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Part of a series on the
Occupation of the Baltic states
Baltic states Nazi Germany Soviet Union
Background Baltic–Soviet relations Non-aggression pacts Soviet–Estonian Soviet–Latvian Soviet–Lithuanian German–Estonian German–Latvian German–Lithuanian Molotov–Ribbentrop Pact
Soviet occupation in 1940 Mutual Assistance Treaties Soviet–Estonian Soviet-Latvian Soviet-Lithuanian Orzeł incident Ultimata to Estonia to Latvia to Lithuania People's Parliament Sovietization Deportations from Estonia from Latvia from Lithuania June deportation Welles Declaration
German occupationEstonia Occupation Resistance Holocaust Latvia Occupation Resistance Holocaust Lithuania Occupation Resistance Holocaust
Soviet re-occupation in 1944 Battle of Narva Baltic offensive Courland Pocket Guerrilla war in the Baltic states Latvian partisans Lithuanian partisans
Under Soviet rule Guerrilla war in the Baltic states Operation Priboi Operation Jungle Estonian SSR Latvian SSR Lithuanian SSR Territorial changes Baltic Way Singing Revolution Sąjūdis Tautas fronte Rahvarinne Congress of Estonia
State continuity Baltic diplomatic services (1940–91) Estonian Latvian Lithuanian Kersten Committee Helsinki Accords
Aftermath Estonia–Russia relations Latvia–Russia relations Lithuania–Russia relations Russians in Estonia Russians in Latvia Russians in Lithuania
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The state continuity of the Baltic states during the years under German and Soviet rule from 1940 to 1991 is a complex concept. The state continuity is related to the concept of sovereign state. Two competing maxims of the international law, ex injuria jus non oritur and ex factis jus oritur, together with other legal and political considerations resulted in a fundamental confrontation between the Baltic and Russian theses on continuity of the Baltic states and its related consequences according to Ineta Ziemele.

The official position of Russia is that Estonia, Latvia, and Lithuania were annexed by Soviet Union in 1940, and, with its dissolution, these countries became newly created entities in 1991. According to this position, all previous treaties, such as Treaty of Tartu, are invalidated, and all possible claims by Baltic states for monetary compensation have no legal basis.

On the other hand, the annexation was not recognized de jure by many governments and restoration of sovereignty was considered more favorable by international community than simply secession due to just the right of nations to self determination. Hence the Baltic position is that they were occupied by Soviet Union which interrupted rather than destroyed their sovereignty.

Nowadays the legal continuity of the state is an official doctrine of Estonia, Latvia, Lithuania declaring that these countries are legal successors of the respective states, independence of which was de facto lost in 1940 and regained in 1991. In part, this position relies on the Stimson Doctrine applied to the Occupation of the Baltic States by the Welles Declaration.

Claims of the Baltic states to state continuity

Estonia

Estonia adopted the Estonian Declaration of Independence on 24 February 1918. The document states number of principles such freedom of expression, religion, assembly and association. These principles were further elaborated in the Provisional Constitution of 1919. Popular sovereignty was to the basis of the Estonia. However, in 1934 the authoritarian regime of Konstantin Päts introduced a new Constitution. 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 an legal, internationally recognized state in the years prior to 1940.

The independent was interrupted in June 1940, aftermath of the Molotov–Ribbentrop Pact between the Nazi Germany and the Soviet Union of August 1939. The Soviet Union used almost similar pattern with all three Baltic states, beginning with ultimatums on the basis of alleged failures to fulfill mutual assistance pacts signed previous year. The ultimatums had to be obeyed with 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 number of other states, did never recognise the occupation and annexation of the Baltic states.

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, because of the illegal occupation since 1940. 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 partly linked to the Constitution of 1938, serving further the claims to constitutional continuity.

Latvia

Latvia adopted the Declaration Establishing a Provisional Government of Latvia on 18 November 1918. In 1920, the free elected Constituent assembly adopted two basic laws. The first Constitution was adopted in 1922. Latvia was the only of the three Baltic states in which the Constitution remained in force until Soviet occupation. However, Prime Minister Kārlis Ulmanis took power by a coup d'état and the parliament was dissolved in 1934.

