International Law from a Baltic Perspective [1 ed.] 9789004433151, 9789004433144

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International Law from a Baltic Perspective

International Law from a Baltic Perspective Edited by

Ineta Ziemele

LEIDEN | BOSTON

Library of Congress Cataloging-in-Publication Data Names: Ziemele, Ineta, editor. Title: International law from a Baltic perspective / edited by Ineta Ziemele. Description: Leiden, The Netherlands : Koninklijke Brill NV, [2021] | Includes index. | Identifiers: LCCN 2020029396 (print) | LCCN 2020029397 (ebook) | ISBN 9789004433144 (hardback) | ISBN 9789004433151 (ebook) Subjects: LCSH: International law--Baltic States. | Baltic States--International status. Classification: LCC KZ4216 .I58 2020 (print) | LCC KZ4216 (ebook) | DDC 341.09479--dc23 LC record available at https://lccn.loc.gov/2020029396 LC ebook record available at https://lccn.loc.gov/2020029397

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISBN 978-90-04-43314-4 (hardback) ISBN 978-90-04-43315-1 (ebook) Copyright 2021 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

Contents Notes on Contributors  vii Preface  ix Ineta Ziemele Preface  1 James Crawford The Regulation of Research on the new Biomedical Technologies: Standard Setting in Europe and its Baltic Region  3 Pēteris Zilgalvis State Responsibility and the Challenge of the Realist Paradigm: the Demand of Baltic Victims of Soviet Mass Repressions for Compensation from Russia  36 Lauri Mälksoo State Continuity, Succession and Responsibility: Reparations to the Baltic States and their Peoples?  54 Ineta Ziemele The Dilemmas of an “Official with Progressive Views” – Baron Boris Nolde  77 Peter Holquist Computer Network Attacks in the Grey Areas of Jus ad Bellum and Jus in Bello  113 Erki Kodar Legal Status of Lithuania’s Armed Resistance to the Soviet Occupation in the Context of State Continuity  139 Dainius Žalimas Transitional Criminal Justice at the ECtHR: Implications for the Universality of Human Rights  188 James A. Sweeney

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Implementation of the Sustainable Development Principle in Nuclear Law  219 Jolanta Apolevič Cyber Countermeasures and Effects on Third Parties: The International Legal Regime  258 Michael N. Schmitt and M. Christopher Pitts Foreword: Fifty Shades of Gray  281 José E. Alvarez Bioethics in the Jurisprudence of the Latvian Constitutional Court  310 Sanita Osipova Index  333

Notes on Contributors Jose Alvarez Herbert and Rose Rubin Professor of International Law, New York University School of Law, USA. Jolanta Apolevič Research Fellow at the Legal System Research Department of the Law Institute of Lithuania. James Crawford Judge of the International Court of Justice. Peter I. Holquist Professor at the Department of History of University of Pennsylvania, USA. Erki Kodar Undersecretary for Legal and Consular Affairs at the Estonian Ministry of Foreign Affairs, Estonia. Lauri Mälksoo Professor of International Law at the University of Tartu, Estonia. Sanita Osipova Professor at the University of Latvia, Vice-President of the Constitutional Court of the Republic of Latvia. Mike Schmitt Professor of International Law, University of Reading School of Law; Francis Lieber Distinguished Scholar, US Military Academy at West Point; Strauss Center Distinguished Scholar, University of Texas; Senior Fellow, NATO CCD COE; Professor emeritus, US Naval War College. James A. Sweeney Professor of International Law, Lancaster University, United Kingdom. M. Christopher Pitts J.D. Candidate, Emory University School of Law, USA.

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Ineta Ziemele Professor at the Riga Graduate School of Law; President of the Constitutional Court of the Republic of Latvia. Pēteris Zilgalvis J.D., Head of Unit, Digital Innovation and Blockchain, Digital Single Market Directorate, DG CONNECT; Co-Chair of the FinTech Task Force, European Commission. Dainius Žalimas Professor of International Law at the Mykolas Romeris University, Lithuania.

Preface The editors of the Baltic Yearbook together with Brill publishers have decided to take stock of the legal research published in the Yearbook since its first issue in 2001 and to publish this collected volume of selected articles that best characterize the particular identity of the Yearbook. On the occasion of the centenary of the three Baltic States in 2018, the Yearbook had already published 17 volumes. Over the years it has carried a variety of articles on a wide range of thematic issues. Altogether the yearbook has published 157 articles by 171 authors. These have included examinations of legal issues within such areas as international humanitarian law, international human rights law, peaceful settlement of disputes, European Union law, history of international law and many others. An important feature of the Yearbook is that it has carried numerous articles examining diverse legal issues relevant to the international legal status of the Baltic States and the consequences of their occupation by the Soviet Union. The case of the Baltic States raises several interesting international law questions. For example, it illustrates the importance of the distinction between the notions of State continuity and State succession in situations involving internationally wrongful acts, even though the possibility to draw a meaningful distinction generally remains contested in international legal scholarship and practice. It also poses questions falling under the rubric of State responsibility for aggression, long-term occupation, deportation of civilians and other kinds of internationally wrongful acts. There is also the deeply interesting question of time and law, and application of law over time. In sum, the story of the Baltic States makes one reflect on a much broader question, namely, on consolidation of international law and on the rule of law as a central theme within that process. What does it take to protect the independence of small States bordering an unpredictable neighbour? When asking this question and placing it within the development of the world order after World War II, the plain answer appears. The entire European and global intergovernment architecture has been developed to deter aggressive behaviour by unpredictable governments. This is a complex and multifaceted architecture but events such as the occupation of Crimea in 2014 and others show that an inventory of this architecture needs to be carried out so as to identify its weaknesses. An attempt to reform the United Nations fell within this line of thinking. However, it did not lead to any changes in the composition of the UN Security Council, showing that the culture of domination and confrontation

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remains strong throughout the world and much more effort has to go into changing this state of affairs. The Yearbook has also contained articles on new themes such as bioethics and cyberspace, including reflections on their possible legal regulation. Human society evolves with evolution of the knowledge that creates new relationships which in turn call for conceptualisation and regulation. There is a particular interest in the digitalization process and its consequences in the Baltic States and unsurprisingly the Yearbook has been a forum for publishing legal studies in this area. The following thematic issues have been published over the years: the International Legal Status of the Baltic States; Bioethics and Human Rights; State Responsibility; The Future of European Integration; Humanitarian Intervention and the Use of Force; International Law Scholarship in Central-Eastern and Eastern Europe; Arbitration in the Baltics; the August 2008 Russo-Georgian War; the Lithuanian School of International Law; International Law in Post-Soviet Space; Universal Jurisdiction as a Basis for limiting the Scope of Functional Immunity; Low Intensity Cyber Operation – International Legal Regime; Approaches of Liberal and Illiberal Governments to International Law. The authors of the articles come from the world over – all three Baltic States – Latvia, Lithuania and Estonia – as well as Australia, Austria, Belgium, Belarus, Canada, China, Croatia, the Czech Republic, Finland, France, Georgia, Germany, Hungary, Ireland, Italy, Poland, Romania, Russia, Slovenia, Spain, Sweden, Switzerland, The Netherlands, Turkey, the UK, Ukraine, and the USA. James Crawford, now a judge of the International Court of Justice, wrote the preface for Volume 1 in 2001 which is included in this collected volume. He remarked that the Baltic Yearbook of International Law was joining the crowded world of international law periodical publishing. That was indeed the case. The question of the identity of the Yearbook among all the other general and specialized, national and regional international law journals was always present. After 17 volumes what could be said about the identity and contribution that the Yearbook has made to international legal scholarship? First of all, it is clear that the Yearbook continues to build its identity and acquire a place among international legal periodicals. With volume 17 and this collected volume the Baltic Yearbook has settled in Riga, Latvia, and has become a legal periodical published by the Riga Graduate School of Law (RGSL). Established in 1998, RGSL has emerged as a leading legal education and research institute in the Baltic region. RGSL offers numerous study programmes in the area of International and European Law at bachelor and master’s level involving a large number of eminent scholars and practitioners based in the local environment, elsewhere in Europe, and overseas. The result is a merger

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between its institutional affiliation and the original purpose. That purpose is not only linked to examining the remarkable story of the Baltic States in international law. Above all the Yearbook is a forum which allows scholars from the region to be heard in international legal debate. Even if values such as equality, plurality of opinion, and diversity are generally accepted, including mainstream international law discourse, facts are often at variance. It is important that an endeavour such as this Yearbook gives meaning to the terms plurality and equal participation. Publication with a focus on what could be called the periphery provides greater opportunity for those who do not come from long established academic institutions and legal traditions. Availability of opportunities to share and take part in a wider discourse is also important for enhancing scholarship within the Baltic region. Secondly, the editors consider that publication of State practice reports from the three Baltic States shares a very similar goal. In international law, State practice is not limited to what a few big States do. Rules are formed by embracing the plurality of States and other actors in many different ways. The Yearbook delivers, in an understandable form and language, what the three States have to say about rules and normative processes in the world. The Yearbook thereby makes practice by Estonia, Latvia and Lithuania accessible to scholars and decision makers around the world. This has proved to be an important part of the Yearbook’s identity. For the purposes of this volume the editors of the Yearbook have selected those articles published over the years that most closely depict the Yearbook’s contribution to international legal scholarship and practice. Therefore this volume carries articles on issues arising in the context of the occupation of the Baltic States by the Soviet Union and articles on transitional justice and the collapse of communism as well as articles showing where the development of science prompts the need for legal regulation. The editors have also included a new article on human dignity in the age of rapid development of science to exemplify how the issues have evolved since the Yearbook first addressed them. In view of the fact that issues that are of particular interest in the Baltic States have attracted research in different parts of the world and the Yearbook has carried articles by authors well beyond the Baltic region, it is evident that the Yearbook has by now established itself among other international law ­periodicals with its clear identity – where the past meets the future. Ineta Ziemele* * Ph.D. (Cantab.) Editor-in-Chief, Professor of International and Human Rights Law, Riga Graduate School of Law; President of the Latvian Constitutional Court; former judge of the European Court of Human Rights.

Volume 1 (2001): Preface It is a pleasant task to introduce this first volume of the Baltic Yearbook of International Law. It marks a new venture in the crowded world of international law periodical publishing, but there is every reason to hope that it will be successful. This is not only because of the initiative and professionalism of the editors and the welcome sharing of tasks among international lawyers from the three Baltic States, but also because they and their colleagues have much to say about their position in a world they had lost but have regained. The story of the reemergence to independence of the three Baltic States, following their submergence in 1940, has been told now many times.1 International law continues to look with scepticism and doubt on attempts at secession; in 1990 there were additional concerns about the stability of Russia which militated against immediate recognition of the claims of the Baltic States to regain their independence. Nonetheless it was accepted that their position was special and that their claims were justified, even if certain issues of implementation still had to be resolved. In particular it will be recalled that: – Lithuania declared its independence on 11 March 1990. In an ensuing referendum in February 1991, 90.47% of valid votes cast favoured independence from the Soviet Union. – In Estonia, after several transitional measures and a March 1991 referendum in which 77.83% of valid votes cast supported independence, the Supreme Soviet declared independence on 20 August 1991. – In Latvia, a referendum in March 1991 showed 73.68% of valid votes cast in favour of independence. The Latvian Supreme Soviet declared independence on 21 August 1991. On 6 September 1991, the State Council of the Soviet Union voted unanimously to recognise the independence of the Baltic States. On 12 September 1991, the Security Council without dissent recommended their admission to the United Nations. Speaking after the adoption of the resolution, the President of the Security Council said:

1 See e.g. R. Yakemtchouk, “Les republiques baltes en droit international. Échec d’une annexion opérée en violation du droit des gens” (1991) 37 Annuaire française de droit international 259; R. Pullat, “The Restoration of the Independence of Estonia” (1991) 2 Finnish Yearbook of International Law 512; J. Crawford, “State Practice and Intcrnational Law in relation to Secession” (1998) 69 British Yearbook of International Law 85, at 96–7.

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Volume 1: Preface

The independence of the [Baltic States] was restored peacefully, by means of dialogue, with the consent of the parties concerned, and in accordance with the wishes and aspirations of the three peoples. We can only welcome this development, which obviously represents progress in respecting the principles of the Charter of the United Nations and in attaining its objectives.2 In the intervening period the Baltic States have faced many challenges in rebuilding their societies and governmental structures, in advancing towards greater European integration and in resolving issues about the treatment of their minorities. Progress has been made on all these fronts, even if more remains to be done.33 It is to be hoped that this Yearbook will provide continuing information and insight both as to the problems and the progress of a distinctive and important part of Europe. James Crawford 2 scor, S/PV/3007, 12 Sep 1991 (M. Merimée (France)). See Security Council Resolutions ­709–11, 12 September 1991; Committee on Admission of New Members, Report, S/23021, 11 September 1991. 3 See e.g. T. Jundzis (ed.), The Baltic States at Historical Crossroads (Latvian Academy of Sciences, Riga, 1998).

Volume 2 (2002): Bioethics and Human Rights

The Regulation of Research on the New Biomedical Technologies: Standard Setting in Europe and its Baltic Region Pēteris Zilgalvis Contents 1. Introduction 1.1. Developments in Europe at the National Level 2. Instruments of the Council of Europe 2.1. Requirements of the Convention on Human Rights and Biomedicine 2.2. The Draft Additional Protocol on Biomedical Research 3. Genetic Discrimination 3.1. The Convention and Genetic Therapy 4. Cloning 5. Conclusions 1 Introduction* Rapid development is taking place in the fields of biology and medicine in Europe and worldwide. Biology and medicine have offered, and will continue to offer, much to our European and global societies, but these contributions and their attendant risks do not exist in a vacuum. While offering great promise for the future, this development has ethical, legal, and social ramifications that cannot be ignored. Genomics, embryo research, and the field of biomedical research in general raise both hopes and concerns as the attention of the media and our democratic institutions turns to the societal fallout of recent discoveries. A theme underlying this article is whether we have an actual or potential conflict between ‘economism’ and human rights in the domain of the new biomedical technologies. Some current developments in the Baltic countries will * The views expressed are personal and do not necessarily reflect any official position of the Council of Europe.

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be examined specifically,1 but this is a topical issue elsewhere in Europe and globally.2 The response of the European institutions to developments in these fields and the guidance offered to States wishing to enjoy orderly progress in the achievement of better health and economic development will be reviewed. The main focus will be on the system of a Convention and Protocols elaborated by the Council of Europe because of its leading role in bioethics and its focus on human rights, dating back to the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights) in 1950. I will put forward the proposition that observance of human rights, particularly in this field, is necessary to ensure sustainable and orderly economic development in a knowledge economy. Therefore, while strictly economic factors are important they should not be seen as the only determinant in setting policy. At the same time, it is necessary to acknowledge that the contributions of European Union institutions are also quite relevant, particularly in the context of European Union enlargement in the Baltic region. The Community is empowered to act in this field on the basis of ec Treaty Articles 152 (public health), Articles 163 to 173 (research, funding of the research framework programme), and 95 (the internal market). Additionally, Article 49 of the Treaty of the European Union states that candidate countries must respect human rights and fundamental freedoms in order to join the European Union. Direct reference is made in Article 6 of the Treaty of the European Union to the European Convention on Human Rights. Not least of all as a major funding source for research in Europe, the European Commission has direct influence on what is considered ethically acceptable for researchers. In the field of pharmaceutical research, Directive 2001/20/EC of the European Parliament and of the Council on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practise in the conduct of clinical trials on medicinal products for human use was adopted on 4 April 2001. It is important to note that the instruments of the Council of Europe and the European Union do not cover identical fields. Set up in 1949, the Council of Europe is an intergovernmental organisation with a pan-European vocation 1 A controversial aspect of the draft Latvian law on Research on the Human Genome has been the possibility of private investment in the Genome database. Baltic News Service, “Iebilst pret genoma datu bāzi privātās rokās” accessed on 18 July 2001. 2 One of the liveliest bioethics debates has been going on in the United States in regard to federal financing for, and regulation, of stem cell research. See Sh. G. Stolberg, “Key Bush Ally Backs Studies of Stem Cells, With Limits”, accessed on 19 July 2001. Discussion and regulation has also been taking place on the state level. See Sh. G. Stolberg, “Washington Not Alone in Cell Debate”, accessed on 23 July 2001.

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that fosters political, legal and cultural co-operation between its 43 member European pluralistic democracies.3 It is quite distinct from the 15 Nation European Union, though all of the European Union member countries are also members of the Council of Europe. The aims of the Council of Europe, as specified by its Statute, are to protect human rights and strengthen pluralist democracy, to enhance European cultural identity and seek out solutions to the major problems of our time such as the bioethical problems addressed by the Convention on Human Rights and Biomedicine. The Secretary General of the Council of Europe, Mr. Walter Schwimmer, noted in his speech on the role and place of the Council of Europe in the context of the enlargement of the European Union at the Paris Press Club on 3 July 2001 that the problems of bioethics are not limited to just one part of Europe.4 The Council of Europe operates through two principal bodies, the Committee of Ministers, its decision-making body and the Parliamentary Assembly, its deliberative body. A Secretariat General serves these bodies and is headed by a Secretary-General elected for five years. The most tangible results of intergovernmental cooperation in the Council are European conventions, drawn up as a contract between signatory States. Each State accepts a number of obligations in return for acceptance of the same obligations by other States. It is necessary to stress that that the treaties are not legal instruments of the Council of Europe as such, but owe their existence to the Member States that sign and ratify them. Even though the treaties have a life of their own, they are in many cases followed by expert committees set up within the Council of Europe.5 The

3 The Statute on the Council of Europe emerged from the ‘Congress of Europe’ which was convened at The Hague on 7 May 1948 to draw up proposals for European unity in the aftermath of World War ii. The Congress revealed the differences in opinion between those who were unconditional supporters of a European federation from those who favoured simple inter-governmental co-operation. See P. Craig and G. De Burca, EU Law, Text, Cases and Materials, 2nd ed., (Oxford, 1980), p.8; see also, P. Kapteyn and P. VerLoren van Themaat, Introduction to the Law of the European Communities, 2nd ed., (Kluwer, 1989), p.3. On 27 and 28 January 1949, the five Ministers of foreign affairs of the Brussels Treaty countries reached a compromise: a Council of Europe consisting of a ministerial committee, to meet in private; and a consultative body to meet in public. In order to satisfy the countries supporting cooperation, the Assembly was purely consultative in nature, with decision-making powers vested in the Committee of Ministers. On 5 May 1949, the Treaty constituting the Statute of the Council of Europe was signed by ten countries in London, U.K. See “A short history”. 4 accessed on 30 April 2020. 5 J. Polakiewicz, Treaty-Making in the Council of Europe (Council of Europe Publishing, 1999), p. 10.

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Council of Europe has drawn up more than 170 multilateral conventions,6 including the European Convention on Human Rights. While the Council of Europe’s Convention on Human Rights and Biomedicine covers all types of biomedical research on human beings, the aforementioned European Union Directive on good clinical practise deals only with pharmaceutical research. In regard to medicinal products, it has been stated that the ‘European Community has a clearly established legal competency. The legal basis for Community action is the principle of the free movement of goods in the European Union embodied in Article 3 of the Treaty of the European Union’.7 However, it has also been commented that the European Union Directive ‘will have a wider impact than just the pharmaceutical area alone. These changes in the national legislation will likely cover the whole scope of clinical research, not simply pharmaceutical research’.8 In any case, the two institutions have cooperated in this field and most likely will continue such mutually beneficial cooperation in the future. To some extent, this analysis will be based on draft instruments both at the international and national level. Therefore, it is necessary to keep in mind that the instruments referred to may be adopted in a modified form in the end. However, in this rapidly changing domain this may prove to be beneficial to readers utilizing this analysis in several years time or later. One of the premises of this article is that the instruments being developed by the European institutions in the field of the new biomedical technologies are proving to be influential in setting standards for biomedical research in the Baltic countries, and that their participation in the debate of these instruments and receptiveness to the results of this debate have influenced their own legislation. Additionally, these instruments are a reflection of the thinking at the intergovernmental and national levels on these subjects in 2001–2002 when the debate of these issues continued to grow in intensity and reach (moving into the mass media). Promotion of private enterprise and the protection of human rights do not need to be polar opposites, as they are not in the democratic and free-market based Member States of the Council of Europe and European Union. The importance of individual liberty in the sphere of commerce must not be underestimated. However, new questions arise in the domain of biomedicine as new 6 Further information on the Conventions and agreements in the European Treaty Series (ets) can be found in English or French at . 7 See L. Cordier, “Is there a European ethical framework for clinical research?” (1997) 11 International Journal of Pharmaceutical Medicine, pp. 137–140. 8 Ibid.

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developments challenge the roles of the individual, the family, the doctor, and the health care worker. Is it sufficient to take a strict laissez-faire approach and say, ‘if something is technically feasible and there is enough money behind it, then it will be done?’ This type of approach could be described as a narrow ‘economism’, where economic growth is treated as a kind of a god with priority over all other considerations.9 While we need not find any conflict between the promotion of private enterprise and the protection of human rights, we will have a conflict if economic and entrepreneurial considerations overshadow the ethical, social and legal aspects surrounding research and application of new biomedical technologies. A counterproposal to the ‘full speed ahead’ approach is the use of the precautionary principle by decision makers.10 The European Group on Ethics in Science and New Technologies (ege) has stated that the precautionary principle, being the expression of prudence as a genuine ethical virtue, is applicable especially to the new technologies. Of course, there are other valid arguments that might be called upon in order to support a specific undertaking in biomedical research such as the freedom of research and the possibility to help those suffering from disease. Fears may arise that if a type of research is prohibited in a single country, it will fall behind in the progress of its research and become dependent on work done elsewhere.11 These considerations must also be taken into account by those making ethical and legal evaluations of a direction in research or a specific project. However, it often seems that if the profit motive is present it is most suspect to members of the public. Potential conflicts between advocates of economic growth and human rights can be seen today in relation to cloning, embryo research and research on the human genome. 1.1 Developments in Europe at the National Level In the field of genetic research, Iceland’s Database Act has allowed the creation and operation of a health records database intended to contain records of the population with the possibility of cross-linking the health data to genetic data and genealogical information. The Icelandic initiative took the lead in establishing this type of linked database, but it has not been without controversy. 9 10 11

L. Siedentop, Democracy in Europe (London: The Penguin Press, 2000), p. 33. B. Charles and A. Claeys, “Réviser les lois bioéthiques: quel encadrement pour une recherche et des pratiques médicales maîtrisées?”, Les documents d’information de l’Assemblée Nationale, No. 3208, 2001, pp. 16–17. B. Charles and A. Claeys, “Réviser les lois bioéthiques: quel encadrement pour une recherche et des pratiques médicales maîtrisées?”, Les documents d’information de l’Assemblée Nationale, No. 3208, 2001, pp. 27–28.

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Opponents have pointed to the use of presumed consent for inclusion of personal data in the health records database as being a fundamental shortcoming. The commercial connotations of the database have also raised concern among many observers worried about the role of ‘big pharma’ and the monopolisation of the population’s health records. It is notable that both aspects of the Icelandic experience have been evaluated positively and negatively and have served as examples elsewhere in Northern Europe, specifically in Estonia and Latvia. In Estonia, the Estonian Genome Project Foundation, established on the basis of the Human Genes Research Act of 8 January 2001, opted for explicit consent (as required in the Council of Europe and European Union instruments) rather than the aforementioned presumed consent model. As Ants Nomper discusses this Act in detail in another article in this Yearbook, I will refrain from further comment on the Estonian legislative initiative. In any case, it will be interesting to follow the implementation of the Act and Project in 2002 and beyond. On 26 June 2001, the Latvian Parliament (Saeima) submitted the Draft Law on Research on the Human Genome to the Parliamentary Commissions for review prior to its presentation to the plenary. It was expected that the Draft Law would be discussed in plenary in fall 2001. The Draft Law aimed, first and foremost, to guarantee the free consent of the donors to their participation in genome research, as well as to the extent of said participation. The authors of the draft Law stated they placed emphasis on the human rights aspect of this requirement. Secondly, the authors wished it to guarantee the confidentiality of the stored data and the anonymity of the donors. They foresaw a State institution that would act as the central mechanism for the coordination of the programme as well as the guarantor of the confidentiality of the data/biological materials utilised therein. Finally, their aim was to regulate the collection and storage of genetic information, and to ensure State supervision of these processes. The authors foresaw that the ‘anonymised’ genetic information could be used by institutes and by companies in the fields of biotechnology, pharmaceuticals, data processing and information technology, ensuring that a monopoly would not arise.12 In a closely related development, the enterprise gendb s.i.a. (Ltd.) was registered in Latvia’s Enterprise Register at the end of June 2001. The main aim of the enterprise was to attract private capital to the State project for the development of a Latvian genome database. It was hoped that State financing would be foreseen in the 2002 budget. 12

R. Ražuks, “Vai mums jābaidās no saviem gēniem?”, accessed on 27 June 2001.

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Instruments of the Council of Europe

Returning to the discussion on the European level, the approach of the Council of Europe to these issues is based on human dignity; the equal dignity of all human beings being the essential foundation of all philosophy and law of human rights. Human dignity must be maintained and protected while welcoming the ethical scientific advances that can cure disease and help members of our society lead healthier and happier lives. The mission of the Council of Europe in bioethics has been interpreted as: (1) offering a forum for reflection and debate; (2) acting as watchdog for fundamental values; and (3) arbitrating, with reference to those fundamental ideals, between the different points of view and the different interests at stake and, accordingly, to develop principles and rules of law to be observed and applied by all. The Convention on Human Rights and Biomedicine is the first international agreement on the new biomedical technologies. Its full title is the Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine. It was opened for signature on 4 April 1997 in Oviedo, Spain and 30 countries13 have signed to date. It is expected that other States will be signing, and ratifying, the Convention in the future. In addition to the Member States of the Council of Europe, the following States, which took part in the preparation of the Convention may sign: Australia, Canada, the Holy See, Japan and the United States of America. In addition to the Convention on Human Rights and Biomedicine and its Protocol, the result of the Council’s work in bioethics is an important normative corpus relevant to bioethics issues such as, the protection of human embryos and foetuses, developments in biotechnology and agriculture, legal protection of persons suffering from mental disorder placed as involuntary patients, medical research on human beings, and genetic testing and screening for health care purposes. Thus, the Council seeks to cooperate with other concerned European and international institutions and organisations to ensure that such an ethical and legal infra-structure continues to develop and that it reflects the principles and philosophy of our European democratic heritage. The first step in reaching

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As of 1 October 2001: Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, and Turkey.

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consensus must be dialogue. It is in the interest of all that ideas are freely exchanged and issues discussed openly. For the first time, the Convention seeks to establish a common, minimum level of such protections throughout Europe. Finding a consensus on such a minimum level was not a simple task. The traditions and approaches of some countries favoured an approach of stringent prohibitions in some spheres. Other countries were of the opinion that some prohibitions could be seen as paternalistic, and could take away the choice of an individual, as well as the opportunity of the individual to receive some benefit of biomedicine. A balance also needed to be found between the freedom of research, which brings many benefits to individuals suffering from diseases, and the regulation of research to protect the same or different individuals. Of course, some countries may wish to offer now or in the future a yet higher standard of protection in some sphere of biomedicine. The Convention was drafted with such a possibility in mind. Article 27 (Wider protection) states that none of the provisions of this Convention shall be interpreted as limiting or otherwise affecting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in this Convention. The Convention is structured so as to set out only the important principles in order to provide a common framework for the protection of human rights and human dignity in both longstanding and currently developing areas concerning the application of biology and medicine. It was decided that additional standards and more detailed questions would be dealt with in five additional protocols. The Convention and its Protocols are a ‘system’ that can respond to new (and sometimes threatening) developments in biomedicine. An example is the preparation of the Protocol prohibiting human cloning after the news of Dolly’s birth came out. Another example is the provision of the draft Protocol on Biomedical Research addressing research in non-Party States, which was developed in response to allegations of exploitation of research subjects from the South and Central and Eastern Europe by ‘western’ researchers. Ten Member States have ratified and the Convention has come into force for these countries.14 The Convention first came into force on 1 December 1999. It is up to the countries signing and ratifying the Convention to give effect to its provisions in their national legislation. This process is followed up by the Secretariat and the Steering Committee on Bioethics (cdbi) at the Council of

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Czech Republic, Denmark, Georgia, Greece, Portugal, Romania, San Marino, Slovak Republic, Slovenia and Spain.

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­ urope. Assistance is provided to signatories to adapt their institutions and E legislation to the requirements of the Convention. The Convention’s roots can be traced to the 17th Conference of the European Ministers of Justice (Istanbul, Turkey, 5–7 June 1990), who adopted Resolution no. 3 on bioethics which recommended that the Committee of Ministers instruct the cahbi to examine the possibility of preparing a framework convention ‘setting out common general standards for the protection of the human person15 in the context of the development of the biomedical sciences’. The Resolution was based on a proposal by Ms. Catherine Lalumiere, Secretary General of the Council of Europe at that time. The Parliamentary Assembly of the Council of Europe recommended in June 1991, in its Recommendation 1160, that the Committee of Ministers ‘envisage a framework convention comprising a main text with general principles and additional protocols on specific aspects’. We see that this approach based on a framework convention with specific protocols was the one that was eventually adopted. The support for the proposal continued to grow when in September 1991, the Committee of Ministers instructed the cahbi to prepare a framework convention setting out common general standards for the protection of the human person in the context of the biomedical sciences and alluded to protocols to this convention on organ transplants and the use of substances of human origin, and on biomedical research. In March 1992, the cahbi formed a Working Party to prepare the Draft Convention. In July 1994, a first version of the Draft Convention was opened for public consultation and was submitted to the Parliamentary Assembly for an opinion.16 The cdbi, which had replaced the cahbi, took this opinion and others into account in preparing a final draft. The cdbi confirmed this Draft on 7 June 1996 and submitted to the Parliamentary Assembly for an opinion.17 The Committee of Ministers adopted the Convention on 19 November 1996.18 2.1 Requirements of the Convention on Human Rights and Biomedicine The Convention gives precedence to the human being over the sole interest of science or society. The aim of the Convention is to protect human rights and 15 16 17 18

It is interesting to note that the term ‘human person’, utilised in a number of documents proposing the preparation of the Convention, does not appear in the Convention itself. The Convention utilises ‘everyone’, ‘human being’ or ‘person’. Opinion No. 184 of 2 February 1995, Doc. 7210. Opinion No. 198 of 26 September 1996, Doc. 7622. Germany and Belgium requested that their abstention when the Committee of Ministers voted on the adoption of the Convention and the authorisation of publication of the explanatory report be recorded.

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dignity and all of its articles must be interpreted in this light. The main focus of the Convention in regard to biomedical research is specifically this human rights aspect, unlike other legal instruments in the field, which may concentrate, for example, to a large extent on the economic, and public health aspects of making new medicines available more quickly. The interests of society and science are not neglected however and come immediately after those of the individual. On this basis, it establishes that consent is obligatory for any medical treatment or research and recognises the right of all individuals to have access to information concerning their health. The text also sets out safeguards protecting anyone, of any age, who is unable to give consent. The term ‘Human Rights’ as used in the title and text of the Convention refers to the principles found in the European Convention on Human Rights of 4 November 1950, which guarantees the protection of such rights. The Convention on Human Rights and Biomedicine not only shares the same underlying approach, many ethical principles and legal concepts, but also elaborates on some of the principles found in that Convention. Additionally, Preamble to the Convention acknowledges the fundamental nature of the principles of human rights enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social, and Cultural Rights, the Convention on the Rights of the Child, the European Social Charter, and, in a more specific instrument, the European Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data. This Convention builds on the principles embodied in these instruments to ensure the protection of human rights in the context of the recent advances in biology and medicine. The Convention contains two types of provisions. The first part of the Convention is a codification of the principles of modern medical law in regard to information and consent and to the protection of those unable to consent. The second part contains the provisions addressing biomedical research and the new biomedical technologies. These issues are to be addressed in the additional Protocols to the Convention. Five additional Protocols have been proposed to supplement the Convention. The Protocols are designed to address the ethical and legal issues raised by present or future scientific advances through the further development, in specific fields, of the principles contained in the Convention. The additional Protocol on the Prohibition of Cloning Human Beings and the Draft Additional Protocol on Transplantation of Organs and Tissues of Human Origin are completed to date. The Draft Protocol on Biomedical Research was declassified for consultation purposes in June 2001. Any State that is a signatory to the Convention is able to sign a Protocol.

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The Draft Additional Protocols on protection of the foetus and the human embryo, and on human genetics are currently being drafted by working parties made up of high level experts nominated by Council of Europe Member States with the assistance of the Secretariat of the Council of Europe (the Bioethics Division in the Directorate General – Legal Affairs). The high level experts take into account the views of non-governmental and professional organisations active in the respective fields in the preparation of the Protocols. This is done through consultations with such organisations between meetings and through consultations with European-wide bodies arranged in Strasbourg during the meetings of the working parties. The working parties also consult with other regional and international bodies that are working with related issues. Returning to the Convention itself, Article 1 sets out its purpose and object, this being the protection of the dignity and identity of all human beings and the guarantee, without discrimination, for everyone of respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine. The drafters preferred the phrase ‘application of biology and medicine’ to that of ‘life sciences’, in particular, as they wished to exclude animal and plant biology from the scope of the Convention. Article 2 establishes the primacy of the human being over the sole interest of society or science. Article 3 (Equitable access to health care) states that Parties shall take appropriate measures with a view to providing equitable access to health care of appropriate quality within their jurisdictions. It is important to note that this requirement is qualified by the following statement: ‘taking into account health needs and available resources’. Parties will have to set priorities for their healthcare expenditures themselves and the drafters fully realised that there is a wide income disparity between the most developed and less developed Council of Europe Member States, thereby rendering any attempt at setting some prescribed level of healthcare unsuccessful. The Article requires that access to health care be equitable. The Explanatory Report to the Convention notes that in this context, ‘equitable’ means first and foremost the absence of unjustified discrimination. Although not synonymous with absolute equality, equitable access would imply effectively obtaining a satisfactory degree of healthcare. Article 4 (professional standards) of the Convention requires that any intervention in the health field, including research, must be carried out in accordance with the relevant professional obligations and standards. The term ‘intervention’ is used here in a broad sense covering all medical activities directed at human beings for preventive care, diagnosis, treatment, rehabilitation, or research. The Article covers both written and unwritten rules.

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The Convention clearly states the general rule that an intervention in the health field may only be carried out after the patient has given free and informed consent to it (Article 5). Consent may be looked at in the ethical sense as a critical component of the relationship between a physician and his patient within the context of medical, ethical, and professional standards that the medical professional has sworn to uphold, while in the legal sense it can extend to liability for the physician who does not fulfil the necessary steps of obtaining consent. Freedom of consent implies that consent may be withdrawn at any time, but does not mean that the withdrawal of consent during an operation, for example, must always be honoured if such an obligation would be contrary to the professional standards and obligations which the physicians must uphold. The Convention also provides safeguards for persons not able to consent (Article 6). According to Article 6, intervention is permitted only for the direct benefit of persons. Where a minor is involved, any intervention must be authorised by the person or body responsible by law for the minor. Also, the opinion of a minor may be considered and is increasingly recognised as a determining factor in proportion to the minor’s age and degree of maturity. Moreover, it is important to note that a parent, for example, has responsibility for a child, not power over that child. This means that the parent must always act in the interests of the child and must ensure that the decisions taken further the well-being and health of the child. Physicians and other health care professionals, under their professional standards, must also act in the interests of the patient (the child in this case). The Article 6 requirement is subject to the provisions of Articles 17 (protection of persons undergoing research) and Article 20 (protection of persons not able to consent to organ removal). The exceptions to Article 6 in these two contexts are addressed below. Chapter iii and Article 10 deal with private life19 and the right to information. Article 10 sets out the principle that everyone has the right to respect for private life in relation to information about his or her health. Paragraph 2 states 19

This Article reaffirms the principle introduced in Article 8 (Right to respect for private and family life) of the European Convention on Human Rights and reiterated in the Convention for the Protection of Individuals with Regard to Automatic Processing of Personal Data. These instruments also give us the term ‘private life’. During the drafting of the Convention and its Protocols, several experts commented that ‘privacy’ would be more appropriate in modern English usage, but the terminology of the aforementioned instruments was retained in order to make clear the links to their enunciated principles and related case law.

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that everyone is entitled to know any information collected about his or her health, but also states that the wishes of individuals not to be informed shall be obserred.20 These rights are qualified by the third paragraph, which states that in exceptional cases restrictions may be placed by law on the exercise of the rights contained in paragraph 2 in the interests of the patient. It is also noted in the Explanatory Report that the right to know or not to know may be restricted on the basis of Article 26(1) in order to protect the rights of a third party or of society. Requirements for research to be undertaken on persons in the fields of biology and medicine are set out in the Convention’s Chapter on Scientific Research specifically and in other chapters. The Convention and its Draft Additional Protocol on Biomedical Research apply to all biomedical research involving interventions on human beings. The general rule for scientific research is set out in Article 15. It states that scientific research in biomedicine shall be carried out freely,21 subject to the provisions of the Convention and the other legal provisions ensuring the protection of the human being. The fundamental principle for research involving human beings, as in the rest of the Convention, is the free, informed, express, specific, and documented consent of the person(s) taking part. The Convention also stipulates additionally (in Article 16) that research on a person may only be undertaken if all the following conditions are met:22 i. If there is no alternative of comparable effectiveness to research on humans; ii. the risks which may be incurred by that person are not disproportionate to the potential benefits of the research; iii. the research has been approved by the competent body after independent examination of its scientific merit, including assessment of the importance of the aim of the research, and multidisciplinary review of its ethical acceptability; iv. the persons undergoing research have been informed of their rights and the safeguards prescribed by law for their protection;

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The Explanatory Report notes that the exercise of the right not to know this or that fact concerning his or her health is not regarded as an impediment to the validity of his or her consent to an intervention. The example is given of a person validly consenting to the removal of a cyst despite not wishing to know its nature. The freedom of scientific research is a constitutionally protected right in some of the Member States. See for example, Article 20 of the Swiss Constitution. These conditions were largely inspired by Recommendation No R (90) 3 of the Committee of Ministers to Member States on medical research on the human being.

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v.

the necessary consent has been given expressly, specifically and is documented. Such consent may be freely withdrawn at any time. Particular attention is being paid in the Council of Europe to the fulfilment of the requirement for multidisciplinary review of the ethical acceptability of biomedical research. First of all, this is being done through a more detailed examination of the subject of ethical review and ethics committees in the additional Protocol on Biomedical Research. This will serve to harmonize the principles of ethical review of research involving human beings in Europe. Additionally, the Council has been undertaking a program of cooperation in the years 1997–2002 with its member countries in central and Eastern Europe and elsewhere called the Demo Droit Ethical Review of Biomedical Research Activity (debra). The program consists of multilateral and bilateral meetings, study visits and informative materials on best practice in this field in Europe. This activity previously had been supported by the European Commission and Norway. The independence of these committees is paramount. As Senator Claude Huriet, who served as a rapporteur for a debra meeting in Vilnius, writes in the French Senate report on the Protection of Persons Undergoing Biomedical Research, the independence of the committees is the foundation of their credibility and legitimacy.23 The Convention pays specific attention to the protection of persons not able to consent to research and of embryos in vitro. Article 17 deals with protection of persons not able to consent to research and sets out that research on a person not able to consent to research may only be undertaken if: – The conditions just mentioned from Article 16, which are applicable to all research, are fulfilled; – the persons to undergo research have been informed of their rights and the safeguards prescribed by law for their protection; – the results of the research have the potential to produce real and direct benefit to his or her health; – research of comparable effectiveness cannot be carried out on individuals capable of giving consent; – the necessary authorisation provided for under Article 6 (of the Convention) has been given specifically and in writing; and – the person concerned does not object. Article 17 also provides exceptionally and under the protective conditions prescribed by law that research which does not have the potential to produce 23

C. Huriet, “La protection des personnes se prêtant à des recherches biomédicales. La rôle des comités: un bilan et des propositions”, Les Rapports du Sénat, No. 267, 2000–2001, p. 15.

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r­esults of direct benefit to the health of a person not able to consent to research may be carried out if stringent conditions are fulfilled. In addition to the aforementioned requirements for research on persons not able to consent, it adds that the research has the aim of contributing, through significant improvement to the scientific understanding of the individual’s condition, disease, or disorder, to the ultimate attainment of results capable of conferring benefit to the person concerned or to other persons in the same age category or afflicted with the same disease or disorder or having the same condition. Finally, the research must entail only minimal risk and minimal burden for the individual concerned. A key issue for biomedical researchers in the EU and Council of Europe countries is how to observe ethical review requirements in multi-centre research which may be foreseen in a number of EU and non-EU countries party to the Convention, and in non-party countries, without seriously delaying the start of the research due to a multiplicity and diversity of procedures for obtaining opinions from ethics committees in various regions. At the same time, adequate ethical review of such research must be assured. Article 18 states that where the law allows research on embryos in vitro, it shall ensure adequate protection of the embryo and stipulates that the creation of human embryos for research purposes is prohibited. This does not mean that research on supernumerary embryos created for fertilisation, purposes is prohibited by this Article. As noted above, an additional Protocol on the Protection of the Human Embryo and Foetus is under preparation by a working party under the authority of the cdbi. 2.2 The Draft Additional Protocol on Biomedical Research The Draft Protocol on Biomedical Research was declassified for consultation by the cdbi in June 2001. It is expected that having received the feedback from this consultation, the Working Party on Biomedical Research will meet in late spring 2002, and will make any necessary modifications to the text. It would then be submitted further to the cdbi and to the Committee of Ministers for adoption. Therefore, in its present form it is a draft, but one that embodies the guidance that the Working Party on Biomedical Research wished to impart. When it comes into force, the provisions of the Protocol’s Article 1 to 36 will be regarded as additional articles to the Convention on Human Rights and Biomedicine for the Parties, and all the provisions of that Convention shall apply accordingly. The Draft Protocol’s Preamble stresses that its paramount concern is be the protection of the human being participating in research and affirms that particular protection should be given to human beings who may be vulnerable in

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the context of research. It further recognises that every person has a right to accept or refuse to undergo biomedical research and that no one can be forced to undergo it. Article 1 (object and purpose) states that Parties to the Protocol shall protect the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to any research involving interventions on human beings in the field of biomedicine. This is an adaptation of Article 1 of the Convention itself. The full range of biomedical research activities involving any kind of intervention on human beings are covered by the Draft Protocol. The term ‘intervention’ must be understood here in a broad sense; in the context of this Protocol it covers all medical acts and interactions relating to the health or well-being of persons in the framework of health care systems or any other setting for scientific research purposes. The Protocol covers all interventions performed for the purposes of research in the fields of preventive care, diagnosis, treatment, or rehabilitation. Here the Protocol is merely following the definition of intervention used by the Convention, applying it here to the specific field of biomedical research. Questionnaires, interviews and observational research taking place in the context of biomedicine constitute interventions if there is contact with the person. In the case of observational research, the existence or lack of contact with the person subject to the research constitutes the dividing line between what is an intervention and what is not. It should be remembered that even questions or interviews could be profoundly troubling to a research subject if they address a sensitive sphere of that person’s private life, such as a previous or current illness. One ramification of defining such research as coming within the scope of this Protocol is that review by an ethics committee would be required. The ethics committee could point out any potential problems in the research project to those submitting it for review. The Protocol does not address established medical interventions independent of a research project, even if they result in biological materials or personal data that might later be used in biomedical research. However, research interventions designed to procure biological materials or data are within the scope of this Protocol. The Draft Protocol does not address research on archived biological materials and data. This is a point on which it differs from the World Medical Association’s Declaration of Helsinki (adopted at its 52nd General Assembly in Edinburgh, Scotland, October 2000),24 which ‘includes research on identifiable 24

The Declaration of Helsinki is a set of professional rules for all biomedical researchers adopted by the World Medical Association. The Declaration is aspirational rather than

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human material or identifiable data’. Earlier drafts of the Protocol had included these subjects within its scope, but it was decided that they would be better dealt with in a separate report and/or legal instrument after further consideration of the rapidly changing field. Consequently, this draft Protocol will not serve as guidance to Estonian, Latvian and other policymakers in cases where they are dealing with research on archived materials or data, which had been collected for another reason. However, these biological materials and personal data can pose the same types of risks in regard to breach of confidentiality or genetic discrimination as those collected specifically for research purposes, so this second report/instrument will be eagerly awaited when it is completed and made public. The Draft Protocol does not apply to research on embryos in vitro, but does apply to research on embryos in vivo. This is despite the fact that there is a separate protocol being developed on the protection of the human embryo and foetus. It was considered that since the Protocol would address research on pregnant women, as a subset of the larger group of persons, it would illogical to try to split that research from the attendant benefits, risks or impact on the embryo in vivo or foetus. It is worthwhile noting that the Draft Protocol, like the Convention, will apply to both privately funded and State funded research. This is in contrast to the approach of the United States, which has often regulated only federally funded research, though there are exceptions (research coming under the authority of the U.S. Federal Drug Administration, for instance). Further, the Draft Protocol asserts the primacy of the human being, stating that the interests and welfare of the human being participating in research shall prevail over the sole interest of society or science. It is an adaptation of the general rule found in Article 15 of the Convention. Article 4 sets out the general rule of freedom of research, subject to the provisions of this Protocol and of other legal provisions ensuring the protection of the human being. The Protocol states that research is only justified if it has the potential to generate scientific understanding that may be a basis for improvements in human health, and if there is no alternative of comparable effectiveness to utilising human beings in research. Comparable effectiveness refers to the foreseen results of the research, not to individual benefits for a participant. Research on legally binding, but it has had a great influence especially on members of the medical profession in Estonia, Latvia and Lithuania. It is seen as a valuable ‘soft legal’ instrument. See P. Zilgalvis, “The European Convention on Human Rights and Biomedicine: Competition for the Declaration of Helsinki?” in Freedom and Control of Biomedical Research: The Planned Revision of the Declaration of Helsinki (Springer, 2000), pp. 261–271.

