State Continuity in the Light of Estonian Treaties Concluded before World War II

• Author: Hannes Vallikivi, Tanel Kerikmäe
• Pages: 30-39

Hannes Vallikivi, Tanel Kerikmäe

State Continuity in the Light of Estonian Treaties Concluded before World War II

The Republic of Estonia as a new state emerged in 1918, separating from Russia undergoing a period of confusion. Estonian soldiers who had taken over the front from the retreating German army at the end of the First World War won the War of Independence against the troops of Soviet Russia. The victory was formalised with the Tartu Peace Treaty (2 February 1920) ² , which recognised the independence and sovereignty of the state of Estonia and the waiver by Russia of the rights of a sovereign with regard to the Estonian nation and country forever. The Tartu Peace Treaty also determined the border between Estonia and Russia.

The Soviet Union "resorted to revanchism" in the summer of 1940. Europe, which had once again sunk into confusion, could observe how the Republic of Estonia, Republic of Latvia and Republic of Lithuania, members of the League of Nations were annexed by the Soviet Union at a direct military threat. ³ The Treaty on Mutual Assistance between Estonia and the Soviet Union (28 September 1939) ⁴ , supported by the so-called Molotov-Ribbentrop Secret Protocol (23 August 1939) ⁵ assigned to the Soviet Union the right to rent some marine bases and airfields on the Estonian territory (article III) and provided the prerequisites for the presentation of an ultimatum (16 June 1940) ⁶ , which demanded that army units of the Soviet Union be brought to the crucial centres in Estonia and that a new pro-Soviet government be established. As a result of the formal arrangement of the new government and the actual arrangement of the embassy of the Soviet Union, 14-15 July 1940, an extraordinary election to the lower chamber of the parliament (State Council) took place with two candidates in only one out of 80 electoral districts and all the opposing candidates of the pro-Soviet Estonian League of Working People were removed by the persons arranging the elections; the upper chamber remained unformed. ⁷ The new State Council adopted a declaration (22 July 1940), asking the Supreme Council of the Soviet Union to admit the Estonian Soviet Socialist Republic to the Soviet Union. On 6 August 1940, the Supreme Council of the Soviet Union "granted the request of the State Council of Estonia".

The majority of the states in the world disapproved of the annexation and the membership of the Baltic states of the Soviet Union was not recognised (at least de iure) for decades. ⁸ The procedure for the re-establishment of independence starting in 1987-1988 and involving the entire population of Estonia, Latvia and Lithuania culminated in August 1991, when the failing coup d'état in Moscow (19-22 August 1991) provided an impetus for the formal liberation (as regarded by the Soviet Union) of these states from the Soviet Union. The Baltic peoples who became members of the UN in less than a month (17 September 1991) after the coup d'état in August convincingly declared the re-establishment of their sovereign states and ruled out the creation of a new state. ⁹ In 1991, many states declared that they would re-establish their diplomatic relations with Estonia, not establish relations with a newcomer. ¹⁰

When a state re-establishes its sovereignty after illegal occupation or annexation, its international rights and obligations are automatically recovered as a rule. In 1918-1940, Estonia concluded over 210 bilateral treaties and was a party to over 80 multilateral conventions. R. Müllerson has written about them: "Still, most treaties concluded more than fifty years ago by the Baltic states had become obsolete. It is clear that restitutio ad integrum after more than fifty years is more often a legal fiction than a realistic option." ¹¹ While consenting to this argument, we still have to ask whether the refusal to de iure recognise the use of force by the Soviet Union against the Baltic states, or the desire of the Baltic peoples - both those who remained on the occupied territory and those who moved on to the free world as refugees - to re-establish their independence instead of accepting sovereignty as a donation from the occupying state was not equally fictitious.

