May 12, 2009

On Occupation and Annexation; On State Succession and Continuity

Books by good Estonian lawyers are enjoyable even in English. This applies fully to Lauri Mälksoo’s book which recently became available in Estonian and in Russian courtesy of the Estonian Ministry of Justice, the Kistler-Ritso Foundation and Tartu University Press. This is most welcome, especially in view of the fact that in addition to being written in a foreign language, the book had been rather inaccessible due to its hefty price (133 euros), as befits a publication of a major science publisher.

Books by good Estonian lawyers are enjoyable even in English. This applies fully to Lauri Mälksoo’s book which recently became available in Estonian and in Russian courtesy of the Estonian Ministry of Justice, the Kistler-Ritso Foundation and Tartu University Press. This is most welcome, especially in view of the fact that in addition to being written in a foreign language, the book had been rather inaccessible due to its hefty price (133 euros), as befits a publication of a major science publisher.


Lauri Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the USSR: A Study of the Tension between Normativity and Power in International Law, The Erik Castrén Institute of International Law and Human Rights, vol. 5, Martti Koskenniemi (gen. ed.), Leiden: Martinus Nijhoff Publishers, 2003. 
Lauri Mälksoo, Nõukogude anneksioon ja riigi järjepidevus: Eesti, Läti ja Leedu staatus rahvusvahelises õiguses 1940. a – 1991. a ja pärast 1991. a. Uurimus pingest normatiivsuse ja võimu vahel rahvusvahelises õiguses, Tartu: Tartu Ülikooli Kirjastus, 2005. 
Лаури Мялксоо, Советская аннексия и государственный континуитет: международно-правовой статус Эстонии, Латвии и Литвы в 1940-1991 гг. и после 1991 г.: исследование конфликта между нормативностью и силой в международном праве, Тарту: Tartu Ülikooli Kirjastus, 2005. 
Books by good Estonian lawyers are enjoyable even in English. This applies fully to Lauri Mälksoo’s book which recently became available in Estonian and in Russian courtesy of the Estonian Ministry of Justice, the Kistler-Ritso Foundation and Tartu University Press. This is most welcome, especially in view of the fact that in addition to being written in a foreign language, the book had been rather inaccessible due to its hefty price (133 euros), as befits a publication of a major science publisher.
Mälksoo’s name should not be unknown to the Estonian public: he has acted as an expert on international law on several occasions. The 30-year-old holder of a bachelor’s degree from the University of Tartu, a master’s degree from Georgetown University in the USA and a doctoral degree from Humboldt University of Berlin has achieved a lot: in addition to this monograph, he has published about ten scientific articles in various international law journals (published by Florida University, by Leiden University and in Austria), in Der Staat as well as in Estonian magazines (Akadeemia and Juridica).
Mälksoo’s book is about Estonia’s, Latvia’s and Lithuania’s annexation and occupation and about the way various countries and international law experts reacted to this process. Many might remember the Latin phrases ex tunc and restitutio in integrum that were widely abused at the end of the 1980s and the beginning of the 1990s. Mälksoo does not let us forget them, as he explains the cases of Estonia, Latvia and Lithuania by using two principles: ex injuria ius non oritur (‘illegal acts do not create law’) and ex factis oritur ius (‘facts have a tendency to become law’). The book gives an overview of what the occupation of Estonia, Latvia and Lithuania has contributed to international law. It also describes analogous cases of occupation from the past and present: from Poland’s and Algeria’s state continuity in the 19th and the 20th centuries to the short-term annexation of Kuwait in 1990 and the ending of the occupation of East Timor in 1999. The book has more than 300 pages and is divided into three parts and seven chapters. The list of references is several dozens of pages long. The author has dedicated the Estonian version of the book to Boris Meissner and Dietrich Loeber, two Baltic German legal scholars who died at the beginning of the 21st century and had devoted their lives to demonstrating scientifically that the annexation of Estonia, Latvia and Lithuania had been illegal.
Occupation and annexation in international law
In order to provide the reader with some background knowledge, Mälksoo describes the international conventions that had been adopted before the beginning of World War II and that were supposed to safeguard state sovereignty. He also provides an overview of the annexation of Austria, Czechoslovakia, Ethiopia and some other countries before and during the war. The year 1625, when Hugo Grotius’s book De iure belli ac pacis (The Law of War and Peace) was published, is considered to be the starting point of contemporary international law, although until the beginning of the 21st century nothing actually prevented one state from attacking another. Negotiations were used to cement a post-conflict situation or, if you prefer, a new balance of power. The biggest peace congresses were the Peace of Westphalia after the Thirty Years’ War and the Congress of Vienna after Napoleon’s downfall. “War is a continuation of politics by other means” – Carl von Clausewitz captured the zeitgeist perfectly. In 1815, the Congress of Vienna sanctioned the liquidation of the state of Poland and established Austria-Hungary’s, Prussia’s (later the German Empire’s) and Russia’s dominant roles on the European continent.
