State continuity of the Baltic states

The four countries on the Baltic Sea that were formerly parts of the Russian Empire – Finland, Estonia, Latvia and Lithuania – consolidated their borders and independence after the Estonian, Latvian and Lithuanian independence wars following the end of World War I by 1920 (see Treaty of Tartu, Latvian-Soviet Riga Peace Treaty and Soviet-Lithuanian Treaty of 1920). The European Great Powers accorded de jure recognition of Estonia and Latvia on 26 January 1921 and Lithuania on 20 December 1922. The United States extended de jure recognition to all three states on 28 July 1922. All three peace treaties between the respective Baltic states and Soviet Russia identically enshrined the right of self-determination and Russia renounced all previous rights and claims as final and permanent. This principle of self-determination reflected one of four key principles proclaimed by Lenin and Stalin on 15 November 1917 in the Declaration of the Soviet Government: "The right for Russia's peoples of free self-determination even unto separation and establishment of independent states." After the creation of the Union of Soviet Socialist Republics in 1922, the new union had by 6 July 1923 adopted all treaties entered into previously by Soviet Russia and the original peace treaties continued to be a basis for relations between the USSR and Estonia, Latvia, and Lithuania, respectively. In the subsequent decade, several bilateral and multilateral treaties and agreements regulating relations were entered into: • Protocol to bring into force the Pact of Paris (to which all four parties were original signatories), signed in Moscow on 9 February 1929, renouncing war as an instrument of national policy • bilateral Treaties of Non-Aggression signed with the respective Baltic states and the Soviet Union between 1926 and 1932 • Conciliation conventions related to the Non-Aggression treaties • Convention for the Definition of Aggression signed in London in July 1933 This Convention for the Definition of Aggression, an initiative of the Soviet Government, defined in Article 2 various acts as aggression, including naval blockades. The Convention also stipulates that "No political, military, economic or other consideration may serve as an excuse or justification for the aggression referred to in Article 2." Estonia Estonia adopted the Estonian Declaration of Independence on 24 February 1918. The document stated a number of principles such as freedom of expression, religion, assembly and association. These principles were further elaborated in the Provisional Constitution of Estonia () of 1919 and the first Constitution of 1920. Popular sovereignty was to be the basis of Estonia. Also, the second, presidential Constitution was based on popular sovereignty. Later the Constitution of 1938 was an attempt to return to democratic rule, but it still accorded powers to the president. Overall, in spite of internal political changes, Estonia was a legal, internationally recognized state in the years prior to 1940. This independence was interrupted in June 1940, in the aftermath of the Molotov–Ribbentrop Pact between Nazi Germany and the Soviet Union of August 1939. The Soviet Union used a similar pattern with all three Baltic states, beginning with ultimatums on the basis of alleged failures to fulfill mutual assistance pacts signed the previous year. The ultimatums had to be obeyed within hours, and soon after the Soviet troops marched into the capitals. The Soviets proposed and approved their new governments. Now, the new local governments seemingly made decisions which led to the annexation. In order to create an image of legitimacy, new elections were imposed under the presence of Soviet troops. The United States, along with a number of other states, did not recognise the occupation and annexation of the Baltic states. Latvia Latvia adopted the Declaration Establishing a Provisional Government of Latvia on 18 November 1918. In 1920, the freely elected Constitutional Assembly adopted two basic laws. The Satversme was adopted in 1922. However, Prime Minister Kārlis Ulmanis took power by a ''coup d'état'' and the parliament was dissolved in 1934. Lithuania After a century of foreign domination the Council of Lithuania adopted the Act of Independence of Lithuania on 16 February 1918. During the first decades of the Republic of Lithuania, three Constitutions were adopted in 1922, in 1928 and in 1938. The legislative institution of Lithuania was the freely elected parliament. However, Antanas Smetona took power by a ''coup d'état in 1926. He adopted the Constitution of 1928 which increased presidential power and reduced the size of parliament from 85 members to 49. In the Constitution'' of 1938, the president received broader powers, but the parliament was entrusted with legislation instead of the previous system of presidential decrees. Furthermore, the