Россия и История Международного Права
The role of international law in Kievan Rus and, later, Muscovy is of great interest and importance not only to Russians, Ukrainians, and Belorussians. Their respective experience with the law of nations and in international relations during the past millennium is a remarkable historical prism through which one may trace the formation, reception, and transfer of international legal terminology, norms, customs, institutions, and concepts against European experience and against the experience of other neighboring civilizations (Chinese, Mongol, Persian, Ottoman, Islamic, Indian, Central Asian, Caucasian, and others with whom Russia and Ukraine had direct contact either earlier than Europe or via different routes (overland, rather than maritime), or under different circumstances.
The role of Russia and Ukraine in developing norms of international law prior to the eighteenth century has been greatly understated because the conventional histories of both peoples and countries treat the evidence of “State” practice in the relations among appanage princes of Kievan Rus and Muscovy as “domestic” rather than “international” materials. In principle, the pattern of inter-princely relations in Russia and Ukraine during the centuries which originated in Kievan Rus and eventually led to a centralized Muscovite State was not so different from elsewhere in Europe or China, where minor and major princedoms conducted relations with one another by using or invoking institutes of the law of nations. These aspects of Russian and Ukrainian history deserve fresh analysis in order to determine what they can say about the development, reception, recognition, and application of the law of treaties, diplomatic ceremonial, privileges, and immunities, concepts of territorial jurisdiction and personal law, settlement of disputes, laws and customs of warfare, legal regime of rivers and seas, and the like.
The quality of Russian and Ukrainian philological studies and the existence of major historical dictionaries enables the creation or reception of international legal terminology to be traced in the Russian language with unusual precision. The interaction may be observed between early Slavonic and foreign terms of the law of nations and the impact of foreign terminology on the development of the Russian and Ukrainian languages. The same sources enable the influence of Russian and Ukrainian (and through them, European) terminology and practices upon Central Asia, China, Mongolia, Persia, and elsewhere as negotiations were conducted, embassies exchanged, trade and commerce engaged in, and treaties concluded.
Kievan Rus had extensive contacts with all of its neighbors and entertained the possibility of marriage alliances with France and England, actually entering into such relations with Byzantium. The rivers of Muscovy and Kievan Rus served as arterial highways for trade with northern Europe, Scandinavia, Black Sea region, and Near East. Whereas piracy was a threat in the Mediterranean, it was river piracy that concerned merchants who traversed the waterways linking north with south in Kievan Rus and Muscovy. The early peace treaties concluded between Kievan Rus and Byzantium (907, 911, 944) are evidence that Kievan princes were familiar with the institutes of the law of nations of that era.
By 1549 Tsar Ivan IV found it essential to create the Ambassadorial Department in order to carry on foreign relations. The статейные списки preserved in Russian archives confirm that envoys sent by Muscovy to foreign sovereigns were informed about customs of the law of nations and often reported on whether they were complied with or not. No serious study has been undertaken of them yet. They are particularly rich on ambassadorial law and the laws and customs of warfare. Московским дипломатам известен обычай государей извещать друг друга о восшествии на престол и возобновлении их личные обязательства по международным договорам: «Из древних лет то повелось: как который великий государь учинитца на государстве внове, и они, государи, про государство свое во все пограничные государства обвещати посылывали».14
Despite the inadequacy of research, however, one must concur with Grabar that «... Московские дипломаты имели вполне определенное представление об обязательных для государств нормах поведения».
