Chapter 4 The ‘Occupation’ of the Baltic States (1940–1991)?

In: Illegal Annexation and State Continuity
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Lauri Mälksoo
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1 The Baltic Thesis of Soviet Occupation (1940–1941, 1944–1991)

Today’s Baltic States have claimed they were occupied by the USSR from 1940–1941, by Germany from 1941–1944, and again by the USSR from 1944–1990/1991. For instance, on March 30, 1990, the Supreme Soviet of the Estonian SSR in its Resolution on the State Status of Estonia declared:

The Supreme Soviet of the Estonian SSR asserts that the occupation of the Republic of Estonia by the Soviet Union on 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.1

In 1994, the Estonian Parliament, the Riigikogu, adopted a declaration calling on the States of the world to pressure the government of the Russian Federation to change its view according to which the Republic of Estonia was not occupied by the USSR and the Republic of Estonia was created by secession from the USSR in 1991.2

In a decision rendered on December 21, 1994, the Supreme Court of Estonia decided that the occupation of the Republic of Estonia in 1940 had been illegal and that hence the military forces of the USSR had never acquired property rights to Estonian soil and buildings.3

On August 22, 1996, the Latvian Parliament, or Saeima, adopted a ‘Declaration on the Occupation of Latvia’4 in which it expressed Latvia’s concern over Russia’s continued refusal to recognize that the Soviet Union had occupied Latvia (‘the occupation that lasted half a century’). At the end of the declaration, the Latvian Parliament requested the community of States, as well as international organizations, to recognize the fact that Latvia was occupied.5

2 Reception of the Baltic Thesis of Soviet ‘Occupation’

During the Cold War, the USA repeatedly referred to the notion of occupation in the Baltic case. For example, the Kersten Committee of the US House of Representatives spoke in 1954 of ‘the continued military and political occupation of Lithuania, Latvia and Estonia.’6 On July 26, 1983, on the sixty-first anniversary of the first declaration of US non-recognition policy (the Stimson declaration), President Reagan declared that by the continued occupation of the Baltic States, the USSR was violating international law.7 US Ambassador Jeane J. Kirkpatrick delivered to UN Secretary-General Javier Pérez de Cuellar the text of the Reagan statement at the UN.8 Pursuant to the US Defense Department’s authorization for 1983, the funds appropriated could not be used ‘to prepare, purchase or produce any map ‘showing the USSR which would not include the designation ‘Soviet Occupied’ under Estonia, Latvia, and Lithuania.’9

Support for the ‘occupation’ thesis was reconfirmed by the USA subsequent to restoration of the independence of the Baltic States. The US Congress declared in a Resolution of October 10, 1998 that ‘this illegal and forcible occupation was never recognized by the US.’10

Similar language was used by European institutions. On September 29, 1960 the Assembly of the Council of Europe adopted a Resolution on the Baltic republics in which the latter were considered to be under military occupation.11 Similar concepts were used in the Resolution On the Situation in the Baltic States, adopted by the European Parliament on January 13, 1983.12 Furthermore, a non-governmental tribunal of international jurists that called itself The Baltic Tribunal in Copenhagen declared on July 26, 1985, inter alia that Estonia, Latvia and Lithuania were occupied.’13 Generally, the Western States which did not recognize Soviet annexation of the Baltic States refused to call it simply an annexation, but used qualifying terms such as ‘illegal annexation.’ The Estonian lawyer Enn Sarv suggests that the very non-recognition of Soviet annexation by Western governments automatically implies that (at least for non-recognizing countries), the Soviet presence in the Baltics can only be characterized as a continuing occupation.14 Thus, it has been argued that many Western countries shared the view that the Baltic republics continued to be ‘occupied’ territories because of the illegality of annexation in 1940.15

At the same time, until restoration of the independence of the Baltic republics in 1991, the main international governmental organization, the UN, did not adopt resolutions condemning the ‘occupation’ of the (annexed) Baltic States, in contrast to resolutions, regularly adopted regarding the territories occupied by Israel, in Northern Cyprus, and so on. The Security Council would not have expressed a view on this topic, not least because of the veto power of the Soviet Union.

Consequently, reception of the thesis that the Baltic States were under military occupation from 1940–1991 has been somewhat cautious in the legal literature. It is not uncommon for authors discussing the legal status of the Baltic States during the Soviet period to distance themselves from the occupation theory, by qualifying the reference to occupation theory in quotation marks (the Soviet ‘occupation.’)16 Furthermore, a number of Russian authors emphatically rejected the Baltic occupation theory. The international lawyer Stanislav Chernichenko emphasized: ‘The term ‘occupation’, however, cannot be applied to the situation that took shape in the Baltic states after their accession to the USSR, even if one acknowledges that they were forcibly joined to the USSR (annexed by it). The exception is only the period of German occupation.’17

The difference between occupation and no occupation is not a terminological nicety. It is a crucial element in the legal appraisal of Soviet rule in Estonia, Latvia and Lithuania. Take, for instance, the Soviet mass deportations of 1949. Was it a violation of international law or not? We are curious to find out, knowing that the French political thinker Raymond Aron argued in 1966: ‘(…) nothing the Soviet Union does on the territories that, in 1939, were subject to the Estonian or Lithuanian sovereignty any longer relates to international law (…)’18

Is the use of the concept ‘occupation’ for legal qualification of the Soviet period in the Baltic States correct or not? What would it mean to say that the Baltic States were occupied in 1940–1991, especially in light of the fact that they were annexed by the Soviet Union in August 1940? In the first place, the question arises: does annexation, however illegal, indeed terminate the legal regime of occupation?

3 Development of the Concept of Occupation in International Law

The concept of occupation, in the words of Adam Roberts, itself a ‘triumph of legal thinking’19 as opposed to the more ‘reality-based’ view of international relations employed by political science, introduces a distinction between factual and the legal possession of a territory, between de facto control and legal title. As the occupation of a terra nullius no longer plays a practical role in the present world, the concept of occupation is nowadays used to signify the exercise of control and power over another State’s territory.

The law of occupation has been subject of important developments during the last century. Initially designed strictly for cases of occupation of enemy territory durante bello, it later became applicable in a much broader set of cases of foreign control.20 However, legal developments in the international law of occupation have been overshadowed by the fact that—probably more than in any other field of public international law—the law has often been violated by States.21

The locus classicus of international law on occupation is the Convention with Respect to the Laws and Customs of War on Land, first adopted in The Hague at the International Peace Conference of 1899 and slightly revised at the Second International Peace Conference of 1907 (The IV Hague Convention.)22 The bulk of the law of occupation, still largely applicable today, is contained in the annex to the IV Hague Convention, entitled Regulations respecting the laws and customs of war on land, adopted on October 18, 1907. The Hague law of occupation was applicable during both World Wars and thus serves as the most important source for analysis of the Baltic situation, whose origins lay in 1940.

Under The Hague Regulations of 1907, an international legal regime of occupation was originally envisaged for cases of belligerent occupation (occupatio bellica), namely when control over a foreign territory was gained through military force in the context of war.23 Belligerent occupation consisted of direct control of one hostile State’s territory by the enemy’s armed forces.24 With the establishment of belligerent occupation, ‘the authority of the legitimate power’ passed into the hands of the occupier.25 This, however, did not imply a transfer of sovereignty to the occupying State, which remained bound by the considerable restrictions envisaged in Section III of the 1907 Hague Regulations.26 The legitimate government of the territory retained its sovereignty, which was suspended during a period of belligerent occupation.27

Linking a regime of occupation to a state of war and military conduct implied that, conceptually, military occupation was conceived as a provisional state of affairs. Military occupation ended either by a change in the fortunes of war (reconquest by the sovereign of the occupied territory), permanent and voluntary withdrawal by military forces, transformation of the legal status of the territories as a result of negotiations (for example qua peace treaty), or through subjugation and annexation of territories by an occupying power.28

a Were/Are the 1907 Hague Rules Applicable beyond War?

The practice of World War II demonstrated that a restricted concept of belligerent occupation had become insuficcient from several points of view. First, the presumption of the neat distinction between belligerent and pacific occupation, or occupation when the sovereign to which the territory belongs ‘agrees’ to occupation, proved artificial and unsatisfactory. Situations like the German occupations of Czechoslovakia (1939) and Denmark (1940) did not, strictly speaking, match the grammatical threshold of the 1907 Hague Regulations due to the lack of military hostilities and state of war. However, as discussed in the first part of this study, the intrinsic analogy of such cases of occupatio quasi-bellica with classic cases of belligerent occupation meant that the rules of The Hague Regulations were applied to those situations as well.

It can be presumed that equating legal regimes of classic military occupations with Czechoslovakian-type occupations which Adam Roberts has called ‘forcible peacetime occupations,’29 had become a part of international customary law for the period of World War II. Considerable support for this view can be found in both the legal literature and in State practice. As early as 1920, Walter Schätzel argued that ‘[e]s entspricht nur der Logik, auch die friedliche Annexion eines ganzen Staates genau so zu behandeln wie die Eroberung. Ein juristischer Unterschied läßt sich auf keine Weise konstruieren.’30 In 1924, it had been suggested that in cases of peacetime occupation, the rights of the occupant were even more curtailed than in cases of classic belligerent occupations.31 The Hague Regulations were regarded as already applicable in the case of the invasion of Bulgaria by the Romanian army, a military operation without fighting.

