A new border treaty will not, contrary to expectations, change our relations with our eastern neighbour.
I would like to begin with a claim that is one of the fundamental truths of political science. That is, states are not created by legal acts but as a result of the actions of public authorities. This is how the Estonian state was created. In essence, it was victory in the War of Independence that laid the base for it. In the Tartu Peace Treaty that ended the War of Independence, Soviet Russia was the first to recognise Estonia in law. This is why the Tartu Peace Treaty has been described as Estonia’s birth certificate. The press usually attributes this metaphor to Lennart Meri; actually, Meri used the image of a birth certificate to refer not to the Treaty of Tartu but to Estonia’s Declaration of Independence. The first time the Tartu treaty was called “Estonia’s birth certificate” was in an article titled “Estonian-Russian Border Negotiations” in the daily Eesti Päevaleht on 14–15 December 1995, a time when it had become clear that the Estonian government would step back from the political spirit of the Singing Revolution and rescind the decision of the democratically elected Estonian Supreme Council, which declared the Tartu treaty valid and confirmed the legality of the border line determined therein. The image of a birth certificate indeed fits the peace treaty better: if Estonia had lost the War of Independence, there would be no Republic of Estonia and no birth certificate. It is Russia’s signature on the Tartu Peace Treaty that effectively makes it Estonia’s birth certificate.
As with its creation, the restoration of Estonia also occurred as a result of public authority, that is, tens and hundreds of thousands of people stepping out to defend their inalienable rights—this time not in an armed conflict but by peaceful demonstration. Soviet bureaucratic power eventually capitulated in the face of the people’s public proclamations. Only this way could the Estonian Supreme Council take a legal decision to restore the Estonian state.
Politically, Estonia was established as a democratic republic in which the highest power belonged to the people. The German political and legal scientist Georg Jellinek has said that the source of a people’s power is its will—not the physical but the legal will, formalised according to legal principles. The formal expression of a people’s legal will is the constitution. This is why a constitution can be considered the political declaration of a people creating a state.
Such a declaration is fully valid only in its verbatim form. All other legislation is based on the constitution and must be in accordance with it. As the Estonian constitution states that “the land border of Estonia is determined by the Tartu Peace Treaty of 2 February 1920 and by other international border agreements” (Section 122), only an illiterate person or political demagogue could claim that the new border treaty with Russia is in accordance with the current constitution. If we deem the logic of this claim to be correct, we could also say that even though Estonian law prohibits the death penalty, there is no legal obstacle to handing down the death penalty if a judge believes the crime deserves such a punishment.
True, subsection 121 (1) of the constitution also states that “the Riigikogu ratifies and denounces treaties of the Republic of Estonia which modify the state border”. Entering into a new border treaty is therefore apparently still possible. Nonetheless, this section does not void the constitutional provision according to which the land border between Estonia and Russia has been determined by the Tartu Peace Treaty. It could be said that there is a contradiction in the constitution. However, the constitution is valid as a whole, despite any real or apparent contradictions in it. Besides, this contradiction should be considered apparent. After all, in addition to Russia, Estonia has a land border and corresponding treaty with Latvia. As Section 122 shows, the constitution refers to borders and treaties more generally, without naming a specific state or border treaty. This is why any new border treaties are possible only if they do not go against the constitution. The border treaty with Latvia is not clearly a part of the constitution.
The ratification or denunciation of such treaties is within the competence of the Riigikogu. However, the Tartu Peace Treaty and the Estonian-Russian border determined by it are clearly (expressis verbis) an integral part of the constitution. Changing this border is not the usual amendment of an international treaty, as the Estonian government tries to present it, but an amendment to the Constitution of the Republic of Estonia. Since the Estonian constitution was approved by a referendum, it would be natural that the new border treaty with Russia should also be put to a referendum vote. Of course, there are other ways to amend the constitution, but taking into account the importance of the topic and the government’s and the Riigikogu’s previous attitude towards the border determined by the Tartu Peace Treaty, a referendum would be the fairest way to resolve this problem. To answer the demagogues who will probably hurry to point out Section 106 of the constitution, according to which issues regarding the ratification and denunciation of international treaties may not be submitted to a referendum, I repeat: for Estonia, the question is essentially not about entering into a border treaty, but amending Estonia’s constitution in Russia’s favour.
A border specified under a treaty can be considered part of normal and good neighbourly relations between states. However, good neighbourly and mutually beneficial relations do not derive naturally from the existence of a border treaty. Not entering into a border treaty might not worsen interstate relations, just as entering into one might not improve them. In an interview with the German daily Bild, the president of Russia, Vladimir Putin, has said that, for him, state borders and territories did not matter, and that people were important.1 And these are not just words. This is official Russian policy, and had mainly developed before the current president took office. In the light of such an understanding, what is the point of signing a border treaty? What kind of guarantee would a non-constitutional border treaty give to Estonia’s security, and how would it improve relations with Russia? Despite the fact that the new border was agreed between governments several years ago and the corresponding treaty is awaiting ratification (after another request for review by Russia), Russia has shown itself to have no respect for this agreement. Repeated violations of the air border by Russian military aircraft have forced the Estonian government to ask for NATO planes to be stationed in Estonia to guarantee the protection of its air border. This is not to mention an armed violation of a technically agreed border and the abduction of an Estonian Internal Security Service official from Estonian territory. Would Russia show greater respect for the Estonian border following signature of a border treaty? Only the governments know what positive input this treaty is supposed to bring to Estonian-Russian relations—especially since the current temporary border line essentially functions as a border.