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human beings is the last recourse for biomedical researchers. Invasive methods will not be authorised if other less invasive or non-invasive methods can be used with comparable effect. Alternatives to research on human beings could include computer modelling or research on animals. This does not imply that the Draft Protocol authorises or encourages using alternatives that are unethical. The Protocol does not evaluate the ethical acceptability of research on animals, using computer models or other alternatives. These matters are addressed by other legal instruments, such as the Council of Europe Convention for the Protection of Vertebrate Animals used for Experimental and Other Scientific Purposes (1986), and professional standards. The Draft Protocol states that research shall not involve risks to the human being disproportionate to its potential benefits. When medical research may be of direct benefit to the health of the person undergoing research, a higher degree of risk may be acceptable provided that it is in proportion to the possible benefit. For example, a higher degree of risk may be acceptable on a new treatment for advanced cancer, whereas the same risk would be quite unacceptable where the research is aimed at improving the treatment of a mild infection. A direct benefit to a person’s health signifies not only treatment to cure the patient but also treatment that may alleviate suffering thus improving his/ her quality of life. Further, research without potential direct benefit for the participant is addressed. Such research may only be authorised if the research has the aim of contributing, through significant improvement in the scientific understanding of health, disease, or disorder to the ultimate attainment of results capable of conferring benefit to the health of others; and the research entails acceptable risk and acceptable burden for the research participants This category of research includes all non-therapeutic research, including that undertaken on the so-called ‘healthy volunteers’. The question of whether or not the risk and burden are acceptable will be considered carefully by the ethics committee and competent body that approve the research project. The final decision on whether or not the risk and burden are acceptable will be made by the person concerned when the person decides whether to consent to participate in the research. Because these participants are capable of consenting to participation in research, the level of risk and burden permitted (acceptable) is higher than that allowed for persons not able to consent (minimal risk and minimal burden). The Draft Protocol’s Article 9 requires that research only be undertaken if the research project has been approved by the competent body in conformity with national law, after independent examination of its scientific merit, and multidisciplinary review of its ethical acceptability by an ethics committee in

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conformity with Articles 10 (scientific quality) and 11 (independent examination by an ethics committee). This further develops the aforementioned requirements of review and approval in Article 16 of the Convention. It is acknowledged that in some countries, the ethics committee could also act as the competent body while in other cases or in other countries, the competent body might be a Ministry or a regulatory agency (for pharmaceuticals, for instance), which would take the opinion of the ethics committee into account in formulating its decision. This provision is not intended to curtail the freedom of research. In fact, Article 4 of this Protocol states that biomedical research shall be carried out freely. However, this freedom is not absolute. It is qualified by the legal provisions ensuring the protection of the human being. Independent examination of the ethical acceptability of the research project by an ethics committee, and the approval of that project, is one such protective provision. Allowing unethical research to utilise human beings would contravene their fundamental rights. It is the responsibility of Parties to designate, within the framework of their legal system, the ethics committee or a different competent body that would act as the decision making organ in order to protect those taking part in the research. In addition, the Article states that consideration must be given to the relevance of the research to the health needs of the local community when reviewing the research project. In most cases, such relevance will be a factor in a positive opinion on the research project by an ethics committee and approval by the competent body (be that the same ethics committee or another body). This does not mean that in all cases where the research is not relevant to local health needs it must not be approved. The example may be given of a phase of research undertaken in an urban European or North American setting where the results will be of relevance to a cure for a tropical disease; especially where the research would involve volunteers capable of giving consent, there should be no strict prohibition on participating in such research out of solidarity. Such research has, in fact, been often undertaken at the National Institutes of Health in the United States. What the provision is seeking to prevent is the ‘export’ of research in order to avoid stringent ethical standards or in order to find volunteers in another country because they cannot be found in the home country of the researchers. Chapter iii of the Draft Protocol addresses ethics committees and opens with Article 11 on independent examination by an ethics committee. It requires that research projects be submitted to independent examination in each country in which any research activity is to take place. This includes countries from which research subjects are to be recruited for research physically carried out in another country. Best practice is to also submit research projects to an ethics

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committee in every research location within countries. All research projects within the scope of this Protocol must be submitted for review, but the Draft Protocol does not address archived biological materials or data. However, this does not exclude the submission of biomedical research based on archived personal data or biological materials from submission to an ethics committee. These fields of research are simply not addressed under the scope. Due to the differing systems in use in various countries, the Article refers to ethics committees. It was considered that this term covers ethics committees or other bodies authorised to review biomedical research involving interventions on human beings. In many countries this would refer to a multidisciplinary ethics committee but review by a scientific committee might also be required. The Article does not require a positive assessment by the ethics committee being that the role of such bodies or committees in many countries may be solely advisory. The conclusion of this assessment may have legal force in some jurisdictions while in others it serves to advise the competent body (for example, a regulatory authority) that will make a binding decision on whether the research project can commence. The Article sets out the purpose of the multidisciplinary examination after the precondition of scientific quality has been met. This purpose, in accordance with the aim of the Convention and Protocol to protect the dignity and identity of all human beings, is to protect the dignity, rights, safety and well being of the research participants. If participants are to be included during the reproductive stage of their lives, care should be taken that the duty of the researcher to provide birth control advice, if appropriate, is fulfilled. Further, it is stated that the assessment of the ethical acceptability shall draw on an appropriate range of expertise and experience adequately reflecting professional and lay views. The existence of an independent ethics committee ensures that the interests and concerns of the community are represented, and the participation of laypersons is important in ensuring that the public can have confidence in the system for oversight of biomedical research. Such laypersons will be not be healthcare professionals nor have experience in carrying out biomedical research. The fact that a person is an expert in an unrelated field, such as engineering or accountancy, does not preclude a person from being able to express lay views within the meaning of this Article. Thus this paragraph further details what is meant by the term ‘multidisciplinary’. Thought should also be given to gender and cultural balance in the bodies carrying out the assessment. In creating this body, the nature of the projects likely to be presented for review should also be taken into account, and the committee may need to invite experts to assist it in evaluating a project from a specialised sphere of biomedicine.

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Additionally, the ethics committee must give clearly stated reasons for its positive or negative conclusions. Whether the reasoning and conclusions are further considered by the competent body in granting or denying approval, or whether they are regarded as the final say on the research project, the basis for conclusion should be clearly comprehensible both to specialists in the field and to laypersons. The independence of the ethics committee itself and of the individual members of the committee is addressed in Article 12. It states that Parties shall take measures to assure the independence of the ethics committees and that those committees shall not be subject to undue external influences. The members of the ethics committees must declare all circumstances that might lead to a conflict of interest. If such conflicts arise, those involved shall not participate in the review in question. Article 13 of the Draft Protocol lists the clear, documented information that must be submitted to the ethics committee by the researcher submitting the project for review. In this version of the Draft Protocol that has been declassified for consultation, this Article is rather long and detailed, serving rather like a checklist for the ethics committee reviewing the research project. The detail of this Article has been criticised, but it is precisely in this extended form that it is able to serve as valuable guidance to the ethics committees in Estonia and Latvia that will be reviewing research utilising the genome databases, and will hopefully also be reviewing the collection of the materials/data for these databases. Comparing the detail of this Article with other international instruments in the field, such as EU Directive 2001/20/EC and the International Conference for Harmonisation (ich) of Technical Requirements for Registration of Pharmaceuticals for Human Use Tripartite Guideline for Good Clinical Practice (gcp),25 we find that these instruments also list the information that must be submitted to the ethics committee. The difference is that they take a different approach in addressing this requirement in a number of separate places. The Directive lists in Article 6 what the committee shall consider in preparing its opinion and then requires in Article 8 that detailed guidance be drawn up on the application format and documentation to be submitted in an application for an ethics committee opinion. The ich Guideline includes a list of 25

This is a guideline, rather than a formal international treaty or convention, thus it is not legally binding. It constitutes an agreement between the participating pharmaceutical regulatory agencies. Its strength arises from the desire of the regulatory agencies and industry to harmonise the regulation of clinical drug trials. See D. Sprumont, “Legal Protection of Human Research Subjects in Europe” (1999) 6 European Journal of Health Law, pp. 25–43.

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d­ ocumentation that must be submitted to the institutional review board/ethics committee,26 including the trial protocol/amendments and the investigator’s brochure (ib). The necessary contents of both of these documents are described in great detail later in Sections 6 and 7 of the Guideline. It is worthwhile drawing attention to several items of information that must be submitted to the ethics committee. These include the details of all payments and rewards to be made in the context of the research project; and on any foreseen potential further uses, including commercial uses, of the research results, data or biological materials. It is necessary to note that the list does not exclude the ethics committee from requesting additional information necessary for evaluation of the research project. The Draft Protocol does not prohibit payments to research participants or to the researchers themselves, but in the interests of transparency requires that the ethics committee be informed. With this information, the ethics committee might conclude, for example, that a payment to a research subject is excessive in relation to the inconvenience caused and is, in fact, an inducement to accept a higher level of risk. On the other hand, lucrative financial incentives to a doctor to sign up a large number of patients for a research project might call into question the physician’s objectivity in explaining the positive and negative aspects of participation to his patients. The Protocol also does not take any stand on patenting or on commercial use of research results, data, or biological materials. Rather, it acknowledges the fact that the motivation for participation in biomedical research for many persons may be out of solidarity, and information on foreseen commercial uses of their contribution to the research may be important to them in making a decision on whether to take part or not. Again in the interests of transparency, this Article requires informing the ethics committee reviewing the research project and the potential research participant (in Article 16) of such foreseen uses of the results, data or biological materials. Article 14 states that the ethics committee must be satisfied that no undue influence, including financial gain, will be exerted on persons to participate in research. Article 15 states that the ethics committee must be satisfied that dependent persons and vulnerable groups will not be subjected to undue influence. If the ethics committee is not satisfied regarding undue influence, then the project should not receive a positive assessment unless changes are made to address the problem. Article 15 sets out the principle that the ethics

26

The term ‘institutional review board’ or irb is more frequently used in the United States than ‘ethics committee’.

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c­ ommittee must make a special effort to determine that undue influence is not being exerted on dependent persons or vulnerable groups. Dependent persons may be described as people whose decision on participation in a research project may be influenced by their reliance on those who may be approaching them with the possibility of such participation. Several examples are; persons deprived of their liberty, recipients of health care dependent on their health care provider for continued care, medical or other students, persons in military service, health care workers (particularly those in junior positions) or employees. One could say that all research participants are vulnerable to harm, since research by definition involves uncertainty. At the same time, some human beings may be more vulnerable than others in the context of biomedical research. Persons asked to take part in research could be classified as being vulnerable due to cognitive, situational, institutional, deferential, medical, economic, and social factors. Chapter iv addresses consent and information. As mentioned above, Article 16 requires that the persons being asked to participate in a research project be given adequate information in a documented and comprehensible form on the purpose, overall plan and methods to be applied in the research project, including the opinion of the ethics committee, according to national law. Further, it lists the items of information that they must receive. The same items of information must be furnished to those asked to provide authorisation for the participation of a person in research (Article 19). Consent to participation in biomedical research is addressed by Article 17. As noted above, informed consent is a fundamental principle of the Convention, in regard to medical or research interventions. This Article states that no research on a person may be carried out under the provisions of Chapter iv without the informed, free, express, specific and documented consent of the person. Such consent can be freely withdrawn by the person at any phase of the research. Refusal by the person to give consent or the withdrawal of consent to participate in research shall not prejudice a person’s right to receive appropriate and timely medical care. If the capacity of the person to give informed consent is in doubt, arrangements must be in place to verify whether or not the person has such capacity. Such persons may be those who have not been declared incapable of giving consent by a legal body, but whose capacity to give consent may be questionable due to an accident or due to a persistent or worsening condition. The aim of this requirement is not to set out any particular arrangement for verification, but simply to require that such procedures exist. The arrangements would not necessarily be in the framework of the court system, they could be developed and implemented through professional standards in the medical sphere

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for instance. The researcher is ultimately responsible for verifying that the participants from whom he obtains consent have the capacity to give the consent. Information on arrangements for such verification in the context of a specific research project should be submitted to the ethics committee reviewing the project. If the person in question is not able to give consent, then Chapter v (protection of persons not able to consent to research) applies. Article 18 of this Chapter is based on Article 17 of the Convention, which provides protection for those not able to consent to research. The differences are that it expands on the requirement of the authorisation that is necessary for the participation of the person in the research project and it adds a third paragraph with further protections in regard to the uninterrupted provision of appropriate and timely medical care for those for whom authorisation is not given or who object to participation in the research. In regard to authorisation, it is stated that it must be informed (in compliance with Article 19 on the information to be furnished prior to authorisation), and that account must be taken of previously expressed wishes or objections. It is stated that an adult not able to consent shall as far as possible take part in the authorisation procedure, and that the opinion of a minor shall be taken into consideration as an increasingly determining factor in proportion to age and degree of maturity. Both the Convention and the draft Protocol foresee the possibility of authorising research, under the protective conditions prescribed by law, where there is no potential direct benefit to the research subject if additional conditions are fulfilled. One of these is that the research entails no more than minimal risk and minimal burden. One of the critical comments made about the Convention was that ‘minimal risk and minimal burden’ was not defined. The Draft Protocol now offers such a definition specifying: ‘in terms of the nature and scale of the intervention, the research bears a minimal risk if it is to be expected that it would result, at the most, in a very slight and temporary negative impact on the health of the person concerned. It is deemed that it bears a minimal burden if it is to be expected that the symptoms or unpleasantness will be, at the most, temporary and very slight’. It adds that in assessing the burden for an individual, a person enjoying the special confidence of the person concerned shall assess the burden where appropriate. It might be said that this Article is more explanatory than normative, but its political value in the very sensitive area of research on those not able to consent is unquestionable. Chapter vi addresses special situations, firstly that of research in emergency clinical situations. Specifically, this Article deals with situations wbere it is not possible to obtain consent or the authorisation referred to in Article 18

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­paragraph I. iv (otherwise the aforementioned Articles on consent and ­authorisation would cover the situation). It stipulates if this is the case, and if the research is of a nature such that it can only be undertaken in emergency situations, the law shall determine whether, and under which conditions, this research can take place. The law must include the specific conditions that research of comparable effectiveness cannot be carried out on persons in nonemergency situations, and that the research project may only be undertaken if it has been approved specifically for emergency situations by the competent body. The Article further specifies that persons participating in the emergency research shall be provided with all the relevant information as soon as it becomes possible. Consent or authorisation for continued participation must be obtained as soon as reasonably possible. Article 22 of this Chapter addresses research on persons deprived of liberty. It starts with the words ‘Where such research is allowed by law’, because several Council of Europe Member States prohibit this type of research under any circumstances. Technically, this wording it is not necessary since Article 27 of the Convention specifies that none of its provisions shall be interpreted as limiting the possibility for a Party to grant a wider measure of protection with regard to the application of biology and medicine than is stipulated in the Convention. The expression ‘wider protection’, in the case of a conflict between various rights provided for in the Convention, must be interpreted in the light of the aim of the Convention, the protection of the human being. Further, for such research to be undertaken it must either, have the potential to produce a significant benefit to the health of the potential research participant; or be aimed at benefiting the health of people deprived of their liberty, and only be possible utilising those deprived of their liberty. Examples of the second alternative would be research on the health condition of persons deprived of their liberty, or on how to prevent the spread of aids in prison populations. The Article also requires that particular attention be paid that the condition of Article 15 (undue influence on dependent persons) is fulfilled, and that approval has been given by all competent bodies provided for by law. This final requirement relates to the fact that this could also include a body protecting persons deprived of their liberty and/or regulating their contacts, in addition to the competent body for research. Research during pregnancy or breastfeeding is also addressed by Article 23 of the Draft Protocol. The provision seeks to balance the interests of the woman or embryo or foetus receiving potential benefits from a research project with the need for special protection of the embryo or foetus in the framework of such research. Obviously, any intervention on the pregnant woman will have some sort of impact on the embryo or foetus. The Article states that such

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research may only be undertaken if the conditious listed therein are met. ­Firstly, that the informed consent and/or authorisation required by law has been obtained. Informed consent or authorisation for the person undergoing research is always required under this Protocol and the Convention, and obviously therefore the consent of the mother is always necessary. However, different approaches exist in various countries in regard to the necessity of consulting the father, or not, in regard to this type of research. Therefore, this provision defers to national law by referring to the informed consent or authorisation ‘required by law’. Secondly, the provision sets out two alternatives justifying this type of research. The first is that the research will potentially benefit significantly and directly the health of the woman or that of the embryo, foetus or child. In regard to this alternative, the risk shall not be disproportionate to the potential direct benefits of that research. The second alternative is where the research has the aim of contributing, through significant improvement in scientific understanding, to the ultimate attainment of results capable of conferring benefit to other embryos, foetuses, children or women and where research of comparable effectiveness cannot be carried out on women who are not pregnant or breast feeding. If utilising this alternative, there shall be only minimal risk and minimal burden. Chapter viii deals with confidentiality and the right to information. It provides for the confidentiality of any information of a personal nature obtained during biomedical research, the accessibility to research participants of information collected on their health, the availability of research results, and protection of information related to the research. Safety and supervision are addressed by Chapter ix. Articles are included on; safety of research, re-examination of ongoing research projects if relevant developments or unforeseen events arise during the research, required renewed informed consent or authorisation if appropriate given the events or developments that have arisen, assessment of the health status of potential participants, non-interference of research with necessary clinical interventions, duty of care and ethics follow-up. Article 30 states that placebo treatment may only be used in cases where there is no treatment of proven effectiveness, or where withdrawal or withholding of active treatment does not present unacceptable risk or burden. Article 33 in this Chapter addresses research in States not party to the Protocol. It sets the requirement that sponsors and researchers based in the territory of a Party to the Protocol who plan research in a State not party to the Protocol, must satisfy both the conditions applicable in the State or States in the ­territory

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of which research is to be carried out and the fundamental ethical standards and safety guarantees laid down in the Protocol. An example of how this ­Article would work is if the non-Party State does not require independent ethical examination of research projects then the project in question should be reviewed in the State Party to the Protocol. This does not imply that the State Party to the Protocol has the authority to approve research in the non-Party State if that State does not approve the research, or to override its regulations but that researchers from the Party State may be required to observe additional conditions, in accordance with the Protocol, to those applicable in non-Party States if they chose to conduct research there. The wording ‘researchers and sponsors based in a State party to this Protocol’ signifies those provisions requiring Parties to provide appropriate judicial protection to prevent or put a stop to an unlawful infringement of the rights and principles set forth in the Protocol at short notice, appropriate compensation for research participants in the event of damage according to the conditions and procedures prescribed by law, and appropriate sanctions to be applied in the event of infringement of the provisions contained in the Protocol who have resident status (temporary or permanent) in that State or are citizens of that State, unless they have the status of permanent residents elsewhere. Chapter x (infringement of the provisions of the Protocol) includes A ­ rticle 38 which provides for re-examination of the Protocol within the Committee referred to in Article 32 of the Convention on Human Rights and Biomedicine no later than five years from its entry into force, and thereafter at such intervals as the Committee may determine. Article 32 of the Convention identifies this Committee as the Steering Committee on Bioethics (cdbi), or any other Committee so designated by the Committee of Ministers. Article 39 of the Draft Protocol deals with wider protection. In pursuance of this Article, the Parties may apply rules of a more protective nature than those contained in the Protocol. In other words, the text lays down common standards with which States must comply, but at the same time allows them to provide greater protection of the human being and of human rights with regard to biomedical research. A conflict may arise between the various rights established by the Protocol, for example between a scientist’s right of freedom of research and the rights of a person submitting to the research. However, the expression ‘wider protection’ must be interpreted in the light of the purpose of the Protocol, as defined in Article 1, namely the protection of the human being with regard to any research in the field of biomedicine. In the example cited above, any additional statutory protection can only mean greater protection for a person participating in research.

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Genetic Discrimination

Returning to the body of the Convention on Human Rights and Biomedicine itself, its Chapter iv (human genome) is relevant to research and other interventions specifically in the genetic field. This Chapter seeks to prevent the use of genetic tests for purposes that may be selective or discriminatory. The right to be free from discrimination is a fundamental human right, and is part of international human rights instruments like the Universal Declaration of Human Rights (Article 2), the International Covenant on Civil and Political Rights ­(Articles 2 and 26), the International Covenant on Economic, Social and Cultural Rights (Article 2, paragraph 2), and the European Convention on Human Rights (Article 14). The Convention on Human Rights and Biomedicine is the first and, until now, only binding international legal instrument that identifies genetic heritage as one of the grounds for non-discrimination.27 The Charter of Fundamental Rights of the European Union prohibits any discrimination based on genetic features in its Article 21 (non-discrimination). Although this Charter is influential, its legal status is unclear at the moment. It could be described as having a declaratory nature in the present scheme of things in the European Union. However, Mr. Romano Prodi, President of the European Commission stated, ‘In the eyes of the European Commission, by proclaiming the Charter of Fundamental Rights, the European Union institutions have committed themselves to respecting the Charter in everything they do and in every policy they promote’.28 Furthermore, it has been proposed that any future European Union ‘Constitution’ could integrate the Charter of Fundamental Rights.29 Other commentators have stated that, in any case, it is the most modern international instrument addressing human rights and will be a very influential source for legal argumentation.30 Therefore, it could be concluded that, in addition to Denmark, which has ratified the Convention on Human Rights and Biomedicine, the other European Union Member States and candidate countries around the Baltic Sea also have a duty to prohibit genetic discrimination. 27

A. Hendriks, “Genetics, Data Protection and Non-Discrimination: Some Reflections from  an International Human Rights Law Perspective” (2001) 20 Medicine and Law 1, pp. 37–49. 28 accessed on 9 July 2001. 29 Assemblée Nationale, Délégation pour l’Union Européenne, Compte Rendu No. 149, Réunion du 19 juin 2001, audition de M. Jacgues Delors, ­accessed on 9 July 2001. 30 E. Levits, “Cilvēktiesības Eiropas Savienības tiesību sistēmā” (2000) 2 Likums un Tiesības, 11(15), p. 335.

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Article 11 of the Convention specifically enunciates the principle that any form of discrimination against an individual because of his or her genetic heritage is prohibited. It is interesting to note that the Convention uses the term ‘genetic heritage’, while the Charter opts for ‘genetic features’. Meanwhile, unesco’s Universal Declaration on the Human Genome and Human Rights states in its Article 6 that no one shall be subjected to discrimination based on genetic ‘characteristics’. This prohibition in Article 11 of the Convention expands the protections of Article 14 of the European Convention on Human Rights, which states that the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination on the basis of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, to include genetic heritage. The Explanatory report notes that this prohibition of discrimination applies to all areas included in the field of application of the Convention on Human Rights and Biomedicine. This notion also includes non-discrimination on grounds of race as understood by the 1965 United Nations Convention on the Elimination of all Forms of Racial Discrimination as interpreted by the Convention Committee (cerd). Discrimination must be understood as unfair discrimination. The Explanatory Report states that this prohibition cannot prohibit positive measures implemented with the goal of re-establishing a certain balance in favour of those at a disadvantage because of their genetic inheritance. An example of the positive influence of the Convention and/or the Charter can be found in the Draft Latvian Law on Human Genome Research sent to the Committees of the Parliament in June 2001, which prohibits discriminating against a person on the basis of a person’s dna structure or on the basis of the person being or not being a gene donor. Again, the basis for discrimination differs slightly here; it is the ‘dna structure’ in this instrument. Additionally, a further ground for non-discrimination is added, that of being a donor or not being a donor. It could be said that this requirement is analogous to the requirement of the Convention on Human Rights and Biomedicine and its Protocol that a potential research participant has the right to withdraw or refuse consent (and should not suffer for choosing to exercise this right). 3.1 The Convention and Genetic Therapy Article 12 states that tests which are predictive of genetic diseases or which serve to identify the person being tested as a carrier of a gene responsible for a disease or to detect a genetic predisposition or susceptibility to a disease may be performed only for health purposes or for scientific research linked to

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health purposes, and subject to additional genetic counselling. Thus research utilising such tests should be undertaken in the context of developing medical treatment and enhancing the possibility to prevent disease. Article 13 states that interventions seeking to modify the human genome may only be undertaken for preventive, diagnostic, or therapeutic purposes and only if the aim is not to introduce any modification in the genome of any descendants. The Explanatory Report explains that medical research intending to genetically modify spermatozoa or ova that are not for procreation is only possible in vitro with appropriate ethical or regulatory approval. Provisions regarding genetic research are currently being developed further, primarily in the additional Protocol on Human Genetics, but also, in a more general sense, including ethical review of research, in the additional Protocol on Biomedical Research. The Working Party preparing the additional Protocol on Human Genetics is also considering issues such as; access to genetic services, individual genetic testing, genetic screening programmes, non-stigmatisation, interventions on the human genome, genetic counselling, applications of genetics related to employment, applications of genetics related to insurance, applications of genetics related to identification, and the protection of private life. Article 21 prohibits financial gain from the human body and its parts.31 The issue of financial gain arising from the human body or its parts will be addressed further in the context of biomedical research in the additional Protocol on Biomedical Research and in a related report addressing research on biological materials. While there is no possibility for recourse to the European Court of Human Rights at this time in regard to individual cases connected to the Convention, Article 29 of the Convention provides that the European Court of Human Rights may give advisory opinions concerning interpretation of the Convention at the request of the Government of a Party or the cdbi (with membership restricted to the Parties to the Convention for this question). Additionally, it requires any Party to furnish an explanation of the manner in which its internal law ensures the effective implementation of any of the provisions of the Convention if so requested by the Secretary General of the Council of Europe. As we are dealing with such a rapidly changing field, Article 32 provides that the Convention shall be re-examined no later than five years from its entry into

31

The Explanatory report notes that the question of patents was not considered in connection with this provision; accordingly it was not intended to apply to the issue of the patentability of biotechnological inventions.

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force (1 December 1999) and afterwards at intervals determined by the Committee in charge of its re-examination. 4 Cloning The additional Protocol to the Convention on Human Rights and Biomedicine on the Prohibition of Cloning Human Beings opened for signature on 12 January 1998 and came into force on 1 March 2001. The Protocol has been signed by 29 Council of Europe Member States32 and has been ratified by eight.33 The Protocol follows from the principle of protecting human dignity found in Article 1 of the Convention; also from Article 13, which provides that an intervention seeking to modify the human genome may only be undertaken for preventive, diagnostic, or therapeutic purposes, and only if its aim is not to introduce any modification in the genome of any descendants; and from Article 18 which ensures the protection of the embryo in vitro in the framework of research and forbids the creation of embryos specifically for use in research. Article 1 of the Protocol states that any intervention seeking to create a human being identical to another human being, whether living or dead, is prohibited. The next paragraph explains that for the purpose of this article, the term human being ‘genetically identical’ to another human being means a human being sharing with another the same nuclear gene set. In conformity with the approach followed for the Convention on Human Rights and Biomedicine, the Protocol leaves it to domestic law to set the scope of the expression ‘human being’ in regard to the application of the Protocol. The Explanatory Report to the Protocol explains that the term ‘nuclear’ means only that genes of the nucleus, not the mitochondrial genes, are examined in regard to identity, which is why the prohibition of human cloning also extends to all nuclear transfer methods which seek to create identical human beings. The term used in the additional Protocol, ‘the same nuclear gene set’, takes into account the fact that some genes may undergo somatic mutation during development. As it is known, monozygotic twins who have developed from a single fertilised egg will share the same nuclear gene set, but may not have genes that are 100 per cent identical. The Protocol does not intend to discriminate in any 32

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As of I October 2001: Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, France, Georgia, Greece, Hungary, Iceland, Italy, Latvia, Lithuania, Luxembourg, Moldova, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovak Republic, Slovenia, Spain, Sweden, Switzerland, The Former Yugoslav Republic of Macedonia, and Turkey. As of 1 October 2001: Czech Republic, Georgia, Greece, Portugal, Romania, Slovakia, Slovenia, and Spain.

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way against monozygotic twins occurring naturally. It also does not intend to address hormone stimulation to treat infertility in women, which may result in twins being born. In regard to biomedical research, cloning cells and tissues is an ethically acceptable and valuable biomedical technique, particularly important for the development of new therapies, and is not addressed by the prohibition in the Protocol. It does not intend to prohibit cloning techniques utilised in cell biology. There are different points of view, however, regarding the ethical acceptability of cloning undifferentiated cells of embryonic origin. Article 18 of the Convention ensures adequate protection of the embryo in vitro in those States in which such research is allowed and it is suspected that this subject will be looked at in the additional Protocol on the Protection of the Human Embryo and Foetus. Thus, it is necessary to distinguish between cloning of cells as a technique, use of embryonic cells in cloning techniques, and human cloning utilising processes such as embryo splitting or nuclear transfer. The first activity is ethically acceptable, the second is under examination, and the third falls under the prohibition foreseen by the Protocol. It is important to note that none of the instruments define what an ‘embryo’ is. The ethical rationale behind the prohibition of the third activity, the cloning of human beings, is firstly that deliberately cloning human beings would present a threat to human identity because it would mean giving up the indispensable protection against predetermination of the human genetic constitution by a third party. Secondly, it is reasoned that human dignity would be endangered by instrumentalisation of human beings through artificial human cloning. Thirdly, since it is thought that naturally occurring genetic recombination is likely to create more freedom for the individual than a predetermined genetic make-up, it follows that it is in the interest of defending human rights and dignity to keep the essentially random nature of the composition of an individual’s genes. 5 Conclusions The potential benefits created by technology, science and medicine are vast, but without the adequate supervision that a functioning ethical and legal framework offers, this potential for improvements in health and living standards could be misused to other ends. In conclusion, by protecting human rights and dignity in the context of the new biomedical technologies, the Convention helps to provide assurance that the positive implications of such

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a­ ctivities will be appreciated and supported while threatening developments which alarm the people of the Baltic region, other parts of Europe and the rest of the world are not allowed to blacken the image of biomedicine and biomedical research. The positive appreciation of progress in biology and medicine can only be increased by the guarantee that there is an ethical and legal basis for evaluating such undertakings. Other activities of the cdbi also look to the future, though they are not expected to result in legally binding instruments in the near future. Examples are the Working Parties on Xenotrausplantation, Biotechnology and Psychiatry and Human Rights. A different perspective is provided by the Standing Conference of European National Ethics Committees (cometh), which receives secretarial support from the Council of Europe Secretariat. cometh provides an opportunity for the national ethics committees to come together bi-annually to discuss practical and ethical aspects of their work, as well as to extend assistance to Council of Europe Member States wishing to create national ethics bodies. National ethics committees were established during the 1990’s in Estonia, Latvia, and Lithuania. The Committees have taken an active part in the work of cometh. Conferences and symposia, such as the 1999 International Conference of the Council of Europe that focused on ethical issues arising from the application of biotechnology, will continue to be organised. Finally, it is recognised that there is a need for international cooperation in this field to extend the same protections for the individual in this field foreseen in the Convention on Human Rights and Biomedicine beyond Member States of the Council of Europe, and beyond the Baltic Sea region. A debate on bioethical issues is ongoing in international organisations such as the World Health Organisation, unesco, and oecd, among others. A number of observers have noted the tendency toward a certain homogenisation, in a positive sense, of the law in the field of bioethics in the Baltic region and in Western Europe, in general. However, differences do remain between the approaches followed in the United Kingdom and the Continent, and even more so between Europe and some of the Asian countries. Therefore, it might be presumptuous to offer the solutions agreed upon in Europe for the Convention as a template for a future international agreement, but the experience of the Convention, being the first legally binding instrument addressing the new biomedical technologies and already having had tangible influence on national legislation adopted in its wake, could certainly be useful for a future, geographically expanded discussion.

Volume 3 (2003): Reparations for Internationally Wrongful Acts of States

State Responsibility and the Challenge of the Realist Paradigm: the Demand of Baltic Victims of Soviet Mass Repressions for Compensation from Russia Lauri Mälksoo Contents 1. Introduction* 2. The Issue of State Responsibility for Injuries Caused During Illegal Soviet Annexation 2.1. The Conditions of State Responsibility in the Case of the Baltic States: Illegality and Attributability 2.2.  The Reparations Issue after the Reestablishment of the Baltic Independence 3. The Realist Critiques of International Law and State Responsibility 4. Conclusions Every internationally wrongful act of a State entails the international responsibility of that State.1 [w]e both alike know that in the discussion of human affairs the question of justice enters where there is equal power to enforce it, and that the powerful exact what they can, and that the weak grant what they must.2 * The article was published when the author was a fresh PhD from Humboldt University Berlin and worked as international law adviser of the Chancellor of Justice of the Republic of Estonia as well as contractual lecturer of international law at the University of Tartu. 1 Article i, Articles on Responsibility of States for Internationally Wrongful Acts adopted by the Drafting Committee of the International Law Commission (ilc) on second reading, 26 July 2001, A/CN.4/L.602/Rev.l. 2 Athenians to Melians in 416 bc, quoted from: Thucydides, The History of the Peloponnesian War, translated by B. Jowett, 1st ed., London, Oxford University Press, 1881, p. 167.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_004

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1 Introduction In international affairs, claims for justice and compensation are not seldom occurrences. In different contexts, such claims have been raised by victims of apartheid, crimes against humanity, slave labour, and other kinds of grave human rights violations. In cases crossing State borders, lawyers representing victims of human rights violations have based their clients’ claims both on principles of statutory and customary international law, and benefited from domestic legislation such as the US Alien Tort Claims Act or Torture Victim Protection Act.3 One of the fundamental international legal concepts that used for raising claims of justice and compensation is the concept of State responsibility for internationally wrongful acts. Theo van Boven, independent expert to the UN Commission on Human Rights, has emphasised that under contemporary international law, the law of State responsibility is closely linked to the right of individual victims of human rights violations for reparation.4 State responsibility can be invoked only by peers of the violator State; the affected State, or the affected States. An assault against foreign nationals is for international law purposes considered as an assault against the State of the victims. Legal and theoretical concepts within international law of State responsibility have been the subject of keen scholarly interest after World War ii. Institutionally, this interest has been linked to the codification efforts of the International Law Commission (ilc). After a prolonged marathon of codification and progressive development of relevant international law over the last half century, the ilc completed the Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility or ilc Articles) on 26 July 2001. In the view of many scholars, the codification of international law on State responsibility marks a major achievement in the consolidation of the rule of law in international affairs.5 It is especially noteworthy that the codifiers of international law have ventured out into the ‘hard’ field of law enforcement and sanctions, which has been classically considered the Achillean heel of international law. As to the possibility of effective State responsibility in international law, it may be only reminded that in the early 19th century, John Austin pointed out the lack of central command in the system of international 3 28 u.s.c. § 1350. 4 See, T. van Boven, Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, E/CN.4/SUB.2/1993/8. 5 For a critical account regarding underlying premises of the ilc project, see however, P. Allott, ‘State Responsibility and the Unmaking of International Law’ (1988) 29 Harvard International Law Journal, pp. 1–26.

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law which led him to deny to the latter the quality of ‘law, properly so called’.6 Austin’s approach is probably too rigid and ‘black or white’ from the point of view of contemporary legal ideas, but it remains a serious challenge how to enforce State responsibility when there are no binding enforcement mechanisms above States? Another outstanding positivist, Hans Kelsen, considered it a difficult task to construct a convincing system of State responsibility in international law, the structure of which he considered ‘primitive’.7 Kelsen and theorists succeeding him accepted counter-measures as the ultimate measure of State responsibility in international law (formerly: reprisals, i.e. the right to respond to an internationally wrongful act with a de facto equivalent of an internationally wrongful act). In the law of a primitive society, which has already so often been quoted as an analogy for international law, the corresponding situation of responsibility would be as follows: you may (within certain limits) strike back when you are attacked. It has rightly been pointed out that virtually all members of the international community have recognised the principle of State responsibility for the breaches of international law. International jurisprudence of the pre-World War ii era witnessed the recognition of the principle of State responsibility in customary international law.8 For instance in the Phosphates in Morocco case, the pcij affirmed that when a State commits an internationally wrongful act against another State international responsibility is established ‘immediately as between the two States’.9 Max Huber, the arbitrator in the British Claims in the Spanish zone of Morocco case, declared that it is an indisputable principle that ‘responsibility is the necessary corollary of rights. All international rights entail international responsibility’.10 The progressive codification of the international law of State responsibility, undertaken by the 1LC since early 1950s, relies on the intellectual concept developed by former 1LC Special Rapporteur Roberto Ago: the distinction between primary and secondary norms in international law. Innumerable rules of different types place obligations on States (i.e. primary rules); the secondary 6 7 8 9 10

J. Austin, The Province of Jurisprudence Determined, 1832. H. Kelsen ‘Unrecht und Unrechtsfolge im Völkerrecht’ (1932) xii Zeitschrift für öffentliches Recht (ZaöRV), pp. 481–606. See, for evidence, W. Buder, Die Lehre vom völkerrechtlichen Schadensersatz, Berlin, Buchdruckerei Ludwig Begach, 1932; A. Soldati, La responsabilité des états dans le droit international, Paris, Édouard Duchemin, 1934. Phosphates in Morocco (Preliminary Objections), p.c.i.j., Series A/B, 1938, No 74, p. 28; see also, Case of the S.S. Wimbledon, p.c.i.j. Series A, 1923, No. 1, p. 15; Case concerning the Factory at Chorzów ( Jurisdiction), p.c.i.j., Series A, 1927, No. 17, p. 29. Reports of International Arbitral Awards (riaa), 1925, vol. ii, p. 641.

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rules of State responsibility seek to determine ‘whether that obligation has been violated and what should be the consequence of the violation’.11 As a fundamental principle of State responsibility, States that violate primary norms of international law incur obligations of reparation vis-à-vis injured States. In what has probably been the most important case of State responsibility in international jurisprudence, the Chorzów Factory case, the pcij stated: Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the situation which would, in all probability, have existed if that act had not been committed.12 Article 34 of the Articles on State Responsibility lays out the forms of reparation in international law: full reparation ‘shall take the form of restitution, compensation and satisfaction, either singly or in combination…’ The general method of State responsibility is thus as follows: first, it must be established whether an internationally wrongful act has been committed. Such an act must firstly be attributable to the State under international law and, secondly, constitute a breach of an international obligation by that State. Under certain circumstances, the wrongfulness of State conduct is precluded. Such cases involve valid consent, lawful self-defence, countermeasures, force majeure, distress, and – subject to far-reaching limitations – necessity. When a State incurs international responsibility for wrongful conduct and fails either to cease the wrongful behavior and/or to make full reparation, the injured State is entitled to take countermeasures against the offending State. Countermeasures are measures, constituting violations against international obligations by the State that takes them. They may only be taken in proportion with the injury suffered, and are subject to other conditions. Notwithstanding important conceptual developments in the field of State responsibility, many open questions continue to trouble legal scholars. For instance, Christian Tomuschat suggests on the basis of State practice that ‘the principle of full reparation applies only to small-scale violations of international law’.13 To the extent that this is true in reality, it is an important de facto qualification of the principle of State responsibility, a qualification that has not 11 See, Yearbook of the ilc, 1970, vol. ii, p. 306, para. 66(c). 12 p.c.i.j., Ser. A, 1927, No. 17, 47. 13 C. Tomuschat, ‘International Crimes by States – an Endangered Species?’ in International Law: Theory and Practice. Essays in Honour of Eric Suy, The Hague, Nijhoff, 1998, pp. ­267–268 (quoting Hold-Ferneck, an Austrian authority who has argued that international law is ‘order in small, disorder in great matters’.).

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been sufficiently taken into account in the formulation of the Articles on State Responsibility. Recently, there have been some significant developments also with respect to large-scale violations of international law. Thus, the UN Security Council established a comprehensive compensation mechanism following the determination of Iraqi liability ‘for any direct loss, damage, including environmental damage and the depletion of any natural resources, or injury to foreign Governments, nationals and corporations as a result of Iraq’s unlawful invasion and occupation of Kuwait’ (Resolution 687 of 1991). Nevertheless, the social reality of international relations does not always correspond to the beauty and elegance of the legal doctrine. State practice confirms that violations of most fundamental norms of international law may remain unpunished and there is often no effective remedy even for the victims of most heinous crimes under international law. It must therefore be asked: can the intellectually impressive framework of State responsibility really keep its promise of workability, objectivity and universality? Or, is effective international law of State responsibility a pipedream, an idealistic declaration of good intentions to cover the fact that life in the jungle is governed by the laws of the jungle, i.e. does might make right? Under international law of State responsibility, can cases of injustice really be treated alike – or are some animals more equal than others, as George Orwell suggested? This article investigates social reality as illustrated by a complex but highly illustrative case in State practice, that of the Baltic compensation claims (or rather, debates about the legal and otherwise soundness of presenting such claims) to the Russian Federation for crimes committed against and damages inflicted upon individuals from the Baltic States under the Soviet illegal annexation. Are there any alternatives to realist arguments for explaining the relative lack of success for Baltic compensation claims? 2

The Issue of State Responsibility for Injuries Caused During Illegal Soviet Annexation

The Conditions of State Responsibility in the Case of the Baltic States: Illegality and Attributability Numerous international law scholars have qualified the occupation and annexation of the Baltic States by the ussr in 1940 as illegal acts – more specifically, as aggressions.14 Already in the World War ii era Soviet international law 2.1

14

See already, J. Repečka, Die gegenwärtige völkerrechtliche Stellung der baltischen Staaten, unter besonderer Berücksichtigung der diplomatischen Vorgeschichte der Eingliederung

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scholars recognised the fact that aggression constituted a crime triggering international legal principles of State responsibility.15 The ussr seized the Baltic States, and by deporting and/or murdering tens of thousands of Baltic citizens, caused considerable losses of human lives, material and moral damage.16 At the absolute minimum, the ussr was bound by the humanitarian standards of the 1907 Hague rules when it illegally annexed the Baltic States. The mass deportations and ‘liquidations’ organised by the ussr government in the Baltic States manifestly violated this minimum standard set by primary norms of international law. Without due process, thousands of Balts were sentenced to long-term imprisonment in the camps of Gulag, and were condemned to what can only be called ‘slave labor’ for the ussr. Moreover, depending upon which view one takes about the extent of the legal obligations of the ussr during the illegal annexation period, one can, in addition, qualify the massive damages incurred to the economy and natural environment of the Baltic Republics as internationally wrongful acts. In any case, it follows from the jurisprudence of the International Court of Justice (icj) that the State exercising illegal control on a certain territory is responsible for violations of international law committed on that territory.17 Of course, the collapse of the ussr in December 1991 poses the question of the attributability of the internationally wrongful acts committed by the ussr. It is submitted that from the point of view of the principles of State responsibility, the Russian Federation as the continuator State of the ussr continues to be responsible for the internationally wrongful acts committed by the ussr. It is true that the international legal position of the Russian Federation after the collapse of the ussr initially elicited contradictory interpretations and theories.18 The leaders of the newly founded Commonwealth of Independent

15

16 17 18

dieser Staaten in die Sowjetunion, Dissertation, Göttingen, 1950; K. Marek, Identity and Continuity of States in International Law, Genève, Librairie E. Droz, 1954; Boris Meissner, Die Sowjetuniuon, die baltischen Staaten und das Völkerrecht, Köln, Verlag für Politik und Wirtschaft, 1956. Д. Левин, Оmвеmсmвенносmь в современном межծунароծном nраве, Москва, Международные отношения, 1966 (quoted after the German translation, published in Potsdam-Babelsberg in 1969, p. 32 et seq.); H. Ушаков, Основанuя межծунароծноŭ овеmсmвенносmu ƨосуծарсmв, Москва, Международные отношения, 1983, p. 137. See further, e.g., L. Mälksoo, Soviet Genocide? Communist Mass Deportations in the Baltic States and International Law (2001) 14 Leiden Journal of International Law, pp. 757–787, at pp. 763–766. Namibia Opinion, i.c.j. Reports, 1971, p. 16, at p. 56, para 125. See, B. Stern, ‘La succession d’États’ (1996) 262 Recueil des cours (Rdc), p. 216 et seq; see also, I. Lukasuk, Russland als Rechtsnachfolger in völkerrechtliche Verträge der UdSSR, (1993) 4 Osteuropa Recht, pp. 235–246; T. Schweisfurth, ‘Ausgwählte Fragen der S­ taatensukzession

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States (cis) first declared in Minsk ‘that the ussr is ceasing its existence as a subject of international law and a geopolitical entity’. However, on 21 ­December 1991, the Council of the Heads of the cis States passed in Alma-Ata a resolution which reads: ‘The participating States of the cis support Russia in continuing the ussr membership in the UN, including the Security Council, and in other international organizations’. Soon afterwards, President Yeltsin wrote in a note to the UN Secretary-General that the Russian Federation was the continuator state of the ussr’.19 It may be that, as Bardo Fassbender observes, the way Russia stepped into the ussr’s legal position in the UN was ‘unsatisfactory from a constitutional point of view’.20 However, such continuity was desired by Russia and supported by the international community. As a consequence, the ussr did not become extinct as subject of international law – its international legal personality was continued by Russia. Today Russia is, as subject of international law, identical with the ussr, just as the ussr itself was in the similar sense identical with the Tsarist Russia,21 or (for instance), today’s frg with the German Reich. This conclusion about the legal continuity of Russia and the ussr is supported by evidence in the Baltic case, which reveals that the ussr saw its policies as continuing the ambitions of the Tsarist Empire. Stalin’s People’s Commissar of Foreign Affairs, Vyatcheslav Molotov, pointed out that Stalin commented as follows on the Mutual Assistance Pacts concluded with the Baltic States in 1939: ‘Soon the Baltic republics will be ours. They always were’.22 It was in this spirit that Stalin found it legitimate to raise the argument of Tsarist Russia’s borders at the Potsdam Conference. im Kontext der Auflösung der UdSSR’ (1994) 32 Archiv des Völkerrecht, pp. 99–129; T. Schweisfurth, ‘Vom Einheitsstaat (UdSSR) zum Staaten-und (gus). Juristische Stationen eines Staatszerfalls und einer Staatenbundsentstehung’ (1992) 52 ZaöRV, pp. 541–702. 19 See, Rossiiskaya Gazeta, 31 January 1992; see also, Circular of the Ministry of Foreign Affairs of the Russian Federation, Note of January 13, quoted by the President of the Russian Association of International Law, A. Kolodkin, ‘Russia and International Law: New Approaches’ (1992) Revue belge de droit international (rbdi), p. 553. 20 B. Fassbender, UN Security Council Reform and the Right of Veto. A Constitutional Perspective, The Hague, Kluwer, 1998, p. 189. 21 Recently, Yevgeni Martynenko has argued that the link of continuity connects the present Russian Federation (through the ussr) with the Tsar’s Russia. See, ‘Правоnреемсmво Россuu в оmношенuu собсmвенносmu Россuŭскоŭ Имnерuu на Блuжнем Восmоке’ (2000) 1 Правовеծенuе, pp. 237–247, at pp. 246–247. 22 See, Ф. Чуев, Сmо сорок бесеծ с Молоmовым. Из ծневнuка Ф. Чуева, Moscow, Terra, 1991 https://royallib.com/read/chuev_feliks/sto_sorok_besed_s_molotovim.html#0>, visited 2 July 2020.

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According to Krévé-Mickievičius, the Assistant Prime Minister and Foreign Minister of the Lithuanian pro-Soviet government, Vyatcheslav Molotov told him in Moscow on 30 June 1940: ‘I must point out today what will be clear to everyone tomorrow. The Russian Tsars since Ivan the Terrible have tried to reach the Baltic Sea, not because of their political desires, but because this was required for the development of the Russian State and nation. It would be unforgivable for the Soviet government not to seize an opportunity that may never present itself again’.23 There is a rule in customary international law that in cases of State extinction, a successor State would generally not be responsible for the internationally wrongful acts committed by its extinguished predecessor State.24 A recent interpretation of the notion of State ‘identity’ – that there can be a continuity of a State (‘personality’) with a transformed ‘identity’25 – making it possible to argue that even in cases of the continuity of State personality, a new regime, due to its new ‘identity’, would be entitled to free itself from the obligation to make reparations for internationally wrongful acts of its predecessor. However, this imaginative legal view does not seem to be supported by opinio iuris in State practice.26 Its acceptance would have enabled post-World War governments of former Axis countries to argue that State ‘identity’ had changed so much as to erase responsibility for crimes committed under fascist regimes. (The democratic frg of the post-World War ii era undoubtedly had a different subjective ‘identity’ than Nazi Germany.) The principle of the continuity of legal obligations may be modified in less controversial cases than those involving responsibility incurred for internationally wrongful acts. The Russian Federation has explicitly preferred the legal position of continuator to successor State. It is therefore misleading to argue that the Russian Federation is, from the point of view of State responsibility, ‘not the same’ State 23

24 25 26

See, J. Repečka, Der gegenwärtige völkerrechtliche Status der baltischen Staaten, unter besonderer Berucksichtigung der diplomatischen Vorgeschichte der Eingliederung dieser Staaten in die Sowjetunion, Göttingen, Dissertation, 1950, pp. 69–70; B. Meissner, Die baltischen Staaten im weltpolitischen und völkerrechtlichen Wandel. Beiträge 1954–1994, Hamburg, Bibliotheca Baltica, 1995, p. 61. See further, W. Czaplinski, ‘State Succession and State Responsibility’ (1990) 28 Canadian Yearbook of International Law, pp. 339–359. M. Craven, ‘The Problem of State Succession and the Identity of States under International Law’ (1998) 9 European Journal of International Law (ejil), pp. 142–162, at 160. Note, however, that similar views of ‘functional splitting’ and ‘functionally limited identity’ have been recently suggested by Wilfried Fiedler. See, W. Fiedler, ‘Entwicklungslinien im Recht der Staatensukzession’, in G. Hafner et al (eds.) Liber Amicorum. Professor Ignaz Seidl-Hohenveldern, The Hague, Kluwer, 1998, pp. 133–155 at 136 et seq.

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as the ussr. International customary law prohibits the continuator State to act according to the so-called pick-and-choose principle. Gaetano Arangio Ruiz emphasises that: [I]a partie intéressée devrait donc faire un choix, en premier lieu, entre un claim of identity et un claim of non-identity. Si elle choisissait l’identité – et celle-ci était acceptée ou démontrée – elle devrait accepter (sauf négotiation) la continuité absolue en matiére de devoirs aussi bien qu’en matière de droits. Chaque partie, en d’autres mots, serait obligée d’accepter les conséquences de l’identité ‘en bloc’, qu‘elles lui soient favorables ou défavorables.27 Thus, a new regime that continues to govern the same State and naturally invokes the rights of the former regime cannot simply free itself from legal obligations and responsibilities. The Reparations Issue after the Reestablishment of the Baltic Independence Already during the process that re-established independence, the issue of reparations claims was intensively discussed in the Baltic States. In Estonia, a commission convened in 1991 by the Supreme Soviet Chairman, Arnold Rüütel, compiled a damages report and concluded that: ‘[t]he basic responsibility for damage to the social, economic and cultural development is borne by those political forces which have violently forced a foreign social and economic system upon Estonia’.28 At the same time, the Estonian Commission recognised the complexity of the prolonged annexation, by concluding that: ‘In cases of damage inflicted on social, economic and cultural development, the loyallyformed party, government, administrative and judicial institutions share joint responsibility – to the extent that they carried out the policies of a foreign power’.29 2.2

27 28

29

G. Arangio-Ruiz, L‘Etat dans le sens du Droit des Gens et la Notion du Droit international, Bologna, Cooperativa Libraria Universitaria, 1975, p. 310. See, J. Kahk (ed.) World War ii and Soviet Occupation in Estonia: A Damages Report, Tallinn, Perioodika Publishers, 1991, p. 29. The issue of reparations has also been discussed in the literature. See, e.g., A. Susi, ‘Mis on meile maksma läinud okupatsioon?’ (What has been the Price of Occupation for Us) (1990) Looming No. 2, pp. 246–251; 1. Teder, N. Liidu agressiooniga Eesti Yabariigile tekitatud kahjude hüvitamisest, (About the Compensation of Damages Inflicted upon the Republic of Estonia with the Aggression of the ussr), ibid., pp. 252–254. See, Kahk, ibid.

