1 Introduction
The analysis of State practice in the preceding chapter revives a fundamental theoretical problem: namely, what should State continuity as a legal concept mean or imply, in particular when statehood has been de facto disrupted for such a long period as with the Baltic States? If power politics plays such a profound role, as suggested, how should we interpret a certain discrepancy between status and rights? Does abstract legal status have any immediate normative consequences, as suggested by Krystyna Marek and other scholars? Should abstract legal status have a separate meaning at all or should international lawyers concentrate their attention solely on concrete rights and duties?
The crux of the problem seems to be whether and, if so, how to integrate political aspects of international relations in international law doctrine, so that international law would be neither irrelevant (too utopian), nor lose its autonomy vis-à-vis power politics. What should be the intellectual position of the international lawyer with respect to politics?1 To what extent should legal doctrine accommodate fluctuations of State behaviour, often caused by power politics, as ‘custom’? While mainstream international legal scholarship has tended to ignore the problem altogether, critical schools of thought have provided ever more imaginative, provocative and controversial solutions to this problem. The following discusses how the conflict between international legal theory and practice in the Baltic case has been treated in the literature.
Any lawyer’s discussion of delimitation of the political from the legal must start with the most challenging of those theories, namely a non-legal (and sometimes anti-legal) school of thought which broadly denies the independent value of international law and legal analysis for an understanding of international relations (realism). After having discussed realist views, we turn to some
2 Realist Critiques of International Law
For realism, in both its classic and structural interpretations, the very project of international law is inherently utopian. Without centralized power comparable to domestic legal systems, the international system of States must be characterized as anarchical. No ‘legalistic-moralistic’ (George Kennan) attempts to establish the rule of law in international relations can do away with the fact that power remains the main determining factor in international politics. Realism is a theory about the predominance of power politics and, consequently, about the relative non-importance of international law in international relations. Born, in its more recent version, out of the disillusionment caused by World War II,2 realism is probably still the most influential, even archetypical, explanation of world politics within the discipline of international relations theory.
It is easy to understand that—and why—the attitudes of international law scholars towards realist arguments have been mainly rejective. If international law does not matter, then the field of study of international lawyers can only be marginal at best. Nevertheless, in certain aspects the positivist doctrine of international law and realist approach to international relations share far more common assumptions than previously recognized—such as the focus on States as main actors in international relations and law.3
(…) contrary to much superficial thinking on this subject, it is not as if this tendency of international law to accommodate itself to power politics were some unfortunate but remediable defect that is fit to be removed by the good work of some high-minded professor of international law or by some ingenious report of the International Law Commission. There is every reason to think that this feature of international law, which sets it at loggerheads with elementary justice, is vital to its working and that if international law ceased to have this failure, it would so lose contact with international reality as to play any role at all.4
Here is an institution which offends against everyday notions of justice (…) by sacrificing the interests of small states, which may be absorbed or partitioned in the interests of the balance. (…) From the point of view of a weak state sacrificed to it, the balance of power must appear as a brutal principle. But its function in the preservation of international order is not for this reason less central.5
In 1991, Russia lacked power to prevent the drifting away of the Baltic republics. Nevertheless, the Baltic States never had enough power to impose their legal doctrine of State restoration, supported by Western countries, on Russia.
According to the realist argument, the doctrine of continuity of the Baltic States is essentially, like all legal doctrines, a political and ideological one. Concepts such as State continuity/identity, and related debates relating to the rights of States, can be regarded as political tools for achieving certain aims within the context of Realpolitik. De facto, there is continuity only to the extent that power can guarantee it. Realism, a simple and at the same time powerful doctrine, has often been used in explaining outcome(s) in the case of the legal status of the Baltic States.
