1 The Prevailing Understanding of State Continuity in Doctrine
(…)it must be open to the gravest doubt whether in practice the principle of a truly integral restitution stands any chance of implementation or whether, in fact, it does not merely represent a maximum postulate from which important concessions will have to be made. For it is submitted that the actual effectiveness of illegal foreign domination cannot be disregarded and that it will leave its lasting traces even in the most favourable case of its elimination.2
Marek went on to refer to the ‘plain impossibility of treating an executed illegal act as non-existent,’3 and pointed out that ‘life goes on in the annexed or occupied territory, or under a puppet authority, some sort of a legal order is maintained and acts take place which are not illegal in themselves.’4
This criterion fully and absolutely excludes any alteration of the international status of the victim State which—if the principle of its unbroken continuity is to have any meaning at all—must precisely emerge from the period of foreign domination with all its international rights and duties unimpaired, and with the continuing international delimitation of all its spheres of validity under international law. This is why neither changes in the nationality of the population, nor territorial changes, can be accorded even a provisional validity by the restored State or by third States.7
Marek concluded that ‘the restoration of an illegally suppressed State combines the basic principle of its continuity with necessary and unavoidable limitations, in exactly the same way as a restoration of a State after belligerent occupation. In neither cases does it—or can it—mean a legal earthquake.’8
Although the last formulation elegantly leaves space for manoeuvring, it is clear that even in cases of illegally suppressed States, Marek sees the very continuity of a State—‘if the principle of its unbroken continuity is to have any meaning at all’—as the continuity of its international rights and obligations. In any case, in the fundamental issues of nationality, territorial changes and the like, the legal presumption is in favour of the illegally suppressed State, its legal rights and interests. From the emphases of Marek’s analysis, it can be presumed that her basic understanding of the concepts of State continuity and identity as a presumption in favour of the continuity of international legal rights and obligations, is formed with a special view toward States restored following illegal suppression.
Although Marek’s normative concept of State continuity has to some extent been criticized by Crawford, it still ‘haunts legal imagination’, as Martti Koskenniemi has argued.9 In turn, Koskenniemi criticizes the way ‘(m)uch of the recent
But can international law uphold Krystyna Marek’s normative promise, the claim of the continuity of rights and duties? At the State level, writes Jean Touscoz, it is only the effectivity of State power that legitimizes employment of fictions.11 On an international level, there is no comparable effective power. Ulrich Fastenrath is therefore much more doubtful than Marek when suggesting ‘it is not clear… what legal concequences can be derived from the restoration of identity, considering the fundamental intervening change in circumstances.’12 Similarly, the British international law scholar Ian Brownlie warned against the ‘tyranny of concepts’ in cases of State succession and continuity.13 The presumption is thus that even the legal world is not black and white, but may contain grey shades. This may be seen in the case of the Baltic States, where the time factor made their continuity with the pre-1940 republics in practice a qualified continuity.
Upon the restoration of their independence in 1991, the Baltic States invoked their legal status as true disciples of Krystyna Marek’s normative concept of State continuity. They began from the presumption that, at least with respect to fundamental aspects of statehood (territory, nationality, legal status as occupied countries) they were legally entitled to invoke their (former) rights. Their national leaders seemed to assume that the Baltic States had won back their rightful legal status and as long as this had been recognized, other normative consequences in international relations would have to follow. However, as we shall see in the following, this approach has been only partly successful since it appears that, as the Belgian international law scholar Jean Salmon
2 Special Circumstances in the Baltic Case
The post-1991 treaty practice of the Baltic States has already been summarized in the second chapter of this study. There are numerous facts in diplomatic practice that demonstrate the restoration of former legal rights and obligations after 1991. Some of the diplomatic steps taken were of a primarily symbolic nature. Nevertheless, contrary evidence also exists. In several cases, third States recognized the identity of the Baltic States as such, but insisted that the pre-1940 treaties could not be applied any longer in the new circumstances.15 In the case of Estonia, for instance, among those States rejecting the validity of treaties concluded before 1940 are those that in principle recognized claims to State continuity (Germany, Italy), as well as those that did not (Russia, Japan).16 In many of these cases—with the exception of the Baltic peace treaties with Russia—the treaties concerned are of marginal importance in the modern world, and their continued application would indeed have been a largely empty gesture.
On the other hand—some implications of invoking claims for the identity of the Baltic States with the pre-World War II republics have been accepted even by neighbouring States that had recognized the Soviet annexation in earlier decades, but traditionally had close relations with the Baltic States—for example Sweden.17
However, in one interesting sense (leaving aside the obvious time factor), the case of restoration of the Baltic States differs from the other cases of recognized State continuity discussed above (for example Austria 1938–1945 or
This differs from the Baltic case, where restoration of independence occurred some months before the collapse of the USSR, with no international judicial or political body giving politically authoritative answers—à la 1943 Moscow declaration in the case of Austria—upon termination of the illegal situation. Indeed, in 1991 the Russian Federation demonstrated a fair amount of goodwill in ending the illegal situation created by the USSR, and (of course also due to international pressure) did not impose upon the Baltic States its conditions of separation. Only in 1994, when the last Russian troops had left the Baltic States, were some tradeoffs negotiated in the respective treaties, for example concerning retired members of the Soviet and Russian army still living in the Baltic States.
Understandably, the most important issues concerning restoration of former rights and duties are connected with the State whose predecessor regime was responsible for the illegal situation (as Germany was in the cases of Austria or Czechoslovakia). In short, the result has been a situation in which the Western States (which never recognized the incorporation of the Baltic States into the USSR) have been favourable to the Baltic continuity claim, while the continuator State of the USSR,19 the Russian Federation, has chosen not to do so.
In practice, it remains an underlying question with respect to restoration of the independence of the Baltic States in 1991: was restoration due at all to international law, whose concepts resulted in the denial of sovereign title to the USSR? Was restoration primarily an extra-legal act? The non-recognition doctrine brought no tangible results in fifty years; is it then realistic to imply that it played a decisive role in the restoration of independence in 1991? Should the Baltic States more than anything be thankful to the Russian Federation for the (almost) peaceful20 restoration of their independence? This point of
This author has chosen three controversial issues where Baltic and Russian views on the legal status of the Baltic States have clashed. A more detailed understanding of these issues says much about the relevance of the doctrine of State continuity, of the relationship between legal status and its normative consequences. These issues are: first, the controversy about the citizenship rights of the mostly Russian-speaking Soviet era immigrants in Latvia and Estonia; second, the debate about the legal validity of the Latvian-Russian and Estonian-Russian Peace Treaties, particularly the issue of State boundaries; and third, the question of Russia’s responsibility for the illegal Soviet annexation of the Baltic States.
3 The Controversy about the Principle of Continuity of Citizenship and the Political Rights of Soviet Era Immigrants
a Introduction
In one important respect, today’s Baltic States inevitably have a strong de facto link or continuity with the Soviet era—the composition of their populations was altered significantly during fifty years of illegal annexation. Consequently, upon re-establishment of their independence, Latvia and Estonia, where the demographic changes of the Soviet era had been most drastic, refused to extend citizenship rights automatically to the mostly Russian-speaking immigrants of the Soviet era. Thus, in the early 1990s, the Soviet-era immigrants became legally speaking aliens in those countries—when they wish(ed) to
The issue of the political rights of the Russian-speaking Soviet era immigrants in the Baltic States has thus become linked with the issue of the legal status of the Baltic republics. More than that, it became one of the most disputed and controversial legal and political questions in the Baltic States after restoration of their independence. In the following, we investigate particularly what impact domestic and international arguments concerning the legal status of the Baltic States have had upon citizenship policy in Latvia and Estonia.22 However, no analysis of the minorities issue would be complete without first discussing the historical background.
b The Migration Policies of the Soviet Authorities
In 1918, the self-determination claims of ethnic Estonians, Latvians and Lithuanians delivered a raison d’êtrе for the creation of these new independent States. However, the declarations of independence already referred to the peoples, in the plural, living there. The titular ethnicities lived together with relatively small but historically significant German, Russian, Jewish, Swedish and other minorities. In 1922–1923, the young Baltic republics delivered declarations extending ‘the protection of the League of Nations’ to their minorities.23 As a consequence, the Baltic republics adopted laws of so-called cultural autonomy, which gave their national minorities widespread autonomy in cultural, linguistic, educational, and other matters.24 Protection of minority rights in the pre-1940s Baltic States, especially in Estonia, has been praised as
Repressions by the Soviet occupying power had an immediate effect on the Baltic populations. First, according to the plan of Umsiedlung undertaken by Nazi Germany after Estonia and Latvia in the German-Soviet Non-Aggression Pact were left in the Soviet sphere of influence, in 1939–1940 most of the ethnic Germans were (formally voluntarily) transferred to territories that Germany had seized from Poland. Those Germans who refused to leave in 1940 left the Baltic republics in the course of the Nachumsiedlung in early 1941, after experiencing the first repressive year of Soviet occupation. That first Soviet year of occupation was marked by the murder of large numbers of the Estonian, Latvian and Lithuanian political and military elite, and the deportation of nearly one hundred thousand Balts to Siberia on June 14, 1941. Death rates in the Siberian camps were very high, and those few deportees who later managed to return to their homelands, were often morally or physically broken.
Fears of continuing Stalinist repression forced several hundred thousand Balts to flee into exile in 1944, when the Soviet army was wresting the Baltic States from the retreating Germans. The Baltic nations lost some 20 % of their populations as a consequence of World War II; beside Poland and Byelorussia, these are among the highest proportional losses in Europe. By 1945, the Estonian population had dropped to 845,000 people, 97.3 per cent of whom were ethnic Estonians. Besides several smaller mass deportations, more than a hundred thousand Baltic citizens were deported to Siberia in another mass deportation of March 25, 1949.27
In Estonia, developments are indicated by the declining share of the ethnic Estonians in the composition of the population of Estonia:30
Share of ethnic Estonians in the composition of Estonia’s population
| Total population | % Ethnic estonians | |
|---|---|---|
| 1945 | 845,000 | 97.3 |
| 1959 | 1,196,791 | 74.6 |
| 1979 | 1,464,476 | 64.7 |
| 1989 | 1,565,662 | 61,5 |
| 1995 | 1,491,583 | 64.2 |
Migration into Lithuania from the USSR was less drastic, arguably since the local Communist Party included more Lithuanian nationalist members who managed to resist settlements plans proposed by Moscow.31 In Latvia and Estonia, where the titular ethnic groups were in the minority in the local communist parties, the local population had no means of exercising control over Soviet settlement policies.
