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The article introduces two traditions of conceptualizing the relationship between sovereignty and property which have been present in legal and political doctrine and in international law. One tradition sees the two concepts as separated, the other as interrelated. The article then shows that the Soviet approach to sovereignty and property, which manifested itself in certain measures adopted after the 1917 Russian Revolution (the abolition of private property, the repudiation of tsarist debts) and which was largely informed by the ideology of Marxism-Leninism, falls under the second tradition. Finally, the article discusses how the Soviet approach to sovereignty and property sought to affect international law and to what extent it has managed, or failed, to do so.

Abstract

The article introduces two traditions of conceptualizing the relationship between sovereignty and property which have been present in legal and political doctrine and in international law. One tradition sees the two concepts as separated, the other as interrelated. The article then shows that the Soviet approach to sovereignty and property, which manifested itself in certain measures adopted after the 1917 Russian Revolution (the abolition of private property, the repudiation of tsarist debts) and which was largely informed by the ideology of Marxism-Leninism, falls under the second tradition. Finally, the article discusses how the Soviet approach to sovereignty and property sought to affect international law and to what extent it has managed, or failed, to do so.

* The article is based on the presentation made during the Workshop on a Century after the Russian Revolution: Its Legacy in International Law, held on 19 May 2016 in Heidelberg. I am grateful to the participants in this workshop and to the anonymous reviewers for their comments. The usual disclaimer applies.

On 26 October (8 November) 1917, just one day after the October Revolution, the new Soviet regime enacted the Decree on Land.1 The Decree, tabled by Vladimir Ilyich Lenin and passed by the Second Congress of Soviets of Workers’, Soldiers’, and Peasants’ Deputies, abolished private ownership of land. All land, irrespective of its owner, was to be confiscated without compensation and to ‘become the property of the whole people and pass into the use of all those who cultivate it’ (Article 1). The Decree was followed by similar acts nationalizing banks, large-scale industry, smaller-scale industry, transport, external trade or houses. The 1936 Constitution of the Soviet Union confirmed that private property (i.e. property over means of production) was abolished and only socialistic property, further subdivided into State property and cooperative and collective-farm property, and personal property, allowing individuals to meet their personal needs, were recognized.2 The abolition of private property applied without distinctions to Soviet citizens and to foreigners.

Nationalization, and even nationalization without compensation, is not a totally rare phenomenon in international relations.3 What however made the measures adopted by the new Soviet regime unique, was the rejection not only of concrete titles to private property but of the concept of private property as such. By denying that property, as owned by individuals, is to be protected regardless of who exercises sovereignty over the territory, the Soviet Union seemed to put in question the century-old tradition of keeping the two institutions – property and sovereignty – apart. It also seemed to place itself outside the classical strand of the European legal and political thinking. And, finally, it seemed to militate for a radical reconceptualization of international law, leaving States free to decide how they would deal with private property, owned by their citizens or by foreigners, situated on their territory.

This article argues that none of these three assumptions is truly warranted. First, the relationship between sovereignty and property has never been conceptualized in a uniform way. While dominant, the tradition of keeping the two institutions separate is not the only one. There is an alternative tradition which sees property and sovereignty as interrelated. Secondly, the Soviet approach to sovereignty and property, which was largely informed by the philosophy of Marxism-Leninism, falls under this second tradition. Rather than an alternative to the European political and legal thinking, thus, it is an extreme manifestation of one of its strands. Thirdly, the Soviet Union put forward certain ideas aimed at modifying international law which were inspired by its view on sovereignty and property. These ideas, however, have not succeeded in reformulating international law in a very substantive way, leaving a rather limited imprint in it.

The article is divided into four sections. The first section describes the two ways in which the relationship between sovereignty and property has been conceptualized in legal and political doctrine and in international law. The second section gives an overview of measures adopted in Soviet Russia/the ussr in the aftermath of the 1917 Russian Revolution that aimed at abolishing private property and repudiating tsarist debts. The third section demonstrates that these measures reflected a particular approach to sovereignty and property informed by the philosophy of Marxism-Leninism. It also shows that this approach falls under one of the two traditions of conceptualizing the relationship between sovereignty and property described in the first section. The fourth section discusses how the Soviet approach to sovereignty and property sought to affect international law and to what extent it has managed to do so. To make the article easily accessible to readers who do not master the Russian language, I have sought to primarily rely on sources available in English, though occasionally sources in Russian are quoted as well.

1 Two Views on the Relationship between Sovereignty and Property

Throughout history, the relationship between sovereignty and property has been conceptualized in two different, largely opposing, ways.4 For some scholars, sovereignty and property are independent from each other and belong to two different areas of law. Changes in sovereignty may not affect private property. Other scholars disagree with this view. For them, sovereignty and property are mutually connected and interdependent. There is no strict separation between the legal regulations applicable to the two concepts and no inviolability assigned to private property. Changes in sovereignty may affect private property. The debate is made somewhat confusing by the fact that while the term property is used with a rather constant meaning, the term sovereignty gets, as we will see, different meanings (political independence of the State, democratic rule by the people, capacity to influence individual economic status, etc.).

1.1 Sovereignty and Property as Two Independent Concepts

For many political and legal scholars, sovereignty and property are two distinct and mutually independent concepts belonging to two different branches of (international) law. As Cohen put it in 1927, ‘sovereignty is a concept of political or public law and property belongs to civil or private law’.5 The roots of this tradition are often traced back to the Roman law with its distinction between dominium, the rule over things by an individual in the private sphere, and imperium, the rule over individuals by the prince in the public sphere.6 In the early modern age, this distinction inspired natural law thinkers who further bolstered it by defining property as a natural law institution founded in the Law of Nature and sovereignty as a social construct based on a social contract among free individuals. Property thus precedes the establishment of the State, whereas sovereignty stems from it.7 This conception had numerous supporters among political philosophers and legal scholars in the 17th–19th centuries.8 It also found its way into international law, since many of the founding fathers of this law adhered to its premises.

One of the first authors to elaborate on the nature of property and its relationship to sovereignty was John Locke. In his Two Treaties of Government, he draws the origins of private property to the labour invested by an individual:

The labour of his body and the work of his hands, we may say, are strictly his. So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way he makes it his property.

Private property is a pre-political institution which exists already in the state of nature. In this state, individuals are free and equal and they have the right to protect their lives, liberty and possessions and to judge and punish those who would encroach upon this right in violation of the laws of nature. At the same time, the state of nature is full of fears and continual dangers. This makes individuals willing to leave it and establish a political community, i.e. a State. The main purpose of the State is to protect lives, liberty, and possessions of individuals. The State is not allowed to interfere with private property: ‘for the preservation of property being the end of government, and that for which men enter into society, it necessarily supposes and requires, that the people should have property [. . .]’.9

This view was shared by several founding fathers of international law. In his De iure belli ac pacis libri tres, Hugo Grotius insisted that the appearance of property and ownership preceded that of the State and (civil) law. Similarly, Samuel Pufendorf was of the opinion that ‘proprietorship and dominion belong to natural law’ and that ‘the obligation to observe the [natural] law of abstaining from what is another’s is coeval with mankind’. Jean Jacques Burlamaqui opined that ‘the property of individuals is prior to the formation of states’10 and Christian Wolff noted that ‘the ownership of the estates always remains distinct from the sovereignty, nor does the sovereignty affect the ownership in any way’.11 The view was echoed across the ocean where William Blackstone invoked the ‘sacred and inviolable rights of private property’.12 Despite the rise of positivism in the 19th century, this view remained influential among legal scholars. Thus, in 1884, the English jurist Travers Twiss wrote:

The first rule is, that a person may take possession of a thing which has no owner, so as to acquire Rightful Possession of it; and Property is in such a case acquired simultaneously with Possession [. . .] Such being the Law of Nature [. . .] the Law of Nations is in perfect accord with it.13

As early as in the 17th century, the tradition under which sovereignty and property are two different concepts started pervading, and shaping, international law. The process continued in the subsequent centuries and found its expression in international treaties, customary rules and case-law. Ederington identifies three areas in which the impact of the first tradition has been particularly evident.14 These are: the legal regime of terra nullius; the doctrine of acquired rights applicable in case of a change of sovereignty over a certain territory; and the protection of private property in times of military occupation. All these areas, as Ederington demonstrates, ‘embody a common theme – that property rights are fundamentally independent of state sovereignty and, hence, changes in (or even the complete absence of) sovereignty or government do not affect them’.15

