1 Introduction
For some fifty years, the independent Republics of Estonia, Latvia and Lithuania were effectively—it has been argued—incorporated into the USSR. During that period (with the exception of the German occupation from 1941–1944), the Soviet Socialist Republics of Estonia, Latvia and Lithuania operated on the territories of the former independent Baltic States. According to the Soviet view, the independent ‘bourgeois’ Baltic States had become extinct and the new, Baltic Soviet republics their successor States within the USSR. From the point of view of other States, this claim could be supported, if not by the legitimacy of the socialist revolutions taking place—according to Soviet claims—in the Baltic States in 1940, then at least by the lasting effectiveness of Soviet rule in the Baltics.
Indeed, from the point of view of the pure three-elements theory, the realistic basis of which cannot be denied, it would have seemed peculiar to argue after the end of World War II that the Baltic republics continued to exist as subjects of international law. With Soviet rule in Estonia, Latvia and Lithuania, the independent ‘bourgeois’ Baltic States clearly no longer existed. Therefore, it is no surprise that several highly respected voices in the legal literature accepted the extinction of the Baltic States as a fait accompli.1 However,
The Baltic republics have based their claims of State continuity primarily on the illegality of the Soviet annexation. In different forms, this proposition has been contested by Soviet and later Russian diplomacy and doubted by some Western scholars. Therefore, we need to examine carefully the legal aspects of the events that occurred in the Baltic States in 1939/1940. The problem of the (il)legality of the Soviet annexation lies at the heart of the debate over the legal status of the Baltic republics.
2 The Illegality of Soviet Annexation
a The Soviet Occupation and Annexation of the Baltic States in 1940: Facts
The story of the annexation of the Baltic republics by the Soviet Union in 1940 has been told repeatedly in various studies of law and history.2 In particular, later researchers of the legal aspects of the Baltic question have relied on the findings in Krystyna Marek’s and Boris Meissner’s classic studies.3 Even earlier, in 1949, a legal scholar from Lithuania, Juozas Repečka, submitted an interesting thesis with a substantive historical part on this matter.4 It is unnecessary to repeat here in detail the facts and arguments presented in earlier works. However, historians have recently revealed documents that further complement the picture of the policies pursued by the Soviet government in the Baltic States in 1939/1940.
After Poland’s independence had been liquidated by Nazi Germany and the Soviet Union, the diplomatic representatives of the Baltic States and Finland were quickly and separately called to Moscow where the Soviet leaders demanded the stationing of military bases on their territories.7 Regarding the atmosphere awaiting the Estonian foreign minister in Moscow, the Estonian ambassador A. Rei gave the following testimony: ‘[The Soviet foreign minister] Molotov repeatedly used the expressions ‘I beg you not to compel the Soviet Government to use other, more radical methods of safeguarding its security’ and ‘if the Estonian Government fails to accept the Soviet proposal, then the USSR will achieve the aims mentioned in the Security Pact by resorting to different means.’ Especially in view of the situation which had been created before that
In 1939, the governments of the Baltic republics yielded to Soviet demands and concluded Treaties of Mutual Assistance with the USSR.9 Under the Soviet guarantee that the military bases would be established only for the duration of the war and that the sovereignty of the Baltic States would definitely be respected (Art. V of the Pacts), a Soviet military contingent was dispatched to the territories of the Baltic States (25 000 soldiers in Estonia, 30 000 in Latvia and 20 000 in Lithuania).
The government of Finland rejected similar Soviet demands for military bases. As a consequence, the USSR attacked Finland on December 1, 1939, initiating the so-called Soviet-Finnish Winter War that ended with Finland’s loss of a part of its territory, as sealed by the Soviet-Finnish Peace Treaty of March 13, 1940. Nevertheless, at least Finland’s independence remained intact. Because of its aggression against Finland, the Soviet Union was expelled from the League of Nations on December 14, 1939.10
For half a year, it seemed that the Soviet leadership, having acquired military bases on the territories of the Baltic States for the duration of the war in Europe, had found a certain modus vivendi with the independence of those States. The Baltic governments adhered to the rules of neutrality in the Soviet conflict with Finland.
On June 14 and 16, 1940, coinciding with the fall of Paris to German occupation forces, the Soviet government presented the Estonian, Latvian and Lithuanian governments with ultimatums demanding total military occupation of the Baltic States and the creation of new ‘Soviet-friendly’ governments.11 The ultimatums were presented together with warnings that military resistance would be supressed. Handing over the ultimatum in Moscow, the Soviet People’s Commissar of Foreign Affairs Molotov said to the Lithuanian Foreign Minister Juozas Urbšys: ‘Irrespective of your answer, our troops will anyhow enter Lithuania tomorrow.’12 With the Soviet army already in their territories,
Since the Baltic Governments had yielded to Soviet demands, no military conflict occurred when the Baltic republics were occupied by the Soviet army on June 15–17, 1940. However, the Soviet ultimatum to Estonia was preceded by the Red Army’s occupation of Naissaar, an island allowing control of sea access to the Estonian capital, Tallinn.15 Moreover, in order to guarantee acceptance of Moscow’s ultimatums, the Soviet navy had established a blockade along the coast of the Baltic Sea on June 14, 1940. (See Appendices)
Probably the first victims of Soviet repression in the Baltic States were crew members working for the President of Estonia who were travelling by sea from Tallinn, the capital of Estonia, to the President’s summer residence in Toila on June 15–16, 1940. The crew was arrested by the Soviet navy, transported to Leningrad by the Soviets, and later put on trial for ‘betrayal of the homeland.’16 Moreover, on June 14, 1940, during the Soviet military blockade, a Finnish civil airplane (‘Kaleva’) flying from Tallinn to the nearby Finnish capital, Helsinki, was shot down by the Soviet army.
Subsequent to the occupation of the Baltic republics by the Soviet army, Stalin sent his emissaries Andrei Zhdanov, Andrei Vyshinski and Vladimir Dekanozov to direct the Soviet takeover in Estonia, Latvia and Lithuania. The lists of new governments were presented by the Soviet embassies in Tallinn, Riga and Kaunas to the Presidents of the Baltic States.17 Even after the Baltic States were occupied by the Red Army, the Latvian and Estonian Presidents, who now found themselves under house arrest, were assured that the structure of government and the independence of the Baltic States would remain intact.18 The President of Lithuania, Antanas Smetona, who had wanted the
The new Baltic governments immediately announced parliamentary elections for July 1940. The following events were staged not without theatrical flair, and demonstrate how much importance the Soviet leadership attributed to the democratic simulacrum. The 1940 parliamentary elections played a major role in Soviet attempts to legitimize the sovietization of the Baltic republics, since the Soviets insisted upon the will of the people(s). However, initial violations of this will occurred when workers’ demonstrations had been organized in the capitals of the Baltic States: the demonstrators were accompanied by Soviet tanks, and many demonstrators were imported from Soviet Russia.
Similar violations of the principle of legality occurred in connection with the parliamentary elections of July 1940. The elections turned out to be a farce, not only because they were meticulously guarded by the Soviet Army: the dates foreseen in the Baltic election laws were ignored, the candidates of the democratic opposition were prohibited from running, while the election results could not be confirmed in any transparent manner. The second chamber of the Estonian parliament was even not convened, and so on.
There was no mention at all of the change of the State system in the election platforms of the officially winning ‘lists of the working people.’ On the contrary, the official programmes of the ‘lists of the working people’ confirmed that the lists ‘stand for friendly relations between the independent Baltic States and the mighty USSR’ (italics added).19 The results of the elections were announced by the official Soviet news agency TASS twelve hours in advance of the closing of the polls.20 According to Henry Kissinger, not quite 20 percent of the population participated in what he calls Soviet sham elections.21
Unsurprisingly, the Supreme Council of the Soviet Union promptly satisfied the petitions for incorporation. On August 3, 1940, the Lithuanian SSR was admitted to the Soviet Union. Similar decisions were taken with respect to the Latvian SSR on August 5, 1940, and the Estonian SSR on August 6, 1940. Even before the formal incorporation of the Baltic States into the USSR, the Presidents and Commanders-in-Chief of the Republics of Estonia and Latvia had been deported to Soviet Russia.25
In 1940, the three Baltic States—the Republics of Estonia, Latvia, and Lithuania—ceased to exist as independent States. But what role, from the point of view of international law, was played by the manner in which their independence had been erased?
b Soviet Occupation and Annexation of the Baltic States: Applicable Law
…a juridical fact must be appreciated in the light of the law contemporary with it, and not of the law in force when a dispute arises regarding that fact.27
The same principle which subjects the act creative of a right to the law in force at the time the right arises, demands that the existence of the right, in other words its continued manifestations, shall follow the conditions required by the evolution of law.28
…the Court must place itself at the point in time when the mandate system was being instituted… the Court must have regard to the situation as it was that time…30
The Court must take into consideration the changes which have occurred in the supervening half-century, and its interpretation cannot remain unaffected by the subsequent development of law.31
The applicable law, especially the treaties in force between the Baltic States and the Soviet Union, was twofold: of a general and of a particular character. Importantly, in terms of protection the norms prescribed by specific international agreements in force between the respective countries surpassed the generally applicable treaties of the time.
Since the Soviet Union had been expelled from the League of Nations in December 1939, the League of Nations Covenant, especially Article 10, no longer formally bound the Soviet government by 1940.32 With Article 10 of the Covenant, the League of Nations undertook to respect and preserve as against external aggression the territorial integrity and existing political independence of all Members.33 However, Article 10 of the League of Nations Covenant still bound the Soviet Union when it concluded the Nazi-Soviet Non-Aggression Pact with its secret protocols.34 The secret protocols of the Hitler-Stalin Pact of 1939 thus undoubtedly violated the League Covenant.
With adoption of the Kellogg-Briand Pact in 1928 in which States banned war as an instrument of national policy, the prohibition of aggressive wars became a part of general international law.35 However, it can still be debated whether the threat of military force was equally prohibited in general international law before such a prohibition was explicitly expressed in the Charter
On the basis of the right of all peoples freely to decide their own destinies, and even to separate themselves completely from the State of which they form a part, a right proclaimed by the Federal Socialist Republic of Soviet Russia, Russia unreservedly recognizes the independence and autonomy of the State of Estonia, and renounces voluntarily and for ever all rights of sovereignty formery held by Russia over the Estonian people and territory by virtue of
the former legal situation, and by virtue of international treaties, which, in respect of such rights, shall henceforth lose their force. No obligation towards Russia devolves upon the Estonian people and territory from the fact that Estonia was formerly part of Russia.41
The Soviet peace treaties with Latvia and Lithuania used, mutatis mutandis, similar language.42 Therefore, with the Peace Treaties signed and ratified by Soviet Russia and the Baltic States in 1920, the legally binding force of the principle of self-determination of peoples was recognized in the form of specific international law.43
Furthermore, Estonia, Latvia, Poland, Romania and the USSR had on February 9, 1929 signed in Moscow a Protocol, intiated by the Soviet Peoples Comissar of Foreign Affairs Maksim Litvinov, and therefore called the Litvinov Protocol.44 Under this Protocol, the Kellogg-Briand Pact, renouncing war as an instrument of national policy, was brought into effect between the signatories even before it entered into force for the original contracting parties. Lithuania signed the Litvinov Protocol on April 5, 1929.
Each of the High Contracting Parties guarantees to the other Party the inviolability of the existing frontiers between them, as defined by the Peace Treaty signed on August 11, 1920, and undertakes to refrain from any act of aggression or any violent measures directed against the integrity and inviolability of the territory or against the political independence of the other Contracting Party, whether such act of aggression or such violent measures are undertaken separately or in conjunction with other Powers, with or without a declaration of war.
The Soviet non-aggression pacts with Estonia and Lithuania contained identical provisions. The non-aggression pacts with Estonia and Latvia were supplemented by arbitration agreements dated June 16, 1932, and June 18, 1932, respectively.49 These arbitration agreements supplemented the provisions of the non-aggression treaties (see for example Article 4 of the Soviet-Estonian Treaty of Non-aggression) in which the Parties undertook to submit all disputes between them ‘to a procedure of conciliation in a mixed Conciliation Commission.’
There was one more remarkable treaty in force between the Soviet Union and the Baltic States. On the initiative of the USSR, Estonia, Latvia, Poland, Turkey, Iran and Afghanistan and the USSR signed the Convention on the Definition of Aggression50 in London, on July 3, 1933. The terms of the Convention were later extended to Lithuania under a special treaty between the Soviet Union and Lithuania.51
The contracting parties undertook to accept in their relations with each other the definition of aggression that was framed by the Committee on Security Questions of the Conference for the Reduction and Limitation of Armaments, ‘following on the Soviet delegation’s proposal’ (so Article 1 of the Convention).52
Accordingly, the aggressor in an international conflict shall, subject to the agreements in force between the parties to the dispute, be considered to be that State which is the first to commit any of the following actions:
Declaration of war upon another State;
Invasion by its armed forces, with or without a declaration of war, of the territory of another State;
Attack by its land, naval or air forces, with or without a declaration of war, on the territory, vessels or aircraft of another State;
Naval blockade of the coasts or ports of another State;
Provisions of support to armed bands formed in its territory which have invaded the territory of another State, or refusal, notwithstanding the request of the invaded State, to take in its own territory all the measures in its power to deprive those bands of all assistance or protection.
No political, military, economic or other considerations may serve as an excuse or justification for the aggression referred to in Article 2.
In sum, it can be submitted that the international treaties binding the Soviet Union and the Baltic States prohibited any aggression or violent measures against any of the contracting States. Furthermore, and without precedent for the time under consideration, the definition of aggression was agreed upon in a legally binding manner.
c Legal Evaluation of Soviet Policy against the Baltic States in 1939/1940
Threats of use of force against the Baltic republics were first employed by the Soviet government in autumn 1939, soon after the Hitler-Stalin Pact with its secret protocols was concluded.53 Acting under duress, the governments of the
Boris Meissner has opposed this argument. According to him, the mutual assistance treaties between the Baltic States and the Soviet Union, although concluded under duress and even in violation of the Soviet-Baltic Non-aggression Pacts, were not automatically null and void.55 In any case, it was specifically stressed in those treaties and during negotiations leading to the treaties that the sovereignty of the Baltic republics remained untouched. It seems to the present author that Meissner’s argument is legally sound. Notwithstanding duress, the Baltic governments accepted the conditions of the mutual assistance treaties, and those treaties were implemented in practice for more than half a year. Moreover, with an emphasis on practice related to the conclusion of peace treaties in 1919, it was the prevailing legal opinion at the time that coerced treaties were not automatically legally void.56
However, the Soviet ultimatums of June 1940 were clearly presented along with threats of military force.57 It is evident that such threats attacked the very spirit and essence of all major treaties then in force between the Soviet Union and the Baltic States, including the 1939 Soviet-Baltic agreements. By issuing those threats, the Soviet Union violated its obligations under the non-aggression treaties it had concluded with the Baltic republics. We may gratia
Moreover, even if the issue of the (il)legality of the threat of use of force in general international law, as it was in force in 1940, may remain in some aspects disputable, at the same time the Soviet military blockade in June 1940 merits unequivocal legal qualification. As a matter of fact, this qualification can best be undertaken by the method suggested in 1933 by the Soviet People’s Commissar of Foreign Affairs, Maksim Litvinov. In connection with the Soviet definition of aggression at the League of Nations, Litvinov presented the Soviet view on how to determine who is an aggressor. To do so, first of all the facts need to be determined, and second, a definition applied to the established facts. The aggressor in an international conflict is the State that first commits any of the five precisely defined actions that the Soviet government suggested for adoption by the League of Nations.59
As is known, the States represented at the League of Nations did not conclude any general treaty defining aggression.60 However, under the Soviet initiative such a legally binding definition of aggression was adopted in London in 1933 between the USSR and the States of the so-called cordon sanitaire. According to this treaty (see supra), direct military attack, meeting resistance, was but one, although of course the most important form of aggression (See subpoint 3 in the Treaty: aggression as an attack by land, naval and air forces’).
Repečka61 and Meissner62 have argued that the occupation of Estonia, Latvia and Lithuania by the Red Army in June 1940 violated inter alia subpoint 3 of the treaty (aggression as ‘invasion by armed forces, with or without a declaration of war, of the territory of another State’), making the
The relevant treaties do not explicitly distinguish between true consent and ‘acceptance’ achieved by military force (when acceptance of an ultimatum, as in the Baltic case, can be qualified as consent at all63).