Moscow’s policy of Russification also included overall promotion of the Russian language, creating a situation in which the majority of the Russian-speaking immigrants felt no need to study local languages—essential elements in the identities of the Baltic titular nationalities. The integration promoted by the Soviet authorities in the Baltic States was in reality a policy aiming at assimilation of the native non-Russian population. On the one hand, Russian culture and the Russian language were extensively introduced in the Baltic States; on the other hand, the USSR did not encourage Russian immigrants to study the Baltic languages, considered too difficult (or, at least, different) and insignificant. According to the 1989 census in the USSR, only 13.7 % of Russians
When the independence movement started in the Baltic States in 1988, and a portion of the Soviet-era immigrants manifested their opposition to the prospect of separation from Russia, the result was the formation of the Citizens’ Congresses in Estonia and in Latvia.
c The Citizens’ Congresses in Estonia and Latvia in 1990
When the independence claim was vocally opposed by some Soviet-era settlers, the political leaders representing the citizens of the (pre-war) republics of Estonia and Latvia and their descendants born during the Soviet annexation period claimed that the settlers’ ‘no’ to restoration of independence could not be measured with the same yardstick as the ‘yes’ of the citizens of the legally still-existing Republics of Estonia and Latvia.33 Thus was born the Citizens’ Congresses movement.
The very idea of forming the Estonian and Latvian Citizens’ Committees began at the grassroots level;34 the organization for registration of citizens and elections to the Congresses was carried out by volunteers. The election of both bodies thus manifested the desire of the citizens of Estonia and Latvia to reconstitute themselves politically. In winter/spring 1990, the citizens of the republics of Latvia and Estonia elected their own representative assemblies, the Estonian and Latvian Citizens’ Congresses. Elections took place without interference by the Soviet authorities and were marked by high levels of participation.35 The Congresses met for the first time in March and May 1990 in Estonia and Latvia respectively.
Soviet-era immigrants who supported the independence process were encouraged to register as candidates for future citizenship; upon restoration of independence, they were promised naturalization in a simplified process by the movement leaders. A number of people used this opportunity; their
The Estonian and Latvian Citizens’ Congresses played an important role in the decisions and processes leading to the restoration of independence in 1991. Both served as watchdogs of sorts when legitimate State power had not yet been restored, and put political pressure on the Supreme Councils so that the latter bodies—elected both by citizens and Soviet era immigrants—would not depart from the idea of restoring the independence lost in 1940. In Estonia, the new Constitution, adopted in a referendum on June 28, 1992, was drafted by the Constitutional Assembly, to which both the Supreme Council and the Estonian Citizens’ Congress elected 50 % of the members.
Most importantly from the point of view of this section in our study, the rationale of the Latvian and Estonian citizenship laws was born in the Estonian and Latvian Congresses. Authors advocating more liberal citizenship rights in the Baltic States have therefore offered a somewhat critical assessment of the Estonian and Latvian Congresses.36
d Baltic Debates about the Political Rights of Russian-Speaking Settlers in the Early 1990s
As already indicated, the Baltic independence movements in the late 1980s began with the proposition that the Baltic States, being illegally annexed in 1940, did not become extinct as subjects of international law and remained occupied territories from the point of view of international law. Earlier, the author of the present thesis came to the conclusion that Soviet rule, even though annexation was a fact, can be called occupation, although it is debatable whether the 1949 Geneva Conventions became formally applicable in the Baltic States.
The Baltic independence movements invoked the argument that State-sponsored mass immigration from the Soviet Union violated international legal rules on occupation, particularly the 1949 Geneva Conventions.37 A more radical segment of the political leaders in Latvia and in Estonia argued that, according to international law, the Baltic republics would now, upon termination of occupation, be entitled to demand that the Soviet settlers leave.
For these reasons, the initial sporadic calls in the early 1990s demanding that the mainly Russian-speaking immirgants should return to their countries of origin were unrealistic at the outset. However, there remained concerns about the political loyalty of especially those Soviet-era immigrants who had not learned the Baltic languages, and thus had little access to the political life of the re-emerging Baltic communities.38 Therefore, in citizenship matters, automatic conferral of citizenship on everybody living in Estonia and Latvia by 1991 was rejected.
As a consequence, Soviet settlers in Estonia and Latvia were not granted automatic citizenship rights. They could choose Russian (or Ukrainian, etc) citizenship and if they did not wish to obtain this, they remained alien residents who could subsequently apply for Estonian or Latvian citizenship through naturalization.39 At the same time, those ethnic Russians whose ancestors had been, or who themselves had been citizens in 1940, regained their citizenship automatically.
e Baltic Nationality and Naturalization Laws
i Estonia
After restoring independence, Estonia highlighted the principle of continuity of citizenship and on February 26, 1992, reintroduced the 1938 Law on Citizenship, as amended in 1940. Estonian citizens were defined as those persons who
The new Estonian Law on Citizenship was adopted on January 19, 1995 and took force on April 1, 1995. It stipulated that aliens could apply for Estonian citizenship through naturalization. The naturalization requirements were as follows (Art. 6): the applicant must (1) show five years of permanent residence in Estonia plus one year after registering an application; (2) be at least fifteen years of age; (3) know the Estonian language in accordance with the requirements provided for by law; (4) know the Estonian Constitution and the Law on Citizenship; (5) have a permanent legal income; (6) demonstrate loyalty to the Estonian State; and (7) take the loyalty oath.
According to the 1995 Law on Citizenship, the following groups could not apply for Estonian citizenship: (1) foreign military personnel in active service; (2) persons who had been employed by the USSR security and intelligence organizations; (3) persons convicted of a serious criminal offence and imprisoned for over one year, if not rehabilitated, or with a record of repeated sentencing; and (4) persons without permanent income.
The 1993 Estonian Law on Aliens introduces the category of permanent residents which includes both Estonian citizens and aliens residing in Estonia who possess a permanent residence permit (Art. 4(1)). The latter persons—usually stateless persons who are permanent residents—may be entitled to a so-called ‘aliens’ passport.’ Thus, subject to more detailed requirements, Estonia agreed to grant Soviet-era immigrants work and residence permits and issue alien passports to those individuals who had become stateless.
ii Latvia
The premise according to which the citizenship question is dealt with [is] that the aggregate body of the citizens of the Republic of Latvia, as identified by the 1919 Law on Citizenship, continues to exist, irrespective
of the loss of the State’s sovereign power in consequence of the 1940 occupation.
Moreover, the 1991 Latvian Resolution declared that the September 7, 1940 USSR Decree on the Order in which the Lithuanian, Latvian and Estonian SSR Citizens are Granted USSR Citizenship was null and void ab initio, and that the rights of Latvian citizens were to be restored. Only those residents who were citizens on June 17, 1940 and their descendants could thus take part in the elections to the Latvian Parliament (the Fifth Saeima) in 1993.
The underlying principle of Latvia’s citizenship regulation was crystallized in the 1994 Law on Citizenship. Article 12 of this Law stipulated that all permanent residents of Latvia, regardless of ethnic, religious or social background, could apply for citizenship. The naturalization requirements are (1) residence in Latvia for a minimum of five years counting from May 4, 1990, (2) knowledge of the Latvian language, Constitution and history, (3) a loyalty oath to the Republic, and (4) a legitimate source of income.
Certain categories of individuals were not entitled to apply for Latvian citizenship (Art. 11). These were (1) individuals who acted anti-constitutionally after January 13, 1991, if established by a court decree, (2) who are or have been members of foreign security or armed forces, if that fact is established according to procedures set by law, (3) or who have served criminal sentences of more than one year.
The Law on the Status of Former USSR Citizens Who are not Citizens of Latvia or any other State determined that citizens of the former USSR who lived in Latvia on July 1, 1992, and were not citizens of Latvia or any other State, were permanent residents. The Law guarantees human rights, including the right to free movement, to permanent residents in Latvia (Art. 2).
In both Latvia and Estonia, diplomatic protection was extended to stateless persons who were permanent residents of those countries.
iii Lithuania
In 1989, Lithuania adopted the Law on Citizenship, later superseded by the 1991 Law on Citizenship. The 1989 Law stipulated that permanent residents of Lithuania who were not citizens could automatically—through the principle of continuity of Lithuanian citizenship—opt for Lithuanian citizenship within a period of two years. They had to prove permanent residence and take an oath. Thus, Soviet-era immigrants were enitled to opt for Lithuanian citizenship through a simplified naturalization procedure, although they were considered not having it ipso facto. Lithuania thus avoided the problem of statelessness for some of its Soviet-era immigrants, although its underlying logic of citizenship
f Acceptance by the International Community of Continuity of the Nationality Principle in Estonian and Latvian Citizenship Laws
the specific factual situation of annexation accompanied by the influx of very large numbers of persons into a small State with a different ethnic origin, followed by 50 years of settlement and multi-ethnic coexistence, followed by the re-emergence of the original State as an independent entity, does not seem to have been envisaged by drafters of the relevant [human rights] instruments.42
The fact that Estonia and Latvia did not accord automatic citizenship to the immigrants of the Soviet period has been criticized by the Russian Federation as discriminatory. The international law scholar Stanislav Chernichenko seems to sum up the Russian critique when he writes that ‘[t]he authorities of Latvia and Estonia continue to use the events that happened in the Baltic area in 1940 as a pretext for limiting the rights of the Russian-speaking population which lives in their territory.43 Russia has invoked the 1991 Fundamental Treaties with Estonia and Latvia which in Articles 2 and 3 envisage for residents the right to choose their citizenship in accordance with the laws of the respective States. Russia and the two Baltic States have interpreted this stipulation differently: while Russia laid emphasis at the ‘right to choose citizenship’, Estonia
The Russian critique was shared by some Western human rights NGO s and scholars who were troubled by the fact that as the result of application of the continuity of nationality principle in Latvia and Estonia, a considerable segment of the population—mostly Russian speakers—became stateless.45 For this reason, some authors have questioned the legitimacy of the State continuity principle in matters of citizenship: ‘On the whole this seems a harmless legal fiction, except when the States resurrect laws such as Estonia’s 1938 Citizenship law which discriminates against the forty per cent of its population that are Russian settlers from after that date.46
However, this kind of accentuation of the legal status of and human rights situation in Latvia and in Estonia represented a minority view. Generally, the international community seems to have recognized that the principle of continuity of the Baltic nationalities was acceptable under international law.47 This is not so surprising in light of the fact that a majority of the members of the international community had recognized the restoration of the Baltic States in 1991.