With respect to terra nullius, the approach separating sovereignty and property serves to explain on what ground private individuals could acquire valid titles to property in a territory subject to no sovereign rule and why these titles have to be respected once the territory has been annexed by a State. Already in 1758, Emmerich Vattel wrote that an

independent individual [. . .] may settle in a country which he finds without an owner, and there possess an independent domain. [. . .] (Whoever) would afterwards make himself master of the entire country, could not do it with justice without respecting the rights and independence of this person.16

This principle, however, solely applied in the relations between so-called ‘civilized countries’. Territories belonging to other than civilized countries (such as the Incan or Mayan empires) or indigenous tribes, were treated as terrae nullius. The title to private property was also only recognized when it concerned a national of one of the civilized countries. The principle was invoked with respect to the Spitzbergen Archipelago, awarded in 1920 to Norway on the condition that Norway would respect the rights of existing ‘Occupiers of the land’,17 or to various islands in the Caribbean, where the us actively interfered to defend the right of its nationals to have their property acquired in unclaimed islands respected by Latin American States extending their sovereignty to these islands.18

The doctrine of acquired rights stipulates that ‘a change of sovereignty over a territory does not affect the vested or acquired rights of the inhabitants’.19 The doctrine finds extensive support in scholarly literature and in international practice. In the seminal work on State succession, O’Connell holds that ‘respect for property is by no means unrelated to, or a far derivative of, the requirements of human nature’.20 In an even more explicit passage, Lindley affirms that ‘sovereignty and property being distinct and different entities, there is no necessary reason why circumstances that affect the one should have any influence upon the other’.21 The doctrine also finds its reflection in case-law. In United States v. Percheman, Chief Justice Marshall asserted that ‘sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled’22 as a result of a change in sovereignty. In 1923, the validity, and customary nature, of the doctrine of acquired rights was confirmed by the Permanent Court of International Justice in the German Settlers case.23 The Court held that ‘private rights acquired under existing law do not cease on a change of sovereignty’.24

The regime applicable in times of military occupation also sanctions the inviolability of private property. The occupation, by its very nature, is a temporary state which does not involve the transfer of sovereignty over the occupied territory. Rather, the legitimate sovereign is made provisionally unable to control this territory and, until its ability is restored or the territory definitely passes under the sovereignty of the occupying power, the authority is exercised by the latter. It is recognized that, as Oppenheim put it, ‘immovable private property may under no circumstances or conditions be appropriated by an invading belligerent’.25 This rule has been codified in treaties. The Regulations Concerning the Laws and Customs of War on Land, attached to the 1907 Hague Convention iv, stipulates in its Article 46 that ‘private property [. . .] must be respected’ and that it ‘cannot be confiscated’.26 Article 54 of the 1949 Geneva Conventions iv prohibits ‘any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, [. . .] except where such destruction is rendered absolutely necessary by military operations’. A temporary suspension of sovereignty should therefore remain without effect on private property. The legal regulation applicable in the three areas identified by Ederington demonstrates ‘the general sanctity enjoyed by private property under international law’,27 or at least in some of its branches.

1.2 Sovereignty and Property as Two Interrelated Concepts

Not all scholars see sovereignty and property as separate and independent. For some, these two institutions are closely interrelated. ‘Sovereignty is property writ large and property is sovereignty writ small’.28 This view was propounded in the seminal article on the topic published by Cohen in 1927.29 Cohen argues that the distinction of the concepts based on the Roman law tradition, in which imperium (sovereignty) refers to the power over human beings and dominium (property) to the power over objects, cannot hold, because ‘dominium over things is also imperium over our fellow human beings’.30 Private property entails the right to exclude others from using the things assigned to me and to make those who want to use these things (for instance because they are necessary for their life) willing to do what I want. Thus, private property is nothing but ‘sovereign power compelling service and obedience’31 – it combines elements of both dominium and imperium. The same is true for sovereignty which, in Cohen’s view, has two forms – political sovereignty (imperium) exercised by the State and economic sovereignty (dominium) exercised by property holders, including – but not limited to – the State.32 The term sovereignty is used here in a rather broad meaning.

To further corroborate his thesis, Cohen resorts to historical arguments. He recalls that the legal system in medieval Europe did not take over the Roman law distinction between imperium and dominium. ‘The essence of feudal law [. . .] is the inseparable connection between land tenure and personal homage involving often rather menial services on the part of the tenant and always genuine sovereignty by the landlord’.33 Private property – ownership of the land – was inseparable from sovereignty, as the latter was clearly conditioned on it. Sovereignty on its turn was not reserved to the State but was distributed, albeit to a different degree, within the feudal society. Cohen was persuaded that the same model had survived, though disguised behind the discourse about the separation of public and private sphere, well into the modern times, as one of the characteristic features of the capitalist system.

The history of political and legal thinking provides further arguments in support of a close link between sovereignty and property. Denying that the two institutions have a different origin – property being founded on natural law premises and sovereignty on a social contract – some scholars argue that they are closely interrelated and cannot exist one without the other. These scholars typically see both sovereignty and property as human institutions based on social contract and convention. Private property does not predate the State and law; it is established together with them. In the words of Jeremy Bentham: ‘There is no such thing as natural property. [. . .] Property and law are born together, and die together. Before laws were made there was no property; take away laws, and property ceases’.34 Similarly, David Hume opined that ‘property is nothing but those goods, whose constant possession is established by the laws of society’.35 This conception again finds its roots in the Roman period, this time in the emphasis placed on the man-made origin of law by jurists such as Cicero or Seneca. It also echoes the view of Thomas Hobbes, for whom ‘all private estates of land proceed originally from the arbitrary distribution of the sovereign’,36 and of Jean-Jacques Rousseau who, in the famous passage, traced the birth of the State back to the moment when ‘the first man, who after enclosing a piece of ground, took it into his head to say, this is mine, and found people simple enough to believe him’.37

If property and sovereignty have the same origin and the same nature, there is no reason why they should be treated as mutually independent. For the moderate proponents of this view, such as Bentham, the two institutions are interrelated, but not identical – one of them (property) cannot therefore have any a priori priority over the other one (sovereignty). Rather, striking some balance between the interests of the owner and the general interests of the community is needed. For the more radical proponents of the thesis, such as Cohen, the two concepts become utterly inseparable. Sovereignty and property are two sides of the same coin – imperium and dominium mixed together in a single entity with a Janus double face. In this understanding, sovereignty and property do not operate at two different levels – that of State for sovereignty, that of individuals for property. Rather, they both operate at various levels in the society – always intertwined together, though the concrete proportion in which each of them is present might differ.

Similar to the separation thesis, the interrelation thesis, mostly in its moderate version, has left an imprint in international law. It has set limits on the protection of private property in times of military occupation and on the right to property as established under human rights law. As we saw above, in times of military occupation, private property must be respected and protected from destruction or confiscation. This rule is however subject to the exception of military necessity. The occupying power may not destroy private property ‘except where such destruction is rendered absolutely necessary by military operations’ (Article 54 of the Geneva Convention iv). In United States v. Russell, the us Supreme Court explicitly stated that during a war, ‘extraordinary and unforeseen occasions arise [. . .] in which private property may be impressed into the public service, or may be seized and appropriated to the public use, or may even be destroyed without the consent of the owner’.38 Moreover, private property may suffer destruction as collateral damage in cases where the belligerent party targets a military objective but, in spite of taking all precautionary measures, it hits a civilian object.

Current international human rights law guarantees the right to property. This right is enshrined in Article 17 of the Universal Declaration of Human Rights and Article 1 of Protocol 1 to the European Convention on Human Rights and it is also recognized in many national constitutions. The States commit themselves to respect the right to property of all persons within their jurisdiction, foreigners and citizens alike.39 This right, however, is not absolute. This is clearly reflected in the text of the European Convention of Human Rights, which stipulates that

every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest [. . .] (Article 1 of Protocol 1).

The European Court of Human Rights has repeatedly stated that the aim of the Convention is not to carve the right to property into stone but to strike ‘a fair balance [. . .] between the demands of the general interests of the community and the requirements of the protection of the individual’s fundamental rights’.40 States enjoy a margin of appreciation to decide what the general interests of the community are and whether deprivation of property and/or control of its use are necessary to ensure these interests. Sovereignty concerns and the protection of private property get closely linked here.