Among other acts of aggression such as the naval blockade of coasts and ports of other States was listed in the Convention on the Definition of Aggression. As shown above and in the Appendices, the evidence is indisputable that precisely such a military blockade was undertaken by the Soviet Union against the Baltic States in June 1940. Without confronting military resistance, the Soviet army had overrun certain parts of some of the Baltic republics, for example the island of Naissaar in Estonia, before Moscow’s ultimatums were accepted by the Baltic governments. Therefore, the Soviet occupation of the independent Baltic republics qualifies as an act of aggression.64
Moreover, Soviet policy was at variance with the right of the Estonian, Latvian and Lithuanian peoples to self-determination—a right recognized by Soviet Russia in its Peace Treaties with the Baltic States, and therefore constituting part of regional international law.65
The decision of the Baltic governments to yield to the Soviet ultimatums in 1940 does not accord legality to the Soviet occupation of those States. However, what has made the waters somewhat murkier is the fact that the governments of the Baltic republics66 did not protest in public against Soviet
Even leaving gratia argumentandi aside, the aspect of the intimidating conditions in which the Soviet ultimatums in June 1940 were presented, even the formal acquiescence of the individual Baltic leaders (or absence of public protest) could not have accorded legality to the abrupt political changes undertaken during the first two months of Soviet occupation. The authority of the Baltic presidents was constitutionally limited, and even their own genuine approval of political changes under Soviet rule could not have legalized gradual handing over of sovereignty.68
Moreover, the genuineness of the presidents’ acquiescence must be seriously doubted. In Estonia, for instance, President Päts initially refused to nominate the new cabinet selected by the Soviet embassy. He yielded to the demands only when a demonstration of Soviet-friendly workers (partly from Estonia, partly ‘imported’ from the USSR), supported by the Soviet military, encircled the Presidential Palace in Tallinn on June 21, 1940.69 It is clear that, once the Baltic States were subjugated under Soviet occupation, nothing comparable to what was actually undertaken could—whether from the constitutional or the international law point of view—accord legality to the steps already undertaken under the guidance of the Soviet authorities.70
In terms of international law concerning State responsibility, there are no grounds in the Baltic case for speaking of valid consent or any other circumstance precluding wrongfulness. Consent must be valid; consent given under the threat of invasion is ineffective to preclude the wrongfulness of the military
A certain legitimizer of the changes undertaken by the Soviet government would have been genuine communist revolutions in the Baltic States. In Riga, Kaunas and Tallinn, demonstrations by workers were organized under the protection and direct participation of the Red Army. Historical research, especially the memoirs of the participants, confirm that these demonstrations—in Marek’s characterization a typical ‘fake revolution’73—were orchestrated by Moscow. There was hardly any evidence of a ‘revolutionary situation’ in the Baltic States. The underground Communist Party of Estonia, for instance, numbered 133 members in 1940 (Estonia’s population being 1.5 million). In Lithuania, according to the official Soviet data, the Communist Party numbered 1500 members (0.05 % of the Lithuanian population) on February 25, 1941 (or roughly half a year after the beginning of the Soviet occupation and annexation).74
Nevertheless, the Soviet occupation of the Baltic republics in June 1940 has not always been qualified as an ‘act of aggression’ in Western legal scholarship.75 Sometimes, cautious and ambiguos euphemisms such as ‘incorporation’ or ‘absorption’ are used to refer to the Soviet ‘takeover.’ This may partly be due to the mistaken belief that the Baltic leaders formally ‘consented’ to occupation and to the nomination of new governments, as dictated by Moscow. When the Baltic States had been annexed, there were initially no governments in exile left to protest Soviet policy, so that the remark by Krylov about the 1933 Convention on the Definition of Aggression (‘none of these conventions were invoked during the events leading up to World War II’)76 was technically speaking almost as true as it was cynical.
While it was unproblematic to define most of Germany’s conquests—for example against Poland or against the Soviet Union—as crimes against peace at Nuremberg, other borderline cases proved to be legally more challenging. Germany had seized some independent States—Austria, Czechoslovakia, and Denmark—without the outbreak of hostilities by using the threat of military force. Thus, Czechoslovakia’s President Emil Hácha finally yielded to German demands to let the Wehrmacht march in after Hermann Göring threatened to have the German Luftwaffe bomb Prague. Before Czechoslovakia was seized, Austria was annexed by Germany in March 1938 without a military conflict, after Austrian Chancellor Kurt von Schuschnigg had yielded to German threats and nominated the local Nazi leader as prime minister. The case of Denmark’s occupation again reveals slight differences—Denmark surrendered without military resistance (although some Danish units offered resistance during the first hours of the German invasion.) However, the Danish King Christian forbade resistance to the German army’s invasion only after it had already started.77
According to the classic understanding of international law, Germany’s seizure of Austria, Czechoslovakia, and Denmark did not amount to ‘war.’ There was neither ‘military conflict’, nor a ‘state of war’78 in those cases. In terms of the classic dichotomy of belligerent versus pacific occupation, those actions should technically have been qualified as pacific occupations.79
The rationale for such legal findings is easily understandable: in all these cases, a war would have been waged against these countries if their cooperation had not been assured by threats and intimidation.83 An armed reaction would have been unavoidabe for the attacked State if its independence or the integrity of its territory were to be preserved against the aggressor.84 Therefore, as C.A. Pompe has explained, for the Nuremberg Tribunal this intimidation had the same effect as a war or use of force on a war footing.85 To conclude, the practice of Nuremberg demonstrated that during World War II crimes against peace could be committed without the outbreak of actual hostilities.86
There are no reasons to treat the analogous actions of the Soviet Union in 1940 in a different way. If we took an opposite view, we would deny the legal nature of international law. Under any system of law it is impossible to qualify analogous acts made under the same circumstances differently, i.e. we can not treat an action made by one state as an international crime and the same action made by another state as a legitimate act.87
In light of the foregoing, the following conclusions can be drawn. In June 1940, the Soviet Union committed acts of aggression against the Baltic States. Air and naval blockades were established by the Soviet army but hostilities with the Baltic armies did not break out. Thus, technically, no state of war was established between the USSR and the Baltic republics. However, in essence, the occupation of the Baltic republics by the Red Army was closer to military than to peaceful occupation. It represents a borderline case between the two, which the Austrian international lawyer Alfred Verdross might have called quasi-belligerent occupation (occupatio quasi-bellica), and which still legally bound the occupier to the 1907 Hague Regulations.88
The special feature of the Soviet occupation of the Baltic States is that at no time did the occupying power publicly recognize that it was merely an occupying power. Instead, the government of the USSR persistently argued that the (already Sovietized) Baltic republics joined the Soviet Union in August 1940 of their own will. As demonstrated above, and in many other works preceding the present study, this statement was simply false. The incorporation of Estonia, Latvia and Lithuania into the Soviet Union in August 1940, after the occupation of these States in June 1940, was not a voluntary act, but has been correctly qualified as forcible seizure of territory, in other words annexation. Moreover, as we will see next and beyond the specific Baltic case, the legal views expressed in Soviet literature speak strongly against the legality of forcible annexation per se.
d The Illegality of Annexation in International Law: Soviet Views
Under the annexation or forcible seizure of foreign countries the government understands, according to the legal consciousness of democracy generally and of the working class especially, every unification of a small and weak people with a large and strong State, without the exact, clear and voluntarily expressed wish or consent of this people, regardless of how developed or backward the nation might be that is unified violently or held within the boundaries of the existing State, and notwithstanding whether the nation is situated in Europe or in distant transoceanic countries.91
The logical consequence of the Soviet concept of annexation was that the decisive criterion for the legality of territorial change was the will of the affected people. In a way, this concept enabled according legality to annexations undertaken against a State (government) but were supported by the affected population.92 The assumption of Marxist-Leninist doctrine was that as the majority of the population was always made up of the working people, they would, based on their own class interests, eventually support the Soviet system of government. Maybe they only needed a push or ‘awakening’ from outside, especially considering that the bourgeois class would be suppressing the workers and the expression of their free will.
Conquest and enslavement run completely counter to the norms of contemporary international law. The basis of conquest, such as the basis of subjugation, is the use of naked force. It follows that conquest and subjugation are not compatible with the free self-determination of the population. Also, they are incompatible with the principles of the territorial integrity and inviolability of state territory… In the whole range of official international acts (…) legal force is denied to territorial conquest achieved under the threat of war or as a consequence of subjugation by armed force. In particular, the peace treaties of the year 1947 that ended World War II, annulled the territorial changes accomplished by the Axis powers.95
e The Illegality of Soviet Annexation: General Conclusions
On the basis of the analysis conducted above, this author concludes that the Soviet annexation of the Baltic States in 1940 was an illegal act under international law. It violated at least two fundamental international legal norms that bound the USSR and the Baltic States in their inter-State relations: prohibition of the use of force and the right of peoples to self-determination. Illegality of the use of force does implies the illegality of the annexations.
However, in the case of the Baltic republics, the situation created by illegal acts lasted for half a century. It must therefore be asked whether the illegality of the annexation was by some means cured during this long period.
3 Prescription and Soviet Rule in the Illegally Annexed Baltic States
a The Concept of Prescription in International Law
It has been widely disputed in the international legal literature whether the institute of prescription—found in virtually all domestic legal systems—exists in the field of the law of nations. To what extent can a lapse of time cure an initially illegal act, for example create title to a territory acquired by use of force? At what point in time does international law recognize die normative Kraft des Faktischen (the normative force of the factual)96 and legalize a fait accompli?97
Early writers on international law, for example Hugo Grotius,98 Christian Wolff, and Emer de Vattel,99 but also early Anglo-Saxon doctrine, recognized the institute of prescription under certain preconditions.100 However, Johan Jacob Moser regretted that although a legal docrine of prescription would be vital for peace and security, international law offered no guidance regarding
Nevertheless, after the entry into force of the UN Charter and its clear prohibition of the threat and use of force in 1945, voices rejecting the institute of acquisitive prescription have increased.105 A part of legal doctrine still upholds the view that acquisitive prescription is a general legal principle still recognized by the international legal system.106 It has, however, become extremely doubtful whether prescription of an illegally seized territory still can take place under the UN Charter regime once droit de conquête (right of conquest) had been abolished in international law.107 However, it is fair to proceed from the proposition that since the Baltic States were annexed in 1940, that is, some years before the entry into force of the UN Charter, the institute of prescription could in principle have played a certain role in the process of judging the Baltic situation.
It has been debated in the legal literature whether a lapse of time has an independent motive force in favour of prescription.108 When a hundred years have passed, does the situation consolidate objectively due to the long period involved, or only because of the weight the States attribute to the time factor? In the annexed Baltic States, Soviet rule lasted almost fifty years, in itself a quite long time.
Joe Verhoeven points out an important difference between the case of the Iraqi occupation of Kuwait in 1990 and that of the Baltic States (1940–1991), namely the time factor. Kuwait was occupied for six months, the Baltic States for fifty years.109 For Charles de Visscher, the lapse of time itself was a factor pointing in favour of prescription.110 Several other authors have included the time factor in discussion, arguing that the extinction of a given State takes place when there is no reasonable chance of the independence of the State being restored.111 By inter alia using that argument, Doehring explained the continued existence of the German State after World War II and the case of Austria, annexed by Germany.112 Another German international law scholar, Georg Dahm argued that protests and formal non-recognition could not prevent prescription from taking place; rather the source of the prescription was the normative Kraft des Faktischen itself.113
We have to reckon not only with the question of whether any struggle between the aggressor and his victim has come to an end, but also—should that have occurred for the time being—whether there are any chances of the struggle being renewed, and likewise we have to reckon with other circumstances which may bring about a chance in the situation created by aggressive acts of violence.115
It is highly doubtful whether the time factor can be attributed an independent objective role in modern international law when deciding about State extinction or continuity in cases of illegal annexation. The body of contemporary international law includes a norm prohibiting recognition of illegal annexations; the time factor would make the legal personality of illegally annexed States dependent on whether liberation can succeed quickly and efficiently or not. Although based on the effectiveness principle, this would be an arbitrary criterion and raise the question what kind of law international law is. In this sense, the illegality of occupation may hardly be overturned by the lapse of time.
ii Criteria for Prescription Analysis
The British international law scholar Sir Hersch Lauterpacht’s concept of prescription can here serve as a further basis for analysis. Lauterpacht defined prescription as the acquisition of sovereignty over a territory through continuous and undisturbed exercise of sovereignty over it during such a period as is necessary to create under the influence of historical development the general conviction that the present condition of things is in conformity with international order.116 Lauterpacht supported the institution of prescription in international law, and saw its rational basis—just as in domestic law—in considerations of stability and order.117 He stressed that no general rule can be fixed as regards the length of time and other circumstances which are necessary to create a title by prescription: everything depends upon the individual case.118 However, he took the view that ‘[a]s long as other States keep up protests and claims, the actual exercise of sovereignty is not undisturbed, nor is there the required general
As repeatedly highlighted in legal doctrine, there is no established time limit for prescription.120 In the legal literature, prescription with respect to conquered territory has been denied for even longer periods than half a century. For instance, the Polish scholar Piotr Laski has argued that no prescription took place in Poland under partition (1795–1919), inter alia due to the numerous Polish uprisings.121 Therefore, even fifty years over the 20th century cannot by themselves serve as a conclusive argument in favour of prescription.
Laski seems to summarize the arguments presented in legal doctrine when he contends that prescription can be confirmed only when the situation has stabilized with finality. The stability necessary for prescripton can be disturbed by either a previous sovereign, by the international community acting in solidarity, and, last but not least, by the population of the territory concerned, ‘whose resistance brings on the use of power, to mean at the same time, that the exercising of sovereign rights ceased to be peaceful.’122
We may, therefore, distinguish three important elements in prescription analysis: the position of the ousted sovereign (government in exile), the views held by third States, and the attitudes of the subjugated people. It therefore becomes necessary to analyze whether these elements support the legal continuity or extinction of the Baltic republics during the period of Soviet annexation. Of these, one of the most visible roles, from the standpoint of international law, was played by the opinion of third States in the framework of non-recognition policy.
b Non-Recognition of the Soviet Annexation of the Baltic States: Law and Politics
i Non-recognition in History
Non-recognition is a doctrine that has historically been employed for achieving primarily political purposes. European monarchies and the USA, for
ii The Stimson Doctrine
The doctrine of non-recognition of annexation following the illegal use of force was first time employed quite soon after adoption of the Kellogg-Briand Pact in 1928.126 However, its application in State practice was not initially uniform and consistent.127 The annexation of the Baltic States initiated one of the very first cases in which—notwithstanding all the facts and realities—the legality of annexation was continuously denied by an influential part of the international community, the political West.
and that it (i.e. the US government) does not intend to recognize any situation, treaty or agreement which may be brought about by means
contrary to the covenants and obligations of the Pact of Paris of August 27, 1928, to which treaty both China and Japan, as well as the United States, are parties.129
…it is incumbent upon the Members of the League of Nations not to recognize any situation, treaty or agreement which may be brought about by means contrary to the Covenant of the League of Nations or to the Pact of Paris.131
It has been discussed in the literature whether the League of Nations Assembly Resolution of March 11, 1932—together with Article 10 of the League Covenant—already created a legal duty of non-recognition.132 While some scholars have argued that it did, at least for those States that voted for the resolution—others have denied those legal effects to that resolution, that is, technically a legally non-binding instrument, not a treaty. Especially problematic is the legal evaluation of State practice in the late-1930s—almost all States, including the
Robert Langer concludes that the issue remains somewhat doubtful.134 However, even though non-recognition did not become a legally binding rule or duty in 1932, the positions of the States played a significant role in the consolidation and later conversion of the political doctrine into a legally binding one, up to the point of opinio iuris.
Since the origins of the Soviet State, it has proclaimed as an essential principle of its policy the right of all peoples to self determination in conditions of freedom to manifest their desires and in the absence of all external pressure; it has pronounced in the most decisive fashion against annexations and exactions as a result of military conquest or occupation by violence. These principles logically lead to absolute respect for the territorial integrity and for the political, social, economic and administrative independence of all States, to the inadmissibility of the settlement of international conflicts by any non-pacific means, and in the clearest possible manner to the obligation to respect strictly the international agreements which embody these principles…’135
iii Non-Recognition of the Soviet Annexation in the Baltic Case
State practice was not completely uniform in the case of the annexation of the Baltic States.136 Since thorough studies on the diplomatic history of
In terms of their position on the annexation of the Baltic republics, States can be divided into four groups. The basis for this classification is the distinction between recognitions de facto and de iure. Although such a distinction has been held by some authors as ‘inadmissible in international law,’139 it was indeed employed by several influential States in the Baltic case.
As for the first group, some Western countries, most influentially the USA, accorded neither de iure nor de facto recognition to the Soviet annexation of the Baltic States.140 As a corollary of US non-recognition policies, the Baltic legations in the USA continued to work and function during the five decades of Soviet rule. Throughout the years of Soviet rule in the Baltic republics, the USA
Non-recognition of Soviet conquest was particularly emphasized by the Reagan administration at the height of the Cold War, when Baltic Freedom Day was officially introduced in the USA in 1982. June 14, the anniversary of the first Soviet mass deportation in the Baltic States and other Soviet-annexed eastern European territories in 1941, was chosen for Baltic Freedom Day. On July 26, 1983, on the occasion of the 61st anniversary of the de iure recognition of the three Baltic republics, the US ambassador to the UN, Jeane J. Kirkpatrick, presented the UN General Secretary with a declaration of continued non-recognition of Soviet rule in the Baltic republics.143
The Vatican and Ireland also never recognized the incorporation of Estonia, Latvia and Lithuania into the Soviet Union either de iure or de facto.
