004), 344, 439 (discussing Morgenthau’s realist position that “the ‘real issue’ in the cold war […] was not an ideological confrontation but a desire for power that transformed the revolutionary rhetoric of the Soviet State into an instrument of Russian imperialism” and Le Fur’s position that in the transition from the League to the prospective European Union, Russia be excluded because “the Soviet Union had nothing whatsoever in common with Western civilization”).

5 Lauri Mälksoo, “The History of International Legal Theory in Russia: a Civilizational Dialogue With

Europe,” 19 EJIL 211–232 (2008); Lauri Mälksoo, Russian Approaches to International Law (London: Oxford

University Press, 2015). 6 See, e.g., Peter Holquist, “The Dilemmas of an Official with Progressive Views-Baron Boris Nolde,” Baltic

YB Int’l L. (2007); Austin Jersild, Orientalism and Empire: North Caucasus Mountain Peoples and the Georgian Frontier, 1845-1917 (McGill 2003);

7 Anders Åslund, “Sergey Glazyev and the Revival of Soviet Economics,” 29 Post-Soviet Affairs 375 (2013). 8 William Partlett, “Reclassifying Russian Law: Mechanisms, Outcomes, and Solutions for an Overly

Politicized Field,” 2:1 Columbia J. East Eur. L. 1 (2008). 9 The first Soviet ambassador to independent Indonesia was Dmitry Aleksandrovich Zhukov [Дмитрий

Александрович Жуков] (1909-1981), who served during the time period 1954-1958. Negotiations regarding the establishment of diplomatic relations between the USSR and Indonesia were conducted between 30 November and 17 December 1953.

3

reasons. First, it adds to the growing empirical account of decolonization generally, and

Soviet participation (direct and indirect) in particular decolonization projects. Second, it

helps to understand the complex role of the Soviet Union as both a peripheral post-imperial

subject and neo-colonial actor in its own right. For lack of space, this chapter does not

engage with many of the questions it poses, particularly with respect to the contemporary

relevance of Bandung for Russian and post-Soviet international lawyers and international

relations specialists. But as the essence of this volume suggests, even encyclopedic efforts to

capture the complexity and far-ranging consequences of Bandung are but preliminary

ultimately attempts to approximate the true nature of a rapidly evolving contemporary frame

of reference.

1. Early Soviet Discourse on International Law & Anti-Colonialism

While Lenin himself often spoke and wrote on such central topics as self-determination,

sovereignty, non-intervention, and international economic law,10 the work of developing an

operational Soviet theory of international law fell to young scholars working in the Soviet

Institute of State and Law, particularly Evgeny Korovin (1892-1964) and Evgeny Pashukanis

(1891-1937).11 The work of these two theorists is remarkable for a number of reasons, two of

which should suffice to establish their authoritativeness vis-à-vis their contemporaries, and

their relevance to the present study.12 First, they both occupied high-level institutional

positions in a time of tremendous institutional upheaval; as such, they acted as doyens for the

field within Russia, had access to significant research resources and funding, and set research

agendas to scores of students under their direct supervision.13 During the Interwar period,

Pashukanis rose to become the Soviet Union’s leading legal theorist, occupying prominent

institutional roles in the Communist Academy and what would become, and remains, the

Institute of State and Law within the Russian [earlier, Soviet] Academy of Sciences.14

Similarly, Korovin served in a number of prominent positions, including as secretary of the

central committee of the Russian branch of the ICRC (from 1918-1927) and participated as a

10 In fact, his writings on international law were ultimately collected and published as a standalone volume by

the Soviet Institute of International Relations. Ленин о международной политике и международном праве (Изд-во Ин-та международных отношений, 1958) [Lenin on International Politics & International Law (MGIMO, 1958)]; see also V.I. Lenin, Questions of National Policy (Foreign Languages Publ. House, Moscow, 1959) (devoted mainly to self-determination and related questions). In 1970, the Soviet Union issued a volume of Lenin’s contributions to international law, edited by Tunkin and V.F. Fedorov. See Г.И. Тункин, В.Ф. Федоров, ред., В.И. Ленин и современное международное право (Москва, Знание 1970) [G.I. Tunkin, V.F. Fedorov, eds., V.I. Lenin and Contemporary International Law (Moscow, Znanie, 1970)]. For a short overview of Lenin’s contributions to international law, see Г.В. Игнатенко, В. И. Ленин и международное право, 2 Правоведение 98-108 (1970), available at http://www.law.edu.ru/magazine/article.asp?magID=5&magNum=2&magYear=1970&articleID=1133126 (Russian).

11 Scott Newton, Law and the Making of the Soviet World: the Red Demiurge (London: Routledge 2014); R. St. J. Macdonald, “Rummaging in the Ruins, Soviet International Law and Policy in the Early Years: Is Anything Left?”, in Karel Wellens, ed., International Law: Theory and Practice: Essays in Honour of Eric Suy 69 (1998); Д.Б. Левин, “Е.Б. Пашуканис как юрист-международник,” 9 Sovetskoe Gos. i Pravo 96-103 (М.: Наука, 1981) [D.B. Levin, “E.B. Pashukanis as an International Lawyer,” 9 Sovetskoe Gos. i Pravo 96, 96-103 (1981)]

12 Piers Bierne, ed., Revolution in law: contributions to the development of Soviet legal theory (M.E. Sharpe, 1990).

13 William E. Butler, Russia and Law of Nations in Historical Perspective (2008), at 372 (citing К.В. Антонов, Е. Гершельман, Програма по международному публичному праву (1929) [Antonov & Gershelman, Syllabus on Public International Law (1929)].) Antonov and Gershelman co-wrote a syllabus on public international law in 1929 based on Pashukanis’ teachings.

14 Michael David-Fox, “Symbiosis to Synthesis: The Communist Academy and the Bolshevization of the Russian Academy of Sciences, 1918-1929,” 46(2) Jahrbücher für Geschichte Osteuropas 219-243 (1998).

4

Soviet delegate in various high-level diplomatic missions.15 Second, both Korovin and

Pashukanis were extremely prolific and their works were widely disseminated in their original

Russian, and in translation. Third, as two leading Soviet international law scholars, their

collaboration in the service of Soviet state-building efforts strongly militates in favor of

reading their works collectively.16 Read together, their work suggests certain broader

sensibilities and anxieties that the Soviets held in relation to colonialism during the Interwar

period;17 these anxieties, in turn, continued to influence Soviet theory and practice well into

the later Soviet period, including the crucial period around the Bandung Conference.

On the most general level, it is to be expected that Interwar Soviet international lawyers

would explicitly write against empire, and posit Soviet international law in direct opposition

to the bourgeois international legal order, which was seen as exploitative, imperialist and

nominally progressive while replicating familiar patterns of European colonial expansion. In

a 1927 article titled the Main Tendencies of Contemporary International Colonial Law,

Evgeny Korovin, squarely attacked bourgeois international law for promoting colonialism

while concealing its exploitative basis in ‘neutral’ legal forms.18 According to Korovin and

Pashukanis, international law was the handmaiden of empire, promoting dispossession not

only through the use of doctrines and regimes like unequal treaties or the League of Nations

mandate system, but also through the very form of law—which, in the minds of many early

Soviet jurists, was nothing more than a medium for commodity exchange.19

Recalling the main thrust of Korovin’s 1927 article allows us to gain an appreciation for how

a particular style of critique operated in this time period, particularly because it has never

been published in translation. It should of course be noted that this article was but one of

many publications in which Korovin critiqued particular aspects of colonial legality. Korovin

had previously exposed the League of Nations mandate system as a pretext for continuing

colonial practices.20 In his 1927 article, however, he went further than his earlier work in its

15 “Коровин, Евгений Александрович,” in Дипломатический словарь, под ред. А. А. Громыко, А. Г.