2 The Russian Revolution, the Abolition of Private Property and the Repudiation of Tsarist Debts

In October 2017, a revolution took place in Russia.41 It started with an armed insurrection in the then capital Petrograd on 25 October in the Julian calendar (corresponding to 7 November in the Gregorian calendar). The insurrection, meeting with almost no resistance, culminated in the assault on the Winter Palace in the night of 25–26 October. By that time, the Communist Party led by Vladimir Ilyich Lenin seized power, ousting the prime minister, Alexander F. Kerenskyi, and his provisional government. This government in its turn had come to power after the February Revolution, in which the imperial government of the Tsar Nikolay ii Romanovich had been overthrown and a new Russian Republic established by pro-democratic forces. In January 1918, the name of the country was changed to the Soviet Russian Republic (srr) and, in July 1918, to the Russian Socialist Federative Soviet Republic (rsfsr). In 1922, the rsfsr became part of the Soviet Union (Union of Soviet Socialist Republics, ussr) after its unification with the Byelorussian, Ukrainian and Transcaucasian Republics. The ussr, which later on incorporated or annexed other territories, existed as a one-party State ruled by the Communist Party of the Soviet Union till 1991 when it dissolved.42

In 1917–1922, Russia became the scene of a bloody civil war between the Red Army, fighting for the communist rule, and the White Army, composed of many heterogeneous fractions but united in their rejection of the Soviet system. Eleven foreign countries, including the us, Japan and China, intervened in the civil war, supporting the White Army but their direct military engagement in the conflict did not forestall the victory of the Red Army. In the first years after the October Revolution, the rsfsr was not an internationally recognized entity. The recognition was denied both on ideological and on practical grounds. The new State adhered to the communist ideology. On its basis, it contested the right of foreign States and of their citizens to keep their property in Russia and to collect the debts from the tsarist period. By the time the ussr was created, only the Baltic countries had established diplomatic relations with it. The number of recognitions rose steadily in the mid-1920s, when the ussr was recognized by the first great powers, the United Kingdom and France (1924), and again in the first half of the 1930s, after the recognition of the ussr by the usa (1933) and the admission of the ussr to the League of Nations (1934).43 The recognition came mainly in acceptance of the factual power of the ussr, because neither the dominant ideology nor the Soviet rejection of the concept of private property and its unwillingness to repay the tsarist debts had changed in any substantial way.

2.1 The Post-1917 Abolition of Private Property

In the post-1917 Soviet Russia/the ussr, private property was seen as undesirable and harmful to the collective interests of the people.44 Hence, starting from the first day after the October Revolution, a series of legal acts were enacted to nationalize large portions of private property. As already indicated, the first of these acts was the Decree on Land,45 which abolished private ownership of land. Article 1 of the Decree declared that:

private ownership of land shall be abolished forever; land shall not be sold, purchased, leased, mortgaged, or otherwise alienated. All land [. . .] shall be confiscated without compensation and become the property of the whole people, and pass into the use of all those who cultivate it.

Article 6 added that ‘the right to use the land shall be accorded to all citizens of the Russian state [. . .] but only as long as they are able to cultivate it. The employment of hired labour is not permitted’. Article 8 prescribed that all land should be included in the national land fund, from which it would be distributed, and periodically redistributed, by local Soviet organs.

The Decree on Land was followed by the Decree on the Socialization of the Land,46 issued on 27 January (9 February) 1918. The act confirmed that ‘all private ownership of land, minerals, waters, forests, and natural resources within the boundaries of the Russian Federated Soviet Republic is abolished forever’ (Article 1) and that ‘all the land is handed over without compensation (open or secret) to the toiling masses for their use’ (Article 2). Article 35 provided that ‘the rsfsr, in order to erect socialism as soon as possible, extends every cultural and material support to the tilling of land by communes, giving priority to the commune or co-operative economy over a private one’. In 1922, the rules applicable to the ownership and tenure of land were systematized in the Land Code. The Code, again, confirmed the abolition of private property of land, natural resources, waters or forests. All land was to belong to the State which was to lease its parts to the inhabitants. Strict limits were imposed on the use of hired working force. The Code had a clear preference for the communal/cooperative lease of land over the personal one.

The abolition of private property extended to other areas as well. On 17 December 1917, banks were declared property of the State by the Decreeon the Nationalization of Banks,47 another piece of legislation tabled by Lenin himself. On 23 June 1918, church property was nationalized and it was prohibited for the church to gain any property in future. Five days later, private industrial enterprises with a certain amount of capital in the crucial sectors of economy (mining, metallurgy, textile, etc.) were nationalized. Complete nationalization of all industrial enterprises with more than ten workers (in some instances five) took place two years later, though the measures were subsequently modified (the number of workers was increased to 20). On 20 August 1918, the Decree on the Abolition of Private Ownership of Urban Real Estate abolished private ownership of houses. Three years later, the regulation was moderated in that small houses with no more than two (five in Moscow and Petrograd) apartments were returned to the former owners on the condition that they themselves or their families would use them.48 Moreover, already in January 1918, the institution of inheritance was abolished. The property that people had was to become the property of the State after their death.

Many of these post-revolutionary measures were later, sometimes as early as in the 1920s, mitigated. The New Economic Policy (nep), proclaimed in 1921, aimed at redressing the negative consequences of the measures adopted in the first five years of the communist rule in Russia, during the period of the so-called War Communism. The nationalization measures were partly revoked and a system of mixed economy established: whereas land, banks or large industrial enterprises remained the property of the State, smaller enterprises were allowed. Land could be leased on more profitable conditions and the institution of inheritance was partly restored.49 Yet, this process was not unidirectional. At the turn of the 1920s and 1930s, private property suffered another blow during collectivization. Peasants were forced to give up the land they had in lease, and to join kolkhozes. In kolkhozes, peasants only had a right of membership, not of ownership – all property formally belonged to the kolkhoz, as a cooperative property, i.e. a form of collective property of a lower level than the State property.

In 1936, a new Constitution was adopted in the ussr. In its first part, entitled the Organization of Soviet Society, the Constitution defined the ussr as ‘a socialist state of workers and peasants’ (Article 1). Article 4 confirmed that

the socialist system of economy and the socialist ownership of the means and instruments of production firmly established as a result of the abolition of the capitalist system of economy, the abrogation of private ownership of the means and instruments of production and the abolition of the exploitation of man by man, constitute the economic foundation of the ussr.

The Constitution distinguished two types of property – socialistic property, further subdivided into State property and cooperative and collective-farm property, and personal property. The land, natural resources, large industries, or banks were State property. Small private economy (of peasants and handicraftsmen) was allowed but only on the condition that it would be based on the owner’s personal labour and it would not involve the exploitation of the labour of others. Personal ownership of objects of everyday life (flats, furniture, cloth, articles of personal use, etc.) was permitted. Article 12 stipulated the leading principles of the ussr, namely: ‘He who does not work, neither shall he eat’ and ‘From each according to his ability, to each according to his work’. Article 131 made it a ‘duty of every citizen of the u.s.s.r. to safeguard and strengthen public, socialist property as the sacred and inviolable foundation of the Soviet system’ (par. 1). Persons committing offences against this property were declared ‘enemies of the people’ (par. 2).

The distinction between the two types of property, socialist and personal, was maintained till the 1990s. The 1977 Constitution of the ussr echoed that of 1936 by stating in its Article 10 that:

the foundation of the economic system of the ussr is socialist ownership of the means of production in the form of state property belonging toall the people, and collective farm-and-co-operative property. [. . .] No one has the right to use socialist property for personal gain or other selfish ends.

Personal property included ‘articles of everyday use, personal consumption and convenience, the implements and other objects of a small-holding, a house, and earned savings’ (Article 13).