The Hague Regulations were regarded as applicable in the classic cases of Czechoslovakia and Denmark.32 The writings of eminent jurists have subsequently reasserted this position. Alf Ross, analyzing Denmark’s legal status during World War II, came to following conclusions:

The point of departure must be the provisions in The Hague Regulations concerning military occupation (Art. 42–56), with the modifications indicated by the fact that there is no state of war between the two sides.

The occupied state must, of course, at least enjoy all the rights which would be granted if the Regulations would be used directly.

On the other hand the rights of the occupant must be limited, in accordance with the peaceful character of the occupation. Here the leading idea must be that the territory is occupied merely in order to assist the occupant’s warfare, without there being any intent to supersede the state apparatus or to take over the occupied state’s means of coercion.33

Arnold McNair and Arthur Watts suggest somewhat cautiously that ‘there seems to have been a tendency to act upon a basis broadly analogous to that of a belligerent occupation during a war.’34 Kelly also asserts that during the period of interest to us, non-belligerent occupations unregulated by treaty shared much in common with belligerent occupation.35 Kelly defines the legal particularities that restricted the power of the occupier even further than in cases of classic belligerent occupation:

The maximum deference had to be given to local institutions which could only be interfered with on grounds of necessity related to the need to maintain order and the security of the force. The difference in non-belligerent occupations was that the inhabitants of the territory were not an ‘enemy population’ and the relationship between the force and the inhabitants was to be governed as far as the security situation permitted by peacetime legal regimes.36

For contemporary purposes, the situation is legally clarified by adoption of the four Geneva Conventions of August 12, 1949, the common Article 2 of which provides:

In addition to the provisions which shall be implemented in peacetime, the present Convention shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by them.

The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.

Although one of the Powers in conflict may not be a party to the present Convention, the Powers who are parties thereto shall remain bound by it in their mutual relations. They shall furthermore be bound by the Convention in relation to the said Power, if the latter accepts and applies the provisions thereof.

According to the Pictet’ commentaries on the 1949 Geneva Conventions, this Article is one of the most important in the Convention, as it notably extends its applicability.37 It can be inferred that since the 1949 Geneva Conventions, the legal regime of quasi-belligerent occupations (or: pacific coercive occupations) coincides with the law of military occupations, and indeed, special legal considerations in the case of the former have lost practical significance.38 Occupation is no longer necessarily the outcome of actual fighting, but can be the result of a threat to use force that prompted the threatened government to concede effective control over its territory to a foreign power.39

b Occupation Versus Annexation

The second major issue raised in the context of World War II occupations was the question of illegal annexations, the crucial question being once again which annexations were to be considered illegal. According to the general understanding developed in the 19th century, incorporation of occupied territory (subjugation or conquest) had been a legal way of bringing occupation to an end.40 Three consequent stages: invasion by armed forces, occupation of territory, and annexation were clearly distinguished in both practice and legal doctrine.41

However, not every annexation could legally terminate a regime of occupation. Pursuant to the underlying concept of The Hague Regulations, premature annexations, or annexations carried out durante bello, were considered illegal and without the desired international legal effects. For instance, in the Italo-Turkish war the Italian annexation of Tripolitania and Cyrenaica by an Italian royal decree of November 5, 1911 was considered illegal, since at the time of the act of annexation only some coastal towns had been occupied by the Italian army.42 In the context of World War II, Germany’s annexation of parts of Poland in 1939 and 1940, of Belgian districts Eupen and Malmédy on May 18, 1940, and of the French regions Alsace and Lorraine on August 7, 1940, were illegal under international law, since they were carried out while the legitimate sovereign or its war allies were continuing the fight.43

However, when war itself becomes outlawed the whole logic of accepting subjugation or annexation as modes of ending an occupation regime and transferring territory becomes counterintuitive. As discussed earlier, there can be no legal transfer of sovereignty to an aggressor in modern international law.44 However, World War II and even post-World War II practice have sometimes given ambiguous signals in situations where an illegal annexation was carried out and the situation stabilized to an extent. This is a clash between normativity—unsupported by an adequate system of sanctions—and reality. Would annexation of occupied territory, although illegal at first, eventually still bring about certain modifications in the legal regime of the territory concerned? Do restrictions imposed by the occupation regime as envisaged in The Hague Regulation still continue to apply during a longer period of illegal yet to an extent already effective annexation? Oxford professor Adam Roberts has observed that ‘not all aspects of the law of occupations were designed for a situation such as this; and in partcicular that the prohibitions of making extensive legal and political changes may sometimes be of limited relevance where the desire (…) of the occupants (…) is precisely to make certain changes.45

An early classic case is the incorporation of Austria into the German Reich on March 13, 1938, after Germany’s occupation of the country a day ealier. In the words of Roberts, the annexation of Austria by Germany complicates evaluation of the legal status of Austria.46 As discussed above, several theories have been developed to characterize Austria’s legal status between 1938 and 1945. Most Austrian scholars and most jurisprudence have advanced the theory that Austria was under (quasi-)belligerent occupation.47

However, Adam Roberts points out some reluctance, in post-war decisions, to view Austria as having been under occupation and to apply The Hague Regulations.48 The International Military Tribunal at Nuremberg did not render a direct ruling on the applicablity of The Hague Regulations in the Austrian case. The later practice of the post-war United States Military Tribunals was somewhat ambiguous. In US v. Krauch and Others, the US Military Tribunal ruled that The Hague Regulations were not applicable to Austria 1938–1945, but appended:

In so ruling, we do not ignore the force of the argument that property situated in a weak nation which falls a victim to the aggressor because of incapacity to resist should receive a degree of protection equal to that in cases of belligerent occupation when actual warfare has existed.49

However, in another judgment, US v. Weizsäcker and Others, it was held that the German invasions of Austria and Czechoslovakia ‘were tantamount to, and may be treated as “a declaration of war.”’50 Such fluctuating viewpoints expressed by US Military Courts may inter alia be attributed to the fact that the United States had recognized the incorporation of Austria into Germany.51 Therefore, most inconsistencies in treatment of the Austrian case may be ascribed to the particular features of the case. Generally, however, the Austrian occupation theory was accepted and even propagated by the Allied Powers, finding final confirmation in the 1955 Austrian State Treaty.52

Altogether, the experience of World War II led the community of States to adopt the four Geneva Conventions of August 12, 1949 under the auspices of the International Committee of the Red Cross. The fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War contains an important provision that throws some light on the occupation versus annexation controversy:

Protected persons who are in occupied territory shall not be deprived, in any case or in any manner whatsoever, of the benefits of the present Convention by any change introduced, as the result of the occupation of the territory, into the institutions or government of the said territory, nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation of the latter by the whole or part of the occupied territory (italics added).53

Thus, Marco Sassòli and Antoine A. Bouvier cautiously note: ‘Unilateral annexation of the occupied territory by the occupying power—whether lawful or unlawful under ius ad bellum—(…) can not deprive persons from the protection offered by IHL.’54 This formulation confirms the continued application of humanitarian rules on unilaterally annexed territories, but leaves open whether such annexation might still be legal under certain circumstances.55

To support the latter view, a decision by the Indian Supreme Court rendered on March 29, 1969, with reference to India’s annexation of Goa, may be quoted.56 India occupied the Portuguese colonies of Goa, Damao and Diu on December 19, 1961, following a brief military action that was qualified by the Indian Supreme Court as a war of liberation. Goa was annexed by India on March 27, 1962. The Apellant, Rev. Father Monteiro, argued that an end to occupation could not be brought about unilaterally—‘the contention is that occupation does not come to an end by annexation and, therefore, the protection continues till there is either cession of the territory or withdrawal of the Occupying Power from the territory, both of which events have not taken place.’57 The contention on behalf of the State of Goa was that ‘by occupation is meant occupation by armed forces or belligerent occupation and occupation comes to an end by seizure followed by subjugation.’58 The Indian Supreme Court was determined to decide between these two submissions:

Military occupation is a temporary de facto situation which does not deprive the Occupied Power of its sovereignty nor does it take away its statehood. […] Annexation, on the other hand, occurs when the Occupying Power acquires and makes the occupied territory as its own. Annexation gives a de jure right to administer the territory. Annexation means that there is not only possession but uncontested sovereignty over the territory. […] [Military occupation must be distinguished from subjugation, where a territory is not only conquered, but annexed by the conqueror.