There is an observable tendency in some human rights analyses to be blind with respect to other fudamental principles of international law48 and to see
The main troublesome question has been why the language requirements—the legitimacy of which as such has been confirmed by pertinent international institutions and observers49—have proven an obstacle for some members of the Russian speaking immigrant population of the Soviet era.50 The conflict has also been interpreted as one between collective and individual human rights, a dilemma that has traditionally been resolved in favour of individual human rights in Western scholarship.51 The defence of Estonia and Latvia for their statehood, language and culture through their citizenship laws of the 1990s did not therefore fit smoothly into the predominant discourse of human rights in the West.52
For humanitarian and political considerations, the international community took the view that demographic changes in Latvia and Estonia during the Soviet annexation period could not just be wiped out by the Baltic State continuity argument. The populations of Estonia and Latvia had become ethnically much more heterogeneous during the Soviet annexation period, and the majority of Russophone settlers wished to stay in the restored Baltic States. Besides human rights considerations, it was also clear that the long-term socio-political exclusion of an important segment of the population could
Changed social and political circumstances influence the perception of law, which is why the principle ex factis oritur ius was accorded significance by the international community, and—following some international pressure—by the respective States themselves. The position of the international community was that whatever the legal status of the Baltic States during Soviet-era immigration, there is still a need to begin from existing facts (normative Kraft des Faktischen!) when sustainable solutions concerning human beings are sought. For example, the OSCE High Commissioner on National Minorities, Max van der Stoel, accepted the principle that the Soviet settlers could not be considered nationals automatically, but argued that there was a presumption to the effect that the long-term residents had the right to acquire nationality.54 The UN Human Rights Committee expressed ‘its concern that a significantly large segment of the population, particularly members of the Russian-speaking minority, are unable to enjoy Estonian citizenship due to the plethora of criteria established by law, and the stringency of the language criterion…’55
Estonia and Latvia were entitled, in the opinion of the international legal community, to base their nationality laws on the State continuity principle. However, in many ways international institutions took the view that these two States would do wisely to extend nationality to persons who had settled in their territories during the Soviet period and who now had no other citizenship in sight.56 The requirement introduced in Estonia and Latvia that Soviet-era immigrants would have to learn the respective State languages to be eligible for citizenship, has been accepted as reasonable. At the same time, Estonia was pressured to relax its initial language requirement somewhat and Latvia to remove its initial annual quota (citizenship windows).57
g Conclusion: No Unrestricted Restoration of Nationality in the Baltic Case
Other States apparently considered Estonia and Latvia to be States formed as a result of the dissolution of the USSR, rather than as States whose sovereignty continued during a period of belligerent occupation and unlawful annexation. Had the latter analysis, urged by Latvia and Estonia, been accepted, the principle reflected in the law of the belligerent occupation would prevail.61
International organizations and other actors accepted the approach taken by the Baltic States in citizenship matters, if with certain political and legal reservations. The legal status of the Baltic States as illegally annexed States did not deliver a comprehensive solution to the legal status of the Soviet-era immigrants. Soviet demographic policies were not be regarded as a nullity. Acceptance of the principle of the continuity of nationality by the international community was supplemented by developments in human rights law such as the the nondiscrimination rule,64 and the principle of reduction of statelessness.65 These standards in human rights law do not suggest automatic citizenship for immigrants under the period of illegal annexation; however, they have played a role in the formation of the legal framework of Baltic naturalization laws. Although Latvia and Estonia have generally implemented the recommendations of international organizations such as the OSCE, and elicited praise for their pragmatism,66 they still had to step back from their initial, more restrictive approach to the nationality problem. According to some authors, this even proves that in the field of citizenship rights, there has
4 Changes with Respect to State Territories: Border Disputes since Restoration of the Independence of the Baltic States
During the first half of the 1990s, through diplomatic negotiations with the Russian Federation, Estonia and Latvia sought to restore the pre-1940 State borders with Russia, or at least to achieve what one author called a ‘dignified compromise.’69 Their efforts have not been successful, partly because the Baltic States have failed to consolidate viable international support for their position. A closer look at the Russian-Baltic boundaries disputes follows.
This analysis concentrates on the issue of State boundaries, although the general issue at stake, from the legal point of view, is the continued validity or non-validity of the 1920 Peace Treaties. For instance, among the issues having their sources in conflicting views about the validity of the Peace Treaties (and not to be discussed here in detail), are Baltic claims that Russia should return certain items of cultural property to their legitimate owners in the Baltic States.70
i Unilateral Corrections of the State Border by the USSR
The border between the Republic of Estonia and Soviet Russia was established in the Tartu Peace Treaty of February 2, 1920. It was a result of the war of secession (War of Independence) of 1918–1920 in which the Estonian army managed to repulse attempts by the Red Army to (re-)establish control over Estonia. The border established by the Tartu Peace Treaty was the subject of long discussions at the Tartu Peace Conference. Although the established border was finally a compromise between the initial Russian and Estonian proposals, the agreed compromise left some villages and townships with predominantly ethnic Russian population within the borders of the Republic of Estonia. The Estonian-Russian border, as established in the Tartu Peace Treaty, was respected by the Soviet government until the occupation of Estonia in 1940. The Russian-Estonian Pact of Mutual Assistence, concluded on September 28, 1939, referred explicitly to the inviolability of the Tartu Peace Treaty, and thus to the borders established by it.
After the annexation of Estonia and the creation of the Estonian SSR, that border was changed by a unilateral decision of the Soviet authorities in August 1944. With the Decree of the Presidium of the Supreme Soviet of the Soviet Union ‘On Formation of the Pskov Oblast within the structure of the RSFSR’ of August 23, 1944, 1,135 square kilometers of the territory of the Estonian SSR were annexed to the Russian RSFSR.71 The Decree was grounded by the ‘repetitious requests of the people’ in the respective territory and by the
The timing of this ‘self-contracting’ transfer of territory has been pointed out by historians.73 In August 1944, the Soviet army was advancing in the German-occupied Baltic States. However, patriotic forces in the Baltic States were organizing military resistance against the advancing Soviet forces, and planned to reproclaim and re-establish independence. Moreover, the general outcome of World War II was still open to question. The Western allies still had the option of concluding a separate peace treaty with Germany. The Soviet leadership might have been afraid that its allies would demand application of the principles of the Atlantic Charter with respect to the Baltic States. Therefore, Moscow was eager, at a minimum, to correct the border, and present the international community with a fait accompli.
The new Soviet-imposed border between the Estonian SSR and the Russian RSFSR did not correspond to the ethnic composition of the affected territories. For instance, of the 4965 people living in the township of Vilo, entirely incorporated in the Pskov Oblast, 66.3 per cent of the population was Estonian and 33.7 per cent was Russian. Of the 69 villages in this county, 49 had a majority of Estonian inhabitants, and in 30 of them, the population was entirely Estonian.74 Similar dismissal of ethnic considerations occurred elsewhere during the border correction.
Another piece of Estonian territory, as established in the Tartu Peace Treaty, was cut off from the Estonian SSR with the Decree of the Presidium of the Supreme Soviet of the USSR of November 24, 1944, ‘On the allocation of settlements on the east bank of the Narva river to the territory of the Leningrad oblast.’ On January 18, 1945, this decision was formally reconfirmed by the Presidium of the Supreme Soviet of the Estonian SSR.75
This way of amending the border between the Soviet republics, as carried out by the Presidiums of the Supreme Soviets, did not correspond to the requirements of Soviet constitutional law. Neither the Constitution of the USSR nor the Constitution of the ESSR authorized the Presidiums of the
Thus, when the independence of the Republic of Estonia was restored in August, 1991, approximately 5 % of the pre-1940 territory (2,334 square kilometers) had meanwhile been transferred to the Russian Federation.
ii The Rocky Road to Conclusion of the Estonian-Russian border treaties of 2014
As early as 1990, before its independence was restored, Estonia raised a claim for restoration of the State border as established in the February 2, 1920 Estonian-Russian Peace Treaty of Tartu. On September 1991, the Supreme Council of the Republic of Estonia declared null and void all decrees and resolutions of the Presidium of the Supreme Soviet of the Estonian SSR regarding the alteration of the border in 1944–1957, as violating the Tartu Peace Treaty and thus international law.79 The issue of the State border was to be settled by diplomatic negotiations between the Russian Federation and the Republic of Estonia.
Estonian-Russian border consultations started in November 1991. Initially, as noted by the Estonian historian Edgar Mattisen, the Russian side ‘did not even want to hear about the border issue,’80 and tried to limit discussion to questions related to the border regime. Later, Russia still took a legal stand on the Estonian border claim. According to the Russian view, the Tartu Peace Treaty of 1920 had lost its validity in 1940, when Estonia ‘entered into’ the USSR. The reliance of Estonia (and Latvia) on the 1920 Peace Treaties upset the Russian legislators to the extent that in the summer of 1993 they were preparing for
The Constitution of the Russian Federation, adopted on December 23, 1993 by referendum, establishes the Russian State border upon the principle of the status quo (Article 67). Following adoption of the Constitution, President Yeltsin signed a decree on June 21, 1994, on delimitation of the Russian State border in the Estonian sector.’82 The Russian-Estonian border was thus unilaterally delimited by Russia before the end of 1994.
Initially, the Foreign Ministry of the Republic of Estonia filed protests. The Estonian Foreign Ministry declared on August 12, 1994 that the only legally binding document which stipulates the border between Estonia and Russia remains the Tartu Peace Treaty, since ‘the 1940 Soviet occupation of Estonia did not affect the validity of this treaty.’83 The Estonian side also pointed out that ‘Estonia has repeatedly proposed to Russia that the question be taken to the International Court of Justice at The Hague. Estonia has always been willing to use mediation by a third nation or international organization.’84
In particular, Estonia wished Russia to return some predominantly Estonian (Seto) villages in the Pskov Oblast (RSFSR) that were under the jurisdiction of the Republic of Estonia before 1940. The border drawn by the Soviets in 1944/1945 had divided into halves the tiny Setu people, ethnic Estonians with a specific identity and culture. Due to the Soviet unilateral drawing of the border, 8000–9000 Seto people remained under the jurisdiction of the Estonian SSR, while over 6000 belonged to Russia. In the 1990s, around 4000 ethnic Estonians (Setos) remained on the Russian side of the border.85
At the end of 1994, a compromise course was taken. The Estonian government declared its readiness to agree to a new Russian-Estonian border that would differ from the border as envisaged by the Peace Treaty of 1920. This stepping back by Estonia from the initial position (which demanded restoration of the
When the Russians showed no change in their position, and settlement of all border disputes was a de facto condition for Estonia’s accession to the EU and NATO, Estonia accepted the existing control border as final and dropped all demands for changes as amended in favour of Russia by the Soviet decrees in 1944, 1945 and 1957. Initially, Estonia conditioned this concession on the demand that in the new border treaty, Russia would explicidy recognize the continuity of the Republic of Estonia, and thus the continued legal application of the 1920 Tartu Peace Treaty as such (that is, notwithstanding the changed borders). When Russia persistently refused to do so, the Republic of Estonia took the position that conclusion of the new Estonian-Russian border treaty—which would establish the current ‘control border’ as the final State border—would not damage claims by Estonia that the Estonian-Russian Peace Treaty of 1920 would not lose its force under international law, even should the border provisions outlined in the 1920 Peace Treaty be changed by the new border treaty.86
On March 5, 1998, Estonia and Russia initialled a border agreement, the former formally acknowledging the disputed territory as part of Russia. The two border treaties (one for the land border and the other for the sea border in the Gulf of Finland) were signed in Moscow on 18 May 2005. However, when the Estonian parliament ratified the treaties, it added a preamble to the ratification bill which stipulated that the Peace Treaty of Tartu of 1920 has remained in force: only the course of the border had therewith been amended. Upon this, the Russian government announced that it would revoke its signature and
b Latvia
i Unilateral Changes of the State Border by the USSR
The story of the Latvian-Russian border dispute was similar to the Estonian-Russian controversy. The border between the Republic of Latvia and the Russian RSFSR was established in the Latvian-Soviet Peace Treaty, concluded in Riga on August 11, 1920. However, in 1944 the USSR annexed a tract of Latvian territory, known as the district of Abrene (in Russian: Pytalovo), into the Russian RSFSR. The district has an area of about 2,000 square kilometers, about 3 % of the total area of pre-1940 Republic of Latvia. By the early 1990s, the Pytalovo district had a population of approximately 50,000 people, around 85 % of whom were ethnic Russians.88
Technically, the transfer of the Abrene district was initiated by decree of August 22, 1944, in which the Presidium of the Supreme Soviet of the Latvian SSR ‘petitioned’ at the federal level for transfer of Abrene region to the RSFSR.89 The Presidium of the USSR Supreme Soviet satisfied the Soviet Latvian petition on the following day.90 The rationale given in the edict was the desire to satisfy ‘repeated requests’ by the population in the Abrene region.91 The Soviet Latvian border with the RSFSR was officially established by legal acts of the Latvian SSR92 and the USSR93 in October 1946.