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However, so far only Lithuania has officially demanded reparations from Russia for injuries suffered under Soviet occupation. On 13 June 2000, the Seimas (parliament) of the Republic of Lithuania adopted the Law on Compensation of Damage resulting from the Occupation by the ussr30 that obligated the Lithuanian government to demand compensation from Russia. The issue of reparations has been pushed by the former center-right coalition in Lithuania, especially by Vytautas Landsbergis. After the parties of this coalition lost the elections in 2000, Lithuania has kept a lower profile with respect to its reparation claims against Russia. Latvia and Estonia have presented no reparations claims to Russia.31 Recently, however, at least Estonia seems to be moving towards formulating and presenting to Russia its claims of compensation for deportees and other victims of Soviet political repression.32 Sometimes in the Baltic States a comparison is drawn – legally and politically – between Nazi and Soviet crimes in the Baltic area and the fact that Germany has accepted its responsibility for Nazi crimes.33 The internal Baltic discussions on whether to present compensation claims to Russia or not have in their essence been discussions about the relevance of international law and about whether there exist alternatives to the realist paradigm. In sum, realists have been arguing that Baltic claims may be legally correct but they would never be effectuated in practice. When the Lithuanian law was adopted, Estonian and Latvian politicians offered differing arguments to the general public about why their countries would not issue reparations claims. In a way, these arguments reveal that the unsuccessful boundary negotiations with Russia during the 1990s taught Baltic politicians a ‘realist’ lesson. They maintained that ‘it is utterly unlikely that Russia would pay reparations’. Although there existed a ‘moral right to compensation, at least for those crimes against humanity that the Soviet regime committed’, it would be ‘unwise to present such demands to Russia from a foreign policy point of view’, inter alia since ‘Brussels is looking for opportunities to help Russia financially rather 30 31 32 33

Republic of Lithuania Law on Compensation of Damage resulting from the Occupation by the ussr, 13 June 2000, No. Vlll-1727, Vilnius. See, e.g., T. Sildam, ‘Valitsus kõhkleb Moskvalt valuraha küsimast’ (The [Estonian] Government Hesitates to Ask Compensation from Moscow), Postimees, 2 July 2002. A. Oolo, K. Karpa, ‘Kommunismiohvrid nõuavad Venemaalt hüvitist ja vabandust’ (Victims of Communism Demand Compensation and Apology from Russia), Eesti Päevaleht, 6 ­December 2002, pp. 1–3. See, e.g. about the relatively new German Foundation, R. Bank ‘Remembrance, Responsibility and Future’ in ‘The New Programs for Payments to Victims of National Socialist Injustice’ (2001) 44 German Yearbook of International Law, pp. 307–352.

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than to make demands against Moscow’.34 Or, in the words of Henn Käärik, a social scientist from Tartu: ‘We live in the real world. In this world Realpolitik works. Demands backed by power are not always justified and vice versa’.35 One anonymous Estonian internet commentator expressed a similar idea not without a sense of peasant wisdom: ‘If you’ve got a bear as your neighbour, you do not ask him to give back the food he has already eaten. You are just happy, if he leaves you alone’. Russia has signalled a negative opinion with respect to the Lithuanian reparations claim. Already in the early 1990s when the question of compensation was raised, Russian officials threatened to present a counterclaim to the Baltic States for the compensation of Soviet ‘investments’. Soon after the adoption of the Lithuanian Law, Aleksandr Avdeev from the Russian Ministry of Foreign Affairs presented the Russian position on the matter in the Lithuanian Foreign Policy Review:36 While on the subject of the main aspects of relations between Russia and Lithuania, cannot but dwell on those that cause our biggest worry. I have in mind first of all the Law on Recovery of Damages resulting from the occupation by the Union of Soviet Socialist Republics passed by the Lithuanian Seimas this past June. The Russian Foreign Ministry opportunely appraised it as an instrument unfriendly toward Russia. Stressing that we would not accept attempts to interpret our shared history in this unilateral and politicised manner, we elucidated the international-law grounds upon which we regarded as unfounded the claims formulated by the Lithuanian parliamentarians. Today I would like to emphasise the main thing: This ‘initiative’ absolutely futile from the practical point of view hinders both the process of ratification by the Russian State Duma of the border treaties between our countries … It is desirable that there should be a clear realization in Lithuania of the fact that attempts to realise the ‘recovery of damages’ law are incompatible with the purposes of good neighborly expansion of Russian-Lithuanian relations. Following the collapse of the ussr in 1991, scholars have reflected on the continuities and changes in the Soviet and Russian approaches to international 34 35 36

See, A. Ideon, ‘Eesti jätab Leedu üksi hüvitist nõudma’ (Estonia Leaves Lithuania Alone to Demand Reparations), quoting interviews with Estonian and Latvian politicians, Postimees, 3 July 2000. H. Käärik, ‘Mina nõuan, sina nõuad’ (I demand, you demand), Postimees, 9 August 2002. A. Avdeev, ‘Russian-Lithuanian Relations: An Overview’ (2000) Lithuanian Foreign Policy Review No. 2 (6), pp. 27–33 at 29. (Emphasis added).

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law.37 It appears that the current Russian approach with regard of the rights and obligations resulting from the legal identity of the Russian Federation with the ussr is reminiscent of the former ussr’s position with respect of the Tsarist Russia’s legal obligations. It must be characterised as a ‘pick-and-choose’ approach, an approach that is illegal, although quite understandable from the point of view of raison d’êtat. Its fundamental feature is a doctrine, which in one sense (positive rights) upholds the identity with the former regime, while in another sense (negative consequences; State responsibility) disavows such continuity. The ussr refused to honour Tsarist Russia’s obligations, since it claimed to be a new State in the ‘social-class sense’, although it simultaneously admitted to be ‘the same’ subject of international law as well. R.L. Borbov wrote in 1968 that ‘to the subject of international law which is new in the social-class sense, corresponds a creative relationship to this law’.38 Soviet scholars expressed this creativity when they reasoned that the ussr would not be bound by the obligations of the Tsarist Russia. Thus, Natalya Zakharova postulated: The recognition of the continuity of subjects in the event of the fundamental alteration of the structure of a state has, however, nothing in common with the bourgeois theory of continuity which asserts that the uninterrupted nature of the existence of a state requires the recognition of all international treaties regardless of internal changes. [the Soviet legal science] acknowledge[s] that a state has after a social revolution the right to repudiate international treaties which do not correspond to the principles of the new system and to its national interests … the denial of the right of a state to repudiate international treaties following social revolutions is a characteristic feature of bourgeois science.39 In a somewhat similar vein, the Russian Federation has rejected, at least in the case of the Baltic States, any responsibility for internationally wrongful acts committed by the ussr. Even when one takes into account the time factor and the fact that today’s Russia is, from the domestic constitutional point, a very 37 38 39

See, e.g., G. Ginsburgs, From Soviet to Russian International Law. Studies in Continuity and Change, The Hague, Nijhoff, 1998. Р. Борбов, Основные nроблемы mеорuu межծунароծоƨо nрава, Москва Международные отношения, 1968, p. 80. (translation from Russian.) N. Zakharova, ‘States as Subjects of International Law and Social Revolution (Some Problems of Succession)’ (1960) Soviet Yearbook of International Law (Soviet ybil), pp. 157–166, at 165; See for, more positive aspects of this doctrine and practice, N. Zakharova, ‘Denunciation by the Soviet State of Treaties of Tsarist Russia which Violated the Rights of the Peoples in Eastern Countries’ (1962) Soviet ybil 1962, pp. 126–136.

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different State from the ussr, the a priori refusal to recognise any responsibility for Soviet crimes is a disturbing fact in respect of international law. Paradoxically, the only convincing way to prove that today’s Russia is politically a different State from the ussr would be to accept certain moral and legal responsibilities for Soviet crimes committed against neighbouring States. 3

The Realist Critiques of International Law and State Responsibility

What can the international law of State responsibility achieve when nations consider their history, myths about themselves and others, values, sufferings, and even dignity to be at stake? To what extent can, for example, a claim for apology be based on and secured by international law? Or is the nature and fate of such a claim predominantly determined by ‘political’ factors? The latter is what the realist school of thought claims. For realism, both in its ‘classical’ and ‘structural’ interpretations, the very project of international law is inherently utopian. Without centralised power comparable to domestic legal systems, the international system of States must be characterised as anarchical. As described by George Kennan, no ‘legalisticmoralistic’ attempts to establish the rule of law in international relations can do away with the fact that power remains the most determining factor in international politics. Realism is a theory about the predominance of power politics and, consequently, about the relative non-importance of international law in international relations. Born of the disillusionment of World War ii,40 realism is probably still the most influential, even archetypical explanation of world politics within the discipline of international relations. Realists argue that if international law seeks to play a role in international relations, it cannot but acknowledge, openly or tacitly, that international relations are power relations. As Hedley Bull points out, international law would have to follow power and force: [c]ontrary to much superficial thinking on this subject, it is not as if this tendency of international law to accommodate itself to power politics were some unfortunate but remediable defect that is fit to be removed by the good work of some high-minded professor of international law or by 40

See, e.g., M. Koskenniemi, ‘Carl Schmitt, Hans Morgenthau, and the Image of Law in International Relations and International Law’, in Michael Byers (ed.), The Role of Law in International Politics. Essays in International Relations and International Law, Oxford University Press, 2000, pp. 17–34.

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some ingenious report of the International Law Commission. There is every reason to think that this feature of international law, which sets it at loggerheads with elementary justice, is vital to its working and that if international law ceased to have this failure, it would so lose contact with international reality as to play any role at all.41 Are the Articles on State Responsibility such an ‘ingenious report’ which cannot fix the problem of State responsibility in an anarchical society? This view is outspokenly or tacitly shared by several commentators in the Baltic States. For example, the former Estonian Minister of Foreign Affairs Toomas Hendrik Ilves seems to express the disappointment of a disillusioned idealist when he acknowledges the intellectual adoption of Hobbesian-Machiavellian Realpolitik,42 mutatis mutandis accommodated to the needs of small States: Those [States in Eastern Europe] which have pursued a foreign policy of stand up, demand justice’,43 have discovered the sad truth that between states ‘law’ does not apply, or only very little. Law and justice can sometimes be found in the established and sometimes well-working domestic court system, but not between states. We could approach this almost mathematically. When von Clausewitz said that war is only the continuation of the politics by other means, then inter-state politics is the state of war without killing. The same rules apply, the goals are achieved by those who are stronger. Among smaller and weaker states, only those win who act most prudently or cleverly. But in our region, foreign policy has nothing to do with law … Quod licet Iovi, non licet bovi. In this world, the demand for justice unfortunately does not bring results.44 The psychological background for this view seems to be that in the post1990/1991 euphoria, the new foreign policy elites of the Baltic States had almost 41 42

43 44

H. Bull, The Anarchical Society. A Study of Order in World Politics, 2nd. ed., New York, Columbia University Press, 1995, pp. 88–89. Machiavelli argued that a Prince, if he wants to be successful, must inevitably break the promises he has given. As the small States would have little power to do that – not that small States are more moral ‘by nature’ – Machiavellism for small States could then be the conviction that the big States tend to behave so. See N. Machiavelli, Il principe, Chapter 18 (quoted from the German edition of Der Fürst, Köln, Parkland, 2000.) ‘Stand up, demand justice’ is an allusion to an Estonian patriotic song. T. Ilves, ‘Eesti välispoliitika minevik, olevik ja tulevik’, aulaloeng, 30 April 1998 (The Past, Present and Future of the Estonian Foreign Policy. Lecture in the Assembly Hall of Tartu University), Tartu, Tartu Ülikooli Kirjastus, 1998, p. 5 et seq. (The translation from the Estonian by present author).

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too much belief in the view that ‘right’ international law positions guarantee ‘right’ outcomes in State practice.45 But the challenge of realist point of view for the integrity of international legal perspective remains. Realist arguments have been invoked to explain why Lithuania cannot be successful with its reparation claim. Russian analyst Arkady Moishes has reminded us of certain important realities of political power: Needless to say, such [Lithuanian] claims are unrealistic. Any negotiations on this matter would require Moscow to recognise the fact of occupation, which is absolutely out of question for a number of reasons…. The only result which this legislation can bring about is to retrigger an emotional and predominantly mutually unfriendly debate of the early 1990s, ranging from general issues of interpretation of the Soviet period in Lithuanian history to very specific cases of property rights (for example, the embassy buildings in Paris and Rome).46 And there is more in the analysis of Arkady Moishes about the Lithuanian reparations claim – without, however, as international law students will notice, any attention to legal concepts such as ‘internationally wrongful act’, ‘attribution’, ‘circumstances precluding wrongfulness’, ‘lapse of time’, etcetera: Lithuania has very little leverage that it could use to exert pressure on Russia (outside the area of transit tariffs, but in that case Russian countermeasures would hit the Lithuanian economy probably harder than vice versa). Also, precedents established by Latvian and Estonian territorial claims to Russia rather demonstrated the futility of these actions: both countries had to withdraw their claims. Furthermore, engagement in such a dispute with Russia, if it receives a high profile, would hardly facilitate the task of Lithuania’s accession to European institutions…. However, if Vilnius really tries to make it a negotiation item, as the legislation requires, negative resonance in Russia and, consequently, deterioration of bilateral relations will become unavoidable.47 45 46 47

Estonian President Lennart Meri, when asked in an interview in 1998 for a comment on the successful nuclear tests of India and Pakistan, argued that ‘the nuclear bomb of small States is international law’. A. Moishes, ‘Russia-Lithuania: Preserving Interaction’ (2000) Lithuanian For. Pol. Rev., No. 2(6), p. 83. Ibid., pp. 83–84.

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It is easy to understand the reasons why international law scholars reject realist arguments. Realists and international lawyers talk partly about the same phenomena, but they seldom seem to talk to each other.48 Recently, however, more critical and open soul-searching in both disciplines of international law and international relations has demonstrated that the positivist doctrine of international law and realist approach to international relations share far more common assumptions than previously recognised – such as the focus on States.49 States have often had difficult times in accepting their responsibilities arising from illegal acts committed in other countries. One of the few remaining responses of scholars worrying about justice and international law in such contexts, has been moralizing (it may, of course, be argued that any talk of justice is moralizing.) For example, Noam Chomsky, the famous American linguist from Boston, rejects with bitter irony the way the us has dealt with its Vietnam legacy: In what must be, I think, the most amazing propaganda achievement in history, the United States has succeeded in shifting the blame to the Vietnamese. It turns out that we were the innocent victims when we attacked and destroyed them, but furthermore, we are so saintly that we do not seek retribution for their crimes against us – we only ask that they concede guilt and apologise…50 In the case of Soviet crimes, ‘they’ and ‘us’ may not always be equally clear in terms of responsibility. Nevertheless, the Russian argument that instead of seeking redress for the victims of Soviet repressions, the Baltic States should pay back the Soviet ‘investments’ in the Baltics, brings Chomsky’s ironic analysis to fore. 48

49

50

See for, an example of classical discussions on the role of law in international relations and the realist arguments, W. Wengler, Der Begriff des Politischen im internationalen Recht, Tubingen, J.C.B. Mohr, 1956; M. Kaplan and N. Katzenbach, The Political Foundations of International Law, New York and London, John Wiley & Sons Inc., 1961; F. Boyle, World Politics and International Law, Durham, Duke University Press, 1985. See, A. Slaughter, ‘International Law and International Relations’ (2000) 285 Rdc, p. 9 at 33 et seq, compare with, S. Scott, International Law as Ideology: Theorizing the Relationship between International Law and International Politics, (1994) 5 ejil, fu 13; and F. Tesón, ‘Realism and Kantianism in International Law’ (1992) 86 American Society of International Law Proceedings, pp. 113–118, at 113. N. Chomsky, Rogue States. The Rule of Force in World Affairs, London, Pluto Press, 2000, p. 170.

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4 Conclusions Although Estonia, Latvia and Lithuania have repeatedly indicated that their legal position is the one of Soviet ‘occupation’, and that Russia as the continuator State of the ussr should at least apologise for the Soviet crimes,51 only Lithuania has gone as far as demanding reparations from the Russian Federation for injuries suffered under Soviet rule. However, Baltic claims have yet to lead to practical results. Some Baltic politicians have indicated that the attitude of western and, in particular, key European partners has not been supportive enough for the presentation of reparation claims. This seems to confirm that politics plays an important role in the implementation of legal principles of State responsibility. It appears that the analysis of the international law of State responsibility in highly politically-sensitive cases cannot be constrained to the analysis of ‘pure’ legal norms solely. The unavoidable importance of politics in matters of State responsibility was highlighted in 1936 by Ants Piip, professor of international law at Tartu University: One is generally compelled to note that in the solution of international delicts a great role is played by the factual relationship of the parties. If 51

T. Sildam, ‘Välisminister Ilves: ajalugu pole pudupood’ (Foreign Minister lives: History is Not a Grocery Store), Interview in Postimees, 2 February 2001: ‘History is not a grocery store where you take one thing and leave the other. Here you cannot say selectively that in some questions we are successors, and not in others. One cannot say that the crimes that were committed, are not ours, but ours is all the property which the ussr confiscated, including the embassy buildings of the Republic of Estonia. (…) In the context of this culture where we live – in the context of the Western culture – there is a habit to confess to such behaviour over a formal apology. As many States have done’. See also, the remarks of lives on 16 January 2002, at the opening of a memorial plate for the 63 employees of the Estonian Ministry of Foreign Affairs who were executed by the Soviet government: ‘If this all would be past, our feelings today would be more simple and clear. But it seems that this is not only past. Differently from Germany’s exemplary politics of Vergangenheitsbewältigung we notice that committed crimes are not regretted but glorified. Stalin’s hymn is restored. Respect for Andropov who committed murders in Hungary, has been casted into metal. The founding day of the terror organization Tsheka, founded by great murderer Feliks Dzherzhinski, is celebrated as a festal day. We are told: do not wait for apology … We do not even particularly wait’. (Translation from Estonian); See also, A. Lõhmus, ‘Ilves kritiseeris teravalt Venemaad’ (Ilves criticized sharply Russia), Postimees, 17 January 2001.

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political and economic relations are good, even the most serious offence finds an easy solution. When the contrary is the case, even the smallest misunderstanding can be a pretext for major conflict.52 In other words, the socio-political context of the particular case is relevant for the outcome. This seems to be especially so when the issue is not a rather ‘technical’ violation of the law of nations, but issues related to the interpretation of right and wrong in major historical tragedies and cataclysms. The government of the Russian Federation has not yet demonstrated the readiness to recognise the fact that crimes against humanity were organised and carried out by the ussr’s government against individuals in the Baltic States. In practical terms, the prospects of the Baltic deportees and other victims of Soviet crimes to receive compensation from Russia are considerably weakened by the fact that today’s Russia is itself seriously preoccupied with its own huge economic, social and political problems. In today’s Russia, there seems to be little awareness of the crimes committed by the Soviet government against neighbouring countries. Of course, the enormous human toll Russia had to pay in World War ii made the ussr itself a victim-nation. Millions of Russians suffered Stalin’s communism too, but this cannot serve as a justification of illegal acts committed by the ussr against neighbouring States and their citizens. Time – perhaps in the approaching years – will show whether the victims of Soviet mass repressions in the Baltic States will manage to convince their governments to represent their claims, and whether they will eventually be offered apology and compensation from the Russian government. This is not only a problem about individual justice, it is also the significant question of what prevails; principles of international law, or the realist argument about unequal power relations and non-effectiveness of international law. 52

A. Piip, Rahvusvaheline õigus (International law), Tartu, Akadeemilise Kooperatiivi Kirjastus, 1936, p. 209, (translation from Estonian).

State Continuity, Succession and Responsibility: Reparations to the Baltic States and their Peoples? Ineta Ziemele Contents 1 Introduction 2 Determining a Breach of International Law 2.1 Facts of the Baltic Cases 2.2 Determining Injured and Responsible States 2.3 Determining a Continuing Breach of International Law 2.4 Applying Rules to the Baltic Cases 3 Form and Duration of a Claim for Reparations 3.1 Statements of the Baltic Claims 3.2 Discharge of Russia’s Obligations? 3.3 Waiver of Claims? 3.4 Time Left 4 Available Forums for the Baltic Claims for Reparations 5 Concluding Remarks 1 Introduction In the history of international law the 1990s will probably be called a period of renaissance. A number of difficult areas attracted attention in various forums that produced conventions, reports, judgments, etcetera, which highlighted problems and provided possible solutions aimed at reinforcing the responsibility of States in international law. The work of the International Law Commission (ILC) on Articles on Responsibility for State for Internationally Wrongful Acts (Articles on State Responsibility or ILC Articles) clearly assisted in increasing the interest about this topic not only among lawyers but also the governments. A wealth of studies and articles has been produced discussing the different issues under the rubric of State responsibility. The ilc Articles have codified the existing principles and practices and clarified a number of areas and links between the principles of State responsibility and other areas of international law. In particular, it is underlined that ‘the international responsibility of a State … involves legal consequences’. ‘An ­obligation to make full reparation for the injury caused by the internationally © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_005

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­ rongful act’ is a fundamental element of State responsibility if the internaw tional legal system is to be taken seriously.1 This article discusses cases of the Baltic States in view of the existing obligation to make full reparation for the injury caused by internationally wrongful acts. The aim is to determine the reality and prospects for the law of State responsibility in the particular circumstances of these cases. 2

Determining a Breach of International Law

2.1 Facts of the Baltic Cases As a preface, readers should be reminded of the circumstances of the Baltic cases in international law.2 The Baltic States were proclaimed in 1918. Their independence from the Russian Empire emerged following World War i. They became members of the League of Nations in 1921 and had an internationally active and prosperious existence until World War ii. The independent functioning of the Baltic States was interrupted in June 1940 when, after the conclusion of the Treaty of Non-Aggression between Germany and the ussr of 23 ­August 1939 (Molotov-Ribbentrop Pact) and its Secret Additional Protocols, Soviet troops occupied the territories of the Baltic States.3 The ussr used almost 1 See J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 201. Crawford (2002). 2 This section uses the extracts from the author’s PhD thesis entitled ‘State Continuity and Nationality in the Baltic States: International and Constitutional Law Issues’ defended at the University of Cambridge in 1999. 3 On events in the Baltic States in 1940, see A. Sprudzs and A. Rusis (eds.) (1968) Res Baltica: A Collection of Essays in Honor of the Memory of Dr. Alfred Bilmanis, Leyden, A.W. Sijthoff, 1968; see also I. Grava-Kreituse, I. Feldmanis, D.A. Lēbers; J. Goldmanis and A. Stranga (eds.), The Occupation and Annexation of Latvia, 1939–1940: Documents and Materials, Riga, 1995. Grava-Kreituse (1995). For the view that the Molotov-Ribbentrop Pact violated international law at the time, including bilateral agreements between the Baltic States and the Soviet Union, and that the occupation and annexation of the Baltic States was unlawful, see K. Marek, Identity and Continuity of States in Public International Law, 2nd ed., Geneve, Libraire Droz., 1968, pp. 369–416; J. Crawford, The Creation of States in International Law, Oxford, Clarendon, 1979, pp. 419–420; W. Hough, ‘The Annexation of the Baltic States’ (1985) 6 New York Law School Journal of International and Comparative Law p. 303 et seq.; D.A. Loeber, ‘Legal Consequences of the Molotov-Ribbentrop Pact for the Baltic States on the Obligation to “Overcome the Problems Inherited from the Past”’ (2001) 1 Baltic Yearbook of International Law (Balt Yrbk il) pp. 121–166. Loeber (2001). For the aggressive plans of the ussr and Germany, see the first Secret Additional Protocol of 23 August 1939. Article 1 provided that: [I]n the event of a territorial and political rearrangements in the areas belonging to the Baltic States (Finland, Estonia, Latvia, Lithuania), the northern boundary of Lithuania shall represent the boundary of the spheres of influence of Germany and the u.s.s.r.

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identical patterns of action towards all three States, with only short intervals, beginning with ultimatums issued to each State on the basis of alleged failures to fulfil the 1939 Mutual Assistance Pacts.4 The three Baltic States were accused of having failed to liquidate the military alliance, which, according to the Soviet view, Latvia and Estonia had formed before the Pacts were signed and which they were under an obligation to terminate.5 In addition, they were accused of having involved Lithuania in the alliance after the Pacts were signed.6 The Soviet Government considered The Secret Supplementary Protocol to the German-Soviet Boundary and Friendship Treaty of 28 September 1939 stated that: [T]he Secret Supplementary Protocol signed on August 23, 1939, shall be amended in item 1 to the effect that the territory of the Lithuanian state falls to the sphere of influence of the u.s.s.r. … As soon as the Government of the u.s.s.r. shall take special measures on Lithuanian territory (italics added) to protect its interests, the present German-Soviet border, for the purposes of a natural and simple boundary delineation, shall be rectified in such a way that the Lithuanian territory situated to the southwest of the line marked on the attached map should fall to Germany…. Reproduced in Raymond J. Sontag and James S. Beddie (eds.), Nazi-Soviet Relations 1939– 1941: Documents from the Archives of The German Foreign Office, Department of State, 1948, pp. 78, 107. 4 On the events preceding the conclusion of the Mutual Assistance Pacts and on their aims, as designed by the Soviet Union, see Boris Meissner, ‘The Occupation of the Baltic States from a Present-Day-Perspective’, in Talavs Jundzis (ed.), The Baltic States at Historical Crossroads, Riga, Academy of Sciences of Latvia, 1998. pp. 477–479. The view subsequently emerged that the Baltic State were naïve in assuming that these Assistance Pacts would guarantee their security. For the naivety of Baltic officials, see Revue Baltique, 1940, 288, 292, 295–296. The ultimatum was presented to Lithuania on 14 June 1940, and Latvia and Estonia on 16 June 1940. 5 The Treaty of Defensive Alliance between Estonia and Latvia was signed on 1 November 1923. Ratification followed on 21 February 1924. Article 3 reads: The High Contracting Parties undertake to afford each other assistance should either of them suffer an unprovoked attack on its present frontiers. Accordingly, should one of the High Contracting Parties suffer an unprovoked attack, the other shall consider itself in a state of war and shall furnish armed assistance…. See, A. Bilmanis, Latvian-Russian Relations: Documents, 2°d print, Washington, D.C., The Latvian Legation, 1978, p. 246. 6 A Treaty of Good Understanding and Co-operation between Estonia, Latvia and Lithuania was concluded in 1934. Article 1 reads: In order to co-ordinate their efforts in the cause of peace, the three governments undertake to confer together on questions of foreign policy which are of common concern and to afford one another mutual political and diplomatic assistance in their international relations… Ibid., 250. There was no defensive alliance between the three Baltic States. Meetings of foreign ministers took place from time to time without, however, a systematic plan for co-operation. On the problems of regional co-operation among the Baltic States, ­Finland

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that ‘not only unpermissible and unbearable, but also seriously dangerous and menacing to the security of the frontiers of the Soviet Union’.7 The Baltic States, especially Lithuania, were accused of hostile activities against Soviet soldiers serving at Soviet army bases in these States on the basis of the Mutual Assistance Pacts. At the same time, a little earlier in April 1940, a speech by Antanas Merkys, the Prime Minister of Lithuania, noted that ‘future collaboration between our States will continue within the limit of agreements loyally concluded’ and that ‘Lithuanian Authorities have no reason to assume that any danger threatens Lithuania from the u.s.s.r’.8 The Soviet ultimatums demanded governments to ensure the honest execution of the Pacts and the free entry of additional Soviet troops so as to secure this. The ultimatums had to be obeyed within hours, and Soviet troops marched into the capitals of the Baltic States soon thereafter.9 New governments were formed, composed of persons proposed and approved by the Soviet government.10 The Soviet government attempted to comply with domestic law in carrying out its incorporation of the Baltic States. It was important for the Soviet Union that all decisions, which led to the incorporation, were seemingly adopted by the local governments, i.e., in accordance with the free will of the people. Therefore, it was necessary to have governments that obeyed Soviet orders, presenting them as their own.11 The Soviet Union encountered a problem in Lithuania because the President, Antanas Smetona, fled the country, leaving the Prime Minister with the authority to perform ordinary activities; but under the Lithuanian Constitution he could not assume leadership of the State while

7 8 9

10 11

and Poland, especially the claim of both Poland and Lithuania to Vilnius, between the two wars, see: ‘Wartime in Lithuania’ (1940) 1 Revue Baltique 2, 297; W. Czaplinski, ‘International Legal Aspects of Polish-Lithuanian Relations’ (1991–1992) 19 Polish Yearbook of International Law pp. 31–48. See ‘Soviet Russia’s Ultimatum to Latvia’, reproduced in Sontang & Beddie (1948) 202. Revue Baltique, 1940, 296. Soviet army units crossed the Estonian border on 17 June 1940. Simultaneously, units which were based in Estonia in accordance with the Mutual Assistance Pact advanced toward Tallinn. Soviet forces entered Riga on the same day. They had already occupied Lithuania on 15 June 1940. See ‘Telephonogram from A.Vyshinskii to the Foreign Affairs Commissariat of the ussr’, in Grava-Kreituse et al. (1995) 233. The obedience and indecisiveness of the President of Latvia in legitimising the Soviet demands by issuing the ordered directives is hotly debated among Latvian historians. See D.A. Lēbers, ‘Latvijas valsts bojāeja 1940. gadā. Starptautiski tiesiskie aspekti’, V. Blūzma, O. Celle, T. Jundzis, D.A. Lēbers, E. Levits and L. Zīle (eds.) Latvijas valsts atjaunošana 1986– 1993 [Restoration of Latvia 1986–1993], Rīga, lu Žurnāla ‘Latvijas Vēsture’ fonds, 1998, pp. 31–34.

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the President was alive and had not resigned. However, the Soviets took the view that, by leaving Lithuania, Smetona had resigned.12 In order to create an image of legitimacy for decisions taken in the Baltic States, new elections were imposed under the heavy presence of Soviet troops and in clear violation of their Constitutions. In Latvia, the decision to hold new elections was adopted by the government on 4 July 1940. The election law was published in the Official Gazette on 5 July 1940, which meant that the law had been prepared and adopted supposedly overnight. The lists of candidates were registered only until 10 July 1940, and the elections were held on 14 July 1940. In contrast, the former election law established that ‘there must be at least thirty days between the last day on which candidate lists are registered and the first day of the elections’.13 Only one list of candidates was admitted in the parliamentary elections, and they were affiliated with the local Communist Parties.14 Opposition candidates were arbitrarily prevented or excluded from taking part, and force was used against these individuals when necessary so that they withdrew their candidatures. After the elections, each parliament adopted a Declaration on Admission to the ussr.15 The Latvian Cabinet of Ministers had already on 18 May 1940 granted extraordinary emergency powers to the Latvian Ambassador in London, Kārlis Zariņš and to his substitute, the Latvian Ambassador in Washington, Alfreds Bilmanis.16 12 13 14

15

16

The Presidents of Estonia and Latvia, Konstantin Pats and Kārlis Ulmanis, during the course of events were arrested and deported to a yet unknown Soviet destination. Their true fate is still held secret by the Russian government. See ‘Protocol No. 56. Meeting of the Cabinet of Ministers’, reproduced in Grava-Kreituse (1995) 282–284. In Estonia, the decision to hold elections on 14 July 1940 was adopted by the government on 4 July 1940. In Lithuania, the decision to hold elections on 14 July 1940 was published in the Official Gazette on 5 July 1940. The election results were as follows: in Lithuania 99.19 percent of 93 percent of the electorate demanded the formation of a Soviet union of the workers; in Latvia, 97 percent out of 94 percent, and 92 percent of 81 percent of Estonia’s voters followed suit, ibid., 315. Grava-Kreituse (1995) 330–331. Estonia adopted its resolution on 22 July 1940, Latvia and Lithuania on 21 July 1940. These declarations, albeit adopted in slightly different legal forms in each Baltic State, in substance used the same arguments, i.e. they embodied the will of the people who had suffered a ‘miserable’ life under the previous governments. They could only together stand against imperialism. Before these declarations were adopted each parliament adopted an act establishing Soviet regime in the States concerned. In practice, the three Baltic States by 1939 had entered a stage of stable economic prosperity. According to these powers, the Latvian Ambassadors had the following rights: a. to defend to the best ability Latvia’s interests in all countries except Estonia, Lithuania, Finland, Sweden, Germany and the Union of Soviet Socialist Republics; b. for this purpose to give binding orders to all Latvia’s missions except (those) in the States previously mentioned;

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These powers did not, however, intend to create a government-in-exile. It was obvious that the Latvian government, even if it contemplated the possibility of short-term occupation by the ussr, did not believe that the State was facing long-term annexation and incorporation.17 The United States in a 23 July 1940 statement on the events in the Baltic States made the essential point. The people of the United States are opposed to predatory activities no matter whether they are carried on by the use of force or by the threat of force. They are likewise opposed to any form of intervention on the part of one state, however powerful, in the domestic concerns of any other sovereign state, however weak.18 Despite the international condemnation of the Soviet occupation of the Baltic States, they did not exist de facto for about fifty years. The question of their international legal status during these years, and more importantly when the Baltic States re-emerged in 1991, was raised. The Baltic States put forward the claim to State continuity. According to the facts of the Baltic cases, the Soviet army invaded the Baltic States in 1940 contrary to the bilateral and multilateral treaties in force between the Soviet Union and the Baltic States. At the time, a breach of international law took place giving rise to responsibility of the Soviet Union. It has to be noted that studies were carried out in the 1950s assessing damage inflicted by the Soviet and Nazi occupations.19 At the time, however, the priority tasks for Baltic diplomatic missions abroad was the fight for their existence and the maintenance of the claim for the independence of the three States. Any meaningful claim for reparations was not on the top of their agenda. It is submitted nevertheless that none of the claims was ever given up. With the restoration of independence in 1990–1991, new studies were carried out concerning reparations to be sought from the Russian Federation after

17 18 19

c. to operate with all State funds, movable and immovable property at the disposal of the said missions; … d. to liquidate missions, with the exception of the Legation in the United States of America; e. to designate delegates to meetings and conferences… For the argument that the Baltic governments were naïve, see E. Andersons, Latvijas vēsture 1920–1940, Stockholm, Daugava, 1982, pp. 680–681. See for, statements and diplomatic papers of the Baltic States and third States involved in the events of 1940, Foreign Relations (1959) 368–419, 426–443. See for example, Loeber (2001) 147, also, note 104.

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the demise of the Soviet Union.20 There are, however, many questions preceding any such study on damages. First of all, there is a question of the relationship between the Baltic States of the 1990s and the 1940s. Secondly, there is a question whether the breach of international law that occurred in 1940 is still considered a breach in 1990? Thirdly, what is the relationship between the Soviet Union of 1940 and the Russian Federation of 1990s? 2.2 Determining Injured and Responsible States Disappearance of old States and emergence of new States not only raises difficult questions of State continuity and State succession, but also has the potential of providing the escape from State responsibility. For example, the clean slate principle in situations determined as State succession would mean that new States do not inherit obligations of predecessor State(s), and that the difficulty of establishing the grounds for responsibility arises. Therefore, the law of State succession has been concerned with the way of upholding continuity of legal obligations despite the change in legal personality. Recently, Martti Koskenniemi has even questioned the possibility and the need to separate meaningfully questions related to status and those related to rights and obligations, concluding that this is neither politically convenient, nor legally correct. In his view, the distinction between identity and succession involves a difficulty. ‘It assumes status as prior to the legal relationship that relate to it. However, it is not certain that the two can be separated from each other in a meaningful way’. He argues that today the order between status and law is reversed and that status is identified with reference to the sum of rights and obligations allocated to an entity by an overriding legal order In other words, there must be rights and obligations that appertain to a State.21 Irrespective of its status as old or new State, and, with this in mind, State responsibility may arise.22 20

21

22

See, Loeber (2001) 147–148, also notes 105–112. On the payment schemes developed by Germany for victims of slave labour; and see cf. R. Bank, ‘The New Programs for Payments to Victims of National Socialist Injustice’ (2001) 44 German Yearbook of International Law, p. 307, et seq. Bank (2001). M. Koskenniemi, ‘Report of the Director of Studies of the English-speaking Section of the  Centre’, in Pierre M. Eisemann and M. Koskenniemi (eds.) La succession d’Etats: la ­codification a I’eprouve des facts/State Succession: Codification Tested against the Facts, The Hague, Boston, London, Martinus Nijhoff Publishers, 2000, pp. 121–122. It has been pointed out that the main problem of State succession is that no general succession to rights and obligations has taken place so far. See Sir Robert Jennings & Sir Arthur Watts (eds.), Oppenheim’s International Law, 8th ed., Harlow, Longman, 1992, 210. See for, a list of a few customary rules applicable in situations of State succession, B. Stern (ed.), Dissolution, Continuation and Succession in Eastern Europe, The Hague, Boston, London, Martinus Nijhoff Publishers, 1998, pp. 204–205.

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There could be another way of avoiding the issue of new or old State status when determining State responsibility. It is true that an internationally wrongful act of a State results from acts or omissions of individuals in that State. It is the conduct of individuals forming part of an organisation of a State or acting on its behalf that fills the abstract framework called ‘State’ with the content. In view of this, the possible problems concerning the attribution of responsibility in situations of State succession may be avoided. A State may be a new international legal person, while individuals who have committed an internationally wrongful act could be the same, and thus responsible, provided no long periods of time are involved. As a matter of international law, however, this is not necessarily sufficient because, as stated in the ilc Articles, it is a State as a subject of international law that bears international responsibility.23 This is without any prejudice to individual responsibility under international law where applicable. Therefore, the attribution of internationally wrongful conduct to a particular State is the basis for State responsibility, which in the circumstances of disappearance of old and emergence of new States seems to be particularly difficult. Articles on State Responsibility address one relevant situation. Article 10 deals with conduct of an insurrectional or other movement, which succeeds in overthrowing the government of an existing State and establishing a new State in the territory of the predecessor State.24 Acts committed during the struggle are attributable to the new State, which can be held responsible if these acts violated international obligations. In the commentary to Article 10, it is recognised that ‘it would be anomalous if the new regime or new State could avoid responsibility for conduct earlier’. It seems that the distinction is drawn between acts committed during the struggle leading to the creation of a new State, on the one hand, and internationally wrongful acts of the predecessor State which may or may not be succeeded by the successor State, on the other hand. The question therefore remains whether, if at all, successor States can be held responsible for international obligations of predecessor State(s). The Rules of State Responsibility do not seem to answer this question nor, it is submitted, is it their purpose. As confirmed in the commentary to Article 10, the new State is ‘required to assume responsibility for conduct committed with a view to its own establishment’, while cases of succession are essentially outside the scope of articles.25 For possible answers one should look at primary rules of

23 24 25

See Article 2 (a) and Chapter ii entitled ‘Attribution of Conduct to a State’ in Articles on State Responsibility. Crawford (2002), p. 117. Ibid., pp. 118–119.

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State s­ uccession, which, as indicated, have raised controversies and remain quite limited. One could nevertheless pursue this question by putting it differently. What happens if and when allegedly responsible State claims that it is not the same State that committed a breach of international law? Instead, there is a new State in international law. This is not a totally hypothetical question as shown by recent State practice. In 2001, Yugoslavia requested the International Court of Justice (icj) to revise its judgment adopted in Genocide case in 1995.26 It argued that at the time Yugoslavia was a new State – a successor State to the sfry – and that it was not bound by the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). Only when admitted to the United Nations in 2001, Yugoslavia began the process of accession to the UN treaties, including the particular Convention. As a result, in the material time it could not have been in breach of any obligations under the Genocide Convention. It seems that Yugoslavia has pointed out the core of the question. In order to invoke State responsibility, the determination of a State as new or as old is critical for the parties concerned. The icj approached the question through the assessment of the criteria under Article 61 of the Statute allowing for the revision of a judgment, since this was what the Court was asked to do. According to this Article, a party should prove that a new fact decisive for a judgment has, been discovered and that it was not known to the Court or a party at the time.27 The icj pointed out that the special legal status (sui generis) of Yugoslavia, at the time of rendering the judgment, was known to the Court and the party concerned. At the time, while Yugoslavia was claiming continuity, the UN and third States did not accept the claim. Irrespective or in view of these differences, Yugoslavia did not cease to be considered a party to international treaties, including the Genocide Convention. The Court noted that Yugoslavia itself contributed to the uncertainty of its legal position. The icj could not thus establish the required new fact for the purposes of the revision of its judgment. In the light of these circumstances, the icj seems to imply that, as a matter of law, it cannot allow Yugoslavia to benefit from its wrongdoing and avoid responsibility under the Genocide Convention. I do not think that the Court takes 26 See, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia-Herzegovina v. Yugoslavia), Preliminary Objections, icj Reports, 1995. 27 See, Application for Revision of the Judgment of 11 July 1996 in the Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Yugoslavia), Preliminary Objections, 2003, para. 16.

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a view on the issue of legal personality of Yugoslavia at the time of the judgment in Genocide case, or in current proceedings. It only points out that a dispute concerning the legal personality was pending until settled with the new admission of Yugoslavia to the UN. I believe that, if the two judgments are looked at together, one is left with the impression that, first of all, the Court considers the prohibition of genocide as a fundamental obligation and it is relevant for its decision. Secondly, the Court will not easily accept attempts of States to evade their fundamental obligations by changing their own claims as to legal status. In view of the above considerations, a further comment on Koskenniemi’s proposition concerning the relationship between legal status and rights in international law could be made. One could indeed agree that international legal order has today developed certain fundamental rules and obligations and that it might be difficult for a State to ignore them and avoid responsibility by arguing, inter alia, the uncertainty of its legal status. At the same time, as indicated by the icj in the case discussed above, there is a need to identify some legal person that might be considered bound by these and other international obligations. In other words, one way or the other Yugoslavia at the time was involved in the proceedings before the icj. There was a State in relation to which the attribution of some unlawful conduct could be made. Any further uncertainties as to status and/or rights and obligations will be settled through different international procedures. Similarly, questions are raised by situations known in international law as restoration of States. If it is recognised that a State ceases to exist in view of effective, even if unlawful, occupation, can a State, when restored, claim a continuing breach of international law, or should it claim a breach at the moment of its occupation? If an unlawful act has been validated through international procedures, can the claim of a breach and applicable reparations remain valid? In State practice, one may try to look for some answers in the situation of Austria after the end of Anschluss. There were a number of arguments advanced against the continuity of Austria during Anschluss. Initially, the extinction of Austria was acknowledged even if later withdrawn. When determining whether Austrians should be part of reparations scheme to which Germany was subjected, it was decided that they are not liable for reparations.28 In other words, when restoration or continuity remains a controversial decision, similar to the Yugoslav case of succession or continuity, this does not necessarily preclude a decision on a breach and reparations. The latter may provide 28

See, Article 21 of the Austrian State Treaty.

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e­ vidence concerning the position adopted by the international community as to restoration or continuity, or, at least, the relevant legal consequences in a disputed situation. In this respect, one could indeed agree with Koskenniemi that sometimes it is difficult to maintain a clear distinction between status and obligations. It is especially true in disputed situations where decisions on obligations may have bearing on the issue of status. As concluded before, however, some recognition of a status or, at least, that it is disputed is required before discussions on obligations begin. The above analysis, therefore, confirms that, first of all, the settlement of State responsibility questions can take place only after the primary rules on State succession or State continuity have determined the States concerned. Where the situation is determined as one of State succession with new persons having come into existence under international law, it may be difficult to attribute relevant conduct giving rise to State responsibility to the new legal persons. It has to be recalled that an injured State has to show that obligations breached are those owed to it individually by a responsible State.29 At the same time, it is not excluded at the current stage of development of international law that special primary rules are developed concerning obligations of new States. As confirmed in Gabcikovo-Nagymaros case, new States inherit territorial treaty obligations and responsibility for their execution, irrespective of whether third States have attributed their consent.30 It seems that special responsibility for human rights obligations is also being developed and the icj in the Yugoslavia cases may have implied as much. It is therefore not excluded that through the joint efforts of third States, in some cases a new State is considered to be bound by some international obligations and bear responsibility thereof. Most importantly, however, once a ‘new’ State has put forward a claim concerning its legal personality in international law, consistency in upholding it will be required by States and international procedures. The change of the claim to avoid responsibility for international obligations will be hardly tolerated since it would be contrary to several general principles of international law, including the principle of good faith.31 In summary, the attribution of an internationally wrongful act to a particular State will derive from the establishment of State continuity or identity, or State succession, in situations of territorial change or other special rules and 29 See Crawford (2002) p. 257. 30 See Case Concerning the Gabčikovo-Nagymaros Project, Judgment, icj Reports, 1998, paras. 118, 123. 31 See further on the principle, e.g., Bin Cheng, General Principles as applied by International Courts and Tribunals, Cambridge University Press, 1993.

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procedures concerning obligations of that State. Situations of State continuity or identity, as clearly shown in the Baltic cases, may involve long periods of time until any such determinations are made. Thus the question whether a breach of international law has a continuing character arises, and it must be determined whether international procedures and/or lapse of time have led to validation of a breach. This requires looking at whether the alleged wrongdoer State continues to be perceived as having certain international obligations in relation to the territory claiming State continuity or identity. In case the answer is positive, the obligation to cease the unlawful act vests. Secondly, as explained by the ilc, ‘the general obligation of reparations arises automatically upon commission of an internationally wrongful act and is not, as such, contingent upon a demand or protest by any State’.32 This means that once an unlawful act takes place the obligation of reparations for this violation of international law arises and persists, provided the States concerned can be determined. 2.3 Determining a Continuing Breach of International Law Articles on State Responsibility deal with the issues of continuing breach of international law. Article 14 provides: The breach of an international obligation by an act of a State having a continuing character extends over the period during which the act continues and remains not in conformity with the international obligation. The ilc draws a distinction between a breach with continuous effects, or a continuing breach. This appears a difficult distinction to maintain. One could think of environmental pollution where a hazardous act itself may not have a continuing character but the consequences of this act can be felt for decades. In this context, is the unlawful occupation of a State an act of continuing character or a consequence of a single unlawful act of armed intervention? The ilc suggests that it is a continuing breach of international law.33 It could be argued that a continuing breach of international law may be validated through estoppel, acquiescence or other procedures of international law, especially where long periods of time are involved. State practice that has evolved after 1945 shows that the validation of an internationally wrongful act in the context of territorial changes has not been the preferred or accepted solution. The legal status of East Timor remained disputed after the I­ ndonesia’s 32 33

See Crawford (2002) p. 202. Ibid., p. 136.

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invasion in 1974 for 25 years until it was clarified through the UN sponsored referendum in 1999.34 The status of the Turkish Republic of Northern Cyprus that was created as a result of Turkish invasion in 1975 continues to be disputed with efforts in settling the conflict seriously accelerated in 2002–2003 in view of the Cyprus candidacy for membership in the European Union.35 Arguably, these eases involve the breach of peremptory norms of the right to self-­ determination and the prohibition of the use of force respectively. In that case, States are under an obligation of non-recognition of this breach and the unlawful situation persists.36 Apart from the special case of violation of peremptory norms, Articles on State Responsibility provide for another principle or guideline as to the question of validation of a breach of international law. ­Article 45 places the main responsibility concerning the waiver of a claim or acquiescence to the lapse of a claim on the injured State. In other words, within essentially bilateral relations where injured and responsible States can be identified in accordance with relevant primary rules, the validation of a breach of international obligations through the consent of third States in the absence of the consent of an injured State would be hardly compatible with the law of State responsibility.37 2.4 Applying Rules to the Baltic Cases In relation to the Baltic cases, one should first of all assess the views of States adopted in relation to the Baltic claims to the continuity of their legal personalities all through the fifty year period of their occupation. Views in relation to the presence of the Soviet/Russian army in the Baltic States in the early 1990s are illustrative in that respect. The United Nations and the Conference for Security and Co-operation in Europe (csce/osce) addressed the issue of the presence of Soviet/Russian forces on the territories of the Baltic States upon the restoration of their independence. For a few years the question of the withdrawal of foreign military forces from the territories of the Baltic States was on the agenda of the UN General Assembly. The wording used in the relevant Resolutions referred to military forces of the Russian Federation stationed in the Baltic States as ‘foreign’. The Russian military forces were not only ‘foreign’ because the States had been independent since 1991, but because it was acknowledged that the forces 34 35 36 37

u.n.s.c. Res. 1272 (1999); Res. 1410 (2002). u.n.s.c. Res. 1146 (1997) paras. 12, 23; Res. 1442 (2002) (extending the presence of UN peacekeeping forces until 15 June 2003). Crawford (2002), pp. 250–251. See for more on this point, the discussion accompanying note 57 below.