France has not recognized the annexation of the states of Latvia, Estonia and Lithuania by the USSR in 1940. Since then, it has not extended any recognition, either expressly or tacitly. This attitude was confirmed in 1975, at the time of the signing of the Helsinki Final Act by the President of the Republic, when he indicated that ‘in the view of France, the texts signed [at the time] do not imply the recognition of situations, which it would not have recognized otherwise.150
Non-recognition on European soil was also expressed by a few collective declarations, most notably those adopted by the Consultative Assembly of the Council of Europe. Resolution 189 (1960) on the situation in the Baltic States on
The Assembly,
On the twentieth anniversary of the occupation and forcible incorporation into the Soviet Union of the three European States of Estonia, Latvia and Lithuania,
Notes that this illegal annexation took place without any genuine reference to the wishes of the people;
Expresses sympathy with the sufferings of the Baltic peoples and assures them that they are not forgotten by their fellow Europeans;
Is confident that Communist oppression will not succeed in crushing their spirit and faith in freedom and democracy;
Notes that the independent existence of the Baltic States is still recognized de jure by a great majority of the Governments of the nations of the free world;
Urges member Governments to support appropriate efforts of Baltic refugees to maintain their natural culture traditions and languages, in anticipation of the time when Estonia, Latvia and Lithuania will be able to play their part as free nations in our democratic international institutions.151
A third group of States recognized the Baltic republics as part of the Soviet Union. Nearby Sweden, although it showed much generosity by accepting many Baltic refugees in 1944, was one of the first Western countries to extend its de iure recognition to Soviet rule in Estonia, Latvia and Lithuania. During World War II, the Netherlands established diplomatic relations with the Soviet Union, and as they did not make any reservations about the Soviet western border, this arguably also amounted to a de iure recognition of the incorporation of the Baltic States. Some European nations changed their policies over time. Under General Franco, Spain did not recognize the annexation of the Baltic States either de jure or de facto and allowed the Baltic legations to be maintained in Madrid. For example, the Estonian diplomat Kaarel Robert Pusta, who had for a time before 1940 been the Estonian Minister of Foreign Affairs and permanent representative at the League of Nations, represented his country until his death in 1964, mainly living in Madrid but covering both Spain and France as a diplomat.152 However, soon after the death of Franco, Spain implicitly recognized the annexation of the Baltic States in 1977 when
The fourth group of States was eloquently silent on the matter. Thus, for example, one of the closest neighbours of the Baltic States, Finland, managed never to make any formal pronouncement on the issue during Soviet rule in the Baltic States. This enabled Finland to formally restore diplomatic relations with the Baltic States rather than recognize these States anew in 1991. Nevertheless, for most practical purposes, Finnish recognition of Soviet incorporation of the Baltic States, if not explicit, can be said to have been implicit. The visit by Finnish President Urho Kaleva Kekkonen to Soviet Estonia in March 1964, can be understood as tacit Finnish recognition of Soviet rule in Estonia—even though Finland emphasized that Kekkonen’s visit was ‘unofficial.’ Recognition of the Soviet annexation was also implied by the Shah of Iran’s visit in 1974, and by that of India’s prime minister in 1981 to the Estonian SSR155 during their State visits to the USSR.
Of the UN member States, many were born after World War II and especially in the process of decolonization. States created after Soviet annexation of the Baltic States in 1940, and therefore never having had relations with the pre-World War II Baltic States, usually did not have to take an explicit position on this matter.
iv The Legal Duty of Non-Recognition of Illegal Annexations since 1970
Coinciding with the prolonged Soviet annexation of the Baltic States were several important developments in international law, partly also inspired by the experience of the international community in the Baltic case. What started as the Stimson doctrine in the USA in 1932 was soon to develop into a general policy of non-recognition of illegal territorial changes in international law and became accepted by many States both as politically inevitable and legally binding. Article 11 of the UN draft resolution on the rights and duties of States, as adopted by the ILC in 1949, stated the duty of non-recognition: ‘Every State has the duty to refrain from recognizing any territorial acquisition by another State acting in violation of [Art. 9 prohibiting aggression]’156 However, due to
The UN General Assembly emphasized the duty of non-recognition in 1970. The UN Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations of October 24, 1970,157 establishes: ‘The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognized as legal.’158 It follows that the principle of non-recognition of illegal acts—during the 1930s sometimes dismissed as primarily a political tool—has subsequently become a part of positive international law,159 a legal duty.
In 2001, the UN’s International Law Commission adopted Draft Articles on State Responsibility which addresses in its Chapter III serious breaches of obligations under peremptory norms of general international law. Article 41 of the Draft Articles deals with particular consequences of a serious breach of an obligation of a peremptory norm and paragraph 2 states explicitly:
‘No State shall recognize as lawful a situation created by a serious breach (…), nor render aid or assistance in maintaining that situation.’160
v The Helsinki Final Act: A Western Recognition of the de facto Situation?
Specifically addressing the understandable concern about the effect of the Helsinki declarations on the Baltic Nations, I can assure you…that the United States has never recognized the Soviet incorporation of Lithuania, Latvia, and Estonia and is not doing so now. Our official policy of non-recognition is not affected by the results of the European Security Conference. There is included in the declaration of principles on territorial integrity the provision that no occupation or acquisition of territory in violation of international law will be recognized as legal.163
Moreover, after the signing of the Helsinki accords, the US House of Representatives adopted a resolution declaring that US non-recognition policy with respect to the illegally annexed Baltic States was not changed by the Helsinki accords.164 Thus, it can be inferred that the signatories to the Helsinki Final Act disagreed on the Baltic issue,165 even if the plain language of the Final Act seems to support the Soviet interpretation that the West had acquiesced in Soviet rule in the Baltic States.166 Moreover, during the subsequent so-called Helsinki process, the US representatives sometimes addressed the Soviet presence in the Baltic States as a situation violating the Helsinki principles.167
Overall, there was also a certain disagreement between the Soviet Union and the Western States on the legal nature of the Helsinki Final Act. Soviet international jurists asserted that this was a legally binding document whereas the Western governments and international lawyers considered it merely politically binding.
What conclusions can be drawn from the reaction of the State community to the Soviet annexation of the Baltic States? It is clear that non-recognition of Soviet annexation by so many States over such a long period was an unprecedented phenomenon in the history of international relations. However, this practice was never unanimous, and sometimes took peculiar forms. Many things in that respect are open for different interpretations, and much depends on whether one regards the glass to be half-full or half-empty.168 For example, in 1974 the Australian Labour government of Gough Whitlam extended de iure recognition to the incorporation of the Baltic States in the USSR,169 but the following Liberal government of Malcolm Fraser annulled that recognition.170 In international legal doctrine, de iure recognition, once given, is generally considered irrevocable.171 In any case, it is important to note that to speak of non-recognition of the Soviet annexation by the Western States—as has been popular in the Baltic States—is an over-statement and an over-simplification. The attitude of the Western countries was always fragmented. However, one can speak almost without reservation of the non-recognition policy of the USA.
Reception of non-recognition policy (and doctrine) in the legal literature has been correspondingly mixed. At some points during the Cold War, it must have felt that non-recognition itself would not lead anywhere or ‘save’ the annexed Baltic States. Belgian international law scholar Joe Verhoeven wrote in 1975 that the non-recognition policy in the case of the Baltic States
For Soviet legal doctrine, non-recognition policy was a purely political undertaking—an exercise in anti-Soviet propaganda and ideological struggle.173 Even Western scholars who agreed that the Soviet annexation of the Baltic States had been illegal pointed out that from a certain point onward, non-recognition could equally have become a manifestation of Cold War politics rather than of noble normative convictions.174 Non-recognition of the annexation of the Baltic States seemed increasingly a curiosity, so that one approach adopted by Western legal scholars was to ignore the issue altogether, even in contexts where it should have been substantively relevant, and remain silent on the Baltic case.175
Another view has celebrated non-recognition of Soviet annexation as a triumph of legality over the illegal exercise of power, a victory of international law and morality over unprincipled pragmatism.176 W.J.H. Hough emphasized this more idealistic aspect in 1985: ‘In contrast to the purely political motivation vis-à-vis the doctrine of non-recognition in the 1930s, it is difficult to see what immediate political interest the world community had in a restoration of the Baltic States in the 1940’s and afterwards.’177 It is obvious, of course, that questioning the legality of Soviet territorial conquest did not in the least contradict the political interest of the USA and other Western democracies in undermining the adversary Soviet empire, especially after the Cold War broke out in 1946. The political dimension of recognition of the virtual Baltic States by the USA became apparent during 1987–1991 when the political attitude of the USA with respect to the immediate restoration of the Baltic States became somewhat
In order to realistically estimate the context and value of non-recognition in the Baltic case, one has to look not only at the words pronounced by certain governments, but also what was not said, or even more, what else happened in international relations. While non-recognition policy was adopted as a formal legal position, then in terms of political reality, there stood the de facto new world order established at the Yalta Conference in February 1945.180
Non-recognition was a half-hearted undertaking. It appears a less courageous and principled deed when one takes into account that the Baltic States were the only ones to lose their independence as victims of aggression during World War II. While the independence of the victims of Nazi aggression was restored at the end of the war, the Soviet Union, which herself had conspired with Nazi Germany between 1939–1941, and thus contributed to the outbreak of the war, could annex the Baltic States that it had seized by pursuing policies that it had earlier condemned as ‘aggression’ in treaties concluded with those States. While other Eastern European countries also fell under Soviet domination, the Soviet satellites of Poland, Hungary, and so on, although not free in terms of choosing their form of government, they at least preserved their formal independence as sovereign States.
While the USA and the UK never recognized the absorption of the Baltic States in terms of law, they occasionally had to accept it in terms of political reality. In the Atlantic Charter of August 14, 1941, President Roosevelt and Prime Minister Churchill had promised to stand for the freedom of all illegally
The annexed Baltic States, which by now were already Soviet republics within the USSR, became pawns on the chessboard of Cold War diplomatic battles. Stalin’s request in 1945 to give full UN membership at least to the Lithuanian SSR—along with the Ukrainian SSR and Belorussian SSR—was rejected by the Western States.187
Next, the Nuremberg trials revealed ‘a level of hypocricy rarely achieved in even this imperfect world.’188 In Nuremberg, the victorious Western allies condemned horrendous Nazi crimes, in the first place Germany’s aggressive wars—‘supreme crimes under international law’—in a shared effort with Soviet judges and prosecutors.189 While Soviet policy continued to assert that the Baltic
Sometimes, the ‘right’ balance between power, law and politics was difficult to maintain at the Nuremberg trials. The presentation by the defence counsel of Rudolf Hess, Dr. Alfred Seidl, who was trying to raise the issue of the Nazi-Soviet secret protocols of August 23, 1939, was interrupted by the Soviet general prosecutor, Major Rudenko.190 Nevertheless, US prosecutor Robert H. Jackson filed a reservation to the Nuremberg judgment with respect to the Baltic States.191 Moreover, soldiers from the Baltic States who had been conscripted into the German army, and other Baltic nationals, were generally not treated like Soviet citizens, who were usually forcibly sent back to the Soviet Union.
A delayed but important political attempt at a legal evaluation of the Soviet takeover of the Baltic States was made in 1954 when the US House of Representatives established a special committee for the study of the incorporation of the Baltic States into the USSR (House Select Committee to Investigate Communist Aggression and the Forced Incorporation of the Baltic States into the USSR), chaired by Representative Charles Kersten. Having collected the available evidence, testimonies and so on, the Kersten Committee came to the following final conclusions:
The evidence is overwhelming and conclusive that Estonia, Latvia, and Lithuania were forcibly occupied and illegally annexed by the USSR Any claims by the USSR that the elections conducted by them in July 1940 were free and voluntary or that the resolutions adopted
by the resulting parliaments petitioning for recognition as a Soviet Republic were legal are false and without foundation in fact. That the continued military and political occupation of Lithuania, Latvia, and Estonia by the USSR is a major cause of the dangerous world tensions which now beset mankind and therefore constitutes a serious threat to peace.192
Although the Kersten Committee had parliamentary—and thus political—legitimation, its comprehensive investigation and final report penetrated the realm of the juridical. The work of the Kersten Committee is an interesting example of how, given the absence of central government in the international community, big powers are capable of pronouncing (and, on some other occasions, even enforcing)193 international law.
Another form of the interplay between law and politics is illustrated by the entire concept and application of the doctrine of de facto recognition of annexation. Occasionally, de facto recognition of annexation left the respective government de facto a free hand to pursue its policies, and achieve its desired goals. Although Great Britain never recognized the Soviet annexation of the Baltic States de iure, Her Majesty’s Government handed over the gold reserves of Estonia and Latvia to the Soviet government in a deal concluded in 1968.194 The gold deposit of the Baltic States was used to cover all claims by British citizens against the Baltic States, while the Soviet Union renounced all its claims on the UK However, the UK agreed to transfer to the Soviet Union half a million pounds of Baltic gold deposits.195
The British position with regard to the Baltic question was sometimes ambiguous. In 1979, the British Under Secretary of State was asked by a member of
Non-recognition of the annexation of the Baltic States demonstrates that formal non-recognition of territorial seizure is an incomplete means of reacting against aggression unless supported by effective sanctions.197 Non-recognition, while preventing the consolidation of illegal situations, is as such not a method of enforcement or, in any real way, a sanction.198 Instead, it is a precondition for other enforcement action. Due to political hardships and/or lack of interest, no such real enforcement action took place following the Soviet annexation of the Baltic States.
The doctrine of non-recognition is of somewhat doubtful value as it permits States to salve their consciences with platonic declarations and exonerates them from taking positive measures and imposing sanctions which would put real pressure on the offending States. This has been shown clearly in practice; in the cases of Ethiopia, Austria and Czechoslovakia, the principle was not followed at all consistently, but most States have not recognized the annexation of the Baltic States.199
This is the Janus-faced nature of the non-recognition doctrine, as applied in the case of the Baltic States.201 Do inconsistencies in non-recognition render this policy legally insignificant? Some scholars have distinguished between ‘effective protests’ and ‘paper protests.’202 Was non-recognition of Soviet annexation tantamount to a passive and ineffective ‘paper protest’? The Belgian scholar and practitioner of international law, Charles de Visscher, has argued that the legal effects of non-recognition and protests depend on their impact on the real consolidation of the situation. As long as such acts are not supported by effective countermeasures, they cannot prevent consolidation of the situation in the long term.203 These doctrinal views have, however, never represented the majority view in modern legal literature.204 It is doubtful whether, in the UN Charter era, one can speak of true acceptance of an illegal situation when third States still regularly file notes registering their non-recognition, even though such unilateral acts may be largely symbolic.
vii Non-recognition and Prescription in the Baltic Case: Conclusions
For the purposes of the present study, the fact remains that a significant number of Western States formally refused to recognize the Soviet incorporation of the Baltic States, right up the restoration of their independence in 1991. According to one estimate, by the end of the 1980s, some fifty States had not recognized the incorporation of the Baltic States into the Soviet Union.205 This number may be exaggerated and depends on how one interprets State practice. In terms of legal effects, the question whether this was done solely for ‘noble’
viii The Status of the Baltic Soviet Socialist Republics from the Viewpoint of International Law
Part of the problematics of non-recognition is connected to the legal status of the Baltic Soviet Republics. In 1940, the USSR transformed the three Baltic republics into Soviet Socialist Republics. According to the Soviet view, crystallized for example in the Constitution of 1977, the Baltic republics continued to be ‘independent and sovereign States,’210 just like all other Union Republics of the USSR, and as such ‘subjects of international law.’211 Thus, from the Soviet point of view, the question of State identity had been solved by transforming
A union republic shall have the right to enter into relations with foreign states, conclude treaties with them, and exchange diplomatic and consular representatives, and to participate in the activity of international organizations.
The sovereign rights of the Soviet republics are preserved by the Union of the SSR.
Thus, Soviet claims to have accorded independent ‘subject of international law’ status to its constituent parts were unanimously rejected by the international community, except in the anomalous case of agreeing to the Ukrainian and Byelorussian SSR s becoming original members of the UN, beside the USSR itself.
In the Baltic situation, the aspect of non-recognition of illegal occupation and annexation must be included in any evaluation of the legal status of the Baltic Soviet Republics. It is then understandable why Soviet attempts to present the Baltic SSR foreign ministries as legitimate representatives of independent States were unsuccessful. Only twelve people in 1952 and four in 1962 were employed in the so-called Foreign Ministry of the Estonian SSR. Among
…the Balts were incorporated against their will into the Soviet State, but then—in contrast to the colonial population—had a share in its Government. What happened during that time under the co-responsibility of the Estonians, Latvians and Lithuanians, cannot simpy be declared to be a consequence of earlier injustice.218
This point raises the important issue of the specific circumstances of Soviet rule in the Baltic States, especially its long duration. The Nazi occupations in European countries, including the Baltic republics, demonstrated that a certain segment of population is always—for various reasons—willing to collaborate with the occupier. It is even more obvious that during fifty years, most people adopt some form of collaboration or at least ‘cooperation’ instead of open ‘struggle’—to allude to the Soviet international lawyer Grigory Tunkin219—with the ruling regime. Not everyone may be unhappy in a territory illegally seized.
Beside the attitudes of third States, the second aspect in the prescription analysis is the possible continued existence of the government of the annexed State. As indicated above, the main difficulty in the case of a full annexation of an independent State is that no effective and independent State government can continue to exist within the country in such circumstances. In some cases (for example Austria 1938–1945), there are no traces of remaining State power at all. The Austrian case demonstrates that the existence of a government in exile is not a conditio sine qua non for eventual later recognition of State identity. However, thanks to US non-recognition policy, one parcel of the Baltic State organs remained continuously functioning in American exile, and one can include the discussion of the preserved State organs in the study of prescription/State continuity.
