1 The Baltic Thesis
The Baltic thesis of their unbroken continuity has not only been a legal theory, it also used to be—to quote Krystyna Marek’s characterization of Czechoslovakia’s case during and after World War II—‘a political fighting program.’1 What Estonian president (1992–2001) Lennart Meri said about Estonia, applies mutatis mutandis to the other two Baltic republics as well: ‘State power in Estonia or the Estonian conception of the State—or, if one wishes: State philosophy—is based on the continuity of the State.’2
During five decades of Soviet rule in Estonia, Latvia and Lithuania, the State continuity doctrine undermined the legality and legitimacy of Soviet rule in the Baltic States, and supported the independence claims of Baltic refugees in the West and of dissidents3 at home. When Soviet leaders attempted to dictate conditions for the Baltic republics’ secession from the Soviet Union in 1991,4 Estonian, Latvian, and Lithuanian politicians claimed that one who has not voluntarily and legally married cannot discuss divorce, claiming simply that the illegal situation created by the USSR had to be terminated.5
Accordingly, the present-day Republic of Lithuania celebrates its independence on February 16, the day independence was proclaimed in 1918. The independence days of the Republic of Estonia (February 24) and the Republic of Latvia (November 18) are the days of proclamation of their independence in 1918.7 The renewed proclamations of independence from the Soviet Union by the Baltic parliaments—on March 11, 1990 by Lithuania and on August 20, 1991 by Estonia and Latvia—are seen as restoring the independence of already existing States. It follows from the above that the Baltic States do not regard themselves as successor States to the Soviet Union.
In the following, a more precise account is given of the continuity claim, as manifested in each of the Baltic States.
a The Republic of Estonia
On February 2, 1990, on the 70th anniversary of the Peace Treaty of Tartu in which Soviet Russia recognized the independence of the Republic of Estonia,
On March 30, 1990, the Supreme Soviet of the Estonian SSR, a legislative body elected according to the constitution of the Estonian SSR of 1978, adopted the Resolution On the State Status of Estonia. This document, which was proclaimed by a legislative body that was—by its own logic—technically speaking still an institution of the occupying power, asserted ‘that the occupation of the Republic of Estonia by the Soviet Union in June 17, 1940 has not suspended the existence of the Republic of Estonia de jure. The territory of the Republic of Estonia is occupied to this day.’ Moreover, the Supreme Soviet declared the ‘state power of the USSR in Estonia to be unlawful from the moment of its enactment’ and proclaimed ‘the restoration of the Republic of Estonia (restitutio in integrum).’ A period of transition which ‘shall terminate with the formation of constitutional organs of state power of the Republic of Estonia’ was proclaimed.9
The Resolution On the National Independence of Estonia was adopted by the Supreme Council on August 20, 1991, in connection with the attempted communist coup d’état in Moscow. This document clearly proceeded from the assumption that the Republic of Estonia continued as a subject of international law. It referred to the March 3, 1991, referendum, in which the people of Estonia had overwhelmingly supported the idea of ‘restoring the national independence of the Republic of Estonia’, affirmed the national independence of the Republic of Estonia and sought ‘restoration of […] diplomatic relations.’10
On June 28, 1992, the new Constitution of the Republic of Estonia was adopted by popular referendum in accordance with Article 1 of the 1938 Estonian Constitution. The preamble to the 1992 Constitution stresses that the
The present Republic of Estonia is as a subject of law identical with the Republic of Estonia that was proclaimed on February 24, 1918, fell victim to the aggression of the Soviet Union in 1940, and was illegally incorporated into the Soviet Union.
Riigikogu expresses its gratitude to those States which continued to recognize the Republic of Estonia during the difficult years of occupation. This made the de facto restoration of independence possible on August 20, 1991.12
b Republic of Latvia
On May 4, 1990, the Declaration on the Renewal of the Independence of the Republic of Latvia was adopted by the Supreme Soviet of the Latvian SSR. It declared that the incorporation of the Republic of Latvia into the USSR never acquired legality, and that the Republic of Latvia had continued to exist de jure as a subject of international law, a fact that was ‘recognized by more than 50 States.’13 According to the Declaration, the legal nature of the independence process was the restoration of the independence of the Republic of Latvia de facto. The authority of the 1922 Constitution was reintroduced throughout the whole of Latvia. Article 5 of the Declaration provided a transition period until de facto control of Latvian State power could be established in the territory concerned. At the same time, however, the illegal occupation and annexation of Latvia continued, as Soviet troops were present in Latvia, and its then
On August 21, 1991, in connection with the coup d’état in Moscow, which was directed against Mikhail Gorbachev, the Constitutional Law On the Republic of Latvia’a Status as a State was adopted. The Law provided that Latvia’s ‘sovereign State status is determined by the Republic of Latvia Constitution of February 15, 1922.’15
In 1993, the 5th (sic) Saeima (Parliament) was elected in Latvia, and the constitutional organs of the Republic of Latvia restarted their activities.
c Republic of Lithuania
The history of Lithuania has differed significantly from its Northern neighbours, Latvia and Estonia.16 While the territories of Estonia and Latvia were conquered by German and Danish crusaders at the beginning of the 13th century, the Lithuanians managed to withstand foreign attacks and established their own State in 1263. In medieval times, the Lithuanian State, later in personal union with Poland, was one of the most powerful States in Central and Eastern Europe, reaching as far as the coasts of the Black Sea. So Lithuania’s statehood can be traced many centuries back.
The Supreme Council of the Republic of Lithuania adopted the Act On the Restoration of the Lithuanian State on March 11, 1990. The act declared that the Lithuanian government took full control over its territory once more within the historical boundaries of the State, and emphasized that the 1918 Act of Independence and the 1920 Decree on the Re-established Democratic State of Lithuania never lost their legal effect.17 On the same day the Supreme Council of the Republic of Lithuania adopted the Law On the Reinstatement of the May 12, 1938, Lithuanian Constitution on the basis that the Constitution had been illegally suspended. At the same time, some articles regulating the status and powers of political institutions in the 1938 Constitution were suspended because of their authoritarian character.18
As can be seen from the laws and declarations referred to above, today’s Republics of Estonia, Latvia and Lithuania claim to have preserved their identity
2 Responses to the Baltic Continuity Thesis in the Practice of the International Community
a Restoration of Diplomatic Relations with Western Countries in 1991
Iceland was the first country to recognize the restoration of independence of the Baltic States, based on the principle of State identity. Already on February 11, 1991, the Althing (the Parliament) of Iceland passed a resolution confirming that recognition of the independence of the Republic of Lithuania granted by Iceland in 1922 was still in force.19 A similar position with respect to Estonia and Latvia was taken by Iceland after those countries had re-proclaimed their independence in August 1991.20
Other Western countries gave their support and recognition to the idea of State identity when they announced, in late summer 1991, that they would restore diplomatic relationships with Estonia, Latvia and Lithuania.21 As a matter of fact, the term ‘recognition’ was even not used in the wording of the declarations by the countries of the European Community and the USA22 On August 27, 1991, an Extraordinary Meeting of the Foreign Ministers of the EC countries warmly welcomed ‘the restoration of the sovereignty and independence of the
The US President, George Bush, announced on September 2, 1991, that ‘the United States has always supported the independence of the Baltic States and is now prepared immediately to establish diplomatic relations with their governments.’24 According to Bush, this marked ‘the culmination of the United States’ 52 year refusal to accept the forcible incorporation of the independent Baltic States by the USSR.’25
Only a few Western countries recognized the Baltic States and established diplomatic relations anew, since they had earlier accorded de iure recognition to the incorporation of the Baltic republics in the Soviet Union.26 Some other countries which had had diplomatic relations with the Baltic States before 1940, such as Japan, apparently still formally recognized the Baltic States as new States in 1991.27
It is also interesting to note that States which were formerly part of the ‘socialist bloc’ (Czechoslovakia, Poland, Romania, and Hungary) recognized the independence of the Baltic republics, based on the principle of State identity.28
In conclusion, most—although not all—States in 1991 recognized the claim of the Baltic States to be identical with the pre-1940 Baltic States.