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were stationed in the Baltic States without the required consent of those countries’.38 It was a problem carried over from the past, which had to be dealt with in accordance with the UN Charter.39 In 1992 at the Helsinki Summit, the csce recognised that ‘the stationing of foreign armed forces on the territories of the Baltic States’ had taken place ‘without the required consent of those countries’.40 In 1994 in Budapest, the osce participating States adopted a Declaration on Baltic Issues in which they ‘welcomed the withdrawal of foreign troops from the Baltic States’ and ‘acknowledged this as an event of historic significance … and an important factor in stabilising the security [in the region]’.41 As far as the presence of the Soviet army was concerned, it was considered contrary to the rule requiring the consent of the host country and thus unlawful in international law not only when the act occurred in 1940 but also in 1990s, when it received a scrutiny by the world community. The entry and stationing of the troops on the territory of the Baltic States was therefore a breach of international law having a continuing character. In consequence, the ussr and subsequently Russia was under an obligation to withdraw its army. With the withdrawal of the army from the territories of the Baltic States that was completed between 1993 and 1995 the wrongful act ceased. In line with the view on the unlawful presence of the Soviet army in the Baltic States, the view that their occupation was unlawful was upheld. Some disagreements persisted in State practice and scholarly writings on the issue as to whether in these circumstances the legal personalities of the Baltic States continued, or were extinguished thus giving birth to new but identical States in the 1990s. The majority of States that have pronounced their views on the Baltic claims to State continuity have in principle recognised these claims.42 The Soviet Union’s violations of rules of international law have not been validated through the available procedures in international law or a lapse of time. In 38 39

40 41 42

u.n.g.a. Res. 48/18, 15 November 1993. u.n.g.a. Res. 47/21, 25 November 1992; 48/18, 15 November 1993. When the bilateral treaties on the withdrawal of the Soviet army were concluded between the Russian Federation and the Baltic States, the Secretary-General of the UN in the report to the General Assembly mentioned this fact referring to the ‘foreign forces’ in the Baltic States. See Annual Report of the Secretary-General on the Work of the Organisation 1994, available at gopher://gopher.un.org/00/ga/docs/49/plenary/l_3, para. 474. See the 1992 Helsinki Summit Declaration, reproduced in A. Bloed, The Conference on Security and Co-operation in Europe: Analysis and Basic Documents, Dordrecht, Kluwer Law International, 1993, 705. See, the 1994 Declaration on Baltic Issues, available at https://www.osce.org/mc/39554? download=true. See for a fairly exhaustive account of the examples of State practice, Baltic Yearbook, 2001, volume 1.

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these circumstances, the Baltic States could not have ceased to exist. There is a strong legal basis for the view that the occupation of the Baltic States was a continuing breach of international law from the moment of the commencement of the act in 1940 until the withdrawal of the Soviet army giving rise to State responsibility unless the Baltic States wave their right to claim responsibility in accordance with rules and principles of State responsibility (see below Section 3). Even if it is suggested that in view of the long period of occupation, the Baltic States are new but identical to the old States, occupation as a breach of international law can still be evidenced and an injured State identified. As concerns the relationship between the Russian Federation and the former Soviet Union, there is ample evidence that the Russian Federation is considered as continuing the legal personality of the latter. This means that it also continues to be bound by international obligations of the former ussr, including its responsibility under international law.43 The next question is in which form and when should the Baltic States present their respective claims, if at all? 3

Form and Duration of a Claim for Reparations

In accordance with Articles 43 and 44 of Articles on State Responsibility, an injured State shall give notice of its claim to the other State whose responsibility it is invoking. An injured State may specify what conduct it expects from that State in order to cease the wrongful act, and seek full reparation for the injury caused. State responsibility can only be invoked when the applicable rules of nationality of claims have been met as well as the exhaustion of available effective remedies has taken place. 3.1 Statements of the Baltic Claims It was mentioned earlier that, for example, some groups of individuals had calculated the damage caused by the occupation in Latvia already in the 1950s and then in 1991 with the aim of seeking reparations from Russia. Lithuania has probably spelled out its reparations claim in the clearest terms. It adopted a Law on Compensation of Damage Resulting from the Occupation by the ussr in 2000. This was a logical outcome following a chain of legislative steps that included adoption of a Resolution concerning compensation already in 1991. In 43

See, among others, I. Ziemele, ‘Is the Distinction between State Continuity and State Succession Reality or Fiction? The Russian Federation, the Federal Republic of Yugoslavia and Germany’. (2001) 1 Balt. Yrbk. il p. 191, pp. 194–202. Ziemele (2001).

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1997, a Lithuanian government commission calculated the damage inflicted on Lithuania and its citizens at usd 667.7 billion. This estimate took into consideration all possible damages: death of civilians, slave labour, destruction of property, etcetera.44 Since then the figure has declined considerably. In accordance with the Law, the Lithuanian government is under the obligation to submit the claim for reparations to the Russian government and with the assistance of international organisations to exercise a persistent pressure on Russia in the attempt to obtain compensation. A special compensation fund should be created from which individuals concerned would be paid out for damages caused to them. In addition, the Law establishes a special Return Fund to assist the return to Lithuania of those who were deported by the Soviet regime.45 Latvia has been less clear as to its claims in relation to Russia. It has to be admitted that Latvian–Russian relations have been much more complex and not only for reasons of the presence of a large Russian-speaking community on the territory of Latvia. Latvia’s demands have stayed at the level of different unilateral or trilateral declarations. There were no at the time official calculations of damages caused by the occupation prepared by the Latvian government. The more recent pronouncement of Latvia’s position was the 1996 Declaration on Occupation of Latvia adopted by the Parliament.46 In this Declaration, the Parliament was calling upon all States and international organisations to recognise the fact of occupation of Latvia, to assist Latvia in addressing the consequences of occupation through political and economic help, and to help those individuals who want to return to Latvia. Estonia has encountered similar difficulties in developing its claims in relation to Russia. There were some attempts to calculate the damages caused by the occupation in 1991, although new developments may be under way since 2002.47 Like in Latvia, Lennart Meri, former President of Estonia, established a History Commission with international membership, which has been requested to assess the issues and record its opinion on the events linked to the Soviet and Nazi occupations. This Commission is not however a legal body and will not hand down either judgments or calculations concerning the amount of reparations.48 44 ‘Landsbergis asks Russia for billions’, The Baltic Times, 18–24 May 2000, p. 1, 6. 45 See, D. Žalimas and R. Satkauskas in volume 3 (2003) of the Baltic Yearbook. 46 See, Deklarācija par Latvijas okupāciju, 22.08.1996. Published in Latvijas Vēstnesis, No. 143, 27.08.1996. 47 See, L. Mälksoo in volume 3 (2003) of the Baltic Yearbook. 48 See, L. Mälksoo, Soviet Genocide. ‘Communist Mass Deportations in the Baltic States and International Law’ (2001) 14 Leiden Journal of International Law (ljil) pp. 757–787. Mälksoo (2001).

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In all three States the prosecution of Soviet or Nazi war criminals for crimes against humanity (deportations, killings of civilians, etcetera) is ongoing.49 In these attempts to formulate the claim to reparations one can see two different sets of issues that may arise. The first relates to the damages that can be inflicted during occupation on property of a State and its national economy. Environmental damage could affect both an injured State and its citizens. The second is the damage to individuals and their property if they were sent to labour camps, unlawfully imprisoned on political grounds, etcetera. It may be rather difficult to draw a clear distinction between damages related to a State and damage to its citizens. The question arises whether and how nationality of claim and local remedy rules have to be satisfied for the purposes of a claim for reparations. Where a State is submitting a claim on behalf of its individuals, their nationality link has to be determined in accordance with the established principles of international law among which the principle of effective links has been predominant.50 In the circumstances of occupation and State continuity, the assessment of nationality link should, for the purposes of the claim to reparations, take into consideration that considerable number of nationals were forced to leave the Baltic States. They may have meanwhile acquired another nationality while they continue to be regarded as nationals of the Baltic States. The principle of effective nationality in the particular circumstances of these cases will differ as compared to a normal case of double nationality. Therefore, the Baltic States should include within the scope of individuals whom they are set to protect, all nationals and their descendants determined in accordance with nationality laws by 1940.51 This submission is based on the principle of continuity of nationality, which derives from the continuity of States. As for the requirement of the exhaustion of domestic remedies, the Russian legislation does not provide for the possibility for individuals persecuted by the Soviet regime, who now reside outside the territory of Russia, to submit

49

On political and legal difficulties encountered in Estonia, see Mälksoo (2001). In Latvia, see I. Ziemele, ‘Questions Concerning Genocide. A Note on the Supreme Court Judgment’ (1999) 7–10 Latvian Human Rights Quarterly pp. 327–341. 50 The ilc in its work on Articles on Nationality of Natural Persons in Relation to the Succession of States has come to prefer the principle of appropriate connection with a view of avoiding statelessness. See UN Doc A/RES/55/153 (Nationality of natural person in relation to the succession of States), 30 January 2001. 51 See, I. Ziemele, ‘State Continuity, Human Rights and Nationality in the Baltic States’, in Tālavs Jundzis (ed.), The Baltic States at Historical Crossroads, Riga, Academy of Sciencies of Latvia, 2nd rev. ed, 2001, pp. 224–247.

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claims for compensation.52 In other words, there are no remedies available to Baltic nationals in Russia. As one can see, some developments have taken place in the Baltic States with respect to the formulation of their claims for reparations from Russia. These claims have not yet been submitted to Russia. Several questions arise in this context. Could it be argued that the withdrawal of Soviet/Russian army has discharged Russia of its responsibility in relation to the Baltic States? Could it be that the Baltic States are waiving their claims or that the time is running out for lodging any claims? 3.2 Discharge of Russia’s Obligations? One could argue that with the withdrawal of the Soviet/Russian army, Russia was discharged from any possible obligations that it owed to the Baltic States and its peoples. This calls for a closer analysis of the relevant Soviet army withdrawal treaties. These treaties do not contain any explicit or implicit reference to suggest that through the implementation of withdrawal Russia’s obligations as concerns the occupation of the Baltic States will have been dealt with. Even the 1991 Lithuanian-Russian friendly relations treaty, concluded before the demise of the Soviet Union, does not include any clause releasing Russia from its responsibility.53 It has to be noted that at the time of the conclusion of this Treaty, Russia was clearly distancing itself from the acts of the ussr.54 At the same time, the Treaty in its Preamble states the strong hope that the ussr ‘annuls the consequences of the 1940 annexation’ of Lithuania. This language may well suggest that, on the contrary, restitutio in integrum was considered by the parties as the obligation of the ussr inherited subsequently by Russia. From the adoption of the Baltic Independence Declarations in 1990 the three States maintain that the ussr/Russia has breached international law in their relations.55 As noted, Russia had itself recognised as much in the 1991 Treaty with Lithuania. There is, however, a dispute today since Russia refuses 52 See, Zakon o reabilitaciy zhertv politicheskih represyi, 18.10.1991. with last amendments in 2001 (on file with the author). 53 Similar treaties were concluded with Estonia and Latvia. They are not in force. Russia and Lithuania consider the 29 July 1991 Treaty on Principles of Inter-State Relations to be binding on the parties. Subsequent agreements between two States are rooted in this Treaty. 54 See, Ziemele (2001) 195, 196. 55 On 30 March 1990, the Estonian Supreme Council, the legislative institution at the time, adopted the Resolution on the State Status of Estonia, which announced that the existence of the Republic of Estonia de jure had never been suspended because her territory had been illegally occupied since 1940 by the Soviet Union. See Resolution of the Supreme Soviet of the Estonian ssr on the State Status of Estonia, 30 March 1990 (1990) 12 Eesti Vabariigi Ülemnõukogu ja Valitsuse Teataja 269. In Latvia on 4 May 1990 a Declaration on the

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to admit any such breach entailing relevant responsibllity.56 As far as bilateral relations, unilateral statements, and exchanges within multilateral frameworks are concerned, no statement declaring that the withdrawal of the army was sufficient to address the issue of Russia’s international responsibility has been adopted.57 It is therefore clear that the withdrawal of the army, as suggested earlier, was a mere cession of the wrongful act without any prejudice to the claims for reparations. 3.3 Waiver of Claims? It is at this stage that Article 45 of the Articles on State Responsibility becomes important. It determines that: The responsibility of a State may not be invoked if: a) b)

The injured State has validly waived the claim; The injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim.

In accordance with the above approach the primary choice concerning the waiver of the claim rests with the injured State. It is for an injured State to demand reparations or to waive such a claim. It has to be noted that the Articles on State Responsibility also envisage the right of any State to invoke State responsibility if obligations owed to the international community are violated. Without going into details in this respect, it is interesting to note that, for example, the Council of Europe, when admitting Russia to the organisation, placed on the agenda the issues of restoration or compensation of a property to the Baltic States which Russia seized upon their occupation. Of course, the question can be asked whether at the time of occupation Russia owed its obligations not only to the Baltic States but also to the international community. The answer to this question is most likely negative. Another question could be whether with time the continuing obligation to free the Baltic States acquired

56 57

­ enewal of the Independence of the Republic of Latvia (the Independence Declaration) was R adopted. The Act on the Restoration of the Lithuanian State was passed on 11 March 1990. See, S. Chernichenko, ‘Kontinuitet, identichnost’ i pravopreemstvo gosudarstv’ [State continuity, identity and succession] (1998) Rossijskij ezhegodnik mezhdunarodnogo pravo 1996–1997, pp. 9–41. For further details, see Loeber (2001) 130–134. See for example, icj’s discussion on the issue of claimed discharge of obligations by administering States upon the trusteeship agreement coming to an end over Nauru. See Case Concerning Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, icj Reports, 1992, para. 30.

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this special character because the prohibition of use of force obtained the fundamental character in international law. It seems that there are indications that the international community indeed saw itself well placed to insist on, at least, some basic steps that Russia was obligated to take in the given circumstances. The withdrawal of troops was already mentioned and the restoration of property was another step asked from Russia. At the same time, it has to be underlined that States and international organisations are treating Russia very carefully and diplomatically and that in the end it is indeed up to the Baltic States themselves whether and how they pursue their legitimate claims. In view of the above-described hesitations of the Baltic States in pursuing their claims, the question arises whether the Baltic States with their behaviour have waived their claims or have acquiesced in the lapse of their claims? According to the ilc Articles, in both respects the requirement of validity of such behaviour applies. The determination of a valid waiver is left to other rules and principles of international law. The consent of a State is an important principle in this respect.58 Mere lapse of time without a claim being resolved is not, as such, enough to amount to acquiescence, in particular where the injured State does everything it can reasonably do to maintain its claim, explains the commentary to the Articles.59 The icj in Nauru case set, in fact, a rather high threshold for the waiver of claims. The Court said that it has to be a clear and unequivocal waiver of … claims’.60 In view of the above presentation of the Baltic situations, correct reading suggests that the Baltic States have not yet waived their claims but for all practical and political reasons are rather uncertain as to how they should proceed. These hesitations do not, however, amount to clear and unequivocal waiver of their claims. The forthcoming admission of the Baltic States into the European Union does not appear helpful toward resolution since the EU is known to be particularly careful with Russia. It is to be hoped that the foreign policy interests of the Union will leave the possibility for settling, at least, some issues in the framework of bilateral relations between the Baltic States and Russia. There is, of course, nothing wrong with waiving one’s claim, except that it once again plays in favour of impunity of Russia. 3.4 Time Left The time element is recurrent when State responsibility is determined in situations of State continuity or State succession. First of all, it is relevant in deter58 59 60

Crawford (2002) p. 266. Ibid., p. 267. icj Reports, 1992, para. 13.

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mining the States concerned if decisions on territorial changes involve long periods of time. It is important in relation to the determination of a breach of international law in such situations. Finally, it comes up in the assessment of whether the claim to State responsibility is still pending. The combined effect of primary rules on State continuity and State succession and rules of State responsibility suggest that relevant rules and principles favour continuity and responsibility. Having said that, it has to be admitted that in the specific circumstances of the Baltic cases the lack of more apparent and determined behaviour on the part of these States concerning the reparations claims may play in favour of the arguments that they have consented to the waiver of these claims through non-action. The icj also admitted in Nauru that ‘delay on the part of a claimant State may render an application inadmissible’. At the same time, it noted that international law does not lay down any specific time-limit in that regard’.61 As far as the Court’s jurisdiction is concerned, the Court will take its decision on case-by-case basis. Even if the Court pronounced on the principles applicable in determining its jurisdiction, these principles may be relevant in guiding the future decisions of the Baltic States concerning the presentation of their claims. 4

Available Forums for the Baltic Claims for Reparations

Let us imagine that the Baltic governments decided to pursue actively their claims, the next question is whether international law provides for any mechanism or forum. Unfortunately, Russia has not accepted the jurisdiction of the International Court of Justice. The icj therefore has to be ruled out unless, of course, the Baltics try to persuade Russia to submit their dispute to the icj on the basis of a special agreement, which could allow the Court to decide on reparations as well. This option would require tremendous amounts of diplomatic and legal work, the resources for which may not be available. The other option would be bilateral negotiations through international mediation or conciliation or international arbitration. The Baltic States could also try to convince the UN General Assembly to submit a request for advisory opinion from the icj concerning obligations of reparations under customary law for unlawful occupation. It seems that any number of UN ga Member States would be interested in submitting such a question. All these options require serious homework before they are even placed on the agenda of a multilateral or bilateral forum. 61

Ibid., para. 32.

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It is therefore that individual complaints for violations of their rights may appear to be the more likely option, which could contribute to the exercise of the pressure on Russia for the purposes of inter-State solutions. According to the Russian domestic legislation, nationals of third States cannot claim compensation for violations of their rights committed during the Soviet regime. Such individuals are not given the right of standing in Russian institutions. Therefore, the only options available for the Baltic nationals who claim to be victims of violations of their rights by the ex-Soviet institutions are to try to bring claims to the European Court of Human Rights or the UN Human Rights Committee. Related but a slightly different issue concerns the prosecution of those exSoviet officials who may be suspected in ordering or carrying out crimes against humanity and who live in Russia. At least, Latvian Criminal Law does not provide Latvian courts with universal jurisdiction concerning these crimes. Latvia could think of necessary changes in law in this respect. As far as human rights bodies are concerned, the claims of the individuals concerned will be rather qualified in a sense that individuals can only claim a limited scope of the violations committed by the ex-Soviet authorities as human rights violations. It is difficult to speculate at this stage what could be the view taken by the Court or the Committee once such complaints are submitted since no similar precedent is available in international jurisprudence. According to the criteria of admissibility of applications in the European Court of Human Rights, an individual will need to show a continuing breach of a Convention right and satisfy the exhaustion of domestic remedies rule. For example, crimes committed against individuals by the Nazi regime have been so far dealt with by either domestic courts, or within the framework of special schemes developed by the governments and businesses.62 To sum up, there are certain legal basis and mechanisms available for the formulation and enforcement of the possible claims for reparations. Their use, however, requires a commitment and an effort by injured States and the individuals’ concerned. 5

Concluding Remarks

The time factor is important in the Baltic cases for very practical and legal reasons. Direct victims and those responsible for the alleged crimes are becoming fewer, although, as shown by the experience of the Western powers in 62

See for, the German approach, Bank (2001).

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c­ olonising and decolonising parts of the world, no crime is simply forgotten and one does not know when the issue of reparations may come up. Good relations between the Baltic States and Russia are not simply dependent on the treatment of Soviet time settlers in Estonia and Latvia. The latter is placed in the context of the crimes committed by the Soviet Union irrespective whether Russia will be able admit that. Stability within the Baltic States is also dependent on the settlement of the issues that have arisen as a result of their occupation. It has to be admitted that the governments have not done enough to tackle them and that more clear statements on reparations claims need to be prepared.

Volume 7 (2007): Symposium on the History of International Law Scholarship in Central Eastern and Eastern Europe

The Dilemmas of an “Official with Progressive Views” – Baron Boris Nolde Peter Holquist The discipline of international law flowered in the last decades of imperial Russia.* One of its most active and prolific figures was Boris Emmanuilovich Nolde. Today Nolde is known largely for his role as a historian and as an administrator. There is good reason for this reputation. Nolde exemplified the “Petersburg school”, graduates of the law faculty of St. Petersburg University who frequently combined academic study of international law with administrative duties.1 Nolde was born in 1876 to an influential aristocratic family. Boris Nolde’s father was a longtime official in the Ministry of Justice. Under Sergei Witte his father held the post of executive secretary for the Committee of Ministers. In this capacity he participated actively in the drafting of the Fundamental Laws in 1905–1906, in the course of which he invited his 30-year old son Boris to

* Notes on the article: this article is a modified version of an article that appeared in 7:2 Kritika: Explorations in Russian and Eurasian History (Spring 2006) pp. 241–274. Throughout the text I will use the form of Nol’de’s name that he himself employed in his nonRussian works: i.e. Nolde. I will employ the transliterated form (Nol’de) in citations to his Russian-language works. 1 There exists no full-length biography of Nolde. For overviews of his life and work, see B.E. Nol’de, Novyi entsiklopedicheskii slovar, vol. 28 (Brokgauz-Efron, Petrograd, 1916) p. 815; M. Vishniak, ‘B.E. Nol’de’, 19 Novyi Zhurnal (1948) pp. 279–289; A. Makarov, ‘Le Baron Boris Nolde (1876–1948)’, 41 Annuaire de l’Institut de Droit International (1948) pp. 337–342; A. Mazon, ‘Nécrologie: Boris Nolde’, 25 Revue des études slaves (1948) pp. 256, 257; V.E. Grabar, The History of International Law in Russia, 1647–1917: A Bio-Bibliographical Study, trans. W.E. Butler (Clarendon Press, Oxford, 1990) pp. 436, 437; M.V. Vishniak, Sovremennye zapiski’: Vospominaniia redaktora (Graduate School of Slavic and East European Studies, vol. 7, Bloomington, In., 1957) pp. 150–161; M. Golostenov, ‘Nol’de, Boris Emmanuilovich’, in A.S. Velidov et al. (eds.), Politicheskie deiateli Rossii: 1917: Biograficheskii slovar (Bol’shaia rossiiskaia entsiklopediia, Moscow, 1993) pp. 238, 239; M. Golostenov, ‘Nol’de, Boris Emmanuilovich’, in V.V. Shelokhaev et al., Politicheskie partii Rossii. Konets xix-pervaia tret’ xx veka (rosspen, Moscow, 1996) pp. 404, 405.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_006

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c­ omment on the drafts.2 As befitted the son of an influential dignitary, Nolde had attended Alexander Lycée and then St. Petersburg University, in the faculty of law. There he studied under Russia’s most outstanding specialist on international law, Fedor Fedorovich Martens. In 1905 Nolde defended his masters thesis On the Permanently Neutral State.3 Martens regarded Nolde as the most brilliant of his many distinguished students, who numbered, among others, Baron Mikhail Aleksandrovich Taube, Baron Sergei Aleksandrovich Korf and Andrei Nikolaevich Mandel’shtam.4 In 1907 Martens invited Nolde to accompany him on a preliminary tour to major European capitals to promote the Second Hague Peace Conference and then selected Nolde to participate as a delegate at this Conference.5 In pursuing these causes, both Martens and Nolde earned a reputation for a “pragmatic” approach to questions of international law.6 The “positivism” and pragmatism of both Nolde and his teacher Martens derived not so much from the discipline of international law as such – other leading specialists on international law were committed pacifists and idealists – as from the particular nature of St. Petersburg University’s department of law and its close links to Government service. All studies of Martens and Nolde note their service to the state and involvement in the practical side of international law. In contrast, the most prominent professor of international law at Moscow University, Leonid Alekseevich Kamarovskii (1846–1912), was a committed idealist. Kamarovskii, unlike Martens, had no ties with Government service, and he became one of

2 M. Szeftel, The Russian Constitution of April 23, 1906: Political Institutions of the Duma Monarchy (Les Éditions de la Librarie Encylopédique, Brussels, 1976) pp. 36, 37 and note 18; N.S. Tagantsev, Perezhitoe: Uchrezhdenie Gosudarstvennoi Dumy v 1905–1906 gg. (18-aia gos. tipografiia, Petrograd, 1919) pp. 157, 158. 3 Postoianno-neitral’noe gosudarstvo: Iuridicheskoe issledovanie Barona B.E. Nol’de (Tip. Stasiulevicha, St. Petersburg, 1905). 4 On Martens and his students, see Grabar, ibid., pp. 387, 388 and individual entries on these scholars. Martens’s students followed very different political trajectories: while Korf and Nolde entered the orbit of the Constitutional Democrats, both Baron Taube and Aleksandr Aleksandrovich Pilenko played notable reactionary roles under the last tsar. Taube and Pilenko, in fact, politicked against Nolde. 5 Martens’s diary, entries for 4 January, 3 March and 7 April 1907 (Arkhiv vneshnei politiki Rossiiskoi imperii, Moscow [avpri], f. 340, op. 787 [F.F. Martens], d. 9, ll. 103–104, 105, 106, 132), where he also comments on Nolde’s capabilities. Nolde reported on the conference for the Russian press: Baron Nol’de, ‘Vtoraia ‘konferentsiia mira’: ocherk’, Vestnik Evropy (April 1908) pp. 461–490. 6 Grabar, supra note 1, pp. 381–388, 436 (which notes that Nolde followed Martens’s path); V.V. Pustogarov, Our Martens: F.F. Martens, International Lawyer and Architect of Peace, translated and edited by William Butler (Simmonds & Hill, London, 2000).

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the leading activists in the Russian peace movement.7 In the words of Kamarovskii, Martens “was a positivist in his method; abstract questions or pure theory held only a weak attraction for him. He professed a certain scepticism regarding the reform both of the law and of international life, a scepticism which is characteristic of men of practice.”8 As Kamarovskii’s comments suggest, the positivism of Martens and Nolde was positivism in its juridical and historical form, rather than in its metaphysical variant. The 1916 entry for Nolde in the Novyi entsiklopedicheskii slovar’ stressed Nolde’s positivist orientation. It described him as “a strict positivist, rejecting a priori theoretical constructions”. “Nolde commands”, it continued, “a deep understanding of reality [obladaet glubokim ponimaniem deistvitel’nosti], both historical and contemporary. It is this which accounts for the relevance of his analysis and the significance – not only theoretical, but also practical – of his conclusions.” It is quite possible that Nolde himself was the author of this entry.9 In his 1948 obituary of Nolde, Alexander Makarov characterized him in similar terms: “He was not interested in philosophical problems of law, but in all his works devoted to positive law there is evident his interest in the history of law: for him, presenting the law in action was based upon a profound knowledge of the past.”10 Upon graduation, Nolde entered the Russian Government’s Ministry of Foreign Affairs (mid), where from 1907 through 1914 he served as legal advisor (iuriskonsul’t). Due both to his high aristocratic background and to his own gifts, he came to represent the imperial Government on the international stage: he was a delegate to the London Naval Conference (1908–1909), the preliminary meetings on the Spitzbergen question (1910–1912), and the Balkans Financial Commission (1913). In 1914 he was appointed as a standing member of the Permanent Court of Arbitration in The Hague. When, in 1914, a legal advisory department [iuriskonsul’tskaia chast’] was formed in the Foreign Ministry, Nolde was tapped to head it.

7 Grabar, supra note 1, pp. 374, 375; see his daughter’s recollections of him and his efforts at founding the Peace Society: E.L. Komarovskaia, Vospominaniia (Zakharov, Moscow, 2003) pp. 75–78. 8 L. Kamarovsky, ‘M. Frederic de Martens’, 23 Annuaire de l’Institut de Droit International (1910) p. 540. 9 ‘Nol’de’, Novyi entsiklopedicheskii slovar, p. 815. No author is listed, but Nolde sat on the publication’s editorial board, and it was a not uncommon practice for people to pen entries on themselves. For a similar portrayal, see also Vishniak, ‘B.E. Nol’de’, supra note 1, p. 282. 10 Makarov, supra note 1, p. 341.

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Both in imperial Russia and then later in emigration in France, Nolde combined his work in various official capacities with a productive scholarly life. Not only did he combine these two tasks, he insisted that the synergy between these two spheres was crucial to his own outlook. In his study of Iurii Samarin, written in Russia in 1918–1919, Nolde noted: While true in individual cases, the banal idea that a politician cannot be a scholar, or that a scholar cannot be a politician, is inaccurate in the majority of cases. Politics emerges from forming an evaluation of living reality and from the activity that acts upon those evaluations … Of course, the combination of a scholar and a politician in a particular individual is more or less an entirely accidental event, but when it happens … there is nothing unnatural in this combination.11 It is no accident that Nolde chose to write a biography of Samarin, a man who was active both in politics and intellectual life. Nolde viewed himself in similar terms, as simultaneously a politician and a scholar, who in both his administrative and his academic work took account of “living reality”. However, due to his milieu, his own life experience, and the limitations upon political life in imperial Russia, “living reality” for Nolde meant first and foremost the task of administration. While many other scholars and political activists were engaged in work in various political parties or within the Duma, Nolde was distinct in that he was engaged in actual state service within the Foreign Ministry. Nolde’s understanding of “living reality” served him well as both a scholar – he was without doubt a superb historian and legal theorist – and as an administrator within the established order of Russia’s “old regime”. (He would later write that “people must be governed, and there are times when one cannot be overly delicate”.)12 Indeed, his commitment to historically-­ developed institutions and his scepticism regarding the desirability of radical reform served as a rationalization, if not a justification, for the status quo. Yet Nolde’s understanding of “reality”, of which he was so proud, proved a much

11 12

Baron B.E. Nol’de, Iurii Samarin i ego vremia (Société anonyme imprimerie de Navarre, Paris, 1926) p. 16; see also p. 8. Letter of 7 February 1929 from Boris Nol’de to Mark Vishniak (Vishniak Mss., Manuscript Department, Courtesy the Lilly Library, Indiana University, Bloomington, IN) (Liud’mi nado upravliat’ i ne vsegda mozhno tseremonit’sia).

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poorer guide for times of dynamic change – arguably, precisely the time when “reality” was most “alive”. When faced in 1917 with the implosion of the system in which he had formulated his worldview, Nolde showed a striking lack of patience with the messiness of electoral politics and internal party discussions. Most studies present Nolde as a moderate liberal, a member of the right wing of Russia’s liberal party, the Constitutional Democrats. His views, however, cannot be reduced to this label. Party affiliation, to be sure, was not irrelevant. But party affiliation is better understood as an instrument in actors’ identity formation than as a clear-cut diagnostic tool for divining what people believed.13 Mark Vishniak, a lifelong Socialist Revolutionary and good friend of Nolde in emigration, classified him as a man of “moderate liberal views”. Vishniak then hastened to add: “But one would be hard pressed to say that Nolde held firm political views. This is probably explained by his attitude to politics as something of secondary importance, and by his general quality of mind and character. Nolde never suffered from doctrinalism and took things as they were.”14 Vishniak’s reading is the prevailing view of Nolde: a man of moderate liberal views, situated on the right wing of the Constitutional Democratic (or Kadet) Party.15 Vishniak was wrong about Nolde. Nolde did hold “strong” political views. They simply were not “political” in the way that most members of Russia’s political class conceived of “politics”. While Nolde’s view on a variety of issues changed over time, the compass by which he oriented himself in making these decisions was remarkably consistent through the years. This worldview relied on the old Russian liberal bureaucratic notion of an enlightened, absolutist Rechtsstaat, tempered by an Anglophilic adoration of common law and historically-evolved institutions.

...

13

14 15

For an important articulation of this point, see L. Haimson, ‘The Parties and the State: The Evolution of Political Attitudes’, in C.E. Black (ed.), The Transformation of Russian Society (Harvard University Press, Cambridge, Mass., 1969). My own thinking on this question has benefited greatly from discussions with Benjamin Nathans. Vishniak, ‘B.E. Nol’de’, supra note 1, pp. 282; André Mazon typified Nolde’s views in a similar manner: Mazon, supra note 1, pp. 256, 257. E.g. I.V. Gessen, V dvukh vekakh: Zhiznennyi otchet [Arkhiv russkoi revoliutsii 22 (1937)] pp.  405–406; N.G. Dumova, Kadetskaia kontrrevoliutsiia i ee razgrom (Nauka, Moscow, 1982); N.G. Dumova, Kadetskaia partiia v period pervoi mirovoi voiny i fevral’skoi revoliutsii (Nauka, Moscow, 1988).

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Nolde pursued the dual life of a scholar and a political actor, which he so praised in his biography of Samarin. While serving as an administrator in the Foreign Ministry, he also held a position as professor of international law, first at the Alexander Lycée and the Bestuzhev Higher Women’s Courses, and later at the Polytechnic University. Nolde wrote broadly on questions of international law and the Russian state order, both in monographs and in thick journals. In addition to numerous journal articles, he published two more important monograph-length works before 1914: An Overview of International Private Law (first edition in 1908, also two later editions) and Notes on Russian State Law (1911).16 From 1911 he sat on the editorial board of the journal Pravo. In 1913 he founded and edited the Izvestiia Ministerstva inostrannykh del (1912–1917). Even during the War he continued to publish on historical issues and foreign policy.17 With the outbreak of World War i, Nolde came to play an even more significant role in Russian state policy. As legal advisor, Nolde became point man for the Foreign Ministry in all dealings with other agencies, dealings which grew much more frequent with the War. Due both to Nolde’s erudition and his close ties to Foreign Minister Sergei Dmitrievich Sazonov, the legal advisory department came to play a far more important role in state policy than its official brief. His department soon came to be known as the “mind” of the Foreign Ministry.18 Due both due to his position as legal advisor within the Foreign Ministry and because he was regarded as one of Russia’s preeminent specialists on the question of international private law, Nolde was intimately involved in the wartime discussion on measures to limit “German influence”. Nolde’s first contact with this issue came in July 1914, with his participation in an inter-agency commission charged with drafting a proclamation on the “laws by which Russia will be guided in the present war”. A draft proclamation on this question already existed, drawn up in 1910 for the contingency of war. (The Russian Government’s discussion of this issue in 1910 had been prompted by changes introduced to the law of war at sea by the 1909 London Declaration, which Nolde had attended as a representative of the Russian Government.) Taube chaired the 1910 commission and Nolde was an active participant. Nolde devoted 16 17 18

B.E. Nol’de, Ocherk mezhdunarodnogo chastnogo prava (Tip. K. Mattiesen, Iur’ev, 1908); Ocherki russkogo gosudarstvennogo prava (Pravda, St. Petersburg, 1911). The most complete bibliography of Nolde’s works is found in W.E. Butler’s reworked and expanded bibliography in Grabar, supra note 1, pp. 683–686. On the above, see G.N. Mikhailovskii, Zapiski: Iz istorii vneshnepoliticheskogo vedomstva. 1914–1920, 2 vols. (Mezhdunarodnye othnosheniia, Moscow, 1993, vol. 1) pp. 38–40, 43, 57– 64, 164, “mind” at 39. Mikhailovskii served as Nolde’s aide in mid’s legal advisory section.

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­ articular attention to Article 1 of the proclamation, which declared that “subp jects of a hostile state, under the protection of existing laws, may continue their peaceful pursuits within the boundaries of the empire during the course of the war”.19 An explanatory appendix to the 1910 draft, almost certainly written by Nolde, described the rationale for this Article. It simply reiterated accepted principles of international law: war is conducted against enemy forces, not against civilians. It continued: “in particular, the total expulsion of all enemy subjects is neither practicable nor desirable. It has been practiced rarely in modern wars”.20 Indeed, this Article in the 1910 draft reproduced Article 1 of analogous proclamations made at the outset of the 1877–1878 Russo-Turkish War and the 1904 Russo-Japanese War. Each of these proclamations had made an identical declaration regarding enemy subjects. Nolde had compiled a topic file on this very question, with extensive reference to his former teacher, Fedor Martens. The conclusion was unambiguous: the limitation of the activity of enemy subjects, not to mention their expulsion, was no longer practiced in modern wars.21 With the outbreak of hostilities in 1914, Nolde headed an interagency commission to prepare a draft of the “laws by which Russia will be guided in the present war”. He drew up the initial draft of this proclamation, simply reproducing the draft proclamation that had been prepared in 1910. He then presented it on 22 July (os) to a commission composed of representatives from the War Ministry, Naval Ministry, Finance Ministry, Justice Ministry, Ministry of Trade and Industry and Ministry of Internal Affairs.22 This assembly fundamentally reworked Nolde’s initial draft, thereby transforming the basic guidelines by which Russia had waged war for the past 35 years. Article 1 was changed 19 20 21



22

Protocols of the 1910 Special Council on this question are found both in avpri, f. 156, op. 457 (Iuriskonsul’tskaia chast’), d. 21 and garf, f. 596 (Baron M.A. Taube), op. 1, d. 52. avpri, f. 156, op. 457 (Iuriskonsul’tskaia chast’), d. 21, ll. 66. avpri, f. 340, op. 610 (Baron B.E. Nol’de), d. 187b, ll. 2, 3. Nol’de cites Martens’s two-volume Sovremennoe mezhdunarodnnoe pravo tsivilizovannykh narodov, which went through five Russian editions and was one of the two recommended texts for the entrance exam for the Imperial Foreign Ministry. In his Russia in the Economic War (Yale University Press, New Haven, 1928) pp. 3–8, Baron Nolde provided a short overview of the “the general doctrine of war worked out by Russian writers and the Russian government in the second half of the nineteenth century”. In his pre-war file, Nolde overlooked one other exception to this practice: the expulsion of Japanese subjects from the Far Eastern Viceroyalty during the Russo-Japanese War. He later noted this precedent in Russia in the Economic War (p. 8); see also P. Bordwell, The Law of War Between Belligerents: A History and Commentary (Callaghan and Co., Chicago, 1908) p.168. avpri, f. 156, op. 457 (Iuriskonsul’tskaia chast’), d. 21, ll. 29.

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from reading “subjects of a hostile state, under the protection of existing laws, may continue their peaceful pursuits within the boundaries of the empire during the course of the war” to “subjects of a hostile state who are subject to military conscription are to be detained as pows”.23 This draft was confirmed by a second special interagency commission, meeting on 24 July, but chaired this time by Minister of Justice Shcheglovitov. Shcheglovitov was an energetic advocate of anti-German measures in the economic sphere.24 The draft finalized by Shcheglovitov’s commission was approved by the Council of Ministers on 25 July and then confirmed by Nicholas ii as a decree to the Senate on 28 July.25 Despite Nolde’s opposition, then, Russia’s formal declaration of the laws of war which it would observe sanctioned the detention of enemy alien subjects from the very first days of the War.26 As he was very aware, this policy contravened the accepted practice of the law of war and marked a radical departure from previous Russian policy. Nolde and the legal advisory section remained active participants in the discussions over legislation directed against German-owned property in commerce and agriculture.27 The whole campaign disgusted Nolde. First, the antiGerman measures lacked any legal foundation. “All the measures directed by the Russian Government to the restriction or to the complete uprooting of the economic interests of enemy nationals within Russia”, observed mid’s former legal adviser, “were devoid … of formal ‘legal stamp’. Certain practical problems were raised and methods were sought for their solution, but no one took care to find a legal excuse for these problems and methods, in order to put them on a legal basis.” To be sure, “the legal basis” for the policies of other countries was also suspect. But Great Britain and Germany at least sought to invoke the law to justify their measures. “No such formula was sought in Russia. In none 23 24

25 26 27

Iuriskonsul’tskaia chast’ to Chairman of Council of Ministers no. 21, 23 July 1914 (avpri, f. 156, op. 457 [Iuriskonsul’skaia chast’], d. 21, ll. 2–5). Draft of Decree, 23 July 1914 (avpri, f. 156, op. 457 [Iuriskonsul’skaia chast’], d. 21, l. 90); the membership of this commission is described in Nolde, supra note 21, p. 2; in this same work Nolde describes Shcheglovitov as a proponent of anti-German measures (p. 13); Mikhailovskii also notes that the Ministry of Justice was among the most enthusiastic in pursuing anti-German measures (Mikhailovskii supra note 18, vol. 1, p. 164). Decree to the Ruling Senate, 28 July 1914 (avpri, f. 156, op. 457 [Iuriskonsul’skaia chast’], d. 21, ll. 101, 102), published in Sobranie Uzakonenii (1914) sec. 2014. On the resulting detention of enemy alien subjects, see E. Lohr, Nationalizing the Russian Empire: The Campaign against Enemy Aliens during World War i (Harvard University Press, Cambridge, Mass., 2003). The legal advisory section amassed several files on the question of property rights of enemy subjects: avpri, f. 156, op. 457 [Iuriskonsul’tskaia chast’], dd. 11–13, 112, 113, 316. Before the War, Nolde had written the most important work on private international law.

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of the legislative acts relating to the measures of economic war do we find any reference to legal doctrine.” The sole justification advanced was wartime exigency.28 Second, the Russian Government pursued its policy in a manner entirely counterproductive to Russia’s long-term interest. British policy, for instance, “displayed great flexibility”. Russian policy, in its pursuit of theoretical principle, suffered from rigidity.29 In addition, these measures would complicate the rapprochement of Russia and Germany after the War’s conclusion.30 Despite his disdain for these policies, however, Nolde’s department played a crucial role in the development of this legislation. Nolde was committed to process, to pragmatism over principle. This outlook prevented him from making even a symbolic protest to these policies.31 It should be noted that Nolde did play a more effective role in opposing the Russian Government’s plans for expelling Russian Muslim subjects from the Kars and Batum regions.32 Nolde was a leading figure behind the Foreign Ministry’s advocacy of a reform program for Poland – championed because the Polish issue touched on international relations as well as domestic concerns. This policy served as a lightning rod for conservative criticism. Under Nolde’s oversight, Prince Georgii Nikolaevich Trubetskoi had drafted the 1 August 1914 appeal to the Poles

28 Nolde, supra note 21, p. 71. 29 Nolde, supra note 21, p. 73; see also ‘Tseli i real’nost’, in B.E. Nol’de, Dalekoe i blizkoe (Sovremennye zapiski, Paris, 1930) p. 82: in their war aims, “more mature countries spoke of abstract goals, which were more flexible; countries with a less advanced political school advanced more concrete goals.” 30 Mikhailovskii, supra note 18, 1: pp. 72, 73, 155. 31 Contrast this to the conduct of Paul Miliukov, whose commitment to international law led him to protest the conduct of the Russian Army in Galicia, even when members of his own party cautioned that wartime was not the proper time to criticize the Russian Army: O.V. Volobuev et al. (eds.), S’ezdy i konferentsii konstitutsionno-demokraticheskoi partii, 1915–1917 (rosspen, Moscow, 2000) pp. 95, 176, 195; for Tyrkova’s condemnation of Miliukov’s reference to the Hague Conventions (“it is inappropriate at a moment when … all Galicia is awash in Russian blood to make academic condemnations” of the Russian army), see p. 104. 32 In early 1915, the Viceroy for the Caucasus proposed expelling Muslims who were Russian subjects from the Kars and Batum regions. Everyone in the Council of Ministers, except the Ministers of Justice and Foreign Affairs, supported this proposal. Shchegolitov and Sazanov, citing principles of international law, succeeded in blocking this policy: see Lohr, supra note 26, pp. 151, 152 and rgia, f. 1276 (Sovet ministrov), op. 19, d. 1061. Nolde drafted Sazonov’s memorandum to the Council of Ministers on this issue (avpri, f. 151, op. 482 [Politarkhiv], d. 4326, ll. 5, 6) and also drafted a later critique of the Viceroy’s proposal to “expel” the Muslims rather than deprive them of citizenship (avpri, f. 156, op. 457 [Iuriskonsul’tskaia chast’], d. 129, ll. 1, 2).

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i­ssued by Grand Duke Nikolai Nikolaevich, promising to unite all of Poland under the scepter of the Russian tsar and to introduce reforms there.33 Soon afterward, three conservative ministers – Minister of Justice Ivan Grigor’evich Shcheglovitov, Minister of Internal Affairs Nikolai Alekseevich Maklakov and acting Minister of Education Baron Taube – submitted a secret report to Nicholas ii opposing any change in policy toward the Polish question.34 The divisions within the Government prevented any concrete action on the Polish question. Later, in April 1916, Sazonov submitted a report to Nicholas ii urging the implementation of the long-promised reforms. In fact, Sazonov’s program (Osnovnye postanovleniia ustava o gosudarstvennom ustroistve tsarstva pol’skogo) was drafted by Nolde. Boris Vladimorovich Stürmer, the chairman of the Council of Ministers, submitted a separate report, criticizing all

33

34

Pace A. Iu. Bakhturina, ‘Vozzvanie k poliakam 1 avgusta 1914 g. i ego avtory’, No. 8 Voprosy istorii, (1998) pp. 132–136, claiming the authors were Nikolai Ianushkevich, Grand Duke Nikolai Nikolaevich and Sazonov “acting individually, but not as head of his ministry” (p.  135). The appeal was drafted in mid and then presented to Ianushkevich and the Grand Duke. Nolde writes explicitly that the author of the appeal was Trubetskoi: Baron B.E. Nol’de, ‘Kniaz’ Grigorii Nikolaevich Trubetskoi’, in Nol’de, supra note 29, pp. 226–232. Elsewhere, Nolde describes Trubetskoi as the “true author” of this declaration: ‘Les desseins politiques de la Russie pendant la Grande Guerre, ii’, 8:2 Le Monde slave (ns) (January 1931) p. 165. Vladimir Emmanuilovich Grabar’, who was with Nolde in mid at the time the appeal was drafted (Nolde had summoned him to serve as mid’s adviser on issues of international law at Stavka), saw Trubetskoi as he was heading off to a lunch to draft the appeal: Grabar’ diary, entry for 30 July 1914 (Manuscript Division, Tartu University Library, f. 38 [V.E. Grabar’], s. 50, l. 4); see also Mikhailovskii, supra note 18, 1: 57. On Trubetskoi’s overall outlook, see D.C.B. Lieven, Russia and the Origins of the First World War (Palgrave Macmillan, London, 1983) pp. 91–102. For the “minority opinion” of Shcheglovitov, Taube and Maklakov, see N.M. Lapinskii (ed.), Russko-pol’skie otnosheniia v period mirovoi voiny (Moskovskii rabochii, MoscowLeningrad, 1926) pp. 19–23; see also Mikhailovskii, supra note 18, 1: p. 59, and Grabar’ diary, entry for 13 October 1914 (Manuscript Division, Tartu University Library, f. 38 [V.E. Grabar’], s. 50, l. 43 ob.). Taube, who like Nolde had been a student of Martens, had taken to agitating against Nolde. In 1911, he sought to have mid reprimand Nolde for his argument, in part iii, section 2 of his Ocherki gosudarstvennogo prava, supra note 16, that any surrender of Russian territory required the approval of the Duma (I.V. Gessen, V dvukh vekakh: zhizennyi otchet [Arkhiv russkoi revoliutsii 22 (1937)] p. 302). On August 1914 Taube opposed Nolde’s appointment of Grabar’ to Stavka: M.A. Taube diary, entry for 1 August 1914 (rgia, f. 1062 [M.A. Taube], op. 1, d. 5, l. 4). Nolde later wrote a very critical review of Taube’s memoirs: ‘Memuary Baron M.A. Taube’, in Nol’de, supra note 29, pp. 63–70, reviewing Taube, La politique russe d’avant-guerre et la fin de l’empire des tsars (1904–1917). Mémoires du baron M. de Taube (E. Laroux, Paris, 1928).

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points of the Foreign Ministry’s proposal.35 His criticism was a precipitant in Sazonov’s removal. For all his influence within the Foreign Ministry, however, Nolde was particularly vulnerable to conservative and patriotic criticism, not least on account of his family name. The patriotic newspaper Novoe vremia had long criticized mid as “an almost foreign ministry”, publishing lists of Foreign Ministry employees with non-Slavic names. Such attacks came to a crescendo with the wartime “campaign against German influence” [bor’ba s nemetskim zasil’em]. The wartime anti-German program was driven, Eric Lohr observes, by “a broad press campaign and popular movement that gained prominent supporters from a wide range of the political spectrum, from the far Right to moderate liberals”.36 Novoe vremia played a prominent role in this campaign, singling out the “Ministry of Foreign Affairs” for particular excoriation as the “Ministry of Foreign Names”. In this campaign, Nolde was a favourite target.37 While he initially shrugged off the criticism, by 1916 the attacks – and his inability to reply to them – had so irritated Nolde that he asked his aide, Georgii Mikhailovskii, to draft a written protest from mid employees with Russian-sounding names in defence of the loyalty of their colleagues with foreign names. Nolde made this request, only half in jest, “so that society will know that we are not traitors”. (Foreign Minister Sazonov vetoed this proposal, refusing to sanction one segment of his Ministry publicly defending another segment.)38 Nolde came to believe that the “campaign against German influence” contributed in a major way to the “disregard for the principles of law” surrounding Russia’s wartime expropriation of the property of enemy subjects.39 Nolde’s position within the

35

Sazonov’s report and Stürmer’s response are republished in ‘Pol’skii vopros’, in V.P. Semmenikov, Monarkhiia pered krusheniem, 1914–1917: Bumagi Nikolaia ii i drugie dokumenty (giz, Moscow-Leningrad, 1927). Nolde later publicly claimed authorship of this “constitution”: ‘Tseli i real’nost’ v velikoi voine’, in Nol’de, supra note 29, p. 85; Nolde, ‘Les desseins politiques’, supra note 33, pp. 174, 175. 36 Lohr, supra note 26, p. 26. 37 On the “German-baiting” [nemtseedstvo] directed at mid, and Nolde in particular, see Mikhailovskii, supra note 18, 1: pp. 45, 54, 55, 67–73 [nemtseedstvo], 107, 155, 158, 166; Grabar’ diary, entries for 13 and 14 October 1914, regarding editorials in Novoe vremia directed against “our legal consultant of German extraction” (Manuscript Division, Tartu University Library, f. 38 [V.E. Grabar’], s. 50, ll. 43 ob., 44 ob.); and letter from Nolde to Grabar’, 19 October 1914 (Manuscript Division, Tartu University Library, f. 38 [V.E. Grabar’], p. 314, l. 4). 38 Mikhailovskii, supra note 18, vol. 1, p. 166. 39 Nolde, supra note 21, pp. 71, 72; on the anti-German measures in the sphere of commerce and agriculture, see Lohr, supra note 26, chapters. 3, 4.

