Illegal Annexation and State Continuity

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


This volume, now in its second and revised edition, deals with the legal status of the three Baltic States - Estonia, Latvia and Lithuania - as a consequence of the illegality of the Soviet annexation in 1940-1991. It offers a detailed historical overview of the Soviet takeover of the Baltic States in 1939/1940 and analysis of international law as it was in force, also regionally and bilaterally, at the time. It examines the role of the continuity of the diplomatic representations of the Baltic States and other manifestations of the Western non-recognition of the Soviet annexation. Moreover, the book examines the nature of the restoration of the Baltic States in 1991 based on their State continuity claim. It also studies in detail questions such as borders, citizenship and reparation claims, and asks to what extent State continuity could or could not be restored in practice. Compared to the first edition, the text has been updated (for example, on developments regarding border treaties) but also more background references have been added on the history of the Baltic States, Soviet and post-Soviet Russian responses to the continuity claim of the Baltic States, etc. The book interprets the Soviet annexation and Baltic States' continuity case against the wider backdrop of developments in international law in the 20th century and argues that the outcome reflected important normative developments in international law, away from mere effectivity. The case of the Baltic States will be relevant for current and future cases of illegal annexation, following the threat and use of military force prohibited under international law.
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Lauri Mälksoo is Professor of International Law at the University of Tartu, Estonia, and a Member of the Institut de Droit International. He is a member of the Estonian Academy of Sciences and, from 2021, a member of the European Commission for Democracy through Law (the Venice Commission). He received his legal education at the University of Tartu, Georgetown University (LL.M) and Humboldt University Berlin (PhD). He has conducted post-doctoral studies at New York University, the University of Tokyo and has been research fellow at Woodrow Wilson International Center for Scholars in Washington, DC. He is co-editor-in-chief of the Baltic Yearbook of International Law (Brill-Nijhoff) and belongs to the editorial board of the Review of Central and East European Law (Brill-Nijhoff) as well as the advisory board of the Journal of the History of International Law (Brill-Nijhoff).
Preface to the First Edition
Preface to the Second Edition


PART I: Ex Injuria Ius Non Oritur

1 Illegal Annexation, State Continuity and Identity: Concepts and Controversies
 1 The Changing Status of Statehood in Contemporary International Law and Society: Starting Point for Analysis
 2 Re-established States in the Practice of International Relations: Historical Perspective
 3 State Continuity, Identity and Extinction in International Law Doctrine
 4 Issues Raised in Legal Doctrine by World War II Annexation Cases
  a Does State Identity Always Imply State Continuity?
  b What are the Normative Consequences of State Identity?
  c The Basis in International Law for State Identity in World War II Annexation Cases
 5 Implications of the Illegality of Annexation for State Personality

2 The Legal Status of the Baltic States in International Law after 1991: Claims and Responses
 1 The Baltic Thesis
  a The Republic of Estonia
  b Republic of Latvia
  c Republic of Lithuania
 2 Responses to the Baltic Continuity Thesis in the Practice of the International Community
  a Restoration of Diplomatic Relations with Western Countries in 1991
  b Subsequent Treaty Practice: Multilateral Treaties
  c Practice Related to Bilateral Treaties
  d Other Consequences of State Identity in Relations with Western States
  e Practice as Related to Membership in International Organizations
  f The Continuity Thesis of the Baltic States and the Russian Federation
 3 The Legal Status of the Baltic States: Views in the Legal Literature

3 The Baltic States Between 1940 and 1991: Illegality and/or Prescription
 1 Introduction
 2 The Illegality of Soviet Annexation
  a The Soviet Occupation and Annexation of the Baltic States in 1940: Facts
  b Soviet Occupation and Annexation of the Baltic States: Applicable Law
  c Legal Evaluation of Soviet Policy against the Baltic States in 1939/1940
  d The Illegality of Annexation in International Law: Soviet Views
  e The Illegality of Soviet Annexation: General Conclusions
 3 Prescription and Soviet Rule in the Illegally Annexed Baltic States
  a The Concept of Prescription in International Law
  b Non-Recognition of the Soviet Annexation of the Baltic States: Law and Politics
  c Survival of State Organs of the Baltic Republics in Exile
  d The Baltic Peoples and Prescription
 4 Prescription? Conclusions

4 The ‘Occupation’ of the Baltic States (1940–1991)?
 1 The Baltic Thesis of Soviet Occupation (1940–1941, 1944–1991)
 2 Reception of the Baltic Thesis of Soviet ‘Occupation’
 3 Development of the Concept of Occupation in International Law
  a Were/Are the 1907 Hague Rules Applicable Beyond War?
  b Occupation Versus Annexation
  c The Main Requirements of the 1907 Hague Regulations for the Occupying Power and Practice in World War II
 4 An Evaluation of the Baltic Case: Fiction and Reality in Occupation Theory
  a The Soviet Union and the Hague Regulations
  b Which Rules of Occupation were Legally Applicable in the Case of the Baltic states?
  c Conclusions: International Legal Rules Binding the USSR during its Occupation (Illegal Annexation) of the Baltic States
 5 Conclusion: The Baltic States 1940–1991, Continuity or Extinction?

PART II: Ex Factis Oritur Ius

1 Introduction

5 Controversial Claims for Restoration of Legal Rights in the Baltic Case
 1 The Prevailing Understanding of State Continuity in Doctrine
 2 Special Circumstances in the Baltic Case
 3 The Controversy about the Principle of Continuity of Citizenship and the Political Rights of Soviet Era Immigrants
  a Introduction
  b The Migration Policies of the Soviet Authorities
  c The Citizens’ Congresses in Estonia and Latvia in 1990
  d Baltic Debates about the Political Rights of Russian-Speaking Settlers in the Early 1990s
  e Baltic Nationality and Naturalization Laws
  f Acceptance by the International Community of Continuity of the Nationality Principle in Estonian and Latvian Citizenship Laws
  g Conclusion: No Unrestricted Restoration of Nationality in the Baltic Case
 4 Changes with Respect to State Territories: Border Disputes since Restoration of the Independence of the Baltic States
  a Estonia
  b Latvia
  c The Boundaries of Lithuania
  d The Border Debate: Legal Issues
  e The Border Debate: Conclusions
 5 The Issue of State Responsibility for Injuries Caused During Illegal Soviet Annexation
  a Introduction
  b Main Principles of the Law of State Responsibility
  c On Conditions of State Responsibility in the Case of the Baltic States: the Issue of Attributability (the International Legal Status of Today’s Russia)
  d The Reparations Issue After Re-establishment of Baltic Independence
  e The Reparations Issue: Conclusions
 6 General Conclusion from Practice: The Discrepancy between Status and Rights

6 State Continuity in Cases of Prolonged Illegal Annexation: Status and/or Rights?
 1 Introduction
 2 Realist Critiques of International Law
 3 The New Haven Approach and New Stream: Politics in International Law
 4 Doctrinal Proposal: Status Goes beyond Legal Rights and Duties
 5 The Domestic Analogy of Restoration in the Baltic States: No restitutio in integrum
 6 Conclusions

PART III: Between Normativity and Power: The Implications of the Baltic Case for International Law

7 The Baltic Case and Lessons from Other Cases
 1 Introduction
 2 Illegal Annexation and State Continuity
  a The Annexation of East Timor and the Uncertainties of Non-Recognition in State Practice
  b State Continuity as a Necessary Consequence of Illegality of Annexation
  c Other Relevant Factors Beside Illegality? Precedential Effects
 3 Departures from the Effectiveness Principle and Fear of Unfulfilled Fictions
  a Legality and Effectiveness in Tibet
 4 Concluding Observations

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