Ковалева, П. П. Севостьянова, С. Л. Тихвинского в 3-х томах, (М., «Наука», 1985-1986) [“Korovin, Evgeny Aleksandrovich,” in Diplomatic Dictionary (Gromyko, Kovaleva, Sevostyanova, Tikhvinskii, eds., 3 vol., Moscow: Nauka, 1985-1986)], available at: http://enc-dic.com/diplomat/Korovin-Evgenij-Aleksandrovich-570.html

16 William E. Butler, Russia and Law of Nations in Historical Perspective (London: Wildy, Simmonds & Hill, 2008), 375 (“The [1936 Pashukanis-based, Korovin-compiled] syllabus was approved by the international law section of the Communist Academy of Soviet Construction and Law.”).

17 Of course, Korovin and Pashukanis were not the only two Soviet international lawyers writing within the Interwar period; nor would it be accurate to ascribe anything like a badge of ‘officialness’ to their writings. Michael Head, “The Passionate Legal Debates of the Early Years of the Russian Revolution,” 14 Can. J. L. & Jurisprudence 1, 26-27 (2001) (citing M. Jaworskij, ed., Soviet Political Thought–an Anthology (Johns Hopkins, 1967).

18 Е.А. Коровин, “Основные тенденции современого Международного Колониального Права,” 26(2) Советское Право 1 (1927) [E.A. Korovin, “Main Tendencies of Contemporary International Colonial Law,” 26(2) Soviet Law 1 (1927)] [hereafter Korovin, International Colonial Law].

19 Е.Б. Пашуканис, Общая Теория Права и Марксизм (Изд. Ком. Акад., 4-е изд., 1928) [E.B. Pashukanis, General Theory of Law and Marxism (Publ. Communist Acad., 4th ed., 1928)].

20 Е. А. Коровин, Международное право переходного времени (Москва: Гос. изд-во, 1924), 38. [E.A. Korovin, International Law in the Transition Period (Moscow, 1924), 38] [hereafter Korovin, ILTP]; Е.А. Коровин, Международные договоры и акты нового времени (М-Л, 1925) [E.A. Korovin, International Conventions and Acts of New Era (M-L, 1925)]; Е. А. Коровин, Современное международное публичное право (М., 1926) [E.A. Korovin, Contemporary Public International Law (1926)]. To Korovin, in bourgeois practice, international law concepts like sovereignty and self-determination were reserved for ‘civilized and chosen’ (избранные) people, that is nations that were strong enough to resist the capitalist oppressors, or, were other strong capitalist states. Korovin, ILTP at 43.

5

systematic treatment of colonialism and international law.21 He excoriated Zimmerman,

Santi-Romano, Liszt and Fauchille for their ad hoc treatment of colonialism under

international law (treating it, variously, as a matter concerning the subjects of international

law, acquisition of territory, international administration and so on). This was not

inadvertent, Korovin pointed out, for to classify colonial law as a separate branch of

international law would have undermined the high principles of international legal theory,

such as equality, sovereignty and self-determination.22

Korovin began his study of international law’s complicity in colonialism with an analysis of

the doctrine of annexation practiced by the “knights of colonial adventurism trade

capitalism,” Pizarro and Cortez.23 The doctrine of annexation went hand in hand with the

genocide of indigenous populations. With the growth of culture, a sarcastic use of the term by

Korovin, murder was replaced by servitude, as colonial masters realized it was more efficient

to force the indigenous populations to toil for them as slaves than to kill them, much like the

transformation of rules of war from permitting the killing of war prisoners, to their use as

laborers, to the eventual permission of sale and exchange of prisoners.24 The true economic

reasons for colonial expansion were masked, according to Korovin, by religious or

humanitarian justifications, like the spread of Christianity or a more inchoate “civilizing

mission.”25

Of the forms by which powerful imperial states acquired legal control over colonies—such as

occupation, purchase, treaties, protectorates, rent,26 and so on—Korovin was especially

suspicious of seemingly neutral legal mechanisms.27 Thus, he pointed out the colonial

practice of forming international conventions with presumably independent nations for the

express purpose of subsequently revoking these treaties. This was typically done on the

pretext of a violation by the weaker state, leading the stronger state to invoke remedial

mechanisms pursuant to the earlier treaty (as France had done in Madagascar in 1885).28 In

the context of 19th century colonialism, Korovin discussed the ‘individualistic principle’ by

which each colonial power sought to create its own exceptional legal regime and negotiated

with other colonial powers only when necessary to protect reciprocal rights (such as the

Austro-Anglo-Italian agreement of 1887). In the same vein, Korovin unpacked the “unequal

treaties” with China and the capitulation regimes with Turkey, Persia and other ‘Eastern’

states.

21 In his International Law of the Transition Period, Korovin provided a good critique of Russian imperialism

as well, noting that it was indistinguishable in form and practice from European imperial practices. Russia “had divided nations, and occupied them. Where it was strategically beneficial or where other nations had prevented Russian expansion, the Russian empire recognized ‘sovereignty’ of those nations (such as against Persia in 1907). Korovin, ILTP at 43.

22 Ibid. at 1-2. 23 Ibid. at 4. 24 Ibid. at 5. 25 Cf Martti Koskenniemi, The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870-1960

(2004). 26 Korovin, International Colonial Law, at 7 (listing as examples Imperial Russia’s rent of Port Arthur and

Talienvan (Dalny) from China in 1898, and England’s rent of part of Sudan and Congo in 1894). For this chapter of Russia’s history, see the enlightening section on the Russo-Japanese war in Aleksinsky’s history. See Grigory Aleksinsky, Modern Russia 235-237 (Bernard Miall, transl., 1913).

27 See, for example, Korovin, CPIL, at 39-46 (discussing protectorates and mandates, “the beloved weapons of imperial expansion in colonial and semi-colonial states.”).

28 Ibid. at 5-6.

6

To Korovin, the more interesting and challenging historical period was twentieth century

colonialism, which he further divides into pre-War colonialism and League of Nations

colonialism.29 These periods were significant to Korovin because since the overwhelming

majority of the world’s territory had become controlled by a small number of colonial powers,

this lead to the development of ever-more innovative legal forms to transfer ‘title’ and control

over colonial lands and to allow the penetration of one states’ financial capital into the

territorial possessions of another. Pre-war forms to accomplish this included peaceful

penetration (pénénetration pacifique), spheres of influence, principle of open doors (U.S.

policy in China; Germany in Africa), and the norm of ‘freedom of action’ (Franco-German

agreement of 1911), each of which was sufficiently opaque to allow experimentation, and

always accompanied by the threat of force.

Post-war colonialism, to Korovin, embodied the inequity and indeterminacy of contemporary

international law. The League of Nations mandate system (Article 22 of the Covenant of the

League and the Treaty of Versailles) requiring the balancing of the rights of colonized peoples

and sovereignty to be balanced against the rights of the colonial power represented the vacuity

of international law and its inherent capitalistic bent. Korovin traced the genealogy of Article

22, with its “foggy formula,” to Elihu Root’s speech at the Pan-American Conference in Rio

de Jainero in 1906 and the efforts of the American Society of International Law in 1915-

1916.30 Korovin acknowledged that the mandate system was a compromise reached between

four competing camps—(1) Wilson, who sought an ‘open doors’ regime; (2) the demands of

the annexationists, who sought a simple division of colonies; (3) the demands of workers and

socialist parties who demanded emancipation; (4) Anglo-French block against Italy, who

wanted to seize the colonies of the Central Powers in the event of failure of Versailles

negotiations.31

Korovin went on to add that the mandate could be conceptualized as a collapsing doll, with

layers upon layers of legal rights and obligation, or could be seen as an entirely new legal

institute that rests on the application of existing legal categories; alternatively, and in

Korovin’s preference, it could be dismissed outright as nothing but a continuation of age-old

colonialism.32 “This way,” Korovin writes, “the mandate system acts as a combined form

(individual and collective) of colonial rulership.”33

Next, Korovin presented a number of historical examples that demonstrated the continuities

and evolution of old forms of ‘international colonial law’ in the mandate system. As one case

study, he analyzed the Anglo-Turkish conflict (1925) over Mosul (Iraq). Whereas in the 19th

century, England would have simply acquired the oil-fields by the process of simple

annexation, in the 20th century, this required from the side of the English four further ‘legal’

acts: (1) the participation in the creation of an Iraqi government; (2) acquisition of a mandate

over it; (3) transformation of Iraq into an ‘independent’ state friendly with England; (4) active

support for Iraq in its dispute with Turkey over Mosul.34 This way, an ‘independent Iraq’

29 For a provoking history of periodizations in international legal discourse, see William E. Butler, Research

Handbook on the Theory and History of International Law (Alexander Orakhelashvili, ed.), supra note X, at 379. 30 Ibid., 10. 31 Ibid. 32 Ibid., 11. 33 Ibid., 12. 34 Korovin, International Colonial Law, at 12.