There is, however, a difference between true annexation on the one hand and premature annexation, or as it is sometimes called anticipated annexation, on the other. […] The [1949 Geneva] Conventions rightly lay down that annexation has no effect on the protection. But they speak of premature or anticipated annnexation. Premature or anticipated annexation has no effect. […] In fact, when the Convention itself was being drafted the experts were half-inclined to add the word ‘alleged’ before ‘annexation’ in Art. 47 to distinguish between annexation following conquest and subjugation and annexation made while hostilities are going on. […] In subjugation, which is recognised as one of the modes of acquiring title, not only the de facto but also the de jure title passes to the conqueror. After subjugation the inhabitants must obey the laws such as are made and not resist them. […] [W]hen the conflict is over and there is no hostile army in the field, annexation has the effect of creating a title to the territory. [A]lthough the United Nations Charter includes the obligation that force would not be used against the territorial integrity of other States (Art. 2 para. 4), events after the Second World War have shown that transfer of title to territory by conquest is still recognised. […] If cession after defeat can create title, occupation combined with absence of opposition must lead to the same kind of title.

In the present case the facts are that the military engagement was only a few hours’ duration and then there was no resistance at all. […] The occupation on December 20, 1961 was neither belligerent occupation nor anticipated occupation, but true annexation by conquest and subjugation.59

However, the value of analogy of this interpretation of international law by the Indian Supreme Court’s decision seems limited.60 First, in its argumentation, the Court fails to specify which post-World War II practice overturns the illegal status of annexations that stems from the prohibition contained in the UN Charter of the threat or use of military force. Moreover, the specific features of the annexation of Goa, which was described as a colonial enclave, were quite unique, pertaining to decolonization. Although most of the UN Security Council members took the view that the Indian action was illegal,61 the right of the Indian people to self-determination influenced accommodation of the illegality of use of force through the processes of recognition and prescription.62 Tacitly, the international community accepted the Indian justification of the occupation of Goa as a war of liberation, and thus accepted annexation by force in the particular postcolonial situation. Colonization in India had to come to an end.

The texts of the 1949 Geneva Conventions and subsequent UN Security Council practice clearly indicate that an illegal occupier cannot legally annex occupied territories.63 The British international lawyer Christopher Greenwood is therefore correct to note that under modern international law, a purported annexation of occupied territory by the occupying power is ineffective to alter the status of the territory or its inhabitants, who remain subject to the law on belligerent occupation.64 However, the issue is more doubtful regarding the years immediately following World War II. At least some earlier voices in the literature presumed that annexation of an occupied territory either terminates the regime of occupation or causes a change in sovereignty, or both.65

c The Main Requirements of the 1907 Hague Regulations for the Occupying Power and Practice in World War II

This is not the place for a thorough analysis of the rules of occupation as crystallized in the 1907 Hague Regulations. These rules have been analyzed in detail in the legal literature.66 However, citation of certain basic norms highly relevant to the Baltic situation is still a must.

The gist of the law of occupation is contained in Article 43 of the 1907 Hague Regulations, which states:

The authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore and ensure, as far as possible, public order and safety,67 while respecting, unless absolutely prevented, the laws in force in the country.

The civilian population in the occupied territory is inter alia protected by Articles 46 and 50 of the 1907 Hague Regulations. Article 46 reads:

Family honour and rights, the lives of persons, and private property, as well as religious convictions and practice, must be respected.

Private property cannot be confiscated.

These prescriptions for the occupant are complemented by Article 50:

No general penalty, pecuniary or otherwise, shall be inflicted upon the population on accounts of the acts of individuals for which they cannot be regarded as jointly and severally responsible.

All these fundamental rules protecting ousted governments and the civilians living in the occupied territory were massively violated during World War II. On a regular basis, occupied territories were annexed, no proper occupation administrations were established, private property was expropriated, civilians were massacred and deported.68 From the standpoint of the validity of legal norms, this enormous gap between the letter of law and the cruel reality has been very difficult to explain. Most writers have in a way ignored the problem, by finding some satisfaction in the fact that as far as Axis illegal acts69 were concerned, the validity of the Hague law of occupation was reconfirmed at Nuremberg. Nevertheless, Eyal Benvenisti has suggested that World War II practices led to a ‘decline’ of the 1907 Hague rules of occupation.70 He argues that

there is sufficient ground to claim that in light of the recurring disregard of the law of occupation, the Hague Regulations had lost their legal authority by the end of the war.’71 ‘At the same time that the International Military Tribunal in Nuremberg described these rules as being declaratory of customary international law, they effectively lost their normative value.72

This view is in contradiction with statements by the Nuremberg and Far East Military Tribunals, according to which the Hague rules were applicable as customary international law during World War II.73 Benvenisti’s view is not shared by all writers on laws of occupation.74 However, Benvenisti points to an important problem: when a legal rule is often violated and the perpetrators cannot be held accountable, what value does it have to argue stoically that the validity of the rule remains unaffected? This question is also relevant for analysis of the Soviet occupations in World War II, which questioned the validity of the international law of occupation, due to the specific ideological foundations of Soviet policies.

4 An Evaluation of the Baltic Case: Fiction and Reality in Occupation Theory

a The Soviet Union and the Hague Regulations

There is some controversy in legal practice and literature about whether and/or since when the USSR was formally bound by the 1907 Hague Regulations.75 While Tsarist Russia was one of the initiators and original contracting States to The Hague Regulations, the Bolsheviks who came to power in 1917 initially refused to formally accept this ‘bourgeois’ legal instrument.76 It has been argued that formally the USSR became bound to The Hague Regulations only after a declaration of intent issued by Vyacheslav Molotov, People’s Commissar of Foreign Affairs, on November 25, 1941.77 However, as The Hague Regulations had—according to the dictum of the Nuremberg trials—acquired the status of customary international law, both Nazi Germany as well as the USSR were materially bound by its rules since the very beginning of World War II.78

Although The Hague Regulations had become customary international law, both the Nazi and the Soviet States in the 1930s-1940s largely ignored their provisions in practice. Krystyna Marek traces this to a ‘break in the homogeneity of European civilization’:

It was in complete harmony with the inner logic of that Revolution [of 1917], that, in the initial period and before embarking on an era of an apparently normalized international collaboration, Soviet Russia claimed her freedom from the limitations of the Hague Regulations. The wars of the Soviet Union lacked any common denominator between her and her opponents, such as may have existed between the France of Napoleon III and the Prussia of Bismarck. Where the Soviet armied would come, they would naturally enough come not to respect the existing capitalist institutions of the occupied State or territory; their purpose would be to change them.79

This applied to World War II and its aftermath to the extent that the Soviet occupations in Eastern and Central Europe were characterized by disrespect for the basic demands of the Hague law of occupation.80 Instead of respecting the sovereignty of the States occupied following the conclusion of the Nazi-Soviet Non-Aggression Pact, complete control over the occupied territories and Sovietization were sought.81 In 1939, Nazi Germany and the Soviet Union wanted to overturn the order established at Versailles in 1919 regarding new countries geographically located between them and which had historically been subjugated either by Germany or Russia. In 1939, the two countries even held a common military parade in Brest-Litovsk (then Eastern Poland, now Belarus), the same city in which in March 1918 they had concluded an earlier Peace Treaty.82 In 1939, the two countries literally went back to where they made their previous attempt at delimitation of territories in 1918.

In 1940, there was also the important aspect that, according to Marxist-Leninist teachings, the dictatorship of the proletariat was a State of a new type. It was not a simple change of personnel in the Government, ‘not a change of the cabinet… that left the old economic and social relations untouched’, but a new State…, ‘a State of the proletariat that has come into being on the ruins of the old State, of the State of the bourgeoisie.’83 Such a dictatorship can only ‘come into being as a consequence of the destruction of the bourgeois State machine, of the bourgeois army, of the bourgeois bureaucratic apparatus, of the bourgeois police.’84

Practice followed theory and in the end result one has to agree with the judgment of Eyal Benvenisti:

These [Soviet] occupations were…illegal on two grounds: first, illegality predicated on the aggression that led to the occupation, and second, the illegal mode of governance chosen by the occupying army upon assuming control.85

Therefore, the Soviet military occupations of 1940, just as other occupations of that time, even though they were quickly turned into annexations, must still be measured by the yardstick of the 1907 Hague Regulations.86

b Which Rules of Occupation Were Legally Applicable in the Case of the Baltic states?

The occupation of the Baltic States by the USSR in 1940 can be characterized as a quasi-belligerent occupation,87 forcible peacetime occupation,88 occupation militaire pacifique de fait ou sans titre juridique,89 ‘intervention occupation’ (occupatio interveniens)90 and/or coercive occupation.91 As no belligerent confrontations occurred in 1940, a state of war between the Baltic States and the USSR never came into existence. Rather than outright war, the Soviet military advance can be characterized as (illegal) ‘intervention.’92

As noted above, in the context of World War II the applicability of the 1907 Hague Regulations to forcible peacetime occupations has been affirmed in both legal practice and literature.93 It is then correct to conclude that the standards of the 1907 Hague rules were legally applicable in the occupied Baltic States.94

A further, somewhat more complicated question is whether the provisions of the Fourth Geneva Convention of 194995 were applicable as a legal standard in Soviet-ruled Estonia, Latvia and Lithuania. At the end of the 1980s, a non-governmental organization called Geneva 49 (Genf-49) became active in the Baltics, protesting against the conscription of Baltic men into the Soviet ‘occupation army’, and referring to the relevant stipulations in the 1949 Geneva Conventions prohibiting drafting in occupied territories.96

As we shall see, the issue of the applicability of the Geneva Convention became especially controversial later, with respect to the settlement of Soviet immigrants in the Baltic Soviet Republics, especially in Latvia and Estonia.97 The following stipulation of the fourth Geneva Convention was often invoked in these countries (the last passage of Art. 49):

The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.

