Lauri Mälksoo | University of Tartu (original) (raw)

Books by Lauri Mälksoo

Why has there been a human rights backlash in Russia despite the country having been part of the ... more Why has there been a human rights backlash in Russia despite the country having been part of the European human rights protection system since the late 1990s? To what extent does Russia implement judgments of the Strasbourg Court, and to what extent does it resist the implementation? This fascinating study investigates Russia's turbulent relationship with the European Court of Human Rights and examines whether the Strasbourg court has indeed had the effect of increasing the protection of human rights in Russia. Researchers and scholars of law and political science with a particular interest in human rights and Russia will benefit from this in-depth exploration of the background of this subject.

Offers an in-depth analysis of Russia's relationship with the European Court of Human Rights
Discusses human rights socialization theories in the empirical context of post-Soviet Russia, as well as nativist theories that offer resistance to the liberal/secular concept of human rights
Offers a realist and sceptical look at the implementation of judgments issued by the European Court of Human Rights in the biggest Council of Europe member state

This book addresses a simple question: how do Russians understand international law? Is it the sa... more This book addresses a simple question: how do Russians understand international law? Is it the same understanding as in the West or is it in some ways different and if so, why?
It answers these questions by drawing on from three different yet closely interconnected perspectives: history, theory, and recent state practice. The work uses comparative international law as starting point and argues that in order to understand post-Soviet Russia's state and scholarly approaches to international law, one should take into account the history of ideas in Russia. To an extent, Russian understandings of international law differ from what is considered the mainstream in the West.
One specific feature of this book is that it goes inside the language of international law as it is spoken and discussed in post-Soviet Russia, especially the scholarly literature in the Russian language, and relates this literature to the history of international law as discipline in Russia. Recent state practice such as the annexation of Crimea in 2014, Russia's record in the UN Security Council, the jurisprudence of the European Court of Human Rights, prominent cases in investor-state arbitration, and the creation of the Eurasian Economic Union are laid out and discussed in the context of increasingly popular 'civilizational' ideas, the claim that Russia is a unique civilization and therefore not part of the West. The implications of this claim for the future of international law, its universality, and regionalism are discussed.

(Edited by L. Mälksoo). In Russia and European Human-Rights Law: The Rise of the Civilizational A... more (Edited by L. Mälksoo). In Russia and European Human-Rights Law: The Rise of the Civilizational Argument, Lauri Mälksoo and his co-authors critically examine Russia's experiences as part of the European human-rights protection system since its admittance to the Council of Europe in 1998. The authors combine legal and constructivist international-relations theory perspectives in studying Russia's practice and rhetoric as a member of the Council of Europe and a subject to the jurisdiction of the European Court of Human Rights. Certain aspects of human-rights doctrine and practice in Russia are particularly highlighted: the increasing impact of Orthodox Christian teachings on the Russian government's ideology, the situation with media freedom, freedom of religion, etc. The authors draw widely on Russian sources and media. The questions whether modern-day Russia truly fits in the human-rights protection system of the Council of Europe, and whether a margin of appreciation will suffice when dealing with Moscow, are highly relevant in contemporary European politics.

The depth and intensity of the transformation in Eastern and Central Europe in the 1980's and 199... more The depth and intensity of the transformation in Eastern and Central Europe in the 1980's and 1990's took most diplomats and political commentators by surprise. Needless to say, European politics now looks completely different from how it did during the stale years of the Cold War. This volume is an in-depth analysis of one aspect of the transformation - namely the Baltic States' struggle to regain the statehood they had lost in the Soviet occupation in June 1940. It analyses the claim of illegality of the Soviet occupation, arguments about possible prescription, the legal consequences of illegality as well as the restoration of the statehood of the three Baltic States after 1990. The relevant facts are clearly described and the application of the legal rules is skillfully based on arguments from precedent and legal principle. The author also discusses the question of the significance of (pure) legal status, detached from the enjoyment of rights and obligations which that status entails in law.

Papers by Lauri Mälksoo

Cambridge University Press eBooks, Nov 4, 2017

In Russia and the European Court of Human Rights: The Strasbourg Effect, Lauri Mälksoo and Wolfga... more In Russia and the European Court of Human Rights: The Strasbourg Effect, Lauri Mälksoo and Wolfgang Benedek bring together fifteen established European lawyers, judges and human rights scholars to explore interactions between Russia and the European Court of Human Rights in the twenty years since Russia ratified the European Convention on Human Rights. Anyone interested in human rights, legal thinking and issues of sovereignty in Russia will welcome the insights found in this valuable, well-researched volume, writes Camille-Renaud Merlen.