7

served as a bridge to Mosul oil-fields. Korovin observed the same international law

maneuvers occurring with respect to the protectorates of Egypt (England) and Morocco

(France).

Next, Korovin attacked the inconsistency and hypocrisy of the colonial mandate system. For

this, he cited the example of Abyssinia (a member of the League) and the proposal by Italy to

place it under a mandate due to the “weakness and inability of the Abyssinian government to

carry out its obligations under international law.”35 He also keenly monitored the efforts of

Germany to reestablish control over its old colonies through the vehicle of private-public

mixed corporations proposed by German bankers and extensively discussed at the “colonial

week” in Hamburg in August 1926.36 To Korovin, these new forms would be identical to

King Leopold’s personal rule over the Belgian Congo; the only difference was that they

would be administered in ever more efficient ways (for the colonizers) due to improved

technologies and means of production. The mandate system’s requirement that indigenous

legal complaints be heard through legal processes of the state administering the mandate

meant that judicial review of further offenses would be minimized.

Nonetheless, despite its immense success in co-opting legal and moral arguments, Korovin

saw the colonial system as in crisis, being brought down by its own contradictions. To

Korovin, there were three main challenges to its legal forms. First, Korovin imagined these

contradictions in the system to be self-evident, most of all to the oppressed people in the

colonies and he sincerely hoped that colonized people would challenge their rulers in armed

revolt. Second, Korovin sought to expose the philanthropic arguments proffered for the

mandate system—that European states stood for culture, civilization and humanity—as

shams. Korovin was especially mindful about the rapid evolution of colonial forms into

seemingly neutral ones. Quoting Plekhanov, Korovin wrote: “The more evident this

ideology’s lies become, then the more idealist and moral the language of its class will be.”37

Much like the racial theories upon which colonialism was based, themselves resting on

historical and biological falsifications, Korovin expressed the humanitarian, civilizing or

philanthropic justifications as nothing but capitalist oppression.38 The only scientific

explanation for colonialism, like any other branch of international law, was that it was a

product of economic relations of production and the material conditions of the global political

economy. Thus it was necessary to continue to expose and critique these legal forms. Third,

Korovin also saw support for the inevitable crisis and collapse of colonialism in the work of

several bourgeois theorists who also began to see the irreconcilable conflict between the

internationalist aims of the mandate system and the narrow national-capitalist interests of

mandate powers. Britain’s ‘experiments’ in the Palestine and the resulting outcry from the

other European states (masked through the intervention of Cardinal Gaspari) offered a good

example of the latter type of conflict, arising in the very conscience of the colonialist.39

35 Ibid. 36 Ibid., 14 (citing 9 Международная Жизнь 66-68 (1926) [9 Mezhdunarodnaya Zhizn 66-68 (1926)]).

Mezhdunarodnaya Zhizn’ was a publication of the People’s Commissariat of Foreign Affairs. 37 Ibid., 15 (quoting Плеханов, Основные вопросы марксизма 77 (1926) [Plekhanov, The Main Questions

of Marxism 77 (1926)]). 38 Ibid., 15. 39 Ibid., 17.

8

Korovin ended his article by restating the Soviet position on colonialism and the mandate

system, openly claiming that the USSR would play a leading role in ending global

colonialism.40 Perhaps anticipating the inevitable tu quoque argument on the issue of

continuities between Russian Imperial practices in the Caucasus41 or Central Asia and Soviet

policies in the region, Korovin advanced formal arguments for why the Soviet Union was

incapable of being conceived as a colonial/imperial power. First, the Soviet Union was

unequivocally against colonial law, starting from its own constitutional and economic

structure and ending with its political agenda and methods, all of which prevented the Soviet

Union from carrying out a colonial agenda in all of its variations. Second, Soviet treaty

practice evidenced contempt and intolerance for international colonial forms. As evidence for

this, Korovin offered the rejection of the principles of capitulation (Russo-Turkish agreement

of 1921), elimination of consular jurisdiction and return of concessions (Russo-Persian

agreement of 1921), agreements for the provision of material aid without any compensation

(Russo-Afghan agreement of 1921), economic cooperation agreements (Soviet-Chinese

agreement of 1925), and the abolition of extraterritorial jurisdiction (Russo-Mongolian

agreement of 1921).42

From this survey, three remarks regarding early Soviet critiques of colonialism may be made.

First, Soviet jurists did not merely oppose international legal norms and institutions that aided

or disguised colonialism. Equally important, Soviet jurists refused to ground their opposition

to colonialism in strictly legal terms.43 In other words, colonialism to Korovin and

Pashukanis was not illegal per se—as a violation of inchoate international legal rights to self-

determination. Colonialism was wrong, exploitative, historically-contingent and violated

general rights (purposefully undefined) to self-determination. Second, exposing the

inherently exploitative nature of the legal regimes underpinning colonialism was meant to

serve as a battle cry to the oppressed nations. As colonized peoples began their national

liberation movements, Korovin made clear as early as 1925 that the Soviet Union intended to

play a leading role in the disruption of the colonial system and the emancipation of oppressed

nations, both through the work of the Comintern and by directly supporting indigenous

liberation movements.44 Third, in a paradigmatic example of unreflective anti-formalist

formalism, Korovin grounded his defense of Soviet policies which themselves could be

40 Ibid., 19. 41 Austin Jersild, Orientalism and Empire: North Caucasus Mountain Peoples and the Georgian Frontier,

1845-1917 (McGill 2003). 42 Ibid., 18. 43 Aside from Korovin and Pashukanis, see, for example, С. Раевич, “Буржуазная демократия и

колониальное право,” 7 Советское Гос. и Революция Права 123 (1930) [S. Raevich, “Bourgeois Democracy and Colonial Law,” 7 Sov. Gos. i Revolutsia Prava 123 (1930)] (offering similar Marxist critique of bourgeois “colonial law” to Korovin’s 1927 article, but without citing Korovin); Д. Левин, “Рецензия: С.Ф. Кечекьян, Международно-правовая зашита национальных меньшинств,” 1 Советское Гос. и Революция Права 169, 170 (1931) [D. Levin, “Review: S.F. Kechikyan, Defense of National Minorities under International Law,” 1 Sov. Gos. i Revolutsia Prava 169, 170 (1931)] (criticizing Soviet author’s attempt to seek more legal rights for national minorities under international law on practical grounds—that no major power would cede rights, and secondly, that granting of rights to national minorities by the League of Nations concealed actual locus of power in the administration of the colonial mandates); А. Килинский, “Принудителиный труд в колониях и Международное Бюро Труда,” 3 Советское Гос. и Революция Права 135 (1931) [A. Kilinsky, “Forced Labor in the Colonies and the ILO,” 3 Sov. Gos. i Revolutsia Prava 135 (1931)] (discussing the failure of ILO legal mechanism to prevent conditions amounting to slavery and indentured servitude).

44 Ibid., 19. Consistent with the earlier disclaimer that early Soviet legal scholarship should not be read as necessarily promulgating the positon of the Soviet state, this statement can be read as a restatement of Marxist internationalist dogma. Karl Marx, Friedrich Engels, The Communist Manifesto (1848) (“In short, the Communists everywhere support every revolutionary movement against the existing social and political order of things.”).

9

construed as colonial by reference to strictly formal guarantees of sovereignty and sovereign

equality, such as Soviet constitutional guarantees to secession.

2. The Tenor of Soviet Self-Determination Debates

Of the several doctrinal innovations introduced by the Soviets to the study of international law

and colonialism,45 one of the most fluid over the course of the Soviet period was the doctrine

of self-determination, particularly the inchoate right of laboring classes to self-determination.