Yet the view that the IV Geneva Convention became formally applicable in the Baltic States may also be challenged. First, the Baltic States had already been occupied and annexed for ten years when the Geneva Conventions became binding on the USSR. The travaux préparatories of the Geneva Conference do not indicate that the Geneva Conventions were to be formally applied to ex post facto situations. In addition, it remains open whether certain Geneva rules relating to foreign occupation were still legally applicable before 1949. In practice, however, the 1949 Geneva rules of occupation only specified and developed the fundamental rules already applicable under the 1907 Hague Convention. For instance, the 1949 Soviet mass deportations of civilians from the annexed Baltic States to Soviet Russia would be illegal under both the 1907 and 1949 rules.

c Conclusions: International Legal Rules Binding the USSR during Its Occupation (Illegal Annexation) of the Baltic States

Regarding several World War II and post-World War II occupation situations, it has been a debated question whether certain international laws of occupation, such as the 1907 Hague Regulations and/or the IV Geneva Convention of 1949, were applicable. For instance, in post-surrender occupations at the end of World War II, such as those of Germany and Japan, the Western Allies denied the applicability of the 1907 Hague Regulations for legal and political reasons.98 Even if legal opinion in the occupied countries insisted on the applicability of the protecting Hague Regulations,99 and different legal theories on the legal nature of the occupation regime were presented,100 the more fact-based theory—that the denazification policies of the occupation powers did not violate international law—was enforced.

Yet the Allied occupation of Germany after 1945 was the occupation of an aggressor State after the unconditional surrender of its military forces,101 while the Baltic republics were themselves victims of aggression. If the prolonged application of The Hague or Geneva law of occupation were challenged in the Baltic case, this would be so for other reasons—such as the very fact of the annexation (as opposed to mere occupation without the animus to annex), or the long duration of illegal rule—than in the German case.

It is diffcult to establish with authoritative precision and persuasiveness which rules of occupation, directly or by analogy, continued to bind the USSR in the Baltic States until the end of the former’s de facto rule in 1991. Because of lack of authoritative judicial settlement, these questions are likely to remain open to differing legal-political arguments. This is connected to the more systemic defect of international (humanitarian) law, namely the problem of its authoritative determination. In the words of Georges Abi-Saab:

(…) what is most problematic in the implementation of international law in general and international humanitarian law in particular is not so much the ultimate and extreme stage of ‘enforcement’, but the intermediate one of ‘determination.’

As long as we remain with general rules or principles that each subject interprets from his own vantage point and as a function of his own values and interests, we do not have objective determination. The role of law is thus reduced to rhetorical advocacy or justification and the legal character of these rules and principles remains hypothetical or subject to doubt.102

The US critical international law scholar David Kennedy has pointed out the indeterminate nature of international law in even harsher words by arguing that ‘international law discourse is a conversation without content—a ritualized exchange which avoids confronting the very question it purports to address. (…) no one is persuaded.’103

Two issues must be distinguished: the question whether the legal status of the USSR in the Baltic States was that of an occupier; and the question which international standard should be used to assess Soviet policies. The first question is easier to answer than the second. Since the Soviet annexation of the Baltic States in 1940 lacked any ground in international law, and a significant segment of the international community refused to grant formal approval of Soviet seizure, the ultimate failure of the USSR to acquire legal title over the Baltic States implies that the regime of occupation was, as a matter of international law, not terminated until the independence of Estonia, Latvia and Lithuania was re-established in 1991.104 Notwithstanding the annexation of the Baltic republics by the USSR in 1940, it is therefore simultaneously correct in the legal sense to speak of their (continued) ‘occupation.’105 The prolonged Soviet occupation of the Baltic States was an unorthodox occupation sui generis, an Annexionsbesetzung106 (‘annexation occupation’). Until 1991, the Baltic situation was in important ways the classic situation of occupation: external control by a force whose presence emerged in violation of norms of international law, and related to it, the conflict of interest between the people and the government exercising de facto power over them.107

However, in certain aspects the situation in the Baltic States was different from a classic situation of occupation. Both the fact of the Soviet annexation and the long duration108 of Soviet rule in the Baltic republics are a factor here. The Soviets made a genuine attempt to integrate the Baltic States back into old imperial Russian territory, now transformed into the USSR. ‘But actually after 1940 the USSR did not install occupation regimes in the Baltic States…’109 Again, this is a tension between international legal doctrines and the reality established on the ground.110

For instance, by imposing the Soviet economic system on the Baltic States, the USSR of course violated the 1907 Hague rules of occupation. However, the principle ex factis ius oritur compels acceptance as historical facts of certain aspects of the foreign-imposed Soviet economic system in the decades following the illegal annexation. After 1991, the whole Soviet occupation/annexation period could not, in all the effects that it produced, be regarded as a legal nullity. However, Moscow also imposed the State socialist economic system in East European countries in which socialist governments were established even though those countries formally maintained their sovereignty. It can be argued—but would be artificial to maintain—that this economic system continued to violate the 1907 Hague Regulations. As the Danish international lawyer and legal realist Alf Ross warned with reference to the Danish context:

It would be naive to believe that the aggressor is punished by being denied all legal rights. To take up the categorical attitude, that whatever the occupying power does in the occupied territory, is unlawful, as being the mere consequence of the original unlawful act of invasion, does in practice amount to giving up any attempt at defining a legal modus vivendi.111

This observation is by analogy also true in the Baltic case.

The absolutely minimal standard that the USSR, not having acquired sovereign title, was bound to respect in the illegally annexed Baltic States and with regard to their populations, was the obligation to respect the rules of international law protecting civilian populations. Crimes against humanity are crimes under international criminal law but an occupying power, too, should not commit them.112 Moreover, developing international human rights standards, applicable in domestic situations, were equally binding on the USSR in the illegally annexed Baltic States.113

5 Conclusion: The Baltic States 1940–1991, Continuity or Extinction?

The conclusions in the previous chapters—that prescription did not take place in the annexed Baltic States and that the three republics, even though annexed, remained occupied by the USSR in the sense of international law—point inevitably to the result that the State identity of the Baltic States was maintained. The legal concept of State identity seems to imply the continuity of these States as well. However, that conclusion is an existentially important turning point for this study, and here is the last opportunity to take into account all the considerations that might still point in a different direction. At this juncture, it is relevant to reflect upon how determinate, to what extent, can observations about international law and legal status be at all.

This seems the appropriate moment to recall an analysis of the methodology of international law, an analysis that much provoked the field of international law. In a much-celebrated and -debated treatise initially published in 1989, the distinguished Finnish international lawyer Martti Koskenniemi deconstructed the international legal argument as being condemned to oscillate between apology and utopia.114 The first kind of argument proceeds from the presumption ex factis oritur ius, the second from the maxim ex injuria ius non oritur.

As we can see, over time both types of argument have been presented on the question of the Soviet annexation period and the status of the Baltic States. The ‘utopians’ suggest the applicability of the rules of military occupation and the uninterrupted legal existence of the Baltic States; the ‘apologists’, however, point to the eventual effectiveness of prolonged Soviet rule in the Baltic States. But both positions can be reversed as well—for example the Baltic insistence on Soviet occupation and illegality can be a form of realism when seen from alternative angles. Moreover, the Soviet and later Russian insistence on on the legality or at least a certain legitimacy of the Soviet period can be seen as expression of utopianism and a certain type of universalism.

The Estonian legal scholar Enn Sarv takes the Baltic argument to the extreme when he argues that the USSR in the Baltic States continued to be bound by the 1949 Geneva rules of occupation until 1991. In his interpretation, Soviet settlement policies during the 1950s–1980s, aiming at irreversible changes in the ethnic composition of the Baltic republics, must be qualified as a war crime and a violation of Article 49 of the IV Geneva Convention.115 According to this position, the conscription of Baltic men into the Soviet army in the 1980s was also a war crime, for example. At the other end of the scale is the argument of Russian diplomacy: ‘The fact that the Baltic States had been forcibly incorporated into the Soviet Union did not imply a subsequent occupation in any legal sense, any more than Texas or New Mexico could be regarded as territories ‘occupied’ by the United States.116

Such controversial positions were expressed in the context of evaluating the effects of non-recognition117 of the Soviet annexation. Koskenniemi himself together with Marja Lehto presented a cautious argument when he suggested that ‘On peut douter qu’il faille recourir à la fiction de la continuité pour parvenir aux conséquences juridiques découlant déjà de la reconnaissance de l’illegalité de l’occupation.118 At the other end of the scale, however, a contrary argument was presented by Juozas Repečka in 1949: the Baltic States continue to exist as subjects of international law as long as there exists a single third State that still refuses to recognize the legality of Soviet annexation. A qualified ‘middle position’ was taken by Boris Meissner,119 who concluded in 1980 that, notwithstanding illegal Soviet annexation, Estonia, Latvia and Lithuania continue to exist as subjects of international law for those States (such as the USA and other Western nations) that did not recognize Soviet annexation de iure.120 For those States, however, which recognized Soviet annexation de iure, the Baltic States lost their sovereign existence.121 From these divergencies, it becomes apparent that it is uncertain whether the present legal status of the Baltic States—having maintained State continuity or not—would possess an erga omnes character.