president was elected by the people for seven years. Soviet incorporation in international law The forcible annexation of the Baltic states was an illegal act under both customary and conventional international law. Under customary law the annexation violated the basic principles such as state sovereignty and independence, the prohibition against violent seizure of territory and the prohibition against intervention. In conventional law the actions of the Soviet Union violated practically every provision of every major convention between the Soviet Union and the respective Baltic states. The Secret Protocols with Germany were a violation of Article 2 of the Estonian and Latvian Non-Aggression treaties. The threat to use force and the ultimatum to conclude the Treaties of Mutual Assistance violated the spirit and letter of the respective Peace Treaties, the Non-Aggression Treaties, the Conciliation Conventions, the Kellogg–Briand Pact and the Protocol for the Renunciation of War. The Soviet action in the military occupation, forcible intervention and annexation constituted an act of aggression within the meaning of Article 2 of the Conventions for the Definition of Aggression of 1933, nor was there any justification according to Article 3 and the Annex of that same convention. ==Western non-recognition of annexation==

. . Baltic diplomatic sphere 1940–1991 Most of the countries in the Western Bloc refused to recognise the incorporation of the Baltic states de jure and only recognised the Soviet local "governments" in Estonian SSR, Latvian SSR and Lithuanian SSR de facto or not at all. Such countries recognized Estonian/Latvian/Lithuanian diplomats and consuls who still functioned in the name of their former governments. These aging diplomats persisted in this anomalous situation until the ultimate restoration of Baltic independence. During the period 1940–1991 the US continued to receive Baltic diplomats, first appointed in office by the Baltic governments before 1940, after 1980 by the Baltic diplomatic services’ senior members. The Soviet Foreign Ministry issued formal protests against the Baltic diplomatic missions remaining open in Washington, DC, and elsewhere. In 1947 a joint communication on the occupation of Baltic nations to the UN was sent by the Estonian, Latvian and Lithuanian diplomats abroad. The Baltic Appeal to the United Nations (now "Baltic Association to the United Nations") was formed in 1966. On 26 March 1949, the US State Department issued a circular stating that the Baltic states were still independent nations with their own diplomatic representatives. In Canada, the official list of diplomats included the offices of Estonia, Latvia, and Lithuania that in the early 1960s caused the Soviet Embassy in Canada to refuse to receive the lists distributed by the Canadian Department of External Affairs. The UN received numerous appeals from the Baltic diplomatic missions, Baltic refugee organizations, resistance groups in Baltic countries and the US diplomats and policy makers concerning the Baltic question. Due to the presence of the USSR in the Security Council, the questions were never raised on the official agenda of the UN. A joint appeal to the UN was made by the resistance groups in Baltic countries, calling the United Nations to denounce the Soviet occupation that resulted in the 1983 resolution of the European Parliament on the restoration of Baltic independence. Baltic assets 1940–1991 After the invasion of Denmark and Norway by Nazi Germany on 9 April 1940, President Franklin Delano Roosevelt issued Executive Order 8389, under which the United States Department of the Treasury froze all financial assets of occupied European countries in the US. After the Soviet occupation of Estonia, Latvia, and Lithuania, Executive Order 8389 was extended to the assets and properties of the three Baltic countries. During the first Soviet occupation in July 1940, the United States issued Executive Order 8484 which froze Latvian, Lithuanian and Estonian financial assets, including gold reserves. The freezing of Baltic assets by the US was condemned by the Soviet Union, and it was declared that there should not be any legal basis for delaying the transfer of the Baltic gold from the US Federal Reserve to the State Bank of the Soviet Union. partly as a retaliation of the nationalisation of British owned property in the Baltic countries by the USSR, but also because Britain considered annexation of the three countries unlawful. During the 1950s, the USSR claimed the gold regularly but was rejected. In 1967, the Labour government used the reserve in settling mutual claims with the Soviet Union. On 5 January 1968, an agreement between the UK and USSR was achieved, and the Soviet Union renounced all claims to the Baltic gold held in the Bank of England in return for the waiving of all claims by the UK arising from nationalizations in the USSR. In 