On January 22, 1992, the Latvian Parliament passed a law which asserted a claim to Abrene, declaring the Soviet decrees of 1944 on the transfer of the Abrene district to be without effect from the moment of their adoption (ex tunc), due to the illegal occupation and annexation of Latvia at the time.94 The Latvian Law on State Frontiers of 199495 distinguished between State boundaries and a ‘temporary demarcation line’, referring thus to Abrene district.96 In Latvia maps were being produced showing the disputed district as Latvian territory.97
Just as in the case of Estonia, the Russian Federation denied the further applicability of the 1920 Latvian-Russian Peace Treaty. However, in December 1994, Russia and Latvia concluded an agreement establishing ‘border representatives’ with the task of regulating all questions related to the common frontier.98 The Latvian-Russian border treaty was concluded on March 27, 2007. The treaty recognizes the Abrene district as part of the Russian Federation and was also ratified by the parliaments in both States. Upon ratification of the border treaty, the Constitutional Court of Latvia strongly emphasized Latvia’s adherence to the State continuity principle, notwithstanding Latvia having accepted the Abrene district as being part of Russia.99
c The Boundaries of Lithuania
The question of Lithuanian borders is connected to the debate about the borders of the Baltic States related to the legal status of those States. Paradoxically, Lithuania de facto gained territory as a consequence of the 1939 rapprochement with the USSR. By the July 1920 Moscow treaty, Lithuania gained legal title to the territory of Vilnius. However, Poland had occupied the territory of Vilnius (in Polish ‘Wilno’) and controlled it until the fourth Polish partitition was completed in September 1939. As compensation for Lithuania’s acceptance of the Mutual Assistance Treaty in 1939, the USSR assigned the newly ‘liberated’ Vilnius and Suwałki regions to Lithuania.100 The Polish government
At the end of World War II, the Lithuanian SSR created within the USSR recovered Klaipeda/Memel region in May 1950 and retained Vilnius, but the Suwałki region was restored to Poland and some territory south-east of Vilnius was allocated to the Belorussian SSR.101 Furthermore, the newly created Kaliningrad region as a component part of the Russian RSFSR allegedly gained a sliver of territory that legally, it was sometimes argued, should have been granted to the Republic of Lithuania.102
After Lithuanian independence was restored, its government argued for the preservation of the status quo as far as the State borders were concerned.103 However, the question of Vilnius was sometimes raised by Russian politicians, especially in connection with Estonian and Latvian territorial claims. Some Lithuanian radical nationalist politicians responded that the Russian Federation should return to Lithuania the territory awarded for Kaliningrad Oblast.104
However, neither Lithuania nor Russia have ever officially presented one another with territorial claims.105 In February 2001, the Lithuanian Ambassador to the Russian Federation explained in an interview to the newspaper Izvestija: ‘I declare officially: Lithuania never had neither does have any territorial claims to Kaliningrad Oblast. Even if it would be proposed to us, we would hardly take it.’106
Lithuania and Byelorussia validated the Soviet administrative border with an agreement of February 6, 1995. Poland, which could have challenged Lithuania’s title to Vilnius territory, has considered Lithuania to be the successor State in respect of the Polish-Soviet Agreement concerning the
On October 24, 1997, Presidents Brazauskas and Yeltsin signed the new Russian-Lithuanian border treaty, based on the status quo.108 The Lithuanian parliament ratified the treaty in March 1999 but it took longer for the Russian State Duma to ratify it. The Lithuanian-Russian border treaty finally entered into force in 2003.
d The Border Debate: Legal Issues
After restoration of independence, the border claims of Estonia and Latvia were based on the position that the territorial ‘amputation’ of the Soviet republics of Estonia and Latvia by Moscow had no more legal validity under international law than the annexation of the independent Baltic States themselves. Estonia and Latvia argued that the peace treaties of 1920, which established the Estonian-Russian and Latvian-Russian borders, had not lost their validity under international law.
From the very beginning, the Russian Federation opposed this thesis. In 1994, notwithstanding official protests by Estonia and Latvia, Russia marked the administrative borders (or demarcation lines) with Estonia and Latvia as definitive State borders. Russia also rejected the occasional Estonian and Latvian proposals to present the issue to the International Court of Justice.
From the point of view of the illegality of Soviet annexation in 1940 and recognition of the restoration of statehood by the international community, Estonia and Latvia had strong cases for reinstating their pre-World War II frontiers with Russia. According to Estonia and Latvia, Russia was not entitled to invoke change of circumstances (clausula rebus sic stantibus) with respect to the peace treaties of 1920. Under Article 62 para 2 of the 1969 Vienna Convention on the Law of Treaties, a fundamental change of circumstances may not be invoked as a ground for terminating or withdrawing from a treaty if the treaty establishes a boundary or if the fundamental change is the result of breach by the party invoking it either of an obligation under the treaty or of any
Lawyers analyzing the boundar issues have also examined the relevance of the legal principle of uti possidetis iuris in the Baltic-Russian boundaries dispute.110 However, in the Burkina Faso and the Republic of Mali Frontier Dispute Case in 1986, the ICJ decided that legal title is accorded preeminence over effective possession.111 In legal terms, it is therefore difficult to see why the principle ex injuria ius non oritur must, as Müllerson seems to argue in the Baltic case, be balanced with the principle uti possidetis: ‘…we have a situation which is not rare in international law: two conflicting principles, both of which express real values, pointing toward different, even opposite, solutions.’112 However, during the post-Soviet decades, Russia has itself started to take distance from the uti possidetis principle in post-Soviet space, especially when it wanted to prevent former Soviet republics such as Georgia in 2008 and Ukraine in 2014 from joining NATO in the future.113
In the view of Vladimir Lenin, the Tartu Peace Treaty between Soviet Russia and the Republic of Estonia of February 2, 1920 had a ‘global-historical significance.’114 The importance of this treaty was highlighted by Soviet international law scholars for whom the peace treaty with Estonia was the beginning of the end of the ‘bourgeois’ blockade erected against the young Soviet State.115 Upon the collapse of the USSR in 1991, the Russian Federation insisted that the peace treaties came to and end in 1940. However, the Baltic position was that the 1920 Peace Treaties with Russia had not lost their legal force, at least in their core part of giving first recognition to the independent Baltic
e The Border Debate: Conclusions
Two things are especially interesting from the standpoint of analysis of the border treaties. First, the international community was quite reserved with respect to the initial territorial claims by Estonia and Latvia vis-à-vis Russia, and in any case did not accord them significant diplomatic support.116 This is the importance of power in international relations: even if strong legal arguments are on your side, try to get territories back from a powerful country! Second, as a consequence of the first aspect, both Estonia and Latvia, while not giving up their State continuity claims, decided to step back from their initial territorial claims in the mid-1990s. It appears that as far as the State borders with the Russian Federation are concerned, Estonia and Latvia have not been successful in claiming restitutio in integrum.
5 The Issue of State Responsibility for Injuries Caused During Illegal Soviet Annexation
a Introduction
The third main issue which has been raised with respect to the continuity claim of the Baltic republics, is the issue of State responsibility for internationally wrongful acts committed in Lithuania, Latvia and Estonia during the Soviet occupation.
Axiomatically, there is no law without responsibility, and violations of a norm with legal quality cannot remain without consequences, at least at the level of law. However, even superficial reflection upon the structure and specificities of the international community and international law reveal that establishing the principle of responsibility in the law of nations is not an easy task. Notwithstanding the evolution of customary international law of State responsibility in recent decades, Hans Kelsen’s one-time critique of the possibility of responsibility in international law is still in many aspects valid.117 It
However, during recent decades, important developments have occurred in this field. State practice and opinio iuris leave no doubt that the fundamental principle of State responsibility has been recognized in modern international law. Article 1 of the Draft Articles on State Responsibility, adopted by the ILC at the second reading on August 3, 2001, lays out this basic principle: ‘Every internationally wrongful act of a State entails the international responsibility of that State.’119
This fundamental principle of international law was recognized in pre-World War II case law. For instance in the Phosphates in Morocco case, the PCIJ affirmed that when a State commits an internationally wrongful act against another State, international responsibility is established ‘immediately as between the two States.’120 Max Huber, the arbitrator in the British Claims in the Spanish zone of Morocco case, declared that it is an indisputable principle that ‘responsibility is the necessary corollary of rights. All international rights entail international responsibility.’121 That aggression constituted a crime triggering international legal principles of State responsibility in the World War II era, was even recognized by Soviet scholars writing on international law.122
Thus, the principles of State responsibility could also be applied to the case of the illegal annexation of the Baltic republics by the USSR.
b Main Principles of the Law of State Responsibility
Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.124
Article 34 of the Draft Articles on State Responsibility lays out the forms of reparation in international law: full reparation takes the form of restitution, compensation and satisfaction, either singly or in combination.
The general method of State responsibility is thus as follows: first, it must be established whether an internationally wrongful act has been committed. Such an act must firstly be attributable to a State under international law and, secondly, constitute a breach of an international obligation by that State. Under certain circumstances, the wrongfulness of State conduct is precluded. Such cases involve valid consent, lawful self-defence, countermeasures, force majeure, distress, and—subject to far-reaching limitations—necessity. When a State incurs international responsibility for wrongful conduct and fails either to cease the wrongful behaviour and/or to make full reparation, the injured State is entitled to take countermeasures against the offending State. Countermeasures are measures, constituting violations against international obligations by the State that takes them but they are justified, within limits as responses to violations of international law. They may only be taken in proportion to the injury suffered, and are subject to other conditions.