Similarly, the ‘utopian’-‘apologist’ dilemma came into play in assessments of the Baltic situation in the light of the Montevideo criteria of statehood. Looking at the matter from the persepective of the Baltic argumentation, the Utopians suggest the existence of a State, in the case of illegal annexation, when on the ground it does not exist (according to the ‘three elements theory.’) On the other hand, the apologists, emphasizing effectiveness, would take the world more ‘as is’, regardless of whether it came about by legal or illegal means. Thus, they would see the reality of the Soviet Baltic republics within the USSR rather than the ‘continued existence of the Baltic States, notwithstanding their annexation.’ The German international law scholar Heike Krieger suggests that the principle of effectiveness played a role in the Baltic case, to the extent that the initially illegal situation consolidated and the USSR acquired territorial sovereignty over the Baltic States.122 Joe Verhoeven, one of the most persistent defenders of l’effectivité, maintains that ‘l’interdiction du recours à la force et la nullité du titre qui prétendrait s’y appuyer sont une chose, l’existence ou la disparition de l’Etat qui en est la victime en est une autre.’123 He warns that the acceptance of State continuity in cases such as that of the Baltic States may ‘bouleverse[r] la conception traditionelle de l’Etat’, since ‘a l’ordinaire, celui-ci naît ou meurt de la présence ou de l’absence d’éléments de pur fait: un territoire, une population, un gouvernement independent.’124 From this perspective, Verhoeven raises an important question: ‘Doit-il aller jusqu’à nier que l’Etat est né ou qu’il est mort au motif qu’il l’a été illégalement?’—and gives a cautious answer: ‘On ne peut qu’hésiter à l’admettre’125 Therefore: ‘Mieux vaut dès lors—au moins dans l’etat actuel des choses—laisser l’effectivite décider seule de la naissance ou de la mort de l’Etat. C’est probablement plus réaliste et peut-être plus prudent.’126 Joe Verhoeven thus intends to save the relevance of the three elements theory for determining statehood, emphasizing effectiveness, and maybe even: the relevance of international law when corresponding to the realities in international relations.

However, the paradox of the utopian-apologetic dilemma is also that accepting Professor Verhoeven’s apologetic proposition returns like a boomerang to question the very possibility and relevance of international law as a normative system at all. Joe Verhoeven’s call for realism attempts to save international law from irrelevancy—and yet paradoxically also makes it irrelevant. It is well known that due to its decentralized character, international law is a primitive legal system when compared to a well-functioning domestic legal order.127 Hence, there always exists the danger that international law mandates a certain behaviour—act or omission— and yet the legal norm is violated, but nonetheless, the violation of such legal norms may in practice have no serious consequences. The fewer answers international law offers for confronting such situations, the less relevant it becomes in international relations.128 This consideration applies most urgently in cases where the most fundamental international norms, such as the prohibition of aggression, are violated.

Paradoxically, a capitulation of law to facts delivers a further argument to the realists, to the effect that international law does not matter. Their dismissiveness about international law makes even more sense when international law ceases to protect what it has been designed to protect, and when it is needed most. Hedley Bull suggests that international law condemns aggression but once aggression has been successful it ceases to be condemned.129 Hans Morgenthau, one of the fathers of modern realism, posed a critical question for international lawyers:

…problems arise with respect to the Briand-Kellogg Pact and the Peace Treaties of 1919, as well as to other political treaties, such as the (…) alliance treaties, the concepts of aggression, independence, intervention, and so forth. They are embodied in written documents which were duly ratified and never invalidated. Have they ever been valid law from the beginning, and what has become of them in the years of their violation? Are they still valid? If they are not, what destroyed their validity?130

The principle of effectivity alone cannot be at the very centre of international law, for effectivity taken to the extreme is the right of might, of the stronger—a world order which is the reality according to the realist school of thought, but would then not deserve to be called ‘international law’, since it would be a very apologetic order indeed. If the world was ruled solely by naked power, and the rules were made by and would support merely the powerful, it would be a misuse of legitimacy to call such a world order by the misleading term ‘law.’ If this would appear to be so, there would be reasons to join those scholars who, like the US TWAIL scholar Makau Mutua, have argued that ‘the regime of international law is illegitimate.’131

That the international legal system may appear to be incapable of convincingly answering violations of one of its most fundamental norms—the prohibition of aggression—should be a bigger problem for lawyers who worry about the relevance of the rule of law in international relations, than the fear that international law would become ‘unrrealistic’ when supporting legal fictions where fundamental legal norms have been violated. In any case, the so-called normative Kraft des Faktischen cannot have a legal significance of its own. In the words of the German legal thinker Gustav Radbruch: ‘Normative Kraft des Faktischen ist ein Paradoxon, aus einem Sein allein kann nie ein Sollen entspringen, ein Faktum wie die Anschauung einer bestimmten Zeitepoche kann nur normativ werden, wenn eine Norm ihm diese Normativität beigelegt hat.’132

For that reason, at no point during the illegal annexation of the Baltic States did all outstanding legal scholars agree that the Baltic States had lost their statehood for the purposes of international law. On the basis of non-recognition policy, Krystyna Marek concluded in 1968 ‘that there can still be a relation of identity and continuity between the independent Baltic States of 1940 and such Baltic States as will recover their effective freedom before an overwhelming normative pressure of facts will have brought about their final extinction.’133 Therefore, as anomalous as the length of the illegal occupation and annexation by the USSR may have been, the prolonged period does not imply extinction of these States as subjects of international law.

In the Baltic case, however, the main answer to Professor Verhoeven’s question: ‘Doit-il alter jusquà nier que l’Etat est né ou qu’il est mort au motif qu’il la été illégalement?’ is given by State practice itself. A considerable portion of State practice indeed went as far as denying the extinction of the illegally annexed Baltic States. Diplomatic practice, especially non-recognition policy and the recognition of State identity in 1991, suggests that—as seen from the Baltic perspective—Utopia was preferred over Apologia and the continuity of the Baltic States was upheld.

Of course, there is an element of legal fiction in the claim that the Baltic States continued to exist as subjects of international law between 1940 and 1991. Some States, while refusing to give de iure recognition to the Soviet seizure of the Baltic States, were not terribly consequential in their non-recognition either.

Yet recent State practice does not generally indicate that the States which recognized the identity of the Baltic States have kept in mind the controversial and politically motivated constellation of ‘identity without continuity.’ The Baltic claim has always been one of State continuity, and third States, while accepting the identity of the Baltic States, seem to have accepted the Baltic thesis of State continuity as well.

The illegality of the Soviet occupation and annexation, the non-recognition of the Soviet annexation by most Western States, resistance by the Baltic peoples to the Soviet regime, and the uninterrupted functioning of certain State organs in exile compel us to draw the final conclusion in favour of the continuity of the Baltic States throughout Soviet annexation. Non-recognition by Western States only reconfirmed the illegality of the annexation which was the main reason for maintenance of State continuity as a legal-political solution in the Baltic case.

1

Italics added by this author. Text reprinted in A. Kiris, Restoration of the Independence of the Republic of Estonia. Selection of Legal Acts (1988–1991), Tallinn 1991, p. 22.

2

See Riigi Teataja I (State Gazette) 1994, 13, 235.

3

The decision of the Estonian Supreme Court (which also serves as the Constitutional Court of the country) held as constitutional a law which declared void all contracts of sale with the Soviet army. See Riigi Teataja (State Gazette) I 1995,2,34.

4

For the text, see Latvijas Vestnesis, August 27, 1996, p. 1.

5

See ibid. For a French translation, see A. Reinhards, Lettonie-Russie…, p. 284. See also B. Meissner, The Occupation of the Baltic States from a Present-Day Perspective, Riga 1998, p. 483 et seq and Letter from the Saeima of Latvia to the UN Secretary General His excellency Kofi Annan, October 22, 1998, available at http;//www.bafl.com/saeimaletter.html.

6

Report of the Select Committee, 1954, p. 8.

7

President Reagan’s Statement on the Baltic States, Press Release. Cf. also with the US House of Representatives, House Concurrent Resolution 57, 4 February 1981, pp. 2–3·

8

US Mission to the United Nations, The United States Reaffirms Recognition of Independence of Estonia, Latvia and Lithuania, press release, 29 July 1983, pp. 1–3.

9

Public Law 97–252, Department of Defence Authorization Act, 1983, 8 September 1982, section 1134.

11

See also the report of Mr. Lowzow for the consultative Assembly of the Council of Europe of 14.9.1960 (Doc. 1173), p. 6, 23, 27 et seq.