1992 and 1993, the United Kingdom government transferred an equal amount of gold reserves equivalent to £90 million back to the Baltic countries. In 1991, Sweden promised Estonia to restitute the gold, and, in 1998, the Swedish government discovered the bank accounts belonging to Baltic nationalities. The French government refused to turn over the three tons of gold deposited in the Bank of France by Latvia and Lithuania to the USSR. The gold reserves deposited by the three Baltic states prior to 1940 into the Bank for International Settlements in Switzerland remained intact. After the Baltic countries regained independence in 1991, the Baltic gold was released to the central banks of Estonia, Latvia and Lithuania. Property After the 1940 occupation, there were issues related to the property of Baltic citizens abroad. The majority of foreign states refused to send Baltic ships in their ports to the Soviet Union. The Soviet government brought lawsuits against Canada, Ireland, the United Kingdom and the United States without results. American and British courts did not recognise the Soviet authority to the property of Baltic nationals. However, states gave Baltic legations and consulates to the Soviet Union, although some of transfers stipulated that the process did not involve legal title. At the end of the Second World War, the building housing the Estonian Legation in Berlin was placed under guardianship by the German authorities. On 23 September 1991, a German court lifted that guardianship and restored the property to Estonia. Liabilities On 4 December 1991, leaders of the "constituent republics" of the Soviet Union (which ceased to exist a few weeks later) signed the treaty on the division of the Soviet foreign debt. The three independent Baltic countries refused to participate in the process, and never signed the treaty. In 1993, the Russian Federation announced it would alone be responsible for the debt. Nevertheless, Russia insists that the international community legally recognised the incorporation of the Baltic states into the USSR at Yalta, Potsdam, and Helsinki, characterizing Helsinki as recognizing sovereign borders. 5. countries under communist rule that considered the annexation of the three Baltic countries into the USSR legal without reservation. 1. De jure and de facto non-recognition • – maintained official diplomatic relations, neither de jure nor de facto recognition accorded. After the opening of the US consulate in Leningrad in 1973, whose consular district included Tallinn, Riga and Vilnius, US officials began contacts with Soviet officials in Estonia, Latvia and Lithuania. The US consul general would not directly engage with the highest level Soviet state and Communist party officials in the three countries, but conducted visits to the three capitals and met with the deputy leaders in the state and party hierarchies. • – maintained official diplomatic relations, neither de jure nor de facto recognition accorded. on Whitlam's personal initiative as prime minister and acting foreign minister Recognition was withdrawn by the subsequent Fraser government in 1975. • – no final decision on non-recognition policy, no official relations with Baltic representatives • • (Taiwan) • • – no diplomatic relations with USSR • – no official relations • – maintained semi-official diplomatic relations, had no diplomatic relations with USSR until 1977, neither de jure nor de facto recognition accorded until 1977. • – In 1944, Sweden became one of the first among the few countries to recognize the Soviet occupation of the Baltic countries. In 1945, Sweden extradited approximately 170 men from the Baltic countries conscripted into the Waffen SS, who had fled Soviet re-occupation to find refuge in Sweden, to the Soviet Union. On 15 August 2011, Swedish Prime Minister Fredrik Reinfeldt officially apologized to the prime ministers of Estonia, Latvia, and Lithuania at a ceremony in Stockholm saying that "Sweden owes its Baltic neighbours a "debt of honour" for turning a blind eye to post-war Soviet occupation" and speaking of "a dark moment" in his country's history. Countries that had gained independence after World War II and did not make any special statements about the issue of the Baltic states when they negotiated diplomatic relations with the Soviet Union (implicitly) recognised the incorporation the Baltic states into the Soviet Union. As of the 1980s the Finnish consulate in Leningrad included Tallinn in its consular district, along with the Karelian ASSR. Finland continued diplomatic relations established in 1920 rather than recognise the Baltic states anew in 1991. • – While India did not formally express a position, the Prime Minister of India Indira Gandhi's trip to Tallinn during the 1982 state visit to the USSR implied recognition. • • 5. Countries within the Eastern Bloc that considered the annexation of the Baltic states legal • • • • • • • • ==Historical considerations==