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Foreign Ministry, however, remained secure, even after Sazonov’s removal. In 1916 he was promoted to head the Second (Consular) Department within mid. With the Revolution in February 1917, Nolde faced the challenge of moving from “administration” to participating in the give-and-take of politics. During the first days of the February Revolution, he and Vladimir Dmitrievich Nabokov together drafted the abdication manifesto for Grand Duke Mikhail Aleksandrovich, which formally transferred “full power” to the Provisional Government.40 In composing this document, Nolde and Nabokov insisted that this legitimacy of the new Government derived not from the Revolution itself or from needs of state, but from a clear thread of legal continuity from the previous tsar. From February to April 1917, Nolde reached the apogee of his career in mid, serving as vice-minister in the period when Pavel Nikolaevich Miliukov served as foreign minister. Nolde ended his official career in mid in April 1917, when in the aftermath of the April Crisis he resigned together with his superior Miliukov. Notwithstanding his proclaimed commitment to “living reality”, he showed a marked impatience with how most Russians understood the Revolution. Writing in early May 1917 to Konstantin Nikolaevich Gul’kevich, a colleague from the Ministry serving in Norway, Nolde observed that now things are occurring that are hard to grasp. While the majority immediately greeted the revolution with elation, soon afterwards it became a mess. Our compatriots evinced a complete distaste for their military fate and an insistent desire to acquire someone else’s property. Nolde then noted the irony: in order to keep the Army fighting, the Government during the April Crisis had been forced to renounce its very own War aims. Nolde, who in general shared Miliukov’s views on Russia’s War aims, noted that “it seems paradoxical, but the situation is this: we can wage war only if we renounce our reasons for waging war”.41 While Nolde resigned from the Foreign Ministry, he continued serving in an administrative capacity for the Provisional Government on both the Juridical Council and the Commission for Drafting Legislation for Elections to the Constituent Assembly. However, from February through October 1917 Nolde also came to play a new – and short-lived – role as a participant in debates within the ­Constitutional 40 41

V. Nabokov, ‘Vremennoe Pravitel’stvo’, 1 Arkhiv russkoi revoliutsii (1921) pp. 17–22; B. Nol’de, ‘V.D. Nabokov v 1917 g.’, in 7 Arkhiv russkoi revoliutsii (1922) pp. 6–8. B. Nol’de to K.N. Gul’kevich, 7 May (20 May ns) 1917 (Bakhmeteff Archive, Columbia University/Gul’kevich Collection/box 1).

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Democratic Party. He had formally joined the Party only during the War, but immediately took a place in the Party’s Central Committee. In his active life with the Constitutional Democrats, from 1916 through 1920, he showed a marked impatience for the messiness of Party life, preferring purity of position to the compromises necessary for Party unity. Even before the collapse of imperial Russia, Nolde had thought a great deal about the origins and nature of imperial rule. He celebrated the system of informal federalism that had prevailed down to the early 19th century. He had welcomed the formulation introduced by the 1906 Fundamental Laws that the Russian state was “one and indivisible”, not for what it seemed to say explicitly, but because he interpreted it as a limitation on monarchic rule. His 1911 study of Russian state law was at pains to show that the statement “one and indivisible” did not imply that imperial rule had to be identical throughout the Empire. Here he cited the model of England.42 Nolde’s theoretical ruminations took on practical significance with the implosion of this preexisting imperial structure. After February 1917, Russia was no longer a formal empire – how could it be, without an emperor? Until the convocation of the Constituent Assembly, it could not proclaim itself a federal republic. The sole thread of continuity was the state. (The Provisional Government’s full title was in fact “The Provisional Government of the Russian State”.)43 Nolde now had to think through how nationalities existed in a state that was no longer formally an empire but also not (yet?) a federal republic. Over the course of 1917, Nolde would influence the nationality policy of both the Provisional Government (in his capacity as member of its Judicial Council) and the Constitutional Democratic Party (in his capacity as member of its Central Committee). The author who in 1911 had sung the praises of self-­ administration for the borderlands in the 17th, 18th and early 19th centuries now staunchly opposed any federalist solution to the nationalities question during the Russian Revolution. As member of the Juridical Council, for instance, he opposed the Ukrainian Rada’s draft proposal for a Ukrainian General Secretariat and drew up guidelines that more narrowly circumscribed Ukrainian autonomy.44

42 43 44

See below for a detailed treatment of Nolde’s analysis of this form of federalism in Ocherki russkogo gosudarstvennogo prava (1911), supra note 16. On this important point, see W.G. Rosenberg, ‘Social Mediation and State Construction(s) in Revolutionary Russia’, 19:2 Social History (1994) pp. 173, 174. ‘The Temporary Instructions of the Provisional Government to the General Secretariat’ (4 August 1917), in R.P. Browder and A.F. Kerensky (eds.), 1 The Russian Provisional Government: Documents, 3 vols. (Stanford University Press, Stanford, CA, 1961) pp. 396, 397.

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In the debates within the Constitutional Democratic Party during these months, Nolde fought against the establishment of a “territorial solution” to the national question, meaning he opposed a federal model for the Russian state based upon ethnographically defined administrative units. Nolde’s most extensive thoughts on the national question are contained in a report he gave in late July 1917 to the Ninth Congress of the Constitutional Democratic Party. Nolde’s presentation grew out of a paper that he had been composing earlier in 1917 on “nationality and law in the legislation of the revolutionary period”.45 In this presentation, he opposed the principle of territorial federalism and proposed instead a program for “individual nationality”. As a result of this presentation, the Constitutional Democratic Party revised its Party programme, striking out its previous support for territorial autonomy and adopting Nolde’s model of individual nationality expressed instead through cultural organizations. The Party’s policy toward the territorial autonomy of Ukraine was retained as an exception.46 In his presentation to the Party congress, Nolde observed that there were two possible solutions to the “national question”. The first model was the territorial solution: the state grants a specific territory to a given nationality and recognizes “a national hegemony of a sort” in that territory. The Constitutional Democratic Party, Nolde observed with regret, had applied precisely this solution in its policy on the Ukrainian question. Nolde then moved to a criticism of the “territorial solution”. First, he observed characteristically, “such a division does not have a firm historical basis”. Economic considerations also weighed against dividing the Empire into federal units. But Nolde’s primary criticism was that the territorial solution risked establishing “national imperialisms”. Granting titular nationality preeminence in a particular region risked subjecting the minority nationalities in that region to the dominance of the titular nationality. Nolde declared that “we ought to carry through the fundamental principle of equality in resolving the national question in Russia: in the new Russia there should be neither centralized nor decentralized national oppression”.47 Speaking to an electoral assembly in Riazan’ province in August 45

B. Nol’de, ‘Natsional’nost’ i pravo v zakonodatel’stve revoliutsionnogo vremeni’ [1917] (Otdel rukopisei Rossiiskoi natsional’noi biblioteki, St. Petersburg [or rnb], f. 529 [Boris Emmanuilevich Nol’de], ed. khr. 13). 46 Nolde’s presentation and party debate over it is found in O.V. Volobuev et al., supra note 31, pp. 675–683. Nolde’s presentation was published as a separate pamphlet in 1917: Baron B.E. Nol’de, Natsional’nyi vopros v Rossii (T-vo A.S. Suvorina – “Novoe Vremia”: Izdanie partii narodnoi svobody, Petrograd, 1917). 47 Nol’de, Natsional’nyi vopros, ibid., pp. 2, 3. Nolde later noted that the extensive autonomy granted the western borderlands throughout the 17th and 18th centuries had been

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1917, he elaborated on his scepticism of the federal model. A federal model, given the extent of intermingling of nationalities and their numerical inequality, would produce only chaos. “As a member of the Provisional Government’s Judicial Council”, Nolde lectured, “I had to deal first with the Finns, and then with the Ukrainians. I recall these negotiations with true horror.” He found the pettiness of the discussions over dividing power between the state and its component parts disheartening. The end result of federalism, he claimed, “would be to transform the entire Russian state order into a system of endless and sterile haggling between the center and the periphery over the division of authority”.48 Here we see the irony of Nolde’s claim to speak on behalf of “living reality”: he criticized precisely the type of give-and-take and elaboration of detail – “haggling” – that is necessary in real political dialogue. Clearly, he felt more comfortable speaking with the authoritative voice of imperial administration, if not of the autocracy itself. “Process” for him seems to have meant administration from above – to be sure, impartial administration from above, in his eyes – rather than negotiation with other interested parties. Nolde, as we will see below, was sceptical of abstract models and universal solutions. In his presentation to the Constitutional Democratic congress in July 1917, he insisted that “one must take account of the diversity of forms which national aspirations might take … The territory of Russia is so great, the cultural level so diverse, that we can hardly manage the question of languages with one general formula on the full and equal recognition of all of them.”49 On the question of language, Nolde held to the principle enunciated in Article 3 of the 1906 Fundamental Laws, and that he had repeated in all his wartime proposals for reforms in Poland. Nolde – no Russian nationalist but the descendant of a distinguished Baltic German noble clan – insisted that while national languages may be permitted, the language of state must remain Russian, as it was “the only possible language of communication among various n ­ ationalities”.

“­founded on the hegemony of the privileged minorities of these provinces (Germans, Poles, Swedes), a hegemony recognized and consecrated by the central government”: Baron B. Nolde, L’Ancien régime et la révolution russes, 3rd ed. (Librarie Armand Colin, Paris, 1948; original, 1928) pp. 56, 57. 48 Baron B.E. Nol’de, Uchreditel’noe sobranie i ego zadachi: Rech’ v sobranii grazhdan Rannenburga, Riazanskoi gubernii, 14 avgusta 1917 (“Ogni”, Petrograd, 1917) pp. 24, 25. For Nolde’s views on the Finnish issue, see his comments at meeting no. 120 of the Provisional Government’s Judicial Council, 17 October 1917 (minutes published in ‘Iz istorii natsional’noi politiki Vremennogo pravitel’stva’, No. 30 Krasnyi arkhiv (1928) pp. 62–71, Nolde’s comments on pp. 66, 68–70). 49 Nol’de, supra note 46, p. 3.

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He argued that “the goal should be the recognition of all national languages, rather than to grant one language a dominant position”.50 This observation led Nolde to his preferred solution to the nationality question: “[T]he system of national languages ought to be constructed not on the territorial principle, but on the principle of the individual – on the right of each person to use his own language with the authorities.” The “healthy and correct path” for settling the national question, counseled Nolde, was for any group that recognizes itself as a nationality to be granted the right to form specific national unions for achieving its goals of cultural betterment.51 This formula obviously bears some similarity to the Austro-Marxist plans for the nationality question. Tellingly, however, Nolde had a different model in mind, one growing from historical precedent rather than abstract speculation. As his model for structuring the new political order, Nolde looked to the examples of religious bodies. He had first noted the promise of certain religious models in his 1911 Ocherki.52 In 1917, he proposed the 1836 charter for the Armenian Gregorian Church as an “exemplary model” for resolving the national question on the grounds of individual, rather than territorial, rights. This charter was founded on the principle that all Armenians, regardless of where they lived, entered into a national religious community intended to satisfy their cultural needs. Nolde then observed that the Provisional Government had endorsed precisely this principle in respect to a different nationality problem, that of Kartevel nationality and its relation to the Autocephalitic Georgian Orthodox Church.53 Nolde advanced these models, however, as analogies. It is instructive that he failed to articulate how precisely this model would operate in practice for issues of nationality and citizenship. Nolde believed that addressing the nationality question was “a very complex task”. Characteristically, he proclaimed that “a simple formal declaration” alone would be incapable of solving it. The model of religious communities was appealing to Nolde also because it permitted flexibility regarding each

50 51

Ibid., pp. 4, 5. Ibid., pp. 6, 8; in his first draft on this question in 1917, Nolde opened by contrasting the territorial and individual solutions to the national question (supra note 45). 52 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 267, regarding the Gaikans people of the Armenian Gregorian faith: regardless of where a member of the ethnicity lives, he or she enjoys a form of religious self-administration. On how civic categories were intertwined with confessional administration, see P. Werth, ‘In the State’s Embrace’, 7:3 Kritika: Explorations in Russian and Eurasian History (2006). 53 Nol’de, supra note 46, p. 6. The kernel of this proposal is found in “Natsional’nost’ i pravo” where he proposes the Georgian Autocephilitic Church as a model (supra note 45, l. 3).

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­particular case.54 Each national group would be able “to draw upon the resources for national organization that it had at hand”. He then cited a curious precedent. The “national organization for Jews”, he observed, “can draw upon the age-old Jewish communal order, which to a greater or lesser extent has been adapted to modern life”. Indeed, Nolde noted, the German occupation authorities in Poland in 1916 had employed the Jewish community’s pre-­ existing communal framework for a structure providing a network of councils, a democratic system of civic organs and public finances.55 Despite the official optimism of Nolde’s presentation, he in fact was sceptical that his efforts would bear any fruit. At the time he made his presentation, his former aide, Mikhailovskii, asked Nolde whether he, Nolde, really believed that his proposal would satisfy any nationality other than the Jews. Nolde replied: In Russia [v Rossii] the nationality question will be decided either by the non-Russians [inorodtsy] cutting our throats, or us cutting theirs. A federation is a utopia. Once the revolutionary wave recedes, Russia will again become a unifed state, so long as it does not break apart into its component parts and cease being Russia. The best that the nationalities can expect is a suitable place in the future Russia: [we would show] respect for their language, their religion, their historical memory, and so on. These nationalities cannot enjoy the type of autonomy that Finland has—that would lead to the dismemberment of Russia. Turning to specifics, Nolde claimed that there could be no compromise with Ukraine. “Either Ukraine will devour Great Russia, or we will uproot Ukrainian separatism.”56 (Later, in 1921, he confessed: “I profess the good, old Russian state tradition of dislike for the Poles.”)57 In his reply to Mikhailovskii, Nolde 54 Nol’de, supra note 46, p. 8. Nolde noted in “Natsional’nost’ i pravo” that the Russian imperial state had pursued different approaches toward the various religious organizations that it had encountered in the Caucasus (supra note 45, ll. 3, 4). 55 Nol’de, supra note 46, pp. 6, 7. The Warsaw Governor-General’s decree of 16 November 1916 established these guidelines for the Jewish community in German-occupied Poland. Nolde’s legal advisory section in mid maintained a set of files on German legislation in occupied Poland: avpri, f. 156, op. 457 (Iuriskonsul’tskaia chast’), dd. 182 (“Germanskie ukazy v tsarstve Pol’skom”), 310 (“Ob”iavlenie Pol’shi korolevstvom”). 56 Mikhailovskii, supra note 18, 1: pp. 413, 414. Regarding Finnish claims for independence, Nolde asserted in October 1917 that “conflict was inevitable” (“Iz istorii,” supra n. 48, p. 69). 57 Boris Nol’de to Mark Vishniak, letter, 21 August 1921 (Vishniak Mss., Manuscript Department, Courtesy the Lilly Library, Indiana University, Bloomington, IN) (“ispoveduiu dobruiu staruiu russkuiu gosudarstvennuiu traditsiiu neliubvi k poliakam”).

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expressed how he conceived of “Russia”: for him it was preeminently “a unified state”, albeit one with broad cultural autonomy. In his final work, Nolde defined this ideal as “Greater Russia”, a term he derived by analogy from John Robert Seeley’s influential liberal-imperialist concept of “Greater Britain”.58 It was Nolde’s commitment to a “Greater Russia”, as well as his horror at dealing with the “haggling” of federalist delegates, that led him to this shocking “ktokogo” formulation. One might indeed wonder about the purported “liberalism” of intellectuals schooled in the imperial bureaucracy and, even more to the point, consciously valorizing its administrative ethos.

...

Soon afterwards the Bolsheviks seized power, they arrested Nolde, together with the other members of the Committee on Elections to the Constituent Assembly, releasing him after a week’s imprisonment. Until 1919 he remained in Petrograd, lecturing at Petrograd University – to six students – and at the Naval Academy. He found it difficult to live in “Sovdepiia”. Paying bribes totalling nearly 40 thousand rubles, he obtained an illegal passport and secured guides across the border and left Russia for good.59 In emigration, Nolde settled in Paris. At first, he played an active role in discussions within the Constitutional Democratic Party about its future course of action. To his Party colleagues he proclaimed that “not one of us has ceased to be a Russian citizen [russkim grazhdaninom] or lost the right to think and worry about the fate of our homeland”.60 Yet at the same time he admitted that “a page of history has been turned and the old Russia … is no more. I say ‘old Russia’ not in any derogatory or partisan sense, but mean that Russia which we knew and loved and in which each of us had a definite place.”61

58

59 60

61

B. Nolde, La formation de l’empire russe: Études, notes, et documents, 2 vols. (Institut d’études slaves, Paris, 1952–1953) pp. xi–xii. Nolde explicitly invokes Seeley, and in this French publication employs the term “Greater Russia” in English. Seeley had coined the concept of “Greater Britain” in The Expansion of England (MacMillan, London, 1883). From at least 1906 Nolde had known of Seeley’s classic work. Nol’de to Miliukov, 18 July 1919 (Bakhmeteff Archive, Columbia University/Miliukov Collection/box 1/Typescript Diary/626–27). Protocol of the meeting of the Assembly of the Constitutional Democratic Central Committee members located in emigration, 10 May 1921 (Protokoly zagranichnykh grupp konstatutsionno-­demokraticheskoi partii, vol. 4, Mai 1920-iiun’ 1921 g. [Progress-Akademiia, Moscow, 1996] p. 343). Nol’de to Gul’kevich, 31 January 1920 (Gosudarstvennyi arkhiv Rossiiskoi federatsii, Moscow [garf], f. 6094 (lichnyi fond Konstantina Nikolaevicha Gul’kevicha), op. 1, d. 94, l. 2).

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In emigration, just as in “old Russia”, Nolde found his “definite place” in employing his legal expertise rather than in engaging in politics. After early 1921 he drifted farther and farther away from the Constitutional Democratic Party. Instead, he became increasingly involved in several émigré and non-­ governmental bodies. He maintained a private law practice, serving the Russian émigré community. He taught international law at several institutions. He was a member of the Central Juridical Commission for Studying the Status of Russian and Armenian Émigrés, and vice-president of the Russian Red Cross Society in emigration. He also continued his scholarly activity, publishing an impressive range of articles, memoirs and monographs. His émigré career was crowned, just before his death, by his election as president of the Institute of International Law.62 In the end, Nolde did in fact contribute to the elaboration of a model for “individual nationality” – but it was one not for the Russian Empire, but for individual Russians in emigration. He served, together with Jacques Rubinstein, on the Advisory Committee of Private Organizations, a nongovernmental group attached to High Commissioner for Refugees Fridtjof Nansen. This body, and Nolde and Rubinstein in particular, contributed key portions to the final text of the League of Nations’ Convention Relating to the International Status of Refugees (28 October 1933).63 Committed to upholding the best ideals of “ancien régime” Russia, Nolde from 1919 until his death in 1948 remained a person of “individual nationality” par excellence: a nansenist, a bearer of the Nansen passport.64 There are very good reasons, of course, why Nolde joined the Constitutional Democratic Party and collaborated actively with it. Yet his involvement in Party politics was only one face of a more expansive political outlook. At times, this outlook, deeply imbued with historicism and a commitment to evolutionary and organic development, clashed with the program of the Constitutional Democratic Party. David McDonald has suggested that one lesson Nolde hoped to communicate in an influential article published in the aftermath of the 1905 62 63

64

See Makarov’s appreciative obituary in the Institute’s official journal (supra note 1). For files of this Committee, see garf, f. 6094 (personal collection of Konstantin Nikolaevich Gul’kevich), op. 1, d. 11. On the Committee, and Nolde’s and Rubinstein’s catalytic role, see C. Klein-Gousseff, Immigrés russes en France (1900–1950). Contribution à l’histoire sociale des réfugiés, 2 vols. (doctoral thesis, ehess, 1996) and R.J. Beck, ‘Britain and the 1933 Refugee Convention: National or State Sovereignty?’, 11:4 International Journal of Refugee Law (1999) pp. 606–609. See Vishniak, ‘B.E. Nol’de’, supra note 1. On the limits of this Nansen model in an age of nation-states, see H. Arendt, Origins of Totalitarianism (Harvest Books, New York, 1973) ch. 9.

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Revolution (‘England and Its Autonomous Colonies’) was that “responsible government did not represent the victory of one side over the other – as Constitutional Democrats had sought in the Duma – but rather an accommodation that benefited both the state and its subjects”.65 Even for the period he was a member of the Party, Nolde was critical of its tendency toward doctrinal purity at the expense of “realism”. In late summer 1917, at an informal lunch together with Georgii Mikhailovskii, Foreign Minister Mikhail Ivanovich Tereshchenko and Vasilii Vital’evich Shul’gin, Nolde praised the Constitutional Democratic Party as the salt of the earth and the flower of the Russian intelligentsia. For all that, he still found it “somewhat thick-headed in practical matters” [prakticheski glupovata].66 Nolde’s ambivalent relationship with the Constitutional Democrats until 1915–1916, and his later conduct in 1917, derived in large part from his overall worldview. He was not simply a “moderate”, a “right Constitutional Democrat”. McDonald, in his treatment of Nolde, stresses his “positivism” – a “rejection of the transcendent metaphysical imperatives as motors for historical change and legal change, in favor of contingent and variable conditions”.67 A current that runs through Nolde’s work is the sterility of a priori principles and the gulf that invariably opens between actors’ intent and the achieved historical result. Policies, believed Nolde, emerge ad hoc, without any overarching model. Such policies gain conceptual coherence only as an ex post facto justification. Indeed, one of his favourite authors, John Robert Seeley, had famously written that Britain had “conquered and peopled half the world in a fit of absence of mind”.68 Writing in 1917, Nolde observed that the Provisional Government’s revolutionary legislation, for instance, “follows no established system, but responds to the needs of the moment … It is not the embodiment of any overarching program … It grows out of practical life and reveals, therefore, directly and clearly, the shifting and flowing reality that is hidden beneath legal forms.”69 But even before the Revolution, asserted Nolde, nearly all of imperial 65

‘Angliia i ee avtonomnye kolonii’, Vestnik evropy, no. 9 (1906) pp. 5–67; David McDonald discusses this article in “Whig History with a Russian Accent” (unpublished paper), p. 24 and passim. 66 Mikhailovskii, supra note 18, 1: p. 414. In emigration, he referred to his “Kadet colleagues” as “endlessly naive” (Boris Nol’de to Mark Vishniak, letter, 14 December 1927 [Vishniak Mss., Manuscript Department, Courtesy the Lilly Library, Indiana University, Bloomington, IN]). 67 McDonald, supra note 65, pp. 6–8, 23. 68 Seeley, supra note 58, pp. 12, 13. 69 Nol’de, supra note 45, l. 1. In the discussions within the Provisional Government’s Judicial Council concerning Finnish demands for independence, Nolde held that “in attempting

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Russia’s major foreign policy programs and wartime policies had also emerged ad hoc. “The Franco-Russian Alliance”, he maintained, “was not the result of a previously thought out and then consciously prosecuted program. On the contrary, it was prepared and grew, as it were, organically, by means of gradual solidification of numerous conversations about common interest into the formula of treaties.”70 The slide to economic warfare during the World War similarly “took place not through the logical development of legal doctrines, but purely under the pressure of events … Russian measures of economic war were dictated by circumstances; they responded to the necessities of this or that particular moment, in order that the struggle against the enemy might be carried on successfully.”71 Most especially, Russia’s war aims in World War i – and its policy toward Poland in particular – emerged from the press of events. Nolde’s portrayal, however, failed to acknowledge those pre-War ideological and political tendencies that had prefigured this policy – tendencies that he himself noted in other works.72 Nevertheless, Nolde asserted that it “was not the goal of a struggle with Germany that led us to war, but the war which forced us to find a goal”. He continued: “The new goal did not give birth to a new fact, but a new fact gave birth to a new goal.” Such a conclusion “might seem to be a historical paradox, running contrary to all laws of sociology, but it is nevertheless historically indisputable”. Regarding Polish policy he repeated, two pages later, that “it was not the aims that brought forth facts, but facts that gave rise to aims”.73 He concluded: “History is not a parade, in which the masses move where their solicitous and wise leaders direct them. In history’s eternal chaos the masses, once they have been set into motion – or often, once they are already on their

to solve such difficult political questions, such as the Finnish one, absolute viewpoints are entirely useless” (“Iz istorii”, supra note 48, p. 69). 70 B. Nol’de, ‘Politicheskaia sistema Rossii nakanune velikoi voiny’, in Nol’de, supra note 29, p. 51. 71 Nolde, supra note 24, p. 9; similarly, pp. 1, 73. Nolde entirely overlooked the pre-war currents that underlay this policy: on these, see Lohr, supra note 26, chapter 1. 72 Foreign Minister Sazonov and his aide Grigorii Trubetskoi had been pressing to revise policy on Poland since at least late 1913, as Nolde himself observes elsewhere (Baron B.E. Nol’de, ‘Kniaz’ Grigorii Nikolaevich Trubetskoi’, in Pamiati kn. Gr. N. Trubetskogo: Sbornik statei, foreward by P. Struve (ed.) (Paris, 1930); also Baron B. Nolde, ‘Les desseins politiques’, supra note 33, pp.165, 166). On the pre-war currents that determined wartime policy toward Poland, see R. Bobroff, ‘Devolution in Wartime: Sergei D. Sazonov and the Future of Poland, 1910–1916’, 23:3 The International History Review (September, 2000) pp. 505–528. 73 Boris Nol’de, ‘Tseli i real’nost’ v velikoi voine’, in Nolde, supra note 29, pp. 83, 85.

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way – begin themselves to determine where they should go.”74 Such views made Nolde sceptical of the claims of any political party to manage history – a tendency present as much in the Constitutional Democratic Party as in the socialist ones. Nolde believed that experience in the actual practice of administration was an essential attribute for making political decisions. He articulated an overarching vision of the Russian political scene in which his own administrative activity was a key value. To the extent that Nolde was a positivist, it was a positivism grounded in the practice of administration and application of law in cases of Realpolitik. Nolde’s pragmatic engagement came within the centre of state power. This experience distinguished him from those “conservative liberals” and positivists whose experience was in jurisprudence or the zemstvo movement. On account of this life experience, Nolde before and during the Revolution worked to find areas of accommodation with the existing state order. He demonstrated a profound awareness of the Russian Empire as a complex, specifically imperial order. If it was flawed, the benefits of pursuing reform must, he believed, be weighed against the dangers of change. Given his hostility to “a priori theoretical constructions”, Nolde necessarily stressed the virtue of complex historical constructions that had emerged over time, through a system of pragmatic trial and error. The British Empire, which Nolde praised as an example of mankind’s political genius, emerged in just such a way, rather than from some abstract model of ruling.75 For Russia, he criticized the tendency of constitutional reformers to substitute “a very simplified scheme” for the “the indefinitely [sic] great and real variety of political forms and political institutions”.76 Nolde praised Grigorii Trubetskoi for understanding what many other liberals failed to realize: that “the [Russian state] apparatus was complex, it offered no room for improvisation, it was stronger than any individual attempts to change it, and it had traditions and without these traditions it could not survive”.77 For the same reasons he valued his friend Nabokov. Nabokov, like Nolde, was not interested in “some enticing scheme of the revolution. From predecessors who had been state servitors” – again, like Nolde – “he had inherited a concrete 74

Ibid., p. 86; Nolde so liked this formulation that he also concluded Les desseins politiques, supra note 33, p. 192, with it. 75 Nol’de, ‘Angliia’ supra note 65, pp. 6, 8. 76 B.E. Nol’de, “The Origin and Nature of Russian Representative Institutions” (draft, in English) (or rnb, f. 529 [Baron B.E. Nol’de], ed. khr. 36) l. 27. Writing in 1911, Nolde observed that the Fundamental Laws imposed “words derived from the political lexicon of the French Revolution” upon a Russian imperial order “that was created over the space of several centuries”: Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 227. 77 Nol’de, Trubetskoi, pp. 226, 227.

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knowledge of the Russian state machine. He fought for its reform from the beginning of the century – but he knew that one must not block its activity under the pretext of reform, and that its broken parts had to be replaced immediately by new ones.”78 To be sure, Nolde was no reactionary defender of the status quo. As one might expect of an admirer of England, he opposed the arbitrary power of the autocrat and hoped for a gradual evolution to a more established rule of law. Such hopes, however, were predicated on a highly selective reading of Russian history. In his 1928 L’Ancien régime et la révolution russes – a title crafted to evoke Alexis de Tocqueville’s classic work on the French old regime and its Revolution – Nolde identified “the three active political forces on the eve of the revolution”: the monarch, the bureaucracy and the “pays légal” (the quotation marks are Nolde’s) that was represented by the Duma. Nolde believed that with Emperor Alexander ii, Russia’s Government had become a bureaucratic monarchy, with the monarch as the chief functionary of state. Although individual monarchs had attempted to interfere with the functioning of this system, the “organization of the empire on the eve of war and revolution was fundamentally bureaucratic”.79 Early in 1916, over dinner, he and his guests discussed the negative impact Rasputin was having on Russian Government. His colleague Andrei Mandel’shtam observed that the corruption of society’s morals was inevitable in any monarchy, even the English one. Nolde disagreed. He pointed to the fact that throughout Europe over the course of the 19th century, the people had increased its demands on the monarchy and, as a result, what had been accepted without question in the 18th century had become unacceptable in the 19th.80 The Russian bureaucratic system worked very well, observed Nolde – so long as the Emperor operated within the “firm boundaries” of the system. When the sovereign acted in a “meta-bureaucratic” manner, however, the bureaucracy became “petty and powerless”. In Nolde’s view, during the War Nicholas ii had ceased to play his proper role as “supreme bureaucrat” and instead had begun to act independently of the bureaucracy.81 78 Nol’de, supra note 40, p. 141. 79 Nolde, L’Ancien regime, supra note 47, pp. 95–98, quotes at pp. 95, 98. For the desire among Russian statesmen to “routinize” the actions of the monarch, see D.M. McDonald, United Government and Foreign Policy in Russia, 1900–1914 (Harvard University Press, Cambridge, Mass., 1992); on Nicholas ii’s opposition to his own government and his idealization of the autocratic mode of ruling, see R. Wortman, Scenarios of Power: Myth and Ceremony in the Russian Monarchy, vol. 2 (Princeton University Press, Princeton, NJ, 2000). 80 Mikhailovskii, supra note 18, vol. 1, pp. 149, 150. 81 Nolde, L’Ancien regime, supra note 47, pp. 98, 99; Nolde, supra note 29, p. 126.

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But if Nolde was so committed to organic reform, how could he accept the changes introduced by the 1905 Revolution? In an article written in English and composed circa 1914–1915, Nolde analyzed “the origin and nature of Russian representative institutions”. He traced the historical background of the Russian state order and the various reform programmes throughout the 18th and 19th century. He then moved to a discussion of the events of 1905. In the struggle for reform, [t]he reformatory program got allies in the centre of the same bureaucracy whose government was proclaimed to be the origin of every evil. These auxiliary forces found in the government itself have done at least as much as the leaders of the movement of 1904–5 have done. Trained as they were in the art of bargain (and perfectly aware of the working mechanism of the Russian state) they [“the auxiliary forces found in the government itself”—P.H.] emerged victorious by means of a political compact we call the Russian “Fundamental Laws of the State” of April 23, 1906.82 Nolde, to be sure, noted that within the bureaucracy there was a “contest between pure legitimism and officials of progressive tendencies, and was won by the latter”. But the fruits of the 1905 Revolution, in Nolde’s telling, derived not so much from the “all-nation struggle” as from the pragmatism of what he termed the “progressive bureaucracy”.83 Clearly, his father’s role in the debates over the Fundamental Laws, and his own experience at the centre of mid, the Government’s most progressive ministry, had shaped his reading of these events. Nolde retained his faith in organic evolution while accepting the fruits of the 1905–1906 period by asserting that, in fact, no revolution had taken place. Nolde argued that [f]rom the legal point of view, there was no revolution in Russia in 1­ 905–6. The thread of legal development was not torn: every act of the new legislation is unexceptionable from the point of view of the old legislation. Certainly there was a great deal of political trouble during the years of the reform and the historian might easily bring the evidence of the immediate effect on the officially serene legislative activity of the period. But both facts: the uninterrupted consecutiveness [sic] of legal d­ evelopment 82 83

Nol’de, “The Origin and Nature”, supra note 76, ll. 27–29, citation at l. 28. Ibid., l. 32; Nolde refers to the “progressive bureaucracy” at l. 29.

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and the surrounding atmosphere of political troubles must be taken into account if we want to understand the political reform of 1905–6.84 It had not been the October General Strike or even the Liberation Movement that had won the Duma in 1905. Nolde even went so far as to assert that the achievement of the Duma was “the result of historical evolution of the work of Speranskii of 1810”.85 In a similar manner, Nolde presented the reforms of the Petrine period as an extension of earlier trends, rather than a total break.86 It was this very concern for maintaining “the thread of legal development” that animated Nolde when drafting the abdication manifesto for Grand Duke Mikhail Aleksandrovich in February 1917.87 Nolde later came to the conclusion that “the Russian catastrophe” had begun with the Great Retreat of 1915 and the ensuing domestic political crisis.88 As public opinion desperately worked to alert the autocracy to the depth of the crisis, Nicholas ii instead chose to take refuge in command of the Russian Army and to abandon entirely the principles of “bureaucratic monarchy”. His ministers, “faithful to that historical conception of the state”, found themselves in a situation in which “in order to save the monarchy, it was necessary to break the will of the monarch and subordinate him to political reality rather than mysticism”.89 (Here again Nolde emphasizes the constraints of existing “reality”.) But in this struggle, the monarch triumphed over the progressive bureaucracy. His triumph, noted Nolde, in fact represented a defeat. Not only had Nicholas ii separated himself from the people – with whom, Nolde noted, he had never truly been in touch – but he had also distanced himself “from the organized bureaucracy that retained in its hands much force and talent that 84

Ibid., p. 26. Vasilii Maklakov shared this unorthodox view that 1905 did not represent a revolution: V. Maklakov, 3 Vlast’ i obshchestvennost’ na zakate staroi Rossii, 3 vols. (Izd. Zhurnala Illiustrirovannaia Rossiia, Paris, 1936) p. 403. 85 Nol’de, “The Origin and Nature”, supra note 76, l. 34. 86 Nolde, L’Ancien regime, supra note 47, p. 20. Nolde, unsurprisingly, was highly critical of Miliukov’s interpretation of the Petrine period: see B. Nolde, ‘L’Oeuvre historique de P.N. Miljukov’, 21 Revue des études slaves (1944) pp. 145–164 and Nolde to Michael Timofeevich Florinskii, [Paris], 13 June 1936 (Bakhmeteff Archive, Columbia University/Florinskii Collection,/box 3/”Catalogued Correspondence”), referring to P. Miliukov, Gosudarstvennoe khoziaistvo Rossii v pervoi chetverti xviii stoletiia i reforma Petra Velikogo, 2nd ed. (Tip. M.M. Stasiulevicha, St. Petersburg, 1905; original, 1892): “In that book I don’t believe one word or one figure.” 87 Nol’de, supra note 40, pp. 6–8. 88 Nolde, “Nachalo russkoi katastrofy” in Dalekoe i blizkoe, supra note 29, pp. 117–138, here at p. 118. 89 Ibid., pp. 133, 134, 135.

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had been accumulated over the course of time”.90 It was at this moment of unprecedented crisis – when Nicholas ii had himself abandoned the principles of bureaucratic monarchy and thereby made it impossible for Nolde any longer to work within the administration as an “official of progressive t­ endencies” – that Nolde finally entered the Constitutional Democratic Party. Vishniak suggestively observes that it was “reality – the conditions of wartime and Russia’s failure in the world war – that brought Nolde into the Constitutional Democratic Party, into its Central Committee”.91 Nolde had largely accepted the pre-1915 order and opposed revolution as a means to change it. Corresponding in emigration with the Socialist Revolutionary Mark Vishniak, Nolde observed that he by and large concurred with Vishniak’s evaluation of the February Revolution: “But this does not mean”, he continued, “that le régime tzariste (sic.) had really been so bad”.92 It was the collapse of his unrealistic visions of a “bureaucratic monarchy” in the aftermath of the Great Retreat that brought Nolde into the Constitutional Democratic Party. In addition to the monarch and the imperial bureaucracy, Nolde identified a third element in Russian political life after 1905, “the census parliament” representing the “pays légal”.93 Nolde welcomed the constructive role it played in exerting a beneficial influence on the bureaucracy and serving as a useful counterweight to the personal power of the monarch, but he identified two drawbacks with census society. First, public opinion could bring attention to problems such as the crisis following the 1915 Great Retreat, but “it could do nothing to realize these measures itself. There were two forces that held real power to influence affairs: the sovereign and the bureaucracy”.94 At the same time, “the parliament and the parties were young and inexperienced. They were fired by opposition to the autocracy”. They suffered from a proclivity for radicalism and opposition for its own sake.95 As a case in point, Nolde held a lifelong antipathy to how Pavel Miliukov approached politics, at one point terming him a “blockhead” who became distracted by “various schemes” and

90 91

Ibid., pp. 137, 138. Vishniak, ‘B.E. Nol’de’, supra note 1, p. 282; for Nolde’s interpretation of this crisis period – especially the autocracy’s meddling in the “bureaucratic machine” – see Nol’de, supra note 88. 92 B. Nol’de to M. Vishniak, letter, 29 May 1927 (Vishniak Mss., Manuscript Department, Courtesy the Lilly Library, Indiana University, Bloomington, IN). 93 Nolde, L’Ancien regime, supra note 47, pp. 95, 99, 100. 94 Ibid., p. 104. 95 Ibid., p. 100.

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who lacked “basic common sense”.96 Nolde showed far greater sympathy for the efforts of the “progressive bureaucracy”. For instance, when “the bureaucracy”, headed by Stolypin, sought to take steps to overcome the malaise affecting the Russian social order, “the liberal bourgeoisie proposed in opposition an agrarian program that was half-socialist, based on the expropriation of land from non-peasants and on the preservation of the peasant commune”.97 In Nolde’s telling, the experienced and technocratic bureaucracy, balanced between monarch and public, was both the font for effective change and the surest guarantee for its implementation. Moreover, while there were certainly constructive currents within public opinion, there were malevolent ones as well. Here Nolde’s analysis echoes that of Tocqueville, who in Democracy in America had noted the potential in democracy for tyranny and demagogy. One of the principal factors that gave rise to opposition movements among the non-Russian nationalities, Nolde believed, was a policy of Russification. Russification, in his view, was driven in no small part by public opinion – “strictly speaking, Russian public opinion” –, which pressed the Government to abandon the previous system of local autonomies. The obliteration of “the wise old traditions” – Nolde’s term – by which the Russian Empire had ruled its borderlands for centuries “created numerous and energetic opponents” to the Empire’s unity.98 Nolde believed that during the War it was public opinion and the press – in particular the patriotic newspaper Novoe vremia – that played a major role in fomenting the wartime campaign “to combat German influence” [bor’ba s nemetskim zasil’em].99 In October 1914, Nolde wrote to Vladimir Emmanuilovich Grabar’ about discussions within the Council of Ministers to confiscate the property of enemy subjects. The Council of Ministers did not want to take this step, as Russia would suffer from it more than Germany. “But”, he wrote, “the malevolence of Novoe vremia is so great that there are no means by which to prevent measures that, from a practical point of view, are erroneous, since an extraordinary hatred has arisen. [This hatred] is employed to press us to take the most unfavorable 96

Nol’de to Michael Timofeevich Florinskii, [Paris], 13 June 1936 (Bakhmeteff Archive, Columbia University/Florinskii Collection,/box 3/”Catalogued Correspondence”). Nolde’s fuller appreciation of Miliukov is found in ‘L’Oeuvre historique de P.N. Miljukov’, supra, note 86. On Miliukov’s political program, see M.K. Stockdale, Paul Miliukov and the Quest for a Liberal Russia, 1880–1918 (Cornell University Press, Ithaca, 1996). 97 Nolde, L’Ancien regime, supra note 47, pp. 99, 100; in his “Origin and Nature” written ca. 1914, supra note 76, Nolde also asserted that educated society’s radicalism was less effective than the quiet work behind the scenes by the “progressive bureaucracy”. 98 Nolde, L’Ancien régime, supra note 47, p. 94. 99 On the various aspects of this campaign, see Lohr, supra note 26.

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measures.”100 In emigration, Nolde reiterated his view that “public opinion” had largely been responsible for driving the Government to take these steps. Once Sazonov had formulated the demand for the expropriation of German landholding, this slogan “was rapidly taken up by public opinion, especially the conservative section. And at once the problem was so broadened that it covered not only the rights of landowners of enemy nationality, but also the rights of [Russian subjects] of German origin.”101 In Nolde’s telling, then, it was public opinion that had driven the Government from the tried and true mechanisms of ruling a complex and heterogeneous Empire and towards short sighted and destructive nationalist policies.102 Despite his distaste for these policies, Nolde and the Foreign Ministry’s legal advisory section played an active role in the discussions over the anti-German legislation in commerce and agriculture.103 Nolde came to believe that the “campaign against German influence” contributed in a major way to the “disregard for the principles of law” surrounding Russia’s wartime expropriation of the property of enemy subjects.104 By 1914, then, Nolde had developed a worldview that valorized precisely his own pragmatic experience in bureaucratic governance in contrast to abstract theorizing. He did not view himself as a representative of “advanced public opinion” or of any party. His sense of politics and history was defined much more by his state service. Nolde saw himself not a party man, a partiinyi chelovek, but as a statesman, a gosudarstvennyi chelovek. To the extent that one may classify him as a liberal, it was a liberalism that was poorly understood by members of educated society. As Marc Raeff has observed, “there was no real understanding, let alone sympathy, for the position of ‘liberal conservatives or conservative liberals’”.105 100 Nol’de to Grabar’, 19 October 1914 (Manuscript Division, Tartu University Library, f. 38 [V.E. Grabar’], s. 314, ll. 5-5ob.). See also Mikhailovskii, supra note 18, vol. 1, pp. 45, 156. 101 Nolde, supra note 21, p. 104, see also pp. 71, 72. See Lohr’s evaluation of the role of the press and public opinion: supra note 26, p. 26. 102 Nolde’s discussion of the informal system of “federalism” by which the Russian Empire had been ruled for hundreds of years is found in both Ocherki russkogo gosudarstvennogo prava, supra note 16, part iii and L’Ancien regime, supra note 47, part i, chapter 4. 103 The legal advisory section amassed several files on the question of property rights of enemy subjects: avpri, f. 156, op. 457 [Iuriskonsul’tskaia chast’], dd. 11–13, 112, 113, 316. Before the War, Nolde had written the most important work on international private law. 104 Nolde, supra note 21, pp. 71, 72; on the anti-German measures in the sphere of commerce and agriculture, see Lohr, supra note 26, chapters. 3, 4. 105 M. Raeff, ‘Some Reflections on Russian Liberalism’, in Raeff, Political Ideas and Institutions in Imperial Russia (Westview Press, Boulder, CO, 1994) p. 34. Clearly, if one is to classify Nolde as a “liberal,” he hews closest to the pragmatic and law-based liberalism of Struve,

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Raeff’s observations offer a key insight into Nolde’s thought. In correspondence with Mark Vishniak in emigration, Nolde acknowledged that he was known for “conservative” views – but Nolde insisted in placing the term “conservative” in quotation marks.106 For these reasons, I believe Nolde is best understood not as a Constitutional Democrat, or even a Right Constitutional Democrat. He conceived of the Russian Empire as a specifically imperial entity, and this worldview shaped his stand on several issues relating to citizenship. In particular, his analytic study of the functioning of the Russian Empire over time reflects his deeply-held historicist outlook. Nolde’s most extensive treatment of the evolution of the Russian imperial order is found in section iii of Ocherki russkogo gosudarstvennogo prava, his study of various aspects of the 1906 Fundamental Laws.107 His father had been involved in the drafting of the Fundamental Laws, and the younger Nolde had commented on these drafts. Tellingly, Nolde dedicated the 1911 book to his father. The book was composed of three sections. Section i examined Article 87, which permitted the sovereign to pass emergency legislation; section ii treated the place of the Council of Ministers in the Fundamental Laws; and in section  iii, Nolde analyzed the Articles 1 and 2 of the 1906 Fundamental Laws, which proclaimed that “[t]he Russian state is one and indivisible” (Article 1) and that Finland was ruled on the basis of special legislation (Article 2). In this section iii, Nolde pointed out that earlier Russian legislation had not known the formulation about the “unity and indivisibility” of the Russian state.108 Much of the initial draft for the Fundamental Laws derived from a proposal published by the oppositionist Liberation Movement. But it had been Nolde’s father – in his capacity as head of the State Chancery – who had

Maklakov and Kistiakovskii: see A. Walicki, Legal Philosophies of Russian Liberalism (Clarendon Press, Oxford, 1987) pp. 396, 397. 106 B. Nol’de to M. Vishniak, letter, 7 October 1926 (Vishniak Mss., Manuscript Department, Courtesy the Lilly Library, Indiana University, Bloomington, IN); the reference is in relation to Nolde’s offer to review Iakhontov’s Chernye dni for Sovremennye zapiski; this review appeared as Nol’de, supra note 88. 107 Nolde had intended his La formation de l’empire russe (supra note 58) which was published posthumously, to be a historical study of the development of the Russian Empire that would complement the juridical analysis found in his 1911 Ocherki russkogo gosudarstvennogo prava, supra note 16. He complained in 1947 that “no one has hitherto studied the imperial history of Russia in its entirety” (Nolde to Mark Vishniak, letter of 8 July 1947 [Hoover Institution Archive/Mark Visniak Collection/Box 6/Folder “B. Nolde”]; Vishniak quotes this phrase in his obituary supra note 1, p. 283). 108 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 226.

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added to it the reference to the state as “one and indivisible” so as to guarantee the state’s integrity.109 The original source of this Article, Boris Nolde demonstrated in his 1911 study, was to be found in the French Constitution of 1791. In both the French and Russian cases, a new situation called for the introduction of this formulation. Prior to 1789 in France and 1905 in Russia, there had been a total correspondence between state sovereignty and the person of the sovereign. Once authority was no longer united in the body of the sovereign, it became necessary to spell out the extent and nature of the new and abstract political authority. Of course, Nolde notes, the Russian statesmen did not draw their formulation directly from the 1791 French model. Over the course of the 19th century, the phrase had become a common one in European constitutions.110 But the 1906 Fundamental Laws resorted to it not only because it had become customary elsewhere in Europe. Just as the Habsburg Empire had introduced this phrase during its 1849 crisis, Russia adopted it in 1905 as a response to a very real fear for the Empire’s unity.111 Nolde nevertheless devoted a significant portion of Chapter 1 of section iii to analyzing the original French revolutionary legislation. Over the course of several pages he described the diversity and heterogeneity of the French Old Regime’s administrative order, especially the difference between the pays d’état and the pays d’élection. The rights and liberties of these self-governing territories remained vibrant under the Old Regime and constituted a part of the French people’s historical “constitution”. For this argument, Nolde directed his readers to “the classic pages of Tocqueville’s The Old Regime and the French Revolution, esp. the appendices”. He assumed this work to be so familiar to his readers that he provided no bibliographic reference for it – the only such exception in all of section iii.112 In his 1906 study of English colonial policy, Nolde had listed Tocqueville among the classics of world political literature, along 109 On this see Szeftel, supra note 2, pp. 36–39; Tagantsev, supra note 2, pp. 157, 158, 161; ‘Novye materialy k istorii sozdaniia Osnovnykh gosudarstvennykh zakonov 1906 g.’, prepared and introduced by S.V. Kulikov, Russkoe Proshloe kn. 8 (Izd. St.-Peterburgskogo universiteta, St. Petersburg, 1998) p. 101; on the sources p. 94. 110 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, pp. 234–240. Nolde and Vladimir Gessen had collaborated in publishing a compilation of constitutions: Sovremennye konstitutsii: vol. 1, Konstitutsionnye monarkhii; vol. 2, Federatsii i respubliki (Pravo, St. Petersburg, 1905 and 1907 respectively). 111 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 243. 112 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 232, note 8. The Russian translation of Tocqueville’s Old Regime prepared by Pavel Vinogradov had gone through at least four editions between 1896 and 1905: A. de Tocqueville, Staryi poriadok i revoliutsiia, translation overseen by Pavel Vinogradov (Tip. Kol’chugina, Moscow, 1896).