Initial recognition of the identity of the Baltic republics by Western countries found subsequent confirmation in treaty practice. This is an area where problems pertaining to the legal identity of those States found a practical manifestation. As the legal identity of a State implies, unless otherwise decided, the identity of the sum total of its rights and obligations under both customary and conventional international law,29 meaning that which obligations were going to bind the restored Baltic States and their treaty partners had to be defined.
Estonia [Latvia] does not regard itself as party by virtue of the doctrine of treaty succession to any bilateral or multilateral treaties entered into by the USSR.31
Having restored its independence on the 11th of March 1990, the Republic of Lithuania neither is nor can be the successor state of the former USSR. The Republic of Lithuania can not take responsibility for treaties concluded by the former USSR, for it neither participated in making those treaties nor influenced them.32
Especially with respect to human rights treaties (to which the USSR had been and was in 1991 a party), it was doubtful whether the international community would have looked favourably on the Baltic States had they left it uncertain whether they felt themselves bound by such treaties and ideas underlying them. Practically speaking, this question was resolved before it could be seriously raised by anyone. The Supreme Council of the Republic of Latvia declared the accession of Latvia to major human rights treaties even before the country’s independence was de facto established, on May 4, 1990.34 Estonia waited until its independence was de facto re-established and on October 21, 1991, acceded to 28 major international conventions in the fields of treaty law, peaceful settlement of disputes, human rights, diplomatic and consular matters.35
Significant from the point of view of State identity, however, has been the symbolic practice of declaring the renewed application of multilateral treaties of which the Baltic States were members before 1940.36 In a declaration signed on June 26, 1992, and addressed to the Secretary General of the UN, the Estonian Minister of Foreign Affairs announced that Estonia continues to consider itself bound by the Convention on Non fortification and Neutralization of the Aaland Islands.37 (Both Estonia and Lithuania had been countries among the original signatories in 1921.) In 1993, Estonia, Latvia and Lithuania restored their membership to the 1925 Geneva Protocol for the Prohibition of the Use of Poisonous or other Gases with a specification that in respect of these countries,
c Practice Related to Bilateral Treaties
States recognizing the State identity claim of the Baltic republics proceeded from the general presumption that pre-World War II treaties with those States continue(d) in force.42 However, it often appeared necessary to establish precisely which pre-1940 treaties continued to bind their parties.43 In the case of Estonia, for instance, on December 31, 1939, 199 bilateral agreements had been in force.44 Half a century having passed, many things in the world had changed so much that in several cases these treaties were terminated ex nunc after 1991.45 There had been several pre-1940 treaties on consular affairs that obviously
Nevertheless, a number of bilateral treaties from the pre-World War II period were revived following the restoration of the independence of the Baltic republics. Thus, Great Britain and Estonia renewed their visa-free travel regime, established before the incorporation of Estonia into the Soviet Union but not applied for half a century.50 Moreover, through an exchange of letters, Finland and Estonia renewed application of the Agreement on cultural co-operation.51 Austria revived treaties on extradition and legal assistance in criminal matters, negotiated with Estonia in 1928 and Latvia in 1932, and the consular convention with Estonia of 1926.52 Similar actions were taken by France,53 Norway54 and other States.
The Hungarian legal scholar Hanna Bokor-Szegö critically referred to the treaty practice of the Baltic States with Italy, namely, that the insistence on State continuity throughout the Soviet occupation did not prevent these States benefiting from certain advantageous Italian-Soviet treaties as well.58 She concludes that the Baltic republics decided on the future of international treaties in conformity with their current interests—without any distinction as to whether they were concluded before or after 1940.59 If certain inconsistencies occurred in practice, this may also have been partly due to the scarcity of resources and the only recent acquisition of international legal expertise at the Baltic Foreign Ministries in the beginning of 1990s.
d Other Consequences of State Identity in Relations with Western States
Recognition of the identity of the Baltic States also had other consequences in bilateral relations with Western countries. For example, the pre-World War II Estonian embassy building in Berlin’s Tiergarten was returned to its owner, and the embassy continues to operate in this building to this today. After the Republic of Estonia re-established its independence, a Berlin court ordered
With Great Britain and Sweden, settlements were reached regarding Baltic pre-World War II gold deposited in the banks of those countries.66 On
e Practice as Related to Membership in International Organizations
The world’s most important international organization, the United Nations, was created after the Baltic States had already been annexed by the USSR. The League of Nations, its predecessor, of which the Baltic republics had been members, was abolished in 1946. Therefore, on September 17, 1991, Estonia, Latvia and Lithuania were admitted as new members to the United Nations according to Article 4 of the Charter.69 The President of the UN Security Council, in a brief statement after admission of the Baltic States to the UN, mentioned that those countries had ‘regained’ their independence.70 However, at the same time, the UN determined the Baltic States’ membership contribution on the basis of data supplied previously by the USSR (and not by the Baltic States).71 Thus, for certain practical (financial) purposes, the Baltic States were treated as if they were States that had separated from the USSR and not as States which had regained their independence after illegal annexation.72 It seems, however, that at a time of considerable financial difficulties, the UN’s primary—and legitimate—concern was to secure its budget, not to make a definite point about the legal status of the Baltic republics as States.
Somewhat oddly, the three Baltic republics became technically new members of the International Labour Organization (ILO) in 1994, although they had been members of this organization from its creation in 1921 until 1940. The procedure of ‘admission’ rather than ‘re-admission’ was adopted.74 The legal and policy reasons that determined the admission of the Baltic States as ‘new’ member States to the ILO are difficult to establish in retrospect.75 The French international lawyer Brigitte Stern suggests that in the case of restoration of the old memberships, the ILO could then also have been entitled to collect membership fees from the Baltic States for the period of their hibernation.76 Nevertheless, the decision of the ILO has been criticized by Baltic scholars of international law.77 However, the Baltic States at least formally reconfirmed their continuity claim, while becoming members of the ILO for the second time.78 Similarly, Estonia and Latvia also had to accede anew to membership in the Paris Union (Union for the Protection of Industrial Property Rights), although in both cases, in the status lists the following footnote was added: ‘Estonia [Latvia] acceded to the Paris Convention (Washington Act, 1911) with effect from February 12, 1924. It lost its independence on August 6 [August 5], 1940, and regained it on August 20, [August 21] 1991.’79
The only State that has emphatically opposed the thesis that the present-day independent Baltic States are identical, as subjects of international law, with the three pre-1940 Baltic republics annexed by the Soviet Union in 1940, is the Russian Federation.80 Analysis of Russian-Baltic legal relations since 1989 is complicated by the fact that, for a brief time until 1991, the Russian Federation co-existed with the USSR, with both claiming to be sovereign States simultaneously.81 Furthermore, due to changing policies and attitudes, the Russian position on the legal status of the Baltic States has not always been presented consistently.