Citizens could be granted the use of plots of land. Yet, the Constitution stressed that ‘property owned or used by citizens shall not serve as a means of deriving unearned income or be employed to the detriment of the interests of society’ (Article 13). The concept of private property was reintroduced into the Russian legal order only in 1990.50 The 1993 Constitution of the Russian Federation grants equal protection to ‘the private, state, municipal and other forms of ownership’ (Article 8(2)) and ranks the right to private property to the catalogue of individual human rights guaranteed to everyone (Article 35).51

2.2 The Post-1917 Repudiation of Tsarist Debts

In addition to the abolition of private property, another measure of Soviet Russia/the ussr to attract wider criticism was the repudiation of foreign debts inherited from the tsarist period. This question remained a sensitive issue in the ussr-Western countries relations until the 1980s. In 1914, the Russian Empire was heavily indebted to several foreign countries, primarily France and the United Kingdom, and, through State bonds, also to the inhabitants of these countries. On 21 January (3 February) 1918, the Soviet government issued the Decree on the Annulation of State Loans.52 The Decree declared as invalid all internal or external debts originating from the tsarist period and from the era of the 1917 provisional government. At the turn of 1917 and 1918, the debt amounted to 60 billion Russian roubles (44 billion – internal debt, 16 billion – external debt), a sum corresponding to more than 17 annual budgets of the Russian empire.53 The Decree failed to articulate the legal or political grounds for the repudiation of the debts. Those were provided in a series of diplomatic notes exchanged with Western countries in 1921–1923 and a memorandum issued after a diplomatic conference on monetary economics which took place in Genoa, Italy, in May 1922.54

The ussr stressed that a new political regime, brought about by a popular revolution, had no duty to respect financial obligations contracted by a former, autocratic regime, with respect to other sovereigns or foreign natural or legal persons. The Soviet representative to the 1922 Genoa conference, Chicherin, referred to a

principle of law according to which revolutions which are a violent rupture with the past carry with them new juridical relations in the foreign and domestic affairs of states. [. . .] Governments and systems that spring from revolution are not bound to respect the obligations of fallen governments.55

Another argument in support of the repudiation of debts related to the military intervention by Western countries during the Civil War. The ussr argued that by attacking the country and seeking to overthrow its new popular regime, the Western countries forfeited the right to collect their debts as well as those of their citizens. The ussr continued to deny the debts up to the 1980s, when the then leader of the country, Mikhail Gorbatchev started concluding bilateral agreements to solve the issue. Most of the debts had been paid by the ussr or the Russian Federation, by the 2000s.56

3 The Russian Revolution and the Relationship between Sovereignty and Property

The measures adopted in Soviet Russia/the ussr, entailing the abolition of private property and the repudiation of the tsarist debts, were not mere opportunistic steps carried out to respond to the immediate economic crisis. Rather, they had deeper political roots embedded largely, albeit not exclusively,57 in the philosophy of Marxism-Leninism. This section traces these roots showing that the Soviet approach falls under the second tradition of conceptualizing the relationship between sovereignty and property described in the first section, of which it represents an extreme manifestation.

3.1 The Post-1917 Soviet Approach to Property

In Russia, the concept of (private) property has always found harder times to take root than in the countries of Western and Central Europe. The 20th century Russian international lawyer Mikhail Aleksandrovich Taube even saw the position taken with respect to private property as one of the main differences between Russia and Western Europe.58

Introduced to the Russian legal order during the reign of Catherine the Great in the 18th century,59 private property was never accepted as absolute and exclusive in Russia. Rather, the later tsarist period was marked by constant debates about how to rebalance the interests of private owners with legitimate public concerns (e.g. concerns in the exploitation of natural resources, in environmental protection or in artistic property).60 Although similar debates took place in Western Europe, in Russia, they revealed certain particularities. Public concerns were considered as crucial and were to be prioritized over private ones. As Pravilova notes:

the “temporary” status of private property held by individuals seemed secondary, even insignificant, when compared to the “eternal” public property of multiple generations whose claims to ownership existed in a sense outside of time, with links to both the past and the future.61

Moreover, unlike in the West, the concept of public was not linked to the State but, rather, to the (civil) society, which was, however, still to be built up in Russia. The civil society was seen as a potential counterbalance against both the autocratic State and egoistic individuals. Public property was to lay material – and also, through the common interest in the protection of this property, spiritual – foundations necessary for the emergence of such a society. Private property had to yield to this interest, though few Russian philosophers went so far as to suggest that it should be abolished altogether.

This approach resonated well with the ideology of Marxism, which started to spread in Europe in the mid-19th century. Karl Marx and Friedrich Engels, the intellectual fathers of communism, were prima facie more radical in their views on private property. Not only did they plea for a complete abolition of private property but they also saw this requirement as the main element of their philosophy. ‘The theory of the Communists’, they wrote in the 1848 Communist Manifesto, ‘may be summed up in the single sentence: Abolition of private property’.62 Yet, it is important to keep in mind that when speaking about private property, Marx and Engels did not have all individual property in mind. The Communist Manifesto is clear in that ‘the distinguishing feature of Communism is not the abolition of property generally, but the abolition of bourgeois property’.63 The intention was not to abolish State property. Nor was it to abolish all ‘private’ property in the broad sense of the term. Rather, Marx and Engels sought to limit the scope of legitimate ‘private’ property to that which is ‘the fruit of a man’s own labour [. . .] hard-won, self-acquired, self-earned property’.64 This property is not extensive in a capitalist society, because:

what [. . .] the wage-labourer appropriates by means of his labour, merely suffices to prolong and reproduce a bare existence. We by no means intend to abolish this personal appropriation of the products of labour, an appropriation that is made for the maintenance and reproduction of human life, and that leaves no surplus wherewith to command the labour of others.65

Private property to be abolished is tantamount to ‘bourgeois property’. This property does not originate in the owner’s labour. It is the outcome of the exploitation of the working class by the bourgeoisie.66 The product of workers’ labour is, in the capitalist society, divided into two parts. The smaller one remains with the worker, it is ‘the quantum of the means of subsistence which is absolutely requisite to keep the labourer in bare existence as a labourer’.67 The major part, the so-called surplus value, is appropriated by the bourgeoisie. It is ‘capital, i.e., that kind of property which exploits wage-labour’.68 Private property so defined is illegitimate, because it is not the fruit of one’s labour but the outcome of the exploitation of other people’s labour. It is ‘the final and most complete expression of the system of producing and appropriating products, that is based on class antagonisms, on the exploitation of the many by the few’.69 The exploitation entails social control and social power. Private property is both the means and the result of such power that one class, bourgeoisie, exercises over another, the workers – dominium over things entails imperium over people. By doing away with private property, the society would do away with exploitation. Men would become free.

Marx and Engels see individual freedom as one of the highest aims to attain in life. They associate freedom with the capacity to control one’s life and subject it to a rational plan. A free individual is a master of his or her own life who may strive for self-realization and engage in labour. ‘[F]reedom exists when, through the rational control and direction of the conditions of his existence, one develops his capacities and talents so that he may do as he pleases’.70 Moreover, true freedom can only be achieved within a society, in cooperation and association with others. ‘Personal freedom becomes possible only within the community’.71 Private (bourgeois) property is an obstacle to freedom. It deprives individuals of the fruits of their labour and divides the society into owners and non-owners, capitalists (bourgeoisie) and workers (proletariat). The relationship between those groups, and often also within them, is antagonistic, because the capitalist society is based on the exploitation of workers by capitalists and on the competition among various workers/capitalists. Thus, private (bourgeois) property prevents individual self-realization, and hampers social interactions.72

The vast majority of the population in all countries belongs to the working class. This majority, however, is subjugated by the bourgeoisie which controls the public space through institutions such as schools, religion and the State. Sooner or later, however, a revolution by the working class can be expected. The proletariat will take control of the State and it will ‘use its political supremacy to wrest, by degree, all capital from the bourgeoisie, to centralise all instruments of production in the hands of the State, i.e., of the proletariat organised as the ruling class’.73 The Communist Manifesto contains a list of ten measures which would typically take place in such a transitional period from capitalism to communism (labelled as dictatorship of the proletariat). Such measures would include, among others, abolition of property in land and application of all rents of land to public purposes; abolition of all rights of inheritance; centralisation of credit in the hands of the State; or the centralisation of the means of communication and transport in the hands of the State. These are exactly the measures that Soviet Russia/the ussr sought to implement after the 1917 Revolution.

The transitional period should result in the elimination of the exploitation and the disappearance of class distinctions brought about by the disappearance of the bourgeois class. The public power, now exercised by all people, will lose its political (i.e. class) character and ‘in place of the old bourgeois society, with its classes and class antagonisms, we shall have an association, in which the free development of each is the condition for the free development of all’.74 Communism will prevail, making it possible for all individuals to fully develop their potential, enjoy personal liberty and freely associate with others on equal footing. At the same time, the State as an institution will wither away.75

When at last [the State] becomes the real representative of the whole of society, it renders itself unnecessary. As soon as there is no longer any social class to be held in subjection, [. . .] nothing more remains to be held in subjection – nothing necessitating a special coercive force, a state. The first act by which the state really comes forward as the representative of the whole of society – the taking possession of the means of production in the name of society – is also its last independent act as a state. [. . .] The state is not ‘abolished’. It withers away.76

With the State, law – as a set of commands issued by the sovereign – will wither away as well.