Following the Soviet period, On the Restoration of Independence of the Republic of Latvia was adopted on 4 May 1990. It restored the authority of the Constitution of 1922, except for a few provisions. However, it never took place. The new Constitutional Law was adopted on 21 August 1991 and it provided the restoration of independence through negotiations with the Soviet Union. The fifth parliament was elected in 1993, the nationalists took majority. The parliament restored the Constitution of 1922, and upheld the legal continuity of the Republic of Latvia.

Lithuania

After centuries 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 president power and reduced parliament members from 85 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.

Unlike Estonia and Latvia, Lithuania proclaimed the Re-Establishment of the State of Lithuania in 1990 without a period of transition. The act emphasised the 1918 act and the 1920 resolution for the purposes of constitutional continuity. The Congress of Soviets adopted a resolution on 15 March 1990 in which Lithuania's decision violated the Constitution of the Soviet Union. Lithuania adopted a Resolution on the Liquidation of the 1939 Germany–USSR Agreements and their Consequences on 7 February 1990. The Constitutional Court of Lithuania decided the Constitution of 1938 had been suspended in 1940 and resumed with the reintroduction. At the same time the Court recognised that it is impossible to reconstruct system as in 1940. The new Constitution was adapted on 25 October 1992.

International reactions to the claims of the Baltic states

International organisations

The admission of the Baltic states to the United Nations took place in accordance with article four of the United Nations Charter. Initially, the membership contributions were derived from the fees previously paid by the Soviet Union. However after objections, the United Nations accepted the statesments of the Baltic states they were not successor states of the Soviet Union. The Baltic states were accepted as new members, due to the fact the League of Nations was not predecessor of the United Nations.

The Baltic states were members of the International Labour Organization since 1921. Therefore, its recognition was important towards the Baltic states to their claim to state continuity. The organisation accepted the Baltic claim to continue their previous membership. However, the International Labour Organization considered the Baltic states had been readmitted, even though no formal decision determined it.

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. 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.

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 of the 1939 Molotov–Ribbentrop Pact.

Bilateral relations

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 Baltic states relies on the Stimson Doctrine applied to the Occupation 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 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 the Baltic states. 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 Baltic–Russia relations.

At the same time, the Russian Federation claims that it continues as the legal personality of the former Soviet Union is jeopardised by its own indecisiveness of the relationship between the Russian Federation and the Soviet Union. The Soviet Union obligations did not continue automatically with the Russian Federation. Decisions were made on a case by case basis. The Russian Federation weighted carefully the degree to which the continuity was its interest, especially in the field of bilateral relations and debts.

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 premanent 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 Islands. The concept of statehood in international law cannot be explained by mere reference to the Montevideo Convention. Decision on statehood are taken in given circumstances and at the moment in time.

The Baltic claim that they continue their pre-occupation with legal personalities has been questioned on a number of grounds and in different contexts. The lengthy time has been one of the arguments against their claim. It has also been claimed that the Baltic disannexation lacks a firm footing in international law. Although disannexation had taken place in Soviet practice, but it had involved much shorter annexation period than 50 years. However, 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.

List of recognition and non-recognition of annexation

De jure non-recognition

Besides the USSR's adversaries in the Cold war (see members of NATO), the following states did not recognise the Soviet annexation of the Baltic states de jure in 1960.

•  Australia – semi official relations maintained with Baltic representatives, de jure recognised for 17 months between July 1974-December 1975 by the Whitlam government.
•  Brazil – official relations with Baltic representatives
•  China – ()
•  Uruguay – maintained official diplomatic relations
•  Vatican City – maintained official diplomatic relations, no de jure nor de facto recognition accorded
•  Sweden – While Sweden turned over to the USSR Baltic embassies and bank assets transferred to Sweden for safekeeping and in 1946 deported Baltic legionnaires who has been conscripted into the German army, it had never taken a formal position on the recognition of the annexation until 1989. As late as 1977 Sweden had not decided whether to recognise the annexations as de-jure or de-facto; finally in 1989 Sweden declared that it had not recognised the annexation of the Baltic States to the USSR as de-jure. After the Baltics regained independence, Sweden repaid 2,908 kilograms of gold deposited by Estonia and 1,250 kilograms deposited by Lithuania (in 1992, valued at $47.2 million).