On December 24, 1989, the Congress of the People’s Deputies of the USSR adopted, not least also due to the participation of and political pressure from the Baltic deputies there, a resolution titled ‘On Political and Legal Evaluation of the Soviet-German Non-Aggression Treaty of 1939.’82 The text of the resolution was drafted by a special 26-member commission chaired by Aleksandr Yakovlev.83 The Congress noted that before 1939 ‘the relations of the USSR with Latvia, Lithuania and Estonia were regulated by a system of agreements. According to the peace treaties of 1920 and non-aggression pacts, signed in 1926–1933, the parties thereto undertook to insure mutual respect, in all circumstances, of sovereignty, territorial integrity and inviolability.’84
The Congress of the Peoples’ deputies of the USSR declared the ‘fact of signing ‘the secret additional protocols’ on 23 August 1939 and other secret protocols legally null and void from the moment of their signing.’85 The Congress concluded that ‘[t]he protocols did not create any new legal basis for relations between the Soviet Union and these countries; however they were employed by Stalin and his associates to produce ultimatums and subject other states to force, in violation of legal obligations’86 However, while the USSR Congress decounced the secret protocols of the Hitler-Stalin Pact, it failed to explicitly point out their consequences for the legal status of the
In 1991, Moscow became a political battleground between two co-existing and rival powers—the Soviet Union, led by General Secretary of the Communist Party, Mikhail Gorbachev, and its major constituent part, the Russian Socialist Federalist Soviet Republic (RSFSR), led by Boris Yeltsin. While Gorbachev was widely held responsible for signs of economic decline and political turmoil in the collapsing USSR, Yeltsin claimed to be the actual representative leader of Russia.
In January 1991, the political situation in the Baltic republics escalated when special units of the Soviet security forces OMON (‘black berets’) attacked pro-independence demonstrators in Vilnius and Riga with tanks, killing fourteen in Vilnius and four people in Riga. During these events, a political alliance was formed between Yeltsin’s Russia and the Baltic States. The Russian Federation, led by Mr. Yeltsin, concluded the so-called Treaties on the Fundamentals of Interstate Relations with the Republic of Estonia (January 12, 1991), the Republic of Latvia (January 13, 1991), and the Republic of Lithuania (July 29, 1991). The Supreme Council of the Russian Federation ratified the Fundamentals Treaty with Estonia on December 26, 1991,87 and the treaty with Lithuania on January 17, 1992. The treaty with Latvia was not ratified, arguably because of different views on the rights of Russian speakers in Latvia.88
In each of the three ‘Fundamentals’ treaties, the parties ‘recognize each other as sovereign States and subjects of international law.’ The treaties with the republics of Estonia and Latvia declared: ‘Taking into consideration the historical experience in mutual relations and intending to establish them on the principle of good neighborship, the parties recognize the obligation not to violate generally recognized norms of international law in their mutual relations…’ The preamble to the Foundation Treaty with the Republic of Lithuania stressed ‘that the liquidation of the consequences caused by the USSR to the sovereignty of Lithuania through the annexation of 1940, will create additional conditions for trust between the High Treaty parties and their peoples.’89
Therefore, with this treaty, Yeltsin’s Russia essentially recognized the Republic of Lithuania as a subject of international law and a sovereign State under
Yeltsin’s Russia had recognized the independence of the Republic of Lithuania on July 29, 1991. The Republics of Estonia and Latvia were recognized by the Russian RSFSR on August 24, 1991. Only on September 6, 1991—after the independence of the Baltic States was recognized by most States throughout the world—did recognition of their independence follow by the Soviet Union, led by its General Secretary, Mikhail Gorbachev. Diplomatic relations between the Soviet Union and the Republics of Estonia and Lithuania were established on October 9, 1991. Latvia and the USSR established diplomatic relations on October 15, 1991. The Soviet government recognized the Baltic States as new States, and consequently considered the independence process as one of secession.
It is interesting to note that at least in one important question, namely the financial legacy of the USSR, the Russian Federation and other former union republics of the USSR have de facto accepted the special status of the Baltic States. The Baltic States—by then independent—did not become members of the Treaty on Succession in Respect of External State Debts and Property of the Former USSR, signed in Minsk on December 4, 1991. Correspondingly, the Baltic republics neither accepted any part of the foreign debt nor presented claims for the assets of the USSR. Later on, in the Agreement on the Deferral of Debt of the USSR and its Successors to Foreign Official Creditors, signed in Paris
However, when the Soviet Union was finally abolished in December 1991, the Russian Federation in many ways assumed the former Soviet position in its foreign relations. Since then, the official Russian view has not only opposed the Baltic continuity thesis, but also occasionally denied the illegality of the Soviet annexation of 1940.
The events of 1940 and the situation which developed in the succeeding decades in Latvia, Lithuania and Estonia, cannot be interpreted unequivocally. As is known, various political assessments exist in this respect.94
The Deputy Foreign Minister of the Russian Federation, Vitali Churkin (later even more widely known as Russia’s permanent representative at the UN), used more explicit language when he told the Latvian newspaper Diena: ‘Russia by no means agrees with the point of view held by Latvia and Estonia that the Baltic
Whatever the circumstances of Latvia’s entry into the composition of the USSR in 1940 may have been, we cannot deny that factually and juridically, Latvia had for 50 years the status of a [Soviet] union republic. It is known that the incorporation of a State into the composition of another brings about the termination of any bilateral treaties concluded between them as independent States.97
With respect to Estonia, Russia’s official position was elaborated in a letter from Russian Deputy Foreign Minister Avdeyev to the Russian State Duma on January 8, 1998. According to that letter, the Soviet army was present in 1939 in the territory of the Republic of Estonia in response to Estonia’s own ‘invitation’, and therefore, one cannot speak of the military invasion, occupation and annexation in 1940. The representative bodies of the Baltic republics themselves requested the Supreme Council of the USSR for admission to the USSR. According to the Russian Deputy Foreign Minister, the norm prohibiting threat of military force was unknown in international law before the UN Charter was adopted in 1945.98
On February 2, 2000, when the 80th anniversary of the Peace Treaty of Tartu was commemorated in Estonia, the Russian ambassador in Estonia explained that according to the Russian view, the Peace Treaty of 1920 had lost any legal significance in relations between the Russian Federation and the Republic
The representatives of the Russian Federation have repeatedly explained to the Estonian side that the Peace Treaty of Tartu between Soviet Russia and the Republic of Estonia, signed on February 2, 1920, lost its legal validity in connection with the end of the existence of Estonia as an independent subject of international law, independently of the circumstances and reasons bringing this about. Since 1940, the relationship between Estonia and the Soviet Union was based solely on the legislation of the federation state, and not on the treaties and agreements concluded earlier between Estonia and Russia as independent subjects of international law, which have lost their validity.100
The introduction of the forces of the USSR in 1940 was carried out with the agreement of the supreme leadership of this country, an agreement which was received (polucheno) within the framework of international law as practiced at the time. The authoritative functions in the Soviet period here were carried out by the national organs of authority. The decision of the USSR Supreme Soviet of August 3, 1940 concerning the acceptance of Lithuania into the framework of the Soviet Union was preceded by corresponding requests of the highest representative organs of the Baltic states.
In this way, it is legally not correct (nepravomerno) to qualify the entrance of Lithuania into the make-up of the USSR as the result of unilateral actions by the latter.102
In practice, most other States have recognized the identity of the Baltic States with the pre-1940 Republics.104 A Charter of Partnership among the United States of America and the Republic of Estonia, Republic of Latvia, and Republic of Lithuania signed on January 16, 1998 explicitly states that friendly relations between these States ‘have been continuously maintained… since 1922’ and that the USA regards the statehood of the Baltic States ‘as uninterrupted since the establishment of their independence, a policy which the United States has restated continuously for five decades.’ However, as far as the remainder of the State practice is concerned, it is not completely free from unanswered questions and inconsistencies. It cannot therefore be prima facie established whether the Baltic States continued to exist in terms of international law throughout the Soviet annexation period, or whether they still became extinguished in 1940 or at some point of time afterwards, but their identity was recognized in 1991 along the lines that States can be re-established.