Bill Bowring’s excellent analysis of the early Soviet debates over the legal right to self-

determination (and its contradictions) is an indispensable resource for Anglophone scholars

interested in this issue.46 Bowring traces the origins of the Soviet doctrine of self-

determination to Lenin’s Right of Nations to Self-Determination and identifies the Soviets’

equal-handed application of the doctrine to the former Tsarist Empire as well as to the

European colonial empires.47 Bowring is correct that the Soviet doctrine of self-

determination had nothing to do with the doctrine being advocated by Wilson in that the

Soviet conception of self-determination applied to all working classes under colonial

exploitation whereas Wilsonian self-determination perpetuated Western colonial conditions in

the Philippines and elsewhere.48 With respect to self-determination, if not colonialism as a

legal regime per se, Soviet jurists were willing to turn the mirror inwards.

Yet even in doing so, early Soviet discourse on self-determination almost always resulted in

critiques projected outwards and, with respect to internal secessionist claims, surprisingly

flexible arguments justifying Soviet territorial integrity. In the context of self-determination,

Soviet jurists expressly rejected purely formalistic accounts of self-determination and

consistently denied a purely legal basis for this right. This was connected, in the case of

Korovin, to the broader Soviet conception of tactical/instrumentalist deployment of

international legal doctrines. Korovin emphatically stressed that the Soviet conception of

“self-determination is conceived not in formal-theoretical terms (i.e. mere right to conduct a

vote), but with substantive guarantees.”49 In other words, the Soviet conception of self-

determination was not solely legal; they were recognized as legal rights for strategic reasons.

In the words of Korovin, the principles of sovereignty and underlying right to self-

determination, aside from being “objectively fair,” were necessary to the real interests of a

socialist Russia.50 It was important to recognize the sovereignty and self-determination rights

of other nations precisely for this instrumental reason.51 By advancing legal arguments for

self-determination and simultaneously critiquing the internal logic of self-determination in

‘bourgeois’ legal practice, the Soviets could deploy “anti-formalist formalism” offensively as

an emancipatory tactic. As class-based ‘rights’ for instance, they could be advanced in

45 John Quigley, Soviet Legal Innovations and the Law of the Western World (London: Cambridge University

Press, 2007) (especially part III). 46 Bill Bowring, “Positivism versus Self-Determination: the Contradictions of Soviet International Law,” in

International Law on the Left 133, 142 (Susan Marks, ed., New York: Cambridge University Press, 2008). 47 Ibid.,142. 48 Ibid., 143-145. 49 Korovin, ILTP, at 36. 50 Ibid., 43. 51 Ibid.

10

defense of class struggles that did not fall along traditional ethno-national lines, or within

particular uti possidetis juris boundaries.

Even as they advocated anti-formal instrumentalist conceptions of self-determination, early

Soviet jurists also emphasized their adeptness with using formal legal arguments defensively.

Korovin even argued for the defense of classical (strict) sovereignty, contrary to the limited

conceptions of sovereignty then advocated by Wilson (in favor of integration), because the

formal concreteness “could serve as a legal shield against the incursions of capitalist states

supported by shifting conceptions of law.”52 But in domestic legal literature, the ‘legal’ basis

and form of such rights was severely criticized. Korovin was explicit that the seemingly

contradictory position was a tactical move to gain relative strength in the hegemonic, self-

interested international order.53 In 1934, writing in the Iowa Law Review, Korovin again

repeated that sovereignty and self-determination were legal rights.54 But a legal right was the

floor, not the theoretical ceiling. In his Essays (1935), Pashukanis repeated this position,

stating flatly that sovereignty was not a socialist principle but one that the Soviet Union

would support as it helps to mobilize oppressed nations in a common fight against

imperialism and acts as an important slogan in the national-liberation movements.55

The early Soviet practice of self-determination was arguably a good faith application of the

principle of self-determination formulated by Lenin.56 But two further considerations in the

formation of the Soviet position on self-determination deserve elucidation. First, it is

important to understand that Soviet theory of self-determination was shaped first and foremost

by the Soviet state’s own struggle to obtain a modus vivendi with the West from as early as

1919.57 The economic accommodation sought by Soviet diplomats was seen as a life-or-death

issue, and the recognition politics of the early 1920s were existential issues for the socialist

cause. Thus, for instance, when in 1921, a financial-economic conference was organized in

Brussels by one of the technical committees of the League to work out a world economic

order, Korovin saw it as a potential long-term threat against the Soviet Union. The

conference’s recommendations were fourfold: (1) the adoption of liberalism versus state

interventionism or state socialism; (2) reduction of spending on social programs; (3)

budgetary transparency; (4) the creation of an international lending organization capable of

acting as a bank of last resort to national banks as well as overseeing the worldwide

production and distribution of raw goods.58 Although these recommendations were geared at

the European states undergoing reconstruction in the wake of WWI, Soviet writers were

alarmed about the possible formation of an international customary right to economic

liberalism that could/would then be used against the Soviet Union. Thus, Soviet jurists

aggressively employed an expansive theory of self-determination to protect countries’

52 Ibid., 44. 53 Ibid., 45-46. 54 See E.A. Korovin, “The Problems of the International Recognition of the Union of Socialist Soviet

Republics in Practice,” 19 Iowa. L. Rev. 259 (1933-34). 55 Л. Ратнер, “Международное право в марксистском освещении,” 6 Советское Государство 128, 132

(1935) [L. Ratner, “International Law in Marxist Light,” 6 Soviet State 128, 132 (1935)] (reviewing Pashukanis’ Essays).

56 Bowring, supra note X, at 144-45. 57 Korovin, ILTP, at 47. 58 Ibid., 51, 57 (discussing the inevitability of relations between the Soviet state and the West/Europe during

the transition period).

11

domestic rights to economic self-determination.59 Second, consistent with Korovin and

Pashukanis’ transition theory of international law, the legal right to self-determination, like all

other international law constructs, were meant to be interim measures, lasting until the time

that “nationally independent and nationally uniform states” went through the necessary level

of development to capitalism, bourgeois transformation, and revolution.60

The contradictions between Soviet anti-colonial doctrine and Soviet international legal

practice arose only with the forced disappearance of the transition theory, the accession to the

League of Nations (1934) and the subsequent development of the stability of laws and

coexistence doctrines (1936-1938).61 As a legal matter, the question of colonialism did not

arise again until after WWII, culminating in Khruschev’s campaign against colonialism in

1960.62 Upon joining the League of Nations in 1934, Litvinov reiterated that the colonial

system of the League “meets only with repulsion and resistance from the USSR.”63 But it is

clear that the immediate threat to the Soviet Union from the fascist states, as discussed below,

had shifted the Soviet focus from the liberation of colonized peoples to the survival of the

Soviet state itself. The crisis in theory brought about by the Soviet accession into the League

was defused by appeal to the greater countervailing interest in achieving collective security

and maintaining peace. Whereas Korovin had written an insightful and passionate critique of

the League of Nations mandate system just eight years prior, his scholarship after 1935

contained little of the revolutionary fervor of the 1920s. Writing in 1936 on Japan and

International Law, Korovin had shifted to an offensive (affirmative) use of international law

arguments for the purpose of criticizing the Japanese threat.64 But even so, Korovin stressed

that Japan’s actions in Manchuria, while “violating international law” were wrong because

they represented imperial aggression and war—which were not legal concepts, but historical

ones.65 Analogously, Pashukanis’ 1935 treatment of the League of Nations mandate system is

limited to a cursory one-page overview with a conclusory charge that the mandate system

represented the age-old system of colonial annexation.66

Critiques of Korovin or Pashukanis for hypocrisy in the way self-determination, sovereignty,

territorial integrity or broader colonialist arguments were deployed in the interests of the

Soviet state typically overlook the larger menace faced by the Soviet Union and the world in

the form of rising fascist movements. Thus, while scholars like Bowring are right in calling

Pashukanis’ Essays (1935) “utterly positivist” and “absolutely standard in [their] ordering and

style,”67 arguments that Pashukanis ‘missed’ the importance or centrality of self-

59 Ibid., 51. 60 See generally Korovin, ILTP; Bowring, supra note X, at 142 (quoting Lenin). 61 Eugene Korovine, “Book Review: The Soviet Union and International Law,” 49 Harv. L. Rev. 1392, 1393

(1936). 62 Bowring, supra note X, at 157-58; William E. Butler, “Book Review: Bernard A. Ramundo, Peaceful

Coexistence: International Law in the Building of Communism,” 83 Harv. L. Rev. 483, 485 (1969) (discussing difficulty faced by Soviet international law jurists in finding source of the legal norm of self-determination and, if self-determination were recognized as a legal norm, the problems faced by the creation of a corresponding legal duty to intervene on behalf of colonized peoples).