Those [States in Eastern Europe] which have pursued a foreign policy of “stand up, demand justice,”7 have discovered the sad truth that between states “law” does not apply, or only very little. Law and justice can sometimes be found in an established and sometimes well-working domestic court system, but not between states. We could approach this almost mathematically. When von Clausewitz said that war is only the continuation of politics by other means, then inter-state politics is a state of war without killing. The same rules apply, the goals are achieved by those who are stronger. Among smaller and weaker states, only those win who act most prudently or cleverly. But in our region, foreign policy has nothing to do with law (…) Quod licet Iovi, non licet bovi.8 In this world, the demand for justice unfortunately does not bring results.9
The psychological background for this view seems to be that in the post-1990/1991 euphoria, the new foreign policy elites of the Baltic States had initially almost unconstrained belief in the view that right international law positions facilitate right outcomes in State practice.10
Needless to say, such [Lithuanian] claims are unrealistic. Any negotiations on this matter would require Moscow to recognize the fact of occupation, which is absolutely out of the question for a number of reasons.(…) The only result which this legislation can bring about is to retrigger an emotional and predominantly mutually unfriendly debate of the early 1990s, ranging from general issues of interpretation of the Soviet period in Lithuanian history to very specific cases of property rights (for example, the embassy buildings in Paris and Rome).11
Lithuania has very little leverage that it could use to exert pressure on Russia (outside the area of transit tariffs, but in that case Russian countermeasures would hit the Lithuanian economy probably harder than vice versa). Also, precedents established by Latvian and Estonian territorial claims to Russia rather demonstrated the futility of these actions: both countries had to withdraw their claims. Furthermore, engagement in such a dispute with Russia, if it receives a high profile, would hardly facilitate the task of Lithuania’s accession to European institutions. (…) However, if Vilnius really tries to make it a negotiation item, as the legislation requires, negative resonance in Russia and, consequently, deterioration of bilateral relations will become unavoidable.12
There’s nothing new under the sun—long ago Thucydides, whom realist theoreticians consider their forerunner, made Athenians tell the Melians that ‘(…) we both alike know that in the discussion of human affairs the question of justice enters where there is equal power to enforce it, and that the powerful exact what they can, and that the weak grant what they must.’13
In international law, all disputes are not justiciable; for no court is competent unless the parties to the dispute have agreed to confer jurisdiction on it and to recognize its decision as binding (…) There is no principle of law which enables one to decide that a given issue is suitable for treatment by legal methods.15
International lawyers have had difficulty with the persuasiveness of the realist outlook for the Baltic-Russian boundaries case. Classically, on such occasions, apologetic argumentation is employed. Malcolm Shaw suggests that ‘…it may well be the case that considerations of international peace and security and territorial stability dictate acceptance of the 1991 boundaries as the existing international boundaries.’16
Considerations of ‘international peace and security and territorial stability’ (Shaw) referred to the general political consensus that opening up old territorial disputes in Europe would mean opening up a Pandora’s box of mutual
The method of fait accompli is closely related to the threat or actual use of force, short of formally declared war. In essence it amounts to confronting the other interested parties with accomplished facts in the expectation that they will be incapable or unwilling to use force in order to redress those new facts. This method is clearly not compatible with peaceful change (…) If the frustrated party has recourse to unilateral action, the situation is transformed into an international dispute and the procedure for peaceful change becomes a procedure for the peaceful settlement of the dispute.21
In the Baltic case, it was precisely the latter (a procedure for peaceful settlement of a dispute) which was employed in the Estonian-Russian and Latvian-Russian
One of the founders of classic realism, E.H. Carr, has suggested that ‘[e]very solution of the problem of political change, whether national or international, must be based on a compromise between morality and power.’23 It cannot be denied that the aspects of both morality and power were included in legal and political solutions in the Baltic restoration process, which was an issue of political change.