The situation with the Baltic countries was not unique. In the aftermath of World War II, a debate sparked over which norms of international law were applicable to a number of other illegal annexations, such as annexation of Austria and Czechoslovakia by Nazi Germany in 1938. With dissolution of the Soviet Union, Georgia also expressed desire to be recognized as a successor to Democratic Republic of Georgia (1918–1921), but that was rejected mainly because its period of independence was deemed too short. ==Baltic states assert state continuity==

Estonia On 30 March 1990, the Estonian Supreme Council adopted the resolution on the state status of Estonia. The resolution announced that the independence of Estonia de jure had never been suspended even after the 1940 occupation. It declared the 1940 annexation illegal and began a transition to the restoration of de facto independence. A further resolution of the restoration of the Republic of Estonia was adopted on 20 August 1991. The new Constitution was introduced on 29 July 1992. It was approved via a referendum in accordance with the Constitution of 1938, serving further the claims to constitutional continuity. Estonia's official position since 1990 has been that the election for the "People's Riigikogu" was illegal and unconstitutional, since it was held under an amended electoral law that was passed only by the lower house, the Chamber of Deputies. The upper house, the National Council, had been dissolved shortly after the occupation; the Estonian Constitution explicitly required bills to be passed by both chambers to become law. The National Council was never reconvened, and the 1940 election was only for the Chamber of Deputies. According to August Rei, one of independent Estonia's last envoys to Moscow, under the Estonian constitution, the Chamber of Deputies had "no legislative power" apart from the National Council. Constitutional law On statehood of the Republic of Latvia declaring immediate restoration of full independence was adopted on 21 August 1991. The fifth parliament was elected in 1993, which fully restored the Constitution of 1922 and upheld the legal continuity of the Republic of Latvia. Lithuania Lithuania adopted a Resolution on the Liquidation of the 1939 Germany–USSR Agreements and their Consequences on 7 February 1990. Unlike Estonia and Latvia, Lithuania proclaimed the re-establishment of the State of Lithuania on 11 March 1990 without a transitional period. The act emphasised the 1918 act and the 1920 resolution for the purposes of constitutional continuity. Also, for a brief period during the voting, the Supreme Council temporarily restored the 1938 Constitution of Lithuania. The ''Congress of People's Deputies'' adopted a resolution on 15 March 1990 in which Lithuania's decision violated the Constitution of the Soviet Union. At the same time, the Supreme Council recognised that it was impossible to reconstruct the system as it had existed in 1940. The new Constitution was adopted on 25 October 1992. Since then, Lithuania's official arguments against the validity of the annexation have focused on Smetona's actions after the occupation. Smetona left the country on 14 June, soon after the troops arrived, and transferred his powers on an interim basis to Prime Minister Antanas Merkys, who stood first in the line of succession to the presidency. On 15 June, Merkys announced he had deposed Smetona and was now president in his own right. On 17 June, the Soviets forced Merkys to appoint the more pliant Justas Paleckis as prime minister. Merkys himself resigned under Soviet pressure later that day, making Paleckis acting president. Lithuania now maintains that Smetona never resigned, rendering Merkys' takeover of the presidency illegal and unconstitutional. Therefore, Lithuania does not recognize Merkys or Paleckis as legitimate presidents, and claims that all actions leading to the Soviet annexation were ipso facto void. ==Baltic state continuity and international law==

The Montevideo Convention in 1933 was an attempt to list a legal concept of statehood. According to the definition the state has to have a territory, a permanent population, an effective government and the capacity to enter into international relations. However, already during the interwar period, the interpretation and application of the criteria were far from easy, such as the case of Åland. The concept of statehood in international law cannot be explained by mere reference to the Montevideo Convention. Decisions on statehood are taken in given circumstances and at the moment in time. The Baltic states also base their claim to state continuity on two additional rules; the prohibition of the use of force in international relations and the right to self-determination, as expressed in free and fair elections. The former rule was the Baltic states' answer to Soviet claims that they had to follow the process of secession under the Soviet Constitution of 1977. The Baltic states argued that they joined only as the result of a forcible occupation. They add that the elections to the "People's Parliaments" were illegal, unconstitutional and fraudulent, and that the legislatures served only to rubber-stamp the occupation. ==International reactions to the restoration of Baltic independence==