Once the Soviet army had successfully managed to establish a military blockade in June 1940, the governments of Estonia, Latvia and Lithuania did not succeed in taking refuge in exile. However, it is interesting to note that throughout Soviet rule in Estonia, Latvia and Lithuania, some legations of the pre-World War II independence period continued to exist and function in the Western world. According to the Baltic claim, these legations symbolized the continued existence of the illegally occupied and annexed republics. In addition to that, although no genuine governments in exile were initially created, the Estonian government in exile was later proclaimed in 1949 in Oslo. In the following, a more detailed account of these developments is given.
i The Functioning of the Baltic Legations in 1940–1991
On May 17, 1940, a secret decision was reached by the Latvian Government in order to assure the legal continuity of the Republic of Latvia. In the event of an emergency, the powers of the government were to be conferred on Kārlis Zarinš, Latvian Minister in London. Zarinš was inter alia authorized to appoint and recall the diplomatic and consular representatives of Latvia should connections with Latvia be interrupted because of war.220 Alfred Bilmanis, Latvian Ambassador to Washington, was designated as Zarinš’ substitute.221 The diplomatic representatives of Latvia were called on to inform the foreign offices in the countries of their residence about this decision.222 These special emergency powers of the Latvian Minister were recognized by the USA, the Holy See, and Spain.
Although no analogous move is known to have been made by the Estonian government,224 the diplomatic representations of all three Baltic republics assumed a similarly active role following the Soviet occupation and annexation of their countries.
‘Being appointed by the former constitutional Government as senior representative in this country, I regard the above-mentioned elections as null and void, as well as all acts passed by this unconstitutionally elected Chamber of Deputies, in particular the decision about the union with the USSR.225
The decision to surrender the independence of the country has, therefore, quite obviously been arrived at under duress and it cannot be considered to be a free and genuine expression of the will of the overwhelming majority of the Estonian people.226
Similar protests against the overthrow of the constitutional governments at the beginning of the Soviet occupation were filed by other Baltic diplomatic representatives—for example by the Lithuanian ambassador in Berlin, Škirpa, on July 22, and by the Lithuanian ambassador in London, Balutis, on July 25, 1940.227
Immediately after the occupation of the Baltic States, Soviet officials tried to force diplomatic representatives of those States to turn over their missions
Thanks to the determined non-recognition policy and the quite powerful position of the host country in international relations, the centre of gravity of the foreign representations was in the USA. The Estonian, Latvian and Lithuanian legations continued to exist and function in the USA during the 51 years of Soviet annexation. When the independence of the Baltic States was restored in August 1991, three Lithuanian legations (in Washington, London, and the Vatican), one Latvian legation (in Washington)231 and one Estonian legation (in New York) had survived the normative pressure of the facts, and handed over a living piece of the pre-1940 State organs to the newly established Baltic republics.
Throughout the Soviet period, the Baltic legations faced three main difficulties: convincing their host countries of the importance of their continued functioning; the aging and eventual death of their staff; and the struggle to ensure their funding, As they represented occupied and annexed States, there was understandably no financing by their central governments (which had ceased to exist). Over time, ‘natural causes’ (in other words, death of diplomats) meant cessation of activities for most Baltic legations, as only the USA and the Vatican allowed replacement of personnel to functioning diplomatic missions.232
Thus, for instance, the Estonian Ambassador to the UK since 1934, August Torma, died in 1971. After Torma’s death, Anna Vageström-Taru, who had been
The Lithuanian legation in Argentina was closed in connection with that country’s establishment of diplomatic relations with the USSR. The Estonian consulate in São Paolo, Brazil, the only surviving Estonian representation in South America, ceased to function with the death of the consul Ferdinand Saukas on December 29, 1976.235 Later, the Brazilian government closed the Lithuanian and Latvian legations in its territory, recognizing the Soviet incorporation de facto.236 Similarly, the Estonian representation in Spain ceased to function soon after the death of Kaarel Robert Pusta on May 4, 1964.237 Former Foreign Minister Karl Selter served as diplomatic agent of Estonia in the Federal Republic of Germany and Switzerland, but Estonia’s representation came to an end with his death.238
As replacements were allowed by the US government, the Baltic legations in the USA continued to operate without interruption throughout the whole period of Soviet annexation. For instance, when the Acting Consul General of Estonia in charge of Legation,239 Johannes Kaiv, died on November 20, 1965, he was replaced by fellow Consul Ernst Jaakson, who was added to the US Diplomatic List on December 15, 1965,240 and continued to hold the position of Consul General until Estonia’s independence was restored.
The US State Department also allowed the Baltic Legations to appoint new consuls244—with the sole precondition that individuals nominated would hold the respective Baltic citizenship. Under the Estonian General Consul E. Jaakson, Aksel Linkhorst was nominated by the US State Department as Consul in 1967. After Linkhorst’s death in 1981, Evald Uustalu was accepted as the new Estonian Consul by the US State Department. Uustalu himelf died in 1982, and subsequently a linguist from Lund University, Aarand Roos, was accredited by the US State Department as new Estonian Consul in New York City on April 4, 1982.245
Similarly, the Chief of the Latvian Mission in Washington, DC, Alfred Bilmanis, was replaced upon his death by Jules Feldmans. After the death of Feldmans, work was continued by Arnolds Spekke. With restoration of the independence of Latvia in August 1991, the Latvian Legation was headed by chargé d’affaires Anatol Dinbergs.246
The Lithuanian ambassador in Washington, DC in 1940, Povilas Zadeikis, died in 1957 and was replaced by Juozas Kajeckas. In 1977, Kajeckas was succeeded by his assistant Stasys Backis. The Lithuanian Consul General in New York City, Jonas Budrys, was replaced after his death by Vytautas Stasinskas, and later by Stasys Backis.247 The last Soviet era Lithuanian minister in
One of the most crucial questions from the point of view of the survival of the Baltic diplomatic representations was of a practical nature: financing in a situation where ties to the annexed countries had been severed. For instance, only $ 4,525.15 remained at the disposal of the Estonian consulate general in New York on July 1, 1940. This sum would not have enabled the functioning of the consulate general for more than a few months.250 Fortunately for the Baltic legations, in 1941 the US State Department authorized limited use of the previously blocked deposits of the Baltic republics in the USA.251 The USA had rejected the order forwarded by the Soviet Central Bank, Gosbank, to transfer the Baltic assets to it. The US State Department also authorized the use of these deposits for the activities of the Baltic representatives in South America (such as the Estonian consulate in Sao Paolo, Brazil).252 Beginning in 1951, the expenses of the Estonian legation in London were financed from gold reserves deposited in the USA.253 Additionally, in all three cases, voluntary contributions from Baltic exiles played a role in the maintenance and renovation of the legation premises, for example.254 In financial need, the Baltic legations helped one another. At one point, Latvian chargé d’affaires Dinbergs authorized a loan of $ 185,000 to his Estonian colleague Consul General Jaakson for maintenance of the Estonian legations.255
The main function of the Baltic legations was of a symbolic nature: to represent the sovereignty of the three occupied and annexed States. Throughout the period of Soviet annexation, Baltic diplomats were listed in the State Department’s Diplomatic List, and were therefore invited to participate in diplomatic
Baltic passports and seamen’s ID s continued to be honoured by States which did not recognize the Soviet incorporation of the Baltic States. Moreover, some countries such as Sweden, which otherwise recognized the Soviet incorporation of the Baltic republics, still also accepted these passports as travel or residence documents.259
Besides issuing passports, the Baltic legations served the exiled citizens of their respective countries with the various usual consular activities, such as exercising notarial functions—providing translations of official documents, issuing certificates, and legalizing documents issued in the pre-1940 Baltic States.260
Another interesting aspect about the Baltic legations in Western countries during the Soviet annexation period was that their leading minds – for example Kaarel Robert Pusta who was Estonia’s diplomatic representative in Spain and member of the Institut de Droit International – were actively interested in arguments in international law scholarship such as the books of Marek and Meissner.261 There was a constant interaction between arguments in legal practice and those in scholarship.262
ii A Particular Estonian Development: The Government(s) in Exile
A certain amount of confusion reigns in the legal literature about the Baltic governments in exile. Some authors have claimed that the annexed Baltic
The origins of the Estonian government in exile are closely connected with the name of the last pre-Soviet occupation era prime minister of Estonia, Professor Jüri Uluots.266 Uluots managed to survive the first year of the Soviet occupation in Estonia in hiding, and came to be regarded as the bearer of State continuity under the 1938 Constitution of Estonia, occupied by Germany (1941–1944) at that time. As President of the Republic, Konstantin Päts, had been deported to Soviet Russia, the five-member Election Assembly, established under the 1938 Estonian Constitution, decided at a secret meeting held on April 20, 1944, that the duties of the President of the Republic were to be transferred to the last pre-Soviet occupation Prime Minister, Jüri Uluots.
Legally, Uluots’ title remained controversial, as in June, 1940, notwithstanding the Soviet occupation, the Uluots government had been relieved of office by President Päts in a way formally compatible with the Estonian constitution. On the other hand, this point has been rejected by the argument that Estonian President Päts acted under extreme duress in an already occupied country when he appointed a new pro-Soviet government in June 1940; the change of the government was thus unconstitutional.267
On September 18, 1944, Uluots appointed a new Government of the Republic of Estonia, led by Otto Tief. The German army was retreating and the Estonians hoped to restore their independence before the Soviet Army could establish control over the country. The Tief Government was active for a week, controlled the capital Tallinn for about a day and tried to organize military resistance against the advancing Soviet Army. However, the Soviets occupied Tallinn on September 22, 1944, and soon, meeting only sporadic resistance from the sporadically formed Estonian troops, reached the coast of Western Estonia. Most members of the Tief Government—including Tief himself—were
Uluots, who made claims for the continuity of Estonian State power, died in Sweden on January 9, 1945. A day before his death, the surviving four members of the Tief government decided in Stockholm that under the 1938 Estonian Constitution, the tasks of the President of the Republic should be transferred to the oldest member of the Tief government, August Rei, who had been Estonia’s Minister of Foreign Affairs and was the Estonian Minister in Moscow in 1939/1940.
However, the Estonian Constitution allowed a different interpretation for such a situation of constitutional crisis, namely that the new President of the Republic must again (as had been the case in 1944 with Uluots) be elected by the special Election Committee. These two interpretations of the 1938 Estonian Constitution brought about the creation of two competing Estonian governments in exile.
More than eight years after the end of the Tief Government in September 1944, its oldest member, August Rei, proclaimed his Estonian government in exile in Oslo on January 12, 1953. The government in exile established by Rei became known as the ‘exiled government in Oslo.’ The surviving members of the former Election Committee felt their ambitions hurt by Rei’s move, and gathered near Detmold in Germany. The Election Committee elected one of its members, Alfred Maurer, the former Second Assistant Chairman of the second chamber of the pre-1940 Estonian parliament, as acting President of Estonia in exile. Maurer appointed Johan Holberg prime minister of his own Estonian government in exile on March 2, 1953.
Thus, two Estonian governments in exile had come into existence simultaneously. Since Estonia continued to be ruled by the Soviets, and the Election Committee was unable to renew itself as the basis for the government in exile, Maurer’s alternative government in exile was extinguished with the death of its members.
The exiled government in Oslo, proclaimed by Rei, continued to exist until the restoration of constitutional power in Estonia through elections in 1992.268 This government in exile was based on an interpretation of the 1938 Constitution according to which, in the case of the death of a President (or, respectively, an acting President), the oldest member of the existing government would
As with the Baltic legations, the main raison d’être of the Estonian government in exile was to keep alive the issue of the illegal annexation of Estonia on the international agenda and represent the idea that the Republic of Estonia continued to exist in terms of international law.269 Its members actively voiced Estonian views at conferences and during political events, and awarded orders in the name of the Republic of Estonia to outstanding individuals, and the like. However, partly due to constitutional complexities and questions concerning its birth, the Estonian government in exile was not recognized by any foreign government.270 Moreover, even the Estonian legations in New York and London refused to accept the Estonian government in exile’s authority over their functioning, political and practical matters.271
The Estonian government in exile thus had no international status throughout its existence (1953–1992). Lack of international recognition severely diminished its effectiveness as a government in exile. Nevertheless, at the end of the day the Estonian government in exile came to enjoy recognition from the Estonian constitutional perspective. On the official website of the Estonian President, the Acting Presidents of the Republic of Estonia in exile have been listed as the predecessors of post-1992 Presidents, bearers of State continuity during the time of Soviet annexation. The interpretation of the present-day Estonian constitutional organs in favour of the legitimacy of the Estonian government in exile must be accorded due respect, as it indicates ‘the way a State concerned sees itself.’272
iii The Baltic Legations and the Estonian Government in Exile: Evaluation from the Point of View of State Continuity and Prescription
As no governments in exile of Latvia or Lithuania existed—and the Estonian legations did not recognize the Estonian government in exile which was established in 1953—the Baltic legations in the USA and other Western countries were not bound to any higher State authority during the Soviet annexation of the Baltic republics. Indeed, they were the only continuously surviving State organs of the Soviet-annexed Baltic republics. The view has been widespread in the literature that the continuity of the Baltic States was vested in their legations.274 The legations in the USA functioned de facto as quasi-governments in exile and thus symbolized the continued existence of the third constitutive element of the State: State power.
From the academic point of view, it is debatable whether the Estonian government in exile was indeed a governmente in the international legal sense. Due to its lack of international recognition, its existence had little influence on the decision by Western States to recognize the identity of the restored Baltic States with pre-World War II republics in 1991. Moreover, the State identity of all three Baltic republics was recognized, although only Estonia had a (as some have argued: self-proclaimed) government in exile.
Nevertheless, the existence of the Estonian government in exile had a strong influence on constitutional decisions taken in Estonia in 1990–1992. Even if the Estonian government in exile did not ‘preserve’ the legal personality of the Republic of Estonia, many citizens believed (or wanted to believe) it had indeed done so.
In retrospect, it may be concluded that although the Estonian legations did not recognize the Estonian government in exile, these institutions did not contradict each other either as parallel bearers of State continuity and representatives of the claim to Estonia’s independence. Both spoke out against
At the same time, it is clear that neither the Baltic legations nor the government in exile (in the Estonian case) could effectively fulfill government functions in exile.
d The Baltic Peoples and Prescription
Finally, for the purposes of prescription analysis, we should turn to the study of the role of the peoples of the Baltic States themselves. During the second half of the 20th century the principle of democratic legitimation assumed greater weight in terms of the legal analysis of statehood.279 The increasing importance of the right of peoples to self-determination and of human rights generally caused a departure from a static and formalistic concept of statehood. In the early 1990s, some prominent Western international lawyers even argued for an emerging right to democratic governance in international law.280
Hence, it is unsurprising that the attitude of the affected population toward the State exercising authority over it has become increasingly important. At the same time, ‘the people’ seems to be the most challenging element for the legal inquiry of statehood. ‘The people’s will’ has figured among the most powerful—and therefore most misused—arguments used in political rhetoric and legal legitimation.
Military occupation by itself does not confer title or extinguish a nation. Nor does a proclamation of annexation so long as the claims of the occupying Power are effectively challenged and remain unrecognized. (…)
There is no automatic extinction of nations. (…) A nation is much more than an outward form of territory and government. It consists of the men and women in whom sovereignty resides. So long as they cherish sovereignty in their hearts their nation is not dead.283
The second element of the three-elements-theory, State people, may thus influence analyses of statehood to a certain extent.
In non-democratic countries, the people’s true will is hard to find out. Non-democratic regimes are in a position to a certain extent to manipulate the will of the people, combining a monopoly over information and education with lies or half-truths provided by a propaganda apparatus. Even if not as pervasively as in George Orwell’s fiction ‘Nineteen Eighty-Four,’284 such regimes are capable of at least partly confusing the people about what they want, just as they would try to confuse the outer world about what the people under the regime’s control wants.285 In annexed territories, they can force or entice people to collaborate in order for them to survive. Certain individuals from the seized territories are recruited and trained as the new representatives of the population.
Although such camouflage can presumably be revealed relatively easily—especially since the 20th century has given us a profound experience and insight into the functioning, methods and possibilities of totalitarian regimes286—the problem remains: how to establish the true will of the people? For instance, it is quite likely that Western decision makers asked themselves at some point during the Cold War: does non-recognition of the Soviet annexation of the Baltic States serve the interests of the Estonian, Latvian or Latvian peoples or not? The question was, pragmatically speaking, also: which is more important, continuing cultural and economic relations—which would have proved beneficial for all participating peoples and individuals—or refusing, for principled ideological reasons, all cooperation with the annexed country? Finland, for instance, chose the first path during the presidency of Urho Kaleva Kekkonen, and paying lipservice to the Soviet regime, re-established active cultural ties with Estonia, to the extent this was endorsed by the Soviet government. Soviet
Whatever the difficulties of finding out a people’s will, recent developments have shown that whenever people are free in determining their choices, and care enough to manifest their preferences strongly, such manifestations are not ignored in international legal practice. Ultimately, it is those people that are most affected by a decision on State personality.
In that light, it becomes apparent that special importance in the case of the annexed Baltic States must be attributed to their peoples’ claims and manifestations of self-determination. Equally as much as the Baltic legations (or, as in the Estonian case, the government in exile,), preservation of the Baltic republics as subjects of international law could be attributed to claims by the Baltic peoples and their representatives to independent statehood, based on the principle of State continuity.