63 Е. Пашуканис, Очерки по Международному Праву 98 (Гос. Изд. Сов. Законодательство, 1935) [E. Pashukanis, Essays on International Law 98 (State Publ. Soviet Jurisprudence, 1935)] [herafter Pashukanis, Essays on International Law].

64 Е.А. Коровин, Япония и международное право (1936) [E.A. Korovin, Japan and International Law (1936)].

65 Ibid. at 4. 66 Pashukanis, Essays on International Law, 97. 67 Bowring, supra note X, at 153, 154.

12

determination in international law elide the nuanced way in which scholars like Korovin and

Pashukanis navigated external and internal threats to their state and to their own professional

ambitions. The principle of self-determination, the legal right to self-determination and

corresponding legal duties to intervene and aid liberation struggles, debates that would be

played out after WWII and into the 1960s, were to Korovin and Pashukanis secondary to the

duty of exploited masses to throw off their shakles and to revolt. In fact, and in remarkable

parallels to the Soviet engagement with Bandung, early Soviet jurists saw no hope in the

international legal process or in the dispersion of legal rights as an actual guarantee for self-

determination. They understood, based on their own experience, the importance of working

with and within certain international institutions to obtain material benefits to strengthen the

Soviet state and the cause of worldwide socialism. They recognized the utility (or more

accurately, inevitability) of working through the vehicles of international law, and offered to

defend (in international law) the rights of all working masses (both collectively, and as

national liberation groups). But they entertained no illusions about international law’s

emancipatory potential. Emancipation could only come in the form of education and

revolution. International law could be used to secure the fruits of revolution (in the form of

recognition of the revolutionary state), but these were interim and precariously weak

protections, capable of being crushed at a moment’s notice by a more militarily powerful

state.

3. The Greater Evil: Colonization or Fascism?

If by time of Pashukanis’ Essays in 1935, the reality of the external threat had dimmed the

fiery rhetoric of decolonization in the Soviet legal academy, the fault was not Pashukanis or

Korovin’s, but Hitler and Hirohito’s.68 While it was declaring war on global colonialism,

from 1925, the Soviet Union also began to appreciate the threat to itself and to global

communism from the rise of Fascist parties in Europe.69 As early as 1925, Pashukanis penned

the article on fascism for the Encyclopedia of State and Law,70 warning fellow communists of

Hitler’s rise. Pashukanis correctly traced the origins of the fascist parties to Mussolini after

his expulsion from the Italian socialist party for chauvinism. Yet the doctrine of fascism,

according to Pashukanis, arose even before the war as a result of the breakdown of

parliamentarism in Europe and the development of party-machines in the U.S.A. and

powerful cabinet rule in Britain.71 Pashukanis discussed at length the organizational tactics of

fascist parties, especially their appeal to chauvinistic and patriotic themes and to the hypnotic

force of their leaders.72 He faulted the rise of ‘avanteurists’ like Hitler on the “solid German

bourgeoisie” who literally paved the way for Hitler by preferring stability and its bourgeois

political forms.73 By controlling and militarizing the police and forcing workers to toil for the

68 Cf ibid., 92 (writing that the next war would test the British empire, especially if the U.S.A. was to attempt

to assume Britain’s role as the leading imperial power; proposing that the British empire would disintegrate as soon as one of its subjects were to declare neutrality in the coming war).

69 В. Адоратский, “Капитализм,” Энциклопедия Государства и Права, т. 2, 384 (1925-26) [Adoratsky, “Capitalism,” in Encyclopedia of State and Law, v. 2, 384 (1925-26)] (discussing rise of fascism and explaining it as the last stage of capitalism); see also П. Стучка, “Государство,” Энциклопедия Государства и Права, т. 1, 697 (1925-26) [Petr Stuchka, “Government,” in Encyclopedia of State and Law, v. 1, 697 (1925-26)] (analyzing Mussolini’s fascist state as a state solely for producers held by brute force and oppression of the party machine).

70 Е. Пашуканис, “Фашизм,” Энциклопедия Государства и Права, т. 3, 1407 (1925-26) [Pashukanis, “Fascism,” in Encyclopedia of State and Law, v. 3, 1407 (1925-26)].

71 Ibid., 1409. 72 Ibid., 1410. 73 Ibid., 1412.

13

benefit of industrial producers, fascist states merely embody advanced capitalism. This form

of government, Pashukanis concluded, evidences that capitalism is incapable of peaceful

democratic progress and there is no other way towards socialism but through a dictatorship of

the proletariat.

Whereas throughout the 1920s, the actual fascist threat was limited to the local communist

parties (especially the KPD in Germany74), it is clear that by 1930, Soviet theorists became

alarmed by the general spread of anti-communism throughout Europe. By Hitler’s rise to the

chancellorship following the passage of the Enabling Act of 1933, Stalin openly viewed the

German fascist regime as a military threat against the Soviet Union. This reality had

noticeable effects upon the Soviet formulation of international law in the second decade of its

existence. This was most noticeable in the changing attitudes among Soviet international

lawyers towards the League.

Writing in 1935, Pashukanis expressed optimism that the League of Nations (following the

expulsion of Japan and Germany) could become a bulwark against fascist expansion and

aggression against the Soviet Union.75 Quoting Stalin’s interview with foreign press in April

1934, Pashukanis wrote that the Soviet Union was moving towards supporting the League,

“despite its many shortcomings.”76 On September 15, 1934, thirty four governments

requested that the USSR join the League; at a vote on September 18, 1934, with three votes

against (Portugal, Holland and Switzerland) and seven abstentions, the USSR became a

permanent member of the League.77 The accession into the League carried several important

legal consequences. First, Litvinov declared that the Soviet Union would not be retroactively

bound by any agreements made by the League (including the Versailles Treaty) prior to the

USSR’s entry into the body.78 Second, the USSR insisted on the recognition from the

capitalist regimes of the USSR’s right to a communist domestic economic system and the

communist form of property.79

Of course, the Soviet rapprochement with the League was diametrically opposed to years of

open opposition to its principles, activities and imperialist essence. In 1927, for instance,

Stalin had flatly stated:

The Soviet Union […] does not participate in its work, because the Soviet Union

is not prepared to share the responsibility for the imperialist policy of the League

of Nations, for the ‘mandates’ which are distributed by the League for the

exploitation and oppression of the colonial countries, for the war preparations and

74 The German Communist Party was seen as the most promising for a communist revolution in Europe and

there was tight collaboration between the Bolsheviks and the KDP. This was also the case in the Institute of Soviet Law. Lenin had personally instructed the staff of the ISL to translate the first Soviet civil code into German and to send it to Germany for publication. See “Отчет о деятельности института Советского Права за 1921 год и 1-ю половину 1922 года,” 2(1) Советское Право 139 (1922) [“Report on the activities of the Institute of Soviet Law for 1921 and the 1st half of 1922,” 2(1) Soviet Law 129 (1922). This was done within months, but it was never published as it is suspected the manuscript was lost.