It is not uncommon in international relations for issues related to State continuity and succession to remain pending for a long period.105 Some issues of State continuity/succession have even entered history as essentially unresolved. But how have legal scholars interpreted State practice pertaining to the legal status of the Baltic States?
3 The Legal Status of the Baltic States: Views in the Legal Literature
The position that the present-day Baltic States are, as subjects of international law identical with the pre-World War II Baltic republics, has generally been
However, upon closer examination of the views presented by scholars, certain differences and nuances become apparent. For instance, Ulrich Fastenrath holds the Baltic claim of State identity to be justified, but categorizes the case of the Baltic States (like the historic cases of Austria and Czechoslovakia) as entailing ‘re-establishment.’108 Similarly, Soledad Torrecuadrada argues that the revival of the Baltic States in 1991 is a case of State identity without continuity.109 Władysław Czapliński110 and Vladimir-Djuro Degan111 have recently referred to the concept of postliminium when discussing the legal status of the Baltic republics after 1991. Rein Müllerson invokes inter alia the concept of
Several international lawyers argue that international politics had a role to play in recognition of the identity of the Baltic republics. According to the Finnish scholars Koskenniemi and Lehto, the continuity of the Baltic States was recognized for reasons of ‘political symbolism’, and not because of international law.116 Ronald Rich has highlighted some explicitly political reasons for explaining recognition of the continuity of the Baltic republics. In the view of this Australian scholar, it was important in August 1991 to distinguish the Baltic States legally from other republics of both the USSR and SFRY.117 Back then, a ‘mere’ claim for the right of peoples to self-determination could not have legally justified secession, while claims to restore the independence of
In post-Soviet Russia, the legal literature has tended to deny the continuity of the Baltic States—or the Baltic claim of Soviet occupation until 1991.119 Some authors have suggested that one of the reasons to raise the claim of State continuity was to discriminate against Russian speakers who had settled in the the Baltic States during the Soviet period.120 However, there have also been voices in international law literature who at least affirm the illegality of the Soviet occupation and annexation of the Baltic States in 1940.121
Altogether, there seems to exist a consensus among legal scholars that the continuity and/or identity of the Baltic States involves a certain legal fiction. Differences among scholars involve attitudes towards this fiction—some endorse it; others are more sceptical. This element of fiction is particularly interesting from the point of view of international law.122 In philosophy,
State practice relating to statehood demonstrates that in international relations, different kinds of fictions are conceivable: political fictions, backed by arbitrary decisions, and legal fictions aimed at supporting legally established rights. Legal fictions can be employed to interpret a complex reality ‘pour accéder d’une réalité inférieure à une réalité supérieure.’125 Certain fundamental principles of international law, such as the principle of the sovereign equality of States, contain strongly fictional elements, as critics have pointed out,126 in the spirit of Orwell’s comment that in reality, ‘some animals are more equal than others.’ Nevertheless, the element of fiction in the case of Syrian continuity was of a different character than that of Czechoslovakia. What kind of fiction do we then have in the Baltic case?
We need to examine more specifically whether the Baltic States existed continuously between 1940–1991 as subjects of international law or not. As we have observed, some international legal scholars have already expressed doubts in that respect. Some scholars base their doubts upon the facts on the ground, others upon doctrinal views on international law. In order to arrive at definitive conclusions about the legal status of the Baltic republics during the Soviet annexation period, we need to examine both the facts and the doctrine, and apply the latter to the former.
K. Marek, op. cit., p. 311.
See A. Oplatka, Lennart Meri. Ein Leben fur Estland. Dialog mit dem Präsidenten, Zürich: Verlag Neue Zürcher Zeitung, 1999. (Quoted from the Estonian edition, Tartu: Ilmamaa, 2000 p. 58).
Enn Sarv has argued against the use of the concept of ‘dissidents’ in the Baltic case, since individuals who fight for freedom in an occupied country do not fight against their ‘own’ regime and cannot be called ‘dissidents’, i.e. ‘persons who think differently.’ See E. Sarv, Õiguse vastu ei saa ükski (No One Can Withstand the Law), Tartu, 1997, p. 75. The semantic dilemma between a ‘dissident’ and a ‘freedom (or: resistance) fighter’ illustrates the difficulties of adequately characterizing an illegally created period with as long a duration as Soviet rule in the Baltic republics.
See C. Gray, ‘Self-Determination and the Breakup of the Soviet Union’, 12 YBEL 1992, p. 466. Under the April 7, 1990 Soviet law on secession, the secession of a union republic required approval by a two-thirds majority. Latvia and Estonia, who had suffered more from Soviet migration policies, might have had difficulty in fulfilling the requirements of this Soviet law. See also A. Cassese, Self-determination of Peoples. A Legal Reappraisal, Cambridge: Cambridge University Press, 1995, p. 261.
Of the common efforts of that period, note the May 26, 1990, Declaration of Foreign Ministers of the three Baltic States in Riga, which declared that ‘the Republic of Estonia, the Republic of Latvia, and the Republic of Lithuania still continue to exist.’ The substantive part of the declaration was supplemented by the following quest for symbolism: ‘This declaration is signed in Riga in accordance with the trilateral agreement signed in Geneva in 1934, registered in the League of Nations and renewed in Tallinn on May 12, 1990.’ Quoted in Jaakson, Eestile, pp. 274–275.
The relevant notion in German legal language is ‘scheintot.’ See e.g. Neuhold/Hummer/Schreuer, Österreichisches Handhuch des Volkerrechts, Band 1: Textteil, 2. Auflage, 1991, p. 152.
On the creation and recognition of the Baltic States by the international community, see C. Hillgruber, Die Aufizahme neuer Staaten in die Völkerrechtsgemeinschafi. Das völkerrechtliche Institut tier Anerkennung von Neustaaten in der Praxis des 1p. and 20. Jahrhunderts, Frankfurt a.M.: Peter Lang, 1997, p. 236 et seq.
See the text of the declaration in A. Kiris, Restoration of the Independence of the Republic of Estonia. Selection of Legal Acts (1988–1991), Tallinn: Ministry of Foreign Affairs of the Republic of Estonia and Estonian Institute for Information, 1991, p. 19.
See the text in A. Kiris, op. cit., pp. 22–23. See the original Estonian text in 12 Eesti Vabariigi Ülemnõukogu ja Valitsuse Teataja, p. 269.
See the text in A. Kiris, op. cit., p. 101.
The Preamble of the 1992 Põhiseadus reads: ‘Unwavering in their faith and with an unswerving will to safeguard and develop a State which is established on the inextinguished right of the Estonian people to national self-determination and which was proclaimed on February 24, 1918… the Estonian people adopted, on the basis of Article I of the Constitution which entered into force in 1938, by referendum held on June 28, 1992, the following Constitution:…’ See Eesti Vabariigi Põhiseadus, RT 1992, 26, 349; 36.
Riigi Teataja (State Gazette) 1992/40/533. The translation from Estonian is by this author.
See a French translation of the text in A. Reinhards (ed.) Lettonie-Russie. Traités et documents de base in extenso, Lausanne, 1998, p. 202.
I. Ziemele, op. cit., pp. 252–253.
See the Constitutional Law of the Republic of Latvia On the Republic of Latvia Status as a State of August 21, 1991, in Human Rights Issues (5th Saeima Human Rights Committee eds.) Riga, 1993, p. 65.
For a succinct overview, see B. Meissner, ‘Baltic States’, EPIL 1, p. 328 et seq.
This Act of the Supreme Council of Lithuania is translated and published in English. See Lithuanian Foreign Policy Review 1999/4, p. 179.