Notwithstanding important conceptual developments in the field of State responsibility, many open questions remain. For instance, Christian Tomuschat suggests on the basis of State practice that ‘the principle of full reparation applies only to small-scale violations of international law.’125 To
c On Conditions of State Responsibility in the Case of the Baltic States: The Issue of Attributability (the International Legal Status of Today’s Russia)
In the preceding chapter, the occupation and annexation of the Baltic States by the USSR were qualified as illegal acts. The USSR seized the Baltic States, and by deporting and/or murdering tens of thousands of Baltic citizens, caused considerable loss in terms of human lives, material and moral damage. As an absolute minimum, the USSR was bound by the humanitarian standards of the 1907 Hague rules in the illegally annexed Baltic States. The mass deportations and liquidations of the elite organized by the USSR government in the Baltic States manifestly violated this minimum standard set by primary norms of international law. Without due process, thousands of Balts were sentenced to long-term imprisonment in the camps of the Gulag, and were condemned to what can only be called slave labour for the USSR. Moreover, depending upon which view one takes about the extent of the legal obligations of the USSR during the annexation period, one can, in addition, qualify the damage incurred on the economy and natural environment of the Baltic republics as internationally wrongful acts. In any case, it follows from the jurisprudence of the ICJ that the State exercizing illegal control on a certain territory is responsible for violations of international law committed on that territory.126
Of course, the collapse of the USSR in December 1991 poses the question of attributability of internationally wrongful acts committed by the USSR. It is submitted that from the point of view of the principles of State responsibility, the Russian Federation as the continuator State of the USSR continues to be responsible for internationally wrongful acts committed by the USSR.
It is true that the international legal position of the Russian Federation after the collapse of the USSR initially elicited contradictory interpretations and theories.127 The leaders of the newly founded CIS first declared in Minsk ‘that the
According to the Assistant Prime Minister and Foreign Minister of the Lithuanian pro-Soviet government, Кrévé-Mickievičius, Vyatcheslav Molotov told him in Moscow on June 30, 1940: ‘I must point out today what will be clear to everyone tomorrow. The Russian Tsars since Ivan the Terrible have tried to reach the Baltic Sea, not because of their political desires, but because this was required for the development of the Russian State and nation. It would be unforgivable for the Soviet government not to seize an opportunity that may never present itself again.’132
There is a rule in customary international law according to which, in cases of State extinction, a successor State would generally not be responsible for internationally wrongful acts committed by its extinguished predecessor State.133 A
… la partie intéressée devrait donc faire un choix, en premier lieu, entre un claim of identity et un claim of non-identity. Si elle choisissait l’idеntité—et celle-ci était acceptée ou démontrée—elle devrait accepter (sauf négotiation) la continuité absolue en matiëre de devoirs aussi bien qu’en matiëre de droits. Chaque partie, en d’autres mots, serait obligée d’accepter les conséquences de l’identité “en bloc”, qu’elles lui soient favorables ou défavorables.137
d The Reparations Issue After Re-establishment of Baltic Independence
Even during the process that re-established independence, the issue of reparations claims was intensively discussed in the Baltic States. In Estonia, a commission convened in 1991 by Supreme Soviet Chairman Arnold Rüütel compiled a damage report and concluded that ‘[t]he basic responsibility for damage to social, economic and cultural development is borne by those political forces which violently forced a foreign social and economic system upon Estonia.’138 At the same time, the Estonian Commission recognized the complexity of a prolonged annexation, by concluding that ‘(i)n cases of damage inflicted on social, economic and cultural development, the loyally-formed party, government, administrative and judicial institutions share joint responsibility—to the extent that they carried out the policies of a foreign power.’139
However, so far only Lithuania has officially demanded reparations from Russia for injuries suffered under Soviet occupation. On June 13, 2000 the Seimas (parliament) of the Republic of Lithuania adopted the Law on Compensation of Damage resulting from the Occupation by the USSR,140 the text of which is reprinted in an appendix to this book.
Latvia and Estonia have presented no reparations claims to Russia. When the Lithuanian law was adopted, Estonian and Latvian politicians offered differing arguments to the general public about why their countries should not issue reparations claims. In a way, these arguments reveal that the unsuccessful boundary negotiations with Russia had taught Baltic politicians a lesson. Essentially, they maintained that it was utterly unlikely that Russia would pay reparations. Although there existed a ‘moral right to compensation, at least for those crimes against humanity that the Soviet regime committed’, it would
Russia has signalled its negative opinion with respect to the Lithuanian reparations claim. Soon after adoption of the Lithuanian Law, Aleksandr Avdeev from the Russian Ministry of Foreign Affairs presented the Russian position on the matter in the Lithuanian Foreign Policy Review.142
While on the subject of the main aspects of relations between Russia and Lithuania, I cannot but dwell on those that cause our biggest worry. I have in mind first of all the Law on Recovery of Damages resulting from the occupation by the Union of Soviet Socialist Republics passed by the Lithuanian Seimas (Diet) this past June. The Russian Foreign Ministry opportunely appraised it as an instrument unfriendly toward Russia. Stressing that we could not accept attempts to interpret our shared history in this unilateral and politicized manner, we elucidated the international-law grounds upon which we regarded as unfounded the claims formulated by the Lithuanian parliamentarians. Today I would like to emphasize the main thing: This “initiative, absolutely futile from the practical point of view, hinders both the process of ratification by the Russian State Duma of the border treaties between our countries … It is desirable that there should be a clear realization in Lithuania of the fact that attempts to realize the “recovery of damages’ law are incompatible with the purposes of good neighborly expansion of Russian-Lithuanian relations.
The recognition of continuity of subjects in the event of fundamental alteration of the structure of a state has, however, nothing in common with the bourgeois theory of continuity which asserts that the uninterrupted nature of the existence of a state requires the recognition of all international treaties regardless of internal changes, [Soviet legal science] acknowledges that after a social revolution a state has the right to repudiate international treaties which do not correspond to the principles of the new system and to its national interests. … denial of the right of a state to repudiate international treaties following social revolutions is a characterictic feature of bourgeois science.145
In a somewhat similar vein, the Russian Federation rejected, in the case of the Baltic States, responsibility for internationally wrongful acts committed by the USSR. Even when one takes into account the time factor, the a priori refusal to recognize responsibility for Soviet crimes shows practical limits to full application of the State responsibility doctrine in international law.
e The Reparations Issue: Conclusions
Although Estonia, Latvia and Lithuania have repeatedly indicated that the USSR occupied and annexed them illegally and that Russia as the continuator
One is generally compelled to note that in the solution of international delicts a great role is played by the factual relationship of the parties. If political and economic relations are good, even the most serious offence finds an easy solution. When the contrary is the case, even the smallest misunderstanding can be a pretext for major conflict.147
Mainly due to differing views with the Russian Federation as continuator State of the USSR, the Baltic States have not been able to restore certain essential rights following from their claim to identity and continuity with the pre-1940 Baltic republics. For example, the Italian scholar Enrico Milano has observed that in 1991, the Baltic nations of Estonia and Latvia could revert to their original statehood but in terms of borders with Russia had to make peace with the uti possidetis principle.148 The Baltic German international law scholar Dietrich A. Loeber therefore called the continuity of the Baltic republics a limping continuity.149 But what do such qualifications mean, except to reveal the frustrations of international law scholars concerning discrepancies between legal standards and political realities? Or is it a discrepancy between theory and practice?
Si le respect effectif des consequences juridiques de l’acte fictif n’est pas assure, la fiction perd son role dans l’elaboration legislative: elle devient un acte mensonger ou frauduleux, depourvu d’effets juridiques. (…) l’usage de la fiction dans l’activite juridique internationale n’est legitime que s’il repose sur 1’effectivité des consequences tirées de la fiction.156
…it was the general attitude of the internationalists to take the appropriateness of the devices for granted and to blame the facts for the failure. When the facts behave otherwise than we have predicted, they seem to say, too bad for the facts. Not unlike the sorcerers of primitive ages, they attempt to exorcise social evils by the indefatigable repetition of magic formulae.157
The previous analysis revealed that the ‘magic legal formula’ of ‘State continuity’ has in practice been mixed and intertwined with political considerations and power relations. The principle of ex injuria, ius non oritur has been balanced by the opposite principle of ex factis oritur ius, and with the conditions set by (power) politics.
Cf. Marek, op. cit., p. 582.
Marek, op. cit., p. 582. This idea has been extended to the case of the Baltic States by Rein Müllerson, who argues that ‘restitutio ad integrum after more than fifty years is more often a legal fiction than a realistic option.’ See R. Mullerson, ‘New Developments in the Former USSR and Yugoslavia’, 33 Va. J. Int’l L. 1993, pp. 310–311. See also Kaljurand, Some Aspects of… 1995, p. 8.
Marek, op. cit., p. 582.
Ibid. op. cit., p. 582.
Marek, op. cit., p. 584.
Ibid.p. 584.
Marek, op. cit., pp. 584–585.
Marek, op. cit., p. 586.
Koskenniemi, ‘The Present State of Research’, in: State Succession (Hague Academy), 1996, p. 153.
See ibid. p. 153.
J. Touscoz, Le principe d’effectivité dans l’ordre international, 1964, p. 179.
U. Fastenrath, ‘States, Extinction’, in: EPIL 10,1987, p. 465.
See Brownlie, Principles… p. 82. However, Professor Brownlie’s dissatisfaction with theories seems to go further than the cases of State succession and continuity. See e.g. I. Brownlie, ‘Recognition in Theory and Practice’, in: 53 BYBIL 1982, pp. 197–211 at 197 (‘There is no doubt room for a whole treatise on the harm caused to the business of legal investigation by theory.’)
J. Salmon, ‘Pays baltes’, 24 RBDI 1991, p. 267. “the hypothesis of illegality is a real wasps’ nest by these consequences.”
See e.g. the Protocol between the Republic of Lithuania and the Kingdom of Norway on the agreements governing bilateral Lithuanian-Norwegian relations, signed in Vilnius on April 20, 1994 (as referred to in Satkauskas, op. cit., p. 63).
See Kerikmäe/Vallikivi, ‘State Continuity in the Light of…’, V Juridica International 2000, p. 35.
Erik Franckx studied the recent maritime agreements between Estonia and Sweden and came to the conclusion that Sweden has at least ‘paid lip service’ to the Estonian position that no Soviet agreements bind Estonia automatically. See E. Franckx, ‘The 1998 Estonia-Sweden Maritime Boundary Agreement: Lessons to be Learned in the Area of Continuity and/or Succession of States’, 31 Ocean Development & International Law 2000, pp. 271 and 275.
Reservations were, however, expressed in the German court practice and literature (particularly with respect to nationality questions). See e.g. H. Jellinek, Der automatische Erwerb und Verlust der Staatsangehörigkeit durch völkerrechtliche Vorgänge, zugleich ein Beitrag zur Lehre von der Staatensukzession, Berlin: Carl Heymann, 1951, p. 142 et seq.
On the question whether the Russian Federation is successor, continuator or, paradoxically although impossibly from the viewpoint of international legal theory, both, see L. Mälksoo, ‘International Law and the 2020 Amendments to the Russian Constitution’, 115 AJIL 2021, pp 78–93 at 83–84.
There were Soviet victims in Vilnius and Riga in January 1991.