Political change is a reality that must sometimes be accepted by more powerful nations than the Baltic republics. The FRG considered for many years the amputation of its territory beyond the so-called Oder-Neisse line as illegal, since—pacta tertiis nec nocent nec prosunt—it had never consented to this transfer of territory of the German Reich. However, during the reunification process in 1990, Germany gave (or, in a way, was forced to give) its final acceptance to the status quo.24 It has been colloqially maintained that Germany paid for its re-unification with a part of its territory. It may of course be argued that Germany in World War II was an aggressor State and thus had to accept certain negative consequences of a war that its leadership had initiated, while the Baltic States became victims of aggression. However, also in the World War II context, certain territorial changes, such as following the Finnish-Soviet war, were accomplished and recognized as a consequence of aggression.25
(…) ein Kleinstaat ist im allgemeinen einer Großmacht gegenüber nicht in der Lage, seine Rechtsansprüche durchzusetzen. Den Großmächten fällt es nicht schwer, Mittel, Wege und Argumente zu finden, um lastige Rechtsansprüche kleinerer Staaten zurückzuweisen. Sie unterwefen sich weder einer obligatorischen Gerichtsbarkeit noch einer zwangsweisen Vollstreckung eines Urteils.27
Tout d’abord le droit des gens n’est pas en mesure (…) de créer une personne là où en fait il n’a pas une. Pour être en mesure de poursuivre un tel
but le droit des gens devrait “contrôler”—c’est-à-dire atteindre—le milieu interindividuel au sein duquel 1’organisation de la personne devrait se réaliser. Nous avons constate qu’il n’en est pas ainsi. (…) le maintien en vie d’une personne qui s’est dissoute n’aurait ni un sens ni une utilité pratique comparable su sens et à 1‘utilité du phénomène de droit interne (identitè légale de la personne morale) apparemment analogue. Les règles internationales qui poursuivraient de tels buts n’auraient, directement, ni éxécuteurs ni bénéficiaires.28
Ethiopian and Albanian lawyers would quite likely disagree with Professor Arangio-Ruiz on the issue whether this rule would have beneficiaries or not; however, the lack of ‘executors’ is indeed a real problem that international law doctrine must take into account. It therefore seems wise, from a legal standpoint of view, to accept that power plays a role in the implementation of international legal norms since there exists, as Wolfgang Friedmann has put it, ‘the bipolarity of politics, as resulting from a perpetual tension between “conscience and power”; between “ethical and coercive factors.”29
But should international legal doctrine in the case of State continuity take this bipolarity between power and normativity further into account? We will proceed with a brief discussion of views from two legal schools of thought which have explicitly included political aspects in their legal analysis.
3 The New Haven Approach and New Stream: Politics in International Law
Legal academia has not wholly recovered from attacks accomplished by realism. Many lawyers turned away from positivism and suggested new ways of thinking about international law. But new ways of thinking were often at least as contested as the old positivism. The New Haven school, led by Myres
For scholars of the postmodern Critical Legal Studies (New Stream) movement, international law is politics, a special professional culture and language for conducting international politics. With this radical identification of international law and politics, New Stream scholars have of course been at odds with positivist scholars who, at least programmatically, presume the separation of law and politics. Martti Koskenniemi has attacked ‘the idea that international law provides a non-political way of dealing with international disputes.’31 In a programmatic article, Koskenniemi has argued that ‘our inherited ideal of World Order based on the Rule of Law thinly hides from sight the fact that social conflict must still be solved by political means and that even though there may exist a common legal rhetoric among international lawyers, that rhetoric must (…) rely on essentially contested—political—principles to justify outcomes to international disputes.’32
One recognized New Stream method, also employed for demonstrating the political nature of law, is deconstruction of existing legal and intellectual concepts. French philosopher Jacques Derrida, one of the creators of the postmodern deconstruction method, has suggested that it is crucial ‘… to recognize that in a classical philosophical opposition we are not dealing with the peaceful coexistence of a vis-à-vis, but rather with a violent hierarchy. One of the two terms governs the other (axiologically, logically, etc) or has the upper hand. To deconstruct the opposition, first of all, is to overturn the hierarchy at a given moment.
It assumes status as prior to the legal relationships that relate to it. However, it is not certain that the two can be separated in a meaningful way. (…) the mere continuity or disruption of abstract statehood seems much less important for the determination of the rights and duties of the various protagonists of a normative problem than the material scope of the relevant law. Indeed the order between status and the law is now reversed: status is reduced to the sum total of the rights and obligations allocated to an entity by an overriding legal order (…) For this view, whether an entity is ‘identical’ or ‘different’ is simply a shorthand to address the continued validity—in temporal, personal, and geographical terms—of certain norms in a transformed political situation where the issue of validity has arisen.34
The view which holds status as prior to relationships thinks of statehood as an autonomous quality possessed by certain entities ab initio, prior to and independently of their participation in social life. Such an approach projects a Vattelian domestic analogy that considers States as persons, writ large, and their legal relationships as extensions of their statehood. (…) the idea of a State’s ‘identity’ as something given and pre-existing social relationships looks like a rather vulnerable piece of political metaphysics. It also undermines the degree to which an entity’s ‘statehood’ is constructed in the process of communicative interaction between it and the external world and fails to appreciate the extent to which the talk of identity is informed by views about the right principles of communal policy. (…) Such analysis avoids the anthropomorphism implied in
thinking about status in material terms, as an inalienable ‘soul’ of a State. It goes directly into what for lawyers is the important issue, the continuity or discontinuity in the legal rights and obligations that existed prior to the transformations.35
This critique succeeds in identifying vulnerable spots in the predominant doctrine of legal status. However, Professor Koskenniemi’s suggestion that rights mean status and that there is no ‘status as such’ has its own weaknesses as well. When deciding about the important issue, namely the fate of legal rights and obligations that existed prior to the transformation(s), only talk of status can determine which transformations and thus which legal rights and obligations are to be taken into account. By talking about the continuity of legal rights and duties in cases of illegal annexation—or by denying the illegality of annexation and/or the continuity of rights and duties—one inevitably expresses oneself about status as well. How else could one attach one’s claim or position to a particular transformation? If there should not be any independent concept of status at all, how could the respective rights and duties, the (dis) continuity of which is at stake, even be identified?