Japanese Yearbook of International Law Vol 66, pp 318-227, 2023

The article is based on the Honorable Shigeru Oda lecture which the author held at the Japanese A... more The article is based on the Honorable Shigeru Oda lecture which the author held at the Japanese Association of International Law in September 2022. It discusses Russia's attempts to create regional international law in post-Soviet Eurasia, concerning organizations such as the Eurasian Economic Union and beyond. The article puts current regional designs in Eurasia in historical perspective, including Moscow's earlier regional normative concepts such as 'socialist international law.' The article also examines the reflection of regional normative thinking in recent policy documents such as the Concept of the Foreign Policy of the Russian Federation, adopted on 31 March 2023. One of the conclusions of the article is that Russia's full-scale invasion of Ukraine in 2022 has made regionalism in post-Soviet Eurasia - at least one based on equality of states - more difficult and unpredictable as smaller states in the region have grown wary of Russia's imperialist-hegemonic thinking and practices.

International Legal Materials

The resolution “Territorial Integrity of Ukraine: Defending the Principles of the Charter of the ... more The resolution “Territorial Integrity of Ukraine: Defending the Principles of the Charter of the United Nations” was adopted by the UN General Assembly (UNGA) on October 12, 2022, with 143 UN member states in favor, five against, thirty-five abstentions, and ten not voting. It is another important UNGA resolution on Ukraine, after the UNGA qualified as aggression Russia's invasion of Ukraine since February 24, 2022 in its resolution of 2 March 2022. That resolution had 141 states voting in favor, thus a slight increase in votes supporting Ukraine's rights under international law can be seen in the resolution at issue.

Proceedings of the Annual Meeting (American Society of International Law), 2015

Archiv des Völkerrechts, 2018

On 18 May 2005, the foreign ministers of the Republic of Estonia and the Russian Federation signe... more On 18 May 2005, the foreign ministers of the Republic of Estonia and the Russian Federation signed in Moscow the treaties establishing the mutual State borders at land and at sea. Except slight modifications to the current control line, the treaties essentially establish the current Estonian-Russian control line as the State border. The substance of the treaties had been negotiated during the mid-1990s but their signing had been postponed by the Russian Federation. Russia claimed that it would not sign the border treaties until other contested political issues between the Russian Federation and the Republic of Estonia would be solved in a satisfactory manner. Political analysts have suggested that Moscow's willingness to sign the treaties was enhanced by the accession of the Republic of Estonia to the EU on 1 May 2004. On the one hand, the absence of the border treaties did not become an obstacle for the Estonian acccession to the EU since Esto-

Fla. J. Int'l L., 1998

... for Regional or Minority Languages and the Framework Convention of the Council of Europe for ... more ... for Regional or Minority Languages and the Framework Convention of the Council of Europe for ... protection of the rights of persons belonging to national or ethnic, religious and linguistic ... Thisregime was based on the following elements: special minorities treaties binding Poland ...

The American Journal of International Law, 2012

European Court of Human Rights Grand Chamber judgment on gender discrimination concerning parenta... more European Court of Human Rights Grand Chamber judgment on gender discrimination concerning parental leave for military personnel

... Dr. Mälksoo now works as counselor for the Estonian Legal Chancellor (ombudsman) and as lectu... more ... Dr. Mälksoo now works as counselor for the Estonian Legal Chancellor (ombudsman) and as lecturer of international and European law at ... Euan MacDonald. Recasting the critical challenge to international law in positive terms, this book examines what is left of international law ...

36 Temple International and Comparative Law Journal, 2022

This is a review essay replying to Anne Orford's book 'International Law and the Politics of Hist... more This is a review essay replying to Anne Orford's book 'International Law and the Politics of History' (2021) and it also includes a critical discussion of the book co-edited by Orford, 'Revolutions in International Law: The Legacies of 1917 (2021).

European Journal of International Law

Baltic Yearbook of International Law Online

This article introduces the Baltic Yearbook of International Law volume on the Estonian tradition... more This article introduces the Baltic Yearbook of International Law volume on the Estonian tradition of international law. It interprets the comparative and translational role of the Estonian tradition of international law as a Western borderland physically close to Russia, and thematises this argument through historical examples going back several centuries. Topics discussed include the role of historical figures such as Olaus Hermelin, the 19th century legal positivists in international law, and the founders of the German Ostrecht tradition. The article also examines key Estonian positions in international law such as the role of international law in the UN, international law in cyber conflicts and other issues. One of the conclusions is that international law is an existentially important matter for small States such as Estonia, Latvia and Lithuania.

Japanese Yearbook of International Law, 2018

In this paper, my main argument is that the debate about the role of human rights played an impor... more In this paper, my main argument is that the debate about the role of human rights played an important role in the dissolution of the USSR and in the birth of the new, post-Soviet world in Eastern Europe and Eurasia. As an international human rights treaty, the International Covenant on Civil and Political Rights (ICCPR) did not become the main battle cry of the forces promoting the reform or disintegration of the USSR in a narrower technical sense. This was because Soviet society was not a very legalistic one, knowing relatively little about international human rights, and because the Helsinki Final Act of 1975 became better known and seemed more tangible in terms of political implementation mechanisms. However, human rights as a critical and deconstructive idea played a significant role during the final years of perestroika. The decline of the previous human rights thinking among the Soviet elites preceded the collapse of the Eurasian superpower.