See A. Ammas, Gluhhov: ‘Eesti peab Venemaad tänama, mine ootama vabandamist’, Eesti Päevaleht, 15.11.2000 (‘Russia gave to you freedom, the opportunity to develop freely as you wish yourself! And that already the second time during the last century. (…) You received a great present from history. During the 1980s you could only dream about independence, and suddenly you became independent, thanks to yourself and to your politicians. But agree that you should also thank Russia.’)
See generally for the issues of State succession and nationality in: C. Kreuzer, Staatsangehörigkeit and Staatensukzession. Die Bedeutung der staatensukzession für die staatsangehörigkeitsrechtlicheп Regelungen in de Staaten der ehemaligen Sowjetunion, Jugoslawiens and der Tschechoslowakei, Berlin: Duncker & Humblot, 1998; A. Liebich et al (eds.) Citizenship East and West, London: Kegan Paul Int’l, 1995; P. Cumper and S. Wheatley (eds.) Minority Rights in the ‘New’ Europe, The Hague: Nijhoff, 1999; I.M. Cuthbertson and J. Leibowitz (ed.) Minorities: The New Europe’s Old Issue, Prague etc: OSI, 1993; G. Smith, A. Aasland, R. Mole, ‘Statehood, Ethnic Relations and Citizenship’, in: G. Smith (ed.) The Baltic States. The National Self-Determination of Estonia, Latvia and Lithuania, London: Macmillan, 1994, pp. 181–205.
See Lithuania, May 12, 1922, in: J.O. Juni 1922, p. 586 et seq., Latvia, July 7 , 1923, in: J.O. August 1923, p. 933 et seq., Estonia, September 17, 1923, in: J.O. November 1 923, p. 1311 et seq. See also H. Kraus, Das Recht der Minderheiten, Berlin: Stake, 1927, pp. 121–126.
See M. Laserson, ‘Das Minoritätenrecht der baltischen Staaten’, ZaöRV 1931, p. 401 et seq. For a more recent account, see C. Thiele, Selbstbestimmuпg und Minderheitenschutz in Estland, Berlin: Springer, 1999, p. 79 et seq.
See e.g. R. v. Laun, Staat and Volk. Eine völkerrechtliche and staatsrechtliche Untersuchung auf philosophischer Grundlage, 2. Aufl., Aalen Scientia Verlag, 1971, p. 310 et seq. and D.A. Loeber, ‘Language Rights in Independent Estonia, Latvia and Lithuania, 1918–1940’, in: S. Vilfan (ed.) Ethnic Groups and Language Rights, Vol. 3, 1990.
By that time, ethnic Russians constituted 8.2 % of the population.
See generally for a qualification of mass deportations under the 1949 Geneva Convention in: O.M. Uhler, op. cit., p. 170 et seq. and J.-M. Henckaerts, Mass Expulsion in Modem International Law and Practice, 1995, p. 143 et seq.
See e.g. for views in literature: S. Bychkov Green, ‘Language of Lullabies: The Russification and De-Russification of the Baltic States’, 19 Mich. JIL 1997, p. 217; H.-J. Uibopuu, ‘Dealing with the Minorities—a Baltic Perspective’, in: 48 The World Today 1992 (June), pp. 108–112 at 109; T. Ansbach, ‘Der Rechtsstatus der nicht-estnischen Bevblkerung in Estland’, in: Recht in Ost und West, September 1996 No. 7, p. 218.
See e.g. the resolutions of the European Parliament adopted in 1983, 1985 and 1987, e.g. in the resolution adopted on January 13, 1983, the Parliament called on the foreign ministers of the EEC States to submit the question of the Baltic States to the UN Committee of Decolonization. The representatives of the US Congress argued in 1975 that US non-recognition policy would ‘discourage a great many Soviet citizens from settling in the Baltic countries. Thus it reduces the flow of colonists and considerably hinders Soviet genocidal policies of colonization, ethnic dilution, Russification and effective absorption of Baltic nations into the Soviet Union.’ See US House of Representatives, Subcommittee on International Political and Military Affairs, Committee on International Relations, Conference on Security and Cooperation in Europe, Washington, DC: US Government Printing Office, 1975, p. 27. Note also that during the UN General Assembly discussions on colonialism, the British Minister of State David Ormsby-Gore, replying to the Soviet demand that the General Assembly call for independence ‘forthwith’ for all colonies and trust territories, said on November 28, 1960: ‘…Since 1939, some 500 million people, formerly under British rule, have achieved freedom and independence, and their representatives sit here. In that same period, the whole or part of six countries, with a population of 22 million, have been forcibly incorporated into the Soviet Union; they include the world’s newest colonies: Lithuania, Estonia and Latvia…’ UN Gen. Ass. Off. Rec 15th Sess., Plenary, 925th Meeting, Nov. 28, 1960, A/PV.925, p. 982. Similar points were made by the US ambassadors to the UN, Adlai Stevenson and Arthur Goldberg during the 1960s. See Vitas, op. cit., p. 81. Irina Busygina, an author from Russia, has also called the Sovied policies a ‘gradual colonisation.’ See I. Busygina, Russia, the Baltic states and the European Union, in: T. Jundzis (ed.) The Baltic States at Historical Crossroads, Riga 1998, p. 505.
Data from P. Järve, ‘Ethnic Democracy and Estonia: Application of Smooha’s Model’, ECMI Working Paper No. 7, Flensburg, 2000, p. 39.
The friendship between the Soviet CP General Secretary Khruschev and the Lithuanian CP leader Sniečkus has sometimes been quoted as the reason why Lithuania was able to avoid russification. See H.-J. Uibopuu, ‘Minorities and their Rights in the Baltic States’, in: 35 AWR-Bulletin 1997, pp. 189–197 at 190.
See Natsionalny sostav naselenia SSSR, ‘Finansy i Statistika’, Moscow, 199. Quoted in M. Kahn, ‘Les Russes dans les ex-républiques soviétiques’, in: Le courrier des pays de l’Est No. 376 1993, pp. 3–20 at 10.
The Soviet authorities in Moscow advanced a Law of Secession in spring 1990 which suggested that in a referendum about secession, only a vote of more than 2/3 of the population in favour of secession would legitimate it. This margin could have nullified the Latvian and Estonian desires for independence.
In Estonia, the idea of the Citizens’ Congress was not initiated by professional politicians, but initially suggested in a newspaper article written by a pensioner, Harald Tillemann.
It is presumed that in Estonia, approxiamately 90 % of the citizens of voting age voted for the Estonian Citizens’ Congress. See E. Sarv, Õiguse vastu ei saa ükski…, p. 219.
See e.g. Lieven, op. cit., p. 274 et seq. and p. 307. Critically also G. Smith, ‘When nations challenge and nations rule: Estonia and Latvia as ethnic democracies’, in: 33 International Politics, March 1996, p. 31.
See Convention relative to the Treatment of Civilian Persons in Time of War, Art. 49, 12 August 1949, UNTS, vol. 75, p.
According to information provided by Teimuraz Ramishvili from the Foreign Ministry of Russia, independence was supported by ‘20 to 40 percent of Russian speakers’ in Estonia. One is surprised that Ramishvili argues in this context that ‘It would not be amiss to recall today that Latvia and Estonia in no small measure owe their independence to the vote of their Russian speakers.’ See T. Ramishvili, ‘Latvia and Estonia: Human Rights Violations in the Center of Europe’, 44 International Affairs 1998, p. 117.
See J. Bojars, ‘The Citizenship and Human Rights Regulation in the Republic of Latvia’, 39 Osteuropa Recht 1993, No. 2, pp. 132–145.
For policy-oriented overviews, see V. Popovski, ‘Citizenship and Ethno-politics in Lithuania’, 33 International Politics, March 1996, pp. 45–55 and L.W. Barrington, ‘Nations, States, and Citizens: An Explanation of the Citizenship Policies in Estonia and Lithuania’, in: 21 Review of Central and East European Law 1995 No. 2, pp. 103–148.
For policy-oriented overviews, see V. Popovski, ‘Citizenship and Ethno-politics in Lithuania’, 33 International Politics, March 1996, pp. 45–55 and L.W. Barrington, ‘Nations, States, and Citizens: An Explanation of the Citizenship Policies in Estonia and Lithuania’, in: 21 Review of Central and East European Law 1995 No. 2, pp. 103–148.
Report of the Secretary-General: Situation of Human Rights in Estonia and Latvia, October 26, 1993, UN Doc. A/48/511, at p. 7.
S. Chernichenko, ‘Ethnic Russians in the Baltics’, in: 44 International Affairs 1998, p. 118.
See the remarks of H.-J. Uibopuu, in: ‘Das Recht der Staatensukzession’, BDGV, Bd. 35, p. 557.
See e.g. F. de Varennes, ‘Non-Citizens and Minorities in Estonia and Their Economic and Social Opportunities’, in: S. Trifunovska (ed.) Minorities in Europe. Croatia, Estonia and Slovakia, The Hague: Asser Press, 1999, pp. 123–139; J. L. Blackman, ‘State Successions and Statelessness: The Emerging Right to an Effective Nationality Under International Law’, 19 Michigan JIL 1998, pp. 1141–1194 at 1193 and G. Ginsburgs, From Soviet to Russian International Law. Studies in Continuity and Change, The Hague: Nijhoff, 1998, p. 218 et seq.; R. C. Visek, ‘Creating the Ethnic Electorate through Legal Restorationism: Citizenhip Rights in Estonia’, 38 Harvard JIL 1997, pp. 315–376.
C. Gray, Self-determination and the Breakup of the Soviet Union, in: 12 YBEL 1992, p. 483. See for similar arguments: R.C. Visek, Creating the Ethnic Electorate… in Estonia, 38 Harvard ILJ 1997, pp. 315 et seq.
See e.g. Jan De Mayer and Christos Rozakis, Report on Human Rights in the Republic of Latvia, the Council of Europe Parliamentary Assembly Doc. AS/Ad hoc.-Bur-EE (43) 4, 20 January 1992, 246, para 4; UN Secretary-General Report, Situation of Human Rights in Estonia and Latvia, A/48/511, 26 October 1993, paras. 28–30.
For a general critique of exaggerations in some human rights advocacy, see: A. Pellet: Human Rightism and International Law, Memorial Lecture in honour of Gilberto Amado on 18 July 2000 at the ILC’s International Law Seminar.
See e.g. the above quoted Report of the Secretary-General of the UN: ‘Since the national identity of Estonians is intimately linked to their language, which is not spoken anywhere else in the world, it is important and legitimate for Estonians to give a high priority to the active use of the Estonian language in all spheres of activity in Estonia.’ See Situation…, ibid. See also J.-M. Henckaerts, Mass Expulsion in Modern International Law and Practice, 1995, pp. 93, 96.
Georg Brunner even highlights among the reasons the ‘linguistic resistance’ (Sprachresistenz) of some Baltic Russians. See G. Brunner, ‘Die rechtliche Lage der Minderheiten in Mittel-, Ost- and Südosteuropa’, in: 40 Osteuroparecht, September 1994, pp. 157–177 at 166.