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with Montesquieu, Hobbes, Locke, Benjamin Constant and the authors of the Federalist Papers. As McDonald notes in his study of this article, Nolde’s list is very telling: it includes no author identified with idealistic or metaphysical views of history and notably fails to mention the German scholars whom many of his compatriots so admired.113 It was no accident that Nolde selected a title for an analysis of the Revolution he himself had lived through – L’Ancien régime et la revolution russes – that evoked Tocqueville’s classic 1856 study of the French Revolution: L’Ancien régime et la revolution. In its expansive chronological frame and stress on structural factors, it bears more than passing similarity with Tocqueville’s original. Indeed, Nolde’s political ideal was closer to a model of ancien régime aristocratic constitutionalism than to a modern and egalitarian political order.114 Around 1914, he explained that local self-government in Russia was in no way “radically democratic”. This zemstvo model of differentiated representation had served as a model for the Duma electoral structure. This structure of differentiated and indirect elections for the Duma, Nolde averred, “was certainly an advantage. A leap into the dark of democratic elections would seem certainly much more dangerous than an appeal to [the zemstvo representatives], well-known and disciplined in local administration.”115 This preference for a political system predicated on a balance of estates – something akin to aristocratic constitutionalism – might explain why Nolde remained proud to the end of his days to bear the title of “Baron”.116

113 114

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Nolde of course would have been able to read the work in French; his note, however, cites the title in its Russian form. Nolde, ‘Angliia’ (1906) p. 18; McDonald, supra note 65, p. 24. For Nolde’s portrayal of the “special ‘constitution’” that obtained under the old French monarchy, with reference to Montesquieu, see Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 229; for his description of Russia’s “monarchie ordonnée”, see L’Ancien regime, supra note 47, p. 6; for informal federalism, L’Ancien regime, supra note 47, pp. ­54–57; the appropriation of noble landholding in 1861 “violated the principle of the official order of the Corps des Lois” (L’Ancien régime, supra note 47, p. 76). It was “l’opinion publique unitaire, proprement russe, [qui] avait abandonné le système des autonomies locales, fondé sur la prépondérance légalisée des groupes supérieurs des sociétés provinciales,” leading to a rejection of the “wise old traditions” (L’Ancien regime, supra note 47, p. 94). Nol’de, “Origin and Nature”, supra note 76, l. 30; later Nolde argued that liberals had failed to understand that only the model of differentiated (tsensovaia) representation had proved effective in Russian conditions (Boris Nol’de to Mark Vishniak, letter, 14 December 1927 [Vishniak Mss., Manuscript Department, Courtesy the Lilly Library, Indiana University, Bloomington, IN]). Vishniak, ‘B.E. Nol’de’, supra note 1, p. 283. Nolde employed his aristocratic title on nearly all his publications, even in emigration. His son Emmanuel did so as well.

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Having set out the structure of the French Old Regime in the Ocherki, Nolde then analyzed its fate with the coming of the French Revolution. Inspired by Rousseau’s ideal of a “general will” – “which”, Nolde noted, “did not fit very well with the historical tradition of local centers of autonomous state power” – the French Revolution made one of its first acts “the establishment of standardized departments, abolishing the previous diversity found in the country’s political map”. (Nolde had more than a passing knowledge of Rousseau’s concept of the “general will”, as he had been awarded a gold medal at St. Petersburg University for his study of Rousseau’s political thought.)117 In imposing this abstract model, the French National Assembly had destroyed the old system of “federalism” and set out to transform France “into a unitary whole, divided into small departmental squares, with identical administration, identical justice systems, and a single parliament”. Revolutionary and Napoleonic France then transported this beloved formula of “unity and indivisibility” to those countries it had conquered, extending it even to cases (such as the Batavian Republic) where it “poorly corresponded to any historical precedent”.118 Why did Nolde devote such attention to the federalist “Constitution” of the French Old Regime? Nolde believed that the structure of the French Old Regime bore remarkable similarity to the manner in which the Russian Empire had been traditionally governed. “Very few people”, he observed, “know of the existence in the not so distant past of that distinct system of administering various regions which had entered into the order of the Russian state. Everyone now has forgotten that, even one hundred years ago, the autonomy of the Russian provinces was an administrative tradition.”119 Most people in his day considered Russia a unitary state. Yet when one studied the Russian past, Nolde argued, one comes to the indisputable conclusion that the external symmetry in the structure of the Russian state and the complete subordination of local authorities to the will of central law are achievements of a comparatively very recent time. Not so long ago, in the 17th, 18th, and 19th centuries, there existed in Russian state practice, together with elements of crown rule and of total subordination to Russian law, dramatic cases of

117 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, pp. 233, 234. For his essay on Rousseau, see ‘M. le Baron Boris Noldé à Saint-Pétersbourg’, 25 Annuaire de l’Institut de Droit International (1912) pp. 685, 686. 118 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, pp. 237, 238. 119 Ibid., p. 465.

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autonomy that bordered on statehood for certain regions that had entered into the Russian state.120 The French Old Regime’s administrative patchwork, its system of informal ­federalism – here Nolde approvingly cites Pavel Nikolaevich Ardashev’s 1900 study on provincial administration on the eve of the French Revolution, itself indebted to Tocqueville’s interpretation – “could be taken word for word to characterize the … features of the Russian past”.121 For Nolde, the English form of colonial development served as a model. The English “had created an entire arsenal of diverse methods of administration, which were applied depending on the time and place to this or that part of the empire. Not in one other contemporary state will you find anything akin to this diversity.” This supple, ad hoc approach had produced “one of the greatest creations of mankind’s political genius, the English colonial empire”.122 The French case, on the other hand, was a cautionary lesson. The revolutionaries proceeded to abolish the country’s diverse and variegated political map, which had developed over centuries, and replace it with a new grid, dividing the country “into departmental squares and cantonal squarelets” [departmentskie kvadraty i kantonal’nye kvadratiki]. While the French Old Regime had certainly prepared the ground for this outcome (here Nolde remained true to Tocqueville), it had not known such a unitary ideal in practice.123 That the French had pursued this path did not at all mean, though, that the Russians had to follow them, even if Russia had adopted the formula of a state “one and indivisible”. “It might seem”, Nolde observes, “that one state had copied its state order from another state, copied it slavishly, but a closer 120 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, pp. 279, 280. This argument is repeated in L’Ancien regime, supra note 47, part 1, ch. 4, esp. p. 54; Nolde intended his La formation de l’empire russe (supra note 58) to be a historical study of the accretion of these territories, which he had described in juridical terms in the Ocherki (supra note 16). 121 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 465, repeating a quotation from Ardashev that he had already quoted extensively at the opening of section iii, p. 231. The original citation is found in P. Ardashev, Provintsial’naia administratsiia vo Frantsii v posledniuiu poru starogo poriadka, 1774–1789, 2 vols.: vol. 1 (B.L. Balashev, St. Petersburg, 1900), vol. 2 (Tip. I.I. Chokolova, Kiev, 1906) 1: pp. 204, 205. Ardashev was an enthusiastic admirer of Tocqueville: see his evaluation of Tocquceville’s Ancien régime in Provintsial’naia administratsiia, vol. 1, pp. 7–15, and his endorsement of Tocqueville’s analysis in vol. 1, pp. 96, 108. 122 Nol’de, ‘Angliia’, supra note 65, pp. 5, 6. Nolde clearly found empires fascinating. Cf. his final estimation of the Russian Empire: “one of the most interesting and most grandiose phenomena in the history of the world” (Nolde, La Formation, supra note 58, pp. xi–xii). 123 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, p. 255.

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e­ xamination reveals that in practice” – one of Nolde’s favourite phrases – “the copy came out entirely unlike its original”.124 While the metric system may be rational, observed Nolde, Russia can still “keep its historical arshin, and England, its foot. The French departmental system in politics is precisely the same as the metric system in geodesy. Rational and simple, it is nevertheless not obligatory for constructing state power in any and all times.” Nolde pointed out that there are in fact many states whose unity stands beyond question, but for which “the symmetry and rationality of the French revolutionary postulates are alien in an organic way”. He cited, of course, England.125 This argument exemplified another key aspect of Nolde’s thought: his belief in the gradual historical progress of monarchy from personalized rule into more legalized and routinized forms. Here was one more reason for Nolde to remain aloof from the activities of the Constitutional Democratic Party until the moment when the monarchy ceased, in his eyes, to act within the system of “bureaucratic monarchy”. Russia, in Nolde’s view, was “eine ständische Monarchie, with its foundation resting upon a set of orders or social bodies that were juridically distinct and superimposed upon one another”. Of course, the Muscovite state had been distinct by virtue of the fact that its social orders ceased to play an independent role after 1613.126 Nevertheless, as in other monarchies, limits gradually grew on the powers of the Russian autocrat.127 The Fundamental Laws formalized and extended these limitations: “the content of Article 1 of the Fundamental Laws represents the culmination of a process that began long ago in Russia and in other countries, [a process] of limiting the monarch’s rights to dispose of state territory”.128 Again, one sees here a highly selective reading of Russian history, emphasizing the professionalization and standardization of the imperial bureaucracy but overlooking the fundamental nature of autocracy and its interpretation under Alexander iii and Nicholas ii. One might suppose, then, that Nolde – a champion of the diverse arrangements that had existed in the western borderlands of Russia’s Empire throughout the 17th and 18th centuries – would be critical of the novel formulation contained in Article 1 of the Fundamental Laws: “The Russian state is one and indivisible.” In fact, he welcomed it. But here he distinguished his historical 124 Ibid., p. 258. Here again Nolde noted the gulf between actors’ intent and the achieved result. 125 Ibid., p. 255. 126 Nolde, L’Ancien regime, supra note 47, p. 6; see also Nolde, Origin and Nature, supra note 75, l. 26. 127 For the evolution of the autocracy into a “bureaucratic monarchy”, see Nol’de, “Nachalo russkoi katastrofy”, supra note 88, p. 126; Nolde, L’Ancien regime, supra note 47, p. 96. 128 Nol’de, Ocherki russkogo gosudarstvennogo prava, supra note 16, pp. 246, 249.

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analysis from his legal analysis. The historical reasons for the formulation in the French Constitution were not the same as in the Russian case. While the formulation “one and indivisible” had initially been a slogan for the French revolutionary state, over the first third of the 19th century the smaller German states introduced a new content to it. Gradually, the phrase came to mean something other than the manner in which the state was ordered. As Nolde noted, a unitary state need not be homogeneous – a homogeneous state had simply been the French solution. Instead, the formulation “united and indivisible” came increasingly to mean that state territory might not be the object of an international transaction concluded between monarchs. The primary thrust of the Article 1 of Fundamental Law’s, he concluded, was that the monarch could not surrender any territory that belonged to the Russian state without the sanction of the legislature.129 For Nolde, then, the significance of the formulation “the Russian state is united and indivisible” had less to do in the end with national autonomy or the ordering of the Empire, than with limits placed upon the autocracy and upon the whims of the sovereign. Here Nolde’s tendency to purge politics from the practice of administration becomes evident. His forced legalistic argumentation of this phrase in his 1911 Ocherki – ­published as both the Beilis Case and the Western Zemstvo Crisis were unfolding – was remarkably tone-deaf to the formula’s connotation both to patriotic Russians and non-Russians, and strikingly blind to the actual, rather than simply theoretical, consequences of this program.

...

We are now in a position to understand why Nolde, an advocate of the Russian Empire’s 18th-century system of informal federalism, so opposed territorial autonomy at the moment he was in a position to legislate it, in 1917. Nolde was opposed to federalist solutions, to be sure, because of burning issues of the day. But the federalist proposals for Ukraine and Finland also went against his deeply-held convictions about the nature of political institutions. The Russian Empire’s informal system of imperial “federalism” had emerged spontaneously, organically and ad hoc. The federal model in 1917 sought to impose one system upon the variety and diversity of the Russian empire. Such, at least, was Nolde’s 129 Ibid., part iii, ch. 2, esp. pp. 240–242, 249–252. On this point Nolde disagreed with S.A. Kotliarevskii, Pravovoe gosudarstvo i vneshniaia politika (1909), who argued that a change in the state border required no legislative confirmation (p. 250, n. 36). Nolde’s argument worried Baron Taube so much – who had been Nolde’s predecessor as mid’s legal advisor, before moving to head the Ministry of Education – that he sought to have the mid reprimand Nolde.

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rationalization. Equally evident, however, are the limits of his definition of “living reality”. For him, a man schooled in the imperial bureaucracy, reality and politics were above all administration from on high; he rejected out of hand the messy and frustrating sphere of negotiation and compromise. For him this was not “living reality”. So deep was his commitment to this understanding of “reality” that he carried it into emigration, committing himself – in ultimately very productive and humane ways – to professionalized administration rather than Party politics. An intellectual biography of Nolde suggests that the terrain of political thought in imperial Russia was much broader and more variegated than can be encompassed by a typology constructed on political parties alone, or by a contrast between “liberal” opponents of the regime, on the one hand, and the imperial state and its defenders, on the other.130 Many aspects of Nolde’s opposition to Nicholas ii’s policies, as well as of his criticism of the policy of the Constitutional Democratic Party, were predicated on his valorization of his “applied” knowledge of governing. Vishniak was wrong: Nolde held strong “political” views, views that were quite constant throughout the years. They were simply views more consistent with Montesquieu and Tocqueville than Kant and Hegel. Perhaps for that reason, many Russians – and many Russian historians – have had trouble placing Nolde. Acknowledgments I am grateful to the Social Science Research Council and the National Council for Eurasian and East European Research for supporting research for this project. I am indebted to David McDonald for sharing his unpublished paper on Nolde, (Whig History with a Russian Accent: The Transmission of Texts across Cultural Boundaries). This article benefited greatly from the comments of participants at the conference ‘Citizenship, Nationality, and the State in Imperial Russia and the Soviet Union’ at Harvard University (March, 2004). For their comments and suggestions I am particularly grateful to: Oleg Budnitskii, Michael David-Fox, Eric Lohr, Alexander Martin, Benjamin Nathans, Marc Raeff. 130 For an argument that demonstrates the shortcomings of viewing politics as a conflict between an oppressive regime and its progressive opponents, see W.G. Wagner, ‘Ideology, Identity, and the Emergence of a Middle Class’, in E.W. Clowes et al. (eds.), Between Tsar and People: Educated Society and the Quest for Public Identity in Late Imperial Russia (Princeton University Press, Princeton, 1991) p. 162.

Volume 9 (2009): 90th Anniversary of the Baltic States: Challenges Faced in International Law

Computer Network Attacks in the Grey Areas of Jus ad Bellum and Jus in Bello Erki Kodar Contents 1 Introduction* 2 Jus ad Bellum and cna 2.1 Applying the UN Charter to cna – Can cna Constitute Use of Force? 2.2 Problems Related to Attribution of Responsibility in Case of cna 2.3 Jus ad Bellum and cna – Future Trends 3 Jus in Bello and cna 3.1 Legal Assumptions for the Implementation of Humanitarian Law in the Case of cna 3.2 cna and Legitimate Targets 3.3 cna’s Compatibility with General Principles of Humanitarian Law 4 Possible Future Scenarios for the Regulation of cna 4.1 Estonia’s Role in the Development of cna-related Agreements or Standards? 4.2 Possible Developments of International Law in the Sphere of cna 5 Conclusion 1 Introduction It seems one has to accept as inevitable that when something useful for the improvement of man’s life is invented, thoughts will either turn towards how to use it as a weapon or destroy it, or, in the case of computer network technology, both.1 April and May 2007 were the most tumultuous months in Estonia’s history after the restoration of independence in 1991. The relocation of the Bronze * All the views expressed and possible mistakes made in this article are the author’s alone. 1 L. Doswald-Beck, ‘Some Thoughts on Computer Network Attack and the International Law of Armed Conflict’, 76 International Law Studies (2002) p. 163. © koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_007

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S­ oldier monument from Tallinn city centre resulted in two nights of rioting and looting in Tallinn and besieging of the Estonian embassy in Moscow. Physical rioting and looting was accompanied with virtual violence in cyberspace that lasted for three weeks as governmental and non-governmental websites were attacked with distributed denial of service attacks (DDoS), ping floods, botnets and web page defacements. These cyber attacks, or computer network attacks (cna), crippled the web pages and computer systems of ministries, banks, broadcasters, newspapers and emergency services with the possible aim of reducing the media coverage and dissemination of public information regarding the consequences of the relocation of the Bronze Soldier.2 Some Estonian officials accused that the attacks were orchestrated or tolerated by the administration of the Russian Federation.3 The latter denied strongly any involvement in such acts and no definite attribution has been made in this case.4 The cyber attack on Estonia’s critical it-systems was not unprecedented, but the combination of crude (ping floods, defacement) and sophisticated (DDoS, use of botnets) measures used in the attack delineated a new standard in cyber attacks against a State.5 Both qualitatively and quantitatively the attacks perpetrated were the largest of any known cyber attacks that have taken place in the world recently. Estonia’s case might be the best example to demonstrate that globalisation is in the modern world accompanied by an increased number of attacks 2 nato has produced a short documentary on the attacks called ‘Six Colours: War In Cyberspace’, , visited on 15 April 2020. 3 Daily Telegraph, ‘Russia Accused over Estonian “Cyber-Terrorism”’, 18 May 2007, , visited on 28 March 2009; Times Online, ‘Estonia Accuses Russia of “Waging Cyber War”’, 17 May 2007, , visited on 15 April 2020. 4 The Guardian, ‘Russia Accused of Unleashing Cyberwar to Disable Estonia’, 17 May 2007, , visited on 28 March 2009; ria Novosti, ‘Estonia Has No Evidence of Kremlin Involvement in Cyber Attacks’, 6 September 2007, , visited on 28 March 2009. 5 In 2005 the US Defence Department reported that Chinese web sites had been heavily used to target its computer networks. B. Graham, ‘Hackers Attack Via Chinese Web Sites’, Washington Post, 25 August 2005, , visited on 15 April 2020. Use of cyber attacks is fairly common in the Palestinian-Israeli conflict, and cyber attacks were used side-by-side with physical force in the Russian-Georgian conflict of 2008. Additionally, Kyrgyzstan (2005, 2009) and Belarus (2006) have experienced large scaled cyber attacks against State infrastructure. See Information Warfare Monitor, ‘Tracking GhostNet: Investigating a Cyber Espionage Network’, 29 March 2009, , visited on 30 March 2009, pp. 7–8.

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against computer networks, and that the attacks may be launched by States, ­representatives of States, terrorists, criminals and/or cyber hooligans. Thus cna is an asymmetric weapon ideal for use by powerful States that harness the required capability but also by clever individuals with harmful intents. Considering the powerful technical advancements that have been made by information technology over the last three or four decades, it would be logical to assume that a uniform and existing legal regulation has been imposed on both cyber attacks and it-crime. This assumption is wrong. When discussing cyber attacks in terms of public international law and humanitarian law, we are faced with a relatively new phenomenon, which does not fit into any global legal framework regulating it activities. There has been progress on a regional level – the Council of Europe has adopted the Convention on Cybercrime and the United States of America is keen to regulate cybercrime issues in legal assistance agreements.6 Nevertheless, these advancements are mostly confined to the realm of domestic criminal law and do not address the issues of international law. At the current time it would appear that the lack of sufficient State practice and opinio juris has not allowed international customary law to develop that would concisely deal with cyber attacks. There are several reasons for the lack of a comprehensive legal regulation – various development levels of countries (third world versus developed countries); predictable benefits accompanying the absence of specific frameworks (maintenance of sovereign freedom of action); and the understanding that cyber attacks represent a new legal phenomenon. There does not exist a notable selection of legal materials that would analyse the issue. I. Detter concurs that “[t]he problem has not been approached in any systematic way although numerous institutions and governments have expressed concern about the problem. … However, there has been little, if any, academic comment”.7 Research publications or books have dealt with problem briefly or not with sufficient in-depth analysis.8 The US Naval War College’s so-called “Blue Book”9 6 The 2001 Council of Europe Convention on Cybercrime. 7 I. Detter, Law of War, 2nd ed. (Cambridge University Press, 2005) p. 273. 8 For example Detter gives an overview of ‘information warfare’ in one and a half pages in Detter, ibid., pp. 272–274. Y. Dinstein mentions cna in the light that it is a phenomena that “must be analysed”, while all other cna related comments are mostly relegated to footnotes in Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge University Press, 2007) p. 256. L. Green references ‘cyber war’ under the chapter regarding air warfare as “computers may be available to intercept and neutralise computerised signals and mechanisms, including those affecting aircraft, land weapons, warships and the like. Such possibilities are being described as ‘information warfare’ or ‘cyberwar’”. L. Green, The Contemporary Law of Armed Conflict 2nd ed. (Manchester University Press, 2000) p. 194. 9 76 International Law Studies (2002).

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and the 1999 US Department of Defense study remain the foundational ­materials in this field.10 Despite the ambiguity of the legal situation, more than 30 different countries worldwide, including USA, China, India and Russia, have publicly admitted to development of military capabilities and doctrines related to information operations.11 The above does not mean that the legal situation could be described as empty or as a loophole. Several standards and principles of international law can be successfully applied to information operations (io) either directly or by analogy. Also, academic discourse has enlivened after the events that took place in spring 2007 and the proliferation of cyber attacks in recent years. The definition of io is based on USA Department of Defense Joint Publication 1-02.12 As USA is considered to be the most capable State in the sphere of cyber wars, the definitions provided below are used for the purposes of academic debate and also for the reason that other authors have adopted them to describe cyber attacks.13 Information operations are defined as the “integrated employment of the core capabilities of electronic warfare, computer network operations, psychological operations, military deception, and operations security, in concert with specified supporting and related capabilities, to influence, disrupt, corrupt or usurp adversarial human and automated decision making while protecting our own”.14 The term represents a generic definition, comprised of the following activities and operations:

10 11 12 13

14

An Assessment of International Legal Issues in Information Operations, Department of Defense, Office of General Counsel, , visited on 15 April 2020. E. Jensen, ‘Computer Network Attacks on Critical National Infrastructure: A Use of Force Invoking the Right of Self-Defense’, 38 Stanford Journal of International Law (2002) pp. 207, 212. Department of Defense Dictionary of Military and Associated Terms, Joint Publication 1-02, 12 April 2001 (as amended through 17 October 2008). For the usage of these terms, albeit with some changes in wording, see D. Hollis, ‘Why States Need an International Law for Information Operations’, 11 Lewis & Clark Law Review (2007) p. 1023; M. Schmitt, ‘Wired Warfare: Computer Network Attack and Jus In Bello’, 84 International Review of the Red Cross (2002) p. 367; K. Dörmann, ‘Computer Network Attack and International Law’, , visited on 15 April 2020; 2003 Summary Report prepared by the International Committee of the Red Cross on the Direct Participation in Hostilities under International Humanitarian Law, , visited on 15 April 2020. See supra note 12, p. 263.

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computer network operations (cno) – Comprised of computer network attack, computer network defense, and related computer network exploitation enabling operations.15 computer network exploitation (cne) – Enabling operations and intelligence collection capabilities conducted through the use of computer networks to gather data from target or adversary automated information systems or networks.16 computer network attack (cna) – Actions taken through the use of computer networks to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks themselves.17 computer network defense (cnd) – Actions taken to protect, monitor, analyse, detect, and respond to unauthorised activity within the Department of Defense information systems and computer networks.18 cna represents actions aimed against information in another computer network and computers, and the consequences of such actions may be extensive due to the fact that computers and computer networks are largely dual-use systems. Both civil and military structures use the same technical facilities. Due to the consolidation of both structures there exists a danger that the initiated cna will transform, either deliberately or un-deliberately, from one structure to another, thus accompanied by serious consequences. cna also challenges common understanding of geographical spaces and territorial integrity, as attacks may cross several State borders.19 cna demands that military operations planners and high-ranking government officials take into account the following questions of jus ad bellum and jus in bello. For example, does a cyber attack constitute an ‘armed attack’ under the United Nations Charter? Does there have to be physical damage to property or loss of life before a State can exercise the right of self-defence? What would be a proportionate response against such an attack? What are the evaluation criteria for targets that are dual-use targets used both by military and civil 15 16 17 18 19

Ibid., p. 113. Ibid. Ibid. Ibid. By conducting a cna with a ‘botnet’, the attacking computers may reside in different jurisdictions and the data stream may cross State borders by way of masking the initial source of the attack. Therefore the target may have to counter attacks that come from different jurisdictions and may have a concise centre of origin, but tracking the origin can be difficult, if not impossible.

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systems? Is the cyber attack a violation of criminal or international law? In what cases is there State responsibility for acts of individuals acting from its own territory? What could be the future perspectives for the regulation of cna? The purpose of this article is to provide a general assessment of the legal consequences of cna according to jus ad bellum and jus in bello, mapping the problems encountered in both spheres of law upon the application of international law on cna, and to suggest possible future perspectives for the regulation of cna. 2

Jus ad Bellum and cna

The foundation for the contemporary jus ad bellum, the law regarding the use of force, is the Charter of the United Nations.20 According to Article 2(4) of the UN Charter, “[a]ll Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations”. Such a ban of the use of force is regarded as an imperative norm of international law, jus cogens, from which no deviation is allowed, and it is binding for all States in the world community.21 For further analysis, it is important to know the two UN Charter exceptions from the ban of using force, namely, the inherent right of individual or collective self-defence if an armed attack occurs against a State (Article 51 of UN Charter) and use of force within the framework of a collective security system (Articles 39 and 42 of UN Charter). 2.1 Applying the UN Charter to cna – Can cna Constitute Use of Force? The first obstacle to the implementation of the regulation regarding the use of force is the following question: Could cna be treated as an armed attack? Although Article 2(4) of the UN Charter does not elaborate on what could be interpreted as a threat or use of force, the travaux préparatoires of the Charter indicate that this must be an armed attack.22 More so, the Charter mentions that each State has the inherent right of an individual or collective self-defence 20 21 22

Hereinafter also ‘UN Charter’. M. Shaw, International Law, 5th ed. (Cambridge University Press, 2006) p. 1018. On the interpretation of the term ‘armed attack’ in light of cna, see M. Schmitt, ‘Computer Network Attack and Use of Force in International Law: Thoughts on a Normative Framework’, 37 Columbia Journal of Transnational Law (1999) pp. 900–908. On the issue what constitutes a ‘force’, see Shaw, supra note 21, pp. 1019–1021.

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if an armed attack occurs against a State. The competence of the Security Council in relation to acting upon cna matters will raise fewer problems, as it is possible for the Security Council to treat cna as a threat to peace or violation of peace (it is doubtful whether cna can cross the threshold established for aggression), provided that there is political will between the Permanent Members.23 cna represents a challenge to the valid paradigm related to the use of force as its consequences cannot easily be classified as activities that threaten the values of the international community or as consequences that are of the severity equal to the use of physical force. The consequences can be spread over a broad spectrum from everyday it disruption to widespread physical damages. In the former category would be for example the temporary paralysation of computer networks without any direct or indirect physical effects. The latter category could entail attacks against critical infrastructure systems with intent to cause physical damages to objects or even loss of life. Disruption of it systems will most probably not equate to an armed attack as they would be more of nuisance if any anything else and can be dealt with in the domestic legal system with Computer Emergency Response Teams, judicial system and mutual assistance agreements, if applicable. In the case of physical damages and loss of life the State has to evaluate whether the cna caused the damages and are the damages analogous to an armed attack and would give right to resort to self-defence. A majority of acknowledged international law scholars are of the opinion that cna can be regarded as an armed attack only if certain stringent criteria have been fulfilled, but mainly the consequences of the cna must be equal to the consequences of a physical armed attack.24 For example, economic and political measures of pressure will not constitute the violation of the ban to use force even though cna is a very useful tool for disrupting commerce communications, etc. Thus, cna will oscillate between measures adopted to apply political and economic pressure and the use of armed force. Incurrence of physical damage as a result of cna is the pre-requisite to regard it as an armed attack. Unfortunately, this criterion cannot be treated as an absolute and it largely depends on the evaluation of the situation. The consequences of cna 23 Schmitt, supra note 22, pp. 924–927. 24 D. Silver, ‘Computer Network Attack as a Use of Force under Article 2(4)’, 76 International Law Studies (2002) pp. 84–92; Y. Dinstein, ‘Computer Network Attacks and Self-Defense’, 76 International Law Studies (2002) pp. 102–105; Schmitt, supra note 22, pp. 914–915; An Assessment of International Legal Issues in Information Operations, Department of Defense, Office of General Counsel, , visited on 15 April 2020, pp. 18–25.

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should be assessed case-by-case to ascertain whether they are similar to the consequences of an armed attack or whether consequences stay below the level of threshold for use of force. This categorisation is critical because upon it determines which type of countermeasures the defending State may choose in the given case. Professor M. Schmitt gives two explanatory examples: In the first case, “computer network attacks disable a busy air traffic control system during horrendous weather. An airliner crashes and deaths result. No kinetic force has been used to destroy the airliner, but cna was plainly the proximate cause of the tragedy”.25 Causal relation between the cna and the airplane crash is established. Opposite of this spectrum, cna is used to attack “a university computer network, designed to disrupt military related research occurring in campus laboratories”.26 This attack interferes with the conduct of research related to armed forces. Leaving aside the questions of attribution and State involvement in the attacks, Schmitt posits that the first case can be construed as use of force as it results in a loss of life, physical destruction and the consequences are comparable to the use of armed force.27 Thus it would be lawful for the injured State to act in self-defence after such an incident even though no physical attack infringed its borders. In the second case, the consequences of cna are less serious than in the first example and represent an assumed unlawful invasion into a computer network and the consequences of this activity cannot be equal to the use of armed force, although scientific work related to the activities of armed forces has been disrupted. If cna can constitute use of armed force, the canonical restrictions established for the response to an armed attack in self-defence must be also applied thereto – that is, countermeasures taken to deal with a threat must be proportional and necessary to the threat. Another contentious issue is whether a State under a cna attack can counter in self-defence with only cna or with physical force. Law regarding use of force does not prescribe the measures to be adopted in self-defence as long as they are proportionate and necessary against the attack. Therefore it would be lawful for the injured State to resort to physical force if the aforementioned criteria are fulfilled. Without concise legal regulation, it will be up to State practice to decide whether cna will qualify as use of force or not. Such a case-based approach will not necessarily contribute to completely uniform practice but, if we are to 25 Schmitt, supra note 22, p. 916. 26 Ibid. 27 Ibid.

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look for a better consensus, the UN Security Council has the competence to qualify cna as a threat to peace as provided by Article 39 of the UN Charter. The involvement of the Security Council would be beneficial for the Permanent Members or for larger countries that have sufficient clout to influence Permanent Members. The involvement of the Security Council would be most probably of little use for non-members when the suspected or alleged acts of one of the Permanent Members are in question. In such cases the Security Council will most probably find itself in a veto deadlock. However, the Security Council could give more specific guidelines with regard to cna incidents that fall into the ‘grey area’ of use of force or not. Then again this scenario could be counterproductive and against the self-interests of the Permanent Members because they are also potentially the most capable States for conducting such acts and gaining from such behaviour. 2.2 Problems Related to Attribution of Responsibility in Case of cna The above lack of legal distinction should not be interpreted as a situation where everything explicitly not forbidden is permissible if the use of cna does not violate jus cogens norms, customary law or treaty law. Unlawful or indiscriminate uses of cna can violate generally recognised principles of international law (for example, the principle of non-intervention in matters within the domestic jurisdiction of a State). The injured State may demand reparations for injuries from the responsible State according to the principles of State responsibility. Nevertheless, the matter of State responsibility is especially complicated in the case of cna as its source can be concealed. The subject of attack may be acting on false impressions of the attack coming from another State that is not necessarily responsible for the attack (for example, the responsible State D may launch cna against State A through unbeknownst State C and masking the origin of the attack as to convey the impression that cna comes from State B). The relative ease of use of cna has the potential to make States complacent with regard to State responsibility. If cna has been State orchestrated, carried out by the agents of State, then the attribution of State responsibility is not complicated. Nowadays laptops have more computing power than a room full of supercomputers in the 1970s and private individuals and organisations have access to high-speed internet connections from which to conduct multiple cnas of different severity unbeknownst to their State of residence. This can create situations where State A knowingly or unknowingly tolerates cna activities against State B and the attacks cross the threshold of armed attack. In this case State B

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regards itself as being under attack and starts to defend itself against the actions coming from State A. Therefore State A may unwillingly violate international law. By the text of the Draft Articles on Responsibility of States for International Wrongful Acts28 the acts individuals of State A are attributable to it and the acts in question breach international obligation (prohibition of use of force, prohibition of non-intervention).29 State B can prove the support of State A with either signal or human reconnaissance (for example, identifying that the attack is being launched from a computer network of a government agency) or from official pronouncements of government officials. If an individual living in State A is violating the rights of State B from the territory of the same State, State B may require the punishment of that respective individual from State A or initiation of extradition proceedings. Under aggravating circumstances, State B may adopt self-defence measures against an attack coming from State A in the territory of State A, but only if State A does not wish or is unable to avoid the appropriate actions against State B. Professor Y. Dinstein has classified the attribution of responsibility related to cna originating from State A and directed against State B into four categories:30 The first category consists of cases where citizens of State A launch cna on their own initiative and for reasons only known to them. Their activities cannot be attributed to the government of State A. In the given case, State A should exercise sufficient executive duress against the individuals concerned so that they would either end or avoid launching the attacks against State B from the territory of State A.31 The second category consists of cases when certain individuals or terrorists residing in State A launch cna against State B for certain ideological, etc. reasons and the terrorists are not supported by State A. The obligations of State A are the same that were described under the first category.32 In the third category terrorists supported by the State A launch cna against State B. If the actions can be attributed to terrorists supported by State A, the terrorists could be treated as de facto representatives of State A as provided by the principles of State responsibility, and State A will be held responsible to

28

Draft Articles on the Responsibility of States for Internationally Wrongful Acts, Report of the ilc on the Work of its Fifty-third Session, UN Doc. A/56/10 (2001). 29 Article 2 of 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts. 30 Dinstein, supra note 24, p. 103. 31 Ibid., pp. 103–104. 32 Ibid.

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State B.33 The support given to terrorists by State A needs to be proven in this case.34 In the fourth category government organs of State A launch cna against State B. This represents the most complicated category as the actions of representatives of a State within the cna sphere may have a number of forms – like espionage (which cannot be construed as the use of force), interruption of communication systems with no harm to humans (not grave enough to exceed the threshold of use of force) and cyber attacks that result in harm done to persons. The latter is treated as cna that oversteps the threshold established for the use of force, but all the cases described in this category can be ascribed to State A.35 ‘Active defence’ is also possible as a counter-measure against cna, meaning that a State under cna attack will attack the computer system of another State being the source of the cna, considering that it will be later forced to apologise, in public, for the ‘counterattack’ or pay compensation. At the current moment, launching a cyber attack by a State against another State represents the exception and not the rule.36 Most cnas are perpetrated by individuals and non-State actors, but the attribution of such acts to them or the State harbouring them is complicated as evidence is hard to get or evidence can be misleading in the case of a sophisticated attack. 2.3 Jus ad Bellum and cna – Future Trends In the near future, jus ad bellum will still be subject to an understanding that the use of force or threat of force within cyberspace will remain a fact to be identified separately in each case. The majority of cyber attacks will not exceed the threshold of use of force, but the valid paradigm may be subject to change 33

Article 8 of 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts. 34 Dinstein, supra note 24, p. 104. 35 Ibid., p. 105. 36 Currently the use of cna against a State occurs in an armed conflict as an additional measure to classical kinetic force. The conflict between Russia and Georgia in August 2008 also had occurrences of cna use but it is open whether these were carried out by Russia or ‘voluntary hackers’. bbc News, ‘Caucasus Foes Fight Cyber War’, 14 August 2008, , visited on 29 March 2009; A. Anto-nopoulos, ‘Georgia Cyberwar Overblown’, Network World, , visited on 15 April 2020; Daily Telegraph, ‘Georgia: Russia “Conducting Cyber War’”’, 11 August 2008, , visited on 15 April 2020; G. Evron, ‘Internet Attacks against Georgian Websites’, CircleID, 11 August 2008, visited on 29 March 2009.

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if clear-cut cases emerge. For example, some scholars are of the opinion that the usa may decide to respond with armed force if a cyber attack launched by another State destroys the information systems of the New York Stock Exchange or causes physical damages thereto.37 While not being a military objective in the classical sense, the damages might be of the effect that they can be equated with the effects of use of force. The non liquet position, adopted by the Department of Defense of the usa in 1999, was the following: As in all cases when a nation considers acting in self-defense, the nation considering such action will have to make its best judgment on how world opinion, or perhaps a body such as the International Court of Justice or the United Nations Security Council, is likely to apply the doctrine of self-defence to electronic attacks. As with many novel legal issues, we are likely to discover the answer only from experience.38 This decade old position would seem to be still valid prima facie as there have been no clarifying developments in international law in this regard. If we are dealing with a situation where State A is supporting the activities of criminals and therefore cna is launched against State B, responding with cna to cna is probably acceptable and justified. If cna exceeds the threshold for the use of force, the traditional kinetic self-defence capabilities may be employed. But at the moment there does not exist a defined yardstick – cna with grave consequences can be treated as the use of force in the future, while consequences that do not meet the threshold will not be treated as use of force. In the framework of the North Atlantic Treaty Organization (nato), cna with consequences equal to use of force might be in some extreme cases regarded as events that may trigger the collective self-defence provision of ­Article 5 in the North Atlantic Treaty, although this seems doubtful. nato’s own rhetoric has been in this field cautious, if not in the negative.39 This is 37 Schmitt, supra note 13, p. 377. 38 An Assessment of International Legal Issues in Information Operations, Department of Defense, Office of General Counsel, , visited on 15 April 2020, p. 19. 39 Press conference with nato Secretary General following the informal meeting of nato Defence Ministers, 8 February 2008, , visited on 27 March 2009; DefenseLink, ‘nato Leader Expresses Cautious Optimism about Afghanistan’, , visited on 15 April 2020; ibls, ‘nato Agrees To Create Cyber Defence Management Authority’, 15 May 2008, , visited on 27 March 2009; EurActiv, ‘nato Agrees Common Approach to Cyber

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due to the fact that current and previous attacks have not exceeded the threshold mentioned, and thus it is hard to predict the consequence of future cna. Most probably the only article applicable in the nato framework would be Article 4 of the North Atlantic Treaty, in which case members will enter into consultations if the territorial integrity, political independence or security of any of the members is threatened. Only time and State practice will tell whether cna can be realistically construed as use of force according to the UN Charter that would activate the self-defence provisions of the North Atlantic Treaty framework. 3

Jus in Bello and cna

Jus in bello or international humanitarian law is a set of legal norms applicable in case of an armed conflict. When cna is used in an armed conflict as a weapon then legal restrictions arising that regulate the use of weapons are applicable to cna. These restrictions must be adhered to in self-defence operations when countering cna with cna or when responding to a physical attack with cna. Also, in cases of use of cna as an offensive weapon there is a need to understand the legal restrictions that regulate the selection of targets and the precautions in attack to be adopted. Legal Assumptions for the Implementation of Humanitarian Law in the Case of cna In international humanitarian law, there is no explicit provision that deals with either cna or io or cyber war. Nevertheless, the Martens Clause, which is regarded as customary law,40 states that “in cases not included in the [Hague] Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilised nations, from the laws of humanity and the requirements of the public conscience”.41 The modernised 3.1

40

41

­ efence’, 4 April 2008, , visited on 15 April 2020. “The Court points to the Martens Clause, whose continuing existence and applicability is not to be doubted, as an affirmation that the principles and rules of humanitarian law apply to nuclear weapons”, Legality of the Threat or Use of Nuclear Weapons, 8 July 1996, icj, Advisory Opinion, para. 87, , visited on 15 April 2020. Preamble of the 1899 Hague Convention (ii) and 1907 Hague Convention (iv) Respecting the Laws and Customs of War on Land.

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Martens Clause is contained in Article 1(2) of the 1977 Additional Protocol i of the 1949 Geneva Conventions which states that “[i] n cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”.42 The purpose of the Martens Clause is to affirm that the belligerents’ choice of methods or means of warfare is not unlimited and to eliminate any incidents in armed conflicts that are not covered by treaty regulation or customary law. Therefore, these principles reaffirm that even without explicit mention of cna in modern treaties or customs, certain restrictions still apply. The icj has reaffirmed that for weapons two customary law restrictions apply. Firstly, “[s]tates must never make civilians the object of attack and must consequently never use weapons that are incapable of distinguishing between civilian and military targets”.43 Secondly, “it is prohibited to cause unnecessary suffering to combatants; it is accordingly prohibited to use weapons causing them such harm or uselessly aggravating their suffering. … [S]tates do not have unlimited freedom of choice of means in the weapons they use”.44 All of the above and the restrictions applicable to weapons must be taken into account if using cna in an armed conflict.45 cna must be capable of fulfilling the requirement set for weapons – that it can be used in an attack and aimed against specific targets. According to the Geneva Conventions of 1949 and its Additional Protocols of 1977, an attack is an act of violence,46 which raises the question: Is cna out-of-bounds for international humanitarian law because cna is not a use of violence in the strictest sense of the word? The answer to this question is ‘no’ as for the purposes of humanitarian law an ‘attack’ shall represent a generic and a broad definition.47 ‘Violence’ therefore in humanitarian law is defined through the consequence of physical (in case of objects and physical persons) or mental (in case of p ­ hysical persons only) damage. cna does most probably bring the 42 43 44 45

46 47

1977 Additional Protocol 1, Article 1(2). Nuclear Weapons case, supra note 40, para. 78. Ibid. It has been argued that “[i]t is perfectly reasonable to assume that also the new forms of cna, which do not involve the use of traditional weapons, are subject to ihl just as any new weapon or delivery system has been so far when used in an armed conflict”, in Dörmann, supra note 13. 1977 Additional Protocol i, Article 49(1). Commentary of the 1977 Additional Protocol i, Article 49, , visited on 15 April 2020.

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described consequences, and therefore the use of cna should be treated as an attack. States also have an obligation when adopting a new weapon to conduct an assessment process to determine whether the use of such new weapon would under some or all conditions be prohibited or restricted under the standards of humanitarian or some other category of international law.48 Unfortunately States have no obligation to publicise these findings, and thus the majority of these analyses are off the record and not available to the general public. The discussion below is based on an assumption that there is an established armed conflict governed by the norms and principles prescribed in international humanitarian law. International humanitarian law will only apply to cna if cna’s consequences are not just sporadic and isolated cases and are aimed to cause injuries, death, damages and destruction and where such consequences are predictable or desired. Humanitarian law is not applicable to cna if these consequences do not include the causing of injuries, death, damages and destruction during an armed conflict (for example, the failure of a university intranet, downloading of financial information, temporary closing of access to internet or being involved in cyber espionage). 3.2 cna and Legitimate Targets If cna constitutes an attack or the use of violence in an armed conflict, the next question arises: What can be attacked with the weapon and what are the legitimate targets? For analytical purposes M. Schmitt divides targets into four categories: combatants and military targets; civilians, who directly participate in hostilities; objects used by both military and civilians; specifically protected objects.49 Combatants and military targets are legitimate targets50 and can be targeted as long as the means and methods of attack comply with the restrictions established by humanitarian law.51 Therefore, aiming a cna against combatants is permissible (for example, falsifying military air traffic control system navigational information that results in a military transport crash).52 When attacking military targets, the attack against a target must considerably ­contribute to 48 1977 Additional Protocol i, Article 36. 49 Schmitt, supra note 13, pp. 379–387. 50 1977 Additional Protocol i, Article 52 notes that civilian objects shall not be the object of attack and that attacks shall be limited to military objectives. 51 1977 Additional Protocol i, Article 57(2)(a)(i) demands that the attackers must do everything feasible to verify that the objectives to be attacked are not civilian objects, but military objectives. 52 Schmitt, supra note 13, p. 380.

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military action and provide for a definite military advantage.53 Attack against the enemy’s command and control networks, etc. does not create difficulties. However, which principles should be adopted in case of contestable targets: Can cna be aimed against a banking system as the sustainability of armed forces depends on wealth? If a State is disproportionally dependent upon a specific industry (for example, oil), can cna be used to stop production and distribution?54 Is it important that the attack is accompanied by physical destruction, not just inconvenience? If the purpose is only to cause inconvenience, this does not exceed the threshold of a military attack. Civilians represent individuals who are not considered combatants and civilian targets are targets that are not military targets. Therefore the armed forces have an obligation to direct their attacks against military objectives.55 Notwithstanding legitimate collateral damage, the ban on attacking civilians and civilian targets is practically absolute. Civilians lose their immunity when participating directly in hostilities by causing damages to the members or supplies of the enemy’s armed forces.56 The use of civilians to launch cna, as subcontractors or civil servants, is full of legal problems and issues.57 The main problem with cna is that it encompasses activities that can be realistically conducted by government agencies and authorities rather than by members of armed forces. If civilians are directly involved in conducting cna resulting in physical damages, such persons may be treated as unlawful combatants as they are participating directly in hostilities. Thus the it-support personnel who are contributing to a cna operation are at the risk of being considered targets. Civilians employed for the purpose of cna represent a challenge for humanitarian law as they would not fit under the category of lawful combatants. When it is impossible to restrict the participation of civilians in military activities, this may endanger the civilian population as the enemy cannot make a clear distinction between combatants and civilians. Considering the 53 1977 Additional Protocol i, Article 52(3). 54 Schmitt, supra note 13, p. 381. This is an issue of interpretation of the 1977 Additional Protocol i, Article 52(3). Some States, like the USA, regard economic targets as legitimate targets. 55 1977 Additional Protocol i, Articles 48, 50(1), 51(2) and 52(1). 56 1977 Additional Protocol i, Article 51(3). 57 Schmitt, supra note 13, p. 384; Dörmann, supra note 13; 2003 Summary Report prepared by the International Committee of the Red Cross on the Direct Participation in Hostilities under International Humanitarian Law, , visited on 15 April 2020; K. Dörmann, ‘Applicability of the Additional Protocols to Computer Network Attacks’, , visited on 15 April 2020, pp. 8–9.

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skill-sets required for cna it is more than reasonable to assume civilian involvement in such attacks, but the correct course of action should be that the members of armed forces conduct cna. Dual-use targets have both military and civil purposes (airports, railways, electrical systems, communication systems, factories producing material for both the civilian population and armed forces, etc.).58 If an object is being used for military purposes, it will be construed as a military target that can be attacked with all the permissible methods, including cna. The aforementioned is also valid in a situation where the military objectives of a target are only secondary to the civilian objectives. Humanitarian law grants special protection to certain objects like dykes, dams, nuclear power plants, etc.59 Objects under special protection are defined as hazardous facilities as attacking them may launch dangerous forces and cause serious losses among the civilian population. As a general rule, such targets should not be attacked if the emission of dangerous forces cannot be controlled, but in the case of cna it would be possible to neutralise these targets without launching any dangerous forces (which is an advantage, compared to kinetic weapons).60 3.3 cna’s Compatibility with General Principles of Humanitarian Law Once it has been determined that a target is lawful, the concordance of attack with general principles (and norms regarding targeting) of humanitarian law should be assessed before the attack is launched. These principles are the principle of distinction, prohibition of indiscriminate attacks, principle of proportionality and the prohibition of perfidy. According to the principle of distinction, the participants to a conflict must always be capable of making a distinction between civil population and combatants and civil objects and military targets.61 Therefore, only military targets may be attacked. While cna can be used in compliance with the principle of distinction, it can also be, like conventional weapons, used indiscriminately. No matter how attractive the idea of launching one extensive cna campaign against the infrastructures of the State as a whole would be, including attacks against the civil sector, all cna attacks must be aimed against military targets. The principle entails an obligation to minimise collateral damage and to

58 Schmitt, supra note 13, p. 384. 59 1977 Additional Protocol i, Article 56. 60 Schmitt, supra note 13, p. 385. 61 1977 Additional Protocol i, Article 48.