When Koskenniemi argues that his interpretation is based on Marek’s theory, he overlooks that Marek not only argued that rights amount to status, but also that a restored State has a basic presumption in favour of restoration of its rights. One way to bridge the gap between the two different approaches would be to argue that the presumption of continued validity of rights and duties in the cases of illegal annexation signifies status. But Martti Koskenniemi seems to argue that status amounts to those rights that will in fact be restored in practice, and nothing more. In this manner, an illegally annexed State whose independence is in the process of restoration would be in a difficult situation: the continuity of its pre-annexation rights and duties is somehow presumed, but at the same time the inability to restore (some of) those rights in fact puts the very claim of continuity under doubt. How can the material scope of the relevant law, as suggested by Koskenniemi, determine the outcome when, as for instance in the State borders issue, claims are mutually opposed? Former rights will either be restored or not. Would it be left totally to the political process to decide? For what reasons would those rights that make up identity be restored? It would be a failure of international law to contain little normative guidance for such a situation.
State practice in the Baltic case suggests that a distinction exists between two levels of State continuity: status and rights. This is a departure from Krystyna Marek’s groundlaying proposition, the price for extending the fiction of continuity of status throughout a prolonged annexation period. Germany has recognized the identity of the Baltic States with the pre-World War II Baltic States, yet it has announced that it prefers not to reinforce pre-World War II bilateral treaties with those States.36 According to Professor Koskenniemi, there would then, in relations with those States, be no identity of the Baltic States with the pre-1940 republics at all.
At the same time, Germany has recognized the State continuity of the Baltic States with the pre-World War II Baltic republics, and not recognized those States with a birth certificate issued in 1991. This demonstrates that, in the practice of recognition, States have paid attention to something beyond rights and duties which can properly be called status. Its symbolic nature should not be dismissed. International law has always contained doctrinal elements which satisfy legitimate social needs for symbols—for example, when it recognizes satisfaction in the form of an apology as a consequence of State responsibility for internationally wrongful acts. The recognition of status beyond rights and duties does fulfill similar functions, at least the function of recognizing illegality. By recognizing status in the cases of restoration after illegal annexation, the most important right of all States—their right to existence—is recognized. In this function, ‘status’ perceived as something beyond concrete rights and duties is not necessarily a ‘tû-tû’—a legal concept devoid of any real meaning at all, as wittily caricatured by Alf Ross.37 Instead, status signifies claims and recognitions by States (that is, their peoples, or their governments, or their elites) proclaimed constitutional identities or ‘selves.’ States do serve and presumably will, at least in the foreseeable future, continue to serve for many people as mirrors of identity, as Brigitte Stern has suggested.38 It was thus, for example, with a certain determination that the Baltic States celebrated their 100th anniversary in 2018.
That, of course, would not mean that the relationship between status and rights could be abolished altogether in cases of restoration after illegal annexation. Otherwise, we would indeed have a ‘tû-tû’ situation, and the continuity of a restored State would lose almost any meaning beyond the symbolic. Recognition of State identity on an abstract level of status creates a presumption in favour of restoration of former rights. However, the longer and more pervasive the period of de facto non-existence of a since restored State, the more effect can be attributed to existing realities. It follows that restoration of rights and
Nevertheless, the proposition that the annexing State may not benefit from annexation must be upheld in international law. For instance, the annexing State’s refusal to recognize the basic principle of its responsibility for internationally wrongful acts committed during an illegal annexation constitutes a violation of international law. This is a fortiori clear with respect to international crimes committed during illegal annexation. Applied to the Soviet annexation of the Baltic republics, it cannot be maintained that the USSR was not legally responsible for the Soviet mass deportations of civilians, which constituted crimes against humanity.