The second part of Marx’s and Engels’s teaching – on the communist revolution – was further elaborated upon by the founder of the Russian Communist party, Lenin, in his book on the State and Revolution drafted in 1917, shortly before the October Revolution.77 Lenin agrees with Marx and Engels that the State serves as an instrument for the exploitation of the working class. This situation is untenable and needs to result in a revolution. This revolution will be followed by the liquidation of the bourgeoisie, during the transitional period of the dictatorship of the proletariat. Then, the communist society will be built up, in two phases. In the first phase, the remnants of the bourgeois State and law will survive. The means of production will already belong to the whole of the society and every member of the society will be remunerated in function of the work he or she performs. The society will respect the principles ‘He who does not work shall not eat’ and ‘An equal amount of products for an equal amount of labour’. Yet, individual personality will not be taken into account sufficiently. That will only happen in the second, higher stage of communism which will implement the principle ‘From each according to his ability, to each according to his needs’. Then justice will be brought about, communism will triumph and the State, together with law, no longer needed, will wither away.

As we can see, there are important commonalities between the debates about private property which took place in tsarist Russia in the 18th–19th centuries and the ideology of Marxism-Leninism. In the two approaches, property is conceptualized as an important social instrument that can be used for good or bad purposes (the creation of a better world vs. the exploitation of masses). Private property is not rejected altogether but it has to be controlled and limited in such a way as not to hamper public concerns and entail social control over other individuals. The State is not helpful or needed and should be replaced by a society composed of free individuals. These common elements may help explain why Russia, which certainly did not qualify as a developed capitalist country in the early 20th century, became the first place in which the Marxist ideas about private property, as interpreted by the Russian authors, and especially Lenin, were sought to be put in practice.

3.2 The Post-1917 Soviet Approach to Sovereignty

Whereas the concept of (private) property was the centre of attention after the 1917 Russian Revolution, the same cannot be said about the concept of sovereignty.78 In the first decades after the Revolution, sovereignty – in either its internal or external dimension – was rarely invoked by Soviet Russia/the ussr.79 The 1918 Constitution of the rsfsr did not refer to sovereignty at all, the 1924 and 1936 Constitutions of the ussr did so only when dealing with the status of Union republics (Chapter ii of the 1924 Constitution and Article 15 of the 1936 Constitution). The situation changed only after 1945, when first comprehensive treatises about sovereignty – with the emphasis placed on external sovereignty – were published.80 The change of perspective found its expression in the 1977 Constitution of the ussr, which invokes the principle of sovereign equality (Article 29) and stresses the need to ‘defend the gains of socialism [. . .] and the sovereignty and territorial integrity of the state’ (Article 31).

The absence of references to sovereignty in the first decades after the 1917 Russian Revolution can be explained by the expectations of withering away of the State and the creation of stateless national and later on international society.81 It was also linked to the perception that the concept of sovereignty was of bourgeois origin and made part of the Western legal dogma. Yet with time passing, it was getting increasingly difficult to ignore the continuing existence of States, including the ussr itself, and to deal with this existence without embracing some form of the sovereignty doctrine. What the ussr did was to come up with a new way of conceptualizing sovereignty, in which the internal and external dimensions of the concept were inherently linked. Originally, the use of the term ‘sovereignty’ was avoided in this context. As we already saw, the term was only restored to the legal and political vocabulary after 1945 when, also, the Soviet view on sovereignty was expressed in most explicit terms.

The Soviet Union was considered to be the first State adhering to the principle of popular sovereignty. Popular sovereignty amounts to the rule of all people. Capitalist bourgeois States can never aspire to such a rule, because, as Lenin explained, ‘no bourgeois republic, however democratic, was ever anything other than a machine for oppressing workers by capital, an instrument of bourgeois dictatorship’.82 The ussr was different. As Korovin put it in 1947, ‘Soviet sovereignty is the first example of genuine popular sovereignty, in that the Soviet state has no antagonistic classes and is completely united.’83 By the same token, Vyshinsky spoke about ‘a new, perfect type of sovereignty of the people’.84 The Soviet conception of internal sovereignty might seem quite similar to the idea of the sovereignty of people as known from the Western European and us constitutionalism. It is however important to keep in mind that the people in the Soviet approach did not encompass all people living in a certain territory. Rather, it related to the members of the working class (workers and peasants) who, moreover, were to exercise power through Soviets. In the terms of Article 3 of the 1936 Constitution, ‘in the ussr all power belongs to the working people of town and country as represented by the Soviets of Working People’s Deputies’. The 1918 Constitution of the rsfsr went even further claiming that, in fact, ‘all power [. . .] is vested with these Soviets’ (Article 1). The first to speak about ‘the whole people’, albeit not without the qualification that this included ‘the workers, peasants and intelligentsia’ was, again, the 1977 Constitution (Article 1).

Popular sovereignty in the Soviet understanding thus effectively meant the rule by the working class as exercised by the Soviets – dominated, in turn, by the members of the Communist Party of the ussr. Anything that would stand in the way of strengthening popular sovereignty and doing away with the remnants of capitalism – such as private property – had to be eliminated. (Popular) sovereignty trumped private (bourgeois) property.

3.3 The Post-1917 Soviet Approach to Sovereignty and Property

The previous section offered an overview of measures which had been adopted in Soviet Russia/the ussr in the aftermath of the October Revolution.85 In line with the view of Marxism-Leninism, the post-revolutionary period was to bring about the transition from capitalism to communism, through the dictatorship of the proletariat. That explains why some of the very first legal acts enacted in 1917–1918 aimed at abolishing private property, primarily in the areas with high concentration of capital, where the exploitation of workers had to be at its highest. These acts were followed by others, targeting the remaining forms of bourgeois property. ‘Private’ property in the narrow sense, i.e. property resulting from each individual’s labour, was maintained and renamed ‘personal’ property, to show its distinct character. All non-personal property was nationalized and made the property of the State or of collective entities. Nationalization took place without compensation, because no need was felt to compensate those who had gained their property through the exploitation of others. Punishment or, at least, re-education, rather than compensation, seemed appropriate with respect to members of the bourgeois class. This applied both with regard to Russian citizens and to foreigners.

The final owner of other than personal property in the Soviet approach is the people. The people, at the same time, is the final holder of sovereignty. The two institutions are thus joined together – no one but the people has sovereignty, no one but the people can own property. The concentration of the two qualities in one ‘hands’, those of the people, is to ensure that decisions taken by the sovereign would reflect the collective interests of all the ‘working people of town and countryside’ (Article 3 of the 1936 Constitution) and that these working people, due to the abolition of private property and nationalization of the means of production, would be fully free. The social power is held by the people and not only by private property owners. In this situation, both sovereignty and property can easily be dissociated from the State which is no longer needed either as a holder of sovereignty or as a protector of property. The people replaces the State in these two roles, though for some time, in a transitional period, it can maintain and use the institution of the State to assume these roles, as it indeed did after 1917. At the same time, the people has no obligation to respect commitments made during the period when the society was controlled by the bourgeois class and/or by an autocratic ruler. The people can, and should, shake off these commitments which were made to its detriment and risk to put its progress towards classless society in jeopardy.

The post-1917 Soviet approach to sovereignty and property is clearly at odds with the tradition treating sovereignty and property as independent concepts. Yet, this tradition, though dominant, has never been exclusive. The Soviets were neither the first, nor the only, to see sovereignty and property as interrelated. Cohen’s claim that private property is nothing but ‘sovereign power compelling service and obedience’86 resonates well with Marx’s or Lenin’s view that individuals can only become free and the people sovereign, if private property of the means of production is abolished. Moreover, both Cohen and Marx/Lenin have a particular understanding of sovereignty, which is not linked to the State but serves to describe social power over people’s lives. As this power stems from (private) property, the two institutions, by their very nature, are interrelated. Marx and Lenin were more radical than Cohen in their rejection of the concept of private property and their anticipation of the withering away of the State and law. These elements were then taken over in post-1917 Russia. Yet, since the withering away was to occur only in the higher stage of communism which never materialised in the ussr, and the abolition of private property was never absolute, the radicalism got somewhat mitigated in practice, making the post-revolutionary Soviet approach even more strongly anchored in the second tradition.