Chinese Journal of International Law, 2021

This article explores the colonialist legacy of the Russian international lawyer F.F. Martens (18... more This article explores the colonialist legacy of the Russian international lawyer F.F. Martens (1845-1909) who is well known to contemporary international lawyers in particular thanks to the Martens Clause. The article highlights Martens’s activities legitimizing the Congo Free State, his publicist activity at the Revue de droit international et de legislation comparée and his quasi-legislative efforts at the Institut de Droit International, all emanating from his strong support to the distinction between civilized and uncivilized peoples in international law during the colonial era. The main argument in the article is that the colonialist part of the legacy of Martens has been downplayed for the purposes of celebratory myths of origin of international (humanitarian) law, but that this part of his legacy deserves to be remembered as well.

Cambridge University Press eBooks, Nov 4, 2017

Japanese Yearbook of International Law Vol 66, pp 318-227, 2023

International Legal Materials

Proceedings of the Annual Meeting (American Society of International Law), 2015

Archiv des Völkerrechts, 2018

Fla. J. Int'l L., 1998

The American Journal of International Law, 2012

36 Temple International and Comparative Law Journal, 2022

European Journal of International Law

Baltic Yearbook of International Law Online

Japanese Yearbook of International Law, 2018

Chinese Journal of International Law, 2021

Oxford Scholarship Online, 2018

In her comparative study on the use of case law in international law textbooks, Anthea Roberts de... more In her comparative study on the use of case law in international law textbooks, Anthea Roberts demonstrates a number of structural differences between textbooks in different countries. This chapter further explores the Russian situation and asks whether Roberts’s comparative findings regarding Russian international law textbooks reflect the dominant approach in Russian international law scholarship, and whether they also reflect a distinct approach in Russian state practice. It then discusses what might explain both Russian scholarly and governmental approaches and, finally, what international lawyers can learn from this practice in the context of comparative international law. Cautiousness about case law and international courts has historically been characteristic of the Russian approach to international law. The main method used in this chapter is a historical one, because only the history of international law and its ideas can teach us how concrete legal-political circumstances ...

How were sources of international law seen at a time before the were 'codified' in the St... more How were sources of international law seen at a time before the were 'codified' in the Statute of the Permanent Court of International Justice in 1920? Was there a struggle between positivist and natural law ideas as often postulated in the literature? The article examines both the theory and practice of international law in the late 19th century and discusses how we ended up with the catalogue of sources of international law as we currently have it in Article 38 of the Statute of the ICJ.

Volume!, 2021

Abstract: This paper examines the content of Part III, Section XIV of the Versailles Peace Treaty... more Abstract: This paper examines the content of Part III, Section XIV of the Versailles Peace Treaty which dealt with Russia and ‘the Russian States', i. e. States that in 1919 were in the process of secession from Russia. The obvious link between the Versailles Peace Treaty and the earlier German-Soviet Brest-Litovsk Treaty of 1918 is illuminated as far as sovereignty in Eastern Europe is concerned. Moreover, the often less discussed nexus between the Versailles Peace Treaty's Section XIV and the German-Soviet Molotov-Ribbentrop Pact's secret protocols of 1939 is examined. If the Versailles Peace Treaty was the anti-Brest-Litovsk Treaty, then the Molotov-Ribbentrop Pact the anti-Versailles Treaty in Eastern Europe. Nevertheless, sovereignty in Eastern Europe as we know it after 1989 and 1991 was to an important extent shaped at Versailles in 1919 which is a continuing legacy of the Versailles Peace Treaty.

Journal of the History of International Law / Revue d’histoire du droit international, 2020

Comparative international law (CIL) is an especially important area of the law when differences i... more Comparative international law (CIL) is an especially important area of the law when differences in interpreting and applying international law are obvious and not marginal; particularly when there is a clear ideological and perhaps also cultural component to different understandings of international law. In these moments, it is necessary that nations viewed as ''others'' when it comes to interpretations of international law be considered powerful enough that their perspectives are worth studying. There was not much CIL in the nineteenth century because at that time, Europe was powerful enough that it could afford to dismiss the major differences it perceived in the rest of the world as not relevant for international law, which it considered exclusively as its own realm. For ages, international law has not just been a language of justice but also, and perhaps more so, power—something that we international lawyers sometimes tend to underestimate. It is in this sense that one can currently see a revival of CIL. The world is much less homogenous and much more conflicts-ridden than was presumed and hoped in the immediate post-Cold War era. At the same time, there is a sense in the west that the world is changing rapidly and that the position of the west in the world order is decreasing economically, demographically, and generally power-wise. This, among other reasons, also triggers the curiosity: what do ''others'' actually think and do, inter alia, in the normative context of international law? When speaking of CIL, I am referring to the study of the reality of international law—both at the level of scholarly doctrine and state practice—in different countries and power centers in the world. Russia has been an important country, perhaps the most important country, in the history of CIL in the twentieth century.

The book review discusses ONUMA Yasuaki's book "International Law in a Transcivilizational World"... more The book review discusses ONUMA Yasuaki's book "International Law in a Transcivilizational World", Cambridge University Press, 2017.