1 The Changing Status of Statehood in Contemporary International Law and Society: Starting Point for Analysis
The present time is an interesting one for the study of States in international law since it is widely perceived that both domestically and internationally, the role of the nation State is diminishing and in any case changing. Often disregarded today, however, is that predictions about the end of the State are not so new. During the 20th century, the disappearance of the State has been suggested by both Marxist and conservative legal thinkers alike. Edouard Berth declared in 1907: ‘L’État est mort’1 Vladimir Lenin predicted in 1917 that the State would wither away.2 Carl Schmitt suggested in 1963 that there is ‘little remaining doubt’ about the approaching end of the era of statehood.3
At the same time, international law experts have obviously had conceptual difficulties with this development since classical international law has centered round the maxim ‘the State is the main subject of international law.’ Nevertheless, international lawyers, too, have occasionally taken up the theme of the decline of statehood,4 even though the fashionable thesis
In any case, it is clear that statehood is not a static phenomenon. In the modern era, the social perception of States has become less and less value neutral, just as individuals and peoples, legitimacy and even democracy, have started to march into the international law arena. Such changes in the perception of States have challenged—and are likely to further challenge—the traditional concept of international law which has blindly accepted the existence of States as a social fact, without ever asking whether a particular effective entity is a democracy or a dictatorship, whether it accepts fundamental norms of international law, how a given State was created or by what means its existence is challenged.
The task of legal scholarship is to re-evaluate the validity of certain perennial analytical tools by analyzing recent trends in practice and in social perceptions. A State is by nature an abstraction, a concept6—but how far can statehood for normative reasons be recognized at variance with the principle of effectiveness? The problem of illegally annexed States can be analyzed in this paradigmatic framework of changes and uncertainties regarding statehood. The historical events of the restoration of States are most of all characterized by changes in international relations. It is because of the difficulty in classifying the relevant changes that international law of State succession and continuity has traditionally been characterized by legal scholars as ‘uncertain’, ‘not suitable for codification’, and so on.
2 Re-established States in the Practice of International Relations: Historical Perspective
The phenomenon of re-established States is relatively old. As long ago as the eighteenth century, Emer de Vattel used the case of Portugal as an example.7 In 1580, the ruling dynasty of Portugal died out and the country was incorporated into the Kingdom of Spain. However, following an insurgency in 1640, the independence of Portugal was re-established. This is possibly the first case
The Vienna Congress of 1815 re-established the independence of certain German and Italian States, restoring power to dynasties that had been ousted by Napoleon. Among the States re-established were also The Netherlands, which had been incorporated into the French Empire in 1810.10
The first modern case of State re-establishment is Poland, which lost its independence as a consequence of the third Polish partition in 1795 but regained it after World War I, in 1918. Poland was the first State to claim in contemporary legal concepts—notwithstanding that it had not de facto existed for one hundred and twenty-three years—that as a subject of international law it was identical with the previous State.11 However, notwithstanding the arguments advanced by Polish jurists,12 internationally the Polish claim found no specific recognition beyond the domestic sphere.13 Similarly, the claim of post-1918 Lithuania to be the same State as the Lithuanian part of the Polish-Lithuanian Commonwealth before 1795 was not considered at the international level.14
A major change in this respect occurred before and in the course of World War II. On October 5, 1935, the Italian army invaded Ethiopia; the annexation of the country followed on May 9, 1936. After some hesitation, other States recognized this forcible annexation. However, after Italy declared war on the allies on June 11, 1940, the attitude of other States with respect to the legal status of Ethiopia changed. When Ethiopia was liberated by the British, its continuous identity with pre-annexation Ethiopia was recognized. On February 10, 1947,
Another case was Czechoslovakia which, after it had already been forced to surrender the Sudetenland to Germany in 1938, was occupied by the German military on March 16, 1939. A day earlier, Hitler and Göring had presented Czechoslovak President Hacha with an ultimatum, threatening to bomb Prague if the German demand to occupy Bohemia and Moravia was rejected. President Hacha accepted the ultimatum. The USA never recognized the status of Bohemia and Moravia as a German protectorate, and continued to recognize the statehood of Czechoslovakia. However, the majority of the international community either explicitly or implicitly recognized Czechoslovakia’s extinction.16 During the course of World War II, the Czechoslovak government in exile was founded by Edvard Benešs, former President of Czechoslovakia. In the Peace Treaties of February 10, 1947, the identity of the post-war Czechoslovak Republic with the pre-1939 Czechoslovak Republic was confirmed.17
A similar case was Albania. The Italian army attacked Albania on April 7, 1939. The Albanian crown was ‘offered’ to the King of Italy, and on April 14, 1939 a ‘personal union between the two Kingdoms’ was proclaimed. In other words, Italy had annexed Albania. Most countries, except the USA and some other States, recognized the results of the Italian act of force. As no Albanian government in exile was established, Albania appeared to be extinguished as a State. However, in the Italian Peace Treaty of February 10, 1947, the Italian operation against Albania was qualified as aggression and Albanian State continuity with pre-1939 Albania was confirmed.
Last but not least, there is the perhaps most famous—or at least most discussed—case, that of Austria. On March 11, 1938, Germany presented an ultimatum to the Austrian Government in which it demanded that Austria should cancel a planned plebiscite on the issue whether Austria should remain independent or join Germany.18 After Austria complied with this ultimatum, Germany further demanded that Austria form a new, German-friendly
No Austrian government in exile was formed; nor did Austrian diplomatic missions abroad remain functional. It seemed that the international community took Austria’s extinction for granted. Even the most ardent follower of the non-recognition principle, the USA, recognized Austria’s extinction.20
However, the positions changed after World War II had broken out. On November 1, 1943, Great Britain, the USA and the Soviet Union adopted a declaration in Moscow in which they declared the annexation of Austria null and void. In April 1945, Vienna was captured by the Soviet army and the restoration of the Austrian Republic was proclaimed by Austrian politicians. Instead of recognizing Austria as a new State, the Allies accorded their recognition to the new Austrian government.
As a consequence of the restoration of the Austrian State, the Allied Powers agreed at the Potsdam Conference of 1945 that ‘reparations should not be exacted from Austria.’ Finally, the continuity of the Republic of Austria with pre-1938 Austria was recognized in the Austrian State Treaty of May 15, 1955.21 Therefore, it can be concluded that the thesis of Austria’s continuity was accepted in State practice.22
However, far from every claim of sameness with historic States has been recognized in post-World War II State practice. For instance, after Algeria became independent in 1958, it claimed to be legally identical with the Algeria that had
Already a first glance at this summary of State practice reveals that a claim of State identity does not guarantee recognition of such an identity as a subject of international law. Clearly, for reasons to be studied, important legal and political factors have confirmed State identity in some cases and denied it in others. Why, then, were the cases of Poland (1795–1918) and Algeria (1830–1958) on the one hand, and those of Ethiopia, Czechoslovakia, Albania and Austria on the other hand, treated so differently? And what really was the legal status of Ethiopia, Czechoslovakia, Albania and Austria during their de facto non-existence? How did international legal doctrine interpret and classify these cases and what consequences did it draw from them for the concept of statehood in international law?
3 State Continuity, Identity and Extinction in International Law Doctrine
It is in the fundamental interest of every legal order to establish rules which would help to determine who its subjects are, how they are created, and how they become extinguished. The identity of the subjects of international law is directly related to their rights and obligations, respect for or disregard of which would directly affect the stability of international relations. On that basis, international law has traditionally distinguished between two different, even opposing concepts: State succession and State continuity (or identity). In the
But what is a State for the purposes of international law? The answers to this question determine, more or less directly, when a State becomes extinguished.
Theoretical explanations of the classic notion of statehood in international law lie in 19th century German State law theory. The German legal scholar Georg Jellinek identified three constitutive elements of statehood: territory, population, and government.29 Jellinek distinguished between two sides of a State: social-factual and normative-ideal.30 While he suggested that the birth and extinction of States are metajuridical phenomena beyond juridical constructions, he linked the identity of a State to its ‘social side’, to the ‘historical-political facts.’ This enabled him to argue that restoration of the same State is possible, where the elements of association join forces anew.31
Since at least the 19th century, there have been two competing schools of thought on the matter of the creation and existence of States in international law doctrine: one arguing that the existence of States is a matter of fact, the other claiming that States become States as legal persons only through admission, recognition by the international community—the declaratory and constitutive theories of recognition. The relevance to be attributed to recognition by other States, members of the international community, has also been a controversial issue in the cases of State extinction.