In the light of the foregoing, it is unclear why Estonian governments have consistently looked past the treaty that formed the basis of Estonian-Russian relations and was signed on 12 January 1991. With that treaty, Russia acknowledged the sovereignty of the Republic of Estonia, as well as the Supreme Council’s decisions on the border specified in the Tartu Peace Treaty and the state’s right to territorial integrity. According to the treaty, only the border regime was subject to further clarification.
Honesty and admitting the truth form the basis of normal relations between countries. An even better way of putting it is that “honesty is the best policy”. Russian policy could be considered honest and truthful if the country would at least imply that it accepts that (1) the Soviet Union occupied and annexed Estonia in 1940 and thereby violated the Tartu Peace Treaty as well as other voluntary international contractual obligations, (2) Soviet policy in Estonia clearly contained elements of Russification and genocide, and (3) Soviet colonial policy caused complicated social, economic and environmental problems in Estonia—and so on. I see no admission of that in Russian official policy. Instead, Russia says that Estonia joined the USSR voluntarily, that the Tartu Peace Treaty is of historical value only, that Estonian policy was fascist upon the restoration of nationality and statehood, etc.
In this context, a new border treaty is just another argument in favour of Russia. Claiming that the Tartu Peace Treaty continues to be valid despite the new border treaty is mere self-justification. Even during the Stalinist regime, the Tartu Peace Treaty could be considered valid and the Republic of Estonia alive, and both could be secretly cherished at home. It was just that this could not be proclaimed publicly. With a ratified border treaty, we give Russia the opportunity to demand that Estonia remove Section 122 from the constitution, as it contradicts the border treaty. According to the constitution, when laws or other legislation of Estonia are in conflict with an international treaty, provisions of the international treaty shall apply. The constitution is an internal law. By entering into a border treaty with Russia, therefore, Estonia gives it the right to demand an amendment to Estonia’s constitution, the fundamental document of our public order.
We cannot build sustainable, good interstate relationships on injustice, even if it seems that the parties have accepted this state of affairs. Fifty years of Soviet occupation did not erase national independence from the Estonian memory and values. I am fairly certain that a border treaty dictated by Russia will remain a constant problem in relations between the two countries. Generation will follow generation and they will still have to return to the border issue, just as our generation came back to the issue of Estonia’s occupation and annexation. However, Estonia’s political elite does not understand this because of its limited views and interests; Russia in its pride and power as a great state may not care, either. It also cannot be demanded that Russia should place value on normal relations with Estonia. However, the duty of Estonia’s diplomats and politicians should be to try to eliminate everything that prevents decent relations. Ignoring the historical truth and the constitution, and making concessions in view of Russia’s unfair demands, does not help.
In conclusion, I would like to say the following. Politics (like the economy) is a practical social sphere. Research or logic has no notable influence on political decisions when it is not backed by public authority. There is no reason to hope that any discussions, no matter how well-argued they may be, would influence the decisions of practical politics. However, if public authority does not follow the constitution—i.e. the legal will of the people—in its actions, it is a sign that we are not dealing with democratic policy but with some misshapen form of it, a pseudo or facade democracy. In this case, in the context of political science, the ruling political regime can be called an oligarchy hidden behind the facade of political elitism.
Politics are mostly driven by interests, not research or logic. This is why it would be educational to compare the current case (the new border treaty) to the way the Tartu Peace Treaty—and the border specified in it—came to be.
It is known that Russia initially wanted to draw the border from Kunda to the mouth of the Rannapungerja River and then south over Räpina and Võõpsu to Latvian territory. To back up that claim, forces outnumbering Estonian troops by two or three to one were brought to the Narva front to break the resistance of Estonian fighters who had fought for a year without rest. Despite ferocious attacks on the front (the results of which were unpredictable), the Estonian delegation led by Jaan Poska made no concessions to Russia’s demands in Tartu. In holding negotiations with a power that is, at least for now, democratic, the governments and diplomats of the newly independent Estonia have acted like political clerks, not like politicians standing up for the legal rights and interests of Estonia and its citizens. Clerks are, first and foremost, interested in keeping their jobs. However, they were not under military threat, the negotiators could use irrefutable historical-legal arguments plus the treaty on Estonian-Russian relations (in which the Supreme Council’s decisions on the Tartu Peace Treaty and border, as well as the territorial integrity principle, were acknowledged), and they were supported by a favourable international atmosphere. The issue is not even about the compromise—Estonia essentially capitulated when faced with Russia’s great allures and demagogic arguments. Even though the details of the negotiations are not public, we could say (based on what has appeared in the media) that the professional standard of Estonian diplomacy and politics during the negotiations was no better than that of political clerks. This may not mean that a more principled policy could have led to a better result, even though there are some signs of this. Nevertheless, it is clear that officials have not even endeavoured to try and achieve this goal.
This article is based on a presentation given at the National Library last year.
1 “For me, it is not borders that matter”, Bild, 13 February 2017. www.bild.de/politik/ausland/wladimir-putin/russian…
This article was published in ICDS Diplomaatia magazine.