75 Pashukanis, Essays on International Law, 61. 76 Ibid. 77 Ibid., 62. 78 Ibid., 62. 79 Ibid., 63.

14

military alliances which are covered and sanctified by the League, preparations

which must inevitably lead to imperialist war.80

The changed circumstances, including Hitler’s rise to power in 1933, had required the

reformulation of Soviet foreign policy. This was met with opposition in the European

communist movement, which urged Soviet theorists to “explain the flagrant contradiction

between the new turn in Russia’s foreign policy.”81

Even the most vociferous critics of the Soviet reversal of policy on the League understood

that the Soviet Union, isolated and having given up on the hope of proletarian revolutions

across Europe, could not meet the Fascist challenge alone.82 Furthermore, rather than

explaining how Soviet accession to the League was consistent with early Soviet theories

regarding the dynamic development of international law to European leftists, the Soviet state

embarked on an aggressive campaign of using international legal argument in defense of

Soviet interests. Whereas the Soviets had used the economic crises of the mid-1920s as an

opportunity to advance their first global agenda—the task of disarmament—by late 1920s,

they began to push for more radical changes in the European security architecture. Thus, after

the USSR proposed a plan for total disarmament, which was promptly and predictably

rejected in March 23, 1928, the Soviets began introducing new disarmament projects, such as

a progressively-proportional arms reduction regime, whereby states would restrict their

armaments to correspond to their populations.83 In 1930, Korovin co-wrote a lengthy work on

disarmament, which chronicled Soviet peace efforts and support for European disarmament as

well as warned of future militarization and nationalism brought on by the economic

depression in Europe.84 Lack of need to respond to foreign critics did not obviate Interwar

Soviet jurists of the need to protect themselves from home-grown critiques. Disarmament

was severely panned as ‘anti-Marxist’ by a protégé of Pashukanis’ simply because it

expressed hope in the Soviet and foreign disarmament efforts through international law.85

Soviet jurists monitored the growth of fascism in Europe with great suspicion, especially in

states such as Austria and Poland where there were once strong communist and proletarian

movements.86 According to Pashukanis, the sharp turn to the right across Europe was directly

80 Editors, “The Soviets and the League of Nations,” 1:1 The New International (July 1934), available at

http://www.marxists.org/history/etol/newspape/ni/vol01/no01/editors2.htm (last accessed August 12, 2008). 81 Ibid. 82 Ibid. (“The Stalinist center knows just as well as we do that the Third International is a political corpse!

Barthou may be a weak reed to lean on, but the impotent, paralyzed “Communist parties” are no reed at all. All doubts on that score were conclusively dispelled by the showing made by the largest of them, the German. The Soviet bureaucracy long ago lost its belief that the world revolution would triumph – at least not for decades to come. Germany, Austria. Latvia, Bulgaria – defeats which were determined by the treacherous course of the social democracy and the Stalinists – only mean to the latter that the world proletariat is no longer an effective ally. They attribute their own incurable impotence to the proletariat! […] Were there a powerful world Communist movement capable of restoring and organizing the power of the proletariat, the Soviet Union would not today try to bolster itself up by bolstering up the decrepit League of Nations.”).

83 Pashukanis, Essays on International Law, 61. 84 Е. А. Коровин, В. В. Егорьев, Разоружение (М.-Л., 1930) [E.A. Korovin, V.V. Egoriev, Disarmament

(1930)]. 85 Ф.И. Кожевников, “Рецензия: Разоружение (ГИЗ, 1930),” 1 Советское Гос. и Революция Права 171

(1931) [F.I. Kozhevnikov, “Review: Disarmament (GIZ, 1930),” 1 Sov. Gos. i Revolutsia Prava 171 (1931)]. 86 Вольский, “От Австромаркизма к Австрофашизму,” 1 Советское Гос. и Революция Права 123 (1930)

[Vol’sky, “From Austromarxism to Austrofascism,” 1 Sov. Gos. i Revolutsia Prava 123 (1930)]; А. Красин, “Господство Польского Фашизма,” 3 Советское Гос. и Революция Права 100 (1931) [A. Krasin, “The Reign of Polish Fascism,” 3 Sov. Gos. i Revolutsia Prava 100 (1931)]; see also the article chronicling rapid rise of

15

explained by the economic crisis of 1932. The primary result of the crisis was the severe

contraction of international credit markets, leading to loan defaults by a number of bourgeois

states. Pashukanis observed that this led directly to two seemingly contradictory results.

First, it significantly strengthened Fascist regimes, which were able to use the financial crisis

as a pretext for foreign adventures (such as Japan’s incursion into China) and to bolster

domestic political support by blaming ‘capitalist’ states (and the disarmament efforts of the

communist USSR) for wanting to weaken and disarm them.87 Secondly, Pashukanis saw that

as a result of hyperinflation, currency devaluation, contraction of foreign trade and dumping,

the global capitalist regime (including the Fascist states) was far less stable than it had been

under the “bourgeois peace” of the 1920s.88 This, in turn, created opportunities for the Soviet

Union to exploit the shifting balance of power in favor of its own “peaceful agenda.” The

signing of the non-aggression pact with Poland in January 25, 1932 (ratified November 27,

1932), followed by the non-aggression pact with France in November 29, 1932 (and the

subsequent trade agreement of 1934) signified real achievements in this “battle for peace.”89

Soviet jurists stressed the consistent and ‘objectively valid’ application of disarmament and

non-intervention doctrines by the Soviet Union in practice. Pashukanis for instance,

emphasized the correctness of the Soviet policy of non-intervention and the wisdom with

which the Soviet Union restrained itself in foreign relations. Thus, Pashukanis approvingly

wrote of the Soviet response to incursions on its territory by a Chinese militarist group in

1929,90 noting that after the Red Army had engaged with the militarist and had crossed into

China to exterminate them, it returned to Soviet territorial boundaries after the conflict rather

than occupy the foreign lands (which is what Pashukanis anticipates an imperialist state

would do).91 Similarly, during the course of Japan’s incursion into Manchuria, the Soviet

Union maintained strict neutrality despite having actionable intelligence that the Japanese had

clear anti-Soviet plans.92 To resolve the conflict over the Chinese-Eastern Railroad, the

Soviet Union offered a proposal for the sale of the railroad, concluding in March 23, 1935 an

agreement whereby the USSR bought all rights to the railroad in exchange for 140 million

yen.93

Contemporaneously, in 1935-36, Korovin also began teaching on the origins of fascist

totalitarianism in his classes on the history of international relations and public international

law at the Moscow Juridical Institute. Korovin saw that the financial crises of 1923 and 1929

had served to strengthen fascism in Europe and he connected this realization to his broader

critique of capitalist state behavior.94 He railed against the mobilization of various church

groups to wage ideological war against nations and he was especially suspicious of the use of

the rhetoric of anti-exploitation by the major world powers to perpetuate capitalism and

German fascism in “Германский Национал-Фашизм,” 3 Советское Гос. и Революция Права 50 (1931) [“German National-Fascism,” 3 Sov. Gos. i Revolutsia Prava 50 (1931)].

87 Pashukanis, Essays, supra note X, at 54. 88 Ibid., 54-55. 89 Ibid., 55. 90 This was an attempt by the Chinese to gain control of the КВЖД – Chinese-Eastern Railroad, the Southern

spur of the Trans-Siberian Railroad (from Chita into China). 91 Ibid., 52. 92 Ibid., 55. 93 Ibid., 56. 94 John N. Hazard, Fragments of Lectures on the History of International Relations, at 29; see also Pashukanis,

supra note X, at 52 (discussing the economic crisis of 1929 as contributing to the breakdown of the capitalist opposition to the Soviet Union).

16

colonialism.95 Korovin sought to advertise the Soviet alternative, arguing that the Soviet

dictatorship of the proletariat was the true democratic, anti-exploitative and progressive

choice for the world’s oppressed nations. Korovin openly stated that from the early 1930s on,

the Soviet Union returned to classic statist conceptions of international law (including

rigorous defense of territorial sovereignty and the non-intervention principle) in large part as a

response to the growing strength of fascist regimes.96

In whole, what is most remarkable about Pashukanis’ and Korovin’s treatment of fascism and

its impact on international law was the realist assessment of the aggressive nature of the

fascist regimes and the rapid formulation of a programmatic/pragmatic Soviet response that

was radically different from earlier positions, especially with respect to the League. Although

both theorists conceptualized Fascism through a Marxist framework—as the highest and last

form of capitalism and imperialism—their recommended policy options represented an

instrumentalist and ambivalently realist97 approach to the Fascist threat. First and most

important, the Soviet policy through this period was aimed at increasing the volume of trade

with all willing partners in effort to build the Soviet economy and defense apparatus. In the

words of Pashukanis:

A main goal of the foreign policy of the Soviet state is the systematic

development of economic relations with the capitalist world on the basis of the

monopoly of foreign trade with the goal of accelerating socialist development and

ensuring our economic self-sufficiency.98

Second, it was important to splinter the anti-Soviet block through diplomacy and trade.