But could such claims for independent statehood really have existed during the decades of Soviet rule? During the independence process of 1988–1991, the Baltic peoples and politicians raised quite powerfully their claim for restoration of the independence of their pre-war republics. By this demand they demonstrated that they perceived the bond of State continuity with their independent pre-World War II republics—older generations still alive had been citizens of those republics in their youth—rather than with the then still existing Soviet State.
Thus, when representatives of the Lithuanians, Latvians and Estonians insisted in 1990/91 on restoration of the pre-World War II independent republics, and not on ‘secession’ from the USSR (Russia), this must not have been surprising to those analysts who had observed developments in the Baltic republics after Soviet control was established there in 1940, and again in 1944.
The animosity towards—and resistance by the Baltic peoples against—the Soviet regime was expressed in many ways. The particular reasons for this animosity against foreign rule, especially towards State crimes committed during the Stalin era, are addressed below in a later part of this study. However, at this point a brief historical sketch is nevertheless appropriate. In the summer of 1941, the Baltic guerillas, having formed themselves following Soviet mass deportations of June 14, 1941, took advantage of the context of Nazi Germany’s military attack against the USSR, and in some regions even managed to make Soviet occupation forces withdraw before the Wehrmacht in turn occupied the Baltic States for Nazi Germany. After it became obvious in 1944 that Stalin’s Soviet Union would again seize possession of the Baltic republics, hundreds of thousands of Lithuanians, Latvians and Estonians voted against the Soviet State with their feet—by escaping as refugees to the West.
The USSR confronted armed and other resistance in the Baltic republics with mass deportations and liquidations. These can be qualified as State crimes—crimes against humanity, and possibly even genocide.290 The German international law scholar Heike Krieger, who in her recent monograph otherwise quite strongly emphasizes the importance of effectiveness in international law, also insists that when a State has annexed a territory illegally, and combines this violation with mass deportations or genocide, ‘prescription is under no conditions possible.’291
…freedom then only makes sense when the people that should enjoy it survive. Is there anything more important than freedom? I think that it is the very life of the people who have sometimes also to wait a bit, until God or historical fate offers a new chance for a life in freedom.293
Opposition by the majority of Estonians, Latvians and Lithuanians to the Soviet regime thus found its expression in an ironic and nonchalant attitude towards the Soviet State. Baltic freedom fighters and resistance groups never ceased to protest the illegal occupation and annexation of the independent Baltic republics by the USSR.294 Occasionally, student and worker protests erupted in the Baltic States—for instance in Kaunas, Lithuania, in 1972 thousands of youths rioted for several days and some 500 were arrested after a nineteen-year old student, Romas Kalanta, burnt himself to death in protest against Soviet occupation.
The historical details of Baltic resistance to Soviet rule will not be further elaborated here. It is essential that notwithstanding the often violently repressive Soviet efforts to do away with Baltic identity and differences from the rest of the USSR, the Baltic peoples preserved their separate identities, and the ideal of pre-1940 independent statehood.
In the years of Soviet annexation, the voices of the Baltic peoples were also expressed by Baltic refugees who had fled from Lithuania, Latvia and Estonia to the West. The Baltic refugee communities lobbied actively in Western power corridors, and by keeping the question of the Baltic States on the agenda of the Western States, prevented ultimate acquiescence in Soviet rule. To a certain
In international law, one of the few ways—and in Krystyna Marek’s view the only way296—to legitimate an illegal act is validation by the injured party.297 Such validation must inevitably be genuine, as no legally relevant validation can result from fake circumstances such as a puppet government or a sham plebiscite.298 Apart from the fact that no such genuine expression of will could be expressed by the Baltic peoples under the Soviet regime the Baltic peoples refused to validate the Soviet occupation on their own initiative either. Non-acquiescence of the population in territory seized by force and suppressed by non-democratic regimes must be assumed so long as the people have not accepted the new constellation of power in a genuine expression of self-determination. As the Baltic peoples never had the chance to express their free will almost until the end of the Soviet regime, one cannot speak of genuine acquiescence by the affected population.
4 Prescription? Conclusions
‘In order to break the prescription and to avoid acquisition of legal title for a territory, any act that would be appropriate to the situation, and that would bear witness to non-recognition of the legitimacy of the existing factual situation, would suffice. Evidently for this purpose e.g. the usual diplomatic protest by a State would suffice, even if it not empowered by the use of force. It is respected that a break of prescription can occur not only as a consequence of an act by a State, but also as a result of acts by the inhabitants of a governed territory, in the form of protests or other activities that express the will of a nation.’302
A logical consequence of denial of acquisitive prescription (the illegality of Soviet rule) would be denial of extinctive prescription, in other words that, from the standpoint of international law, the Baltic States continued to exist and remained under illegal occupation throughout half a century. But what is meant by occupation in international law? Is the concept of illegal occupation suitable to qualify the legal status of the Baltic States from 1940–1991?
See e.g. W. Grewe, ‚Völkerrechtliche Umschau—Europa nach dem Waffenstillstand‘, in: 7 Monatshefte für Auswärtige Politik 1940, p. 686 (‘Die baltischen Staaten haben (nach ihrer Eingliederung in die UdSSR) aufgehört zu existieren, als selbständige Subjekte des Völkerrechts zu bestehen. Sie sind Bundesrepubliken der Sowjetunion geworden (die litauische Sowjetrepublik nunmehr mit der Hauptstadt Wilna) und haben als solche keinen internationalen Status mehr.’) See also E.J. Castrén, ‚Aspects récents de la succession d’etats‘, 78 RCADI 1951, p. 419; A. Baade, ‚Baltische Staaten‘, in: K. Strupp and H.-J. Schlochauer (eds.), Wörterbuch des Völkerrechts, 2. Ausg., Band I, 1960, p. 148: ‘Formell gesehen sind die baltischen Staaten durch Einverleibung in die Sowjetunion als selbständige Völkerrechtssubjekte untergegangen.‘; G. Cansacchi, op. cit., p. 20 (‘Si cette independance disparaît parce que l’Etat est annexe par un Etat étranger … sa personnalité internationale cesse d’exister… Ainsi cessèrent d’exister comme sujets internationaux… les Etats baltes dans l’URSS en 1940.’) See also R.W.G. De Muralt, The Problem of State Succession with Regard to Treaties, The Hague: W.P. van Stockum & Zoon, 1954, p. 40. De Muralt’s conclusion ‘Insofar as the annexation was legal, the case of the Baltic republics is comparable to that of Texas’ at p. 40 was based upon erroneous factual assumptions, namely that the Baltic States had joined the USSR voluntarily. See also D.P. O’Connell, ‘Recent Problems of State Succession in Relation to New States’, RCADI 1971-II, p. 150.
See e.g. J.A. Swettenham, The Tragedy of the Baltic States. A Report compiled from Official Documents and Eyewitnesses’ Stories, London: Holli and Carter, 1952; I.J. Vizulis, Nations Under Duress. The Baltic States, Port Washington: Associated Faculty Press, Inc., 1985; B.J. Kaslas, The USSR-German Aggression against Lithuania, New York: Robert Speller & Sons, 1973; M. Rosenbusch, H. Schützler, S. Striegnitz (Hg.) Schauplatz Baltikum: Szenarium einer Okkupation und Angliederung: Dokumente 1939/1940, Berlin: Dietz Verlag, 1991.
See K. Marek, Identity and Continuity of States in Public International Law, 1954; B. Meissner, Die Sowjetunion, die baltischen Staaten und das Völkerrecht, 1956.
J. Repečka, Der gegenwärtige völkerrechtliche Status der baltischen Staaten, unter besonderer Berücksichtigung der diplomatischen Vorgeschichte der Eingliederung dieser Staaten in die Sowjetunion, Dissertation, Göttingen, 1950.
See J.-B. Duroselle, Histoire diplomatique de 1919 à nos jours, 2e édition, Paris, 1993, p. 261 et seq.
See generally on the diplomatic moves leading to the conclusion of the Nazi-Soviet alliance and the outbreak of World War II in H. Kissinger, Diplomacy, p. 332 et seq. and p. 350 et seq.
Eugene A. Korovin must have had inter alia these events in mind when he wrote in 1946: ‘The sad history of the League of Nations and the grim lessons of the Second World War eloquently show that as long as there are rapacious imperialistic countries, the very existence of small states, let alone the question of equality, depends first and foremost upon the preparedness of the great peace-loving state to come to their defence.’ E. A. Korovin, ‘The Second World War and International Law’, 60 AJIL 1946, p. 746.
A. Rei, Nazi-Soviet Conspiracy and the Baltic States. p. 41.
The Mutual Assistance Pact with Estonia was concluded on September 28, 1939 (198 LNTS 381), with Latvia on December 5, 1939, and with Lithuania on October 10, 1939.
Decision of the Council of the League of the Nations, LNOJ 1939, pp. 505–508. See further A.M. Rifaat, International Aggression. A Study of the Legal Concept: Its Development and Definition in International Law, Stockholm, 1979, pp. 98–99.
See Repečka, op. cit., pp. 57–63.
See for Lithuanian archive sources: V. Vadapalas, V. Žalys, ‘Secret Protocols to the Soviet-German Treaties of 1939 and the Problem of Prescription in International Law’, in: Proceedings of the Estonian Academy of Sciences. Social Sciences, 1990, 39/2, p. 128.
For the deliberations of the Lithuanian government leading to acceptance of Soviet demands, see A. Eidintas, ‘The Meeting of the Lithuanian Cabinet, 15 June 1940’, in: J. Hiden and T. Lane (eds.), The Baltic and the Outbreak of the Second World War, Cambridge, 1992, pp. 165–173.
See Repečka, ibid.
See E. Sarv, Õiguse vastu ei saa ükski, 1997, p. 36.
Archive documents quoted in a special edition of the Estonian magazine ‘Kultuur ja Elu’, dealing with the first wave of Soviet deportations in 1940–1941. Kultuur ja Elu 3 (453) 1998, p. 2.
See for developments in Lithuania: A.E. Senn, ‘What Happened in Lithuania in 1940?’, p. 184 et seq.
A similar impression was left on the general public. On July 21, 1940, the newly-sent Soviet emissary in Riga, Andrei Vyshinski, ended his speech from the balcony of the Soviet embassy by stating in the Latvian language: Long live free Latvia! and Long live the friendship between the Republic of Latvia and the Soviet Union!’ See Lettland unter sowjetischer und nationalsozialistischer Herrschaft. Eine Darstellung des lettischen Okkupationsmuseums, Riga, 1998, p. 23.
See Repečka, p. 74 et seq.
See e.g. The Baltic States 1940–1992. Documentary Background and Survey of Developments Presented to the European security and Cooperation Conference, Stockholm: The Baltic Committee in Scandinavia, 1972.
See H. Kissinger, Diplomacy, p. 355. However, according to official Soviet data, 95.51 % of entitled Lithuanians participated in the elections, and 99.2 % voted for the candidate of the ‘list of the working people’. In Latvia, 94.8 % were reported to have voted and 97.6 % voted in favour of the official candidates; in Estonia, 92.9 % voted and 96.8 % voted in favour of the official candidates.
Repečka, op. cit., p. 160. Soviet elections in the occupied Baltic States in 1940 have even given rise to a special notion in the literature of political science during the Cold War, referring to unfair and orchestrated elections as ‘Baltic elections.’
See R.A. Vitas, The United States and Lithuania. The Stimson Doctrine of Nonrecognition, p. 12.
Later, some members of those parliaments testified that Moscow’s directive to vote to join the Soviet Union came as a surprise even for them, and was accompanied by threats that a ‘no’ vote would cost one’s life. On the atmosphere created in new Lithuanian parliament, see Repečka, op. cit., p. 78 (quoting the testimonies given by A. Garmus and L. Dovydenas, members of the 1940 Lithuanian parliament.)
Thus, for example, Kārlis Ulmanis, the President of the Republic of Latvia, was deported on July 22, 1940 to South Russia. He died presumably in 1942. See Reinhards (ed.) Lettonie-Russie, p. 132. The Estonian President Konstantin Päts was for many years kept in a mental hospital—he died in Russia in 1956.
See generally W-D. Krause-Ablaß, Intertemporales Völkerrecht. Der zeitliche Anwendungsbereich von Völkerrechtsnormen, Hamburg: A. Metzner Verlag, 1970 and T.O. Elias, ‘The Doctrine of International Law’, 74 AJIL 1980 pp. 285–307; G.Y. Barsegov, ‘On the Criticism of the ‘Inter-Temporal Law’ Doctrine’, 1985, Soviet YBIL, pp. 202–205.
Island of Palmas Case, II UNRIAA, p. 845.
Ibid. p. 839.
See for discussion M. Koskenniemi, ‘The Normative Force of Habit: International Custom and Social Theory’, 1 Finnish YBIL 1990, pp. 77–153 at 132 et seq.
South West Africa Case, ICJ Reports 1966, p. 23 (§ 16).
Namibia Case, ICJ Reports 1971, p. 31 (§ 53).
Cf. Y. Dinstein, War, Aggression and Self-Defence, 2nd ed., Cambridge, 1994, p. 80.
League of Nations Covenant, printed in: W. Schücking, H. Wehberg, Die Satzung des Völkerbundes, 2. Aufl., Berlin: Franz Vahlen, 1924. See also related articles 12, 13, 15 and 16. Although the text of Article 10 did not mention non-recognition explicitly, Langer wrote in 1947 that Article 10 implied a duty of non-recognition of the forcible seizure. See R. Langer, Seizure of Territory. The Stimson Doctrine and Related Principles in Legal Theory and Diplomatic Practice, 1947, p. 96. See also L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law. Historical Development, Criteria, Present Status, Helsinki, 1988, p. 134 et seq.
See also Repečka, op. cit., p. 98.
See N. Maim, Völkerbund und Staat. Ein Beitrag zur Ausarbeitung eines allgemeinen öjfentlichen Rechts, Tartu: K. Mattiesen, 1932, p. 196 et seq. As to the exceptions, see Y. Dinstein, War, Aggression… pp. 81–83. See also A.M. Rifaat, International Aggression, p. 69 et seq.
See L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law, p. 135 et seq. Cf. A. Randelzhofer, ‘Commentary to Article 2(4)’, in: B. Simma (ed.) The Charter of the United Nations. A Commentary, Oxford: University Press, 1994, p. 111.
Note, however, that in that case one would also be compelled to conclude that the German takeover of Czechoslovakia and Austria was not unlawful. This outcome, however, contradicts Nuremberg practice.
See H. Krieger, Das Effektivitätsprinzip im Völkerrecht, 2000, p. 440, O. Dörr, Inkorporation…, p. 352.
See further L. Mälksoo, ‘The Soviet Approach to the Right of Peoples to Self-Determination: Russia’s Farewell to jus publicum europaeum’, 19 Journal of the History of International Law 2017, pp. 200–218.
See further on the right of peoples to self-determination: C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht: Martinus Nijhoff Publishers, 1993.
LNTS, Vol. II, p. 29.
See the Riga Peace Treaty, signed by Russia and Latvia on August 11, 1920, in LNTS, Vol. 2, p. 195 and Moscow Peace Treaty, signed by Lithuania and Russia on July 12, 1920, LNTS, Vol. III, p.105. A. Reinhards, Lettonie-Russie. Traites et documents de base vet extenso, Lausanne, 1998.
Yuri Barsegov evaluates these self-determination provisions in early Soviet treaties very highly: ‘The analysis of the treaty relations of the first years of the Soviet state demonstrates that even then many states were formally obliged to honour the right of peoples to self determination. The treaty practice of the USSR prepared the ground for general recognition of the right of self determination as one of the main principles of international law. The principle of self determination obtained final and complete recognition with the victory of the democratic nations, led by the Soviet Union, over the forces of fascism and imperialism in the years of World War II.’ Ю. Г. Барсегов, Территория в международном nраве. Юридическая природа территориального верховенства и правовые основания распоряжения территорией, Москва: Государсвенное издательство юридической литературы, 1958, p. 73 (Translated from Russian.)
LNTS, Vol. 89, p. 369.
See generally J.М. Mössner, ‘Non-Aggression Pacts’, EPIL Ш, 1997, рр. 596–600.
LNTS, Vol. 60, р. 146.
LNTS, Vol. 148, p. 126.
LNTS, Vol. 131, p. 297.
LNTS, Vol. 131, p. 309 and Vol. 148, p. 129, respectively.
LNTS, Vol. 147, p. 69. See about the background to this convention J.F. Triska, R.M. Slusser, The Theory, Law, and Policy of Soviet Treaties, Stanford: Stanford University Press, 1962, p. 262 et seq. and C. Rousseau, Le droit de confits armés, 1983, p. 581.
LNTS, Vol. 148, р. 79.
Soviet international legal scholars highlighted the importance of the Convention on the Definition of Aggression for the development of public international law. Thus, Eugene A. Korovin, discussing the lessons of World War II, concluded: ‘But of really great theoretical and practical significance is the international law experience of the Soviet state in introducing new democratic principles into international usage and in fighting for their recognition. Some of the stages and landmarks in this glorious path are: (…), the Soviet pacts regarding the definition of aggression. (…) Whether it has been the question (…) of the sovereignty and independence of small peoples and states— always and everywhere representatives of the USSR have been the foremost champions of democracy and international justice, defending the sacred cause of freedom of the peoples and peace among nations (…).’ See E.A. Korovin, ‘The Second World…’, p. 754.