At about the time of the Peace of Westphalia, developments proceeded in Muscovy with regard to the maturing of the law of nations. Tsar Vasilii Shuiskii had commissioned in 1606 the preparation of a military statute, the drafting of which was based on the leading German manual of the military arts, Leonhardt Fronsperger (d. 1575), Kriegsbuch (1565-73); the Russian language summary of Fronsperger was used by O. M. Radishevskii in 1621 to prepare the military statute, which ultimately was published by G. A. Potemkin at St. Petersburg in 1777-81. The first printed work related to the law of nations in Russia was a translation of J. J. Wallhausen’s work in German on the infantry military arts. The works of two foreigners who came to work in Russia, Maksim Grek and Iurii Krizhanich, contains passages relating to the behavior of States and rulers and certain elements of a systemic understanding of the law of nations. However, the Ambassadorial Department remained the repository of the most interesting and original works on the law of nations
Peter the Great accelerated the processes of integrating Russia into the world community commenced under his father, Aleksei Mikhailovich. Books on the law of nations were acquired for Russian private libraries, translations of leading European works were commissioned by the Tsar (including an early, but unpublished, translation of Grotius in 1712), legislation incorporated norms of the law of nations (Military Statute; Naval Statute), and Russian diplomatic correspondence reflected much increased contact with issues of international law (ambassadorial ceremonial, the titles of sovereigns, privateering, rights of neutrals, extradition, reprisals, and original works designed to explain to the public the positions of Russia on key issues of international law.
The first original work on the law of nations in the Russian language was P. P. Shafirov’s (1673-1739) «Рассуждение, какие законные причины Петр I ... к начати. войны против Карла XII, ... в 1700 году имел», followed by various Memorials printed in London and elsewhere dealing with ambassadorial immunities and the rights of neutrals by F. P. Veselovskii (16?-1762) and M. P. Bestuzhev-Riumuin (1688-1760). There were serious discussions of creating a “Diplomatic Academy” in St. Petersburg, although these did not come to fruition. The formation of the Russian Academy of Sciences, however, provided occasion to develop international legal research and attract leading scholars, among them Academicians F. Strube de Piermont (1704-1790) and G. F. Müller (1705-1783).
During the reign of Empress Catherine II major advances were made in the law of nations. Her celebrated «Наказ» (1767) moved Russia to the forefront of Enlightened Powers, being translated and circulated throughout Europe and America. No less renowned and more influential were the Declarations on Armed Neutrality (1780), which had a profound effect on the development of the law of the sea. The law of nations was taught at the Imperial Moscow University (1755), laying the foundations for the “Golden Age” of international law in Imperial Russia – the nineteenth century.
The expansion of higher education throughout Russia enabled chairs of international law to be established at the leading universities and Russian legal scholars to be appointed to most of them. The volume of original and translated literature on the subject increased massively. Russian students began to specialize in international law and publish dissertations, including pioneering works on the history of Russian diplomacy and the history of international law in Russia. Positive international law in Russia became more important and influential as a result of the publication of Russian treatiesand diplomatic documents. The works of some Russian international lawyers (D. I. Kachenovskii, F. F. Martens, L. A. Kamarovskii, V. E. Grabar, later P. M. Bogaevskii, M. A. Taube, B. E. Nolde) acquired a European reputation.
The measure of any single country’s impact on the development of international law is impossible to measure; indeed, we have no criteria for doing so. Few international lawyers in the world would deny, however, that Russia has played a significant role in the codification of international law, especially international humanitarian law and the development of institutions for the peaceful settlement of disputes. These include Kamarovskii’s work on the international court (influential through the French translation in 1887), F. F. Martens’ works on the 1864 Geneva convention during the conflict of 1874-78 (French translation, 1901), and Russian diplomatic initiatives in convening, and then playing an influential role in, the two Hague conferences of 1899 and 1907.
By the end of the Imperial era Russia had a body of doctrinal writings on international law and an infrastructure for educating international lawyers that compared favorably with any in the world. From the standpoint of international law, Russia was a “great power” in every sense of the word.
Grabar’s work on the history of international law in Russia is a veritable encyclopedia on the subject and an agenda for future research. Russian experience with international law over the centuries is an integral part of comparative approaches to international law. International legal doctrine is deeply indebted to national legal doctrines and styles; the international lawyer is himself the product of a domestic system of legal education and law. This aspect of modern international law and legal process cannot be properly understood without a thorough examination of a country’s past experience with the law of nations.
The history of international law in Russia is therefore of far greater importance than merely background material for Russian jurists. It is capable of offering unique insights into the worldwide development, reception, and transmission of international legal norms, concepts, doctrines, customs, and practices.