Pashukanis correctly observed that the capitalist states were not unified in their opposition to

either the Fascist or Soviet communist regimes. The general unwillingness of bourgeois

states to plunge into another “imperialistic war” presented an opportunity (or as Pashukanis

put it, “breathing space”) for the Soviets to build up defenses and to continue to rapid pace of

industrialization.99 Lastly, both Pashukanis and Korovin genuinely hoped that the working

masses in the bourgeois states would begin to finally see the actual agendas of their ruling

elites and would overthrow their oppressors—a task which Pashukanis especially encouraged

the Soviet diplomatic corps to support.100 But neither Korovin or Pashukanis were idealistic

about the nature of the threat or the potential of the worker’s movements in Europe.

Despite the attempts by Soviet diplomats to peacefully resolve disputes (such as the Far-

Eastern dispute over the Manchurian railroads), Soviet international jurists were preparing for

the “great war.”101 Whereas in 1928, the preface to the journal International Law had simply

warned of the need to begin studying and formulating the law of war as a necessary subset of

international law until such time as proletarian revolutions make war obsolete, by 1935,

95 John N. Hazard, Fragments, at 29. 96 Ibid. 97 John N. Hazard, International Public Law, at 13-14 (Manuscript Collection, Columbia University Libraries,

Bakhmeteff Archive) at 15 (lecture notes of Korovin’s public international law course). 98 Pashukanis, Essays on International Law 53-63. 99 Ibid. 100 Ibid., 63-64. 101 Ibid., 56 (“The construction of strategic railroads and airports in Manchuria, the colossal growth in the

military budgets, the accumulation of strategic reserves, all of this shows that Japanese militarism is readying for a ‘Great War.’”).

17

Pashukanis had devoted an entire chapter of his Essays to discussing the law of war.102 The

necessity of joining the League of Nations and the development of a collective security

regime required Pashukanis and Korovin to abandon all prior opposition to the League, which

they did with remarkable speed and theoretical deftness. The dynamic theory of international

law advocated by Korovin in his International Law of the Transition Period was ideally

suited for these rapid changes in support of international law as only through the survival of

the Soviet Union was further elimination of class antagonism possible.

By fall 1936, when People’s Commissar of Foreign Affairs, Maxim Litvinov, had published

the Anti-Comintern Pact between the Axis powers (Berlin-Rome-Tokyo),103 the outbreak of

war was seen as inevitable. Indeed, writing after the war, Korovin identified 1936 as, from

the standpoint of international legal theory, the “launching of the Second World War in the

capitalist world.”104 To him, the years of appeasement and non-intervention (1935-38) were

marked by Soviet diplomatic attempts to build “collective security,” strengthen defenses, and,

by resisting incursions on Soviet frontiers (Lake Hasan, Khalkin-Gol), to delay the start of the

war.105

4. Soviet ‘Participation’ at the Bandung Conference

The Soviet experience in the Second World War confirmed many of the suspicions and fears

Soviet theorists articulated in the 1920s and 1930s. The German repudiation of the Molotov-

Ribbentrop Pact exposed, yet again, the fragility of positive international law commitments

between nominally equal sovereigns and laid bare the claim that positive treaty-based

guarantees could assure security. The conduct of the war—its unfathomable brutality, the

Allies’ strategic delay in the opening of the Western front, also heightened Soviet suspicions

regarding the willingness of the Allies to commit to meaningful global security frameworks.

Without essentializing what is an inordinately complex phenomenon, the start of the Cold

War also corroborated many of Korovin and Pashukanis’ original intuitions regarding the way

international law could be used by capitalist states and socialist states to achieve common

objectives, while assuring legal operating space for the other in a form of transitory

accommodation, until the demise of one or the other order.

Given that the participants at Bandung explicitly sought to open a space for policy dialogue

between, or aside from, the two Cold War camps, it is not surprising that Soviet participation

was limited. It would be a mistake, however, to assume that the U.S. and U.S.S.R. stood by

as neutral observers, particularly in light of prior efforts by both powers to curry favor with

newly independent states through bilateral diplomatic/developmental efforts and United

Nations institutional maneuvers. As early as 1950, for instance, the U.S. proposed the

‘Uniting for Peace’ (UFP) initiative at the United Nations, a plan that would permit General

Assembly members to circumvent a Security Council deadlock by authorizing Member States

to take collective action, including the use of force, in order to maintain or restore

international peace and security.106 Irrespective of its legality under the UN Charter, the

102 Pashukanis, Essays on International Law (Chapter 8, including § 8 on ‘economic war’). 103 John N. Hazard, Introduction, in Soviet Legal Philosophy xxxii (Harvard, 1951). 104 International Law: a textbook for use in law schools 67 (1961). 105 Ibid., 67-68. 106 UNGA Resolution 377(V) (1950); Boris N. Mamlyuk, “Uniting for ‘Peace’ in the Second Cold War: a

Response to Larry Johnson,” AJIL Unbound (21 July 2014), available at: See more at:

18

political effect of the UFP was that the US and Soviet Union had powerful incentives to

maintain better relations with all UNGA members, irrespective of the underlying strategic

importance of the given UNGA Member State to U.S. or Soviet interests; moreover, in light

of majoritarian voting procedures at the UNGA, the UFP may have paradoxically served as an

impetus for subsequent U.S./Soviet support for decolonization and national liberation

struggles in that it incentivized “Assembly-packing,” or recognition of states to skew not just

the global geo-political race, but actual political balance at the United Nations.107

Against the backdrop of US-Soviet rivalry at the UN, it was to be expected that both powers

would use all available means to gain leverage against the other, including coopting the

Bandung process or appropriating its core normative recommendations. As historian Jason C.

Parker observes, the U.S. expended significant institutional and diplomatic resources to

highlight the communist threat to the delegations invited to Bandung.108 This included

distributing intelligence on communist intentions, working with media organizations, and

supporting the participation of U.S. Representative Adam Clayton Powell, Jr. (D-N.Y.) at the

Bandung conference, through the sponsorship of U.S. journalistic outlets rather than the U.S.

government.109

With respect to Soviet efforts in the period immediately prior to Bandung, diplomatic

memoirs recall that the Soviet Ambassador to Indonesia mobilized a task force to assess the

upcoming forum to allow Moscow to formulate its position. In a short memoir published

posthumously, Yuri Sholmov (1927-2007), who served in the Soviet diplomatic staff in

Indonesia from 1954 to 1959, and later served as the Soviet general consul in Surabaya from

1962-1963, recalled that the entire Soviet diplomatic corps in Indonesia, from Ambassador

Zhukov to the ‘dragoman’ were tasked with using personal contacts, open-source materials,

and scholarly resources to analyze the looming proceedings.110 They were particularly

interested in learning the history of the Asian-African movement. The findings of that effort

showed that the point of origin for Bandung – the idea to join forces with other colonial

people in a common decolonization struggle – was born in the 1920s amongst Indonesian

students in The Netherlands, uniting as nationalist intellectuals into Perhimpunan

Indonesia.111 Chief amongst the organizers were Ali Sastroamidjojo (who would serve as the

http://www.asil.org/blogs/uniting-%E2%80%9Cpeace%E2%80%9D-second-cold-war-response-larry-johnson. The Acheson Plan, named after U.S. Secretary of State Dean Acheson, arose in direct response to the early stalemates at the UNSC between the U.S. and U.S.S.R. on the issue of the Korean War. For further background on the Acheson Plan and the passage of UNGA Resolution 377(A) (1950), see Christian Tomuschat, “Introductory Note: Uniting for Peace, General Assembly Resolution 377 (V),” UN Audiovisual Library of International Law (2008), available at: http://legal.un.org/avl/ha/ufp/ufp.html.