It is not necessary to undertake a detailed legal analysis of the Hitler-Stalin Pact’s secret protocols here. It may be briefly noted that from a legal point of view, this treaty violated peremptory norms of international law, such as independence of States and prohibition of intervention. The secret protocols were thus legally null and void. See G.-H. Gornig, Der Hitler-Stalin Pakt: eine völkerrechtliche Studie, Frankfurt a.M.: Peter Lang, 1990, p. 86 and H. Lindpere, ‘Evaluation of the Soviet-German Pacts of August 23 and September 28 1949 from the Standpoint of International Law’, 1 FYBIL 1990, pp. 415–439. Moreover, the USSR, still being a member of the League of Nations at the time of this agreement, undoubtedly violated its obligations under the Statute of League of Nations (e.g. Art. 10). See Repečka, op. cit., p. 98 et seq. See also for a late Soviet view: P.A. Мюллерсон, ‘Совеmско-Германские договоренности в аспекте межднародного права’, in: Советское государство и право но. 9 1989, pp. 105–109.
One of the leading Soviet authors, Yuri Barsegov, criticized such a policy in the context of the ‘imperialist states’: ‘Under the pretext of ‘spheres of influence’, ‘longterm rent’, ‘preoccupation and administration’, the establishment of military bases ‘in the mutual defence interest’, the imperialist states, with the help of force, make attempts to win for themselves extraterritorial rights within the borders of formally equal and sovereign states.’ See Ю.Г. Барсегов, Территория в международном nраве, 1958, p. 34. (Translated from Russian).
See Meissner, Die Sowjetunion…, 1956, pp. 188–9.
See e.g. H. Lauterpacht, Private Law Sources and Analogies, 1927, sections 73–74 at pp. 161–167.
Crawford writes that the Baltic States were ‘occupied and illegally annexed by the Soviet Union in 1940 in circumstances involving the use of force and duress.’ See J. Crawford, ‘State Practice and International Law in Relation to Secession’, 69 BYBIL 1998, p. 96.
Repečka, op. cit., p. 132.
Quoted in C.A. Pompe, Aggressive War—an International Crime, The Hague: Martinus Nijhoff, 1953, p. 77.
See also B.B. Ferencz, ‘Aggression’, in: R. Bernhardt (ed.) EPIL, Vol. I, pp. 58–65.
Repečka, op. cit., pp. 128–129.
Meissner, Die Sowjetunion…, 1956, pp. 199–200.
Nikolai Kaasik, an international legal scholar from Estonia, has rejected the argument that through acceptance of the Soviet ultimatum, it could have acquired a legal quality: ‘Devant une menace d’ouverture immédiate des hostilités, le gouvernement estonien dut céder. Toutefois, la soumission à un ultimatum ne signifie pas son acceptation, elle ne constitue pas la reconnaissance des accusations y formulées, elle ne le rend pas légal. Accepté ou repoussé, l’ultimatum reste illegal en vertu du droit conventionnel en vigueur entre les parties, il reste un acte contraire au droit, il constitue une infraction ou un délit…’ N. Kaasik, ‘L’Ultimatum Soviétique à l’Estonie’, 1946, p. 17.
Repečka , p. 130 et seq. and 142 et seq.
See B. Meissner, The Occupation of the Baltic States from a Present-Day Perspective, p. 480.
As already mentioned, the President of Lithuania, A. Smetona, fled the country on June 15, 1940. Therefore, the following Soviet acts lacked legality in Lithuania even from the most formalistic point of view, even not taking into account the fact of aggression or physical intimidation. See Repečka, p. 66 et seq.
M. Ilmjärv, Silent Submission. Formation of Foreign Policy of Estonia, Latvia and Lithuania. Period from Mid-1920-s to Annexation in 1940, Acta Universitatis Stockholmiensis, Studia Baltica Stockholmiensia 24, Stockholm, 2004.
See also Repečka, pp. 141–143. Meissner opposes this argument in Die Sowjetunion…, 1956, p. 221.
See e.g. Repečka, p. 72.
There are also indications that the Baltic leaders, while trying to save the independent statehood of their respective republics, considered their countries as being under occupation. When the Commander-in-Chief of the Estonian Army Johan Laidoner drove to Narva, in order to sign the accord about the entry of the ‘unlimited Red Army contingent’ into Estonian territory, he met advancing Soviet troops even before he could reach Narva. He has been reported to have said: ‘We are in an occupied country.’
See UK, Judgement of the International Military Tribunal for the Trial of German Major War Criminals, Cmd. 6964, (1946), p. 17 at pp. 18–19. The Tribunal denied that Austrian consent had been given, and noted that the Anschluß was illegal. See ibid. p. 17. See also J. Crawford (ed.) Commentaries on the ILC Draft Articles on State Responsibility, Article 20.
Meissner, Die Sowjetunion, 1956, p. 205 et seq.
See Marek, op. cit., p. 64 et seq.
72 Repečka, op. cit., p. 155.
However, note the finding of the Kersten Committee of the US House of Representatives in 1954: ‘(…) the Soviet Union, without provocation, did in June 1940 invade and take military and political control over Lithuania, Latvia, and Estonia, thus committing an act of unprovoked aggression.’ See Report of the Select Committee to Investigate Communist Aggression and the Forced Incorporation of the Baltic States into the USSR, Third Interim Report, Washington, DC, 1954, p. 7.
C.B. Крылов, ‘Борьба СССР за мир’ (The Fight of the USSR for the Реасе), in: В.Н. Дурденевски, С.Б. Крылов, Международное право, Институт права Академий Наук СССР, Москва: Юридическое издательство,, 1947, para. 122, pp. 578–79.
See further A. Ross, ‘Denmark’s Legal Status during the Occupation’, 1 Jus Gentium 1949, p. 3 et seq.
But see the critique of the concept of state of war in C.A. Pompe, op. cit., p. 3 and 34 et seq.
Pompe, op. cit., p. 24.
See I. Brownlie, International Law and the Use of Force by States, Oxford: Clarendon Press, 1963, p. 211.
See Judgment, p. 17, 19, 93, 106. See also Brownlie, Use of Force, p. 211.
Roberts, What Is a Military Occupation? BYBIL 1984, p. 273. See also the judgment of the US Military Tribunal of April 14, 1949, in US v. Weizsäcker and Others, Annual Digest, 16 (1949), Case No. 118, p. 347.
Pompe, op. cit., p. 22.
Pompe, op. cit. p. 50.
Pompe, op. cit., p. 120.
See for a critique of the Nuremberg Tribunal’s judgment with respect to Czechoslovakia: Marek, op. cit., p. 302 et seq.
D. Zhalimas, ‘Legal and Political Issues…’, p. 110.
See A. Verdross, ‚Völkerrechtliche Identität von Staaten…‘, p. 20.
See further P. Morré, Die Änderung der staatlichen Gebietshoheit nach sowjetischer Völkerrechtslehre und Völkerrechtspraxis, mit besonderer Berilcksichtigung des Annexionsverbots, Dissertation, Münster, 1967, p. 147 et seq.
See V. Lenin, Collected Works, Vol. XIX, р. 304. Quoted in Morré, р. 147.
See e.g. Документы внешней политики СССР, том. I, Москва,, 1957, p. 12.
See Morré, op. cit., pp. 156, 165 and 176.
See also the concept of the ‘ethnic principle’ (Barsegov), according to which nations establish their ‘national territories’, as a consequence of which their borders can only be changed according to the principles of the right of peoples to self-determination. See ю.г. Барсегов, Территория в международном nраве, p. 128 et seq.
See e.g. Ю.г. Барсегов, Территория …., p. 88 et seq. The gap between Soviet legal doctrine and practice is highlighted by E. Kordt, ‚Ungleicher Vertrag und Annektion im sozialistischen Völkerrecht und in der Staatenpraxis sozialistischer Länder‘, FS Hermann Jahrreiss, Köln: Carl Heymanns Verlag, 1964, pp. 201–220.
Ю.Г. Барсегов, Территория…, p. 94. (Translated from Russian.)
See for the beginnings of this doctrine: G. Jellinek, Allgemeine Staatslehre, 1914, p. 340 et seq.
See for discussion C. Bilfinger, Vollendete Tatsachen und Völkerrecht—Eine Studie‘, 15 ZaöRV 1953/54, pp. 453–481.
H. Grotius, De iure belli ac pads, lib ii., Cap. 4, §§ 1,7,9.
E. Vattel, Le droit des gens ou principes de la loi naturel, liv. ii, chap. XI, § 147.
See further for references in B. Wiewióra, Uznanie nabytków… (The Recognition of the Territorial Acquisitions in International Law) 1961, p. 163.
See J.J. Moser, Versuch des neuesten Europäischen Völkerrechts in Friedens- und Kriegszeiten, Book I, Chapter 1, 1777, pp. 24–25.
G. von Martens, Précis du droit des gens moderne de l’Europe, fondé sur les traités et l’usage, 2e ed., Göttingen: Henri Dietrich, 1801, pp. 64–67.
See Chamizal, RIAA XI, 1911, p. 328; Grisbadarna (1909) in Scott, The Hague Court Reports 1916, p. 487 et seq. See also Island of Palmas, RIAA II, p. 839. (‘the continuous and peaceful display of territorial sovereignty (peaceful in relation to other States) is as good as a title.’) and Minquiers and Ecrehos, ICJ Reports 1953, p. 47 et seq.
See for a good overview and critique of the doctrinal views: G. Zimmer, Gewaltsame territoriale Veränderungen und ihre völkerrechtliche Legitimation, Berlin, 1971, pp. 46–67; E.A. Belgrad, The Theory and Practice of Prescriptive Acquisition in International Law, Dissertation, Johns Hopkins U., Baltimore, 1967.
See e.g. Langer, Forcible Seizure… and Verdross-Simma, Universelles Völkerrecht, p. 759, § 1163. See also the negative views of Polish international legal scholars in Wiewióra, Uznanie…, 1961, p. 147 et seq. (‘Prescription must be permanent, undisturbed and undisputed.’)
See e.g. Dahm/Delbrück/Wolfrum, Völkerrecht, Bd. I/1, p. 365; Seidl-Hohenveldern, Völkerrecht, 1997, Rdnr. 1157; D.H.N. Johnson, ‘Acquisitive Prescription in International Law’, 27 BYIL 1950, p. 353; Doehring, ‘Effectiveness’, in: EPIL 7, 1984, p. 73.
But see C.A. Fleischhauer, ‘Prescription’, EPIL 10, 1987, p. 330.
See generally M. Kohen, Le droit international et le temps, in: Societé française pour le droit international, Colloque de Paris, Paris: Pedone, 2001, pp. 129–157 and in the context of State succession: W. Fiedler, ‘Der Zeitfaktor im Recht der Staatensukzession’, in: Staat und Recht. Festschrift für Günther Winkler, Wien: Springer, 1997, pp. 217–235.
J. Verhoeven, La reconnaissance…, p. 37.
See C. de Visscher, Theories et realtites en droit international public, 1967, p. 256 («Le temps est un facteur de consolidation juridique.»).
K. Doehring, Völkerrecht, p. 71. ‘Der Untergang eines Staates wegen Wegfalls seiner Staatsgewalt (…)—erst dann angenommen wird, wenn keine vernünftige Aussicht mehr besteht, einen solchen wieder herzustellen.‘
Ibid.
See G. Dahm, Völkerrecht, Stuttgart, 1958, 1 Band, pp. 593–595. Cf. J. Charpentier, La reconnaissance internationale et l’evolution du droit des gens, Dissertation, Paris, 1956, p. 158.
See for an elaboration of the aspect of the ‘time factor’ in the case of the annexed Baltic States in a judgment of a German civil court, LG Göttingen of 25.5.1948, MDR 1948, p. 361 et seq.
19 LNOJ at 341 (1938).
Н. Lauterpacht (ed.) International Law. А Тreatise, 8th ed., 1955, р. 576.
Ibid. p. 576.
Ibid. p. 576.
Ibid. p. 576–577.
See for many: D. Blumenwitz, ‘Ex factis ius oritur’—‘ex injuria ius non oritur’, in: B. Meissner, G. Ziegler (Hg.) Staatliche und nationale Einheit Deutschlands—ihre Effektivität, Köln: Verlag Wissenschaft und Politik, 1984, p. 55 and Zimmer, op. cit., p. 52.
P. Laski, ‘The Prescription in International Law—Some Remarks’, 23 Polish YBIL 1997–1998, p. 225 et seq.
Laski, ор. cit., р. 225.
See with respect to US policies in Latin America in Anonymus, ‘Non-recognition: А Reconsideration’, 22 The University of Chicago Law Review 1954–1955, р. 261 at 271 et seq.
H.W. Briggs, ‘Non-recognition of Title by Conquest and Limitations of the Doctrine’, 34 Am. Soc’y Intl L. Proc. 1940, p. 72 at 81–82.
Ibid, at 82.
See Langer, Seizure of Territory, 1947, p. 46 et seq.
See ibid. p. 123 et seq.
See Langer, op. cit., p. 50 et seq. See also P.C. Jessup, The Birth of Nations, 1974, p. 305 et seq.
See the text in 26 AJIL 1932, p. 342.
See the Chaco Declaration of August 3, 1932, in which the nineteen American republics declared: ‘The American nations further declare that they will not recognize any territorial arrangement of this controversy which has not been obtained by peaceful means nor the validity of territorial acquisitions which may be obtained through occupation or conquest by force of arms? See also the Saavedra Lamas Anti-War Treaty of October 10, 1933, in which twenty-one American republics and eleven European States declared ‘that as between the high contracting parties territorial questions must not be settled by violence, and that they will not recognize any territorial arrangement which is not obtained by pacific means, nor the validity of the occupation or acquisition of territories that may be brought about by force of arms? See LNTS 163 (1935–6), p. 393. Finally, Article II of the Montevideo Convention on the Rights and Duties of States of December 26, 1933, stipulated that: ‘The contracting States definitely establish as the rule of their conduct the precise obligation not to recognize territorial acquisitions or special advantages which have been obtained by force… The territory of a State is inviolable and may not be the object of military occupation nor of other measures of force imposed by another State directly or indirectly or for any motive whatever even temporarily? See LNTS 165 (1936), p. 19.
See further Repečka, op. cit., p. 216 et seq.
See the discussion in Langer, ор. cit., р. 9 5 et seq.
For Estonian and to some extent also to the other two Baltic states’ policies at the League of Nations, see V. Made, Külalisena maailmapoliitikas: Rahvasteliit ja Eesti 1919–1946 (As Guest in World Politics: the League of Nations and Estonia 1919–1946), Tartu: Tartu Ülikooli Kirjastus, 1999.
Langer, op. cit., p. 98.
Quoted by Repečka, op. cit., p. 217. According to Repečka, this declaration gives evidence that already in 1933, the USSR officially rejected annexation as a ground for legal title. See pp. 217–218.
Writing in 1941, Makarov even came tentatively to the conclusion that in the turmoil of World War II, the annexation of the Baltic States had been recognized, except by Portugal. See N. Makarov, ‚Die Eingliederung der baltischen Staaten in die Sowjet-Union‘, ZaöRV 1941, pp. 705–706.
See W.J.H. Hough, III, ‘The Annexation of the Baltic States and its effect on the Development of Law Prohibiting Forcible Seizure of Territory’, 6 New York L.S.J.Int’l. L., 1985, p. 391 et seq. See also V.J. Riismandel, ‘The Continued Legal Existence of the Baltic States’, 12 The Baltic Review 1957, p. 48 et seq.; Repečka, op. cit., p. 282 et seq.
See K. Piirimäe, Roosevelt, Chruchill, and the Baltic Question. Allied Relations during the Second World War, London: Palgrave Macmillan, 2014.
Michael C. van Walt van Praag asserts that a State cannot exist in fact (…) without existing in a juridical sense. (…) The terms de facto and de jure serve in the process of recognition only when conflicting claims to sovereignty over territory remain unresolved and the recognizing State is anxious not to commit itself in favour of either claimant.’ See The Status of Tibet. History, Rights, and Prospects in International Law, Boulder: Westview Press, 1987, p. 99.
Of the earlier cases in the US Courts, see The Maret, A.D. Case No. 9 (1943/45); A/S Merilaid, A.D. Case No. 6 (1947). See also M. Whiteman, Digest of International Law, Vol. 5, US Department of State, 1965, p. 942, H.W Briggs, ‘Non-recognition in the Courts: The Ships of the Baltic Republics’, 37 AJIL 1943, pp. 585–596 and L. Juda, ‘United States’ Non-recognition of the Soviet Union’s Annexation of the Baltic States: Politics and Law’, 6 JBS 1975, pp. 272–290.
Cf. Treaties in Force—A List of Treaties and Other International Agreements of the United States in Force on January 1,1983, Washington, Department of State, 1983, p. 102.
See R.J. Misiunas, ‘Sovereignty Without Government: Baltic Diplomatic and Consular Representation, 1940–1990’, in: Y. Shain (ed.) Governments-in-Exile in Contemporary World Politics, New York: Routledge, p. 137.