[I]f a power is established anywhere, in any manner, which is able to ensure permanent obedience to its coercive order among the individuals whose behavior this order regulates, then the community constituted by this coercive order is a state in the sense of international law. The sphere in which this coercive order is permanently effective is the territory of the state; the individuals who live in the territory are the people of the state in the sense of positive international law.36
It is striking how strongly Kelsen’s thinking about statehood in international law was influenced by the sociological conception of the State. This emphasis on sociological reality is almost in question-begging contradiction with the distinction that is otherwise so characteristic of Kelsen’s State theory: the distinction between the social and the juridical conception of the State, and the
That the Montevideo definition of the State reflects the concept of statehood in international law has also been suggested by contemporary legal scholars.38 The Montevideo definition of statehood is generally provided in most casebooks of international law as the definition of statehood.39
Along the lines of the Montevideo elements of statehood, it has then only been logical to argue that the disappearance of any one of these constituting elements brings about the extinction of the State itself.40 Following this thinking, should the flooding over of an island State as a consequence of climate change or other natural catastrophe bring about the disappearance of the State’s territory, the State itself would become extinguished.41 In another theoretical construction, the total disappearance of a people—for example, in the result of natural catastrophe or genocidal acts—would also bring about the extinction of their State.
The most topical and challenging cases in international practice are those connected to changes or even to the disappearance of an (independent and effective) State power. Some rules of customary international law which specify what occurs with State personality when changes in State government take place are already relatively old and well-established. According to the first rule, the continuity of a State will per se not be affected by territorial changes, by acquisition or loss of territory.42 After World War I, the Republic of Turkey was recognized as the continuation of the Ottoman Empire, although the territory had shrunk considerably. Similarly, conquests and acquisitions during the 15th–20th centuries did not alter the international legal personality of Muscovy/Russia.43
The third well-established rule of customary international law is the most interesting for our case study. It establishes that when a State temporarily comes under military occupation (occupatio bellica), it does not become extinguished, so that its continuity remains preserved.46 The limits to this rule have been set by the principle of effectivity. According to classic understanding, the legal institute of military occupation has in itself temporary limits, or a provisional character.47 Military occupation comes to an end either with the legally valid incorporation of the occupied State’s territory (such as qua peace treaty), or with restoration of the original sovereign’s power.48
Although the legal regime of occupation has thus by definition been temporary, it demonstrates that a State can—temporarily—survive without effective government over the citizens living in a State’s territory (under occupation). Annexation of territory seized durante bello was therefore without legal effect upon the status of the occupied territory. From the strict point of view of the Montevideo requirements for statehood, legal fictions on the question of extinction or survival of State personality were already accepted in customary international law.49
4 Issues Raised in Legal Doctrine by World War II Annexation Cases
Recognition of State continuity in the Ethiopian, Czechoslovakian, Austrian and Albanian cases became a new development in international law. According to strict application of the Montevideo criteria and the principle of effectiveness, those annexed States should have become extinct at the moment of annexation; their re-establishment after liberation could only have created new States from the point of view of international law.50 In the cases of Austria and Czechoslovakia, since no military hostilities had occurred, there were not even military occupations in the narrower sense. All of those States were de iure or de facto annexed following occupation; moreover, their annexation was, after some hesitation, recognized by almost all members of the then international community, with the exception of Czechoslovakia. It was a difficult task to explain convincingly the status of those States as subjects of international law.
Correspondingly, highly diverse legal opinions evolved. The discussion has been most vivid in the Austrian case. Here, two opposing theories were presented—the occupation theory and the annexation theory. One group of writers, led by Hans Kelsen, insisted that Austria became extinguished upon its annexation by Germany and after World War II was created as a new State (annexation theory). According to the occupation theory, however, Austria fell under illegal occupation in 1938, was therefore not extinguished as a subject of international law and in 1945 re-established its capacity to act.51
The annexation theory was at variance with the final outcome in State practice because re-established Austria claimed identity with pre-Anschluß Austria and its identity was generally recognized by the international community.52
a Does State Identity Always Imply State Continuity?
When it comes to this question, the very way of putting it was new in doctrine. Both concepts of State continuity and identity had been used to mean basically the same thing, as synonyms.53 Krystyna Marek defined State identity as the identity of its international rights and obligations, and State continuity as ‘the dynamic predicate of State identity.’54 For Marek, there can be no continuity without identity (and vice versa)—‘unless the possibility of legal miracles is accepted.’55 A State either exists continuously or becomes extinguished. According to this—until today probably predominant—understanding, it is, at least in legal terms, impossible for a State to temporarily disappear, and then reappear as the same State.
Later writers have challenged this view.56 In contrast to Marek, these authors argue that, indeed, it has happened in State practice that the identity of a State is recognized after the event which called that identity in question is recognized—and thus that identity was preserved—although the continued existence of the State during the critical time must be denied. James Crawford, for instance, has suggested that identity without continuity, a kind of resurrection of the same legal entities, is indeed possible in international law.57 Ian Brownlie’s approach is quite similar to Professor Crawford’s. In Professor Brownlie’s view, a ‘functional approach’58 was taken in the cases of Ethiopia, Albania, Austria and Czechoslovakia, since ‘the insistence on continuity
A modified theory of identity without continuity by Werner Jakusch67 invoked the old Roman legal concept postliminium. In ancient Rome, postliminium designated the legal process of restoration to former status when prisoners of war returned home.68 Although in legal terms such a person had been considered dead during his disapperance or captivity, he could now regain his former legal status. Thus Jakusch rejects the fiction of the continued legal existence of Austria between 1938 and 1945, as the three constitutive elements set for a State—population, territory, and State power—were not all present during this period.69 However, drawing parallels with the ancient ius postliminii
Both Marek’s and Crawford’s (or Jakusch’s) opposing theories contain a fiction—albeit of different kinds. Marek’s own ‘legal miracle’ happens when she lets a State continue to exist in the case of effective annexation, or when the requirements of the three elements theory are not fulfilled, as there is no effective government. While the theory of identity without continuity seems more realistic (Austria did not exist during 1938–1945 and its exctinction was widely accepted, yet Austria was recognized as the same State later on), it lets another ‘miracle’ happen, by recognizing the sameness with a State that has become extinguished.71
The logical consequence of the theory of identity without continuity is the conclusion that recognition status accorded by third States largely determines whether or not a re-established State is the same.72 The inherent difficulty here is that State recognition can be arbitrary and has often been non-unanimous. Marek, relying on a ‘pure’ legal principle (or fiction), is deeply critical with respect to use of recognition by other States as the ultimate test of State personality.
As an example of identity without continuity, Crawford uses the case of Syria (1958–1961).73 This was a case of voluntary yet failed short-term unification. On November 1, 1958, Syria had united with Egypt, together constituting a State named the United Arab Republic. On September 28, 1961, following a military coup d’état, Syria again broke away from Egypt. During more than three years of the existence of the United Arab Republic, Syria had disappeared from the international community; it was no longer a member of the United Nations.74 Yet after 1961 Syria was regarded by the State community as the same entity as before unification with Egypt (for example, its membership in the UN was ‘revived’ on October 19 1962.)75
I have consulted many delegations on this question and the consensus seems to be that, in view of the special circumstances of this matter, Syria, an original Member of the United Nations, may be authorized to be represented in the General Assembly as it has specifically requested.76
Recognizing the State identity of Syria did not seem to harm anybody and offered a way out of a politically delicate situation. Nevertheless, the Syrian case must be distinguished from the Austrian, Czechoslovakian, and other cases. As the arguable loss of the Montevideo criteria for statehood occurred for very different reasons in those cases—voluntary union with Egypt in Syria and the illegal use or threat of force in the other cases—the protected values and the fictions employed by recognition of State identity were of a completely different kind. According to Joe Verhoeven, the fiction of Syrian ‘suspension has no basis in law: it is either a matter of fantasy or politics.’77
Moreover, in defence of Marek’s argument that identity always implies continuity, it is still arguable that the fiction of Syria’s identity also implies the fiction of Syria’s continuity—especially as the issue about Syria’s continuity did not practically even arise. Konrad Bühler has analyzed the respective State practice and come to the conclusion that Syria was considered to continue to exist as an international person with restricted capacities even after unification.78 The Syrian case would fit only with considerable difficulty into the predominant thesis that State identity implies continuity, but it is questionable whether the Syrian case should therefore constitute any new rule, or inevitably
However, it appears that the ‘identity equals continuity?’ dispute is in essence not a purely terminological or metaphysical one; rather, it is about the question: when do States become extinguished and under what conditions will/may they survive in international law? For the purposes of analyzing the Baltic case, the confusion may be primarily terminological: how to use both words: identity and continuity. Many authors, departing from the unity of the two concepts, have preferred to employ the word continuity for both phenomena simultaneously. This identification cannot be accepted for the purposes of further analysis. Therefore, the possible distinction between identity and continuity will lie at the very heart of this study of the Baltic case. For this reason, we accept the terminological specification introduced by Crawford and speak—until any further conclusions—about State identity in contexts when it is inconclusive whether identity without continuity or identity and continuity are implied.
b What Are the Normative Consequences of State Identity?