4 The Soviet Union, Sovereignty and Property and International Law

The Soviet approach to the relationship between sovereignty and property also had an impact on the position that Soviet Russia/the ussr took with respect to international law. It translated into several ideas aimed at bringing modifications into the international legal system that the ussr put forward, mostly in the post-1945 period. These ideas, however, have left a rather limited imprint in international law.

4.1 The Soviet Union and International Law

The original stance adopted by Soviet Russia/the ussr in respect of international law was that of total rejection. As Hazard notes, ‘international law began to assume in Soviet minds the character of those who quoted it. It seemed to many Soviet leaders to be the weapon of the enemy’.87 Embracing Lenin’s view of law as a tool of politics reflecting the ideology of the ruling class, the Soviet leaders and scholars were persuaded that international law, created by bourgeois States, could not but reflect bourgeois values, incompatible with, and dangerous for, the values of the young Soviet State. Yet, already in the 1920s, the ussr started to change its position, largely out of pragmatic reasons. ‘It was necessary to live in the world with other states, and minimizing friction was possible only if some rules were followed’.88 Thus, the representatives of the Soviet legal doctrine, such as Korovin, came up with the conception of ‘international law of the transitional period’.89 Under this conception, the ussr was not to reject international law altogether but, as long as it stayed in the transitional period between capitalism and communism, it could use the legal institutions which did not clash with its fundamental values. Once this period is over, international law as any law would be no longer needed and would wither away.

This conception, albeit not without certain reservations, was later embraced by classical Soviet authors, Tunkin, for instance.90 For him, international law was applicable in international relations, though the content of rules differed depending on whether the relations were among socialist States or between socialist and capitalist States. In the former area, the relations were to be based on the principles of socialist internationalism, equality and self-determination of nations, and peaceful co-existence.91 In the latter area, the traditional principles of international law were to apply, enriched by new principles enshrined in the un Charter (nonaggression, peaceful settlement of disputes, disarmament, self-determination of peoples, etc.). In all cases, a socialist country, such as the ussr, always had to promote certain fundamental values and to interpret international law in their light. Among those values was the Soviet understanding of the relationship between sovereignty and property.

As we saw above, in the aftermath of the 1917 October Revolution, the ussr rejected both private property and sovereignty. Later on, however, it somewhat moderated its view in relation to the former concept and it embraced, quite actively indeed, the latter one, albeit in its own understanding. This understanding relied not only on the idea of popular sovereignty as the basis of internal legitimacy of a State. It also adhered to the theory of absolute sovereignty in international relations. This theory, however, was to apply only with respect to States based on the principle of popular sovereignty, that is to the Soviet Union, other socialist States and newly independent (decolonized) countries. Other States, including those moving away from the socialist system (and, hence, from popular sovereignty), forfeited their right to absolute sovereignty. This view found its reflection, in the 1960s, in the Brezhnev doctrine of limited sovereignty,92 which served to justify the intervention by the Warsaw Pact in Czechoslovakia in 1968. The absolute sovereignty of socialist and decolonized States also entailed the right of these States to dispose of, and if need be to do away with, private property owned by their citizens or by foreigners on their territory. At the same time, these States had the obligation to respect personal property.93 This property, however, was seen as less important than the collective property. This view made the Soviet Union question certain institutions of international law and put forward its own ideas as to how this law should be modified.

4.2 Attempts by the Soviet Union to Modify International Law

The Soviet view on the relationship between the two institutions primarily marked the position of the Soviet Union in three areas of international law – human rights law, natural resources law and international investment law. These three areas are only briefly outlined here but the topic would certainly deserve a more thorough analysis in future research.

The first area is that of human rights, more exactly the right to property.94 While not contesting the existence of this right, the ussr sought to limit it to personal property. Moreover, it defended the right of States to interfere with private property in the public interest, if need be. During the drafting of the Universal Declaration of Human Rights (udhr), the ussr tabled its own amendment to (draft) Article 14 (later to become Article 17). The proposal suggested that the right to property be recognized only ‘in accordance with the laws of the country where such property is situated’.95 When defending the proposal, the Soviet representative Pavlov explained that ‘it was true that the individual could own his own house and personal belongings, but it was considered personal or individual, rather than private property’,96 adding that ‘private property was too frequently in conflict with public interest’.97 Pavlov also referred to the protection of State sovereignty as a ground for the proposal. The ussr position was supported by certain countries (Chile, Cuba, Panama) but strongly opposed by others (usa, Belgium). In the end, the Soviet proposal was not incorporated into the text of the udhr.98 This was probably one of the reasons why the ussr, together with its allies, abstained in the vote on the Declaration.

In the 1950s and 1960s, the ussr supported the exclusion of the right to property from the two (draft) covenants and, with the support of other, not only socialist States, it achieved this goal. Despite that, the right to property has made its way to human rights catalogues at the national level and to regional human rights instruments, including the European Convention on Human Rights. This right, as explained in the first section, is not conceived as an absolute one but, rather, allows for interference with private property justified by sovereign interests. Here, international law reflects the second tradition to sovereignty and property to which the Soviet approach belongs. Yet, the Soviet approach has hardly had any substantive impact on the formulation of the relevant provisions. After all, the ussr remained outside the European regional human rights system until its dissolution. The distinction between private and personal property has not been taken over at the international level and it seems largely forgotten by now. After 1990, the Russian Federation, and other post-Soviet States, have abandoned this distinction as well and have incorporated the right to private (not only personal) property into their domestic human rights catalogues.

The second area in which the approach of the ussr was largely formed by the country’s view on the relationship between sovereignty and property, related to the sovereignty over natural resources. The agenda, promoted by the newly independent States in the 1960s-1970s, got backing from the ussr and other socialist countries. During the drafting in the un General Assembly of the resolution on permanent sovereignty on natural resources in the early 1960s, the ussr, tabling its own proposal, stressed the right of peoples and nations to ‘own, utilize and dispose of their natural wealth and resources in the interest of their independent national development’.99 The ussr further stressed the right of the peoples and nations – as true holders of sovereignty – to control foreign investment relating to natural resources and to carry out nationalization or expropriation measures without limits (and without compensation). The proposal encountered criticism from many countries (usa, Chile, the Netherlands, etc.) and was finally rejected, as preference was given to an alternative proposal submitted by Chile which was more balanced.100 Yet, the text and the Soviet position clearly reflected the understanding of sovereignty as belonging to the people and as entailing the collective (State) property over the main (re)sources available in the country.

The third area to mention, closely related to the second, is the regulation of investment and, more generally, international economic relations.101 The ussr was among the supporters of the New International Economic Order (nieo), which was put forward in the 1970s, again mainly by developing countries.102 The nieo presupposed a restructuring of world economy to permit equal participation of all countries and to do away with the exploitation of the less developed world by the capitalist States and enterprises. In 1976, the ussr together with other socialist countries issued a statement at the unctad conference, stressing the need to achieve freedom from capitalist (neo-colonial) exploitation and the absolute right of States to control foreign investment on their own territory.103 The ussr was opposed to foreign investment, because private investors were seen as perpetuating the exploitation of labour and as interfering with popular sovereignty. After the October Revolution, the property of foreign investors was nationalized without compensation. In the 1920s, for a brief period, foreign companies could operate in the ussr under a concession system.104 Later on, virtually all the economy was in the hands of the State and the ussr was not very actively involved in international trade, except within the socialist camp. This started changing in the 1980s and the anti-investment approach was finally abandoned in the 1990s.105

5 Conclusions

This article has argued that the Soviet approach to sovereignty and property falls within one of the two traditions of conceptualizing the relationship between these institutions. The first tradition sees sovereignty and property as separate concepts, one falling to the realm of public law, the other to that of private law. In this approach, changes of sovereignty shall not have an impact upon private property. The second tradition considers the two concepts as interrelated, the ownership over objects always entailing power over individuals. In this approach, the legal regulation of the two institutions is to be linked together. Soviet Russia/the ussr clearly sided with the latter tradition. For the post-1917 rulers of the country, sovereignty and property were just two sides of the same coin – they both entailed social power which had to be concentrated in the hands of the people. The people, i.e. workers, peasants and intelligentsia represented by the Soviets, was considered the only true sovereign and it should, consequently, be the only true owner of all property except for the personal one, stemming from each individual’s labour. Only such a model can prevent the exploitation of individuals by other individuals within a State and the domination of rich and powerful States at the international level.