See I. Ziemele, op. cit., p. 253.
See D. Zalimas, ‘Legal and Political Issues on the Continuity of the Republic of Lithuania’, in: Lithuanian Foreign Policy Review 1999 No. 4, p. 107 at 114.
See information provided on the website of the Foreign Ministry of the Republic of Estonia, at http://www.vm.ee/eng/est0day/2000/Eesti-Island.htm, visited on November 20, 2000. On the re-establishment of diplomatic relations between Iceland and Latvia, see Reinhards, op. cit., p. 240.
See R. Müllerson, International Law, Rights and Politics. Developments in Eastern Europe and the CIS, London: Routledge, 1994, p. 120. For a comparative analysis, see J.A. Trapans, The West and the Recognition of the Baltic States: 1919 and 1991. A Study of the Politics of the Major Powers, 25 JBS, 2, pp. 153–173.
See e.g. the practice with regard to France: 40 AFDI 1091 (1994) and P. Daillier, A. Pellet, Nguyen Quoc Dinh, Droit international public, Paris: L.G.D.J, 1999, p. 559; with regard to Austria: H. Tichy, ‘Two Recent Cases of State Succession—An Austrian Perspective’, 44 Austrian JPIL 1992, p. 117 at 127; with regard to Germany: O. Dörr, Die Inkorporation…, p. 354. See also the declaration by the Government of Belgium of March 29, 1990, RBDI 1991, p. 262; Norway: see 65 Nordic JIL 289, at 290 (1996). Of other Western States, see Australia: 13 Australian YIL 223 (1992).
Declaration of European Community Foreign Ministers on the Baltic States, Brussels, August 27, 1991, EPC Press Release, P 81/91. It is interesting to note, though, that for the Netherlands and Spain, this declaration ultimately meant the (second) recognition of the Baltic States, as both had recognized the incorporation of the Baltic States into the USSR. See 23 Netherl. YBIL XXIII (1992), p. 298. Even more interesting is the British position: ‘The British Government, unlike some other Member States, regards this statement as an act of recognition.’ See the statement of Mr Douglas Hogg, Minister of State, Foreign and Commonwealth Office: ‘Following the Government’s recognition of the independence of the Baltic states on 27 August 1991, I immediately visited the three states…’ See 63 BYBIL 1992, p. 258 fn. 154.
Quoted in R. Yakemtchouk, ‘Les Républiques baltes en droit international. Echec d’une annexion opérée en violation du droit des gens‘, 37 AFDI 1991, p. 281.
State Department Press Statement, Washington, DC, September 2, 1991.
See Netherlands: 13 NYIL 298 (1992) and Spain: 1 Spanish YIL 48 (1991). Sweden had also recognized the incorporation of the Baltic States by the Soviet Union. For the whole list of recognitions, see R. Pullat, The Restauration of the Independence of Estonia, 2 Finnish YBIL 1991, p. 529.
See Satkasuskas, master’s thesis, pp. 64, 75.
See for further references: I. Ziemele, op. cit., , p. 188 and D.A. Loeber, ‘Consequences of the Molotov-Ribbentrop Pact for Lithuania of Today International Law Aspects’, Lithuanian Foreign Policy Review 1999 No. 4, p. 95 at 99. See with regard to the Polish position: R. Szafarz, ‘The Practice of Poland as the ‘Other State Party’ and as a Depositary—as Regards Succession of Recently Established States in Respect of Treaties (a Case Study)’, 22 Polish YBIL 1995–1996, pp. 221–235 at 222–224.
K. Marek, op. cit., p. 3; Cf. e.g. with D.P. O’ Connell, International Law, Volume One, London: Stevens & Sons Limited, 1965, p. 128. See also H.B. Захарова, Правопреемсmво государсв, Mocвa: Международные отношения, 1973, p. 35.
See the evidence in: ILA, Helsinki Conference, Rapport préliminaire sur la succession d’États en matiere de traités, 1996, for Germany p. 25, Austria p. 26, Finland p. 28, Poland p. 29, the Netherlands p. 29. From the practice of Great Britain see e.g. the UK-USSR Treaty on Merchant Navigation of 1968 that was not deemed to be binding on the Baltic States. See BYBIL 69 (1998), p. 457. See also L. Love, ‘International Agreement Obligations After the Soviet Union’s Break-up: Current United States Practice and Its Consistency with International Law’, Vanderbilt JTL, vol. 26, 1993, no. 2, p. 198.
Multilateral Treaties Deposited with the Secretary General (Status as of 31 Dec. 1994), p. 9. Moreover, the declaration by Estonia continues as follows: The Republic of Estonia has begun careful review of multilateral treaties in order to determine those to which it wishes to become a party. In this regard it will act on a case-by-case basis in exercise of its own sovereign right in the name of the Republic of Estonia.’, ibid.
Multilateral treaties Deposited with the Secretary General (Status as of 31 Dec. 1995), p. 9.
Cf. M. Kaljurand, Some Aspects of Succession of Estonia to the International Treaties Concluded in 1918–1940, Master’s Thesis at The Fletcher School of Law and Diplomacy, 1995 (on file with the author), p. 37.
See the text of the respective declaration in Reinhards, op. cit., p. 206 et seq. Accession to fifty-one multilateral human rights treaties was declared this time.
35 Riigi Teataja (The Official Gazette), Art. 428 (1991).
See League of Nations Multilateral Treaties, in Multilateral Treaties Deposited with the Secretary-General (1996) 921–980.
Declaration of Continuity by the Republic of Estonia concerning the Convention on Non-fortification and neutralization of the Aaland Islands, signed at Geneva on October zo, 1921. Lithuania made a similar declaration.
See the evidence collected by Dörr, op. cit., p. 164.
See E. Mattisen, Searching for a Dignified…, p. 95.
See K. Ipsen, Völkerrecht, 4. Auflage, München: C.H. Beck’sche Verlagsbuchhandlung, 1999, p. 60.
See R. Szafarz, op. cit., p. 233.
See the evidence about France, Germany and Norway, submitted by A. Zimmermann, Staatennachfolge in völkerrechtliche…, p. 55.
See on Estonia: T. Kerikmäe, H. Vallikivi, ‘State Continuity in the Light of Estonian Treaties Concluded before World War II’, 5 Juridica International (Tartu University Law Review) 2000, p. 30.
See M. Kaljurand, Some Aspects of Succession… 1995, p. 4 et seq.
See J. Klabbers, M. Koskenniemi, O. Ribbelink and A. Zimmermann (eds.), State Practice Regarding State Succession and Issues of Recognition: The Pilot Project of the Council of Europe, The Hague: Kluwer Law International, 1999, p. 96. In some cases, the formulation of new treaties—and the implicit application of the pre-1940 treaties—lasted several years after 1991. For instance, the Agreement on Commerce and Shipping between Estonia and Turkey, concluded on September 16, 1929 (Riigi Teataja 1930, 56, 377) and other agreements on economic matters were terminated by the Agreement on Commercial and Economic Cooperation, concluded between Turkey and Estonia on August 28, 1995 (Riigi Teataja II 1995,42, 188). Article XIII of the 1995 stipulates: The treaties and protocols and clearing agreements on commercial and economic cooperation concluded between the two States before 1940 shall be terminated upon the entry into force of this agreement.’ In similar vein, the preamble of the Turkish-Estonian Treaty of Friendship and Cooperation of 1993 states that ‘…the Parties confirm their commitments to the Treaty of Friendship of I December 1924…’ Cf. 3 Riigi Teataja II (1994) and Treaty on Friendship, December 1, 1924, Estonia-Turkey, 115/116 Riigi Teataja, Art. 77 (1925).