12

‘Condemning the fact that after the conclusion of the Molotov Ribbentrop Pact these independent and neutral States were in 1940 occupied by the Soviet Union and that this occupation lasts (emphasis added).’ See the Resolution on the Situation in Estonia, Latvia and Lithuania, European Parliament, January 13, 1983. Doc. 1-777/80. However, the later Resolutions of the Council of Europe (‘Resolution on the Baltics’, Strasbourg, January 28, 1987) and of the European Parliament (‘Resolution on the Independence of the Baltic States’, Doc. B2-1247/88), while strongly supportive of the Baltic pursuit of independence, avoid using the concept ‘occupation.’ For the texts, see Looming 1989, No. 3, pp. 429–430.

13

The members of the Baltic Tribunal were Theodor Veiter (Chairman), Per Ahlmark, Jean-Marie Daillet, Michael Bourdeaux and Sir James Fawcett. For an Estonian translation of the Copenhagen Manifesto, see Looming 1989, No. 3, p. 428.

14

E. Sarv, Õiguse vastu ei saa ükski, p. 60.

15

See e.g. U.W. Saxer, ‘The Transformation of the Soviet Union: From a Socialist Federation to a Commonwealth of Independent States’, in: 14 Loy. L.A. Int’l & Comp. L.J. 1992, p. 633.

16

See e.g. Lieven, The Baltic Revolution; Hafner/Reinisch, op. cit., 1996, p. 107; M. Koskenniemi, in: State Succession: Codification Tested Against the Facts, Hague Academy of IL, 1996, p. 126.

17

S. Chernichenko, ‘Ethnic Russians in the Baltics’, in: 44 International Affairs (Moscow) 1998, pp. 118–123 at 119–120.

18

R. Aron, Peace and War; A Theory of International Relations, NY: Doubleday, 1966, p. 108.

19

A. Roberts, ‘Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967’, 84 AJIL 1990, p. 45.

20

See Roberts, ‘What Is Military Occupation?’, p. 299.

21

See E. Benvenisti, The International Law of Occupation, 1993, p. 5: ‘Modern occupants came to prefer, from a variety of reasons, not to establish such a direct administration. Instead, they would purport to annex or establish puppet states or governments, make use of existing structures of government, or simply refrain from establishing any form of administration. In these cases, the occupants would tend not to acknowledge the applicability of the law of occpation to their own or their surrogates’ activities, and when using surrogates’ institutions, would deny any international responsibility for the latter’s actions.’ ‘[M]ost contemporary occupants ignored their status and their duties under the law of occupation. […] This practice of occupants poses [a] decisive challenge that the law of occupation has to face in order to maintain its relevance.’ Ibid. p. 6. See also A. Roberts, Prolonged Military Occupation: The Israeli-Occupied Territories Since 1967, 84 AJIL 1990, pp. 44–71.

22

For the records of these Hague conferences, see J. B. Scott, The Proceedings of The Hague Conferences, 5 volumes incl. index, New York: Oxford University Press, 1920.

23

See M. Bothe, ‘Occupation, Belligerent’, in: EPIL, Inst. III, p. 64.

24

See Article 42 of The Hague Regulations: ‘Territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.’

25

See Article 43 of The Hague Regulations.

26

See G. v. Glahn, The Occupation of Enemy Territory, 1957, p. 31 et seq.

27

See Glahn, ibid., p. 31. For the historical development of this rule, see C. Rousseau, Le droit des conflits…, p. 134 et seq.

28

See A. Roberts, Prolonged Military Occupation…, 84 AJIL 1990, p. 47 et seq. Cf. Glahn, The Occupation…, p. 30. The transfer of sovereignty of an occupied territory under a peace treaty is a legitimate way of ending the occupation. See M. Sassòli and A. Bouvier, How Does Law Protect in war? Cases, Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, Geneva: ICRC, 1999, p. 155.

29

Cf. A. Roberts, ‘What Is a Military Occupation?’, BYBIL 1984, p. 261 and 274 et seq. Roberts defines forcible peacetime occupations as occupations ‘of all or part of the territory of a State without the previous consent of the government, but also without causing the outbreak of an armed conflict with that State. Usually it is because the invader has made an implicit or explicit threat to use force, and military resistance against invasion appears hopeless, that this kind of invasion is militarily unopposed.’ See ibid. at p. 274.

30

W Schätzel, Die Annexion im Völkerrecht, 1920, reprinted in 1959, p. 199. “It is only logical to treat the peaceful annexation of an entire state in the same way as conquest. A legal difference cannot be construed in any way.”

31

F. Llwellyn Jones, ‘Military Occupation of Alien Territory in Time of Peace’, Transactions of the Grotius Society, Vol. 9, 1923, p. 159 et seq.

32

See A. Roberts, What Is a…, p. 276. Regarding the German occupation of Bohemia and Moravia, see also Anglo-Czechoslovak and Prague Credit Bank v. Janssen [1943–1945] AD Case no. 11, at 47 (Australia, Supreme Court of Victoria.)

33

See A. Ross, ‘Denmark’s Legal Status During the Occupation’, 1 Jus Gentium 1949, p. 10.

34

A. McNair, A. Watts, The Legal Effects of War (4th edn., 1966), p. 423.

35

M.J. Kelly, ‘Non-Belligerent Occupation’, 28 Israel YB on Human Rights (1998), p. 30. Kelly, citing the occupation of the Ruhr by French and Belgian forces in 1923, which was opposed by the German government, defines non-belligerent as opposed to pacific occupations—‘while no state of war existed, there was nevertheless a lack of consent.’ See ibid. p. 4.

36

Kelly, op. cit., p. 30.

37

J,S. Pictet, Commentary to the I Geneva Convention, Geneva: ICRC, 1952, p. 28. See also Commentary to the III Geneva Convention, Geneva: ICRC, 1951, p. 19 et seq.

38

M. Bothe, ‘Occupation, Belligerent’, EPIL, vol. 4, p. 68.

39

See E. Benvenisti, The International Law of Occupation, 1993, p. 3 et seq.

40

See D. A. Graber, The Development of the Law of Belligerent Occupation 1863–1914, New York: Columbia University Press, 1949, especially chapter 2. See also N. Ando, Surrender, Occupation and Private Property in International Law. An Evaluation of US Practice in Japan, 1991, p. 35.

41

For a distinction between the phases of invasion and occupation, see US v. List and Others, Judgment of February 19, 1948, Annual Digest, 1948, case no. 215, pp. 637–640. See also G. von Glahn, the Occupation of Enemy Territory. A Commentary on the Law and Practice of Belligerent Occupation, 1957, p. 28; Roberts, What Is a Military Occupation? p. 256 and C. Rousseau, Le droit des conflits armés, Paris, 1983, p. 134 et seq.

42

G. von Glahn, ibid., p. 33.

43

In the Krupp Trial, the US Military Tribunal condemned the confiscations of private property in Alsace during World War II and held: ‘This confiscation was based on the assumption of the incorporation of Alsace into the Reich and that property in Alsace owned by Frenchmen living outside of Alsace could be treated in such a manner as to totally disregard the obligations owned by a belligerent occupant. The attempted incorporation of Alsace into the German Reich was a nullity under international law and consequently this interference with the rights of private property was a violation of Article 46 of The Hague Regulations.’ US v. Alfred Krupp, et al., Case No. 68, US Military Tribunal at Nuremberg, in: The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. X, 1949, p. 130–159.

See also US v. Greifelt and Others, Annual Digest, 1948, case no. 216, p. 655. For a good overview of the cases handled in Belgian municipal courts, see C. Rousseau, Le droit des conflits armés, p. 141. See also Glahn, ibid., p. 33. For Poland, see also A. Randelzhofer, O. Dörr, Entschädigung für Zwangsarbeit? Zum Problem individueller Entschädigungsansprüche von ausländischen Zwangsarbeitern während des Zweiten Weltkrieges gegen die Bundesrepublik Deutschland, Berlin, 1994, p. 18.

44

See also Roberts, ‘What Is Military…?’, BYBIL, p. 259.

45

Roberts, ‘What Is a Military…?’, p. 287.

46

Roberts, ‘What Is a Military Occupation?’, p. 275.

47

See especially with respect to the annexation/occupation dilemma in S. Verosta, Die internationale Stellung Österreichs 1938 bis 1947, 1947, p. 7 et seq. For a critique of Verosta’s views, see H. Jellinek, Der automatische Erwerb und Verlust…, 1951, p. 148.

48

Roberts, ‘What Is a Military…’, p. 276.

49

US v. Krauch and Others, judgment of 29 July 1948, Annual Digest, 15 (1948), Case no. 218, p. 672.

50

US v. Weizsäcker and Others, Annual Digest, 16 (1949), Case No. 118, p. 347.

51

See US v. Uhl, Annual Digest, 12 (1943–1945), Case No.8, p. 23 et seq.

52

See Oberhammer/Reinisch, ‘Restitution of Jewish Property…’, ZaöRV 2000, p. 742 et seq.

53

Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, Art. 47 (‘Inviolability of Rights’).

54

See Sassòli and Bouvier, op. cit., p. 155. IHL = international humanitarian law.

55

For the view that it can, see O. Debbasch, L’Occupation militaire. Pouvoirs reconnus aux forces armées hors de leur territoire national, Paris: R. Pichon et R. Durand-Auzias, 1962, pp. 333–6.