As there is no precedent similar to the re-establishment of independence of the Baltic states, we have to ask if restitutio ad integrum is inevitable in case of continuity of a state and to what extent would its application be possible and reasonable. Here we face a collision of ethical arguments - the right of political self-determination of a social entity, carrying the same and stable identity and capable of existing as a state is not refuted by the actual power of any other social entity, however long-lasting, over this social entity -, and practical arguments - the relationships emerging from the life of a social entity that has lasted over a sufficiently long period and organised as a state have become so stable that their abrupt replacement with old relationships excessively destabilises the life of this social entity. Although these contrasts rather imply the national dilemma of restitutio, the same ethical and practical statements are weighed also in international politics.

The present remarks raise the most important aspects of the issue of the identity and continuity of states under international law: under what conditions can the situation created through occupation be regarded as fixed to the extent that the continuity of the occupied state ceases? In what activities has the re-established state's status to manifest itself in order that one could speak of continuity? Must - and can - the re-establishment of sovereignty after a considerable period be complete? If no, to what extent does international law allow re-establishment of the legal relations applicable before the occupation? Answers to these questions would create a legal basis for Estonian continuity-based legal policy in communicating with other states or international organisations. It is likely that these answers will also develop international law, offering a fulcrum for the treatment of states restored after annexation. The purpose of this paper is to examine the relevance of the issue of continuity and to map the fields of international treaty law to be examined in order to provide answers to the above-mentioned questions.

The authors find that the issue of continuity is currently in a latent phase in Estonian law. First attempts to clarify the standpoints of Estonia's counterparties have been made. Various opinions have been brought out, but the rise of new foreign policy priorities has pushed the issue of earlier treaties aside. In the following section, we will demonstrate that the actual relevance of this issue with regard to foreign and internal policy is substantial.

Relevance of Issue

The issue concerning the validity and applicability of continuing treaties is characterised by a more practical significance than the re-establishment of historical justice or investigation into the conscience of international community. We would like to offer three examples where the validity or invalidity of Estonian treaties concluded before 1940 could have far-ranging consequences: determination of the Estonian-Russian border, restitution of the property of Baltic-German émigrés in the course of the ownership reform and the compatibility of Estonian international obligations with the acquis upon accession to the European Union.

From among the treaties concluded before the Second World War, the Tartu Peace Treaty emerges as relevant to the sovereignty of Estonia ¹² ; it has been laid down expressis verbis in § 122 of the valid Estonian Constitution: "The land border of Estonia shall be established by the Tartu Peace Treaty of 2 February 1920 and the other interstate border treaties ..." The first principal matter agreed upon at the Tartu peace conference (January 1920) was the recognition of Estonian independence. Unconditional recognition of independence and determination of the state border marked a critical turn both in the stabilisation of interstate relations and development of Estonia's statehood. In the border negotiations with the Russian Federation held in the 1990s, Estonia has proceeded from the principle of continuity and regarded the Tartu Peace Treaty as valid and binding. Russia has viewed the Treaty as "a historical document" and disregarded its legally binding nature with regard to interstate relations. The principle of rebus sic stantibus has been used, although article 62 of the Vienna Convention on the Law of Treaties does not permit that to be done by a state due to whose activities aimed against international law the treaty could not be complied with. Also, article 62 refers to the fact that a fundamental change of circumstances may not be invoked with regard to treaties establishing a boundary, of which a part of the Tartu Peace Treaty (article III) is. At the moment, the Petroskoy draft boundary agreement, in compliance with which the boundary established by the Tartu Peace Treaty was changed to Estonia's disadvantage is ready to be signed. According to one opinion, the government of Estonia has, through consenting to the new boundary agreement, abandoned the principle of continuity as a priority because the above-mentioned § 122 of the Constitution assigns constitutional force to article 3 of the Tartu Peace Treaty, laying down the geographical position of the border ("The frontier between Estonia and Russia take the following course: ..."). The persons protecting this step taken by the government of Estonia (Realpolitiker) refer to the wording of § 122 of the valid Constitution, pointing out that the border is not exclusively regulated by this Treaty but the principle of lex specialis applies.

Disregard of the...