International organisations The European Communities welcomed the restoration of the sovereignty and independence on 27 August 1991. The Soviet Union recognised the Baltic independence on 6 September 1991. The Conference for Security and Co-operation in Europe admitted the Baltic states as new members on 10 September 1991. The Parliamentary Assembly of the Council of Europe noted the Soviet Union violated the right of the Baltic people to self-determination. The acts of 1940 had resulted in occupation and illegal annexation. The Council also noted several member states reconfirmed the Baltic states recognition dating back to the 1920s, while other recognised them anew. Additionally the European Parliament, the European Court of Human Rights and the United Nations Human Rights Council, have declared the Baltic states were invaded, occupied and illegally incorporated into the Soviet Union under provisions The admission of Estonia, Latvia, and Lithuania to the United Nations took place in accordance with article four of the United Nations Charter. When the question of membership of the three sovereign countries was considered by the Security Council, the council made reference to the regained independence of the Baltic states. Initially, the amounts of three nations' membership contributions were calculated from the fees previously paid by the Soviet Union. After objections, the United Nations accepted the statements of the three Baltic member nations to the effect that they were not successor states of the Soviet Union. Estonia, Latvia, and Lithuania, all members of the former League of Nations were accepted to the United Nations as new members, due to the fact the League of Nations was not considered a legal predecessor of the United Nations. The Baltic states were members of the International Labour Organization since 1921. Its recognition was important in supporting the Baltic states in their claim to state continuity. The organisation accepted the three governments' claim to continue their previous membership, and accepted that the Baltic states continued to be bound by ILO conventions entered into prior to 1940. On that basis, the International Labour Organization considered the Baltic states had been readmitted, even though no formal decision determined it. Bilateral relations , 23 July 1940, establishing U.S. policy of non-recognition of forced incorporation of the Baltic states There were three different attitudes in relations to the Baltic states after the coup d'état in Moscow in August 1991. First, there were states which had diplomatic relations before 1940 occupation and they had never recognised the 1940 annexation either de jure or de facto. These states, for the most part, resumed diplomatic relations in 1991 without formal recognition. However, some of states considered necessary to re-recognise the Baltic states. Second, there were states which had diplomatic relations before 1940, but had recognised their annexation into the Soviet Union as fait accompli. Third, there were new states emerged after 1940. The United States position was originally based on the Stimson Doctrine applied to the Occupation and annexation of the Baltic states by the Welles Declaration. The legal continuity of the three Baltic states relies in big part on the Stimson Doctrine applied to the 1940 Soviet invasion, occupation and annexation of the Baltic states by the Welles Declaration. The Declaration enabled the Baltic states Estonia, Latvia and Lithuania to maintain independent diplomatic missions to the US, and the Executive Order 8484 protected Baltic financial assets between 1940-1991. This policy of non-recognition gave rise to the principle of legal continuity, which held that de jure, the Baltic states remained independent states under illegal occupation throughout the period 1940–91. Soviet Union and Russian Federation The last General Secretary of the Communist Party of the Soviet Union Mikhail Gorbachev established a 26-member Commission to evaluate the Molotov–Ribbentrop Pact and its Secret Protocols. The Commission agreed that the Pact existed and its content was contrary to Baltic–Soviet treaties. The Commission was not able to reach consensus on the effects of the pact, since it would open the possibility to Baltic exit from the Soviet Union. The issue has not been discussed in the Russian Federation since the report of the Commission in 1989. Contemporary Russian Federation has refused to be bound pre-1940 agreements which the