E. Jaakson, Eestile (To Estonia), Tallinn: SE & JS, 1995, p. 312.
See Estonian State Cargo and Passenger S.S. Line v. Laane and Boutser (The Elise), A.D. Case No. 50 (1948). See also House of Commons Debates, May 19, 1987, p. 6229, printed in 26 CanYBIL 1988, p. 336 et seq. (‘These measures prove that Canada continues to reject the legality of Soviet control over the Baltic countries, a fact which the Soviet authorities have duly noted.’)
See Gebraud v. Meden, France, Cour de Cassation, January 10, 1951 which held: ‘No act of international scope has cancelled the disappearance of the State of Latvia. No Treaty has confirmed its extinction as a subject of legal rights and obligations. Accordingly, the lower Court held correctly that ‘as long as the Treaty of Peace has not decided the future of Latvia, it is not possible to say that Latvians have become stateless’.’ 18 ILR 1951, pp. 288–289. See also the statement by the Foreign Minister Roland Dumas in Le Monde, 12.3.1990 and for an overview of the French positions in J. Huntzinger, ‘La renaissance des États baltes’, 1994, p. 48 et seq.
See e.g. the position of the Federal Government on 8.11.1985, in: Verhandlungen des Deutschen Bundest ages, Stenographische Berichte, 172. Sitzung, Bd. 134, p. 12959 in which State minister Möllemann, in answer to a question from deputy Dr. Hupka, replied: ‘The Federal Government has not recognized the annexation of the Baltic States by the USSR. This position has been maintained in various declarations of the Federal Government, and also in the Bundestag.’ (Transl.) For a review of German court decisions in the British and American occupation zones, confirming the continued legal existence of the nationality of the Baltic States, see H. Jellinek, Der automatische Erwerb und Verlust… 1951, p. 172 et seq.
See, for instance, the communication of the Foreign Оffiсе to the court in A/S Тallinna Lаеvаühisus and others v. Таllinnа Shipping Соmраnу, Ltd., and Estonian State Steamship Line, (1946) 79 L1.LR 245 at р. 251: ‘I. His Majesty’s Government recognize the Government of the Estonian-Soviet Socialist Republic to bе the de facto Government of Estonia…’
See HC Debs., vol. 82, WA, col. 273: 5·7.1985, printed in: 56 BYВ1L 1985, р. 390.
See further T. Tamman, The Last Ambassador. August Torma, Soldier, Diplomat, Spy, Leiden Brill, 2011.
Journal officiel de la République Française, 3 mai 1982.
Reprinted in: The Baltic States and the Soviet Union. Reprinted from a Report of the Council of Europe, with a Preface and Supplementary Comments, Stockholm, 1962.
See also Pusta’s extensive personal archive at Stanford University’s Hoover Institute in Palo Alto, California.
See 1 Spanish YBIL 1991, p. 48 et seq.
See R.J. Misiunas, ‘Sovereignty Without Government…’, p. 136.
See http://www.okupatsioon.ee/1940/1940.html, information submitted by historian Eero Medijainen.
Draft Declaration оf Rights and Duties of States of December 6, 1949 (Res. 375 (IV) UNGA). See YВ of the ILC, 1949, р. 288.
On this influential declaration, see J. Viñuales (ed.) The UN Friendly Relations Declaration at 50, Cambridge: Cambridge University Press, 2020.
U.N.G.A. Res. 2625 (XXV), October 24, 1970.
See e.g. J. Crawford, Fourth report on State responsibility, ILC, 2 April 2001, A/ CN.4/517, p. 20 (para. 52.)
See ILC, Draft Articles on Responsibility of States for Internationallly Wrongful Acts, 2001.
See Visek, ‘Creating the Ethnic…’, p. 326. At the same time, the legally binding character of the Helsinki Final Act was denied. For instance, I.A. Smirnov observed that the states had no intention of giving the Conference acts the force of an international law source. The obligations assumed within the CSCE framework are a package of political arrangements fully in accordance with current international law, while remaining outside its system.’ LA. Smirnov, ‘The Legal Qualification of the Documents on Security and Cooperation in Europe’, Soviet Journal of International Law, No. 2, 1991, pp. 111–120.
Conference on Security and Co-operation in Europe, Final Act (Helsinki Accords), 14 I.L.M. 1292, 1294 (1975).
US Department of State, Department of State Bulletin, 73, 1885, II August 1975, рр. 204–206.
HR 864, US Congress, Congressional Record, 2 December 1975, p. H 11587.
Cf. also with the diplomatic statement of the French President in connection with the signing of the Helsinki Final Act: ‘[I]n the view of France, the texts signed here do not imply the recognition of situations which it would not have recognized otherwise…’ Quoted in Hough, op. cit., p. 430. See also a statement by the British Prime Minister Margaret Thatcher in a parliamentary debate of April 3, 1990: ‘I have indicated that this country never recognized the legality of the annexation of Lithuania, Latvia and Estonia into the Soviet Union. (…) The Helsinki accord recognized the boundaries in fact but not in law.’ See 61 BYBIL 1990 p. 497.
See also F. Lange, ‚Die baltischen Staaten und die KSZE‘, in: 44 Osteuropa, Marz 1994, p. 233.
See for evidence in Vitas, op. cit., pp. 99–100.
For instance, Helmut Tichy, while confirming that the claim [of the Baltic States] to be legally identical with the three States annexed by the Soviet Union in 1940 was accepted by the international community’, estimates that: ‘Until August 1991, there were only a few States which had never recognized these annexations either explicitly or implicitly. The overwhelming majority of States had taken the position, at least implicitly, that the Baltic States were part of the Soviet Union. This was also the case for Austria…’ See H. Tichy, ‘Two Recent Cases of State Succession…’, Aust. JPIL 1992, p. 127. See also J. Salmon, 24 RBDI 1991, ‘Pays baltes’, p. 265 (‘L’affirmation de la non-reconnaissence de l’annexion par les Occidentaux cachait mal l’acceptation du fait accompli de 1944.’) and P. M. Eisemann, ‘Bilan de recherches…’, in: State Succession (Hague), 1996, p. 53.
See 6 Austr. YIL 1974/5, p. 230.
See 7 AYIL 1976/7, p. 432. See also E. Dunsdorfs, The Baltic Dilemma. The Case of the de jure Recognition by Australia of the incorporation of the Baltic States into the Soviet Union, 1975.
See Article 6 of the 1933 Montevideo Convention: ‘(…) Recognition is unconditional and irrevocable.’ See for the adoption in literature e.g. J.L. Kunz, ‘Identity of States Under International Law’, 49 AJIL 1955, p. 75.
J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, 1975, pp. 307–308. “remains today the ultimate satisfaction accorded to diplomatic personnel and a group of refugees awaiting their disappearance after that of their States, which will cast a blur over one scandal among so many others that international relations are made of.”
See Misiunas, op. cit. p. 138 and A. Liivak, ‘Soviet Responses to Western Nonrecognition of Baltic Annexation’, in: Loeber/Vardys/ Kitching (eds.) Regional Identity Under Soviet Rule, 1990, pp. 375–394.
As suggested by J. Crawford, The Creation of States in International Law, 1979, p. 219.
For instance, the Swedish diplomat Hans Blix lays out the history of non-recognition policies since the Stimson doctrine without mentioning the Baltic case. See H. Blix, ‘Contemporary Aspects of Recognition’, RCADI 1970-II, pp. 567–703.
See e.g. Hough, op. cit., 1985.
Hough, op. cit., p. 467.
TH. Ilves, Eesti välispoliitika peegelmaastikul, (Estonian Foreign Policy on the Mirror Landscape), Postimees, 07.08.2001.
See for evidence: R. Kherad, La reconnaissance internationale des États Baltes, 96 RGDIP 1992, p. 858 et seq.
See for a severe critique: K. Skubiszewski, ‘The End of Yalta’, in: K. Wellens (ed.) International Law: Theory and Practice. Essays in Honour of Eric Suy, The Hague: Nijhoff, 1998, pp. 107–119.
In the Atlantic Charter, the leaders of the USA and Great Britain declared:
‘…Second, they desire to see no territorial changes that do not accord with the freely expressed wishes of the peoples concerned.
Third, they respect the right of all peopes to choose the form of government under which they will live; and they wish to see sovereign rights and self-government restored to those who have been forcibly deprived of them.
…Sixth, after the final destruction of the Nazi tyranny, they hope to see established a peace which will afford to all nations the means in dwelling in safety within their own boundaries, and which will afford assurance that all the men in all the lands may live out their lives in freedom from fear and want.
The representative of the USSR declared his country’s adherence to the principles of the Atlantic Charter on September 24, 1941 in London. However, the Soviet commitment was accompanied by another declaration, the ambiguous wording of which indicated that the USSR considered the Baltic republics as a legitimate part of its territory. See Meissner, Die Sowjetunion, die baltischen Staaten…, p. 119 et seq.
President Roosevelt is quoted as saying at Teheran: ‘He [Roosevelt] said that he fully realized the three Baltic Republics had in history and again more recently been part of Russia and added jokingly that when the Soviet armies re-occupied these areas, he did not intend to go to war with the Soviet Union on this point.’ However, Roosevelt was concerned ‘that the world opinion would want some expression of the people, perhaps not immediately after their re-occupation by Soviet forces, but some day, and that he personally was confident that the people would vote to join the Soviet Union.’ Stalin agreed, with the reservation that such a ‘vote would not be carried out under international control’ whereas in the US records, no answer or objection by Roosevelt is registered and according to the Soviet records, Roosevelt replied: ‘Of course not.’ See Foreign Relations of the United States. Diplomatic Papers, The Conferences at Cairo and Teheran, 1943, 1961, pp. 594–596. Cf. A. Fischer, Teheran, Jalta, Potsdam. Die sowjetische Protokolle von den Kriegskonferenzen der ‘Großen Drei‘, Köln, 1973, p. 139. See also U. Bollow, Die baltische Frage in der internationalen Politik nach 1943, Berlin: FU Politikwissenschaft, 1993, p. 4.
For a recent American view on the Yalta Conference, see H. Kissinger, Diplomacy, 1994, p. 394 et seq. According to Kissinger, ‘Roosevelt agreed to Stalin’s plan to move the frontiers of Poland westward and indicated that he would not press Stalin on the question of the Baltics. If Soviet armies occupied the Baltic States, he said, neither the United States nor Great Britain would ‘turn her out’—though he also recommended holding a plebiscite.’ However, Kissinger adds, ‘Roosevelt was… reluctant to undertake discussion of the postwar world… [and] put forward his comments on Stalin’s postwar plans for eastern Europe so tentatively as to sound almost apologetic.’ See at p. 411. It must be for these reasons that Benvenisti comes to the conclusion that ‘[t]he international community acquiesced to the Soviet resurrection of the 1940 international borders, although formal recognition of the incorporation was generally withheld.’ See Benvenisti, The International Law of Occupation, 1993, p. 68.
On the other hand, at the Potsdam Conference the US official position was more straightforwardly based upon non-recognition of the Soviet conquest. See FRUS, The Conference at Berlin/Potsdam 1945 (1960), p. 799.
The British Foreign Office laid out the policy considerations, commenting at the time that ‘it was doubtful whether American opinion understood the complexity of the political and geographical problems involved in the question of ‘self determination in Europe’… If for instance, the USSR decided, after the war, to absorb the Baltic States, we might be compelled to recognize the facts, and, for the sake of the peace of Europe and our own wider interests, to maintain friendly relations with Russia. The United States would also tolerate the facts, but might refuse to give them formal recognition on moral grounds while accusing us of a selfish surrender of principle See L. Woodward, British Foreign Policy in the Second World War, London: Her Majesty’s Stationery Office, 1970–6, p. 205. Another British Foreign Office memorandum of December 1941 stated: ‘I do not feel that the independence of the Baltic States is a European necessity.’ Quoted from Bollow, p. 12.
For one possible answer by a political scientist, see R.A. Vitas, op. cit., p. 67. For a critical view on the application of the Atlantic Charter in practice, see also S. Korman, The Right of Conquest. The Acquisition of Territory by Force in International Law and Practice, Oxford: Clarendon Press, 1996, p. 163: ‘Thus, despite the avowed commitment of the Allies to principles which entailed the renunciation of the right of conquest, an examination of their practice would suggest a continued acceptance of the rule whereby the right to dispose of territory could be gained by means of military victory or conquest.’
See e.g. Misiunas, op. cit., p. 136. See also AJ. Kochavi, Prelude to Nuremberg. Allied War Crimes Policy and the Question of Punishment, Chapel Hill, 1998, p. 47 et seq. Note that at the UN General Assembly the Baltic issue as such was not taken up by States until 1991, and was mentioned only in other, ‘related’ contexts— colonialism, Hungary 1956, Afghanistan 1979. See e.g. the statement by Varela Quiros (Costa Rica) at UN-Doc. 6th Emergency Special Session, A/PV.4, UN GA Official Records, January 12, 1980.
A.P. Rubin, Ethics and Authority in International Law, Cambridge UP, 1997, p. xiii.
See generally G. Ginsburgs, Moscow’s Road to Nuremberg, the Soviet Background to the Trial, The Hague: Martinus Nijhoff, 1996 and, more recently, F. Hirsch, Soviet Judgment at Nuremberg. A New History of the International Military Tribunal after World War II, Oxford: Oxford University Press, 2020.
See Internationaler Militargerichtshof (Hrsg.) Der Prozeß gegen die Hauptkriegsverbrecher vor dem Internationalen Militargerichtshof, Bd. X, S. 14 et seq., Bd. XIV, S. 315 et seq. See also Bd. XIX, S. 390 et seq.
The reservation of the US Prosecutor Jackson contained the following wording:
‘In the indictment of German war criminals signed today reference is made to Estonia, Latvia, Lithuania and certain other territories as being within the area of the USSR This language is proposed by Russia and is accepted to avoid delay on an alteration in the text. The indictment is signed subject to this reservation and understanding.
I have no authority either to admit or to challenge, on behalf of the United States, the Soviet claims to sovereignty over such territories. Nothing, therefore, in this indictment is to be construed as a recognition by the United States of such sovereignty or as indicating any attitude, either on the part of the United States or on the part of the undersigned, toward any claim to redisposition of such sovereignty.’ Quoted in E. Jaakson, Eestile, Tallinn: SE & JS, 1995, p. 136.
Report of the Select Committee to Investigate Communist Aggression and the Forced Incorporation of the Baltic States into the USSR Third interim report: Baltic States—a Study of their Origin and national Development; their seizure and incorporation into the USSR, Washington: United States Government Printing Office, 1954, p. 8. See also V. Riismandel, ‘Kersteni komisjoni töötulemusi’ (Work Results of the Kersten Committee), in: Võitlev Eesti (Fighting Estonia), Nr. 6, 1956, p. 35.
For more recent and sometimes controversial US practices, see L.F. Damrosch, ‘Enforcing International Law Through Non-Forcible Measures’, 269 RCADI 1997, p. 41 et seq.
This, on the other hand, did not prevent the Government of the United Kingdom, which had recognized the continuity of the Baltic States, from returning the respective amounts of gold to the Baltic governments after the independence of the Baltic States was restored. See infra. For the U.K-Soviet deal, see Agreement between the United Kingdom and the USSR concerning the Settlements of Mutual Financial and Property Claims of 5 January, 1968, UKTS 12 (1968), Cmnd. 3517.
See also E. Jaakson, Eestile, p. 193.
970 Parl. Deb., H.C. (5th ser.) 849 (1979). See also BYBIL 1979, p. 293.
For an earlier and more optimistic look at non-recognition politics, see W. Schätzel, ‘Die Annexion im Völkerrecht’, AVR 1950, p. 28.
Crawford, The Creation…, p. 122 and 128.
R.L. Bindschedler‚’Annexation‘, in: R. Bernhardt (ed.) EPIL, Inst. I, 1992, p. 172. See for similar critique in P. de Visscher, Théories et réalites en Droit international public, Paris: Editions A. Pedone, 4ème éd., 1970, p. 261.
K. Tarand, ‘Kasvuraskused’ (Difficulties of Growing), in: EÜSi Album XVIII, Tartu, 2000, p. 58.
See also R.C. Visek, ‘Creating the Ethnic Electorate through Legal Restorationism: Citizenship Rights in Estonia’, 38 Harvard JIL 1997, p. 326: ‘In retrospect, the West’s refusal to recognize the Soviet annexation was a relatively low-risk act. It did not entail military confrontation, nor by itself did it jeopardize continued relations with the USSR.’ See also the criticism expressed by M. Silagi, Staatsuntergang und Staatennachfolge mit besonderer Berücksichtigung des Endes der DDR, pp. 259–260.
See E. Suy, Les actes juridiques unilateraux en droit international public, Diss. Paris, 1962, p. 71 et seq.
P. de Visscher, Les éffectivités du droit international public, Paris, 3me ed., 1967, pp. 25 and 108.
See Jennings, Acquisition of Title…, p. 25 and Zimmer, Gewaltsame territoriale…, pp. 45–46.
Reinhards, Lettonie-Russie…, p. 158.
As argued by H. Ruiz Fabri, ‘État (création, succession, compétences) …’, AFDI 1992, p. 162.
See for a similar conclusion: V.J. Riismandel, ‘The Continued Legal Existence of the Baltic States’, 12 Baltic Review (7 November 1957), p. 49.
T.-C. Chen, The International Law of Recognition. With Special Reference to Practice in Great Britain and the United States, London: Stevens & Sons, 1951, p. 431.