Kaljurand, Some Aspects of Succession…, p. 30.
Kaljurand, Some Aspects…, p. 30.
Some of these treaties were concluded on a trilateral basis, e.g. the Convention on Assistence in Civil Matters between Estonia, Latvia and Lithuania from December 10, 1935 (The official source in Estonia: 109 Riigi Teataja, Art. 908 (1935)), the Convention on Settlement of Some Matters of International Private Law between Estonia, Latvia and Lithuania from June 26, 1924 (In Estonia: 60 Riigi Teataja, Art. 71 (1923)), the Convention on Mutual Recognition of Court Decisions in Civil Matters between Estonia, Latvia and Lithuania from January 10, 1936 (108 Riigi Teataja, Art. 896 (1935)). See also Kaljurand, op. cit., p. 32 et seq.
See e.g. Estonian-Latvian-Lithuanian Treaty on Legal Aid and Legal Relations, October 11, 1992, in force from April 3, 1994, 6 Riigi Teataja (1993).
See R. Müllerson, ‘The Continuity of States by Reference to the Former USSR and Yugoslavia’, 42 ICLQ 1993, p. 482.
Exchange of notes between the Ambassador of the Republic of Finland in Estonia and the Deputy Foreign Minister of the Republic of Estonia, February 5, 1992. See also Agreement on Cultural Cooperation, December 1, 1937, Estonia-Finland, 1 Riigi Teataja, Art. 2 (1938).
See Tichy, op. cit., p. 127.
See Liste des Traités et Accords de la France (Status as of October 1992), vol. II, p. 681, 741 and 744.
See Klabbers et al. (eds.), The Pilot Project of the Council of Europe, 1999, p. 96.
See Kaljurand, op. cit., p. 38. See also M. Lehto, ‘Succession of..’,. FYBIL, pp. 214–217.
The respective questions concerned jurisdiction and the maritime border in the Gulf of Finland and in the north-eastern part of the Baltic Sea, environment, customs, rescue at sea, nuclear plants, and the like. See Kaljurand, op. cit., p. 38 et seq. Estonia did not carry on this practice with other States, although some States would, for practical reasons, have preferred to do so.
See Klabbers et al. (eds.) The Pilot Project of the Council of Europe, p. 96.
H. Bokor-Szegö, ‘Questions of State Identity and State Succession in Eastern and Central Europe’, in: M. Mrak (ed.) Succession of States, The Hague: Martinus Nijhoff, 1999, p. 95 at 100.
Ibid. p. 100 et seq.
See Beschluß des Amtsgerichts Berlin Tiergarten, FRG, Distr. Ct. Berlin (Judge Finck) (Decision of September 23, 1991). See also J. Klabbers et al. (eds.), State Practice Regarding State Succession and Issues of Recognition: The Pilot Project of the Council of Europe, p. 126.
See Ziemele, op. cit., p. 195.
See ibid. p. 195.
See Postimees, 07.08.2001.
Upon the admission of the Russian Federation to the Council of Europe, the Parliamentary Assembly noted that ‘real estate (embassy buildings in third countries), as well as cultural and historical property which was expropriated by the Soviet Union in 1940 and in subsequent years, still has not been returned to the Baltic states. The Assembly should encourage, and where possible, facilitate a rapid settlement of this question.’ See Mühlmann, Explanatory memorandum on Russia’s request for membership, January 2, 1996, the Council of Europe Parliamentary Assembly Doc. 7443, 22, para. 99.
On conflicting claims to the former Lithuanian embassy in Rome (Villa Maria Luisa), now used by the Russian Federation, see already Satkauskas, 2000, p. 69.
During the 1930s, the Central Banks of Estonia, Latvia and Lithuania built up deposits of gold at the Bank of England. In 1940 Estonia held 4.48 tons, Lithuania 2.96 tons and Latvia 6.58 tons. On the restitution of the Baltic gold, see the statement of the British Foreign and Commonwealth Office on May 26, 1992:
Following the Government’s announcement on 22 January 1992 of our proposals for settling with Estonia gold and other claims questions, the Government and the Estonian Government today concluded in Tallinn a final agreement on these matters. HM Ambassador to Estonia, Bob Low, and the Estonian Deputy Foreign Minister, Enn Liimets, exchanged diplomatic notes, which constitutes an agreement under which the Government will transfer to the Bank of Estonia on 31 March 154, 754.859 fine ounces of gold, a sum equal to the Bank of Estonia’s pre-1940 deposit with the Bank of England. In addition, the Government and the Estonian Government have dropped all other claims.’ The gold was at the time worth about 30.5 million British pounds. See Brit. YBIL 1991, p. 616; 1992, pp. 779–781. A similar agreement with Lithuania was concluded in March 1992. On March 19, 1993, the Foreign and Commonwealth Office of the UK issued a statement in which it was inter alia declared: ‘FIM Ambassador to Latvia, Mr Richard Samuel, and the Latvian Foreign Minister, Mr Georgs Andrejevs, exchanged diplomatic notes, constituting an agreement under which the Government will transfer on 31 March to the Bank of Latvia /10,719.919 fine ounces of gold, a sum equal to the Bank of Latvia’s pre-1940 deposit with the Bank of England.’ At the time of the agreement, the value of the Latvian gold was about 48.2 million pounds. See 64 BYBIL (1993), p. 693.
See Una Bergmane, ‘‘The Uncertainty That Persists’: The Bank of France, the Baltic Gold and the Non-Recognition of a Forcible Seizure of Territory during the Cold War’, The International History Review 2021.
See R. Satkauskas, États baltes: succession ou identité, Master’s thesis at Sorbonne, 2000, p. 67.
Estonia: UN GA-Res. 46/4 (1991), September 17, 1991; Latvia: UN GA-Res. 46/ 5 (1991), September 17, 1991; Lithuania: UN GA-Res. 46/6 (1991), September 17, 1991; all Resolutions reprinted in 45 UNYB 97s (1991). See also K. Bühler, op. cit., p. 196.
U.N.S.C. Official Records, 46th year, September 12, 1991, in UN Doc. S/INF/47, 1991, 48–9.
U.N.G.A. Res. 46/221A states that ‘the assessment rates will be deducted from the assessment rate of the [USSR]…’ Report of the Committee on Contributions, UN Doc. A/49/11, 1994, para. 28.
D.A. Loeber, Consequences of the Molotov-Ribbentrop…, p. 99.
IAEA: see 46 UNYB 1093 (1992) (Estonia), 47 UNYB 1245 (1993) (Lithuania); FAO: see 45 UNYB 941 (1991); UNESCO: see ibid., at 947; WHO, see ibid., at 953 (Latvia, Lithuania), 47 UNYB 1265 (1993) (Estonia); IBRD and IMF: see 46 UNYB 1123, 1140 (1992): ICAO: see ibid., at 1145; UPU: see ibid., at 1149; WMO: see ibid., at 1156; WIPO: see ibid., at 1165 (Lithuania), 47 UNYB 1313 (1993) (Latvia, Estonia); ITU: see 45 UNYB 987 (1991) (Latvia, Lithuania), 46 UNYB 1152 (1992) (Estonia). For this and also for the practice of IMO and UNIDO, see K. Buhler, op. cit., p. 197 fn. 805.
The ILO simply noted that the Baltic States were members of the ILO before 1940. See Official Bulletin, 1991, vol. LXXV, 23, 25.
Symbolically, the Baltic position seems to be recalled by a mighty oak-tree which grows in the backyard of the former ILO (now WTO) building in Geneva, and which was planted by the Latvian delegation when the construction of the building started at the beginning of the 1920s.