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a­ bstain from attacks if such damage is likely to be disproportionate to the value of the military objective to be attacked. The principle of distinction is closely knitted with the prohibition of indiscriminate attacks. Indiscriminate attack stands for attacks that are not aimed against a specific military objective, employing the methods and means of warfare, which cannot be aimed against a military target or employing the methods and means of warfare the consequence of which cannot be restricted.62 With cna, the main threat is posed by the fact that it can be used for launching indiscriminate attacks, either deliberately or inadvertently. If malicious code cna is employed that is uncontrollable and spreading through civilian systems, then such cna is prohibited as an indiscriminate weapon.63 Taking into account that civilian and military networks are closely intertwined, the launched cna must be of such sophistication that it conforms to the prohibition. The principle of proportionality demands that conflicting interests must be weighed against each other – sufferings and damages versus military advantage.64 If military advantage outweighs incidental loss of life or damages to civilians or civilian objects, the attack is construed to be in compliance with the principle of proportionality (although the principle seems to be rather simple, its implementation in practice is extremely complicated). The majority of the problems of cna in this equation are caused by knock-on effects that are “not directly and immediately caused by the attack, but nevertheless the product thereof – it is the problem of the effects caused by the effects of an attack”.65 As cna may result in consequences which are initially unpredictable, one must always assess when planning an attack whether cna would be accompanied by endangering the civil population or not. As the cna attacks are complicated and may, with great probability, affect civilian systems, one must assess the causal damages and possible consequences during the planning stage of any operation prior to launching an attack and seek ways to mitigate these effects. Then again, cna as a method may help to diminish collateral damage as it allows, instead of physical destruction, to ‘switch off’ the target (for example, instead of bombing an airport it is possible to disturb the operation of flight control systems).66 cna allows the attacker to directly control the c­ onsequences

62 1977 Additional Protocol i, Article 51(4). 63 Schmitt, supra note 13, p. 389. 64 1977 Additional Protocol i, Article 57(2)(a)(iii). 65 Schmitt, supra note 13, p. 392. 66 Ibid., p. 394.

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and minimise the risk to civilian population when the attained military advantage has been achieved. Perfidy is the feigning of protected status with the intent to kill, injure or capture an adversary.67 The prohibition of perfidy does not mean that ruses of war cannot be used.68 For the purposes of cna, a ruse would be communication of incorrect information on location and manoeuvres, forging the information in the enemy’s reconnaissance database, etc.69 Perfidy would be pretending to have a protected status, and for the purposes of cna this would be deceptive use of codes and signals given to medical transport by the International Civil Aviation Organization.70 While the humanitarian law in force is, in general, sufficient to protect individuals and objects from cna, some uncertainties still exist. Even though it was impossible to predict the occurrence of cna upon the emergence of current humanitarian law, some general standards are, nevertheless, applicable to cna. At the same time cna is characterised by specifics that also represent challenges and problems for the purposes of jus in bello: When does one consider cna as an ‘attack’ in jus in bello and when only as a nuisance? But cna is also a positive tool that allows for achieving military objectives without the causal damages that may result from kinetic attacks. It should also be remembered that cna is a weapon, and any unlawful use may bring about incrimination for the commitment of war crimes. 4

Possible Future Scenarios for the Regulation of cna

In all probability a new defined structure of international law will not be introduced in the nearest future that would encapsulate all the cases of use of force with regard to cyberspace and the assessment of cna vis-à-vis the right of selfdefence. The issue is at the mercy of practical experiences of different States as there seems to be unwillingness to enter into international or regional agreements in this sphere. The status quo is useful for States with better cna

67 68 69 70

1977 Additional Protocol i, Article 37(1). 1977 Additional Protocol i, Article 37(2). K. Dörmann, ‘Applicability of the Additional Protocols to Computer Network Attacks’, , visited on 15 April 2020, p. 10. Ibid.

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c­ apabilities to maintain freedom of action. But there might be will to move towards some foreseeable developments.71 In 1998 Russia attempted to initiate a United Nations General Assembly resolution dealing with the banning of some highly dangerous information operations.72 Unfortunately Russia has not volunteered to continue with this initiative over the last couple of years. The Naval War College in Newport, USA organised a cna-conference in 1999, where the participants agreed that it would be useful and sensible to intensify international co-operation in the sphere of computer crime and cyber terrorism, but the time has not yet come for introducing a comprehensive regulation or banning in general.73 More extensive co-operation in the sphere of legal assistance was justified with the pretence for the criminalisation of actions threatening the international community to bring the criminals to justice and to simplify the extradition procedure.74 If legal assistance agreements are to serve as an effective instrument to fight cybercrime, it is necessary for them to have an explicit scope including either cybercrime or all crimes in general. If countries have not entered into extradition agreements, this means that such countries have neither a duty nor the domestic legal basis to extradite a person to another State.75 It would also be difficult to sustain the argument that the principle of aut dedere aut judicare is 71 72

73 74

75

Some academics were confident in 2002 that cna would be prohibited or at least restricted in the near future under customary law. A. D’Amato, ‘International Law, Cybernetics, and Cyberspace’, 76 International Law Studies (2002) p. 69. Letter dated 23 September 1998 from the Permanent Representative of the Russian Federation to the United Nations to the Secretary General concerning Agenda Item 63, UN Doc. A/C.1/53/3 (1998); UN General Assembly resolution 53/70, UN Doc. A/53/70 (1999); Report of the Secretary General on Developments in the Field of Information and Telecommunications in the Context of Information Security, UN Doc. A/54/213 (1999). P. Johnson, ‘Is It Time for a Treaty on Information Warfare?’, 76 International Law Studies (2002) p. 439. A thought that was most probably inspired at the 1999 cna conference from the fact that at the same time USA was requesting Russia to extradite persons who were suspected of attacking the computer systems of the armed forces. Russian Federation refused to extradite such persons. See ibid., p. 442. After the 2007 cyber attacks Estonia’s requests for legal assistance from Russia were refused on the basis that the existing legal assistance agreement does not cover the investigative processes connected with cyber attacks. Prosecutor’s Office of the Republic of Estonia Press Release ‘Russia Refuses to Provide Legal Assistance in Investigating Cyber-attacks’, 6 July 2007, , visited on 28 March 2009; Postimees Online, ‘Russia Denies Estonia Legal Assistance in Investigating Cyberattacks’, 6 July 2007, , visited on 28 March 2009. Eesti Päevaleht, ‘Russia Refuses to Cooperate in Investigating Cyberattacks’, 6 July 2007, , visited on 28 March 2009.

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customary law with relation to cna.76 An alternative to extradition would be to administer justice to a person who has committed cna against another State in the cna’s State of origin.77 Estonia’s Role in the Development of cna-related Agreements or Standards? Professor D. Hollis, who studied the cyber attacks against Estonia, suggests the creation of the right of hot pursuit available to a State which is the object of a cyber attack as “nations could agree to waive sovereignty concerns and permit a direct response in certain cases, such as cyber attacks by terrorists that all nations might want thwarted”.78 The thought would suggest that it would be appropriate to allow the attacked State to use counter measures to defend itself from an attack with extraterritorial measures even if such countermeasures would violate the sovereignty of the State being the origin of the attacks. Let us assume that hackers from Russia were behind the attacks against Estonia, and they had no connections with either the government or the armed forces. According to the current procedure, Estonia should ask Russia to maintain law and order in its territory as a kinetic counterattack would represent violation of Russia’s sovereignty. According to proposed new standards of international law the States could leave aside all the worries related to their sovereignty and allow, in certain cases (as a community value all States should be interested in preventing the activities of cyber terrorists), the implementation of direct countermeasures by a State under attack.79 While this sounds sensible, the development of an appropriate regulation is highly doubtful as States do not wish to open a Pandora’s Box on the use of force, and the described 4.1

76

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78 79

Some States would suggest that the principle is of customary nature in relation to genocide, war crimes, crimes against humanity, torture, terrorism and corruption while the majority of States are of the opinion that the principle is a treaty-based obligation. A/CN.4/603, 10.06.2008, ilc Special Rapporteur’s Third Report on the Obligation to Extradite or Prosecute (aut dedere aut judicare), , pp. 20–22, visited on 15 April 2020. Israel prosecuted its own citizen for attacks against the US Department of Defense computer systems in 1998 called the ‘Solar Sunrise’. , visited on 15 April 2020; cnn, ‘Master Hacker “Analyzer” Held in Israel’, 18 March 1998, , visited on 28 March 2009; Israeli Hacker, ‘“The Analyzer” Indicted in New York’, , visited on 28 March 2009. D. Hollis, ‘E-War Rules of Engagement’, Los Angeles Times, 8 October 2007, , visited on 15 April 2020. Ibid.

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scenario would leave numerous opportunities for serious misconduct and abuse. Hollis also opines that Estonia wanted to construe cyber attack against the State as military activity (a new paradigm) and not as an act subject to penal power (the former paradigm). It can be assumed that in the future cyberspace will become the battlefield where military power is used, humanitarian law is applied and valid penal power framework may be imposed for combined effect.80 In a military sense, cyberspace can be treated as an asymmetric field even now as States are not necessarily combating each other; it is rather the case of non-State actors positioning themselves against a State (or joining in with the State). The establishment of the nato Cooperative Cyber Defence Centre of Excellence in Estonia may represent a progressive step for the purposes of international law. The birth and activities of the centre may provide beneficial practical experiences and legal evidence. In addition, cna can be regulated under national law, which could also provide the grounds for the birth of internationally acknowledged standards in the future. 4.2 Possible Developments of International Law in the Sphere of cna A way ahead could be the conclusion of a multilateral agreement, involving specific and accurate standards applicable to cna. In the given situation, the conclusion of a framework treaty that prescribes main and essential principles and gives States more freedom for the interpretation of specific aspects is more likely. Regionally, the conclusion of either bilateral or regional agreements (Council of Europe’s Convention on Cybercrime represents a step in this direction) may be possible – provided that there is political will. One way forward would be to draft new counterterrorism measures and agreements dealing with cybercrime and cyber terrorism. Measures preventing cybercrime have been taken both at the regional and global level to supplement national criminal law and international co-operation in the sphere of investigating and prosecuting such crimes. The main problem here is the difference of national law of different States or conflict of legal systems. Also, constitutional restrictions to extradition must be considered here.81 The format of an agreement for the prevention of cybercrime would be similar to the 80 Hollis, supra note 13, pp. 1026–1028. 81 Russia invoked a ‘constitutional ban’ recently in the Litvinenko case and refused to extradite the prime suspect, Andrei Lugovoi. cnn, ‘Spy Death: Russia Blocks Extradition’, 22 May 2007, , visited on 28 March 2009.

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other agreements related to fighting terrorism wherein a certain type of behaviour shall qualify as terrorist activity and will be subject to a certain procedure between the member States. The aforementioned would provide a universal jurisdictional basis, or quasi-universal jurisdictional bases, for certain types of crime. At the moment, cyber terrorism is not taken seriously enough to be a subject for such agreements, and cna must breach a high threshold to be considered as an issue worthy of international agreements.82 While the events that took place in Estonia in 2007 did not exceed this threshold, they can most certainly be interpreted as something more serious than common vandalism; therefore Estonia could have the opportunity to initiate the procedure for the conclusion of an agreement on the prevention of cyber terrorism. The main problem here is the fact that it is difficult to agree on which activities should be construed as cybercrime and ascertain where the line between common crime and terrorism should be drawn. Another category of potential agreements could restrict the sovereign freedom of States – declarative agreements on lawful principles, armament control agreements and humanitarian law agreements. A declarative agreement would involve the most general principles that States would be willing to observe for the purposes of implementing international law (for example, the Outer Space Treaty of 1967, stating that outer space is intended for common peaceful use by mankind). The pre-requisite for the conclusion of any declarative agreements would be a State’s evaluation of long-term national interests concerning cna. The crux of the matter is the abrupt and powerful development of information technology as it would be impossible to predict future situations with the required level of accuracy upon the conclusion of such agreements, and consequently States may be hesitant to sign a carte blanche treaty. With armament control agreements States could commit themselves not to develop, acquire or transfer certain cna capabilities or not to use their capabilities in a way that would be destabilising for the armament control regime or crisis management systems of another State. The pre-requisites and problems encountered when discussing this type of agreements are the same as with declarative agreements. Also, States will not always have a monopoly in cna capabilities, considering the interests and capacities of hackers and cyber terrorists themselves. Humanitarian law agreements usually restrict the use of certain types of weapons in the case of an armed conflict. The restrictions are justified by stating that the weapon may cause unnecessary suffering. Information technology weapons, adopted in cyber war, may not necessarily fit the  criteria on the grounds equivalent to conventional weapons. As general 82 Johnson, supra note 73, p. 445.

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­ umanitarian law principles and standards can be applied to cna, the effih ciency of such agreements is doubtful. Special standards applicable to cna would be more useful than agreements attempting to restrict the utilisation thereof.83 The conclusion of multilateral conventions, restricting the liberty of freedom of States, is not considered as realistic in the near future, as only very few countries, if any, have an understanding of the capacities and vulnerabilities related to cyber war, sufficient to promote the long-term national interests of such States.84 Bilateral agreements or agreements with a limited number of parties are most useful in a situation where a certain number of governments are directly involved with a concrete and common problem. This type of agreement represents a useful form of co-operation within regional scope. G8, the Council of Europe and the Organization of American States have used this to enter into regional conventions on cybercrime (and the nato process is, potentially through cyber defence policy, moving in this direction). There still will be potential risks related to cases exceeding the limits of regional agreements or where the organisations are dominated by some of the member States, thus turning the convention into a dead letter agreement.85 On an organisational plane the United Nations General Assembly has often shown initiative for the adoption of resolutions that request or invite the member States to pursue certain principles in their activities. While resolutions are not strictly regarded as law, they may still become customary law over time or contain nascent customary law. Unfortunately, at the moment, the General Assembly seems to be lacking the initiative. Considering the novelty of legal problems related to cna, the adoption of resolutions on cyber war is probably not realistic over the next decade.86 One alternative is represented by codification of customary law as a ‘manual’, as was done with the law of naval warfare by the International Institute of Humanitarian Law, or to enthuse progress by way of custom, codes of conduct

83

Ibid., pp. 446–450; D. Hollis, ‘New Tools, New Rules: International Law and Information Operations’, Temple University Legal Studies Research Paper No. 2007-15, , visited on 28 March 2009, pp. 16–17. 84 G. Evron, ‘Battling Botnets and Online Mobs: Estonia’s Defense Efforts during the Internet War’, 9 Georgetown Journal of International Affairs (2008) p. 126; Johnson, supra note 73, p. 450. 85 Johnson, supra note 73, pp. 451–452. 86 Ibid., p. 452.

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or rules of engagement where codification would be based on experience.87 Unfortunately, the summoning of the experts of the given sphere is highly unlikely for the lack of customary law to be codified for the purposes of cyber war. Adoption of best-practices guidelines seems to be realistic.88 The current mindset of States seems to be more domestic than international as States have identified that cna prevention and control is closely connected with regular home and private users. Estonia adopted in 2008 the Cyber Security Strategy,89 and President Obama’s administration is conducting at the moment a 60-day cyber security review to ascertain how to apply cyber security policy.90 The Center of Strategic and International Studies Commission on Cybersecurity for the 44th Presidency released a report on the same issues 8 December 2008.91 The aim of both documents is to raise the awareness of private computer users and the private sector to take responsibility for their computers and secure them against unwanted uses. Some authors argue that there exists a civic duty to secure private machines against becoming a part of botnet.92 Responsible civil conduct would minimise the risk of exploitation for the users but also for the State concerned as it enables the State to exercise diligence on its own territory and control, to a certain extent, that its sovereign territory is not used for conducting cnas against other states. Thus States are trying to get their houses in order before moving towards international measures. In general, future perspectives for the regulation of cna are stuck behind several obstacles. Firstly, legislative problems related to cna are not fully understood, mainly because of technological unpredictability. Secondly, traditional armament control agreements and humanitarian law conventions cannot be adapted for cna without being largely rewritten and re-conceptualised. 87

J. Kelsey, ‘Hacking into International Humanitarian Law: The Principles of Distinction and Neutrality in the Age of Cyber Warfare’, 106 Michigan Law Review (2007) p. 1427. 88 Johnson, supra note 73, p. 453. 89 Cyber Security Strategy, , visited on 15 April 2020. 90 usa Today, ‘Obama Taps Cybersecurity Expert to Assess U.S. Defenses’, 17 February 2009, < w w w. u s a t o d ay. c o m / t e c h / 2 0 0 9 - 0 2 - 1 6 - c y b e r s e c u r i t y- e x p e r t- o b a m a _ N. htm?loc=interstitialskip>, visited on 28 March 2009. 91 csis, ‘Securing Cyberspace for the 44th Presidency’, , visited on 15 April 2020. 92 J. Kelly and L. Almann, ‘eWMDs’, , visited on 15 April 2020.

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Thirdly, States have no explicit picture of the form of an international law regime that would promote their national interests in the best possible way in a long-term perspective with regard to cna. 5 Conclusion cna is a challenge for international law because at the moment the law applies by way of analogy and interpretation in jus ad bellum and jus in bello. There are no express norms or customs that would regulate the uncertainty of cna. The current framework of international law tries to fit the odd-shaped peg of cna into a predetermined context, but this is not a satisfactory long-term solution. But some applicable rules and principles are better than no rules, better than a legal vacuum that would leave cna out of legal reality. States and individuals with cna capabilities will use the ambiguity to their advantage, but this will also bring State practice and more clarity to law, albeit through actions and consequences that may be harmful and unforeseen. When Justice Oliver Wendell Holmes expressed that the life of law has not been of logic but of experience, he meant both the aforementioned and the possible future. The law is always behind the present, either by a step or two. Due to its flexible norm-creating procedure, international law only has to encounter a number of cna incidents that will change the paradigm and give the required incentive to create legal regulation concerning the use of information weapons. Until then States need to cope with the existing law. Where it regards the use of cna as use of force we can paraphrase Justice Stewart that we will know it when we see it or, in other words, law will recognise certain forms of cna as the use of force only after it has been factually established that it has been the use of force. While the more capable States have adopted either ambivalent or even an attitude of ignorance with regard to the regulation of cna over the last decade, some forms of co-operation may still be realistic, as demonstrated by the Council of Europe’s Convention on Cybercrime. Estonia’s contribution to n ­ ato’s cyber defence policy and the establishment of the Centre of Excellence may lead nato towards another agreement, which may expand the member States’ understanding of cyber law and cyber war and influence other States.

Volume 11 (2011): Lithuanian School of International Law. Traditions and Modern Developments

Legal Status of Lithuania’s Armed Resistance to the Soviet Occupation in the Context of State Continuity Dainius Žalimas* Contents 1 Introduction 2 Lithuania’s Armed Resistance to the Soviet Occupation: Main Facts and Figures 2.1 Origins of the Resistance 2.2 Emergence and Development of the Resistance 2.3 Head of the Resistance 3 Legal Status of the Resistance 3.1 Continuity of the Republic of Lithuania 3.2 Continuity of Nationality of the Republic of Lithuania 3.3 Legal Status of the Resistance Movement and Its Leadership 3.4 The 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement 3.5 Legal Status of the Head of the Resistance 4 Concluding Remarks Annex 1. Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement Annex 2. Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania 1 Introduction The tragic history of the Baltic States of 20th century has been a subject of scrupulous research by international lawyers. Though looking more closely to * The author of the text of the 12 March 2009 Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_008

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the period of occupations one can still find undiscovered pages that require deeper scientific inquiry. One of these pages is the Resistance against the second Soviet occupation that started in 1944.1 This theme has been consistently researched but only by historians. Thanks to them main historical facts about the Resistance have become known for the public, though until now the public in the West still lacks comprehensive knowledge about what happened in the Baltic States during the first decade of their second Soviet occupation. The Resistance also remains almost unnoticed by lawyers who could make their specific contribution in assessing this period of the Baltic history. In particular the legal assessment of the Resistance would be very important in the context of the continuity of the Baltic States. State continuity is usually grounded on two main pillars – the will of the State concerned and international recognition.2 The Resistance is clearly relevant to the first pillar of State continuity, i.e. the will of the State whose continuity is at stake. In particular when the continuity of a government is broken, the Resistance to a foreign occupation can take a central place in establishing the will of the State to survive that occupation. Therefore the character and aims of the Resistance to a foreign occupation should not be left aside in the research of State continuity. On the other hand, State continuity in the circumstances of a foreign occupation has its impact in assessing the Resistance itself. If a State is presumed to continue its existence under the occupation, then the members of the Resistance to that occupation cannot be treated as mere insurgents, rebels or, even worse, as members of illegal armed formations. They are rather to be perceived as legal combatants and representatives of the occupied State they are fighting for, i.e. the Resistance by the same token has to be understood as a manifestation of an international armed conflict between two States. All of the three Baltic States have the similar heroic history of the Resistance to the second Soviet occupation. The armed Resistance, which is a topic of this article, lasted approximately a decade (from 1944 to 1953) until it was suppressed. The second Soviet occupation met the fiercest, the longest and the most organised Resistance in Lithuania. The Resistance in Lithuania also adopted important legal and political documents relevant to the continuity of the State (e.g., see Annex 1 to this article). It had the leadership pretending to 1 As from 1940 the Baltic States have survived three occupations: the first Soviet occupation of 1940–1941, the Nazi occupation of 1941–1944(1945), and the latter was replaced by the second Soviet occupation from 1944 to 1990 (Lithuania) or 1991 (Latvia and Estonia). 2 As Ineta Ziemele points out, “State continuity is invoked when there is both the will of the State concerned and general acceptance of the international community”. Citation from I.  Ziemele, State Continuity and Nationality: the Baltic States and Russia (Past, Present and Future as Defined by International Law) (Koninklijke Brill NV, Leiden, 2005) p. 126.

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lead the country in the event of its liberation (see Annex 2 to this article). Therefore the subject of this article is namely the legal status of the armed Resistance to the second Soviet occupation in Lithuania and its significance to the State continuity, though by analogy the main legal characteristics of Lithuanian resistance movement could be also applied to the similar Latvian and Estonian movements. Apart from that, only Lithuania seems to have had a consistent and comprehensive legislation on the Resistance which also provides a political and legal assessment of the Resistance from a perspective of State continuity (see Annexes to this article). As the main provisions of this legislation are based on international law and the presumption of the State continuity, naturally they also fall within the scope of research made in this article. This article was also provoked by a unique political and legal act recently adopted in Lithuania. On 12 March 2009 the Seimas of the Republic of Lithuania adopted the Declaration on Recognition of Jonas Žemaitis as the Head of the State of Lithuania (see English translation of the text in Annex 2), whereby the Seimas recognised that the head of the organised and united armed Resistance to the second Soviet occupation, Jonas Žemaitis, had been the head of the State of Lithuania during his time in office of the Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement (Lietuvos Laisvės Kovos Sąjūdis) in 1949–1954. Moreover, the Seimas added that in that time Jonas Žemaitis had de facto performed the duties of the President of the Republic. The Declaration was introduced by the Minister of National Defence Rasa Juknevičienė who was also a member of the Seimas. It was adopted by 42 votes out of 141 members of the Seimas with 2 votes against and 5 abstentions (more than a half of the Seimas did not participate in debate on the Declaration and in voting).3 Indeed the Declaration, in particular its last statement about the de facto performance of the presidential duties, met quite a controversial reaction among the opposition of the Seimas. During a heated debate on the Declaration in plenary some members of the Seimas from the opposition had even assessed the Declaration as an attempt ‘to re-write’ or ‘to falsify’ history, or at least as disrespect of law. Before the Declaration was adopted, the Legal Department of the Chancellery of the Seimas had raised doubts about its legal 3 Voting results published in the official website of the Seimas of the Republic of Lithuania (, visited on 20 February 2011); Stenograph of the Seimas 45th morning plenary sitting of 12 March 2009 (, visited on 20 February 2011).

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consequences, though recognising that the Declaration was not of a normative nature.4 In particular the Legal Department of the Chancellery of the Seimas noted that, according to the 19 June 2002 Ruling of the Constitutional Court of the Republic of Lithuania,5 a specific legal status of the President of the Republic had to be different from the rest of State officials and therefore could not be denied by equating any other person to the President of the Republic; in addition, it was doubted whether the Declaration could produce any legal consequences in terms of constitutional guarantees (financing and residence) provided by the Constitution for the President of the Republic. Other members of the Seimas, mostly belonging to the ruling majority, rejected such kind of doubts.6 They stated that the Declaration was a symbolic declaratory rather than legal normative act, which could not by itself produce any legal consequences under the current 1992 Constitution. They also underlined that the aim of the Declaration was ‘to restore historical truth’ as the people of Lithuania had already recognised Jonas Žemaitis as their President, first and foremost the President of the fallen freedom fighters.7 The supporters of the Declaration concluded that the Declaration was correct in legal terms as it was in line with the continuity of the State of Lithuania. Therefore they were full of wonder how it could be reasonable at all to raise an issue of constitutional guarantees for a person who was killed more than 50 years ago. It was recalled ironically that the only residence Jonas Žemaitis had ever had was a  small, dark and damp underground bunker; therefore the only financial ­consequences of the Declaration might be the allocation of finances for the restoration of the bunker where the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement had been signed.8

4 The 12 March 2009 Note of the Legal Department of the Chancellery of the Seimas of the Republic of Lithuania on the Draft Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania, , visited on 20 February 2011. 5 The 19 June 2002 Ruling of the Constitutional Court of the Republic of Lithuania on the Law on State Pensions and the Law on the President of the Republic, , visited on 17 April 2020. 6 Supra note 3. 7 In this regard it should be mentioned that there is a famous biographical book about Jonas Žemaitis under the title ‘The President of the Fallen’: N. Gaškaitė-Žemaitiene, Žuvusiųjų prezidentas: Jono Žemaičio biografija (Lietuvos gyventojų genocido ir rezistencijos tyrimo centras, Vilnius, 2005, 2007), with Summary in English (‘The Life of the Murdered President Jonas Žemaitis: Summary’) at pp. 537–543. 8 In fact this bunker is restored as a museum in Minaičiai village, Radviliškis district (Lithuania).

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Leaving aside a political debate, the Declaration on Recognition of Jonas Žemaitis as the Head of the State of Lithuania seems to be a mere statement of historical fact and its legal evaluation from the perspective of Lithuanian statehood. As underlined by the Deputy Speaker of the Seimas Česlovas Vytautas Stankevičius during the parliamentary debate on this Declaration,9 the aim of the Declaration is to proclaim once more about the continuity of the Republic of Lithuania and in such a way to finalise a consistent attitude of the State towards the issue of who had been a legitimate authority in the Republic of Lithuania under the Soviet occupation. Indeed it is clear from the text of the Declaration that it is one of the legal acts expressing the continuity of the Republic of Lithuania, which has the specific aim to recognise to the Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement the status adequate to his legal status of that time.10 Therefore any doubt concerning the compatibility of this recognition with the current Constitution seems to be legally unfounded as the 1992 Constitution as such, including its provisions on the status of the President of the Republic, cannot be applied retroactively to the situation that existed in 1949–1954, i.e. to the relationships that existed and ended before the current Constitution entered into force.11 On the contrary, the preamble of the 1992 Constitution of the Republic of Lithuania12 does itself contain provisions regarding the continuity of the State and defence by the Nation of its freedom and independence. Therefore in principle the current Constitution and the 19 June 2002 Ruling of the Constitutional Court cannot be interpreted as preventing the Seimas from issuing declarations in order to restore historical justice and to make appropriate assessments of historical facts relevant to the Lithuanian statehood, including statements on the legal situation during the period of foreign occupations and the legal status of the Resistance to the occupations. Thus it is worth and interesting to analyse in more detail the Lithuanian legislation regarding the Resistance against the second Soviet occupation. Apart from the important constitutional issues, it also reflects the position and statement of the State of Lithuania on its continuity based on international law. Therefore it is also an illustrative example of interplay between 9 10

11 12

Supra note 3. V. Sinkevičius, ‘Lietuvos Laisvės Kovos Sąjūdžio Tarybos 1949 m. vasario 16 d. deklaracija Lietuvos teisės sistemoje’, in Regnum est: 1990 m. Kovo 11-osios Nepriklausomybės Aktui – 20. Liber Amicorum Vytautui Landsbergiui (Mykolo Romerio universiteto Leidybos centras, Vilnius, 2010) pp. 71–73. Ibid., pp. 71–72. See English text of the 25 October 1992 Constitution of the Republic of Lithuania, , visited on 20 February 2011.

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i­nternational and national law in establishing and assessing factors decisive for State continuity. 2

Lithuania’s Armed Resistance to the Soviet Occupation: Main Facts and Figures

It is reasonable to start with a historical background regarding Lithuania’s armed Resistance to the second Soviet occupation, including origins, development and leadership of the Resistance movement. In particular it is important to explain what was the Lithuanian Freedom Fight Movement (hereinafter – the lffm), the Declaration of which is a subject of further legal analysis as it has expressed the continuity of the State of Lithuania; besides, the leader of the lffm was recently recognised by the Seimas as the head of the occupied State of Lithuania. 2.1 Origins of the Resistance All the three Baltic States faced the ussr aggression and lost their independence in 1940 under analogous circumstances: in June the Soviet armed forces occupied the Baltic States upon presenting them almost identical ultimatums (with demands to permit entrance of unlimited number of the Soviet troops to be deployed in the most important centres and to change the governments), while in August the ussr annexed the territories of all three countries. Although the Baltic governments decided to accept the Soviet ultimatums and not to resist by force,13 that was not a choice of the Baltic people. Therefore, after a short period of confusion, underground Resistance organisations started to emerge spontaneously.14 They had been preparing armed ­uprisings with a hope to restore independence of their States in case of German 13

14

Most of the Baltic government structures and officials were forced to participate in the Soviet spectacle of the so-called socialist revolution by appointing the new ‘people’s governments’ under the dictate by Moscow envoys. The only exception was the President of Lithuania Antanas Smetona who managed to escape to Germany on the first day of the Soviet occupation. However, he had neither become the head of the State in exile nor he had performed another active political role as he had lost his authority among Lithuanian political forces. In 1944 A. Smetona died in a fire in the United States of America. See more about the Resistance in the Baltic States against the first Soviet occupation of 1940–1941: V. Brandišauskas, ‘Anti-Soviet Resistance in 1940 and 1941 and the Revolt of June 1941’; J. Ciganovs, ‘The Resistance Movement against the Soviet Regime in Latvia between 1940 and 1941’; T. Noormets, ‘The Summer War: the 1941 Armed Resistance in Estonia’, in The Anti-Soviet Resistance in the Baltic States (Pasauliui apie mus, Vilnius, 2006) pp. 8–22, 122–130, 186–208.

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i­ nvasion. In Lithuania such an organisation was the Lithuanian Activists Front (­hereinafter – the laf) led by Kazys Škirpa, the Lithuanian envoy to Berlin. Armed uprising against the Soviet occupants started on 22 June 1941 upon the beginning of the Nazi-Soviet war when the German Reich attacked the Soviet Union. The rebels attacked the retreating Soviet armed forces and sought to protect from destruction bridges, railways and other key infrastructure as well as to occupy radio stations, post offices, governmental and municipality buildings. The next day, on 23 June 1941, in Kaunas the Provisional Government of Lithuania, formed earlier by the laf, proclaimed the Declaration on the reestablishment of the free and independent State of Lithuania.15 The armed uprising lasted approximately until 28 June 1941 when the Soviet armed forces left the country. However, an attempt to restore the independence of Lithuania was doomed to failure as one occupant was only replaced by another, Nazi Germany. Hopes associated with Nazi Germany were too naive because in reality the Nazis had no plans to allow Lithuanian independence. Therefore, from the first day the activities of the Provisional Government of Lithuania were impeded by the Nazi occupation regime (the Prime Minister K. Škirpa was not permitted even to arrive to Lithuania from Berlin and the Minister of Education Juozas Ambrazevičius was the acting Prime Minister). After one and a half month, on 5 August 1941, the Provisional Government was disbanded, and the Nazi civil occupation administration was introduced earlier, already on 17 July. As it is  noted in the preamble of the Law of the Republic of Lithuania on the 16 ­February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1), the dissolution of the Provisional Government of Lithuania by the German occupation authorities “gave rise to the formation of Lithuanian resistance organisations against that occupation”. On 25 November 1943 those organisations were united under the umbrella of the Supreme Committee for Liberation of Lithuania, which later continued its activities abroad. During the second Soviet occupation it became the leading Lithuanian emigration organisation in the political struggle for liberation.16

15

16

As it is mentioned in the preamble of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1), “the armed uprising of 22–23 June 1941 by Lithuania and the 23 June 1941 Declaration by the Provisional Government of Lithuania did express the will of the Nation to restore an independent State”. This fact is also mentioned in the preamble of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1).

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Though unarmed, the underground Resistance to the German occupation was sufficiently effective.17 The Lithuanian population boycotted the Nazis mobilisation, and Lithuania was the only Baltic country in which they failed to create a national ss battalion. After a number of defeats in the Eastern front, in February 1944 the Nazis had to agree with the formation of the Lithuanian Local Corps intended for action only within Lithuania against the Soviet armed forces with a hope to contribute to eventual restoration of the independence of the State of Lithuania. Around 30 thousand men registered as volunteers into the Local Corps. However, the Nazis did not keep their promises and requested the total mobilisation of men as well as planned to reorganise the Local Corps and send them outside Lithuania. Since the command of the Local Corps rejected these plans, the Local Corps were disbanded and their commanders were repressed by the Nazis; meanwhile a few dozen soldiers were executed, over 3,000 arrested, and the rest escaped. Only when the Soviet armed forces were invading and reoccupying Lithuania in Western Lithuania did the Nazis permit to organise the Homeland Defence Corps. In October 1944 small and poorly armed units of the Homeland Defence Corps attempted to stop the advance of the Soviet armed forces in Western Lithuania, but they were defeated and scattered. 2.2 Emergence and Development of the Resistance Nevertheless the remains of the Local Corps and the Homeland Defence Corps had been able to become a basis for the future organised armed Resistance against the second Soviet occupation. A sufficient number of armed personnel, units and commanding structures were preserved in the country, and perhaps due to this reason the armed Resistance against the second Soviet occupation in Lithuania was the strongest, most organised and longest among the Baltic States. In addition, the Resistance was strengthened by the Soviet attempts to implement forceful mobilisation of the Lithuanian population to the Soviet armed forces from the first days of the second Soviet occupation as well as by the Soviet repressions and punitive operations against the population. Most of the men (86 per cent) did not obey to the Soviet ordered conscription; naturally, for most of them hiding in the forests and fighting against the occupants was the only choice. In particular in the beginning of the second Soviet 17

For more about the anti-Nazi Resistance in Lithuania see e.g. N. Gaškaitė-Žemaitienė, ‘The Partisan War in Lithuania from 1944 to 1953’, in The Anti-Soviet Resistance in the Baltic States (Pasauliui apie mus, Vilnius, 2006) pp. 25–26; Lietuva 1940–1990: okupuotos Lietuvos istorija (Lietuvos gyventojų genocido ir rezistencijos tyrimo centras, Vilnius, 2005) pp. 233–238, 241–245.

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occupation the majority of the Lithuanian population had expectations that the Soviet rule would not last long and that an eventual war of the Western powers against the ussr would allow to restore the independence of the State of Lithuania. Therefore initially the emerged Resistance had its main aim to weaken the Soviet presence in Lithuania as much as possible until the Western armies would come to liberate the country and by the same token to create favourable conditions for eventual restoration of the State machinery. When, in a later stage, it became clear that those hopes were not realistic, the armed Resistance tried to prepare itself for a longer period of underground activities. However, the mission of the Resistance had always remained the same, i.e. the restoration of the independence of the State of Lithuania.18 For all these reasons, in 1944–1945 more than 30 thousand partisans (freedom fighters) gathered in the forests (therefore their popular name was ‘forests brothers’). The partisans included cross-sections of the Lithuanian society from farmhands to professors. Their units were led by mostly the lower and middle rank officers of the Lithuanian armed forces (37 per cent of commanders), policemen (10 per cent of commanders), students (10 per cent of commanders) and teachers (10 per cent of commanders). The organised guerrilla war against the second Soviet occupation lasted approximately ten years, until 1953; however, the last active Resistance fighter fell in 1965, while the last hiding partisan managed to escape arrest and came out of his hideout at the very end of his life in 1986, only a year before the first anti-Soviet demonstration (on 23 August 1987) that started the National Revival in Lithuania ultimately leading to the restoration of the independence of the State of Lithuania on 11 March 1990. Undoubtedly the period of the organised armed Resistance of 1944–1953 had a tremendous contribution in preserving the living spirit of the Nation and the idea of the independent statehood. The whole organised guerrilla war of 1944–1953 against the second Soviet occupation can be divided into three stages.19 The first stage (July 1944–May 18

19

As it is stated in the preamble of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see ­Annex 1), “the goal of all the structures of armed and unarmed resistance was the liberation of Lithuania, relying upon the provisions of the Atlantic Charter and a sovereign right acknowledged by the democratic world, and by fighting with arms against one of the World War ii aggressors”. For more about this war against the Soviet Union see D. Kuodytė, R. Tracevskis, The Unknown War: Armed Anti-Soviet Resistance in Lithuania in 1944–1953 (Genocide and Resistance Research Centre of Lithuania, Vilnius, 2006); Gaškaitė-Žemaitienė, supra note 17; J. Starkauskas, ‘The nkvd-mvd-mgb Army’; A. Anušauskas, ‘A Comparison of the Armed Struggles for Independence in the Baltic States and Western Ukraine’; D. Kuodytė, ‘The Contacts between the Lithuanian Resistance and the West’, in The Anti-Soviet Resistance

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1946) is characterised by the general rebellion and fiercest fighting, the elements of territorial defence and positional warfare and the largest number of victims. Large partisan units numbering as many as 200 men had been operating, and their battles with the Soviet armed forces amounted to battles between regular armies. Partisans used to attack small towns by destroying offices of the occupation authorities, disarming the Soviet military personnel and the Soviet-supported punitive units of local collaborators (the so-called ‘destroyers’ (‘istrebiteljs’)). They also tried to prevent the so-called Soviet elections by attacking and destroying polling stations.20 Partisan units controlled a large part of rural and forests territories, at least at night. Big losses (more than ten thousand fighters fell) due to battles with the much larger Soviet armed units forced the partisans to change their tactics at the next stage of the war. The second stage of the war (May 1946–November 1948) can be characterised by the shaping of the Resistance organisational and command structures and military units, the formation of the joint Resistance military authority, avoidance of big open battles, military operations pursued by smaller mobile partisan units, the more intense underground political activities, including contacts with the West and widespread underground press. The number of active partisans decreased to a few thousand (up to four thousand), and the number of casualties also dropped significantly, a few times compared with the first stage of the war. The active partisan units were divided into smaller ones, and instead of construction of camps in the forests the partisans started to build well camouflaged bunkers in the forests or farm households of partisan supporters from the local population (most of them had been clammy and no bigger than walk-in closets, arranged for up to five persons). The third and final stage of the organised guerrilla war (November 1948– May 1953) can be characterised, on the one hand, by diminishing strength of the armed Resistance (due to massive deportations and forced collectivisation the Soviets succeeded in destroying the basis of the Resistance, independent farmers) and significant reduction in number of active fighters (there were no more than two thousand partisans), and, paradoxically, on the other hand, by

20

in the Baltic States (Pasauliui apie mus, Vilnius, 2006) pp. 23–83; P. Morkus, ‘The Call to Arms (1944–1953)’, in Resistance to the Occupation of Lithuania: 1944–1990 (The Genocide and Resistance of Lithuania Research Centre, Vilnius, 2002) pp. 6–21; Lietuva 1940–1990: okupuotos Lietuvos istorija, supra note 17, pp. 308–360. The elections held by the Soviet Union in the occupied Lithuania as well as in the ussr itself were fictitious: there were no choice for candidates, only Communist Party nominated candidates could take part in the ‘elections’, the real poll was not counted as it had always been determined by the Party (officially it was always around 100 per cent, sometimes even higher).

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the ultimate unification of all the Resistance movement, where the highest political and military authority of the Resistance was created (the lffm Council and its Presidium). The greatest attention of the Resistance was devoted to propaganda work. The organised armed Resistance came to an end on 30 May 1953 with the arrest of its supreme commander, the Chairman of the Presidium of the lffm Council Jonas Žemaitis (a partisan code name – Vytautas). In total some 22 thousand Lithuanian fighters and their supporters lost their lives in 1944–1953. The losses of the Soviet occupants, including their collaborators, were less, around 13 thousand, i.e. the number approximately equal to that of the Soviet losses in the 1979–1988 invasion of Afghanistan with a comparably similar duration.21 Though the precise number of the Soviet losses in Lithuania is unknown as the Soviet statistics are hardly reliable. The larger number of losses on the Lithuanian side can be explained by poor equipment and training of the partisans. Over 50 thousand people were engaged in the guerrilla war. Approximately 140 thousand people were sent by the Soviets to concentration camps and 118 thousand deported in relation to this war. The partisans continued the traditions of the Lithuanian armed forces. They had clear military and command structures, military statutes regulating their activity, followed military discipline ensured by court-martial system. Their military ranks in general corresponded to those of the Lithuanian armed forces before 1940. The partisans had to wear uniforms of the Lithuanian armed forces with corresponding distinctive signs. Thus the partisans complied with the criteria of combatants – soldiers of the volunteer armed forces – provided by international law of that time22 (e.g. under Article 1 of the Regulations Respecting the Laws and Customs of War on Land, annexed to the 1907 iv Hague Convention Respecting the Laws and Customs of War on Land,23 a volunteer soldier has to be considered a combatant if he is commanded by a person responsible for his subordinates, has a fixed distinctive emblem recognisable at a distance, carries arms openly and conducts operations in accordance with

21 Morkus, supra note 19, p. 20. 22 B. Gailius, The Guerrilla War of 1944–1953 in the Historical, Political and Legal Culture of Contemporary Lithuania: Summary of Doctoral Dissertation (Vilnius University, Vilnius, 2009) pp. 15–16; B. Gailius, 1944–1953 m. partizanų karas šiuolaikinėje Lietuvos istorinėje, politinėje ir teisinėje kultūroje: daktaro disertacija (Vilniaus universitetas, Vilnius, 2009) pp. 176–187; B. Gailius, Partizanai tada ir šiandien (Versus aureus, Vilnius, 2006) pp. 31–40; J. Žilinskas, ‘Lietuvos laisvės kovotojų statuso pagal tarptautinę teisę klausimai ir mgb agentų – smogikų bylos’, 2:16 Genocidas ir rezistencija (2004) pp. 96–102. 23 The text available at the website of the International Committee of the Red Cross (, visited on 20 February 2011).

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the laws and customs of war). Therefore the Soviets had to treat them as enemy soldiers (combatants) and, in the event of captivity, as prisoners of war. However, that did not happen and the Soviets disregarded international law. They called the Lithuanian partisans ‘bandits’ and ‘terrorists’ and persecuted them for mere participation in the Resistance movement. Moreover, the Soviet actions against the Resistance could be qualified as war crimes and crimes against humanity, as their punitive operations against the partisans were accompanied by extreme brutality and savageness. For instance, to intimidate and to threaten the population the Soviets used to disfigure the bodies of the fallen partisans and publicly display the mutilated corpses (usually undressed and tied with rosaries) in town squares for several days; the corpses used to be transported to other towns dragging them along the ground (after some time they were buried secretly in landfills, gravel pits, outside lavatories or old wells). Due to unbearable torture and summary executions of the captured partisans, the freedom fighters used to choose death instead of captivity by reserving the last bullet or explosive device in the battle for themselves. The hierarchical military-territorial Resistance structure consisted of squads, platoons, corps, districts and regions. A squad was the smallest group of partisans (it united partisans from one town or village), and several squads formed a platoon (it united partisans from several rural settlements); platoons were united into a corps uniting partisans from one area, and the latter (up to five corps) into districts; two to four districts were united into a region. In 1949 nine districts formed three regions24 – the South Lithuania Region, the East Lithuania Region and the West Lithuania Region. All larger partisan units had their chain of command. Initially the most active organiser of the Resistance was the Lithuanian Liberation Army (hereinafter – the lla) which had been established already during the Nazi occupation. However, this underground organisation was active only in Western Lithuania and did not comprise all the partisan forces. The unification of the partisan forces was continued on 5 May 1946 in the meeting of the South Lithuania partisan commanders which adopted the first political declaration of the partisans on the principles of the restoration of the independence of the State of Lithuania.25 Most of these principles were later included into the 16 February 1949 Declaration of the lffm Council.

24 25

All the districts and regions were enumerated in the preamble of the 16 February 1949 Declaration of the lffm Council (see Annex 1). Laisvės kovos 1944–1953 metais (Lietuvos politinių kalinių ir tremtinių sąjunga, Kaunas, 1996) pp. 249–250.

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As from 1946 the leadership in unification efforts was taken by the new o­ rganisation – the United Democratic Resistance Movement (hereinafter – the udrm), established on 6 June 1946. It succeeded in uniting the East and the South Lithuania regions; however, the further activities of the udrm failed due to infiltration of the Soviet security (the mgb) agents into the leadership of the organisation. The Soviets took over control of the organisation, created its fictitious centre and with its assistance liquidated a number of the partisan command structures. The plot was revealed by the partisans from the South Lithuania Region in 1947; however only in 1948 was the East Lithuania Region able to dissociate from the betrayers and the mgb agents. Undoubtedly, the failure of the udrm stopped the unification of all the partisan forces within Lithuania. In 1948 the initiative in the unification efforts was taken by the commander of the West Lithuania Region, captain Jonas Žemaitis. On 10 July 1948 he announced the intention to unify all the partisan forces under the umbrella of the new organisation – the Freedom Fight Movement (the lffm). On 18 N ­ ovember 1948 the commanders of the West and East Lithuania regions held a joint meeting26 and decided to restore temporarily the udrm Presidium; the South Lithuania Region was invited to join the Movement and to send its representatives to the united leadership of the Movement. Jonas Žemaitis – Vytautas was appointed the Commander-in-Chief of the udrm forces and the acting Chairman of the udrm Presidium. From 10 to 20 February 1949 the largest meeting of the partisan commanders took place in the bunker in Minaičiai village (Radviliškis district) where the representatives of all the partisan districts and regions participated. The meeting culminated in creating a unified political and military leadership of all the Resistance movement. Because the udrm organisation and its name was compromised and discredited, on 10 February 1949 it was decided to reorganise this organisation and to change its name into the Lithuanian Freedom Fight Movement (the lffm); the lffm Statute27 governing its structure and activities was also adopted on that day.28 On 16 February 1949 the meeting, acting as the lffm Council, adopted its famous and fundamental Declaration (see Annex 1) on the principles of the restoration of the independence and further governance of the Republic of Lithuania. The lffm Council also declared about the existence of martial law in Lithuania since the first day of its occupation (15 June 1940) and adopted a number of other documents.29 Jonas Žemaitis – ­Vytautas 26 27 28 29

Ibid., pp. 289–291. Ibid., pp. 322–343. Ibid., pp. 296–297. Ibid., pp. 297–307.

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was appointed the permanent Chairman of the Presidium of the lffm Council who had to become the acting President of the Republic upon the restoration of the independence of the State; he was also raised to the rank of partisan general. The leadership structure of the lffm, formed at the meeting of 10–20 February 1949, remained almost unchanged until the end of the organised guerrilla war in 1953. 2.3 Head of the Resistance Jonas Žemaitis was born on 15 March 1909 in Palanga30 (the 12 March 2009 Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania was adopted inter alia in commemoration of the 100th anniversary of his birth).31 In 1926 he entered the Kaunas Military School. He graduated from it in 1929 with the first officer rank (lieutenant). He served in various artillery regiments; from 1936 to 1938 he underwent advanced training in the French Artillery School at Fontainebleau. After this training he was promoted to the rank of captain and was appointed the commander of a training battery in the artillery regiment. During the first Soviet occupation of 1940–1941 the former Lithuanian armed forces were incorporated into the Soviet armed forces as the territorial corps of the latter in Lithuania. Jonas Žemaitis continued his service there until the beginning of the Nazi German invasion. Then in support of the armed uprising against the Soviets he together with most of other Lithuanian soldiers and officers left the Soviet armed forces and surrendered to the German armed forces. In July 1941 Lithuanians were released, and Jonas Žemaitis spent the rest of the Nazi occupation at his home in the Šiluva rural district near Raseiniai. At the beginning of the second Soviet occupation Jonas Žemaitis soon became involved in the underground Resistance movement. In April 1945 he joined the lla and became the chief of headquarters of a local corps operating in the Raseiniai district. Next year he became the commander of this corps, and soon he was elected the commander of a larger partisan unit, the Kęstutis district. In 1946–1947 Jonas Žemaitis united separate partisan units in Western Lithuania into larger ones, and in 1947 the Kęstutis district became involved into the structures of the udrm. However, Jonas Žemaitis had a critical attitude towards the structure of the udrm. He feared that it was too risky to keep the political leadership of the Resistance separate from its military wing, since, in his opinion, it was much easier for the Soviets to disclose and to arrest the members of a purely political body heading the Resistance movement and 30 31

For more about Jonas Žemaitis’ life see Gaškaitė-Žemaitienė, supra note 7. See Annex 2.