This view on the relationship between sovereignty and property was at the origin of the abolition of private, non-personal property in the ussr. It also prompted the Soviet Union to repudiate debts from the tsarist period and to formulate its own ideas on certain areas of international law (human right to private/personal property, sovereignty over natural resources, foreign investment, etc.). While radical in its principles and aspirations, the Soviet approach was somewhat less radical in its application. Once it became clear that the developed stage of communism was not forthcoming any time soon, the system settled more or less comfortably in a transitional phase between capitalism and communism, showing willingness to make certain concessions. Concessions that, in some views, prevented the final triumph of the Soviet system, and, in other views, allowed it to survive for more than seven decades. And while this system has left an important imprint in many areas of law and of life,106 its approach to sovereignty and property has not really survived its demise.

1 Декрет о земле, Cъезд советов рабочих и солдатских депутатов, 26 октября 1917.

2 See Articles 5, 6, 7 and 9 of the 1936 Constitution of the ussr.

3 See Arthur K. Kuhn, ‘Nationalization of Foreign-Owned Property in Its Impact on International Law’, American Journal of International Law 45 (1951), 709–712.

4 See James Charles Smith (ed.), Property and Sovereignty. Legal and Cultural Perspectives (Abingdon: Routledge 2013).

5 Morris R. Cohen, ‘Property and Sovereignty’, Cornell Law Review 13 (1927), 8–30, 8.

6 See also Daniel Lee, ‘Sources of Sovereignty: Roman Imperium and Dominium in Civilian Theories of Sovereignty’, Politica Antica 1 (2012), 79–94.

7 See also L. Benjamin Ederington, ‘Property as a Natural Institution: The Separation of Property from Sovereignty in International Law’, American University International Law Review 13 (1997), 263–331.

8 Andrew Fitzmaurice, Sovereignty, Property and Empire, 1500–2000 (Cambridge: Cambridge University Press 2014).

9 John Locke, Two Treatises of Government (Cambridge University Press 1960), book 2, chapter 5, par. 27.

10 Jean Jacques Burlamaqui, The Principles of Natural and Politic Law, Vol. ii (Cambridge 1807), 144.

11 Christian Wolff, Jus Gentium Methodo Scientifica Pertractatum (Oxford: Clarendon Press 1934), 51.

12 William Blackstone, Commentaries, Section 16. Property (1765)), par. iii.

13 Travers Twiss, The Law of Nations Considered as Independent Political Communities (Oxford: Clarendon Press 1884), 194–195.

14 Ederington, ‘Property as a Natural Institution’ 1997 (n. 7), 263–331.

15 Ibid., 265.

16 Emmerich Vattel, The Law of Nations or Principles of the Law of Nature (London: GG and Robinson 1797), book ii, chapter vii, par. 96, 170.

17 Fred K. Nielsen, ‘The Solution of the Spitsbergen Question’, American Journal of International Law 14 (1920), 232–235; Christopher R. Rossi, ‘ “A Unique International Problem”: The Svalbard Treaty, Equal Enjoyment, and Terra Nullius: Lessons of Territorial Temptation from History’, Washington University Global Studies Law Review 15 (2016), 93–136.

18 Ederington, ‘Property as a Natural Institution’ 1997 (n. 7), 288–298.

19 Ibid., 298.

20 D. P. O’Connell, The Law of State Succession (Cambridge: Cambridge University Press 1956), 274.

21 Mark F. Lindley, The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green and Company 1926), 337.

22 Percheman, 32 us, at 87. In the case, a private individual, Juan Percheman, appealed to the us Supreme Court after a commission established in the aftermath of the cession of Florida to the United States, had refused to recognize his title to 2,000 acres of land in Florida. The Court vindicated his claim.

23 pcij, Certain Questions Relating to Settlers of German Origin in the Territory Ceded by Germany to Poland, 10 September 1923.

24 Ibid., 36.

25 Lassa Oppenheim, International Law: A Treatise (London: Longmans, 7th edn. 1948), 403.

26 This rule was found customary under the 2005 icrc Study on Customary International Humanitarian Law. See Jean-Marie Henckaerts/Louise Doswald-Beck (eds.), Customary International Humanitarian Law, Volume I: Rules (Cambridge: Cambridge University Press 2005), Rule 50.

27 Ederington, ‘Property as a Natural Institution’ 1997 (n. 7), 330.

28 Jason Leslie, ‘Property and Sovereignty: Legal and Cultural Perspectives, by James Charles Smith (ed.)’, Book Review, Osgoode Hall Law Journal 52 (2015), 648.

29 Cohen, ‘Property and Sovereignty’ 1927 (n. 5).

30 Ibid., 13.

31 Ibid., 12.

32 This distinction is taken over by Smith who, however, speaks about political and owners’ sovereignty. See Smith, Property and Sovereignty 2013 (n. 4), 1.

33 Ibid., 9.

34 Cit. in Ederington, ‘Property as a Natural Institution’ 1997 (n. 7), 271.

35 Ibid., 272–273.

36 Thomas Hobbes, Leviathan, Edited by Michael Oakeshott (New York: Touchstone 1997), 186.

37 Jean-Jacques Rousseau, A Discourse Upon the Origin and the Foundation of the Inequality among Mankind, online version, 23.

38 Cit. in Ederington, ‘Property as a Natural Institution’ 1997 (n. 7), 328–329.

39 See Francis Cheneval, ‘Property rights as human rights’, in Francis Cheneval/Hernando De Soto (eds.), Realizing Property Rights (Zürich: Rüeffer&Rub 2006), 11–17.

40 ECtHR, Sporrong and Lönnroth v. Sweden, Application No. 7152/75, 23 September 1982, par. 69.

41 Christopher Read, From Tsar to Soviets: The Russian People and Their Revolution (New York: Oxford University Press 1996).

42 See James Mavor, The Russian Revolution, Routledge Revivals (Routledge 2016); Richard Pipes, The Russian Revolution (New York: Vintage Books 1991).

43 See Xenia Joukoff Eudin/Harold Henry Fischer (eds.), Soviet Russia and the West, 1920–1927: A Documentary Survey (Stanford: Stanford University Press 1957).

44 See Samuel Kucherov. ‘Property in the Soviet Union’, American Journal of Comparative Law 11 (1962), 376–391; John N. Hazard, ‘Soviet Property Law’, Cornell Law Quarterly 30 (1945), 466–487; Richard C. Schneider, ‘Developments in Soviet Property Law’, Fordham International Law Journal 3 (1989), 446–480.

45 Декрет о земле, Cъезд советов рабочих и солдатских депутатов, 26 октября 1917.

46 Декрет Всероссийского Центрального Исполнительного Комитета О социализации земли, 27 января 1918.

47 Декрет Всероссийского Центрального Исполнительного Комитета О национализации банков, 14 декабря 1917.

48 Decree of 18 August 1921.

49 See Frances Foster-Simons, ‘The Development of Inheritance Law in the Soviet Union and the People’s Republic of China’, American Journal of Comparative Law 33 (1966), 33–62; Shaheen Malik, ‘The Development of Inheritance Law in the Soviet Union and the People’s Republic of China: An Unfriendly Comment’, American Journal of Comparative Law 34(1) (1966), 137–144.

50 Закон N 1305–1 О собственности в СCСР, 6 марта 1990, Закон РСФСР N 443–1 О собственности в РСФСР, 24 дeкaбря 1990.

51 See Vladimir Shlapentokh/Anna Aratunyan, Freedom, Repression, and Private Property in Russia (Cambridge: Cambridge University Press 2013).

52 Декрет об аннулировании государственных займов. Декреты Советской власти. Т. 1. М., 1957, available at http://www.unilib.neva.ru/dl/327/Theme_9/Sources/WW_I/Dekret.htm (visited on 3 March 2016).

53 John P. Sontag, ‘Tsarist Debts and Tsarist Foreign Policy’, Slavic Review 27(4) (1968), 529–541.

54 Odette Lienau, Rethinking Sovereign Debt (Cambridge: Harvard University Press 2014), 57–99.

55 Cit. in Jan F. Triska/Robert M. Slusse, The Theory, Law, and Policy of Soviet Treaties (Stanford: Stanford University Press 1962), 390.

56 See Постановление Правительства РФ № 426 Об урегулировании обязательств Российской Федерации по внешнему долгу бывшего СССР перед Международным банком экономического сотрудничества (МБЭС) и Международным инвестиционным банком (МИБ), 14 июня 2002; Постановление Правительства РФ № 770 Об окончательном урегулировании обязательств Российской Федерации по внешнему долгу бывшего СССР перед Международным инвестиционным банком, 23 декабря 2003.