This distinction between status and rights offers more flexibility in dealing with the special circumstances of each case of illegal annexation. For instance, in the case of Austria, its legal status during the period of occupation by Nazi Germany in 1938 and liberation by the Allied Powers in 1945 coexists with the recent establishment of the General Settlement Fund, reflecting a commitment to a self-critical scrutiny of the National Socialist past.42 Thus, a country which was illegally annexed in World War II has taken upon itself a certain responsibility for illegal acts committed during the period of annexation. In other words, legal status is not totally identical with rights and duties.
Several legal scholars have, upon analysing the case of the Baltic States, suggested splitting up the level of status and the level of rights in the State identity/continuity discussion.43 The Baltic States may have preserved their continuity, but this does not necessarily imply restitutio in integrum. And vice versa, the fact that restitutio in integrum was implemented with important reservations does not suggest that continuity must be denied. Of course, by
5 The Domestic Analogy of Restoration in the Baltic States: No restitutio in integrum
A brief analysis of the domestic aspects of State restoration already demonstrates that a purist application of the State continuity principle was also impossible in the domestic sphere. Just as it had become practically impossible and unreasonable to deny Soviet-era immigrants the right to stay in the Baltic States, the unconditional restoration of pre-1940 property rights could not occur without important exceptions and transition periods. Notwithstanding many confirmations of the principle of State continuity, its legal consequences remained a subject of political struggle.
In the Estonian parliamentary elections of 1992, the election campaign slogan of one of the winning political parties44 was: ‘Estonia will come back’ (Eesti tuleb tagasi). This slogan demonstrates quite vividly the eagerness of the Baltic peoples to undo the foreign-imposed Soviet period. However, from the very beginning, the claim for restoration was not undisputed within Baltic societies. In 1989/1991, the restorationists, coming from outside the local communist elite, competed for the sympathy of the electorate. They held a heated intellectual and political dispute with more moderate circles that took a more evolutionary rather than revolutionary (restorationist) view. For people who had made larger compromises in terms of the Soviet regime and a career in the Soviet system, it made less sense to undo the Soviet decades as mere occupation.
Even though the ‘restitutionists’ tended to prevail in this debate, it became increasingly clear that after fifty-one years of foreign domination, the Baltic States could not return exactly in the form in which they had existed before
The Baltic States applied a ‘pick-and-choose’ approach towards their pre- 1940 domestic legal—including constitutional—norms. Only Latvia reinstated its pre-World War II Constitution, while Estonia and Lithuania opted for completely new basic laws (which drew on the pre-World War II constitutions, but took a more modern and liberal approach with respect to crucial issues such as separation of powers and basic rights).45 Of other pre-World War II laws, the majority could not be reinforced automatically since they no longer corresponded to existing social, political and economic realities. Hence, the restored Baltic States temporarily continued with laws adopted by local legislative bodies during Soviet occupation, even when formally the former Soviet laws were transformed in each of the three republics.46
One of the most controversial—if central—issues has been restoration of pre-1940 property rights. All former communist countries in Central and Eastern Europe chose the path of (re-) privatisation of former communist era State properties.47 However, the crucial question of how to transfer State property into private ownership was resolved differently. One of the main dilemmas was whether to restore property to its former owners (or their heirs), or to give preferential treatment to those who had used this property—sometimes bona fide—during the communist regime. In the Baltic States, with several noteworthy exceptions, restoration of pre-communist property rights was adopted as a general principle.
In conclusion, such practices in the domestic sphere demonstrate that a pure or unconditional restitutio in integrum after an extended period of different social, economic and political realities was both undesirable and impossible. The changes that had taken place during Soviet rule could not be ignored. This domestic parallel may usefully be kept in mind for analysis of international aspects of State continuity. Unconditional restitutio in integrum and the total refusal, for instance, to extend citizenship rights in Estonia and in Latvia was not, although a legally pure solution, an acceptable option for the same reason that unconditional restoration of all pre-1940 property relations was impossible.
