Which Continuity: The Tartu Peace Treaty of 2 February 1920, the Estonian-Russian Border Treaties of 18 May 2005, and the Legal Debate about Estonia’s Status in International Law

Author:Lauri Mälksoo
Position:Docent of International Law, University of Tartu

1. Introduction - 2. The diplomacy of legal positions during Estonian-Russian border negotiations in 1991-2005 - 3. The debate about the validity of the Tartu Peace Treaty: historical symbolism and the pursuit of recognition - 4. Legal questions concerning future solutions - 5. Summary


Lauri Mälksoo

Docent of International Law, University of Tartu

Which Continuity: The Tartu Peace Treaty of 2 February 1920, the Estonian-Russian Border Treaties of 18 May 2005, and the Legal Debate about Estonia's Status in International Law

1. Introduction

On 18 May 2005 in Moscow, the foreign ministers of the Republic of Estonia and the Russian Federation signed the treaties establishing the mutual state borders at land and at sea. Except for slight modifications to the current control line, the treaties essentially recognise the current Estonian-Russian control line as the state border. The substance of the treaties had been negotiated during the mid-1990s, but the signing had been postponed by the Russian Federation. Russia claimed that it would not sign the border treaties until other contested political issues between the Russian Federation and the Republic of Estonia were resolved in a satisfactory manner. Political analysts have suggested that Moscow's willingness to sign the treaties was enhanced by the accession of the Republic of Estonia to the EU on 1 May 2004. On the one hand, the absence of the border treaties did not become an obstacle to Estonian accession to the EU, since Estonia could claim that it had been ready to sign the treaties since, at the latest, their initialling in Saint Petersburg on 5 March 1999. On the other hand, it has grown more urgent for Russia to have its western borders officially recognised, as Russia has expressed its interest in achieving visa freedom for its citizens within the EU and Brussels insisted that resolution of the border issues with Estonia and Latvia be one of the inevitable preconditions for this.

The Estonian parliament, the Riigikogu, ratified the border treaties on 20 June 2005 - i.e., approximately one month after their signing1. The law of ratification, as adopted by the Riigikogu, contains an introductory declaration2 that has been mistakenly termed a 'preamble' by various of the media. The introductory declaration states that the treaties were ratified 'proceeding from the legal continuity of the Republic of Estonia proclaimed on 24 February 1918, as it is established in the Constitution of the Republic of Estonia, in the 20 August 1991 decision of the Supreme Council of the Republic of Estonia "On the Independence of Estonia" and in the 7 October 1992 declaration of the Riigikogu "On the Restoration of the Constitutional State Power"'. The declaration adopted by the Riigikogu in connection with the ratification of the border treaties goes on to say that the land border treaty concluded with Russia 'partially changes the line of the state border established in article III, para. 1 of the Tartu Peace Treaty of 2 February 1920, does not have impact on the rest of the [Tartu Peace] Treaty, and does not determine the treatment of other bilateral questions that are not connected to the border treaty'.

The Russian reaction to the outcome of the ratification procedure in the Riigikogu was negative. Mikhail Margelov, a leading Russian foreign policy maker, expressed his dissatisfaction about the fact that Estonia 'reduced us to 1918 in the final version' while 'the treaty's architects used the 1944 borders as a basis'3. Margelov argued that this would leave it open for the Republic of Estonia to present 'territorial claims' in the future. Moreover, Russian foreign policy officials argued that the Estonian foreign minister, Urmas Paet, had promised in Moscow on 18 May 2005 that Estonia would not add any additional declaration to the law of ratification (a claim that was rebuffed by the Estonian minister of foreign affairs). As the parliamentarians were quick to point out, would a promise indeed have been made, it would have had to be regarded as non-binding for the legislative body.

On 27 June 2005, the Russian ministry of foreign affairs delivered a note to the Estonian ambassador in Moscow, informing Estonia about Russia's decision to start its domestic procedures to free itself from legal obligations stemming from the signing of the border treaties. On 1 September 2005, President of the Russian Federation Vladimir Putin signed an order rescinding Russia's signature of the border treaties with Estonia.

Why then did such a declaration on the part of the Riigikogu turn out to be so disturbing for the Russian Federation that its president went so far as to rescind Russia's signature? And what explains the adoption of such a declaration by the Riigikogu in the first place? Are not Russia and Estonia interested in the establishment of an undisputed common border under international law? Is there some rationality in the adoption of such a declaration by the Riigikogu, in its rejection by Moscow, or in both?

These questions have both legal and political aspects, and it is hardly possible to understand the legal issues without understanding the different political positions of the parties. Therefore, before the law can be addressed, relevant diplomatic and political exposition has to be provided.

2. The diplomacy of legal positions during Estonian-Russian border negotiations in 1991-2005

In order to understand the meaning and context of the declaration made at the ratification of the border treaties by the Estonian parliament, one needs to look back at the history of the Russian-Estonian border negotiations of the 1990s. On 20 August 1991, the Supreme Soviet of the Republic of Estonia4 proclaimed the restoration of the Republic of Estonia. Due to the illegality of the Soviet occupation and annexation of 1940, the Republic of Estonia proclaimed legal identity and continuity with its pre-World-War-II namesake5. Soviet Russia had recognised the independence of the Republic of Estonia in the Tartu Peace Treaty of 2 February 1920. Since this treaty6 was signed following the Estonian War of Independence (1918-1920), the borders established by it reflected Estonia's military and diplomatic success. Several villages beyond the river of Narva and in Setumaa (Pechorski rayon) that were inhabited by a predominantly Russian-speaking population became part of the territory of the Republic of Estonia.

It lies in the logic of wars that the winners try to benefit from them. The same is true when what could otherwise be achieved only through a successful war can be achieved through other forms of pressure and force short of war. In 1940, the USSR was able, through a chain of ultimata and broken treaties, to incorporate the republics of Estonia, Latvia, and Lithuania in its composition, as Soviet republics. In 1941-1944, the Baltic States were occupied by Germany. The Red Army returned victorious in September 1944.

In 1944 and 1945, the USSR, 'responding to the demands of the local people', unilaterally 'corrected' the inner-Soviet border of the Russian SSFR with the Estonian and the Latvian SSRs. Approximately 5% of the pre-WWII territory of the...

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