The hairsplitting in the debate ‘identity and/or continuity’ may seem quite metaphysical at first glance. However, it is directly related to the fundamental question: what are the normative consequences of State identity and continuity or succession? What does it mean to be the same State? Rudolf Bernhardt presents a circular definition of State continuity when he writes that State continuity is the continuation of a State as a subject of international law, notwithstanding external or internal changes.79 Krystyna Marek, on the other hand, defines the identity of a State as the identity of its international rights and obligations, before and after the event which called that identity into question.80 In other words, whenever there is State identity, there is also the identity of legal rights and obligations, and vice versa. Although Marek of course admits that in practice concessions have to be made from this proposition, she is certain about the basic trend: State identity means the identity of rights and duties.
In the case of re-established States, these different views may involve important consequences. Following the position of Marek, there is a strong normative presumption for the restoration of former legal relations, rights and duties. Crawford’s argument, on the other hand, seems to leave questions of the fate of former rights and duties more open. State identity would still exist independently from whether it was possible or necessary to restore specific legal relations from beforehand.
From the standpoint of rights and duties, it is evident that, according to international law, only a State which existed—‘really’ or fictionally—at a certain point in time can be subject to rights and duties, for example as an illegally occupied country. Depending on whether a State is held to be illegally annexed—and therefore further existing in international law—or extinct, it either can or cannot be an object of for example internationally wrongful acts during the period of its de facto non-existence. Another way to look at it would be to equate existence with the validity of rights and duties.
c The Basis in International Law for State Identity in World War II Annexation Cases
i Occupatio Quasi Bellica and Other Auxiliary Theories
Offering legal explanations for World War II State continuity/identity cases, international law scholars have tried inter alia to accommodate arguments derived from established customary rules preserving State identity. In the Austrian discussion, Alfred Verdross coined the term occupatio quasi bellica and argued that the rule protecting States from extinction in cases of occupatio bellica also expands to similarly forcible, quasi-belligerent occupation, even though a state of war was not established.82 At the same time, Wilfried Fiedler has persistently rejected this expansion of the ‘continuity under occupation’ rule to quasi-belligerent occupation.83 However, later parallel developments in
The main difficulty in the Austrian case, however, was not whether Austria was occupied militarily or not, but that Austria was also effectively annexed. Continuity under occupation rule, as established in earlier practice and doctrine, was previously not used to cover cases where the occupied country had been effectively subsumed.
ii Illegality of Annexation Due to Use of Force
Inevitably, the legally relevant essence of the Ethiopian, Austrian, Albanian and Czechoslovakian cases appeared to be located elsewhere and clearly had something to do with the illegality of those annexations pursued by the Axis powers. In 1928 and afterwards, international law had experienced a true normative revolution which prohibited States any recourse to war, except in self-defence. Before 1928, recourse to military force had been legal under international law—a true continuation of politics by other means’, as Prussian general Carl von Clausewitz maintained. By accepting the legality of war, it was only natural that international law would accept the legality of its fruits—that is, of conquest and annexation. In 1896, Alphonse Rivier, a Swiss international lawyer working in Brussels declared: ‘Conquest justifies itself by its very existence, like war, of which it is a natural consequence. The source of the law of nations is positive, constrained to take into account of what is.’85 This changed after 1928, and the impact of this change in international law is, by its revolutionary nature, comparable only to the introduction of the concept of human rights as part of international law, not merely domestic jurisdiction, in the decades following World War II.86
Paris on August 27, 1928, saw the adoption of the so-called Kellogg-Briand Pact, an international treaty in which States banned ‘war as instrument of
Notwithstanding these developments, debate has been ongoing in international legal literature about when exactly prohibition of the use of military force became a recognized part of general international law. It has been suggested by some authors that the years between adoption of the Kellogg-Briand Pact in 1928 and adoption of the UN Charter in 194590 still remained a sort of legal transition period in this respect. Those scholars have argued that notwithstanding legal commitments such as the 1928 Kellogg-Briand Pact, State practice and review of international law manuals published at the time confirm that general international law did not prohibit recourse to military force during the late 1930s or generally during World War II.91
This is clearly a minority view and seems to have been convincingly rejected in post-World War II State practice and legal pronouncements, such as those made at the Nuremberg war crimes trials. The case has been convincingly argued by Ian Brownlie.92 The legal character of an international legal norm cannot be denied on the basis that this norm has been violated—even though violations of the Kellogg-Briand Pact during World War II certainly brought under attack not only this newly created norm but the relevance of international law itself.
…admettre qu’un acte illégal, ou ses conséquences ou manifestations immédiates, puisse devenir une source de droits juridiques pour le transgresseur de la loi, c’est introduire dans le systéme juridique une contradiction qui ne peut être résolue que par la négation de son caractère juridique.96
A situation when the use of military force would be illegal, but incorporation of the territory seized by the aggressor (annexation) might become legal, is illogical. Why bother to prohibit aggression when the aggressor knows that
Following adoption of the League of Nations Statute, German international law scholar Walter Schätzel argued that annexation had become illegal in international law, and that the only way to turn annexation into legal title would be recognition of the illegal situation by the international community.98 But why would other States recognize such an illegal situation at all? At the same time, another German scholar, Boris Meissner argued that a norm that would have rendered annexation of seized territory null and void in all circumstances had not yet emerged with adoption of the Kellogg-Briand Pact in 1928. At least initially after adoption of the prohibition of use of force, in the years following 1928 (that is, before the rule eo ipso prohibiting annexation had crystallized in international law), the legal consequences were ultimately left for the rest of the international community to decide.99 Recognition of forcible seizure by the international community could ‘cure’ the initial illegality of the conquest and give rise to legal title for the invader. Logically, such acceptance of the annexation by the community of States brought about the extinction of the annexed State.100 And vice versa—refusal by a considerable number of States to accord full recognition to annexation served as conclusive evidence of its illegality, proving that the invader had not succeeded in acquiring legal title over the seized territory, and, moreover, that the conquered State had not been extinguished in terms of international law.101
When the acts in question are in breach of general international law, such recognition… assumes the character of a quasi-legislative measure in the general interest of international society and international peace.102
… [the] international community may (…) eventually signify assent to the new position and thus by recognition create a title. This possibility in no way contradicts the main proposition that force does not of itself create a title, because the international community would from this point of view be exercising a quasi-legislative function.103
It is realistic to attribute a certain ‘law-creating-power’ to recognition by third States of an illegal situation during the years immediately following 1928. This, however, does not alter the basic presumption following 1928—the prima facie illegality of an annexation resulting from the use of force. Several renowned lawyers, such as Hans Wehberg, general secretary of the Institut de Droit International, even argued in the pre-World War II context that annexation was ipso iure null and void, and that even recognition by third States would not alter such nullity.104
pour décider si un État a cessé d’exister ou non, il faut se rapporter à l’attitude de la collectivité des États, de cette même collectivité a laquelle incombe la reconnaissance d’un nouveau État.107
However, non-recognition of illegal acts per se did not make those acts illegal; it was only a further indication of their illegality, which originated from international law. In determining the illegality of forcible annexation, the non-recognition policy exercized by the State community therefore played only a supportive role, further confirming the illegality of the acts in question. It follows from this view that even politically motivated recognition of an illegal situation—there was no duty of non-recognition in international law as of 1939108—could not give title to the annexing State unless accorded to by the whole community of States.