No final decision on non-recognition policy

•  Afghanistan – no official relations with Baltic representatives, no final decision on non-recognition policy.
•  Colombia – Some relations maintained with Baltic representatives, no final decision on non-recognition policy
•  Cuba – Some relations maintained, no final decision on non-recognition policy
•  Ethiopia – no official relations, no final decision on non-recognition policy
•  Finland – no official relations, no final decision on non-recognition policy
•  Mexico – some relations with Baltic representatives, no final decision on non-recognition policy
•  Switzerland – some relations maintained, fiduciary of Baltic assets, no final decision on non-recognition policy

No official relations with Baltic states

•  Ireland – no official relations, no de jure nor de facto recognition accorded
•  Iran – no official relations with Baltic representatives
•  Luxembourg – no official relations
• Union of South Africa – no official relations

States that had no diplomatic relations with the USSR by 1960

•  Chile – no diplomatic relations with USSR.
•  Costa Rica – no diplomatic relations with USSR
•  Dominica – no diplomatic relations with USSR
•  Ecuador – no diplomatic relations with USSR
•  Liberia – no diplomatic relations with USSR
•  Nicaragua – no diplomatic relations with USSR
•  Spain – maintained semi official diplomatic relations, had no diplomatic relations with USSR until 1977. no de jure nor de facto recognition accorded
•  Peru – no diplomatic relations with USSR
•  Paraguay – no diplomatic relations with USSR
•  Taiwan – no diplomatic relations with USSR
•  Venezuela – no diplomatic relations with USSR

De jure recognition

Besides the USSR's communist allies, the following governments granted de jure recognition of incorporation in the Soviet Union and governance of the Baltic states according to the August 8, 1960 survey:

•  Austria – Implicit de jure recognition granted, Baltic passports not recognized
•  Argentina – Implicit de jure recognition granted, Baltic passports not recognized
•  Bolivia
•  Japan
•  New Zealand
•  Australia – Australia de jure recognized the Baltic republics as part of the USSR for a time (1974–1975).

Helsinki Accords

The Baltic question was raised during the negotiations of the Final Act of the Conference on Security and Cooperation in Europe. During the negotiations the Soviet Union supported the description that declared any attempt of territorial claims to be an act of aggression. The suggestion was opposed by West Germany, by Spain, Ireland and Canada. The Canadian representatives claimed that accepting the Soviet proposal would mean de jure recognition of the Soviet incorporation of the Baltic states. Supported by other NATO members, the final act stated that by peaceful means the borders could be changed. The president of the US and leaders of other NATO member states confirmed in statements that the provision didn't entail recognition of the Baltic states incorporation into the Soviet Union. Nevertheless, Russia insists that the international community recognised the incorporation of the Baltic States into the USSR in decisions of the Yalta and Potsdam conferences, as well as the Helsinki accords.

Baltic diplomatic efforts 1940–1991

In 1947 a joint communication on the occupation of Baltic states to the UN was sent by the Estonian, Latvian and Lithuanian diplomats abroad. The Baltic Appeal to the United Nations was formed in 1966. The UN received numerous appeals from the Baltic diplomatic missions, the emigre organizations, resistance groups in Baltic countries and the US diplomats and policy makes 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 states calling the United Nations to denounce the Soviet occupation that resulted the 1983 resolution of the European Parliament on the restoration of Baltic independence.

Most of the countries did not recognise the incorporation of the Baltic states de jure and only recognised the Soviet governments of 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.

Most of the countries in the Western Bloc refused to recognise the incorporation of the Baltic states de jure and only recognised the Soviet governments of 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 Canada the official list of diplomats included the offices of the Baltic states: Estonia, Latvia and Lithuania that in the early 1960s caused the Soviet Embassy in Canada refuse to receive the lists distributed by the Canadian Department of External Affairs.

Following the pressure from Soviet Union, the UK excluded the Baltic diplomats from the Diplomatic List, but as a compromise to alleviate concerns of USA, the Baltic diplomats were still accepted as possessing a diplomatic character by His/Her Majesty's Governments.

Baltic assets 1940–1991

After the invasion of Denmark and Norway by Nazi Germany on April 9, 1940 during WWII the President of the US issued the Executive Order 8389 under which the Treasury Department froze in the US all financial assets of occupied European countries. After the Soviet Occupation of Estonia, Latvia and Lithuania EO 8389 was extended to the assets and properties of the Baltic states.

The freezing of Baltic assets by the US was condemned by the Soviet Union and it was declared that there shouldn't 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.