6 Conclusions
Just as non-recognition of illegal situations must take ‘human necessity’48 into account, the restoration of a legal order in an illegally annexed State cannot ignore changes occurring during annexation, or, for that matter—human necessity. Therefore, as the Baltic case demonstrates, the principle of ex injuria ius non oritur is balanced by the contrary principle ex factis oritur ius in the restoration process. The importance of the principle of ex factis oritur ius can partly be explained by the realist need to acknowledge political change. Application of normative standards is balanced by the circumstances created by power politics. Once a State has been annexed for as long as the Baltic republics were, the principle of restitutio in integrum in the fundamentalist sense often could not be applied. Recent State practice and the views presented in the literature demonstrate that a certain separation has occurred between status and the rights of a given restored State. State identity/continuity means not only identity of rights and duties, although claims—or absence of claims—by the restored State for the restoration of former legal rights remain important guidance for the review process, creating a presumption in favour of the restoration of legal relations. Therefore, fact that restitutio in integrum has not been unconditionally applied in the Baltic case does not yet challenge the basic
For some classical studies, see W. Wengler, Der Begriff des Politischen im internationalen Recht, Tübingen: J.C.B. Mohr, 1956; F.A. Boyle, World Politics and International Law, Durham: Duke University Press, 1985.
See e.g. M. Koskenniemi, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations and International Law’, pp. 17–34, in: M. Byers (ed.), The Role of Law in International Politics. Essays in International Relations and International Law, Oxford University Press, 2000.
See A.-M. Slaughter, ‘International Law and International Relations’, 285 RCADI 2000, p. 9 at 33 et seq. Cf. with S.V. Scott, ‘International Law as Ideology: Theorizing the Relationship between International Law and International Politics’, 5 EJIL 1994, pp. 313–325, and F.R. Tesón, ‘Realism and Kantianism in International Law’, 86 ASIL Proc. 1992, pp. 113–118 at 113.
H. Bull, The Anarchical Society. A Study of Order in World Politics, 2nd ed., 1995, pp 88–89.
H. Bull, The Anarchical Society. A Study of Order in World Politics, 2nd ed., 1995, pp. 87–88 and 103–104.
Machiavelli argued that a Prince, if he wants to be successful, must inevitably break the promises he has given. As small States would have little power to do that—not that small States are more moral ‘by nature’—Machiavellism for small States could then be the conviction that the big States tend to behave that way. See N. Machiavelli, Il principe, Chapter 18 (quoted from the German edition by Parkland: Köln, 2000.)
‘Stand up, demand justice’ is an allusion to an Estonian patriotic song.
What Jove is allowed, for a bull is not allowed.
TH. Ilves, Eesti välispoliitika minevik, olevik ja tulevik, aulaloeng 30. aprillil 1998 (The Past, Present and Future of Estonian Foreign Policy. Lecture in the Assembly Hall of Tartu University), Tartu: Tartu Ülikooli Kirjastus, 1998, p. 5 et seq. Translation from the Estonian by this author.
Estonian President Lennart Meri, when asked in an interview in 1998 for a comment on the successful nuclear tests by India and Pakistan, argued that ‘the nuclear bomb of small States is international law.’
A. Moishes, ‘Russia-Lithuania: Preserving Interaction’, p. 83.
A. Moshes, ‘Russia-Lithuania: Preserving Interaction’, Lithuanian For. Pol. Rev. 2000 No. 2(6), pp. 83–4.
Athenians to Melians in 416 Be, quoted from: Thucydides, The History of the Peloponnesian War, translated by Benjamin Jowett, 1st ed., London: Oxford University Press, 1881, p. 167.
See e.g. G. Ginsburgs, ‘The Territorial Question between the USSR and Japan. The Soviet Case and a Western Apercu’, in: 15 Korea and World Affairs 1991, pp. 259–278, V.V. Ermoshin, ‘The Right of Russia in respect to Southern Sakhalin and the Kurile Islands’, Russian YBIL 1993–1994, pp. 173–195 and V.V. Ermoshin, ‘On the Russian-Japanese Controversy Over the Status Quo of Southern Sakhalin and the Kurile Islands’, 1 Moscow JIL 1995, No. 4, pp. 63–74. For the diplomatic background, see also W. Mendl, ‘Japan and the Soviet Union: Towards a Deal?’, 47 World Today 1991 (November), p. 196 et seq.
E.H. Carr, op. cit., p. 194 and 199.
Shaw, op. cit., p. 132. Shaw strongly advocates the application of the uti possidetis principle, writing: ‘The primary justification of the principle of uti possidetis (…), has been to seek to minimize threats to peace and security, whether they be internal, regional or international. (…) Precisely the same impulse lies behind the recognition of the principle outside the purely colonial context where the same dangers resulting from the break-up of existing states are evident. (…) That uti possidetis governs colonial situations is evident, that it extends to all cases of transition to independence has, it is believed, become clear.’ See M.N. Shaw, Peoples, Territory… (1997), p. 503.