Soviet Union had entered with either Estonia, Latvia, or Lithuania. The Ministry of Foreign Affairs of Russia has announced that the distortion of history and allegations of unlawful occupations are the main reasons for the problems in the Baltics–Russia relations. At the same time, the Russian Federation claims that it continues as the legal personality of the former Soviet Union. However, Russia claims that it did not inherit the obligations of the Soviet Union automatically. The decisions on continuity were made on a case by case basis and the Russian Federation weighted carefully the degree to which the continuity was its interest, especially in the field of bilateral relations and debts. European Court of Human Rights Following the admission of post-Soviet states into the Council of Europe in the second half of the 1990s, a number of cases related to the question of the legality of the Baltic states' membership in the Soviet Union were brought before the European Court of Human Rights. The Court made a number of rulings that affirmed the Baltic states were occupied and forcibly incorporated into the Soviet Union until 1991. On 16 March 2006 the Grand Chamber of the Court made the following statement in the case of Tatjana Ždanoka vs Latvia (paragraph 119 of its judgment): Latvia, together with the other Baltic States, lost its independence in 1940 in the aftermath of the partition of Europe between Germany and the USSR agreed by Adolf Hitler's Germany and Joseph Stalin's Soviet Union by way of the secret protocol to the Molotov-Ribbentrop Pact, an agreement contrary to the generally recognised principles of international law. The ensuing annexation of Latvia by the Soviet Union was orchestrated and conducted under the authority of the Communist Party of the Soviet Union (CPSU), the Communist Party of Latvia (CPL) being a satellite branch of the CPSU. Subsequently to Ždanoka, a number of other judgments and decisions were adopted by Chambers (smaller formations) of the Court in cases regarding issues ranging from the restriction of political rights of former Soviet politicians to criminal conviction for crimes against humanity, whereby the Court noted that illegal occupation of the Baltic States by the USSR had taken place in 1940 (see Kolk vs Estonia, Penart vs Estonia). In Penart vs Estonia, the Court declared inadmissible an application by a former USSR internal security service operative Vladimir Penart, convicted of crimes against humanity by an Estonian court for organizing the killing of "a person hiding in the woods" most probably a member of the Forest Brothers, a militant anti-Soviet movement in 1953. The court stated following: The Court notes, first, that Estonia lost its independence as a result of the Treaty of Non-Aggression between Germany and the Union of Soviet Socialist Republics (also known as "Molotov-Ribbentrop Pact"), concluded on 23 August 1939, and the secret additional protocols to it. Following an ultimatum to set up Soviet military bases in Estonia in 1939, a large-scale entry of the Soviet army into Estonia took place in June 1940. The lawful government of the country was overthrown and Soviet rule was imposed by force. The totalitarian communist regime of the Soviet Union conducted large-scale and systematic actions against the Estonian population, including, for example, the deportation of about 10,000 persons on 14 June 1941 and of more than 20,000 on 25 March 1949. After the Second World War, tens of thousands of persons went into hiding in the forests to avoid repression by the Soviet authorities; part of those in hiding actively resisted the occupation regime. According to the data of the security organs, about 1,500 persons were killed and almost 10,000 arrested in the course of the resistance movement of 1944–1953. Interrupted by the German occupation in 1941–1944, Estonia remained occupied by the Soviet Union until its restoration of independence in 1991. Accordingly, Estonia as a state was temporarily prevented from fulfilling its international commitments. The court's rulings appear favorable to several aspects, which are important with regard to restoration of the Baltic states including the legal continuity doctrine. The rulings confirmed that the USSR committed crimes in the illegally occupied Baltic states such as Soviet deportations from Estonia and, in case Tatjana Ždanoka vs Latvia, drew parallels between legal treatment of the German Waffen SS and hardline elements of the Communist Party of the Soviet Union. In the Russian Federation rulings of the court caused negative reaction among politicians and were characterized as "politicized." In the Baltic states the court rulings were accepted within the general lines of the Western non-recognition policy (see Stimson Doctrine). Notably, the Estonian Internal Security Service emphasized the importance of the decisions in its 2006 yearbook. ==See also==