See on the distinction between recognition and acquiescence in R.Y. Jennings, The Acquisition of Territory in International Law, Manchester: Manchester University Press, 1963, p. 36: ‘Whereas recognition, even though it be tacit, is the adoption of the positive acknowledgment on the part of a State, acquiescence may arise from a mere omission to protest against a situation where a right to protest existed and its exercise was called for.’
See Article 78 of the Soviet Constitution, adopted on October 7, 1977: ‘Soviet republic—sovereign Soviet socialist State which has joined with other Soviet republics into the Union of the Soviet Socialist Republics. In the limits foreseen in Article 73 of the Constitution of the USSR, the Soviet republic independently carries out state power on its territory.’
See J.N. Hazard, ‘Soviet Republics in International Law’, in: EPIL, 1987, pp. 527–8 (see also for further references) and L. Schulz, ‘The Relationship of the Union to the Republics in Soviet Constitutional Law’, in: D.A. Loeber, S.V. Vardys, L.P.A. Kitching (eds.) Regional Identity under Soviet Rule—the Case of the Baltic States, 1990, pp. 351–354. For а Soviet exposition, see Д.И. Фельдман (соз.), Международная nравосубьектность (некоторые воnроы теории), Москва: Юридическая литература, 1971, р. 37 et seq.
See e.g. G. Jellinek, Allgemeine Staatslehre, 3. Aufl., Berlin, 1914, p. 283. For a more recent adoption, see D. Rauschning, Das Schicksal völkerrechtlicher Verträge bei der Änderung des Status ihrer Partner, Hamburg: Hansischer Gildenverlag, 1963, p. 44.
Article 80, the Constitution of the USSR, adopted on October 7, 1977.
For a detailed analysis, see H.-J. Uibopuu, Die Völkerrechtssubjektivität der Unionsrepubliken der UdSSR, Vienna, New York: Springer, 1975 and ‘International Legal Personality of Union Republics of the USSR’, in: ICLQ, Oct. 1975, p. 811. See also the discussion in B. Meissner, ‚Die Souveränität der baltischen Nationen‘ (1980), reprinted in: B. Meissner, Die baltischen Staaten im weltpolitischen und völkerrechtlichen Wandel, 1995, p. 174 et seq.
Thus, Mrs. Leokadia Pilyushenko was identified at the 1967 fall session of the UN as the Foreign Minister of the Lithuanian SSR. The US representative to the Third Committee, Mrs. Patricia Roberts Harris, replied that Pilyushenko had no right to speak on behalf of Lithuania.
Similarly, Mr. Arnold Green from Estonia, being registered as the ‘Minister for Foreign Affairs of the Estonian SSR’, represented the USSR in the 17. General Assembly of the UN when colonisation was the main political issue on the agenda. Between him and the representative of the UK, the following exchange of comments developed. Sir Patrick Dean (UK): ‘The Soviet representative in this debate, who bears the title of Foreign Minister of Estonia, spoke with feeling against the creation of federations or other unions contrary to the wishes of the populations concerned. Could it be that he is recalling the unhappy fate of his own country of Estonia, which was a free and independent State and a member of the League of Nations until 1940, when it was forcibly incorporated into the Soviet Union?’ Mr. A. Green (USSR): ‘.In his statement [1175th meeting] Sir Patrick Dean said that the Soviet representative bore the title of Foreign Minister of Estonia. I can inform him that not only do I bear that title but that I am in fact the Foreign Minister of the Estonian Soviet Socialist Republic and that I represent the interests of its people. In the present instance, however, I represent first and foremost the interests of all the peoples of the great Soviet Union. As for the assertion that I ought to know the history of my own country, I may say categorically that I do know it and I will ask you, in this connexion, to allow me to present some typical facts drawn from it. The whole world must know that the hard-working Estonian people took an active part in the Great October Revolution at the side of the workers and peasants of Russia (…) Sir Patrick Dean mentioned in his statement that the ‘bourgeois’ Estonian Republic, which was the creation of the imperialists (this last clarification is mine), was independent and was even a member of the League of Nations. Yes, it was indeed a member of the League of Nations; but the sort of independence it enjoyed is best known to the Estonian people itself. (…) The result of Estonia’s so-called independence was that it had the lowest standard of living of any nation in Europe, not to speak of such evils as permanent unemployment, the paucity of secondary schools, and so on. In 1940, when the pro-fascist Estonian Government stood alone and could no longer count on help from its imperialist patrons, the workers of Estonia drove it out and replaced it with the Soviet power, which opened up for them vast prospects of economic and cultural development (…) With the fraternal help of the Russian people, many small nations and peoples have been able, in two or three decades, to attain to development which in other circumstances they would have taken centuries to reach. (…) The Soviet Union is the only country in the world which has saved many nationalities from extinction. (…) On this subject let me make it clear once more that the Soviet peoples, including the Estonian people, do not need any self-appointed advocates such as the delegates of certain Western countries who have spoken here endeavour to constitute themselves. We would say to these gentlemen: the facts of history are against you. Indeed, history should clearly instruct you that, if it has proved impossible to make the dreams of the imperialists come true by armed intervention, there is absolutely no help to be derived from the malicious and slanderous attacks to which, in this Assembly, the representatives of the colonial Powers resort.’ See A/PV.1172–1202 Official Records of the General Assembly Seventeenth Session, Plenary Meetings, Volume III, Verbatim Records of Meetings, 21 November-20 December 1962, United Nations, New York, 1964, p. 934–5.
We therefore disagree on this matter with Obiora Chinedu Okafor who sees ‘legitimacy that was for a long time accorded to the Soviet states of the Baltic region.’ See Redefining Legitimate Statehood. International Law and State Fragmentation in Africa, The Hague: Nijhoff, 2000, p. 66.
See R.A. Vitas, op. cit., p. 83.
U. Fastenrath, ‚Das Recht der Staatensukzession‘, in: BDGV, Heidelberg, pp. 9–48 at p. 16. (Transl. from German.)
See G. Tunkin, ‘International Law in the International System’, 147 RCADI 1975, pp. 41–44.
See Repečka, op. cit., p. 47.
See The Baltic States 1940–1972…, p. 20.
See Repečka, op. cit., p. 47.
Misiunas, op. cit., p. 135 and Vitas, op. cit., p. 39.
Misiunas, op. cit., p. 135.
Quoted in The Baltic States 1940–1972…, p. 14.
Quoted in The Baltic States 1940–1972… p. 14.
Repečka, op. cit., p. 83.
Misiunas, op. cit., p. 139.
See E. Jaakson, Eestile (To Estonia), p. 96.
R.A. Vitas, op. cit., p. 42.
Cf. Misiunas, op. cit., p. 140.
Misiunas, op. cit., p. 140.
See the certificate of the Foreign and Commonwealth Office in Re an Application by Ernst Jaakson and Aarand Roos, 85 ILR 53 at p. 57. See also HL Debs., vol. 440, col. 1449: 28.3.1983, printed in: 54 BYBIL 1983, p. 3384.
Misiunas, op. cit., p. 139.
Jaakson, op. cit., pp. 207–208.
Misiunas, ор. cit., р. 139.
Jaakson, op. cit., p. 214. For the contribution of K.-R. Pusta to international law scholarship, see e.g. K.-R. Pusta, ‘Le statut juridique de la mer Baltique à partir du XIXe siècle’, 52 RCADI 1935, pp. 105–190.
Misiunas, op. cit., p. 140.
This was the nonconventional name of this Legation. In the strict terms of international diplomatic law, such a name was a curiosity, yet the US Government recognized it as such, and it was included in the Diplomatic List in Washington, DC See E. Jaakson, op. cit., p. 65.
Jaakson, op. cit., p. 174. See also A. Velliste, Ernst Jaaksonile, Tallinn: Eesti Entsüklopeediakirjastus, 2000.
See also E. Medijainen, Saadiku saatus. Välisministeerium ja saatkonnad 1918–1940, (The Fate of the Ambassador: The Foreign Ministry and the Legations in 1918–1940), Tallinn: Eesti Entsüklopeediakirjastus, 1997, p. 258. (Summary in English.)
See Jaakson, op. cit., p. 19 et seq.
See ‘Ernst Jaakson, Estonian Envoy, Dies at 93’, International Herald Tribune 26–27 September 1998.
See Digest of United States Practice in International Law 1979, p. 111.
See Jaakson, op. cit., pp. 216–217.
See Jaakson, op. cit., p. 113.
Jaakson, op. cit., p. 113. Cf. Vitas, op. cit., pp. 43, 110 and 112.
Misiunas, op. cit., p. 140. As the head of Lithuania’s mission, Lozoraitis Jr. played a prominent role in the restoration of Lithuania’s independence, acting as the adviser to Supreme Council Chairman Landsbergis. See Lieven, op. cit., pp. 235 and 71.
Misiunas, op. cit., p. 140.
See Jaakson, op. cit., p. 95.
See also Digest of United States Practice in International Law 1979, p. 173.
See Jaakson, op. cit., pp. 111 and 115.
Jaakson, op. cit., p. 115.
Misiunas, op. cit., p. 141.
Jaakson, op. cit., p. 202. Cf. Vitas, op. cit., p. 111.
The New York Supreme Court, Special Term, Queens County, April 21, 1943; 41 N.Y.S. (2d) 752–757; Ibid., Part I, October 8, 1948; 84 N.Y.S. (2d)2. (the Estonian consul general’s status was affirmed on the basis of general international law and US-Estonian treaties.)
In re Luks’ estates, 256 N.Y.S. 2d 194, also reported at 59 AJIL 1965, p. 642 et seq.
Misiunas, op. cit., p. 141.
Misiunas, op. cit., p. 141–142.
See E. Roosaare, ‘Consular Relations between the United States and the Baltic States’, 27 Baltic Review (June 1964), pp. 23–32. Cf. Jaakson, op. cit., p. 98.
See Kaarel Robert Pusta’s archive, Hoover Institute at Stanford University.
See e.g. A. Warma, ‘Pensées, sur l’identité et la continuité de l’Etat. (Situation juridique de la République d’Estonie.), in: J.G. Poska (ed.) Pro Baltica. Mélanges dédiés á Kaarel R. Pusta, Stockholm: Comité des Amis de K.R. Pusta, 1965, pp. 219–228 (referring repeatedly to Marek).
See e.g. H. Krieger, Das Effektivitätsprinzip im Völkerrrecht, p. 443.
A. Peters speaks of ‘im Exil befindlichen Exilregierungen’, see op. cit., p. 151.
For related attempts in Lithuania and Latvia, see The Baltic States 1940–1972…, pp. 63–69.
See also L. Mälksoo, ‘Professor Uluots, the Estonian Government-in-Exile and the Continuity of the Republic of Estonia’, 69 Nordic JIL 2000, pp. 289–316.
As put by Marek: The Estonian Constitution obviously did not provide for the nomination of national governments according to lists drawn up by organs of a foreign State. See Marek, op. cit. p. 384.
See M. Orav, E. Nõu (eds.) Tõotan ustavaks jääda…: Eesti Vabariigi Valitsus 1940–1992 (I Swear to Remain Faithful…: Government of the Republic of Estonia 1940–1992), Tallinn: Eesti Kirjanduse Selts, 2004.
For an early account of these endeavors, see We Demand Freedom for Estonia. Memoranda Presented to the Delegations at the Paris Conference (1946), London: Boreas, 1947.
On positions of the US and UK, see Jaakson, op. cit., p. 170 and 195.
See the meeting of the Estonian diplomatic representatives from the legations in New York and London with the Acting President of the government in exile, A. Warma, in London on April 27, 1966. See Jaakson, op. cit., p. 171.
See Fiedler, ‘Continuity’, p. 808.
See H. Mark, Vabariigi President ja Vabariigi Valitsus Eksiilis 1988–1992 (President of the Republic and the Government of the Republic in Exile in 1988–1992), Akadeemia 1997 No. 7, p. 1443 et seq.
See Marek, op. cit., p. 410; Misiunas, op. cit.; Silagi, op. cit., p. 257; Meissner, Sowjetunion, die baltischen Staaten… p. 200; Yakemtchouk, op. cit., p. 273.
Cf. R.A. Vitas, op. cit., p. 41.
US Department of State, Statement by Robert L. Barry, Assistant Secretary for European Affairs, before the Subcommittee on International Organizations of the House Committee on Foreign Affairs, June 26, 1979, pp. 4–5.
See e.g. W. Schaumann, ‚Exilregierung‘, in: K. Strupp and H.-J. Schlochauer (eds.) Wörterbuch des Völkerrechts, 2. Aufl, Band I, Berlin: Springer, 1960, p. 498.
See K. Doehring, ‘State’, in: EPIL 10, 1987, p. 427.
Cf. J. Crawford, The Criteria for Statehood…, p. 144 et seq.
See T. Franck, ‘The Emerging Right to Democratic Governance’, 89 AJIL 1992, pp. 46–91; J. Crawford, ‘Democracy and International Law’, 64 BYBIL 1993, p. 113.
Bowett, Case Concerning Territorial Dispute (Libya-Chad), I.CJ., Public Sitting, CR 93/28, p. 19.
See e.g. A. Verdross, Völkerrecht I, Wien, 1964, 5. Aufl., pp. 288–289 and H. Krieger, Das Effektivitätsprinzip im Völkerrecht, p. 455.
J.S. Brown, ‘Sovereignty in Exile’, 35 AJIL 1941, pp. 667–668.
See G. Orwell, Nineteen eighty-four, London: Secker & Warburg, 1997.
Cf. also with respect to totalitarian States G. Arangio-Ruiz, ‘L’État dans le sens du Droit des Gens…’, p. 292.
See esp. H. Arendt, The Origins of Totalitarianism, London: André Deutsch, 1986. With respect to Soviet totalitarianism see especially p. 303 et seq.
In Estonia, up to 30 000 Estonian ‘forest brethren’ fought against the Soviet army and functionaries in 1944–1956. See M. Laar, War in the Woods. Estonia’s Struggle for Survival 1944–1976, Washington, DC: The Compass Press, 1992. See also Lieven, op. cit., pp. 87–92.
The last known Estonian forest brother, Johannes Lillenurm, died at liberty in 1980.
See also L. Mälksoo, ‘The European Court of Human Rights and the Qualification of Soviet Crimes in the Baltic States’, 39 Human Rights Law Journal 2019, pp. 19–22.
See for discussion L. Mälksoo, Soviet Genocide? The Communist Mass Deportations in the Baltic States and International Law, 14 Leiden JIL 2001, pp. 757–787.
H. Krieger, Das Effektivitätsprinzip im Völkerrecht, 2000, p. 426.
See e.g. D. Bungs, ‘Joint Political Initiatives by Estonians, Latvians, and Lithuanians as Reflected in Samizdat Materials 1967–1987’, in: Loeber/Vardys/Kitching (eds.) Regional Identity…, 1990, pp. 429–462. For the resistance movement in Estonia, see the articles by Viktor Niitsoo in the monthly Akadeemia (with summaries in English): Rahvuslik vastupanuliikumine aastail 1977–1962 (National Resistance Movement 1955–1962) No. 12, 1994, pp. 2513–2539 and No. 1, 1995, pp. 58–71; Eesti rahvuslik vastupanuliikumine aastail 1968–1977, No. 9–10, 1993, pp. 1819–1833 and 2905–2110.); Avalik vastupanuliikumine aastail 1977–1984, No. 9–10, 1992, pp. 1917–1933 and 2180–2194. For a tragic individual act of resistance in Soviet Estonia, see R. Taagepera, Softening without Liberation in the Soviet Union: the Case Jüri Kukk, University Press of America, Inc., 1984.
K. Prunskiene, ‚Unabhängigkeit als Option…’, in: K. Ludwig (ed.) Perspektiven für Tibet, 2000, p. 94. (Translated from German.)
See further Lieven, op. cit., pp. 103–108.
For instance, in 1967, the World Organization of Free Latvians (PBLA) presented the French President Charles de Gaulle with a memorandum in which it discouraged the President from visiting the Latvian capital Riga during his official visit to the USSR. The Kremlin had insisted upon such a visit, but the PBLA argued that it would imply recognition of Latvia’s incorporation into the USSR. Finally, President de Gaulle did not go to Latvia during his visit to the USSR. Protests by Baltic exiles also played a crucial role in the unprecedented reversal of Australia’s decision to recognize the incorporation of the Baltic States into the USSR. See Lettland unter sowjetischer und nationalsozialistischer Herrschaft, 1998, p. 172.
Marek, op. cit., p. 579.
See H. Lauterpacht, Recognition in International Law, pp. 427–430. See also Marek, op. cit., pp. 577–578.
See Marek, op. cit., p. 578.
For a similar conclusion, see F. Frhr. Waitz von Eschen, ‚Zur internationalen Lage der baltischen Republiken nach Erlangung der Unabhängigkeit‘, in: 42 Osteuropa 1992, p. 321.
See e.g. A.A. Эсаян, Некоторые вопросы теории и исторuи международного права, Ереван: Издательство Ереванского Университета, 1977, p. 163 et seq. See also for an overview B. Meissner, ‚Die sowjetische Stellung zur Annexion und zur Ersitzung‘, in: Int.Recht und Dipl. 1964, pp. 96–100.
Ю.Г. Барсегов, Территория в международном nраве, 1958, p. 141.
Ю.Г. Барсегов, op. cit.. Cf. also Wiewióra, op. cit., p. 168.