The crucial aspect of the illegality of annexation explains why State identity was not recognized, as in the Algerian case. Because the illegality of annexation has been the key element in the confirmation of identity and continuity of resurrected States, attempts to expand resurrection of the same subject to cases
iii The Relevance of the People in Determining the Illegality and Continuity of Statehood
In the cases analyzed here involving World War II, illegality of the use of force was also connected with violation of the rights of the affected peoples. Several authors, most notably from Austria, have explained the continuity of
Alfred Verdross traced this concept back to Hugo Grotius, who had emphasized the continuity of international legal responsibility because of the continuity of the people. For Verdross, this was the reason ‘warum nach Völkerrecht die Identität des Staates nicht von der Identität seiner Verfassung, sondern von der Kontinuität seiner sich ständig in der Geschlechterfolge erneuernden Personengemeinschaft abhängt.’116 A similar argument was made by another Austrian scholar, Stephan Verosta.117 However, the German international law professor Ulrich Scheuner criticized this position by pointing out that the ‘real identity’ of the population would also continue in the case of (legal) annexation; what must be meant (by Verosta) is the continuity of the will to maintain national unity (Fortbestand eines nationalen Einheitswillens; continuation of a national will to form a whole/be as one). The theory that the people of a State are the ‘guardians’ of an (illegally annexed) State has its roots in an unconventional theory of State which suggests ‘the living mental-political unity of the people in the sense of a national consciousness’ as a crucial element of the State.118
The impact of the people and its right to self-determination upon statehood was extensively discussed in the case of Germany’s legal status after its defeat in World War II. The debated issue was, in particular, whether the German State had become extinct or continued to exist. At least from the point of view of the ‘three-elements-theory’, lack of a German government after the arrest of the members of the Dönitz government in May 1945 spoke against the continued existence of the German State. Hans Kelsen, among other scholars, argued that Germany had become extinct.120 Following the allied decisions at the Potsdam conference, the eastern parts of pre-1938 Germany were annexed by Poland and the USSR. At the same time, the victorious Allies did not intend to annex the whole territory of the defeated Reich, and there was thus no animus which would operate as a precondition for effective annexation.
In 1949, two German States, one in the West and the other in the East, were proclaimed in the occupation zones of the Western Allies and the USSR. This was another factor which seemed to suggest that the previous German State had become extinct. However, the Federal Republic of Germany claimed that this was not the case and that the legal personality of the German Reich continued in the shape of the FRG.121 West German international law scholars based the State continuity claim in particular upon the argument that the division of Germany was brought about in violation of the German people’s right to self-determination.122 Until the admission of both German States to the UN
During the following decades when the FRG controlled only a part of the Reich’s former territory, and another German State, the GDR, was admitted to the UN and recognized as a sovereign State by the FRG and other States, the claim of the continuity of the German State included a considerable element of legal fiction.124 In any case, it was a quite unorthodox doctrine when it was argued, on the basis of the jurisprudence of the German Constitutional Court and in the words of Professor Georg Ress, that on the one hand, ‘the FRG recognized the GDR at the international level as a State in the same way as the Federal Republic is itself a State under international law’, but at the same time, ‘the relations between the FRG and the GDR are not only of an international law nature, but a mixture of State law (internal law) and of international law.’125 It was also from the point of view of effectiveness that Soviet and East German legal scholars criticized the Western ‘imperialistic’ doctrine of one indivisible Germany.126
Yet the German continuity claim subsequently found recognition in State practice, and today’s unified Germany is, in terms of international legal personality, considered to be identical with the German Reich. Certain elements of fiction in this legal claim have already been pointed out; none the less, this claim has been recognized. In a way, it can be argued that history gave the right to the (West) German view.
The lessons to be drawn from the discussion of Germany’s legal status are twofold. On the one hand, the success of claims to statehood in difficult cases has a lot to do with political developments: who prevails and who does not. The claim of the continuity of the German State was not only a legal, but also a political claim as it was aimed at the re-unification of Germany. This theory proved to be successful inter alia because the German claim for re-unification proved to be successful, not only because of the inherent supremacy of its legal arguments over the effectiveness doctrine.
On the other hand, the acceptance of Germany’s legal position in State practice still demonstrates that after World War II, international legal practice had started to accept certain ‘fictitious’ claims to statehood when backed by some
More recent developments in international law tend to accentuate material elements. While already in the 19th century international law often recognized the existence of nations or peoples in spite of foreign occupation, this aspect gained further significance with the development of the right of self-determination in the 20th century. The turning away from formal criteria was strengthened by the prohibition of the use of force and annexation. This general trend in international law, which has also become evident in the work of the United Nations, justifies giving priority to the right of self-determination in the solution of problems of continuity, provided that this right is actually exercised in an internationally perceptible manner.128
5 Implications of the Illegality of Annexation for State Personality
In the light of the illegal annexation cases, international lawyers started to argue that illegality of annexation prevents extinction of the annexed State.129 Starting from the illegality of the Axis annexations in the cases of Ethiopia, Austria, Albania and Czechoslovakia, Krystyna Marek has derived a legal explanation for the survival of those States from the maxim ex injuria ius non oritur.130
It is this principle alone which—throughout all changing attitudes of third States—can provide a legal explanation of that survival, which indeed makes it a legal survival and not an arbitrary political fiction.131
…would follow that the Czechoslovak Republic passed through some very peculiar vicissitudes indeed as regards her international status: it existed for some time after March 15, 1939, then it ceased to exist, then it was in existence again and, what is supremely puzzling, not as a new State but precisely as the old one. Moreover, even then it existed in relation to the Allied countries, while it did not exist in relation to the Axis and some of the neutrals (e.g. Switzerland).133
But would not the principle ex injuria ius non oritur be too abstract and general to preserve a State from extinction in a case of illegal annexation? A substantive segment of post-World War II international legal scholarship remained critical of the explanations and justifications given for Austrian, Czecholovakian and other continuity. Hans Kelsen even went as far as to deny the legal value of the principle ex injuria ius non oritur in international law.134 Not surprisingly, similar dismissive views with respect to the ‘ex injuria’ principle had been taken inter alia by Italian legal scholars during the fascist period.135
Aus dem Rechtswidrigkeitsurteil (…) folgt jedoch nicht notwendig der ununterbrochene Fortbestand eines Staates als Völkerrechtssubjekt. (…) Daher kann auch das von Marek herangezogene Prinzip ex injuria ius non oritur die ununterbrochene Identitat Österreichs nicht nachweisen, mochte die Rechtswidrigkeit des Anschlusses auch Motiv und politische Triebfeder fur die Wiederherstellung des Staates abgegeben haben.138
Here, the fundamental conceptual disagreement among international lawyers becomes evident: can the illegality of annexation compensate for lack of effectivity in terms of the continued existence of States?139 Should the Montevideo requirements for statehood be put aside when the act of annexation is illegal? Is international law strong enough to uphold such an approach? If so, then under what circumstances; and for how long? Ulrich Scheuner sums up the critique from the point of view of realists: ‘Da aber der Fortbestand eines Staates einen Tatbestand darstellt, der sich auf eine soziologische Realität gründet, wird dadurch [der Rechtswidrigkeit der Annexion] an dem Untergang des Staates als faktischem Vorgang nichts geändert.’140 It was always the presumption of the
Altogether, however, the fiction of the legal identity of Austria and other illegally annexed States, was there (in State practice), and traditional theory failed to explain this phenomenon in legal terms. The conservative segment of legal doctrine seemed to be a prisoner of the Montevideo legacy, of a too literal application of the three constitutive elements of statehood, and of the effectiveness principle. It regarded cases where State identity was recognized notwithstanding effective annexation with realist suspicion, as uneasy and strange anomalies, products of fictional politics. It was more worried about the ‘relevance’ of international law when State identity was recognized notwithstanding the temporary de facto disappearance of a State than when a State was annexed following the illegal use of force. The German international lawyer Walter Rudolf maintained that the concept of a State has not substantially changed in international law,141 and that—one realizes why international lawyers should defend the existing definition of statehood, almost like medieval knights a castle against the infidels—‘Mit dem Staatsbegriff steht und fällt die Völkerrechtsordnung.’142
For international lawyers who did not see certain departures from the Montevideo criteria as a heresy, the question has been instead: what is the content of new international law rules; how far has international law gone —and how far can it go—in defence of legality and in rejecting the argument of effectiveness when effectiveness was created illegally? Modern practice has supported the proposition that statehood need not always be equated with effectiveness; statehood is no longer simply ‘a factual situation but a legally defined claim of right, specifically to the competence to govern a certain territory.’143 This means not only that State practice has started to make important qualifications to the Montevideo criteria, but also that in international law ‘there is (…) no generally accepted and satisfactory legal definition of statehood,’144 even though most lawyers seem to agree that the Montevideo criteria have at least remained a useful starting point for analysis of statehood.
