Sonet International Law Today: An Elastic Dogma

• Author: by Major Eugene D. Fryer
• Pages: 02

In ths article, .Mupi. Fryer deals t

ternatioaal low. and a preliminary conclusion that Some! concepts tn this a~eaore indeed entitled to be takrii semaslp as law.

The article eontzvaes zaifh a 8hoi.t dzseussion of !he

euolufion of .Ma?sist and Lenimst ideas concerning the nature nnd purposes of lax, Zneluded 7s o glimpse ai the contnbstions of specified Soeiet scholars

.I.layor Fryei nest e,iamiiies some of fhe distinctive features of the eontemparniy Soviet vieic of internafionnl lne8. Dzseussed am such concepts as peaceful coezmtenee and socialist in!ernatio,mlism.

Znternotionnl law, formerly seen by the Souiets as hopelessly damtnated by boiwggeois interests, has latterly

*The apinions and eonelusions expressed I" thia article are thaw of the author and do not neceemily represent rhe $lens of The Jvdpe Advocate Genera?% School. the Department of the Army. or m y other governmental qenay

I. INTRODUCTIOK

.in examination of contemporary Sonet law can be flawed by biases in the perspective of both the researcher and the reader which tend to prevent development af real understanding. This tendency. equalli endemic in evaluations of both Soviet national law and the Soviet approach to international law was conaeiously recognized by the author and resisted, hopefully with at least fair suc-cess, throughout the present undertaking.

It ma!, an the one hand, be debated unendingly \ihether Soviet domestic or international Ian LI law at all. Perhaps it 15 a cynical mix of Soviet power, policy and propaganda. Recognizing that Soviet normarire values are generalli out of qmphony oith traditional Western legal notions. aye not the latter sullied or compromised to some degree by conceding validity to the former? Or, on the other hand, conceding to Soviet arrangements some status akin to that of Ian., is that body of principles sufficiently regular and durable to be recognizable as a legal system, elthe? nascenr or deieloped"

For the purposes of this article. many such propositions which may be thought either to be threshhold or ultimate were bypassed in order to vier Soviet international la\\ ~n being Soviet international laa. ii.111 be outlined in ltr historical development, general structure and ideological basis on the understanding that these facets of the Soviet legal system are of themselves north) of note

by the Western lawyer who sees the universe of law as other than ethnacentered and static.'

The Sonets claim to have captured general international law by virtue of its ongoing, gradual transformation in its value Structure from a bourgeoise to a socialist oriented institution. This process, it is said, conforms to the Marxist-Leninist dialectic of the historical march toaard narld communism.2 As propaganda-tinged as this claim might be, it is all the same a persistent claim. An unguarded glance at the contemporary development of values in international law might persuade the viewer that the claim is neither eompietely propagandistic nor frivolous.

Therein is the importance of examining the Soviet view as put forth by the Soviets, both in terms of the claimed dialectical process and of Maruist-Leninist values and terminology. An appreciation of these Soviet referents is elemental to understanding the past and the future of Soviet international Ian. At the connecting point in this developmental process, such appreciation 18 also necessary to an understanding of the present Soviet view of international lsx.

A3 general orientation, it is helpful to note by contrast some typi-

pmaehed. th'ereiare, from the Soviet me*.'The present leading Soviet authorit3 on Soviet international Isw G. I. Tunkin,rejeerb the earlier v m v b ai Soviers and others who saw no possibility of creating an operative internafianal law because of the cannier between the socialist and capitalist itatea. Tunkin seed the draleetieal pmcesa ~n full swng, the bourgeois lntellnafmnal la>-thelia Is meeting the eounterfhruaf af the Marxian socialist anfithems,and 8 new bynthesis 18 coming info being "One need not uaif until the achievement of the ner them co have international la%,: if IS here SI-ready and ~f is pragreraive became it marka a franbifmn from an outworn epoch of history to the epoch of the future."

G Tunkin. ldeologieheekaia Bor'ba I Mezhdunarodnoe Prava (Ideolagicsl Struggle and lnfernatianal Law) (19671, q%oLed tn Hildebrsnd. Sarief Internotional Lox, An Eermplor.for Opiirnal Drrman Throiy Aaalysia. 20 Case W.

Res. L. Rev.