See e.g. P. Juviler, ‘Are Collective Rights Anti-Human? Theories on self-Determination and Practice in Soviet Successor States’, in: Netherlands Quarterly of Human Rights 1993, pp. 267–282 and also L. Mälksoo, ‘Language Rights in International Law: Why the Phoenix Is Still in the Ashes’, 12 Florida JIL 2000, pp. 431–465 at 443.
See for an excellent polemic: T.M. Franck, ‘Are Human Rights Universal?’, in: Foreign Affairs Jan/Feb 2001, pp. 191–204 who summarizes the ongoing struggle ‘between the forces of Lockian individual liberty and those championing communitarian values’ (p. 195), and argues for individuals’ liberation ‘from predetermined definitions of racial, religious, and national identities.’ (p. 201.)
See Lieven, op. cit., p. 174. Anatol Lieven quite frankly presents the pragmatic point of view of many Western observers when he writes that ‘[i]n my discussions with Balts over the guaranteed rights for the Russian minority, the argument has usually been at cross purposes. They have argued in terms of international law, historical justice, and specific Baltic interests. I have replied on the basis of pragmatism, practical risks, and the interests of Europe and of the former Soviet region as a whole.’ See ibid. pp. 174–5.
See ‘Recommendations by the CSCE High Commissioner on National Minorities, Mr Max van der Stoel, upon his visits to Estonia, Latvia and Lithuania’, 14 Human Rights Law Journal 1993, p. 216 at 217.
UN Doc. CCPR/C/79/Add.59 of 3.11.1995, para. 12.
So J. Quigley, ‘Mass Displacement and the Individual Right of Return’, in: 68 BYBIL 1997, p. 103.
See Quigley, ibid.
J. Quigley, ibid., p. 99 et seq.
Treaty of Peace with Germany (Versailles), Art. 79, Annexes 1, 2, 3 (28 June 1919).
See Gesetz vom 10. Juli 1945 über die Überleitung in die österreichische Staatsbürgerschaft (Staatsbürgerschaft-Überleitungsgesetz-St-ÜG) § 1, Staatsgesetzblatt für die Republik Österreich, 1945, p. 81 (no. 59).
Quigley, ibid. p. 104.
But see Quigley p. 100 (‘In the cases of Alsace-Lorraine and Austria, the view of the international community was that the annexations by Germany, in 1871 and 1938 respectively, were unlawful.’)
See also W. Schätzel, Die Annexion im Völkerrecht (1920), reprinted in 1959, p. 151.
See already E.W. Vierdag, The Concept of Discrimination in International Law, The Hague: Nijhoff, 1973.
See further Ziemele, op. cit., p. 229 et seq.
See e.g. P. van Krieken, ‘Estonia’s Minorities and Aliens: Time for a ‘Yes-Campaign’, in: S. Trifunovska (ed.) Minorities in Europe. Croatia, Estonia and Slovakia, 1999, pp. 105–122 at no.
See e.g. M.T. Kamminga, ‘State Succession in Respect of Human Rights Treaties’, 7 EJIL 1996, pp. 469–484, pp. 479–80. Cf. Koskenniemi, ‘The Present State of Research…’, 1996, p. 142.
UN GA Res. 55/153, Annex, December 12, 2000.
E. Mattisen, Searching for a Dignified Compromise. The Estonian-Russian Border 1000 Years, Tallinn: ILO, 1996.
Estonia, for instance, has claimed rights to a museological collection that belonged to the University of Dorpat (Tartu), and was evacuated to the University of Voronezh in Russia during World War I. In the Tartu Peace Treaty, concluded on February 2, 1920, Soviet Russia accepted the obligation to return these collections to Estonia. However, the USSR had not fulfilled this obligation when Estonia was occupied and annexed in 1940. After restoration of Estonia’s independence, the return of these collections to Tartu has been the object of until now inconclusive interstate negotiations. Recently, a catalogue of the collections was published through collaboration of historians from Voronezh and Tartu.
Similarly, Russia has neglected the Estonian demands for the return of the official regalia of the pre-1940 Estonian President. After the occupation and annexation of Estonia in 1940, the President’s official medal was taken to Moscow’s State Archives where it remains. In October 1996, the individual in charge of the Baltic desk at the Russian Foreign Ministry, Aleksandr Udaltsov, argued that ‘[w]e do not have any legal ground to give this costly and precious work of art to Estonia.’ See T. Mattson, T. Sildam, ‘Vепеmаа välisministеerium peab Eesti presidendi ametitunnuse tagastamisе küsimust praegu lahеndamatuks’ (In the View of the Russian Foreign Ministry, the Question of the Restitution of the Official Regalia of the Estonian President is Currently Unsolvable), Postimees, 06.10.1996. In November 2000, the Russian ambassador to Estonia, Aleksei Glukhov, noted that the return of ‘some of your symbolic regalia’ is ‘practically decided.’ However, the ambassador referred to the ‘situation of ethnic Russians in Estonia’, and noted that for the return of the regalia ‘a different kind of attitude was necessary.’ See A. Ammar, Gluhhov: ‘Eesti peab täпama, mitte ootama vabandamist’, (Glukhov: Estonia should thank, not wait for an apology), Eesti Päevaleht, November 15, 2000.
Decree of the Presidium of the Supreme Soviet of the Soviet Union ‘On Formation of the Pskov Oblast within the Structure of the RSFSR’, in: Collected Laws of the USSR and Decrees of the Presidium of the Supreme Soviet of the USSR, 1938–1975, Moscow, 1 975, p. 93–94. Reprinted in Mattisen, op. cit., p. 141.
See ibid. See also Mattisen, p. 73.
Mattisen, op. cit., p. 72–73.
Mattisen, op. cit., p. 74.
See Decree of the Presidium of the Supreme Soviet of the Estonian SSR, regarding the establishment of borders between Viru County and Leningrad Oblast, Tallinn, January 18, 1945, Eesti NSV Teataja, 10.02.1945, art. 59, p. 58.
See also for the peculiarities of the practice: G. Shinkaretskaya, ‘Succession and the Borders of the Russian Federation’, in: 1 Moscow JIL 1995, No. 4, pp. 50–62 at 52 (‘… the central authorities had free rein to carve up the republics the way the ruling party wanted.’)
Cf. Mattisen, op. cit., p. 75.
See Decree of the Presidium of the Supreme Soviet of the Estonian SSR of September 9, 1957, ‘On partial alteration of the border between the Estonian SSR and the RSFSR’, referred in Mattisen, op. cit., p. 76.
See Mattisen, op. cit., p. 87.
Mattisen, op. cit., p. 92.
Mattisen, op. cit., p. 94. Cf. also with Loeber, op. cit., p. 544.
Ukas of the president of the Russian Federation of June 21, 1994, on Demarcation of the Land Border between Estonia and Russia. Sobranie Zakonodatelstva Rossiskoi Federatsi, No. 9, Item 930 (1994).
See the Press Release of the Foreign Ministry of the Republic of Estonia, dated August 12, 1994, reprinted in Mattisen, op. cit., p. 162.
See ibid, at p. 162.
See Mattisen, op. cit., p. 101.
See information provided by the Estonian Foreign Ministry: Eesti-Vene piiriläbirääkimised (Estonian-Russian border negotiations), 4.03.1999, http://www.vm.ee/eesti/valispol/Вilateraalsed/03piir.htm. See also Mattisen, op. cit., p. 98 et seq.
See further L. Mälksoo, ‘Which Continuity: The Tartu Peace Treaty of 2 February 1920, the Estonian-Russian Border Treaties of 18 May 2005, and the Legal Debate About Estonia’s Legal Status in International Law’, 10 Juridica International 2005, pp 144–149.
See D.A. Loeber, ‘The Russian-Latvian Territorial Dispute Over Abrene. A Legacy from the Times of Soviet Rule’, The Parker School Journal of East European Law 1995/Vol. 2 Nos. 4–5, pp. 537–538. See also A. Krassilnikow, ‚Die Staatsgrenzen der Republik Lettland nach dem Stand vom Sommer 1993‘, 39 Osteuropa Recht 1993, No. 4, pp. 281–286.
See the text and materials reprinted in A. Reinhards, Lettonie-Russie…, p. 287 et seq.
Об образований Псковской Области в составе СССР [On Founding the Pskov Oblast of the RSFSR], August 23, 1944, in Sbornik zakonov SSSR i ukazov Prezidiuma Verkhovnogo Soveta SSSR (1938–1975) at 93.
Ibid.
Decree of the Presidium of the Supreme Soviet of the Latvian SSR On Establishing the Border between the Latvian SSR and RSFSR, October 5, 1946.
Указ Президиума Верховного Совета СССР об утверждений изменений границей между Латвиской ССР и РСФСР [Edict of the Presidium of the Supreme Soviet of the USSR On Confirming the Changes to the Border between the Latvian SSR and the RSFSR], October 19, 1946.
Decree On the Nonrecognition of the Annexation of the Town of Abrene and the Six Communities of the Abrene District, January 22, 1992, Zinotajs, Issue Nos. 6–7, Item No. 69 (1992).
Zinotajs, Issue No. 23, Item No. 495 (1994).
Loeber, op. cit., p. 543.
See J.B. Allcock et al. (ed.) Border and Territorial Disputes, 3rd edition, Longman Current Affairs, 1992, p. 35.
Loeber, op. cit., p. 543.
See further I. Ziemele, ‘The State Border Between Latvia and Russia and the Doctrine of the Continuity of the Republic of Latvia’, 9 Baltic YBIL 2009, pp. 95–132.
Allcock et al. (ed.), p. 32.
Allcock er al. (ed.), p. 33. See also A. Gureckas, ‘Lithuania’s Boundaries and Territorial Claims Between Lithuania and Neighboring States’, 12 N.Y.L. Sch. J. Int’l & Comp.L., 1991, p. 107 et seq. and C. Whomerslay, ‘The International Legal Status of Gdansk, Klaipeda and the Former East Prussia’, 42 ICLQ 1993, p. 919 et seq.
Allcock et al., op. cit., p. 33.
See the Proclamation on the Reestablishment of the Republic of Lithuania, March 11, 1990 which inter alia stated: ‘The Lithuanian State (…) recognizes the inviolability of borders as codified in the Final Act of the Helsinki Conference on Security and Cooperation in Europe, adopted in 1975 (…).’ Note that the USSR also relied on the argument of the very same Helsinki Final Act, in order to defend its territorial integrity, i.e. prevent the Baltic States from establishing independence.
Allcock et al.(eds.), op. cit., p. 36.
Cf. G. Biger, The Encyclopedia of International Boundaries, Jerusalem, 1995, p. 365.
‘Посёл Литвы Зенонас Намавичюс: Российской военной угрозы не существует’, Izvestia, 20.02. 2001 (No. 30), р. 9.
See R. Szafarz, op. cit., pp. 223–4.