It is known that the existence of an international treaty that foresees the creation of, or whose goal is the creation of one or another ‘factual situation’, does not yet in any way witness its legality. Among such treaties not a few are legally void (an example—the Munich agreement of 1938). The aggressor State, of course, does not have any rights of the successor. Its activities that are directed towards the acquisition of ‘rights’ to the conquered territory, or equally of any rights of the State to whom this territory belongs, remain legally void… [o]nly legal factual situations may predetermine the succession… This thesis is undisputed in the doctrine. From this follows that the conquest of State territory by the aggressor not only fails to deprive that State of the international rights belonging to it, but also to interrupt their attribution to it. Therefore, after the liberation of the territory, the problem of succession does not arise for it—it continues to enjoy the rights, acquired earlier… Of the illegality and criminality of the aggression also follows that all agreements that the aggressor expanded to the conquered territory will terminate their effect upon reestablishment of the independence of the State.145
State practice in the period since 1930 has established, not without some uncertainty, the proposition that annexation of the territory of a State as a result of the illegal use of force does not effect the extinction of the State.146
Some of the ‘uncertainties’ referred to by Professor Crawford were due to—at that time—the still unresolved case of the Soviet annexation of the Baltic States. Did this case fall under the rule postulated by Crawford or not, and if so, then what were the legal implications of the fact that the solution to the Baltic problem was still frozen in the icy winds of the Cold War? How long can international law, and the international community, uphold a legal fiction
At the end of the day, one of the last remnants of World War II, the Baltic question, found a peaceful solution in August 1991, and did so in a way that reconfirmed several earlier normative expectations, pushed aside some old uncertainties, but also managed to revive others.
Quoted from W Rudolf, Wandel des Staatsbegriffs im Völkerrecht?, Bonn: Europa Union Verlag, 1986, p. 45.
В.И. Ленин, Государство и революция. Учение марксизма о государстве и задачи пролетариата вреволюций, Москва: Издательство политической литерературы, 1952 (orig. 1917). (VI. Lenin, The State and Revolution).
C. Schmitt, Der Begriff des Politischen. Text von 1932 mit einem Vorwort und drei Corollarien, Berlin: Duncker & Humblot, 1963, p. 40.
See e.g. L. Ali Khan, The Extinction of Nation-States. A World without Borders, The Hague: Kluwer, 1998; C. Schreuer, ‘The Waning of the Sovereign State: Towards a New Paradigm for International Law?’, 4 EJIL 1993. pp. 447–471; S. Sur, ‘The State between Fragmentation and Globalization’, 8 EJIL 1997, pp. 421–432; O. Schachter, ‘The Decline of the Nation-State and its Implications for International Law’, in: J.1. Charney, D.K. Anton, M.E. O’Connell (eds.) Politics, Values and Functions. International Law in the 21st Century. Essays in Honor of Professor Louis Henkin, The Hague: Nijhoff, 1997; A.-M. Slaughter, ‘Governing the Global Economy through Government Networks’, in: M. Byers (ed.) The Role of Law in International Politics, 2000, pp. 177–205.
See e.g. M. Koskenniemi, ‘The Wonderful Artificiality of States’, in: 88 ASIL Proc. 1994, p. 29; B. Stern, ‘How to Regulate Globalization?’, in: M. Byers (ed.) The Role of Law in International Politics, Oxford UP, 2000, pp. 247–268.
See L. Henkin, ‘International Law: Politics, Values and Functions, General Course on Public International Law’, in: 216 RCADI 1989, p. 23.
E. de Vattel, Droit des Gens, 1758, Book III, Chapter XIV, para. 213.
See V.-D. Degan, ‘Création et disparition de I’État (à la lumière du démembrement de trois fédérations multiethniques en Europe’, 279 RCADI 1999, p. 293.
See W.E. Hall, A Treatise on International Law, 8th ed., ed. by A.P. Higgins, Oxford, 1924, pp. 580–581.
V.-D. Degan, op. cit., p. 294.
In the following cases, the Polish courts claimed identity: Republic v. Felsenstadt (1922), I AD No. 16; Republic v. Weisholc (1919), ibid., No. 17; Republic v. Pantol (1922) ibid., No 18. See further about these cases A. Uschakow, ‘Die Wiederherstellung Polens im Lichte des Völkerrechts’, in: B. Meissner, G. Zieger (Hg.), Staatliche Kontinuität unter besonderer Berücksichtigung der Rechtslage Deutschlands, Köln: Verlag Wissenschaft und Politik, 1983, p. 107 at 113.
See e.g. S. Cybichowski, ‘Das völkerrechtliche Okkupationsrecht’, 18 Z. für VR 1934, p. 318.
Crawford, op. cit., p. 408. See also Kunz, op. cit., p. 71; Marek, op. cit., p. 581 and W. Fiedler, Das Kontinuitätsproblem im Völkerrecht. Zum funktionalen Zusammenhang zwischen Völkerrecht, Staatsrecht und Politik, Freiburg: Karl Alber, 1978, p. 36.
See I. Ziemele, State Continuity and Nationality in the Baltic States: the Baltic States and Russia. Past, Present and Future as Defined by International Law, Leiden: Brill, 2005, p. 40.
See Marek, op. cit., p. 277.
Marek, op. cit., p. 290.
See Marek, op. cit., pp. 318–9; See also G. Cansacchi, ‘Identité et continuité des sujets intenationaux’, RCADI 1970, p. 55.
See Marek, op. cit., pp. 340–1.
Dahm points out that the mood of the Austrian population may have supported the Anschluβ, even if this did not change the illegality of the German action from the point of view of international law: ‘Damit wurde dieses Ereignis, obwohl der damaligen Voksstimmung entsprechend, zu einem völkerrechtswidrigen Vorgang.’ See G. Dahm, Völkerrecht, Band I, Stuttgart, 1958, p. 592.
Cf. D.P. O’Connell, State Succession, Vol. II, 1967, pp. 38–39.
See Austrian State Treaty (Staatsvertrag), Vienna (Belvedere), 15.5.1955, BGBI 1955/152, Arts I and 21.
Cf. also with R.E. Clute, The International Legal Status of Austria, 1938–1955, The Hague: Nijhoff, 1962, p. III. For a recent brief account, see P. Oberhammer/A. Reinisch, ‘Restitution of Jewish Property in Austria’, ZaöRV 2000 60/3–4, p. 739 et seq.
See generally J.A. Frowein, ‘Die Abmachung von Evian und die Entstehung des algerischen Staates’, in: 23 ZaöRV 1963, pp. 20–48. See also I. Seidl-Hohenveldern, T. Stein, Völkerrecht, C. Heimann Verlag, 2000, p. 254.
See also M. Bedjaoui, La Rèvolution algérienne et le droit, Bruxelles: Association internationale des juristes démocrates, 1961, p. 18 et seq where the author argues that Algeria’s sovereignty was never extinguished, and was revived with the belligerency.
O. Döff, Inkorporation…, p. 48.
See Vienna Convention on Succession of States in Respect of Treaties, August 23,1978, UN Doc. A/CONF. 80/31 (1978); ILM, Vol. 17 (1978), pp. 1488–1517 and Vienna Convention on Succession of States in Respect of State Property, Archives and Debts, April 8, 1983, UN Doc. A/CONF. 117/14 (1983).
Marek, op. cit., p. 548; Crawford, op. cit., p. 417; W. Czaplinski, ‘La continuité, l’identité et la succession d’états—évaluation de cas récents’, 26 RBDI 1993, p. 375.
In German: Grundsatz der gröẞtmöglichen Kontinuität des Staates. See G. Dahm, Völkerrecht, Bd. I, Stuttgart, 1958, p. 85.
See G. Jellinek, Allgemeine Staatslehre, 3rd ed., 1920, pp. 394–434.
G. Jellinek, Allgemeine Staatslehre, 3. Aufl., 1920, p. 281. For a critique, see H. Herz, ‘Beiträge zum Problem der Identität des Staates’, 15 ZÖR 1935, p. 247.