107 Bandung Final Communiqué, Art. F(1) (“The Asian-African Conference, taking note of the fact that several States have still not been admitted to the United Nations, considered that for effective co-operation for world peace membership in the United Nations should be universal, called on the Security Council to support the admission of all those States which are qualified for membership in terms of the Charter. In the opinion of the Asian-African Conference, the following among participating countries, viz.: Cambodia, Ceylon, Japan, Jordan, Libya, Nepal, a unified Vietnam were so qualified.”).

108 Jason C. Parker, “Small Victory, Missed Chance: the Eisenhower Administration, the Bandung Conference and the Turning of the Cold War,” in Kathryn C. Statler and Andrew L. Johns eds., The Eisenhower Administration, the Third World, and the Globalization of the Cold War (New York: Roman and Littlefield, 2006), 153-174.

109 Ibid. 110 Юрий Алексеевич Шолмов, Россия–Индонезия. Годы сближения и тесного сотрудничества (1945-

1965) (Мoscow, 2009). 111 Юрий Алексеевич Шолмов, “Советское посольство в Индонезии в дни Бандунгской конференции”

(2000), Institute of Oriental Studies, Russian Academy of Sciences, available at: http://maast.freeservers.com/.

19

8th and 10th Prime Minister of Indonesia), Mohammad Hatta (3rd Prime Minister of

Indonesia), Iwa Koesoemasoemantri.112 According to Soviet diplomats, the leaders of

Perhimpunan Indonesia represented Indonesia in the 1927 Brussels meeting of the League

against Imperialism (a Comintern front organization), where they likely met Nehru.113

Despite the prima facie compatibility of Sukarno’s national liberation struggle, the intellectual

provenance of Bandung, and Soviet positions on decolonization, some amongst the Soviet

leadership viewed Bandung with suspicion. Presenting at a 2000 conference on the Bandung

Conference at the Institute of Oriental Studies in Moscow, one senior professor at Russia’s

Diplomatic Academy (under the auspices of the Foreign Ministry) recalled that around the

time of Bandung, certain Politburo members were convinced that Bandung would evolve into

a tribunal for anti-Soviet propaganda, and that the Soviet Foreign Ministry successfully

worked to assuage those fears.114 Some reasons for this suspicion could include the fact that

the Soviet Union was experiencing growing pains in its new role as a global superpower,

doubtlessly mindful of its own efforts in aid of decolonization and its own strident defense of

self-determination and later, its sovereign right to develop on a model of its own choosing,

but also conscious of the need for expansion and force projection to sustain its newfound

superpower status. Additionally, they could include feelings of superiority by Russian-

Soviets, and corresponding feelings of mistrust and resentment on behalf of subjugated

people, which frequently arose in bilateral development assistance schemes between the

USSR and some of the states which went on to participate at Bandung.115 Or, the suspicion

could have reflected a deep-seated mutual misunderstanding between Russia and China,

which was then hatching seeds of mistrust between the two nominally ideologically-aligned

and strategically-linked states.116

Nonetheless, despite suspicions amongst some quarters of the Soviet foreign policy elite, the

Soviet Ministry of Foreign Affairs eagerly advocated for Soviet engagement with the work of

the conference, going so far as to issue a special public pronouncement in anticipation of

Bandung, wishing it success.117 The Soviet Ministry of Foreign Affairs also arranged for

well-wishing telegrams from the Presidiums of the Supreme Soviets of the USSR,

Uzbekistan, Turkmenistan, Kyrgyzstan and Tajikistan to be sent to Bandung, which were read

at the commencement of the proceedings.118 In addition, as former Soviet consul to Indonesia,

Yuri Sholmov recalls, “The Soviet ambassador was invited to the conference as an honored

guest. His accompanying dragoman was presented as press-attaché, who received

corresponding accreditation.”119 The Ministry of Foreign Affairs awarded commendations for

112 Ibid. 113 Ibid. 114 В.И. Печкуров, “Тезисы выступления” (24 мая 2000 г.) (2000), Institute of Oriental Studies, Russian

Academy of Sciences, available at: http://maast.freeservers.com/. 115 Austin Jersild, “The Soviet State as Imperial Scavenger: ‘Catch Up and Surpass’ in the Transnational

Socialist Bloc, 1950-1960” 116(1) Amer Histl Rev 109 (2011). 116 Austin Jersild, The Sino-Soviet Alliance: an International History (Chapel Hill: University of North

Carolina Press 2014). 117 Юрий Алексеевич Шолмов, “Советское посольство в Индонезии в дни Бандунгской конференции”

(2000), Institute of Oriental Studies, Russian Academy of Sciences, supra note X. 118 Ibid. 119 Ibid.

20

the service of embassy staff in Indonesia (and doubtless other diplomatic postings) in the run

up to the Bandung Conference.120

Yet seen from the standpoint of newly independent states who many of which had fought very

recent and very bloody wars for independence, the position of the Soviet Ministry of Foreign

Affairs, including the dispatch of a high level ambassador with a suite of international

correspondents, a dragoman who would go on to be accredited as a press- attaché, and the

awarding of commendations (whether known or suspected) must have seemed so … colonial,

or if not colonial in that the Soviet Union placed no known demands on participants at the

Conference, was certainly imperial in its overall sensibility. In fact, moving into the Cold

War period, the emergence of the USSR as a military superpower suddenly presented the

Soviet state with an opportunity to expand its anti-colonial program. Seen from the West,

Soviet actions were naturally viewed as expansionism cloaked in the benevolent language of

support for decolonization.121 But through all this, for many former colonies, the Soviet

Union remained an ally and a state with significant shared cultural and historical ties.

Moreover, given its investment of political capital in supporting Bandung, and later

appropriating its key achievements,122 the Soviet Union paradoxically became one of the

states most supportive of forums like Bandung,123 even as the institutional effort was showing

signs of demise from within.

5. Conclusion

The legacy of Interwar Soviet international legal discourse on Bandung goes far beyond the

dubious academic acknowledgement, if any, Bandung participants “owed” to Soviet scholars

for “developing” and “sharing” in a form of legal tech transfer such concepts as the

instrumentalist use of law and a collapse of the law/politics distinction. The bigger lessons

from this forced encounter between Soviet and Third World leaders was to what extent the

one truly represented the other, and to what the extent the leaders of either represented the

one. For if the Soviet revolution was hatched in cafés in London and Geneva, and the direct

precursor to Bandung, according to Soviet intelligence, were late night South-Asian

nationalist get-togethers at Leiden University, then how responsive were the policy

transformations both wrought to the democratic will of the people in whose name they were

enacted? If the leading Russian-speaking theorists were being mobilized for relatively

mundane tasks of textbook writing, and fought vicious battles for institutional dominance,

were Soviet critiques of colonial practices actually a dominant part of Soviet state practice in

the interwar period, or was the Soviet state, since its inception, governed chiefly, by its own

120 Ibid. 121 See, for example, Roy Allison, The Soviet Union and the Strategy of Non-Alignment in the Third World

(New York: Cambridge University Press, 1988). 122 Шармазанашвили Г.В, “Ненападение - принцип охраны мира и международной безопасности В

резолюции, принятой 29 странами Азии и Африки на Бандунг,” 6 Sovetskoe Gos i Pravo (1956); Давид Бенционович Левин, Основные проблемы современного международного права (1958).

123 Pahomova, L.F., “The ‘Spirit of Bandung’ and Third World States,” Institute of Oriental Studies, Russian Academy of Sciences, available at: http://maast.freeservers.com/. (former Soviet political affairs officer charged with accompanying delegation of female Soviet ministers from certain republics who arrived in Indonesia as “private guests of Subandrio,” though were “shown protocol” by Sukarno, who invited the delegation to a television appearance with him).

21

survival? How do post-Soviet recollections of Soviet participation in Bandung color our

understanding of Soviet-South relations, of Soviet self-perceptions, and of Bandung?