See also J. Salmon, ‘Pays baltes’, 24 RBDI 1991, p. 267.
For a treatment of the international legal aspects of peaceful change, see D. Murswiek, Peaceful Change. Ein Völkerrechtsprinzip?, Köln, 1998. For an international relations analysis, see A.M. Kacowicz, Peaceful Territorial Change, University of South Carolina Press, 1994.
W. Grewe, ‘Peaceful Change’, in: EPIL III (1997), p. 965. See also Murswiek, p. 15.
W. Grewe, ibid., at 967.
W. Grewe, ibid., p. 967.
See generally on territorial disputes and change: N. Hill, Claims to Territory in International Law and Relations, Oxford University Press: London, 1945; Б. Клименко, Государственная территория. Вопросы теории и nрактики международного права, Москва: Международные Отношения, 1974, p. 125 et seq; S.P. Sharma, Тerritorial Acquisition, Disputes and International Law, The Hague: Martinus Nijhoff Publishers, 1997.
E.H. Carr, The Twenty Years’ Crisis. An Introduction to the Study of International Relations, Macmillan: London, 2nd ed. 1946, p. 209.
See for discussion and differing views: C. Tomuschat, Die staatliche Einheit Deutschlands: staats- und völkerrechtliche Aspekte, Bonn: Friedrich-Ebert-Stiftung, 1990, p. 25 and D. Blumenwitz, What is Germany?, 1989, p. 69–70. See also H. Bethge, ‚Das Staatsgebiet des wiedervereinigten Deutschlands‘, in: Josef Isensee, Paul Kirchhof (eds.) Handbuch des Staatsrechts, Band VIII, Heidelberg, 1995, pp. 603–620.
See also for this D. Blumenwitz, ‘ex factis ius oritur—‘ex iniuria iu non oritur‘, in: D. Blumenwitz and B. Meissner (eds.) Staatliche und nationale Einheit Deutschlands—ihre Effektivität, Köln: Verlag Wissenschaft und Politik, 1984, pp. 43–56 at 48.
One attempt to include realist points in the legal discussion has been made by A. Carty, The Decay of International Law? A Reappraisal of the Limits of Legal Imagination in International Affairs, Manchester UP, 1986. Carty criticizes that ‘(a)n international lawyer will rely on the explicit, conventional prohibition of the use of force since the 1920s as proof of the completeness of his legal system. (…) The only way forward is for States to agree to changes in [the] status quo. Yet the basic flaw in legal theory is that States define the threats which they face, not in terms of their territorial boundaries, but in the light of their idea of themselves as States. (…) States, organised on the basis of ideologies, feel acutely threatened by one another (…)’ See pp. 7–8. However, realist presumptions make this legal author conclude that it is ‘…necessary for doctrine to accept a subjective, personal and relative role for itself, where the authority it enjoys rests upon the quality of its argument rather than upon a pseudo-objective professionalism. Then the international lawyer may be proud that he proves able to present literature to those active in international society. The Oxford English Dictionary defines literature as “writings that are valued for their beauty of form”. Could international lawyers keep better company?’ See p. 131.
W.G. Grewe, ‘Außenpolitik und Völkerrecht in der Praxis’, in: 36 ADV 1998, p. 3. “A small state is generally unable to enforce its legal rights vis-à-vis a great power. It is not difficult for the great powers to find ways, means and arguments to reject the legal claims of smaller states. They are not subject to compulsory jurisdiction or to the compulsory enforcement of a judgment.”
G. Arangio-Ruiz, ‚L‘État dans le sens…‘, 1975, p. 307. “First of all, the right of peoples cannot (…) create a person where in fact it does not have one. To be able to pursue such a goal the right of peoples would have to “control”—that is, to reach—the interindividual environment within which organization of the person is to be realized. We have found that this is not the case. (…) maintaining the life of a person who has gone would have neither meaning nor practical utility comparable to the meaning and usefulness of the apparently analogous phenomenon of domestic law (legal identity of the legal person). International rules pursuing such aims would have neither executors nor beneficiaries.”
W. Friedmann, The Changing Structure of International Law, London: Stevens & Sons, 1964, p. 50.
See e.g. S. Voos, Die Schule von New Haven: Darstellung und Kritik einer amerikanischen Völkerrechtslehre, Berlin: Duncker & Humblot, 2000.