G. Jellinek, Allgemeine Staatslehre, 3. Aufl., 1920, p. 286.
165 LNTS 19.
See C. Tomuschat, ‘General Course on Public International Law’, 281 RCADI 2001, p. 96.
H. Lauterpacht, L. Oppenheim, International Law. A Treatise, 5th ed., London: Longmans, Green, vol. I, 1935, p. 121.
Martti Koskenniemi calls this approach to statehood ‘pure fact view.’ See M. Koskenniemi, ‘The Politics of International Law’, 1 EJIL 1990, p. 14.
H. Kelsen, ‘The Pure Theory of Law and Analytical Jurisprudence’, 55 Harvard L. Rev. 1941–42, p. 44 at 64–65.
H. Kelsen, Der soziologische und der juristische Staatsbegriff. Kritische Untersuchung des Verhältnisses von Staat und Recht, 2. Aufl., Tübingen: Mohr, 1928, p. 3
See e.g. S.V. Tchernichenko, ‘State as a Personality, Subject of International Law and Bearer of Sovereignty’, Russian YBIL 1993–1994, p. 15 et seq.
See e.g. Dahm/Delbrück/Wolfrum, Völkerrecht, Bd. I/1, 2. Aufl., 1989, Berlin, pp. 125–137, esp. at 133; Hailbronner in Vitzthum (ed.) Völkerrecht, Berlin, 1997, 3. chapter, Rdnr. 63–68.
See e.g. U. Fastenrath, ‘States, Extinction’, in: EPIL 1987, Vol. 10, p. 465 and Cansacchi, op. cit., pp. 9–10. But see A. Verdross, ‘Untergang von Staaten’, in: K. Strupp, H.-J. Schlochauer (eds.) Wörterbuch des Völkerrechts, Band III, Berlin: Springer, 1962, p. 479.
See e.g. K. Doehring, Völkerrecht, 1999, p. 70.
See Fiedler, Das Kontinuitätsproblem, pp. 52–54
See Crawford, op. cit., p. 404 et seq.
Cansacchi, op. cit., p. 22 et seq; Fiedler, Das Kontinutätsproblem, pp. 46–51.
See e.g. Cansacchi, op. cit., p. 22 et seq.
See Marek, op. cit., p. 15; Cansacchi, op. cit., pp. 26–7; Fiedler, p. 55 et seq; Ipsen, Völkerrecht, p. 59.
See generally A. Gerson, ‘War, Conquered Territory, and Military Occupation in the Contemporary International Legal System’, in: 18 Harvard ILJ 1977, p. 525 et seq; E. Benvenisti, The International Law of Occupation, Princeton: Princeton University Press, 1993, p. 3 et seq. See also N. Ando, Surrender, Occupation, and Private Property in International Law. An Evaluation of US Practice in Japan, Oxford: Clarendon Press, 1991, p. 34 et seq.
See Sir A.D. McNair, Legal Effects of War, 2nd ed., Cambridge: University Press, 1944, pp. 318–320.
State continuity, although recognized in customary international law, is similarly ‘fictitious’ in cases of anarchy or insurgency, i.e. when the State government is missing or lacks effectivity. See Cansacchi, p. 40 et seq. See also Marek, p. 365. For instance, it is today widely recognized that the State of Somalia has not become extinct, notwithstanding the anarchical situation in that country.
See e.g. Kunz, op. cit., p. 75.
For a concise summary, see W. Hummer, ‘Der internationale Status und die völkerrechtliche Stellung Österreichs seit dem Ersten Weltkrieg’, in: H. Neuhold et al, Österreichisches Handbuch des Völkerrechts, 3. Aufl., Wien, 1997, p. 500. See also H. Miehsler/C. Schreuer, Austria, in: EPIL 12, 1990, pp. 28–33.
Ulrich Scheuner, who had ‘serious doubts’ about such an ‘expansion’ of State continuity, admitted that ‘[u]nzweifelhaft hat in den genannten Fällen die internationale Praxis die Kontinuität weitgehend anerkannt.’ See his book review of Marek, 17 ZaöRV 1956/57, pp. 174–5.
Bernhardt: ‘Beide Begriffe bezeichnen nach der in der Völkerrechtslehre überwiegenden Ansicht denselben Sachverhalt.’ Bernhardt, Kontinuität, p. 295. See also Thurn, Die Kontinuitätsfrage…, p. 30.
Marek, op. cit., p. 5–6. Kelsen adheres to the same view, calling continuity ‘identity in time.’ See H. Kelsen, Principles of International Law, 2nd ed., New York, 1967, p. 384
Marek, op. cit., p. 6.
See Cansacchi, op. cit., p. 9 et seq. and 59 et seq.; Fiedler, Das Kontinutätsproblem …, p. 35 et seq.
Crawford, The Creation …, p. 690 et seq.
Brownlie, Principles of Public International Law, Oxford: Clarendon Press, p. 81.
Brownlie, Principles …, p. 82.
Brownlie, Principles …, p. 82.
Fiedler, Das Kontinuitätsproblem…, p. 105.
Cansacchi, op. cit., p. 47 et seq.
See U. Scheuner, ‘Die Funktionsnachfolge und das Problem der staatsrechtlichen Kontinuität’, in: FS Nawiasky, 1956, p. 9–48 at 19 et seq. and in: Marek’s book review, ZaöRV 17 (57), 1956/p. 173–4.
U. Fastenrath, ‘States, Extinction’, in: EPIL 10, 1987, pp. 465–467 at 465.
See Art. 7, ILC Yearbook 1973, vol. I, p. 137.
ILC Yearbook 1973, vol. 1, 1239th mtg., para. 21.
See W Jakusch, ‘Okkupationstheorie, Annexionstheorie und das ius postliminii’, 25 ÖJZ 1970, pp. 258–263.
See P. Kunig, Postliminium, EPIL 4, 1982, p. 140. See for further discussion: G. von Glahn, The Occupation of Enemy Territory. A Commentary on the Law and Practice of Belligerent Occupation, Minneapolis: The University of Minnesota Press, 1957, p. 257 et seq; G. Cansacchi, op. cit., p. 50–51.
See Jakusch, op. cit., p. 262.
See ibid.
Jakusch explicitly emphasizes the element of fiction in his application of ius postliminii: ‘Der Preis ist das offene Eingeständnis, mit einer Fiktion zu arbeiten—eine… der Jurisprudenz nicht fremde Denkweise!’ p. 263.
Crawford seems to recognize this difficulty when he states that ‘where State existence is terminated either by consent of the entities concerned … or validly in accordance with international law at the time, any subsequent assertion of ‘identity’ takes decidedly fictional overones, and may very well be non-opposable.’ See Crawford, The Creation…, p. 408.
See Crawford, The Creation…, p. 407–8.
See Cansacchi, op. cit., p. 56. See R. Young, ‘The State of Syria: Old or New?’, 56 AJIL 1962, p. 482.
Cf. Crawford, The Creation…, p. 407. See also Cansacchi, op. cit., p. 57 and C. Rousseau, ‘Syrie’, 33 RGDIP 1962, p. 413 et seq.
Quoted in Young, op. cit., p. 486.
J. Verhoeven, La reconnaissance internationale dans la pratique contemporaine, Paris: Pedone, 1975, p. 32.
K. Bühler, State Succession and Membership in International Organizations. Legal Theories versus Political Pragmatism, The Hague: Kluwer, 2001, p. 101. See also pp. 57–61, 97–102, 295–297.
See R. Bernhardt, ‘Kontinuität’, in: K. Strupp, H.-J. Schlochauer (Hg.) Wörterbuch des Völkerrechts, 1961, pp. 295–297 at 295 (‘Völkerrechdiche Kontinuität bedeutet Fortbestand eines Völkerrechtssubjekts trotz äußerer oder innerer Wandlungen.’)
Marek, op. cit., p. 14.
Crawford, The Creation…, pp. 401–2.
See A. Verdross, ‘Die völkerrechtliche Identität von Staaten’, in: FS H. Klang, Wien: Springer-Verlag, 195, p. 20.
See Fiedler, Das Kontinuitätsproblem …, p. 57 and Fiedler, ‘Continuity’, EPIL, 1987, pp. 806–809 at 808. See also Fiedler, Staatskontinuität und Verfassungsrechtsprechu ng. Zum Begriff der Kontinuität …, p. 53: ‘Diese Ausdehnung hat sich jedoch nicht allgemein durchgesetzt. Sie ist insoweit abzulehnen, als rein subjektive Erwägungen, Absichten und Pläne einzelner Staatsmänner oder Regierungen zu irgendeiner Zeit vor dem Kriegsausbruch herangezogen und für rechtlich maßgebend erklärt werden, so daß der unmittelbare Zusammenhang zur effektiven militärischen Inbesitznahme fehlt.’