In July 1940 the Bank of England sequestrated the Baltic gold reserves deposited in the UK. During the 1950s the USSR claimed the gold regularly but was rejected due to the de jure non recognition of the Soviet annexation of the Baltic states. On January 5, 1968 an agreement between the UK and USSR was achieved, Soviet Union renounced all claims to the Baltic gold hold in the Bank of England in return for the waiver of all claims by the UK resulted by the nationalization in the USSR. In 1992 the British Government returned the assets in the amount of £ 90 million to the Baltic states.

The Baltic assets deposited in Sweden were released to Soviet Union immediately after the Soviets demanded the Baltic gold reserves to be handed over in 1940, later the amount was compensated by Sweden to Baltic states in 1992.

The 3 tons of gold deposited in the Bank of France by Latvia and Lithuania were refused to turn over to the USSR by governments of France.

The gold reserves deposited by Baltic states prior 1940 into the Bank for International Settlements in Switzerland remained intact. After Baltic countries regained independence in 1991, the Baltic gold was released to the central banks of Estonia, Latvia and Lithuania.

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 reserve. The Baltic states also kept gold reserves in banks in the United Kingdom. However, in 1967 the Labour government use the reserve in settling mutuals claims with the Soviet Union. Later in years 1992–93, the United Kingdom government transferred the equal amount of gold reserves back to the Baltic states. France refused to give the Baltic gold reserve to the Soviet Union. In 1992 France transferred the Lithuanian gold to Lithuania. Sweden had transferred the gold deposited to the Soviet Union in 1940. In 1991, Sweden promised Estonia to restitute the gold and in 1998 the Swedish government discovered the bank accounts beloging to Baltic nationalities. On 4 December 1991 the former republics of the Soviet Union signed the treaty on the division of the Soviet foreign debt. The Baltic states refused to sign. In 1993, the Russian Federation announced it would alone be responsible of the debt.

After the 1940 occupation, there were issues related to the property of Baltic nationals abroad. The majority of foreign states refused to send Baltic ships in their ports to the Soviet Union. The Sovet 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 embassies and consulates to the Soviet Union. With some of transfers were stated that the process did not involve legal title.

Historical considerations

The situation with Baltics was not unique. In the aftermath of the 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 the Nazi Germany in 1938. And, 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.

European Court of Human Rights

The European Court of Human Rights made a number of rulings with regard to activities of the USSR including military and security services in the occupied Baltic states between 1940 and 1991.

Admission ex-Soviet Union's members into the Council of Europe in the second part of the 1990s along with other issues brought into the European Court of Human Rights arguments relating to the question of the legality of Baltic states' membership in the Soviet Union.

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 central and eastern Europe agreed by Hitler's Germany and 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 active Soviet collaborators to criminal conviction for genocide, whereby the Court reiterated the conclusion that illegal occupation of Baltic States by the USSR had taken place in 1940 (see Kolk vs Estonia, Penart vs Estonia). In Penart, the Court declared inadmissible an application by a former USSR internal security service operative Vladimir Penart, convicted on charges of crimes against humanity by Estonian court for killing "a person hiding in the woods" most probably a member of Forest Brothers 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 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 Estonian security police Kaitsepolitseiamet emphasized the importance of the decisions in its 2006 yearbook.

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73. Text of Penart ruling on the site of the ECHR
74. Russian translation of the book of Dr (iur) Lauri Mälksoo "Illegal Annexation and State Continuity: The Case of the Incorporation of the baltic States by the USSR", Leiden - Boston: Brill. ISBN 9041121773
75. Text of Ždanoka (final) decision on the site of ECHR
76. NTV News "Российскую делегацию ПАСЕ не испугали сложные вопросы", Boris Gryzlov
77. Russian Regnum news agency

Bibliography

• Aust, Anthony (2005). Handbook of International Law. Cambridge University Press. ISBN 978-0521530347.
• Hiden, Johan; Salmon, Patrick (1994) . The Baltic Nations and Europe (Revised ed.). Harlow, England: Longman. ISBN 0-582-25650-X.
• Ziemele, Ineta (2005). State Continuity and Nationality: The Baltic States and Russia. Martinus Nijhoff Publishers. ISBN 90-04-14295-9.

See also

• Baltic States Investigation by the US House of Representatives (1953)

• European Court of Human Rights case law
• Occupation of the Baltic states
• Soviet occupations
• Cold War