M. Koskenniemi, From Apology to Utopia…, p. 50.
М. Koskenniemi, ‘The Politics of lnternational Law’, 1 EJIL 1990, р. 7.
J. Derrida, Positions, Alan Bass trans., Chicago: University of Chicago Press, 1972, p. 41.
M. Koskenniemi, ‘The Present State of Research’, Hague Academy, 1996, p. 154.
Koskenniemi, ‘The Present State of Research’, p. 156 and 157.
A similar position was taken by Japan, Italy and China. Possibly, it is also due to fundamental political changes that have taken place in those countries, i.e. not only in the Baltic republics.
A. Ross, ‘Tû-tû’, 70 Harvard Law Review 1956/57, pp. 812–825.
See B. Stern, ‘How to Regulate Globalization?’, in: M. Byers (ed.) The Role of Law in International Politics, Oxford UP, 2000, pp. 247–268 at 268.
P. Escarameia, Formation of Concepts in International Law. Subsumption under Self-determination in the Case of East Timor, Lissabon, 1993, p. 106.
P. Escarameia, ibid., p. 161.
M.C.R. Craven, ‘The Problem of State Succession ‘and the Identity of States under International Law’, 9 EJIL 1998, pp. 142–162 at 160. (‘ “Identity” assumes that individual states, whilst being members of a particular class of social or legal entities, also possess certain distinguishing features that differentiate one from another.’) Similar ideas have been expressed by James Leslie Brierly: ‘In a sense in which no individual is, every state is unique. (…) Its history and traditions, its geographical position in the world and the physical configuration of its territory, its economic development, its interests, political, strategic, cultural, and so on—all these things are particular to each individual state and are not the same for all.’ J.L. Brierly, The Outlook for International Law, Oxford: Clarendon Press, 1945, p. 41.
See US-Austria: Joint Statement and Exchange of Notes between the United States and Austria concerning the Establishment of the General Settlement Fund for Nazi-Era and World War II Claims, January 2001, 40 ILM 565 (2001), pp. 565–566.
See e.g. M. Lehto, ‘Succession of States in the Former Soviet Union. Arrangements Concerning the Bilateral Treaties of Finland and the USSR’, in: 4 FYBIL 1993, pp. 194–228 at 208; M.N. Shaw, ‘State Succession Revisited’, in: 5 Finnish YBIL 1994, pp. 34–98 at 58 (the claim of State identity and its recognition is one thing, but ‘[t] he recognition of the consequences of such restoration is a different one.’) T. Annus, Riigiõigus (Constitutional Law), Tallinn: Juura, 2001, p. 23.
The Estonian National Independence Party (Eesti Rahvusliku Sõltumatuse Partei).
For an analysis in English, see C. Taube, Constitutionalism in Estonia, Latvia and Lithuania. A Study in Comparative Constitutional Law, Uppsala: lustus Förlag, 2001, p. 46 et seq.
Cf. U. Ziehen (1962) who explains the rational behaviour in such circumstances of Annexionsbesetzung. ‘Obwohl diese Massnahmen rechtswidrig sind, da sie sowohl gegen das volkerrechtliche Annexionsverbot verstossen als auch in die Hoheitsrechte eines anderen Staates ohne Rechtsgrund eingreifen, nimmt man also ihre Folgen im beschranktem Umfang hin, indem man auch nach der Wiedereinsetzung des verletzten Staates bestimmte—von der Okkupationsmacht erlassene—Vorschriften, Massnahmen und Entscheidungen als rechtwirkam betrachtet. Entscheidend dafur ist die Überzeugung, dass es irreal undpraktisch undurchführbar wäre, die von dem Rechtsbrecher in dem besetzten Gebiet effektiv errichtete Herrs chaftsordnung, den tatsächlichen Machtbestand, als nicht existent zu betrachten…’ pp. 95–96.
See generally C. Tomuschat (ed.), Eigentum im Umbruch. Restitution, Privatisierung und Nutzungskonflikte im Europa der Gegenwart, Berlin: Berlin Verlag Arno Spitz und Verlag Österreich, 1996. For a critical view of the economic effects of the ‘restorationist’ ideology on the Estonian agriculture, see I. Alanen, Eesti põllumajanduspoliitika ja võitlus kollektiivmajandite saatuse pärast (Estonian Agricultural Policy and the Fight for the Fate of the Collective Farms), Akadeemia No. 11 2000, pp. 2259–2300.
Namibia Opinion, ICJ Reports 1971, p. 16 (56 para. 126).