See common Art. 2 para 2 of four 1949 Geneva Red Cross Conventions: ‘The Conventions shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.’ This provision makes it unreasonable to make a further distinction between ‘belligerent’ and ‘quasi-belligerent’ occupations. There is no reason why this should make a difference in the field of State continuity.
A. Rivier, Principes du droit des gens, 1896, I Tome, Paris: A. Rousseau, p. 181. (transl.)
For a recent positive appraisal of the prohibition of the use of force, see also: G. Seidel, ‘Die Völkerrechtsordnung an der Schwelle zum 21. Jahrhundert’, 38 AVR 2000, p. 23.
General Treaty for Renunciation of War as an Instrument of National Policy, LNTS, Vol. 94 (1929), pp. 57–64.
See further O.A. Hathaway, S.J. Shapiro, The Internationalists. How a Radical Plan to Outaw War Remade the World, New York: Simon & Schuster, 2017.
Anti-war Treaty of Non-Aggression and Conciliation (Saavedra Lamas Treaty); October 10, 1933; 49 Stat. 3363; Treaty Series 906.
The Charter of the United Nations of June 26, 1945, XV UNCIO, 355.
See e.g. G.-H. Gornig, Der Hitler-Stalin-Pakt. Eine völkerrechtliche Studie, Frankfurt: Peter Lang, 1990, pp. 65–6.
I. Brownlie, The Use of Force in International Law, Oxford: Clarendon Press, 1963, pp. 107–111, but also pp. 84–88, 88–89—in which the author proves that measures short of war and the threat of the use of force were prohibited in 1939. Among recent authors writing on State continuity and succession, Vladimir-Djuro Degan starts with the presumption that ‘after the Kellogg-Briand Pact of 1928’ annexation via subjugation was no more legal. See V.-D. Degan, ‘Création et disparition de I’État (À la lumière du démembrement de trois fédérations multiethniques en Europe)’, 279 RCADI 1999, p. 283.
See R.L. Bindschedler, ‘Annexation’, in: EPIL, 1992, Inst. I, p. 169. See generally: G. Schulz, ‘Die Entwicklung des völkerrechtlichen Annexionsverbots’, in: Jahrbuch der Albertus-Universität zu Königsberg/Preußen, Band XII, 1962.
See Langer, op. cit. p. 95 et seq.
See O. Dörr, Inkorporation als Tatbestandsmerkmal der Staatensukzession, 1995, p. 350–355 and p. 67: ‘Für die Zeit bis 1945 ist dementsprechend davon auszugehen, daß (nichtkriegerische) Annexionen nicht schon eo ipso, d.h. als Emanation des ihnen inhärenten Elements der Gewalt, völkerrechtswidrig waren.’ p. 82: ‘Das aus der Zeit des sog. klassischen Völkerrechts stammende Eroberungs- und Annexionsrecht war als Bestandteil des geltenden Völkergewohnheitsrechts bis zum Ende des 2. Weltkrieges nicht wirklich überwunden, auch wenn sich im partikulären Völkervertragsrecht bereits weitgehende Einschränkungen fanden und der Annexion unter Geltung von Völkerbundsatzung und Briand-Kellogg-Pakt über ihre partielle rechtliche Ächtung hinaus gewiß auch ein allgemeiner Makel des moralisch-ethisch verwerflichen anhaftete.’ p. 94: ‘nach Inkrafttreten der UN-Charta Raum gewinnende Rechtsüberzeugung von der Unzulässigkeit jeder Annexion sich in der gerichtlichen Praxis der unmittelbaren Nachkriegszeit noch nicht wirklich durchgesetzt hatte—jedenfolls nicht insoweit, als Handlungen vor Ende des 2. Weltkrieges in Frage standen.’
H. Lauterpacht, ‘Règles générales du droit de la paix’, 62 RCADI 1937, p. 291. “To admit that an illegal act, or its immediate consequences or manifestations, may become a source of legal rights for the transgressor of the law, is to introduce into the legal system a contradiction that can only be resolved by denying its legal character.”
Cf. Jennings, The Acquisition of Territory…, p. 54 and M.M. McMahon, Conquest in Modern International Law, Washington, DC: Catholic University of America Press, 1940, p. 13.
See W. Schätzel, Völkerbund und Gebietserwerb, Berlin, 1919, pp. 11–34; W. Schätzel, Die Annexion im Völkerrecht, Berlin, 1920, pp. 91, 143, 164. Both reprinted in and quoted from W. Schätzel, Das Recht des völkerrechtfichen Gebietserwerbs, Bonn: Ludwig Röhrscheid Verlag, 1959.
See B. Meissner, Die Sowjetunion, die baltischen Staaten und das Völkerrecht, Köln: Verlag Politik und Wirtschaft, 1956, p. 288–289.
So Repečka, op. cit., p. 255.
Arnold Raestad argued in 1939 that a State can exist in international law in two ways: ‘par les propres moyens, et par la volonté des autres Etats de ne pas reconnaître une débellatio.’ See A. Raestad, ‘La cession des États d’après le Droit des Gens’, 66 Revue de Droit International et et de législation comparée, 1939, p. 449. (Even when ‘existence effective’ is destroyed, ‘existence actualisée’ can continue.)
H. Lauterpacht, Recognition in International Law, Cambridge, 1947, p. 412. See also p. 429.
Jennings, The Acquisition …, p. 62.
H. Wehberg, Krieg und Eroberung im Wandel des Völkerrechts, Frankfurt a.M.: Alfred Metzner Verlag, 1953, pp. 105–107 (writing that recognition of the Italian annexation of Ethiopia was illegal, and May 12, 1938, the day when the League of Nations gave up its non-recognition policy ‘one of the saddest hours of the League of Nations’, p. 107.)
Verdross, Die völkerrechtliche Identität…, p. 20. See also Repečka, op. cit., p. 94 and Marek, p. 329 (‘The effectiveness of the illegal act must be beyond doubt and every reasonable chance of a restitutio ad integrum must be excluded.’)
According to Kelsen, in order for an annexation to become legal, it should have been ‘firmly established.’ See H. Kelsen, General Theory of State and Law, 1946, p. 214 et seq. Verdross uses this argument in favour of his own position, pointing out that an annexation can only be ‘firmly established’ when it is no longer disputed by other powers. See Verdross, op. cit., p. 20.
Raestad, La cession des États…, p. 447. “In deciding whether a State has ceased to exist or not, it is necessary to refer to the attitude of the collectivity of States, of the same collectivity to which the recognition of a new State is incumbent upon it.”
Ulrich Scheuner wrote in 1951 that in international law ‘darf (…), da es an einer übergeordneten internationalen Macht fehlt, jeder Staat für sich entscheiden, ob und zu welchem Zeitpunkt er (…) der Annexion eines Staates durch einen anderen seine Anerkennung geben will.’ See Scheuner ‘Entstehung, Altersstufen…’, Kölner ZfSoz 1951/1952 p. 210.
See Crawford, The Creation…. See also I. Seidl-Hohenveldern, Völkerrecht, 9. Aufl., 1997, Rdnr. 1394 and H. Krieger, Das Effektivitätsprinzip…, p. 173.
‘India made no fundamental change in the established system…. We must not forget that India, as the territorial successor, was not acquiring the territory for the first time, but was recovering an independence (sovereignty) long lost since. Its legal position at once reverted to what it had been more than a hundred years before, as though British occupation had made no difference.’ See Case Concerning Right of Passage over Indian Territory (Merits), Judgment of 12.4.1969 ICJ Reports 1960, p. 6 at 95.
C.H. Alexandrowicz, ‘New and Original States. The Issue of Reversion to Sovereignty’, 45 Int’l Aff. 1969, p. 471.
See Alexandrowicz, op. cit., p. 478.
See also J.J.G. Syatow, ‘Old and New States—a Misleading Distinction for Future International Law and International Relations’, in: Le droit international demain. Université de Neuchatel, Série juridique No. 8, Neuchatel: Éditions Ides et Calendes, 1974.