57 The Soviet approach also drew from the domestic, Russian tradition of conceptualizing property. See Ekaterina Pravilova, Public Empire: Property and the Quest for the Common Good in Imperial Russia (Princeton: Princeton University Press 2014).

58 Lauri Mälksoo, Russian Approaches to International Law (Oxford University Press 2015), 51.

59 Pravilova, Public Empire 2014 (n. 57), 8.

60 Ibid., 8–10.

61 Ibid., 13.

62 Karl Marx/Friedrich Engels, Manifesto of the Communist Party, 1848, Chapter ii. Proletarians and Communists.

63 Ibid., Chapter ii.

64 Ibid.

65 Ibid.

66 See John E. Roemer, ‘Should Marxists be Interested in Exploitation?’, Philosophy & Public Affairs 14(1) (1985), 30–65; John Elster, ‘Exploring Exploitation’, The Journal of Peace Research 15(1) (1978), 3–17.

67 Marx/Engels, Manifesto 1848 (n. 62), Chapter ii.

68 Ibid., Chapter ii.

69 Ibid.

70 George G. Brenkert, ‘Freedom and Private Property in Marx’, Philosophy and Public Affairs 8 (1979), 124.

71 Karl Marx/Friedrich Engels, The German Ideology (1845), 5:73.

72 Marx/Engels, Manifesto 1848 (n. 62), Chapter ii.

73 Ibid.

74 Ibid.

75 Solomon F. Bloom, ‘The “Withering Away” of the State’, Journal of the History of Ideas 7 (1946), 113–121.

76 Friedrich Engels, Anti-Dühring, Herr Eugen Dühring’s Revolution in Science (Moscow: Progress Publishers 1947).

77 Владимир Ильич Ленин, Государство и революция: Учение марксизма о государстве и задачи пролетариата в революции (Москва: УРСС 2015).

78 See also Идея суверенитета в российском, советском и постсоветском контексте: Материалы постоянно действующего научного семинара: сборник докладов (Москва: Научный зксперт 2008).

79 For rare exceptions, see И.И. Палиенко, Проблемы суверенитета современного государства (Харьков 1929) and И. П. Трапнин, ‘К вопросу о суверенитете‘, Советское государство и право 2 (1938).

80 See Иосиф Левин, Суверенитет (Москва: Издательство министерства юстиции СССР 1948); Иосиф Левин, ‘К вопросу о сущности и значении принципа суверенитета’, Советское государство и право 6 (1949), pp. 33–46; Андрей Януарьевич Вышинский, Вопросы теории государства и права (Москва 1949).

81 Robert A. Jones, The Soviet Concept of ‘Limited Sovereignty’ from Lenin to Gorbachev. The Brezhnev Doctrine (Palgrave Macmillan 1990), 7–8.

82 Cit. in Jones, ibid., 87.

83 Ibid., 87–88.

84 Cit. in George C. Guins, Soviet Law and Soviet Society (The Hague: Martinus Nijhoff 1954), 250.

85 See also George M. Armstrong, The Soviet Law of Property: The Right to Control Property and the Construction of Communism (The Hague: Martinus Nijhoff 1983).

86 Cohen, ‘Property and Sovereignty’ 1927 (n. 5), 12.

87 John N. Hazard, ‘The Soviet Union and International Law’, Soviet Studies 1 (1950), 189.

88 Ibid., 190.

89 Евгeний Алексaндрович Корoвин, Международное право переходного времени (Государственное издательство 1923).

90 Григорий Иванович Тункин, Tеория международного права (Москва: Зeркало 2009).

91 Тункин, Tеория международного права 2009 (n. 90), 1–15.

92 See Matthew Ouimet, The Rise and Fall of the Brezhnev Doctrine in Soviet Foreign Policy (Chapel Hill: University of North Carolina Press 2003).

93 The right to personal property was protected under both the 1936 Stalinist and the 1977 Brezhnev Constitutions of the ussr (Article 10 and 13, respectively).

94 Theo R. G. Van Banning, The Human Rights to Property (Antwerpen/Groningen/Oxford: Intersentia 2001).

95 Cit. in Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press 1999), 152.

96 Ibid., 153.

97 Ibid.

98 Article 17 of the udhr states that ‘everyone has the right to own property alone as well as in association with others’ (par. 1) and ‘no one shall be arbitrarily deprived of his property’ (par. 2).

99 Cit. in Nico Schrijver, Sovereignty over Natural Resources: Balancing Rights and Duties (Cambridge: Cambridge University Press 1997), 65.

100 General Assembly Resolution 1803 (xvii), Permanent sovereignty over natural resources, 14 December 1962.

101 See Kazimierz Grzybowski, Soviet International Law and the World Economic Order (Durham: Duke University Press 1987).

102 General Assembly Resolution 3201 (S-VI), Declaration on the Establishment of a New International Economic Order, 1 May 1974.

103 See Ervin Laszlo/Joel Kurtzman (eds.), Eastern Europe and the New International Economic Order: Representative Samples of Socialists Perspectives (Pergamon Press 1982).

104 В. Кунин, ‘Концессионная политика в Советской России (1923–1929 гг.)’, Вестник Московского ун-та, Сер. 6. Экономика, № 5, 1993, 25–36.

105 See David A. Dyker, The Process of Investment in the Soviet Union (Cambridge: Cambridge University Press 1983).

106 See John Quigley, Soviet Legal Innovation and the Law of the Western World (Cambridge: Cambridge University Press 2012).

  • 3

    See Arthur K. Kuhn, ‘Nationalization of Foreign-Owned Property in Its Impact on International Law’, American Journal of International Law 45 (1951), 709–712.

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  • 5

    Morris R. Cohen, ‘Property and Sovereignty’, Cornell Law Review 13 (1927), 8–30, 8.

  • 6

    See also Daniel Lee, ‘Sources of Sovereignty: Roman Imperium and Dominium in Civilian Theories of Sovereignty’, Politica Antica 1 (2012), 79–94.

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  • 7

    See also L. Benjamin Ederington, ‘Property as a Natural Institution: The Separation of Property from Sovereignty in International Law’, American University International Law Review 13 (1997), 263–331.

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  • 15

    Ibid., 265.

  • 17

    Fred K. Nielsen, ‘The Solution of the Spitsbergen Question’, American Journal of International Law 14 (1920), 232–235; Christopher R. Rossi, ‘ “A Unique International Problem”: The Svalbard Treaty, Equal Enjoyment, and Terra Nullius: Lessons of Territorial Temptation from History’, Washington University Global Studies Law Review 15 (2016), 93–136.

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  • 19

    Ibid., 298.

  • 24

    Ibid., 36.

  • 30

    Ibid., 13.

  • 31

    Ibid., 12.

  • 33

    Ibid., 9.

  • 35

    Ibid., 272–273.

  • 48

    Decree of 18 August 1921.

  • 49

    See Frances Foster-Simons, ‘The Development of Inheritance Law in the Soviet Union and the People’s Republic of China’, American Journal of Comparative Law 33 (1966), 33–62; Shaheen Malik, ‘The Development of Inheritance Law in the Soviet Union and the People’s Republic of China: An Unfriendly Comment’, American Journal of Comparative Law 34(1) (1966), 137–144.

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  • 53

    John P. Sontag, ‘Tsarist Debts and Tsarist Foreign Policy’, Slavic Review 27(4) (1968), 529–541.

  • 60

    Ibid., 8–10.

  • 61

    Ibid., 13.

  • 66

    See John E. Roemer, ‘Should Marxists be Interested in Exploitation?’, Philosophy & Public Affairs 14(1) (1985), 30–65; John Elster, ‘Exploring Exploitation’, The Journal of Peace Research 15(1) (1978), 3–17.

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  • 70

    George G. Brenkert, ‘Freedom and Private Property in Marx’, Philosophy and Public Affairs 8 (1979), 124.

  • 75

    Solomon F. Bloom, ‘The “Withering Away” of the State’, Journal of the History of Ideas 7 (1946), 113–121.

  • 83

    Ibid., 87–88.

  • 87

    John N. Hazard, ‘The Soviet Union and International Law’, Soviet Studies 1 (1950), 189.

  • 88

    Ibid., 190.

  • 96

    Ibid., 153.

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