B. Stern, ‘La succession d’Ėtats’, 262 RCADI 1996, The Hague, 2000, p. 222.
See e.g. I. Ziemele, State Continuity and Nationality: The Baltic States and Russia, Leiden: Martinus Nijhoff, 2005op. cit.,, p. 68 et seq.
Lithuania declared that its application shall in no way affect the legel consequences proceeding from the [original] membership of the Republic of Lithuania.’ See ILA, Taipei Conference, Rapport interimaire sur la succession en matiere de traités constitutifs d’organisations internationales et de traités adoptes au sein des organisations internationales, (Brigitte Stern), London, 1998, pp. 9 and 625 et seq.
See K. Bühler, op. cit., p. 197.
See e.g. Declaration of the Russian Foreign Ministry of July 4, 1994, Dipl. Vestnik 1994, No. 13–14, 52.
On June 12, 1990, the First Congress of People’s Deputies of the Russian Republic adopted a Declaration proclaiming the sovereignty of the Russian Soviet Federative Socialist Republic (RSFSR) over its entire territory. See Bulletin of the RSFSR Congress of People’s Deputies and the RSFSR Supreme Council, No. 2, 1990, Art. 22.
Files of the Congress of the Peoples’ Deputies of the USSR and the Supreme Soviet of the USSR, No. 29, 27 December 1989, Article 579, pp. 833–834.
See for the political background to this adoption in an interview with A. Yakovlev, in: Postimees, 09.07.2001.
See Files of the Congress, ibid. para. 5.
See ibid. para. 7.
See ibid. para 7.
The Russian-Estonian ‘Fundamentals Treaty…’ entered into force on January 14, 1992. For the Estonian text, see Riigi Teataja 1991, 2, 19.
Cf. B. Meissner, Die Russische Politik gegenilber der Baltischen Region als Prüfstein für das Verhältnis Russlands zu Europa, p. 291.
Quoted from Meissner, Die Russische Politik…, pp. 292–293.
D. Zhalimas, ‘Legal and Political…’, p. 115.
See further E. Sarv, Õiguse vastu ei saa ükski: Eesti taotused ja rahvusvaheline õigus (No One Can Withstand the Law: Estonia’s Efforts and International Law), Tartu, 1997, p. 185.
President Yeltsin used this argument in a letter sent to US President Clinton. See a translation published in the Estonian newspaper Postimees, July 11, 1996.
See e.g. Дипломатическая Академия МИД РФ et al. (соз.), Международое право, 2nd ed., Москва: Международные отношения, 1998, p. 82. See also J. Klabbers et al. (eds.) The Pilot Project of the Council of Europe, 1999, p. 130. For a detailed analysis, see A. Reinisch, G. Hafner, Staatensukzession und Schuldenübernahme beim ‘Zerfall’ der Sowjetunion, 1995. See also D. Grashoff, Staatensukzessionbedingter Schuldnerwechsel. Die Teilung öffentlicher Schulden unter Nachfolgestaaten im Dismembrationsfall, Frankfurt a.M.: Peter Lang, 1995, p. 186 et seq and C.T. Ebenroth and D. Grashoff, Öffentliche Schulden im Prozeß desintegrierender Staatensukzession—die Zuordnung von Staatsschulden auf Nachfolgestaaten, ZVglRWiss 92 (1993), pp. 1–28; H. Beemelmans, Die Staatennachfolge in Staatsvermögen in Drittstaaten, Auslandsschulden, gebietsbezogene rechtliche Regelungen und Staatsangehörigkeit—eine Problemskizze, 41 Osteuropa Recht 1995, pp. 73–98; D.A. Loeber, ‚Die baltischen Staaten vor völkerrechtlichen Problemen: Kontinuität oder Staatennachfolge in bezug auf Staatsverträge, Staatseigentum und Staatsschulden‘, in: B. Meissner, D.A. Loeber, E. Levits (eds.), Die Wirtschaft der baltischen Staaten im Umbruch, 1993, Köln, p. 29 et seq; G. Burdeau, ‘Money and State Succession in Eastern Europe’, in: B. Stern (ed.) Dissolution, Continuation and Succession in Eastern Europe, The Hague, 1998, pp. 35–66 and P. Juillard, ‘The Foreign Debt of the Former Soviet Union: Succession or Continuation?’, ibid., pp. 67–86. For general considerations, see also V.D. Degan, ‘Equity in Matters of State Succession’, in: Essays in Honour of Wang Tieya (R.St.J. Macdonald ed.), Leiden: M. Nijhoff, 1993, pp. 201–210.
B. Meissner, The Occupation of the Baltic States from a Present-Day Perspective, p. 473.
Quoted by B. Meissner, op. cit., 1998, p. 473.
Interview with the Deputy Department Chief A. Udaltsov, Eesti Päevaleht, February 1, 1996.
Meissner, Die Russische Politik..p. 303. (Translated from German.)
Postimees, January 19, 1998. See also V.J. Riismandel, Nõukogude Liit oli agressor, (the Soviet Union was an Aggressor) in: Vaba Eesti Sõna (Free Estonian Word), February 26, 1998.
See Postimees, 2.02.2000 and 3.02.2000.
Meissner, Die Russische Politik…, p. 304–305. (Translation from German by this author.)
See Annex 4 of this book.
Quoted from and translated by A.E. Senn, ‘What Happened in Lithuania in 1940?’, in: Lithuanian Foreign Policy Review 2000, pp. 179–195 at 179–180.
See among others ILA, Helsinki Conference (1996), Rapport préliminaire sur la succession d’États en matiere de traités, London, pp. 13–14 and 18; ILA, Taipei Conference (1998), Rapport…, pp. 620–622. See also a similar position held by a Russian scholar, A. Kolodkin, ‘Russia and International Law: New Approaches’, RBDI 1993, No. 2, p. 554.
Martti Koskenniemi speaks about ‘the overwhelming international acceptance of the continuity thesis invoked by the Baltic states.’ See M. Koskenniemi, ‘The Wonderful Artificiality of States’, in: The ASIL Proceedings of the 88th Annual Meeting. April 6–9, 1994, p. 24.
See И. Клапсас, ‘Правопреемство, u контuнyumеm в международном nраве’, Moscow JIL 1992, No. 4, pp. 22–35 at 33; Б. Клименко, ‘Проблемы nравопреемсмва на террumopuй бывшего Союза CCP’, in: Moscow JIL 1992, No. 1, pp. 3–24 at 24.
See e.g. T. Schweisfurth, ‘Soviet Union, Dissolution’, EPIL, Vol. 4, 2000, pp. 529–547 at 541; R. Müllerson, ‘The Continuity and Succession…’, ICLQ, p. 482; A. Peters, Das Gebietsreferendum im Völkerrecht. Seine Bedeutung im Licht der Staatenpraxis nach 1989, Baden-Baden: Nomos, 1995, p. 150 et seq; M. Silagi, Staatsuntergang und Staatennachfolge mit besonderer Berücksichtigung des Endes der DDR, Franfurt a.M.: Peter Lang, 1996, p. 260; S. Talmon, Recognition of Governments in International Law. With Particular Reference to Governments in Exile, Oxford: Clarendon Press, 1998, p. 50; I. Ziemele, ‘The Application of International Law in the Baltic States’, 40 GYIL 1997, pp. 243–279 at 243; K. Bühler, State Succession and Membership in International Organizations. Legal Theories versus Political Pragmatism, Dissertation, Vienna, 1999, p. 195; G. Hafner and E. Kornfeind, ‘The Recent Austrian Practice of State Succession: Does the Clean Slate Rule Still Exist?’, 1 Austrian RIEL 1996, pp. 1–49 at 11; E. Sciso, ‘Dissoluzione di stati e problemi di successione nei trattati’, in: 49 La comunità internazionale 1994, pp. 83–4; J. Huntzinger, ‘La renaissance des États baltes’, in: Colloque de Nancy, Paris, 1994, p. 51; M. Bothe et C. Schmidt, ‘Sur quelques questions de succession posées par la dissolution de l’URSS et celle de la Yougoslavie’, 96 RGDIP 1992, p. 831.