141, 186 11966)

41ILITARY LAW REVIEW [VOL. 83

tal oersuecti\e-biased amroaches to Soiiet l e d theorr which. for

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instance, dismiss Soviet llarmet-Leninist norm articulation as sloganeenng From this perspectiie, the American scholar Liieit-ryn views Soviet legal theory as aberational, hopefull? to be reinte-grated into traditional international laiv.' From anather perapec-tire, Professor Hans Kelsen discredited Soiiet Marxist-Leninist formulations by claiming them to be mere political and historical expedients. He claimed to hare mastered a more refined and therefore more correct insight into these ideological bases than haw the Soviets.j

Neither of these biases. both representing extremes, are offered by their advocates as conclueory They are ingrained cognitlie referents. They color the process of inquiry and deny the treatment of reality as fact. Mare productive aa a comparative law approach LI to vien the system as it is viewed by its own legal thinkers. Thus treated, the general atmosphere and dynamics of the system are more Iikel? to come forward than if Sonet doctrine \\ere rethought and reformulated in a conventional .inglo-American manner

Marxist-Leninist formulation ia not simply pablum faor the Sonet public and smokescreen to the world. It is the fundamental lanpuage of Soviet decisionmaking and policy formulation. It LS the language in which Soviet officialdom recei~es formal and adranced schooling What appear to be stereotyped phrases of Part) doctrine, "slogans" as It were, convey fairly preciae meanings which may be shaded by subtle changes in choice of nards and in uord order.' It is not unnatural that the highest legal thought 1s similarly couched-all the more 80 for international Ian uhich, as in other states, reflects eo closel? national foreign policy and diplomatic concerns

Throughout the foalloving examination, the impact on Soiiet international law of the vagaries of historical forces and Svill be noted. For the Soviets. this doe? not necefisarfrom the consiatenc?- or Continuity of >larxist-Leninist thought as a

3O Liislrisn lnlernatianal Law laday and Tomarrou 51 11965) 'Id at 70&H

Kelren, The Cornmumar Theory ai Lax 119-50 (19551'See Butler. liitiod who,, to G. Tunkin Theor) of Intelnaimal Law 1% Butler tianal 1974). at AI,,

'M Gehlen The Polltier of Coexlrfenoe 23-24 11967)

guiding, normatire base. Neither should apparent Sanet departures from these dialectical strictures give rise to substantial belief that the dialectical process has been compromised or even forsaken. Such all-or-nothing dogmatism cannot be ascribed to the Soviets, for the doctrine and objectives of Marxism-Leninism in the Soviet Union share in the same elasticity by which basic American constitutional ideals find present day relevance in the United States.8 Through thii mechanism of living or "creative" Marxism. therefore, theory and practice may harmonize in the dialectical movement toward Communism. Theory and practice are conceived by rhe Soviets as one, not as separate entities. Theor)- is realit>.e

The thesis presenred in the title of this paper is not innovative. Statements of the ultimate Sonet goal always hare been public, candid and straightforirard: world communism. The foreign policy and international law articulation supportive of this goal have been likewise single-purposed. New only 1s the impact of present day Western-Soviet detente, 8s rieued by the Soriets, upon Soviet legal formulation of the means to this mandatory end of gradual world communism. The lair they hare formulated for these relations 1s the "law of peaceful coexistence." This Soviet view of mternational law will be examined in it8 Marxist-Leninist character to determine its programmatic fidelity and present

The abilitv of his falloivers to affect the ~ r o ~ e r combination of dormatim

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ultimate realization of that doctrine .iccardinp fa the tenets of ereatlie Marxism, the ''strictelf loyall) lo the ideas of the C~mmunidt must be combined m t h the ability t o make d l rhe "eeei~srp prsciicd C O ~ .

pmmmer "

10 Lenm Le/l il'ing Contaiini6m ,412 In/an*ile Dimidrr, Selected Karks 138 (1838). w o l r d ib Gehlen. mipro note 7, sf 26sCehlen, ~iipro note 7, 81 2:'"See Lapenna, Tbr Lrgnl Aspsets and Polrticni Signijiio,ier of the Sahei Cor-cepf o//o-Er Qteoce, 12 Inf'l & Camp L Q 741 (1863)

11. THE DOCTRINAL AND OTHER ROOTS OF SOVIET INTERNATIONAL LAW

1. GE.VERAL

   The eroiution of Soviet international law shares much of the seeming illogic and uneveness of the parallel theories and development of Soviet domestic law Marxism-Lemnim has been shaped throughout the Soviet era to articulate the rules for and justify state eonduct while adhering to that ideology as cloaely as the short-term press of random problems and objectives would dloiu. According to Soviet theorists. however, the e~ntinuous thread of Marxist-Leninist iegal thought gives the development of Soviet international laa a scientific and rational character.'*

   Basic Maixism, as deleloped in the 19th century, provided only dim illumination of the approach toward international or domestic law to be taken by the Communists actualli charged with implementing the universal plan. It vas said that all law was cla oriented. being dereloped to serve the needs of the dominant ciaof any societ? during the given era and, eorrellatirely, to suppre and neutralize contradictory interests anondominant elassea. The Ian so derivedture arising from the productive relations. control of the...