56

Rev. Mons. Sebastiao Francisco Xavier Dos Remedios Monteiro v. State of Goa, March 26, 1969, India, Supreme Court Reports, pp. 87–102. (Also printed in M. Sassòli and A.A. Bouvier, op. cit. p. 752 et seq.)

57

See ibid. Quoted from Sassòli and Bouvier, p. 754.

58

See ibid. p. 754.

59

See ibid., quoted in Sassòli and Bouvier, op. cit. at 756 et seq. (Italics added.)

60

See also PCIJ, Recueil des Avis Consultatifs, Serié B No. 12: ‘…nul ne peut être juge dans sa propre cause.’

61

S/5033 SC Official Records, 988th mtg., 18 Dec. 1961, pp. 26–27. The draft resolution of the SC, although supported by seven out of eleven States, failed to be adopted due to the negative vote of the USSR. See also M. M. Whiteman, Digest of International Law, Vol. 2, Washington, DC, 1963, p. 1140 et seq and Q. Wright, ‘The Goa Incident’, 56 AJIL 1962 p. 617 et seq.

62

See Crawford, ‘The Criteria of Statehood’, p. 169.

63

See e.g. SC Res. 252, SCOR, 23rd Session, Resolutions and Decisions, p. 9, UN Doc. S/INF/23/Rev.I (1968)—in the context of Israel’s legislative measures affecting occupied East Jerusalem, the resolution states that a belligerent occupant may not annex occupied territory.

64

C. Greenwood, ‘The Administration of Occupied Territory in International Law’, in: E. Playfair (ed.) International Law and the Administration of Occupied Territories. Two Decades of Israeli Occupation of the West Bank and Gaza Strip, Oxford: Clarendon Press, 1992, p. 245. For conflicting views, see also O.Y. Elagab, ‘The Law of Belligerent Occupation Versus the Law of Annexation of Territories: A Case Study of the Golan Heights’, 6 Development of Peace 1985, pp. 118–128, M. Chemillier-Gendreau, ‘Le droit international et la protection d’un peuple contre l’annexion’, in: Revue d’études Palestiniennes No. 34, 1990, pp. 63–73 and R. Lapidoth, ‘The Expulsion of Civilians from Areas which came under Israeli control in 1967: Some Legal Issues’, 2 EJIL 1990, pp. 97–109.

65

See e.g. O.M. Uhler, Der völkerrechtliche Schutz der Bevölkerung eines besetzten Gebiets gegen Maßnahmen der Okkupationsmacht (unter besonderer Berücksichtigung der Genfer Zivilkonvention vom 12. August 1949), Zürich: Polygraphischer Verlag, 1950, pp. 34–5; A. F. Schnitzer, Staat und Gebietshoheit, Zürich: Verlag für Recht und Gesellschaft, 1935, p. 86.

66

See e.g. R.A. Picciotti, ‘Legal Problems of Occupied Nations after the Termination of Occupation’, 33 Military Law Review 1966, pp. 25–57.

67

Instead of ‘safety’, the expression ‘civil life’ has been suggested by writers as more adequately reflecting the original French text of the 1907 Hague Regulations. See E. Benvenisti, op. cit., p. 7.

68

For a thorough account of the practices, see Benvenisti, op. cit. p. 59 et seq.

69

See the seminal work of R. Lemkin, Axis Rule in Occupied Europe. Laws of Occupation. Analysis of Government. Proposals for Redress, Washington: Carnegie Endowment for International Peace, 1944.

70

Benvenisti, op. cit., p. 30 et seq.

71

Benvenisti, op. cit., p. 59.

72

Benvenisti, op. cit., p. 98. See also at p. 97.

73

See International Military Tribunal in Nuremberg, The Trial of the Major War Criminals 65 (1947) and the International Military Tribunal for the Far East, In re Hirohita, 1948, AD Case no. 118, at 366 (1907 Hague Regulations as ‘good evidence’ of customary international law.)

74

Somewhat contradictorily, Benvenisti argues elsewhere that the pains taken by the occupants to demonstrate the indigenous endorsement of their measures, or at times even indigenous consent to formal annexation ‘do not discharge occupants from their international obligations.’ Benvenisti, op. cit., p. 58. It is inconceivable why this should have been—legally—different during World War II, leading to the acceptance of an extralegal ‘black hole.’ However, uneasiness about international legal rules in World War II has been expressed by other authors as well. Adam Roberts writes that many cases of prolonged occupation since World War II ‘have raised complex questions about the applicability and utility of international rules.’ See Roberts, ‘Prolonged Military Occupation’, AJIL 1990, p. 47.

75

For a thorough treatment of the problem, see J. Toman, L’Union Soviétique et le droit des conflits armés, Genève, 1997, p. 109 et seq. Practically speaking, the problem was first of all that the Germans, referring to the requirement of reciprocity, refused to apply international treaty standards to Soviet prisoners of war.

76

See B. Meissner, Sowjetunion und Haager LKO. Gutachten und Dokumentenzusammenstellung, Hamburg: Universität Hamburg, 1950, p. 7 et seq. and Die Sowjetunion, die baltischen Staaten… 1956, p. 231 et seq.

77

See discussion in Meissner, Sowjetunion und Haager LKO, p. 6 et seq. and in Die Sowjetunion…, p. 233.

78

See J. Toman, L’Union Soviétique…, p. 115.

79

K. Marek, Identity and Continuity of States in Public International Law, 1954, p. 124.

80

See e.g. Benvenisti, The International Law of Occupation, pp. 59 and 67 et seq.

81

Benvenisti, op. cit., p. 68. For similar Soviet practices in Rumania, Bulgaria and Hungary after 1945 see N. Ando, Surrender, Occupation, and Private Property… (1991), p. 53 et seq. (‘… throughout the period of occupation, the Soviet Union intervened in the domestic affairs of the occupied states, mainly for the purpose of putting pro-Moscow groups into power.’ p. 56.) See also C. Rousseau, Le droit des conflits armés, Paris: A. Pedone, p. 141 (‘Dans les pays que l’U.R.S.S. a côntrolés pendant et après la deuxième guerre mondiale (Pologne, Etats baltes, Allemagne orientale, Hongrie, Roumanie, Tchecoslovaquie, Bulgarie) ce n’est pas seulement un occupant qui est arrivé avec elle, mais la révolution. Par le biais de la lutte antifasciste, des procès, de l’ épuration, des réformes industrielles et agricoles, des transferts de population, elle a détruit systématiquement les vestiges de l’ancienne société.’)

82

See further L. Mälksoo, ‘The Treaties of Brest-Litovsk, Versailles and Moscow: Contesting Sovereignty and Hegemony in Eastern Europe in 1918–1939’, 62 German Yearbook of International Law 2019, pp 189–209.

83

J. Stalin, Über die Grundlagen des Leninismus, in: Zu den Fragen des Leninismus, 1926, p. 42 et seq. See also V. I. Lenin, Staat und Revolution (1917), especially pp. 180 and 185.

84

J. Stalin, ibid., p. 45.

85

Benvenisti, op. cit., p. 68.

86

Ando concludes that in the case of post-surrender occupations in World War II, ‘[t]he Hague Regulations were applicable to the occupation of the East European states.’ See Ando, op. cit., p. 72.

87

About this concept, see A. Verdross, ‘Die völkerrechtliche Identität der Staaten’, FS Klein, 1950.

88

About this concept, see A. Roberts, ‘What Is a Military Occupation?’, p. 274 et seq.

89

See J. Repečka, op. cit., p. 145, referring to Frangulis (ed.) Dictionnaire diplomatique, 3 tomes, Paris, 1933, p. 246. “peaceful military occupation de facto or without legal title”.

90

See B. Meissner, Die Sowjetunion, die baltischen Staaten und das Völkerrecht, p. 224. Acording to Meissner, occupatio interveniens is a mixed form between occupatio bellica and occupatio pacifica. See ibid.

91

See e.g. O. Uhler, Der völkerrechtliche Schutz…, 1950, p. 34.

92

See B. Meissner, Die Sowjetunion, die baltischen Staaten und das Völkerrecht, p. 223 et seq.

93

For an overview, see B. Meissner, op. cit., p. 226 et seq. See also R. Laun, Haager LKO, p. 104 et seq.

94

See B. Meissner, op. cit., p. 226 et seq.

95

See Geneva Convention Relative to the Protection of Civilian Persons in Time of War of August 12, 1949, especially Section III (‘Occupied territories’).

96

See the first passage of the Article 51 of the Fourth Geneva Convention (‘The Occupying Power may not compel protected persons to serve in its armed or auxiliary forces. No pressure or propaganda which aims at securing voluntary enlistment is permitted.’)

97

Several politicians in the early 1990s argued that as the Geneva Convention forbids the settling of colonists in occupied territory, the Baltic States have the right to use social and economic pressure to make them leave. See Lieven, The Baltic Revolution…, p. xxvii.

98

In those cases, the occupation policy went far beyond the provisions for military occupation contained in the 1907 Hague Regulations.