A. Verdross, Die völkerrechtliche Identität von Staaten…, p. 19. (‘Hingegen geht das moderne Völkerrecht bei der Beurteilung der Identität der Staaten von ihrer Bevölkerungaus. (…) nicht die Regierung, sondern das Staatsvolk das Völkerrechtssubjekt ‘Staat’ konstituiert.’)
Р.Л. Борбов, Основные проблемы меорцц межбунаробиоƨо права, Москва: Международные отношения, 1968, p. 64.
Verdross, op. cit., p. 19. See also Verdross/Simma, Universelles Völkerrecht, 3. Auflage, Berlin: Ducker & Humblot, 1984, § 390 et seq., p. 231. “Why, according to international law, the identity of the state does not depend on the identity of its constitution, but on the continuity of its community of persons, which is constantly renewing itself in the sequence of persons.”
See Verosta, Die internationale Stellung Österreichs 1938–1947, Wien, 1947, p. 9.
Such as e.g. the theory of Nikolai Hartmann of the ‘objective common spirit that lives in the State’ (im Staate lebendiger objektiver Gemeingeist). See for references and critique U. Scheuner, ‘Die Funktionsnachfolge…’, in: F.S. Nawiasky, p. 21 One historic example of how such an argument is taken to the extreme, is the explanation of S. Cybichowski about the continuity of the Polish State from 1775–1918, a doubtful attempt to make the case for the Polish continuity to the national socialists in their language: ‘Dies ist besonders klar, wenn man sich auf den Standpunkt der nationalsozialistischen Rechts- und Staatsauffosung stellt, die dem Volke den Vorrang vor dem Staate einräumt. (…) In der Genesis des Völkerrechts ist nicht der Staat, sondern das Volk die elementare Einheit, die rationale Monade der Wissenschaft. (…) Der Schöpfer des Völkerrechts Grotius kannte dieses Prinzip noch nicht (…) Man wird hervorheben müssen, dass das polnische Volk als politische, moralische und rechtliche Einheit (…) niemals seine Existenz eingebüßt hat. Die polnische Nation ist nicht nur eine politische und moralische, sondern auch eine rechtliche Einheit, wobei das Wort Recht nicht eine Summe von formalen Normen, sondern den Inbegriff auf tiefster sittlicher Grundlage ruhender, vom Boden, Blut und Rasse abhängender Lebensregeln bedeutet (…)’ See S. Cybichowski, ‘Das völkerrechtliche Okkupationsrecht’, 18 Z. für VR 1934, pp. 318–319.
Scheuner, ‘Die Funktionsnachfolge…’, in: FS Nawiasky, 1956, p. 21.
See H. Kelsen, ‘The Legal Status of Germany to be Established Immediately upon Termination of War’, 38 AJIL 1944, p. 680 et seq and in particular ‘The Legal Status of Germany According to the Declaration of Berlin’, 39 AJIL 1945, p. 518 et seq.
GLV-Urteil, BVerfGE 36, 1973, I, 15–16; Teso-Urteil, BVerfGE 77, 137. See for an overview of the respective doctrinal issues G. Ress, Die Rechtslage Deutschlands nach dem Grundlagenvertrag vom 21. Dezember 1972, Berlin: Springer, 1978 and D. Blumenwitz, What is Germany? Exploring Germany’s Status after World War II, Bonn: Kulturstiftung der dt. Vertriebenen, 1989.
See e.g. C. Tomuschat, ‘Staatsvolk ohne Staat? Zum Teso-Urteil des Bundesverfassungs gerichts (BverfGE 77, 137)’, in: FS Karl Doehring, Heidelberg: Springer, p. 1000 and E. Klein, Das Selbstbestimmungsrecht der Völker und die deutsche Frage, 1990.
See e.g. C. Tomuschat, General Course…, 2000, p. 97.
See C. Tomuschat, Staatsvolk ohne Staat?… 1990, p. 998.
See G. Ress, ‘Germany, Legal Status after World War II’, 10 EPIL 1987, p. 199.
See e.g. D.I. Feldman, ‘Illegality of the Hallstein Doctrine’, Soviet YBIL 1962, pp. 158–165.
According to Christian Tomuschat: ‘At first glance, it seems awkward that all of the citizens of one State are considered by another State to be at the same time its citizens. But there existed still a powerful interlocking factor holding the Germans in East and West together, to wit the right of self determination.’ See General Course, 2000, p. 99.
Fiedler, ‘Continuity’, EPIL, p. 808 et seq. Similar ideas were expressed by Fiedler already in 1970 (‘Staatskontinuität und…’): ‘Die Nation ist nach geltendem Völkerrecht der wichtigste Träger staatlicher Kontinuität (…) Die Kritik… wird jedoch an der Tatsache nicht vorbeigehen können, daß das geltende Völkerecht im Rahmen des Identitätsproblems besonderen Wert auf den Fortbestand des Staatsvolkes—nicht zuletzt auch aus Haftungsgründen—legt und die Identitätsentscheidung hiernach mit ausrichtet.’ p. 67.
See e.g. G. Scelle, ‘Die Annexion Abessiniens durch Italien und der Völkerbund’, in: 3 Völkerbund und Völkerrecht 1936/37, pp. 167–172.
See Marek, op. cit., with respect to Ethiopia p. 279, Czechoslovakia p. 328 et seq., Albania p. 337, Austria p. 367–368.
Marek, op. cit., p. 329.
On the (ir)relevance of recognition by other States, see Marek, op. cit., generally p. 130–161, but in particular pp. 279–281 (Ethiopia), p. 327 (Czechoslovakia). For the contrary argument that indeed, the general recognition of e.g. Austrian incorporation by Germany meant the extinction of Austria, see Cansacchi, op. cit., p. 48.
Marek, op. cit., p. 328.
‘Under general international law, the states are obliged to respect the territorial integrity of the other states; but a violation of this obligation does not exclude the change of the legal situation. The principle advocated by some writers—ex injuria jus non oritur (‘a right cannot originate in an illegal act’)—does not, or not without important exceptions, apply in international law.’ See H. Kelsen, Principles of International Law, 2nd edn., rev. and ed. by R. W. Tucker, New York: Holt, Rinehart, and Winston, 1967, p. 316 et seq.
See e.g. G. Ottolenghi, ‘Il principo di effictività e la sua funzione nell’ ordinamento internazionale’, 15 Rivista di diritto internazionale 1936, esp. pp. 3–33 and Condorelli, ‘Ex facto jus oritur’, Rivista internazionela di filosofia del diritto, 1931, pp. 115–139.
See J. Stone, ‘What Price Effictiveness?’, 50 ASIL Proc. 1956, pp. 198–206 at 198.
See W. Rudolf, Wandel des Staatsbegriffs im Völkerrecht?, Bonn: Europa Union Verlag, 1986, p. 40. “Renunciation of jus ad bellum and the use of all force has little effect on the concept of he State.”
W. Fiedler, Das Kontinuitätsproblem…, p. 100–101. “However, the judgment of illegality (…) does not necessarily result in the uninterrupted continued existence of a state as a subject of international law. (…) Therefore, even the principle ex injuria ius non oritur used by Marek cannot prove the uninterrupted identity of Austria, even if the illegality of the annexation may have given rise to the motive and political driving force for the restoration of the State.”
U. Scheuner, ‘Entstehung, Altersstufen und Untergang von Staaten im Lichte des Rechts’, in: 4 Kölner Zeitschrift für Soziologie 1951/52, pp. 208–221 at 209.
U. Scheuner, ‘Die Funktionsnachfolge und das Problem der…’, FS Nawiasky, 1956, p. 20. “However, since the continued existence of a State constitutes an offence based on a sociological reality, it [the illegality of annexation] does not alter the demise of the State as a de facto operation/process.”
W Rudolf, Wandel des Staatsbegriffi im Völkerrecht?, Bonn: Europa Union Verlag, 1986, p. 48.
See ibid. at 48. “The international legal order stands and falls with the concept of a State.”
See Crawford, ‘The Criteria for Statehood in International Law’, 48 BYBIL 1976/77, pp. 119 and 144.
See Crawford, ‘The Criteria…’, pp. 107 and 111.
Н.В. Захарова, Правопреемсмво ƨосубарсв, Москва: Международные отношения, 1973, pp. 9–10. (Translated from Russian.)
Crawford, The Creation…, p. 407.
So characterizes Anthony Clark Arend a fallacy of the post-World War II international law scholarship. See A.C. Arend, Legal Rules and International Society, New York: Oxford University Press, 1999, p. 7.