The most important convention negotiated in 1899 and in 1907 during the two peace conferences at The Hague was the fourth convention, The Laws and Customs of War on Land, which set out in detail the rights and obligations of belligerents. War as such was not prohibited by this convention. “The purpose of the right to go to war is not to prevent wars, but to alleviate their consequences” – these are the words that Jaan Kross had Friedrich Martens say in his book Professor Martens’ Departure. This book was about the man from Pärnu, Estonia, who represented Russia at the conference.
The end of World War I brought an upsurge in states declaring their right to self-determination. Approximately ten new states emerged from the ruins of the disintegrated Russian, German and Austro-Hungarian Empires. Some of these states, including Estonia, Latvia and Lithuania, managed to defend their independence until they became members of the League of Nations; some, for example, Georgia and Ukraine, did not (Mälksoo discusses the issue of Georgia’s state continuity). War as an instrument of national policy was renounced by the Kellogg-Briand Pact, which entered into force in 1929. Mälksoo writes that after the almost universal adoption of the Kellogg-Briand Pact “the illegality of forcible annexations […] has been a presumption in international law”. Over the next decade, however, Hitler’s Germany and Stalin’s Russia had grown strong enough to pursue their aims. They ignored international law because they were going to build a new Europe and were preparing for a world revolution. In 1933, Germany withdrew from the League of Nations; in 1939, the Soviet Union was expelled from the organisation for having attacked Finland. By the end of the next year, Austria’s fate of annexation had also befallen Estonia, Latvia, Lithuania, Poland and Czechoslovakia. International law, international treaties and the League of Nations could not prevent these states from being destroyed by their stronger neighbours.
Mälksoo provides an in-depth analysis of the international and legal context of the annexation of the Baltic states. He claims that although the Soviet Union’s threat to use force (rather than actual military activity) led to the occupation of the Baltic states, the term occupatio quasi bellica, which is used in the case of Austria’s annexation, applied to the Baltic states as well. The then framework of customary international law included a rule that stated that military occupation as such was temporary: “Military occupation comes to its end either with the legal incorporation of the occupied State’s territory (e.g. qua peace treaty), or with the restoration of the legitimate sovereign’s power.” (pp. 15-16 in the original/p. 41 in the Estonian version). This is why the Soviet Union did not want to declare a state of war with the Baltic states. It was easy to do so after the conclusion of the non-aggression treaty with Germany in 1939 and the beginning of World War II – Estonia, Latvia and Lithuania had no hope of help coming from the outside world.
For 50 years, Soviet propaganda diverted the public’s and researchers’ attention from this aspect of the annexation of the Baltic states – from the Soviet Union’s threat to use military force and from the above interpretation of the term ‘military occupation’. Today, there is almost no information about the members, commanders and the chain of command of the forces that occupied Estonia, Latvia and Lithuania, while dozens of researchers have spent countless hours describing every single person who participated in the so-called mass demonstration that was held on June 21, 1940, four days after the beginning of the occupation. But, due to the urgency of the situation, Soviet leaders could not carry out the annexation of the Baltic states without making some mistakes of judgement – having the three states with three distinct constitutional orders elect their independent ‘parliaments’ on the same weekend and convening the first sessions of these parliaments at the same time are just two examples of their false moves.
According to Mälksoo, the more conservative researchers in international law maintain that before the UN Charter entered into force, customary international law did not prohibit the threat of military force, although the use of military force itself had been banned. However, Mälksoo demonstrates that in the Baltic states the Soviet Union acted in contravention with the peace treaties that had been concluded with these states – these treaties had recognised “the legally binding force of the principle of self-determination of peoples” – and broke other international agreements as well as the non-aggression treaties that were concluded later. Mälksoo concludes that “the crucial element in the case of the Baltic States was the illegality of the annexation, based upon the illegality of the use or threat of military force. […] However, the right of the Baltic peoples to self-determination, which the USSR had recognized in the Peace Treaties of 1920, further confirms the illegality of the annexation.” (p. 304/pp. 286-287).