99

See e.g. R. Laun, Die Haager Landkriegsordnung. (Das Übereinkommen über die Gesetze und Gebräuche des Landkrieges.), 4. Aufl., Wolfenblüttel: Wolfenblütteler Verlagsanstalt G.m.b.H, 1949.

100

See e.g. T. Schweisfurth, ‘Germany, Occupation After World War II’, in: EPIL, p. 196 et seq.

101

See the ‘Act of Military Surrender’ of May 7/8, 1945.

102

G. Abi-Saab, Conclusions. les Nations Unies et le Droit International Humanitaire. Actes du Colloque International de l’Université de Genève, Paris: A. Pedone, 1996, p. 309. Abi-Saab thus advocates monitors and other mechanisms of scrutiny to overcome the problem of indeterminacy in international humanitarian law.

103

D. Kennedy, ‘Theses about International Law Discourse’, 23 GYBIL 1980, p. 353 at 376.

104

See for a similar conclusion: D.A. Loeber, ‘Forced Incorporation: International Law Aspects of the Soviet Takeover of Latvia in 1940’, in: R. Clark F. Feldbrugge, S. Pomorski (eds.) International and National Law in Russia and Eastern Europe, The Hague: M. Nijhoff, 2001, pp. 225–259, p. 259.

105

See already M. Brakas, ‘Lithuania’s International Status: Some Legal Aspects’, 38 Baltic Review (August 1971), p. 14.

106

See for this concept: S. Cybichowski, ‘Das völkerrechtliche Okkupationsrecht’, Z. für VR 1934, p. 318.

107

Cf. A. Roberts, ‘Prolonged Military Occupation’, p. 44.

108

For special considerations in the cases of ‘prolonged occupation’, see A. Roberts, ‘Prolonged Military Occupation…’, AJIL 1990, p. 44 et seq.

109

T. Schweisfurth, ‘Soviet Union, Dissolution’, in: EPIL, Vol. 4, 2000, pp. 529–547 at 540.

110

Cf. P. Guggenheim, op. cit., t. I, p. 443: ‘Le droit des gens, qui est un droit primitif, ne dispose pas d’une technique assez évoluée pour pouvoir contester tout validité juridique à un pouvoir politique créé en violation du droit, mais durable et effectif.

111

A. Ross, ‘Denmark’s Legal Status’, p. 7.

112

Cf. the legal opinion of the US Department of the Army of December 10, 1946, JIR. Vol. 6, 1956, 300. See also T. Schweisfurth, ‘Germany, Occupation After World War II’, EPIL, p. 196 et seq.

113

Cf. Roberts, ‘Prolonged Military Occupation’, pp. 49, 52 and 70 et seq.

114

See M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument, 1989. See also M. Koskenniemi, ‘The Politics of International Law’, 1 EJIL 1989, pp. 4–32 at 9.

115

See E. Sarv, Õiguse vastu ei saa ükski…, p. 193 and 227. (The ‘ethnic cleansing’ pursued by the Soviets in Estonia as a ‘war crime’; the ‘settlement of Soviet citizens in occupied Estonia’ as ‘a blatant violation of Article 49 of the IV Geneva Convention.’) For Sarv’s elaboration of the Soviet ‘civil occupation’, see ibid., p. 47 et seq.

116

See representative of Russia, S. Chernychenko during deliberations at the UN Economic and Social Council, Commission on Human Rights. Sub-Commission on Prevention of Discrimination and Protection of Minorities, 33rd Meeting, Geneva, 26 August 1992, E/CN.4/Sub.2/1992/SR.33, p. 16. Interestingly, this view carries continuity with the Soviet tu quoque-rhetoric. See e.g. V.P. Karpov, ‘The Soviet Concept of Peaceful Coexistence and Its Implications for International Law’, in: H.W. Baade (ed.) The Soviet Impact on International Law, Dobbs Ferry, NY: Oceana, 1965, p. 20 (criticizing ‘some resolutions’ of the US Congress from the point of view of the principle of the inviolability of borders: ‘I would say this is roughly the same as if the parliament of Mexico, for example, would have passed a resolution demanding that Texas, Arizona, and California be ‘liberated from American slavery.’)

117

See generally on the effects of recognition: J. Verhoeven, La reconnaissance…, 1975, p. 665 et seq.

118

See Koskenniemi and Lehto, AFDI 1992, p. 198. “It is doubtful whether the fiction of continuity is necessary to achieve the legal consequences already arising from recognition of the illegality of occupation.”

119

See B. Meissner, ‘Die Souveränität der baltischen Nationen’ (1980), in: B. Meissner, Die baltischen Staaten im weltpolitischen und völkerrechdichen Wandel. Beiträge 1954–1994, Hamburg: Bibliotheca Baltica, 1995, pp. 174–195.

120

Ibid. p. 181.

121

‘…haben die baltischen Nationen ihre staatliche Selbständigkeit im vollen Umfange eingebüßt.’ See Meissner, ibid., p. 182. Professor Meissner goes on to elaborate on this: ‘Auch die meisten Staaten, die erst nach dem Zweiten Weltkrieg diplomatische Beziehungen mit der Sowjetunion aufgenommen haben, dürften von dem bestehenden Gebietsstand der Sowjetunion ausgehen, ohne zu seiner völkerrechtlichen Problematik Stellung bezogen zu haben. Diese Staaten werden daher auch nicht die sowjetische Behauptung in Zweifel ziehen, daß die baltischen Unionsrepubliken Gliedstaaten der Sowjetunion darstellen.’ Ibid. p. 182.

122

H. Krieger, Das Effektivitätsprinzip im Völkerrecht, p. 455.

123

See J. Verhoeven, ‘La reconnaissance internationale: déclin ou renouveau?’, 39 AFDI 1993, pp. 7–40 at 36. “Prohibition of the use of force and nullity of a title that would claim to be based on it are one thing, the existence or disappearance of the victim State is another.”

124

See ibid. p. 37. “Upsets the traditional conception of the State… ordinarily, it arises or dies from the presence or absence of elements of pure fact: a territory, a population, an independent government.”

125

See ibid. p. 38. “Is it needful to go so far as to deny that the state was born or died on the grounds that it was born illegally?”; “One can only hesitate to admit it…”

126

See ibid. p. 39. “It is better then—at least in the present state of affairs—to let effectivity alone decide the birth or death of the state. It is probably more realistic and perhaps more cautious.”

127

Few lawyers, however, would today—due to the undeniable developments towards the strengthening of the international legal order after World War II—formulate it as strongly as Hans Kelsen did when in 1932 he expressed the view that ‘… (das) Völkerrecht seiner technischen Struktur nach den Typus einer primitive n Rechtsordnung darstellt und daß es, wenn überhaupt als Recht, so nur als primitives Recht gedeutet werden kann.’ See H. Kelsen, ‘Unrecht und Unrechtsfolge im Vökerrecht’, XII ZöR 1932, pp. 481–606 at 481.

128

We agree with the analysis of James Crawford: ‘… international law risks being ineffective precisely if it does not challenge effective but illegal situations. (…) the argument that international law cannot regulate or control effective territorial entities is an expression of the view that international law cannot regulate power politics at all.’ See Crawford, ‘The Criteria of Statehood…’, p. 145.

129

H. Bull, The Anarchical Society, A Study of Order in World Politics, 2nd ed., New York: Columbia Up, 1995, p. 88 (quoting Mazrui.)

130

H. Morgenthau, ‘Positivism, Functionalism and International Law’, 34 AJIL 1940, p. 267.

131

See M. Mutua, ‘What is TWAIL?’, in: ASIL Proceedings of the 94th Annual Meeting, April 5–8, 2000, p. 31.

132

G. Radbruch, Rechtsphilosophie, 4. Aufl., herausg. von Erik Wolf, p. 288. “The normative force of the factual is a paradox, from ‘being’ alone a ‘should’ can never arise, a fact such as the view of a certain epoch in time can only become normative if a norm has enclosed this normativity with it.” See almost identically Karl Doehring: ‘Effectiveness is only legally relevant insofar as the legal system permits it. Effectiveness alone as a consequence of a mere factual event does not create rights.’ K. Doehring, ‘Effectiveness’, EPIL, Vol 7, p. 70. And surprisingly, even Kelsen argued in this context that ‘Legal consequences cannot simply be deduced from facts, but only from legal rules which confer upon facts the effect of creating new law.’ See H. Kelsen, Principles of International Law, 2nd. ed., ed. by R. Tucker, 1966, pp. 721–722.

133

K. Marek, Idenity and Continuity … 2nd ed., 1968, p. 581. In 1956 Boris Meissner came to similar conclusions: ‘Somit haben die baltischen Staaten ihre Völkerrechtssubjektivität nicht eingebuß. Da sie im Rechtssinne nicht untergegangen sind, besteht mit ihrer Staatsangehörigkeit und ihrer Rechtsverfassung grundsätzlich auch ihr materielles Recht nach dem Stand von 1940 weiter.’ Meissner, op. cit., p. 309.

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Illegal Annexation and State Continuity

The Case of the Incorporation of the Baltic States by the USSR. Second Revised Edition

Series:  The Erik Castrén Institute Monographs on International Law and Human Rights, Volume: 20