See above and e.g. LA. Shearer (ed.), Starke’s International Law, 11th ed., London: Butterworths, 1994, p. 88 and H. Beemelmans, ‘State Succession in International Law: Remarks on Recent Theory and State Praxis’, 15 Boston UILJ 1997, p. 81.
U. Fastenrath, ‚Das Recht der Staatensukzession‘, in: Berichte der Deutschen Gesellschaft für VR, 1996, p. 15–16 (‘Das heißt nicht unbedingt, daß der zeitweise nicht bestehende Staat als rechtlich vorhanden fingiert werden müßte, wohl aber, daß die völkerrechtlichen Beziehungen fortgesetzt werden können, nachdem das zeitweilige Wirksamkeitshindernis entfallen ist.) Similarly, Wilfried Fiedler in ‚Der Zeitfaktor im Recht der Staatensukzession’, in: Staat und Recht. Festschrift für Günther Winkler, Wien: Springer, 1997, p. 232.
S. Torrecuadrada, ‚Le rôle du consentement dans la succession d’Etats aux traités‘, 23 Polish YBIL, p. 127 at p. 134.
See W. Czaplinski, ‘International Legal Aspects of Polish-Lithuanian Relations’, 19 Polish YBIL 1991–1992, pp. 31 at 41.
See V.-D. Degan, op. cit. (RCADI 1999), p. 295.
See R. Müllerson, ‘New Developments in the Former USSR and Yugoslavia’, 33 Va. JIL. 1993, 299 at 311.
See e.g. A. Reinisch and G. Hafner, Staatensukzession und Schuldübernahme beim ‘Zerfall’ der Sowjetunion, p. 107: ‘Nach herrschender Lehre kann bloß eine ‘relativ kurze’ Unterbrechung der territorialen Souveränität eines Staates die normativen Folgen des Wegfalls der Staatsgewalt, nämlich den Verlust der Staatlichkeit, verhindern. Die Tatsache, daß die illegale Annexion der baltischen Staaten immerhin doppelt so lang währte als deren ursprüngliche Unabhängigkeit, legt dem Schluß nahe, daß bier die ‘normative Kraft des Faktischen die ursprüngliche Rechtswidrigkeit ‘geheilt’ habe.’
Oliver Dörr writes that ‘die tatsächliche Staatenpraxis der ‘postsowjetischen Zeit’ [versucht], den Untergang der baltischen Staaten zu ignorieren, indem diesen heute zugestanden wird, zum Beispiel in bezug auf völkerrechtliche Vertragsverhältnisse an ihre souveräne Existenz vor 1940 nahtlos anzuknüpfen. Diese politisch motivierte Fiktion ist mit den Regeln des positiven Völkerrechts nicht zu erklären.’ See Dörr, op. cit., p. 355. See also L. Antonowicz, ‘The Disintegration of the USSR from the Point of View of International Law’, 19 Polish YBIL 1991–1992, p. 7 at 14–15: ‘The annexation of the Baltic states to the USSR being illegal, the passage of time exceeding twice their existence as independent states combined with the inertion of the international community legalized the original illegality. Such a solution is not rare in international relations.’ Cf. J. Verhoeven, ‘La reconnaissance internationale: déclin ou renouveau?’, in: 39 AFDI 1993, pp. 7–40 at p. 13 and 36 et seq.
C. Gray, ‘Self-Determination and the Breakup of the Soviet Union’, 12 YBEL 1992, pp. 483–4.
Koskenniemi and Lehto, ‘La succession…’, p. 198.
R. Rich, ‘Recognition of States: The Collapse of Yugoslavia and the Soviet Union’, 4 EJIL 1993, p. 38. See also Verhoeven, Reconnaissance, p. 13.
The hypothesis of Rich seems to be confirmed at least by one letter, titled ‘Recognition of the Baltic States’, and sent on August 30, 1991, by the Netherlands Minister for Foreign Affairs to the Parliament. In this letter, under the heading ‘Precedental effects’, it is declared: ‘Given the special historical and international legal position of the Baltic States, recognition of them does not constitute a precedent for recognition of other territories which have declared themselves independent or which do so in future, as far as the Twelve are concerned. (Italics by this author.) The Baltic States were, after all, fully independent States between 1920 and 1940, were members of the League of Nations and internationally recognized, by the Soviet Union among others. As mentioned earlier, incorporation into the Soviet Union in 1940 took place against the will of the population, and was never recognized de jure by most countries. This does not hold true for the other parts of the Soviet Union, which all have their different histories. The ‘independence’ now foreseen by some of the republics of the Soviet Union is, in many cases, insufficiently defined, and need not necessarily mean that these republics reject all forms of amalgamation in a looser, Union Treaty. (…) If the question whether there should be recognition and diplomatic relations should arise at any time, then this can be answered only on a case-by-case basis, relying on the existing international criteria with respect to the recognition of States.’ See Netherl. YBIL XXIII (1992), pp. 299–300.
See e.g. S.V. Chernichenko, Teoria mezhdunarodnogo prava, Vol II, Moscow: NIMP, 1999, pp. 72–79; P.P. Kremnev, Raspad SSSR: mezhdunarodno-pravovye problemy, Moscow: Zertsalo-M, 2005, pp. 57, 211.
V.I. Kuznetsov, B.R. Tuzmukhamedov (eds.) Mezhdunarodnoe pravo, Moscow: Norma, 2007, p. 307.
See I.V. Getman-Pavlova, Mezhdunarodnoe pravo, Moscow: Yurait, 2013, p. 345; G.M. Melkov (ed.) Mezhdunarodnoe pravo, Moscow: RIOR, 2009, p. 81; K.A. Bekiashev (ed.) Mezhdunarodnoe publichnoe pravo, 2nd ed., Moscow: Prospekt, 2003, p. 582.
See also R. Lewis, Legal Fictions in International Law, Cheltenham: Edward Elgar Publishing, 2021.
From Latin fictio, from fingere, i.e. to devise or form. See D.D. Runes (ed.) Dictionary of Philosophy, Ames, Iowa: Littlefield, Adams & Co., 1958, p. 109.
Cansacchi gives the following definition of the legal fiction: ‘La fiction juridique, c’est une procédé de droit par lequel on presuppose une certaine situation comme existante, tandis que, dans la réalité des choses, elle s’etait produite différemment; cela pour réaliser des effets juridiques et politiques qui découlent de la situation fictive et qui ne pourraient pas decouler de la situation réellé.’ See Cansacchi, op. cit., p. 40, but also pp. 10 and 47 et seq. See also M. Chemillier-Gendreau, ‘Origine et rôle de la fiction en droit international public’, in: 32 Archives de Philosophic du Droit 1987, pp. 153–162 and L.L. Fuller, ‘Legal Fictions’, 25 Illinois Law Review 1930–1931, p. 513.
J. Touscoz, Le principe d’effectivité dans l’ordre international, 1964, pp. 177–8. “To reach from a lower reality to a higher reality.”
See e.g. R.W Tucker, The Inequality of Nations, New York: Basic Books, 1977. Philip Allott has even criticized the ‘dangerous fiction of State responsibility’ in: ‘State Responsibility and the Unmaking of International Law’, 29 Harvard JIL 1988, pp. 1–26 at 13 et seq.