Citizenship, state borders and compensation for damages
In the second part of the book, Mälksoo describes the restoration of Estonia’s, Latvia’s and Lithuania’s independence and takes a closer look at Estonia’s and Latvia’s policies on citizenship. He shows that although these have sometimes been misunderstood in the international arena, they have nonetheless been legal and recognised by other states. As is known, the author is a lawyer who uses the data and statements presented by historians. At times, he has relied too much on their accuracy. For example, assuming that Lithuania’s more lenient policy on citizenship was the reason why the proportion of Russians in the overall population was smaller in Lithuania, he writes: “Migration into Lithuania from the USSR was less drastic, since the local Communist Party included more Lithuanian ‘nationalist’ members who managed to resist settlements plans proposed by Moscow.” (p. 220/p. 214). Well, this is partially true. However, Mälksoo emphasises the role of interpersonal relationships – which could even be treated as a self-justification on the part of Lithuanian Communists – and ignores the strategic and economic considerations that played a much more significant role in the decision-making process on migration issues.
The author devotes a whole chapter to the border disputes between Estonia/Latvia and Russia. This is one of the few parts of the book that has been up-dated in the Estonian version, compared with the English original. Namely, the latest developments in the Estonian-Russian border saga have been included in the Estonian version (pp. 233-234). Estonia’s border with Russia in South Eastern Estonia and Latvia’s border with Russia in North Eastern Latvia were redrawn at the same time – in August 1944. Mälksoo draws our attention to the international context of the timing of this decision: the general outcome of the war was still under question and “[t]he Soviet leadership might have been afraid that its allies would demand the application of the principles of the Atlantic Charter with respect to the Baltic States.” (pp. 238-239/pp. 230-231). But why were those godforsaken places so important that they had to be legally annexed by Russia only two weeks after being conquered? The answer probably lies in the strategy of land warfare: the territory that ranges from the south-west of Pskov to the north of Daugavpils forms a good base for attacks on Leningrad (and for attacks from Leningrad in the opposite direction). However, we cannot be certain of this until we have seen a spravka, a written note or a memo, on the basis of which Stalin and his cohorts made the decision to change the border.
The third major issue that the second chapter deals with is the legal aspects of paying compensation for damages incurred. Mälksoo uses a quote from Ants Piip to sum it all up: “[…] in the solution of international delicts a great role is played by the factual relationship of the parties. If political and economic relations are good, even the most serious offence finds an easy solution. When the contrary is the case, even the smallest misunderstanding can be a pretext for major conflict.” (p. 263/p. 250).
In conclusion
Once again, I must pay tribute to the author. He has managed to turn a legal topic, which is quite dull, into a fascinating and informative read through the use of a wide selection of quotes and examples from history, such as Arnold Green’s comments at the General Assembly of the UN in 1962 (pp. 138-139/p. 146) or a remark by Natalya Zakharova, illustrating the Soviet attitude towards international law: “[…] the denial of the right of a state to repudiate international treaties following social revolutions is a characteristic feature of bourgeois science.” (p. 261/p. 249). Some minor inaccuracies are, I expect, unavoidable: the author claims that the Finnish Winter War started on December 1 and that August Rei established the Estonian government-in-exile in Oslo in 1949 (however, he corrects this mistake after a few pages). The Russian Empire is consistently referred to as ‘Tsarist Russia’, which is fine in English, but in Estonian the translator has made a mistake and should have used a better term than ‘Vene Tsaaririik’. In addition, there seems to be no way of telling why some longer quotes appear in the main body of the text and some in footnotes and why some quotes have been translated and some have not. It would be hard for the uninitiated reader to decipher all the common expressions in Latin, French and other languages, the comprehensibility of which both the author and the translator have overestimated. But, in the end, this is a monograph, not a bestseller.
I recommend Mälksoo’s book to all the people who tackle the issue of Estonia’s occupation and annexation – and there are many who do, from diplomats to history teachers – and especially to those who sometimes comment in public on the issue. Moreover, it should be a manual for the members of respective parliamentary commissions and for ministry officials, so that they would gain the obvious advantage of being familiar with the broader historical context.

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