See further E. Franckx and A. Pauwels, ‘Lithuanian-Russian Boundary Agreement of October 1997: To Be or Not To Be?’, in: Liber Amicorum Jaenicke, Berlin: Springer, 1998, pp. 63–95.
For an analysis of Soviet doctrine on the principle clausula rebus sic stantibus, see T. Schweisfurth, Der internationale Vertrag in der modernen sowjetischen Völkerrechtstheorie, Köln, 1968, p. 309 et seq.
Müllerson, ‘New Developments in the Former USSR and Yugoslavia’, VJIL 1993, p. 313 et seq; Loeber, The Russian-Latvian…, p. 548 et seq.
I.C.J. Rep. 1986, 544 at 566.
Müllerson, ‘New Developments…’, p. 315. Cf. similar views by M. Shaw, ‘The Heritage States: The Principle of Uti Possidetis Juris Today’, 67 BYBIL 1996, p. 131: ‘Thus, there appears to be a conflict of uti possidetis lines, those internationally accepted prior to the annexations and those consequential upon restoration of independence.’
See further L. Mälksoo, ‘Post-Soviet Eurasia, uti possidetis and the Clash Between Universal and Russian-led Regional Understandings of International Law’, 53 NYU Journ. Int’l L. and Pol. 2021, pp. 787–822.
V.L Lenin, Collected works (Сочинения)), t. 30, Moscow, 1959, p. 293.
See e.g. S. Olenev, Mezhdunarodnoye priznanie SSSR, Moscow: Izdatel’stvo sotsial’no- ekonomitcheskoi literatury, 1962, p. 47.
M.N. Shaw, op. cit., p. 132. For instance, a representative of the US National Security Council declared that the US recognized the borders of the Baltic States, as they were established on September 2, 1991. See V.J. Riismandel, ‘Vaatlusi Vabadussõjast ja Tartu rahulepingust’ (Observations on the War of Independence and the Tartu Peace Treaty), in: Vaba Eesti Sõna, December 23, 1999. For Riismandel, the position of the USA on the Russian-Estonian border question has been ‘disappointing.’
See H. Kelsen, ‚Unrecht und Unrechtsfolge im Völkerrecht’, XII ZöR 1932, pp. 481–606.
See C. Tomuschat, Hague Academy General Course, p. 269–270.
See A/CN.4/L.6o2/Rev.i
Phosphates in Morocco (Preliminary Objections), P.C.I.J., Series A/B, No 74 (1938), p. 28. See also Case of the S.S. Wimbledon, P.C.IJ. Series A, No. 1 (1923), p. 15; Case concerning the Factory at Chorzów (Jurisdiction), P.C.IJ., Series A, No. 17 (1927), p. 29.
Reports of International Arbitral Awards, vol. II (1925), p. 641.
Д.Б. Левин, Ответственность в современном международном праве, Москва: Международные отношения, 1969; Н.А. Ушаков, Основания международной оветственности государств, Москва: Международные отношения, 1983, р. 137.
See Yearbook of the ILC 1970, vol. II, p. 306, para. 66 (c).
PCIJ, Ser. A, No. 17, 47.
C. Tomuschat, ‘International Crimes by States—aп Endangered Species?’, in: International Law: Theory and Practice. Essays in Honour of Eric Suy, The Hague: Nijhoff, 1998, p. 2,67–8 (quoting Hold-Ferneck, an Austrian jurist who has argued that international law is ‘order in small, disorder in great matters.’)
Namibia Opinion, I.C.J. Reports 1971, p. 16 at 56 para 125.
See В. Stern, ‘La succession d’Ėtats’, 262 RCADI 1996, 2000, p. 216 et seq. See also I.I. Lukashuk, ‘Russland als Rechtsnachfolger in völkerrechtliche Verträge der UdSSR’, 4 Osteuropa Recht 1993, pp. 235–246; Т. Schweisfurth, ‘Ausgwählte Fragen der Staatensиkzession im Kontext der Auflösung der UdSSR’, 32 AVR 1994, pp. 99–129; Т. Schweisfurth, ‘Vom Einheitsstaat (UdSSR) zum Staatenbuпd (GUS). Juristische Stationen eines Staatszerfalls und einer Staatenbundsentstehung’, 52 ZaöRV 1992, pp. 541–702.
See Rossiiskaya Gazeta, January 31, 1992. See also Circular of the Ministry of Foreign Affairs of the Russian Federation, Note of January 13, quoted by the President of the Russian Association of International Law A. Kolodkin in: ‘Russia and International Law: New Approaches’, RBDI 1992, p. 553.
B. Fassbender, UN Security Council Reform and the Right of Veto. A Constitutional Perspective, The Hague: Kluwer, 1998, p. 189.
See S. V. Chernichenko, Teoria mezhdunarodnoga prava, Tom II, Starye i novye teoreticheskie problemy, Moscow: NIMP, 1999.
E. Martynenko has argued that the link of continuity connects the present Russian Federation (through the USSR) with the Tsar’s Russia. See ‘Правопреемсmво России в отношении собственности Российской Империи нa Ближнем Востоке’, in: Правоведение No. 1 2000, pp. 237–247 at pp. 2, 46–7.
See Repečka, op. cit., p. 69–70 and B. Meissner, Die baltischen Staaten…, 1995, p. 61.
See further W. Czaplinski, ‘State Succession and State Responsibility’, 28 Canadian YBIL 1990, pp. 339–359.
M.C.R. Craven, ‘The Problem of State Succession and the Identity of States under International Law’, 9 EJIL 1998, pp. 142–162 at 160.
Note, however, that similar views of ‘functional splitting’ and ‘functionally limited identity’ have recently been suggested by Wilfried Fiedler. W. Fiedler, ‚Entwicklungslinien im Recht der Staatensukzession’, in: Liber Amicorum. Professor Ignaz Seidl-Hohenveldern, ed.by G. Hafner et al., The Hague: Kluwer, 1998, pp. 133–155 at 136 et seq.
But see, inconclusively, P.P. Kremnev, Raspad SSSR: mezhdunarodno-pravovye problemy, Moscow: Zertsalo-M, 2005.
G. Arangio-Ruiz, L’État dans le sens du Droit des Gens et la notion du droit international, Bologna: Cooperativa Libraria Universitaria, 1975, p. 310. “The interested party should therefore choose, in the first place, between a claim of identity and a claim of non-identity. If it chose identity—and this was accepted or demonstrated—it would have to accept (unless negotiated) absolute continuity in terms of duties as well as rights. Each party, in other words, would be obliged to accept the consequences of identity “en bloc”, whether favourable or unfavourable to it.”
See J. Kahk (ed.) World War II and Soviet Occupation in Estonia: A Damages Report, Tallinn: Perioodika Publishers, 1991, p. 29. The issue of reparations has also been discussed in the literature. See e.g. A. Susi, ‘Mis on meile maksma läinud okupatsioon?’ (What has the Price of Occupation been for Us), Looming No. 2 1990, pp. 246–251 and I. Teder, ‘N. Liidu agressiooniga Eesti Vabariigile tekitatud kahjude huvitamisest’ (About Compensation of Damages Inflicted upon the Republic of Estonia with the Aggression of the USSR), ibid., pp. 252–254.
See J. Kahk (ed.), ibid.
Republic of Lithuania law on Compensation of Damage resulting from the Occupation by the USSR, June 13, 2000, No. VIII-1727, Vilnius. (See Appendix 4).
See A. Ideon, ‘Eesti jätab Leedu üksi hüvitist пõudma’ (Estonia leaves Lithuania alone to demand reparations), quoting interviews with Estonian and Latvian politicians, Postimees, 03.07.2000.
A. Avdeev, ‘Russian-Lithuanian Relations: An Overview’, Lithuanian Foreign Policy Review 2000 No. 2 (6), pp. 27–33 at 29. Italics added.
See e.g. G. Ginsburgs, From Soviet to Russian International Law. Studies in Continuity and Change, The Hague: Nijhoff, 1998.
P.Л. Бopбов, Основные проблемы теории международного права, Москва: Международные отношения, 1968, p. 80. (Translated from Russian.)
N.V. Zakharova, ‘States as Subjects of International Law and Social Revolution’ (Some Problems of Succession), Soviet YBIL 1960, pp. 157–166 at 165. Cf. for more positive aspects of this doctrine and practice in: N. Zakharova, ‘Renunication by the Soviet State of Treaties of Tsarist Russia which Violated the Rights of the Peoples in Eastern Countries’, Soviet YBIL 1962, pp. 126–136.
T. Sildam, ‘Välismiпister Ilves: ajalugu pole pudupood’ (Foreign Minister Ilves: history is not a grocery store), Interview in Postimees, 02.02.2001: ‘History is not a grocery store where you take one thing and leave the other. Here you cannot say selectively that in some questions we are successors, and not in others. One cannot say that the crimes that were committed are not ours, but ours is all the property which the USSR confiscated, including the embassy buildings of the Republic of Estonia. (…) In the context of this culture where we live—in the context of Western culture—there is a habit of confessing to such behaviour over a formal apology, as many States have done.’ See also the remarks by Ilves on January 16, 2002, at the opening of a memorial plate for the 63 employees of the Estonian Ministry of Foreign Affairs who were executed by the Soviet government: ‘If this would all be past, our feelings today would be more simple and clear. But it seems that this is not only past. Differently from Germany’s exemplary politics of Vergangenheitsbewältigung we notice that crimes committed are not regretted but glorified. Stalin’s hymn is restored. Respect for Andropov who committed murders in Hungary, has been cast into metal. The founding day of the terror organization Cheka, founded by the great murderer Feliks Dzherzhinski, is celebrated as a festive day. We are told: do not wait for an apology… We are not even particularly waiting.’ (Transl. from Estonian) See A. Lõhmus, ‘Ilves kritiseeris teravalt Vеnemаad, (Ilves sharply criticized Russia), Postimees, 17.01.2001.
A. Piip, Rahvusvaheline õigus (International law), Tartu: Akadeemilise Kooperatiivi Kirjastus, 1936, p. 209. Translated from Estonian.
See E. Milano, Unlawful Territorial Situations in International Law. Reconciling Effectiveness, Legality and Legitimacy, Leiden: Martinus Nijhoff, 2006, p. 107.
See Loeber, ‘Consequences of the Molotov-Ribbentrop Pact Continuing into Our Days: International Legal Aspects’, in: Latvia in WW II. Materials of an International Conference, 14–15 June 1999, Riga, pp. 67–76 at 75.
R. Müllerson, Ordering Anarchy. International Law in International Society, The Hague: Nijhoff, 2000, p. 51.
J. Touscoz, Le principe d’effectivité dans l’ordre international, 1964, p. 180. “If effective compliance with the legal consequences of the fictitious act is not ensured, fiction loses its role in legislative elaboration: it becomes a false or fraudulent act, without legal effects. (…) the use of fiction in international legal activity is legitimate only if it is based on the effectiveness of the consequences drawn from fiction.”
H. Morgenthau, ‘Positivism, Functionalism and International Law’, 34 AJIL 1940, p.260.