Article by Christopher Osakwe
The modern Soviet law of human rights may not be lawless, but it is immoral. The Soviet legislator refuses to acknowledge natural law as a source of the rights of citizens, yet he tacitly incorporates certain elements of natural law into the laws of the state. The incorporation of natural rights into Soviet positive law, however, is selective and overtly self-serving. Moreover, this incorporation often results in a distortion of the contents of the rights so incorporated. Although the Soviet track record in social, economic, and cultural rights is admirable, the Soviet law of human rights can hardly lay claim to moral leadership in the area of civil and political rights. In more ways than one, the civil and political rights that Soviet law accords its citizens are superfluous. The law grants freedom of speech to those citizens who wish to voice their praise for the government. It also grants freedom of assembly to those who wish to march past and demonstrate their support for Soviet leaders mounted atop Lenin's mausoleum in Red Square. On the other hand, the law deliberately restricts particular human rights that are sorely needed. Freedom of speech intentionally excludes the right to disagree publicly with the policies of the Communist Party. Of what use is free speech if it does not entail the right to differ from the government's views on a given issue?
Even though the apologists of the Soviet constitutional system assert that the promotion of human rights is one of the cornerstones of Marxist-Leninist ideology, despite the claim in Soviet doctrine that the historical mission of the Bolshevik revolution of 1917 was to lay the foundation for the maximum protection of the rights of the individual, and notwithstanding the fact that the Soviet Constitution of 1936 contained an impressive litany of some of the most fundamental rights of man, genuine efforts to protect the human rights of Soviet citizens is a relatively recent phenomenon in Soviet governmental practices. The fact that the bill of rights in the Soviet Constitution of 1936 was adopted just at the height of Stalin's reign of terror lends support to the viewpoint that the Soviet state never for one moment intended to honor the relevant human rights provisions of its own basic law.
A discernable new trend in Soviet human rights law and policy started with the general reforms of Soviet law in 1958. But modern Soviet human rights law did not crystallize until the early 1970's. This new law was designed as a direct response to the wave of dissident movements inside the USSR in the late 1960's. In devising this new law, the Soviet government sought to achieve two interrelated goals: to provide the proper bases for its contemplated counterattack against its dissidents at home and to create the semblance of aligning its laws with the evolving international standards on human rights. Once this new law was put together by Soviet lawmakers, Soviet commentators went to work on a systematic rationalization of the new law. Even though one could, on certain issues, identify an evolving minority viewpoint in Soviet literature on human rights law, nevertheless Soviet doctrine has chiefly provided a theoretical framework for the implementation of pre-ordained governmental policies on human rights.
Modern Soviet law on the protection of human rights is contained not in one single instrument, but in several statutes and sub-legislative acts. The following are among its most basic sources: the USSR Constitution of 1977; the 1958 Fundamental Principles of Criminal Procedure of the USSR and the Union Republics (FPCP); the 1958 Fundamental Principles of Criminal Legislation of the USSR and the Union Republics (FPCL); the criminal codes of the individual union republics; the codes of criminal procedure of the individual union republics; the 1961 Fundamental Principles of Civil Legislation of the USSR and the Union Republics; the civil codes of the individual union republics; and any relevant international agreement to which the USSR is a party. To the extent that the individual provisions of these preeminent sources of Soviet human rights law are not self-executing, the Soviet government has promulgated executive acts to implement them. The latter sub-legislative acts are also to be regarded as binding sources of Soviet law on human rights. Of immediate concern are the provisions of the 1977 USSR Constitution dealing with human rights.
The remaining portions of this article examine the theoretical foundations of the modern Soviet constitutional law of human rights, the substantive contents of the human rights provisions under the 1977 constitution, as well as Soviet governmental practices relating to the protection of human rights. The study will conclude with general observations on the state of human rights in the Soviet Union today.
About the Author
Christopher Osakwe. Eason-Weinmann Professor of Comparative Law, Tulane University; Director, Eason-Weinmann Center for Comparative Law; LL.B. 1966, LL.M. 1967, Ph.D. 1970, Moscow State University; J.S.D. 1974, University of Illinois.
Citation
56 Tul. L. Rev. 249 (1981)