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then to take over control of the whole organisation. The successful infiltration of the mgb agents into the leadership of the udrm and partial destruction of this organisation only confirmed that Jonas Žemaitis had reasonable fears. Therefore he proposed to establish a single supreme political and military body responsible for formation of both strategy and tactics of the Resistance, which under the occupation would be led by commanders of the active partisan forces. This idea was implemented by the creation of the lffm and its Council in February 1949. In 1948 Jonas Žemaitis united the Kęstutis district and two more districts into the West Lithuania Region. He invited representatives of two other regions into the above mentioned February 1949 meeting, in which the lffm was established, Jonas Žemaitis was elected the Chairman of the Presidium of the lffm Council and the 16 February 1949 Declaration of the lffm Council was adopted. Jonas Žemaitis drafted most of the lffm founding documents. As the head of the Resistance, Jonas Žemaitis was very active. Soon he became famous not only as the underground leader, but also as ‘the underground President’ of Lithuania. He travelled around the partisan districts (mostly in the West Lithuania Region) visiting and inspecting the partisan units, issued a number of various orders, directives and announcements to the members of the Resistance and the population, organised publication of underground press. From December 1951 his activities were impeded by a hard disease (he was half-paralysed due to a stroke) that forced him to spend a year and a half in a cramped underground bunker. However, even then he met a number of commanders visiting him. At the beginning of 1953 he fully resumed his duties. All the time the Soviets were trying to find and either to arrest or at least to liquidate Jonas Žemaitis. They succeeded on 30 May 1953 when the bunker of Jonas Žemaitis was discovered. Jonas Žemaitis was taken alive, since the nkvd troops threw special grenades with sleeping gas into the bunker. Being in the enemy’s captivity Jonas Žemaitis did not bend to the occupants. He rejected all the proposals to collaborate in liquidation of the Resistance and refused to sign interrogation protocols. Nor did he betray any of the fighters or their supporters. He used to underline that he could not recognise the legality of the Soviet authorities and their jurisdiction over him. He also prepared his statements in the future proceedings in the so-called Soviet military tribunal, intending to state once more the illegality of the Soviet occupation and that only the ­partisan authorities could be considered as the legitimate authorities in Lithuania. One more unique historical fact should also be mentioned. In June 1953 Jonas Žemaitis was transported to Moscow ‘for negotiations’ with the Soviet Minister of the Interior Lavrenti Beria who at that time was the highest Soviet

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official after Stalin’s death. On 25 June 1953 an hour long tête-à-tête meeting between Beria and Žemaitis took place in the Lubianka headquarters, which officially was called a personal interrogation of Žemaitis by Beria. The precise content of the conversation is unknown as Beria’s personal archives still are not accessible to researchers. However, what is known is that Beria addressed Žemaitis as ‘the underground President’ and attempted to convince him to collaborate.32 It is supposed that Beria’s intention was to use the Resistance for the purposes of his new political course. ‘The negotiations’ were not renewed as the next day (on 26 June) Beria himself was arrested. However, this fact of ‘negotiations’ speaks about a certain recognition by the Soviets of the occupied State of Lithuania; it is a paradox, but it was the first meeting between the highest officials (heads) of two States, the occupied Republic of Lithuania and the Soviet Union – the occupying State. Jonas Žemaitis remained unbroken and devoted to the State of Lithuania until the last day of his life. As an illustration a few quotations can be provided from his statements in the so-called Soviet military tribunal proceedings in May–June 1954. Responding to the indictment by the Soviet authorities, Jonas Žemaitis stated: “I do not consider myself a citizen of the ussr … I consider that Lithuania is occupied by the Soviet Union … I do not plead guilty … I do not wish to be useful for the Soviet authorities. The Soviet authorities are the enemy of my country and my personal enemy.”33 Further speaking about his case, Jonas Žemaitis emphasised that it was the Soviet Union that had started the war against Lithuania, in which the partisans were defending their country. Jonas Žemaitis also stated: “I am not going to excuse myself. In advance I know what the court judgment will be … I have been fighting against the Soviet authorities, whom I consider illegal, and the court is the Soviet organ; therefore it can not be objective.”34 In his final statement Jonas Žemaitis underlined: “I, like all like-minded persons, consider that the Soviet Union invaded by its armed forces into our country. I treat this action of the Soviet government as illegal. Therefore I consider that I am not obliged to serve in the Soviet armed forces. I consider that all the actions of the underground, the participant of which I have been, against the Soviet authorities have been fair and not criminal … Still I believe that the fight I have been pursuing last nine years will bring its fruits.”35 That is why the 12 March 2009 Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of 32 Gaškaitė-Žemaitienė, supra note 7, pp. 360–367. 33 Ibid., p. 400. 34 Ibid., pp. 401, 404. 35 Ibid., pp. 405–406, 543.

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L­ ithuania (see Annex 2) underlined in particular that “Jonas Žemaitis had fulfilled his duties honourably and, being in captivity by an enemy from 30 May 1953 until his murder on 26 November 1954, he had remained devoted to his oath to the State of Lithuania”. Jonas Žemaitis was sentenced by the Soviets to death and was executed on 26 November 1954 in the Moscow Butyrki prison. His body was cremated in the same Butyrki prison. The whereabouts of his ashes are unknown. 3

Legal Status of the Resistance

Before analysing the legal status of Lithuania’s armed Resistance to the second Soviet occupation, it is worth to take a look at the more general issue of the continuity of the Republic of Lithuania and continuity of its nationality as a consequence thereof. As it was mentioned at the beginning of this article, the Resistance to a foreign occupation may play an important role in establishing the first pillar of the State continuity, i.e. the will of the State concerned to survive the occupation. The continuity of the Republic of Lithuania, as well as the continuity of the two other Baltic States who have survived the 50 year long occupation, is a well established legal fact in the practice of States. There is a sufficient uniformity of views on this issue in the legal doctrine as well as in general on the illegality of the 1940 annexation of the Baltic States.36 Therefore for the purposes of this article there is no need to examine in detail the continuity of the Republic of Lithuania. It is enough to recall its main aspects and then to deal with one of them, continuity of nationality.

36

E.g. the Baltic Yearbook of International Law has published a number of articles on the continuity of the Baltic States. See D.A. Loeber, ‘Legal Consequences of the Molotov-­ Ribbentrop Pact for the Baltic States: On the Obligation “to Overcome the Problems Inherited from the Past”’, 1 Baltic Yearbook of International Law (2001) pp. 121–166; T.D. Grant, ‘United States Practice Relating to the Baltic States, 1940–2000’, 1 Baltic Yearbook of International Law (2001) pp. 23−110; R. Satkauskas, ‘The Practice of France with Respect to the Baltic States’, 1 Baltic Yearbook of International Law (2001) pp. 111–120. On the continuity of the Republic of Lithuania see D. Žalimas, ‘Legal Issues on the Continuity of the Republic of Lithuania’, 1 Baltic Yearbook of International Law (2001) pp. 1–21; D. Žalimas, ‘The Soviet Aggression against Lithuania in January 1991: International Legal Aspects’, 6 Baltic Yearbook of International Law (2006) pp. 314–331. See also e.g. Ziemele, supra note 2, pp. 17–43, 63–93; L. Mälksoo, Illegal Annexation and State Continuity: The Case of the Incorporation of the Baltic States by the ussr (Martinus Nijhoff Publishers, Leiden, 2003); R.A. Vitas, The United States and Lithuania: the Stimson Doctrine of Non-recognition (Praeger, New York, 1990).

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3.1 Continuity of the Republic of Lithuania The continuity of the Republic of Lithuania has been grounded on the general principle of law ex injuria jus non oritur. The 15 June 1940 Soviet armed invasion into Lithuania and the subsequent military occupation of its territory was to be considered an aggression.37 This legal qualification cannot be changed by the fact that Lithuania was forced to consent to the invasion and did not resist.38 One may recall how the Nuremberg Tribunal evaluated the analogous case of the 1938 annexation of Austria. It was treated as an act of aggression, since the alleged Austria’s consent and even desire to unite with Germany was regarded as “really immaterial for the facts plainly prove that the methods employed to achieve the object were those of an aggressor. The ultimate factor was the armed might of Germany ready to be used if any resistance was encountered.”39 Besides, it is not true that hostilities had not taken place in Lithuania. Actually the Soviet aggression was started by a number of armed attacks against the Lithuanian border police stations prior to when the term of the ultimatum expired.40 .

37

38

39 40

The Soviet acts were first of all grave breaches of Articles i and ii of the 1928 Paris Treaty on the Renunciation of War as a Means of National Policy (the Briand-Kellogg Pact), i.e. of the international legal obligations not to resort to war and to settle all disputes solely by peaceful means. They met the definition of the term ‘act of aggression’ as defined in paragraph 2 of Article ii of the Convention for the Definition of Aggression between Lithuania and the ussr, namely, it was an “invasion by armed forces, with or without a declaration of war, of the territory of another State”. This bilateral Convention was identical to the multilateral London Convention for the Definition of Aggression also signed in 1933 by the ussr and nine other States, including Estonia and Latvia. Both conventions were based on the Briand-Kellogg Pact which, according to the Parties, as stated in the preambles of both conventions, “prohibits all aggression”. Therefore, both conventions on the definition of aggression clarified the meaning of aggression as prohibited already by the Briand-Kellogg Pact, i.e. their object was to give more precision to the obligations arising from the Pact. See I. Brownlie, International Law and the Use of Force by States (Clarendon Press, Oxford, 1963) pp. 75–76, 103; P. Kūris, Atsakomybės tarptautinėje teisėje problemos (Vilniaus valstybinis V. Kapsuko universitetas, Vilnius, 1970) p. 43. Here particular attention has to be drawn to the fact that on 14 June 1940 upon presenting the ultimatum to Lithuania the Soviets threatened that in any case, whether Lithuania would agree with the demands of the ultimatum or not, the Soviet troops would move into the Lithuanian territory. Extract from the Judgement of the International Military Tribunal for the Trial of German Major War Criminals. See the website of the Avalon Project at Yale Law School (, visited on 17 April 2020). On 29 April 2010 the Seimas of the Republic of Lithuania adopted the Resolution on the 70th Anniversary of the Murder of the Border Police Officer A. Barauskas and the Beginning of the Aggression of the Soviet Union against the Republic of Lithuania (Lithuanian text of the Resolution is available at the official website of the Seimas of the Republic of  Lithuania: , visited on 20 February 2011). In the Resolution the Seimas stated that in the early morning of 15 June 1940, prior to the expiration of the term of the Soviet ultimatum, a squad of the Soviet armed forces invaded the territory of the Republic of Lithuania, attacked the Lithuanian Ūta border police station and savagely murdered the unarmed chief guard Aleksandras Barauskas. The Seimas emphasised further that “in such a manner the ussr started the aggression against the Republic of Lithuania seeking to intimidate anyone who would dare to resist. The armed attack against the Ūta border station and the murder of its chief guard Aleksandras Barauskas is one of the facts that deny the Soviet fabrications that armed force has not been used against Lithuania and that Lithuania itself has admitted the ussr armed forces.” That is why the special role the Diplomatic Service of the Republic of Lithuania in striving for liberation of Lithuania is underlined in the preamble of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1).

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a­ nnexation of the Baltic States.42 As regards the former pillar, the will of the State of Lithuania to survive the occupation, the continuous Resistance to the Soviet occupation with the aim to restore the independence of the country played a key role.43 That was demonstrated first and foremost by the strong armed Resistance to the second Soviet occupation which is the subject of this article. Although the armed Resistance was suppressed in a decade, it brought its fruits later. On the first occasion the Resistance came from the underground together with the Lithuanian Freedom League and the Lithuania Sąjūdis in 1987–1988, and that ultimately led to the restoration of the independence of the Republic of Lithuania in 1990. 3.2 Continuity of Nationality of the Republic of Lithuania The continuity of nationality logically follows from the continuity of statehood44 because nationality is dependent upon statehood.45 Therefore, if a State is continuing to exist, then, as a corollary, its nationality also is retained and its nationals cannot disappear. Certainly during the period when statehood is at stake, e.g. under a foreign occupation, ties between a State and its

42

See for comprehensive review of State practice concerning non-recognition of the annexation of the Baltic States and the continued recognition of their legal existence W.J.H. Hough iii, ‘The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory’, 6:2 New York Law School Journal of International and Comparative Law (1985). See also the relevant resolutions of the Parliamentary Assembly of the Council of Europe and the European Parliament: Council of Europe, Parliamentary Assembly, On the Situation in the Baltic States on the Twentieth Anniversary of Their Forcible Incorporation into the Soviet Union, Resolution No. 189(1960), 29 September 1960, , visited on 17 April 2020; Council of Europe, Parliamentary Assembly, On the Situation of the Baltic Peoples, Resolution No. 872(1987), 28 January 1987, , visited on 17 April 2020; European Parliament, Resolution, 13 January 1983, Hough, p. 439. In all these resolutions it was stated that the Soviet annexation had not gained recognition and, as a corollary, a great majority of the democratic States continued to recognise the independent existence of the Baltic States. 43 One may also refer to other manifestations of the will of the State of Lithuania, such as the continued functioning of the diplomatic missions of the Republic of Lithuania in some countries, the activities of Lithuanians in forced emigration, aimed at liberation of their Homeland. 44 Ziemele, supra note 2, pp. 12, 388, 391; I. Ziemele, ‘The Citizenship Issue in the Republic of Latvia’, in Citizenship and Nationality Status in the New Europe (Sweet & Maxwell, London, 1998) pp. 193–194. 45 J. Crawford, The Creation of States in International Law (Clarendon Press, Oxford, 2006) p. 52.

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nationals may be weakened, but the legal link between them cannot be broken until extinction of the State. Continuity of nationality of the illegally occupied State is safeguarded by international law. First of all, any imposition on nationals of the illegally occupied State of the nationality of the occupying State is illegal, null and void due to the operation of the above mentioned principle ex injuria jus non oritur.46 Secondly, in addition to that, there is a specific guarantee for the continuity of nationality of an occupied State: namely, an occupying power has a specific duty not to impose its nationality on a national of an occupied territory.47 Thus imposition on nationals of the Republic of Lithuania of the Soviet citizenship in 1940, as a consequence of the aggression (illegal occupation and annexation), was an act contrary to international law. As mentioned, the annexation itself was null and void as it was an act continuing the aggression. Therefore the change of nationality following from the annexation could not produce any legal results and also had to be treated as null and void. By the same token, that means that under international law nationals of the Republic of Lithuania retained their nationality.48 That is why all the persons who had been nationals of the Republic of Lithuania prior to the Soviet occupation of 15 June 1940 and their descendants had to be presumed automatically

46

47

48

Imposition of nationality of an occupying power on nationals of an occupied State is regarded as one of the most serious breaches of international law. See K. Marek, Identity and Continuity of States in Public International Law (Librairie E. Droz, Geneve, 1954) p. 83. Under Article 45 of the 1907 Regulations Respecting the Laws and Customs of War on Land (Annex to the iv Hague Convention Respecting the Laws and Customs of War on Land) “it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile power”; that clearly includes prohibition to impose nationality of an occupying power on nationals of an occupied State. Meanwhile, according to Article 51 of the 1949 Geneva Convention Relative to the Protection of Civilian Persons in Time of War (iv Geneva Convention), “an occupying power may not compel protected persons to serve in its armed or auxiliary forces”; that kind of restriction can be explained only by the continuity of nationality of an occupied State and, as its corollary, the prohibition to change that nationality. See the texts of both conventions in the website of the International Committee of the Red Cross ( and , visited on 20 February 2011). See D. Žalimas, Lietuvos Respublikos nepriklausomybės atkūrimo 1990 m. kovo 11 d. tarptautiniai teisiniai pagrindai ir pasekmės (Demokratinės politikos institutas, Vilnius, 2005) pp. 35, 290–297, 329.

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as ­continuing the nationality of the Republic of Lithuania,49 while the Soviet nationality imposed on them had to be regarded as null and void.50 Therefore, under both international law and Lithuanian national law, nationals of the Republic of Lithuania could not have any commitments and obligations of loyalty towards the Soviet State (e.g., they were not obliged to comply with conscription to the Soviet armed forces). Moreover, as nationals of the illegally occupied State, they had a legitimate right to resist the occupation as well as to form any organisations and authorities for that purpose. Their Resistance to the occupation was legal and could be regarded as manifestation of self-defence pursued on behalf of their State.51 The corollary of that is the 49

50

51

This principle was declared in the 1989 Law on Citizenship of the Lithuanian ssr which was oriented towards the restoration of the independence of the State of Lithuania and the restoration of Lithuanian nationality, as a consequence (upon the restoration of the independence this Law automatically became the Law of the Republic of Lithuania). The principle was confirmed in the subsequent 1991 and 2002 laws on citizenship. According to the legislation, Lithuanian nationality was automatically (ex lege) recognised to the persons who had been nationals of the Republic of Lithuania prior to 15 June 1940 as well as to their descendants. As the Constitutional Court of the Republic of Lithuania noted in its 13 April 1994 Ruling on the constitutionality of the Resolution of the Seimas on the citizenship matters (, visited on 20 February 2011) these persons had only to request documents certifying their Lithuanian nationality. See Ziemele, supra note 2, pp. 167–169; D. Žalimas, ‘Sąjūdis ir Lietuvos Respublikos nepriklausomybės atkūrimas’, in B. Genzelis and A. Rupšytė (eds.), Kelias į Nepriklausomybę: Lietuvos Sąjūdis, 1988–1991 (Šviesa, Kaunas, 2010) p. 178. Nullity of the imposition of the Soviet nationality on Lithuanian nationals was declared inter alia in the 13 April 1994 Ruling of the Constitutional Court of the Republic of Lithuania (supra note 49). In its 13 November 2006 Ruling on the citizenship of the Republic of Lithuania (, visited on 20 February 2011) the Constitutional Court further confirmed that “‘citizenship of the ussr’ and ‘citizenship of the Lithuanian ssr’ which were imposed (on Lithuanian nationals) by … force, were and are null and void”; the Court went on to say that “even though the citizens of the Republic of Lithuania temporarily used the passports of citizens of the ussr … , they could not be treated as citizens of the ussr, i.e. as citizens of the State which had declared them as its citizens against their own will”. As it follows from the preamble of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1), the armed Resistance of 1944–1953 is treated as the self-defence of the State of Lithuania against the Soviet occupation. Similarly, under Article 1(2) of the Law of the Republic of Lithuania on Rehabilitation of Persons Repressed for Resistance to the Occupation Regimes, the Resistance fight is assessed as the expression of the Nation’s right to self-defence (Valstybės žinios (Official Gazette), 2008, No. 137-5368; , visited on 20 February 2011). The armed fight of 1944–1953 by the forces of nationals of the Republic of Lithuania (volunteer soldiers) against the second Soviet occupation was assessed as the self-defence of the Republic of Lithuania against the ussr aggression also by the 12 March 2009

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­ resumption of innocence of all those Lithuanian nationals who have been p repressed by the Soviet authorities for their part in the Resistance, irrespective of whether they have been repressed in an extrajudicial (summary) way or sentenced in accordance with judicial procedure for crimes against the Soviet State and its totalitarian regime.52 3.3 Legal Status of the Resistance Movement and Its Leadership There are a number of rules of State continuity and identity.53 They include the presumption of State continuity in case of occupation and illegal annexation of the territory of a State54 (here Lithuania in 1940–1990 together with the other two Baltic States may be provided as a striking example). As international law does distinguish between change of personality of a State and change of the government of that State, there is also the rule of State continuity in case of the change of government:55 State continuity is presumed in the event of revolutionary changes in government or even when temporarily there is no functioning government at all56 (e.g., if the government was dissolved or disbanded due to a foreign occupation of the country). Thus the Republic of Lithuania continued to exist after the 15 June 1940 Soviet invasion despite the dissolution of its last legitimate government upon the invasion (the puppet ‘people government’ introduced by the Soviet Union after the invasion could not be regarded anymore as the government of the Republic of Lithuania). These presumptions of State continuity (both the presumption applied in case of occupation and illegal annexation and the presumption applied in case of absence of the government) are decisive in determining the legal status of Lithuania’s armed Resistance to the second Soviet occupation. Due to the continuity of the State of Lithuania and its nationality, the Resistance Movement has to be differed from classical national liberation movements striving for self-determination by establishing an independent State. The Resistance was ­ eclaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis D as the Head of the State of Lithuania (see Annex 2). 52 As mentioned already (see supra note 47), under Article 45 of the 1907 Regulations Respecting the Laws and Customs of War on Land “it is forbidden to compel the inhabitants of occupied territory to swear allegiance to the hostile power”. Therefore the occupying power is forbidden to persecute nationals of the occupied State mere for the resistance or lack of loyalty (e.g., for the so-called anti-state crimes). 53 Marek, supra note 46, pp. 15–126. 54 See also Crawford, supra note 45, pp. 688–690. 55 Ibid., pp. 678–680. 56 Ibid., p. 34.

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acting on behalf of the already existing State of Lithuania and sought to defend that State against the foreign occupation and restore its independence.57 As mentioned, nationals of the occupied Republic of Lithuania had a legitimate right not to comply with the Soviet rule and to form the Resistance organisations and authorities. Therefore the armed Resistance as such had indeed to be regarded as self-defence of the State of Lithuania against the Soviet occupation. Meanwhile the guerrilla war against the Soviet occupation had to be regarded as an international armed conflict – a war between two States, the Soviet Union as an occupying power and the Republic of Lithuania as an occupied State represented by the Resistance Movement.58 Thus it is only logical that, secondly, the armed forces of the Resistance had to be regarded as the belligerent forces of the Republic of Lithuania (i.e., the armed forces of a State rather than insurgents or rebels). Under international law the members of these forces had to be entitled to the status of combatants and, in case of captivity, prisoners of war. Refusal by the Soviet authorities to grant them such a status as well as the refusal in general to apply laws and customs war in the conflict with Lithuanian partisan forces could amount at least to war crimes.59 That is why under the current Lithuanian legislation the Resistance forces are treated as the armed forces of the Republic of Lithuania. For instance, under Article 1(2) of the Law of the Republic of Lithuania on Rehabilitation of

57

As it is emphasised in the preamble of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1), “the goal of all the structures of armed and unarmed resistance was the liberation of Lithuania, relying upon the provisions of the Atlantic Charter” (the Atlantic Charter provided for the regaining the freedom of states conquered during the World War ii); while Article 1(1) of this Law states that the lffm “comprised military formations and public groups, was led by a united leadership and pursued resistance by political and military means and fought for the liberation of Lithuania”. 58 Gailius, The Guerrilla War of 1944–1953 in the Historical, Political and Legal Culture of Contemporary Lithuania: Summary of Doctoral Dissertation, supra note 22, pp. 23–24. 59 It is worth to recall here that under common Article 2 of the 1949 Geneva conventions (including the iii Geneva Convention relative to the Treatment of Prisoners of War) (see the texts of the Geneva conventions at the website of the International Committee of the Red Cross: , visited on 20 February 2011) the rules provided therein had to be applied “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them”, as well as “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”; they had also to be applied to any State, not a party to the conventions, if the latter had accepted these rules.

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Persons Repressed for Resistance to the Occupation Regimes,60 “the participants of the Resistance are declared to be the Volunteer Soldiers of Lithuania and their military degrees and awards shall be recognised”; on 3 July 1997 the Seimas of the Republic of Lithuania passed the special Law on Recognition of the Legal Status of the Members of the Resistance to the 1940–1990 Occupations and Equation of Military Degrees and Awards of the Volunteer Soldiers.61 Finally, as a consequence of the State continuity, the leadership of the centralised armed Resistance to the second Soviet occupation, i.e. the lffm Council, is considered to have been the legitimate government of the Republic of Lithuania, though it lacked the constitutional continuity with the pre-­occupation government (it was not formed in accordance with the last valid Constitution of the Republic of Lithuania). However, the constitutional continuity does not constitute a necessary prerequisite even for the government-in-exile62 that does not exercise any authority in the occupied State (the most important for the government-in-exile is to have an effective link with the population of the occupied country). In general the term ‘government’ may be characterised by two aspects: the actual exercise of authority and the right or title to exercise that authority.63 Against this background the lffm Council can be seen as sufficiently effective under the circumstances of the foreign occupation. Contrary to any ­government-in-exile, it exercised a certain effective authority in the occupied country (as it was mentioned, the Resistance forces controlled significant rural and forests territories, its leadership adopted a number of decrees and orders, e.g., as mentioned, the lffm Council declared martial law).64 However, more 60 61

Supra note 51. Valstybės žinios (Official Gazette), 1997, No. 67-1673; , visited on 20 February 2011. This Law in general corresponds to the orders by the lffm Council issued to its armed forces on wearing the uniforms of the Lithuanian armed forces and using the same system of military degrees and their distinctive emblems (see e.g. the Protocol of the 17 February 1949 Meeting of the lffm Council, in Laisvės kovos 1944–1953 metais, supra note 25, pp. 297–307). 62 Marek, supra note 46, pp. 97–99; Crawford, supra note 45, p. 688. 63 Crawford, supra note 45, p. 57. 64 That implied approval by the supreme Resistance authority of emergency laws and administration already introduced by regional Resistance authorities. In addition, as much as it was possible in the circumstances of the Soviet occupation, the lffm Council and its subordinate authorities carried out legislative, administrative and judicial activities. For instance, on 11 October 1949 the lffm Criminal Statute was adopted (see Laisvės kovos 1944–1953 metais, supra note 25, pp. 357–358). It provided for criminal responsibility for the activities against the lffm and local population and collaboration with the enemy

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i­ mportant is that the lffm Council at that time (in 1949–1953) was the only authority (the belligerent government) having the right and title to act on behalf of the occupied State in administering its affairs. There was no competing government (neither in exile, nor on the occupied territory) claiming to represent the State of Lithuania (the still acting Lithuanian diplomatic service abroad (legations to some other States) was not considered to be the government-­inexile).65 The lffm Council was sufficiently representative to express the will of people of the occupied State.66 It represented all the segments (both political and military) of the Resistance.67 On the other hand, it is only logical that without a strong and continuous support of the local population the activities of the whole Resistance Movement would not be possible for such a long time (around a decade) under the fiercest conditions of the Soviet occupation when the occupying forces exceeded significantly in number the Resistance forces and the Soviet totalitarian regime pursued massive repressions against the population. Thus the source of the powers of the lffm Council to represent the occupied country was the sovereign will of the Lithuanian people (i.e., the corpus of nationals of Lithuania). It is clear that under the Soviet occupation there were no possibilities for the Lithuanian people to form their government in accordance with the procedures provided by the last valid Constitution of the Republic of Lithuania. The only available way to establish this kind of authority was by utilising the structures of the Resistance Movement. It is generally recognised that emergency circumstances can render imperative the creation of emergency laws; “when a state of emergency exists … the constitution does not apply first and foremost, but the vital interests of State and people”.68 The Soviet occupation can serve as an excellent example of that kind of state of emergency.69 Therefore, from the standpoint of constitutional law of the Republic of Lithuania, the lffm Council has to be regarded as the supreme ­representative with sanctions from a warning to a capital punishment. The Criminal Code was enforced by the lffm court-martial system. 65 Mälksoo, supra note 36, p. 154. 66 Sinkevičius, supra note 10, pp. 56–57, 66. 67 It follows from the preamble of the 16 February 1949 Declaration of the lffm Council (see Annex 1). 68 Citation from Marek, supra note 46, p. 98. 69 Against this background one can also recall that the Lithuanian Council that declared the independence of Lithuania on 16 February 1918 was also formed by the Lithuanian people under the foreign occupation without holding free elections. On the other hand, the Supreme Council that restored the independence of Lithuania on 11 March 1990 was elected not in accordance with the last valid Constitution of the Republic of Lithuania. However neither the legitimacy nor the constitutional powers of these organs have ever been

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authority of the State of Lithuania vested with powers to express the sovereign will of its people.70 Certainly the effectiveness of the lffm Council on an international scale was prevented by the lack of international recognition of this supreme body of Lithuania’s Resistance to the second Soviet occupation. Therefore the Lithuanian legations abroad were considered to represent the last internationally recognised government of the Republic of Lithuania (dissolved upon the Soviet invasion on 15 June 1940) rather than political and military leadership of the Resistance. It was too risky for the Lithuanian diplomatic service to subordinate itself to the Resistance authorities whose situation was too fragile. On the other hand, the Lithuanian legations, though not being legally subjected to the lffm Council, represented the interests of the Resistance on an international scale indirectly, i.e. the legations promoted and protected the interests of the Resistance Movement as the interests of Lithuanian nationals. Therefore the relationship between the lffm Council and the Lithuanian diplomatic service abroad can be characterised as cooperation for the sake of a common aim of liberation of the country and not as unnecessary competition.71 One must also keep in mind the primarily political and declaratory character of recognition. Both the situation in the Soviet Union and the international realities of the 1950s were not promising to the success of the Resistance. The liberation of Lithuania was unlikely in the earliest possible future. Therefore it was natural that other States restricted their policy by the general non-­recognition of Lithuania’s annexation rather than going further by recognising the lffm Council as the government of Lithuania. However, absence of international recognition cannot alter the objective fact of the existence of the lffm Council as well as it cannot challenge its powers and the real authority it performed in the occupied Lithuania. Thus, similarly as in the case of the unrecognised Estonian government-inexile,72 it would be wrong to admit that the Resistance Movement in Lithuania q­ uestioned and they have been recognised as legitimate governments of the Republic of Lithuania. 70 Sinkevičius, supra note 10, p. 56. 71 That is reflected in paragraph 10 of the 16 February 1949 Declaration of the lffm Council (see Annex 1): “[F]or the coordination of the activities by the Lithuanians abroad and the restoration of Lithuania, the lffm Council Presidium shall maintain the lffm Delegation Abroad that, in co-operation with the representatives of Lithuania accredited to the Western States, shall establish commissions and delegations to defend and represent Lithuania’s interests before the United Nations Organisation, at various conferences and other international institutions.” 72 See more on the Estonian government-in-exile during the Soviet occupation Mälksoo, supra note 36, pp. 149–156.

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and its leadership (the lffm Council) played no role in determining the legal status of the occupied Republic of Lithuania and keeping its continuity unbroken. The Resistance Movement demonstrated the determination of Lithuanian nationals to keep and preserve their statehood as well as to reject the Soviet rule. In other words, the Resistance Movement was the strongest possible negation of the Soviet occupation regime by the State and people of Lithuania. Due to the Resistance the Soviet rule in Lithuania could not be regarded as uncontested and the annexation of Lithuania had never been legalised by Lithuania’s consent or prescription.73 That is why the Resistance is a cornerstone of the first pillar of the continuity of the Republic of Lithuania, i.e. the will of the State to survive the occupation. On the legal level this important role of the Resistance Movement can be seen from the legal acts of the lffm Council. To sum it up, in the context of State continuity there is no alternative than to treat the lffm Council as the belligerent government and the supreme representative authority of the Republic of Lithuania of that time. That is reflected in Article 2(2) Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1), which states that “the Council of the Lithuanian Freedom Fight Movement … constituted the supreme political and military structure leading this fight and was the sole legitimate authority within the territory of the occupied Lithuania”.74 In such a way it is also demonstrated that the lffm Council and not the Soviet authorities (including the Lithuanian ssr) was the only legitimate authority to act on behalf of the occupied State of Lithuania and its people. As a consequence, one may conclude that the lffm Council possessed all the necessary constitutional powers to define its constitutional status, to declare the continuity of the State of Lithuania as well as to establish the constitutional principles for the eventual restoration of the independence of the State and its future constitutional order. The lffm Council realised these powers by adopting the Declaration of 16 February 1949 which is the subject of further analysis.

73 Žalimas, supra note 48, pp. 29, 143–150. Certainly international non-recognition of the Soviet annexation of Lithuania played no less important role in precluding the extinction of the State of Lithuania. 74 This provision of the Law relies on paragraph 1 of the 16 February 1949 Declaration of the lffm Council (see Annex 1), whereby the lffm Council declared itself to be “the supreme political body of the Nation, in charge of the political and military fight for the liberation of the Nation”.

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The 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement The 16 February 1949 Declaration of the lffm Council (see its text in Annex 1) may be regarded as the most important act of the Resistance with both constitutional and international legal implications. From an international legal viewpoint the Declaration may be seen as a unilateral act of the State of Lithuania stating about the continuity of that State and expressing the will of its people to preserve that continuity. From the perspective of constitutional law, it may be treated as a temporary mini constitution of the occupied Lithuania. Apart from the determination of the status of the lffm Council (paragraph 1 stating that the Council is the supreme political body of the Nation), the Declaration provided for the constitutional guidelines for the restoration of the independence of the Republic of Lithuania and the main constitutional principles for the future legal order of the State. As regards the former provisions, political guidance and military command of the fight for the restoration of the independence of the State was undertaken by the lffm Council itself (paragraph 1 of the Declaration). It had to perform this mission until the end of the occupation when its powers had to be undertaken by the Provisional National Council and the Provisional Government. For the implementation of the Declaration the lffm Council had the power to issue necessary regulations (paragraph 13), while for coordination of its activities with Lithuanian organisations in exile and the Lithuanian diplomatic service the lffm Council Presidium had to establish the lffm Delegation Abroad (paragraph 10 of the Declaration). During the transitional period from the liberation until the convocation of a democratically elected parliament (the Seimas), the legislative power had to be exercised by the Provisional National Council (paragraph 6 of the Declaration) that had to be widely representative (under paragraph 7 of the Declaration the Council had to include of both the military (i.e., representatives from military regions and districts) and civil society (representatives from high schools, cultural and religious organisations, political parties)). The executive power had to belong to the Provisional Government that had to be formed upon the assignment of the Chairman of the lffm Council Presidium (the acting President of the Republic) and had to be accountable to the Provisional National Council (paragraph 9 of the Declaration). The functions of the head of the State – the President of the Republic – had to be temporarily performed by the Chairman of the lffm Council Presidium (paragraph 8 of the Declaration). It is a particular provision of the Declaration (paragraph 14) that set the temporary constitutional framework for the period until the adoption and promulgation by the future Seimas of a new Constitution. The restoration of 3.4

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the independence and the governing of the State had to be conducted “in accordance with the provisions declared by this Declaration75 and in the spirit of the 1922 Constitution of Lithuania”. Namely the reference to the 1922 Constitution deserves more attention. It meant that the temporary administration of the State had to be temporarily governed not by the last valid Constitution of 1938. Rather it was decided to follow the 1922 Constitution that was not even preceding the 1938 Constitution (the 1922 Constitution had de facto lost its force upon the military coup d’état in 1926, though formally it lost its force with the promulgation of the new Constitution of 1928, and the latter was replaced by the 1938 Constitution that was the last one in the inter-war period). This decision can be explained by the strong negative attitude of the signatories of the 16 February 1949 Declaration of the lffm Council towards the authoritarian super-presidential regime under the 1938 Constitution. From the tragic experience of the country they fully realised all the threats to the Lithuanian statehood posed by that kind of regime76 (the authoritarian regime of the President A. Smetona, which come into power after the 1926 coup d’état, was also blamed for failure to maintain the independence of the State).77 Meanwhile the 1922 Constitution was the only Constitution of a democratic nature and content. Therefore it was natural to refer to that Constitution when deciding to re-establish the democratic parliamentary order. On the other hand, this reference was made with a certain reservation: the country had to be governed not in strict formal compliance with the 1922 Constitution, but in accordance with its ‘spirit’. That supposes that the 1922 Constitution was acceptable for the signatories of the Declaration only in principle, but not as a whole78 (had it been acceptable, there would be no need for a new Constitution envisaged by the Declaration). The point is that the 1922 Constitution established another extreme form of the government, a kind of super-parliamentary republic (the 75 The 16 February 1949 Declaration of the lffm Council. 76 Sinkevičius, supra note 10, pp. 62–63. 77 The President A. Smetona called himself the Leader of the Nation. All the State power was concentrated in his hands: e.g., he substituted the legislative power as the Parliament (the Seimas) was dissolved after the 1926 coup and for a decade there was no functioning Parliament at all, even when formed in 1936 it had only a symbolic role. However A. Smetona was not able to consolidate the Lithuanian society in the face of catastrophic developments. In 1938–1940 Lithuania accepted one after another ultimatums from Poland (in 1938, as a result, Lithuania lost its principal stand to condition the relationships with Poland by the regaining control over the Vilnius region), Germany (in 1939, as a result, Germany seized the Klaipėda region) and the Soviet Union (in 1939, as a result, Lithuania lost its neutrality and consented to the Soviet military presence on its soil; in 1940, as a result, Lithuania lost its independence and was occupied). 78 Sinkevičius, supra note 10, p. 63.

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so-called ‘seimocracy’), where the Seimas had extensive powers with regard to the executive and the principle of division of powers (checks and balances) did not exist. That prevented from ensuring the political stability in the State as well as ultimately led to sudden radicalisation of the society, which resulted in the overthrow of the democratic order by the coup d’état in 1926. One may ask whether the reference to the 1922 Constitution was compatible with the principle of State continuity as it was not to the last valid Constitution. One may also compare this reference with the decision to restore validity of the 1938 Constitution upon the restoration of the independence on 11 March 1990. Though it was more a symbolic rather than practical decision as the 1938 Constitution was restored only in part and only for a moment79 (immediately upon the restoration of its force the 1938 Constitution was suspended and the temporary Constitution (the Temporary Fundamental Law) was introduced until the new permanent Constitution of 1992 entered into force). However, the signatories of the 16 February 1949 Declaration of the lffm Council preferred to make a clear difference between the State continuity and the continuity of political regime: emphasising the State continuity, by the same token, they were willing to distance themselves from the previous authoritarian regime and to demonstrate continuity of the democratic tradition. For this purpose the reference to the spirit of the 1922 Constitution was the best legal solution. As regards the State continuity, it was not affected by that solution: this issue belongs to the domain of national legal order (constitutional law), and the mere change of the State constitutional order cannot challenge the continuity of that State under international law. Therefore, for international law the fact which constitution was chosen for reinstatement is not so important.80 To demonstrate continuity of the State, it would be sufficient to declare about the continuity of its constitutional order in general, regardless which constitution would serve for the restoration of the legal order. The latter issue is a purely domestic matter of any State. The 16 February 1949 Declaration of the lffm Council provided for the following main constitutional principles of the future State legal order:81 1) Lithuania had to be a democratic republic (paragraph 3); 2) the sovereignty of the Nation (paragraph 4); 3) respect for human rights and democratic aspirations (paragraph 14); 4) universal, free and democratic elections to the parliament (paragraph 5); 79

See Žalimas, ‘Legal Issues on the Continuity of the Republic of Lithuania’, supra note 36, pp. 12, 18–19. 80 Žalimas, supra note 48, pp. 31–32, 209. 81 Sinkevičius, supra note 10, pp. 61–65.

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5) equality in rights of citizens (paragraph 15); 6) respect for religion (paragraph 18); 7) socially oriented policy of the State (paragraphs 19 and 20). Most of these principles are currently embodied by the 1992 Constitution,82 though the Declaration was not used by the drafters of the current Constitution.83 The above-mentioned reference to the 1922 Constitution in paragraph 14 of the 16 February 1949 Declaration of the lffm Council alone would be sufficient to establish that the Declaration provided for a parliamentary republic as a form of organisation of the State. This conclusion could be strengthened by paragraph 5 of the Declaration which provided that the State power had to be exercised by the Seimas, as the legislative, and the Government, as the executive. The President of the Republic was not even mentioned in this context. In all probability, that implied for this office only a nominal role for the head of the State. In addition, as follows from the wording of paragraph 5 of the Declaration, the formation of the Government had to be dependent on the elections to the Seimas; consequently, the Government had to be accountable to the Seimas rather than to the President. A few specific provisions of the 16 February 1949 Declaration of the lffm Council also deserve to be mentioned. First to be mentioned is paragraph 16 which contains the specific legal safeguard of statehood and constitutional ­order – the ban on the Communist Party. This Party was declared illegal as dictatorial and contrary to the independence and other fundamentals of the constitutional order of Lithuania. The special prohibition of the Communist Party can be explained by the circumstances and experience of that time: it was namely the Communist Party that had established dictatorship and totalitarian regime in the Soviet Union and introduced it in the occupied Lithuania; the Communist Party had been both the organiser and a tool of the Soviet aggression and repressions; it was the main pillar of the Soviet occupation. Therefore paragraph 16 resembled implementation of the concept of ­‘democracy capable 82

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See supra note 12. E.g., Article 1 of the 1992 Constitution states that “the State of Lithuania shall be an independent democratic republic”, Article 2 proclaims that “sovereignty shall belong to the Nation”, Article 18 acknowledges the natural character of human rights and freedoms, Article 29 declares the principle of equal rights, Article 55 sets the principles of universal and democratic parliamentary elections, etc. It was not possible as the precise text of the 16 February 1949 Declaration of the lffm Council was not yet known. Its original copy was found in the kgb archives a few years after they had been taken over by the Lithuanian authorities in 1991. That is also the reason why the Declaration was not referred by the 11 March 1990 legal acts on the restoration of the independence.

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to defend itself’, which later emerged and was developed under the framework of Article 17 of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms. Against this background one may recall the 20 July 1957 Decision of the European Commission of Human Rights on admissibility in the case of Communist Party (kpd) v. the Federal Republic of Germany,84 where the Communist Party was characterised in a similar way: the Commission noted that the aim of the Communist Party, that is the establishment of “the communist social order by means of a proletarian revolution and the dictatorship of the proletariat”, was contrary to the Convention; in practice such a Party had intended to destroy the rights and freedoms set forth in the Convention and ultimately had sought the destruction of democracy. Prohibition of the Communist Party was not intended to bring about legal responsibility of each member of that Party. As follows from paragraphs 15 and 17 of the 16 February 1949 Declaration of the lffm Council, only persons who by collaborating with either the Soviet or the Nazi occupiers (here it should be noted that under paragraph 17 of the Declaration both the Communist Soviet Union and the Nazi Germany were treated as the enemies of the State of Lithuania) had committed the crimes resulting in damage for the Resistance, the State or its people had to be held legally responsible. It is worth to mention that, as the 16 February 1949 Declaration of the lffm Council has been acknowledged as a legal act of the Republic of Lithuania,85 paragraph 16 of the Declaration establishing the ban on the Communist Party is probably the only provision of the Declaration which may still have practical significance and may be enforceable even today (most of other provisions of the Declaration either have become obsolete or have been embraced, as constitutional principles, into later constitutional acts). Though it may also be regarded as a specific part of the general ban on the totalitarian and similar antidemocratic parties under Article 4(3) of the current Law of the Republic of Lithuania on Political Parties.86 84 85 86

Communist Party (kpd) v. the Federal Republic of Germany, 20 July 1957, European Commission of Human Rights, no. 250/57, 1 Yearbook 1957, p. 222. Article 3 of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1). Article 4(3) of the Law on Political Parties reads as follows: “[I]t shall be prohibited to ­establish and operate the political parties whose founding documents or programme-­ related documents propagate or who practise national, racial, religious, or social inequality and hatred, methods of authoritarian or totalitarian rule, forcible seizure of power, war and violence propaganda, violations of human rights and freedoms, public order, other ideas and actions conflicting with the Constitution of the Republic of Lithuania, laws of the Republic of Lithuania and inconsistent with universally-recognized rules of

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The completely new development in the Lithuanian constitutional law was paragraph 22 of the 16 February 1949 Declaration of the lffm Council. First of all, by virtue of paragraph 22 of the Declaration, the State of Lithuania for the first time in its history expressed its commitment to universal human rights standards.87 That was done by reference to the Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948. As follows from the wording of paragraph 22 of the 16 February 1949 Declaration of the lffm Council, the Universal Declaration of Human Rights was seen as binding on the State of Lithuania, since Lithuania expressed its determination to make its contribution in establishing the world order based inter alia on implementation of the Universal Declaration of Human Rights. It was a unique commitment, since at that time Lithuania was occupied and thus had substantial difficulty in exercising its sovereignty; but only two months had passed from the adoption of the Universal Declaration of Human Rights when Lithuania for the first time referred to that Declaration as the binding international legal act88 (this commitment of the State of Lithuania was renewed after the restoration of the independence, when on 12 March 1991 the Supreme Council of the Republic of Lithuania passed the Resolution on the Accession of the Republic of Lithuania to the Documents of the International Charter of Human Rights,89 whereby the State of Lithuania solemnly pledged to follow the Universal Declaration of Human Rights).90 The decision to follow the Universal Declaration of Human Rights demonstrated not only wisdom of the signatories of the 16 February 1949 Declaration of the lffm Council. It rather reflected the turn of the State of Lithuania towards democratic order as well as its completely different values and completely different orientation from that of the occupier – the Soviet Union (it is worth to recall here that in the UN

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international law.” See English text of the current version of the Law, , visited on 20 February 2011. Nowadays Article 135 of the 1992 Constitution of the Republic of Lithuania (see supra note 12) is understood as the commitment to follow the international human rights standards. E.g., the Constitutional Court of the Republic of Lithuania in its 9 December 1998 Ruling on the death penalty provided for by the sanction of Article 105 of the Criminal Code (, visited on 17 April 2020) noted that “the State of Lithuania, recognising the principles and norms of international law, may not apply virtually different standards to the people of this country”. See V Milašiūtė, ‘Lithuania: Subtle Material Impact’, in V. Jaichand and M. Suksi (eds.), 60 Years of the Universal Declaration of Human Rights in Europe (Intersentia, Antwerp, 2009), pp. 357–359. See English text , visited on 20 February 2011. See Milašiūtė, supra note 88, pp. 364–365.

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General Assembly the ussr together with its satellites abstained from voting for the Universal Declaration of Human Rights).91 Thus, secondly, from paragraph 22 of the 16 February 1949 Declaration of the lffm Council one can also trace the origins of the constitutional principle of geopolitical orientation of the State and even its aspiration to join the European and transatlantic collective defence system92 (one can recall that the 16 February 1949 Declaration was adopted less than two months before the signature of the North Atlantic Treaty, i.e. at that time the negotiations and drafting of that Treaty was at its final stage). Indeed, that provision of the Declaration for the first time in a clear manner declared the geopolitical orientation of the State of Lithuania towards the Western democracies, i.e. the Euro-Atlantic community of democratic States (it was resolved to contribute to the efforts by other nations to found the world order on such values as justice, freedom, real democracy and human rights;93 there was also the reference to the Atlantic Charter, the Universal Declaration of Human Rights and other documents proclaiming these values). In addition, the lffm Council appealed “to all of the democratic world for assistance in implementing its goals”. That may be regarded as the first appeal by the State of Lithuania for assistance in its self-­ defence, which at that time was not heard. Thus it can be reasonably stated that only in 2004, with its membership in North Atlantic Treaty Organization (nato) and the European Union (EU), did Lithuania realise its geopolitical aspirations (including that of collective defence), already expressed in 1949. The current Constitution of Lithuania94 includes two constitutional acts reflecting the principle of geopolitical orientation of the State: the Constitutional Act on the Non-Alignment of the Republic of Lithuania to Post-Soviet Eastern Unions (there is the constitutional prohibition to accede to any union of the former Soviet republics, including the Commonwealth of Independent States, based on the former dependence to the Soviet Union) and the Constitutional Act on Membership of the Republic of Lithuania in the European Union. The 91

See Official Record of the 183rd Plenary Meeting of the UN General Assembly, Official Records of the UN General Assembly, Third Session, Supplement No. A/PV.183, p. 933, , visited on 17 April 2020. 92 Sinkevičius, supra note 10, p. 65. 93 It is worth to note that the same democratic values were declared in the preamble of the North Atlantic Treaty (the founding nato treaty), signed on 4 April 1949. There the Parties to the Treaty expressed their determination “to safeguard the freedom, common heritage and civilisation of their peoples, founded on the principles of democracy, individual liberty and the rule of law”. See the text of the North Atlantic Treaty, , visited on 20 February 2011. 94 See supra note 12.

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Constitutional Court of the Republic of Lithuania twice confirmed that the principle of geopolitical orientation of the State means its membership in the EU and nato as well as the necessity to fulfil the corresponding obligations related with those memberships.95 To sum it up, as adopted by the supreme representative authority of the belligerent Republic of Lithuania, by virtue of Article 3 of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1) the 16 February 1949 Declaration of the lffm Council is declared to be a legal act of the State of Lithuania. As regards its place and force within the national legal system, the Declaration is  one of the fundamental constitutional acts of the Republic of Lithuania, which, by its nature and role in establishing the constitutional fundamentals of contemporary independent statehood of Lithuania, stands along with the 16 ­February 1918 Act of Independence, adopted by the Lithuanian Council, and the 11 March 1990 Act on the Re-establishment of the Independent State of Lithuania, adopted by the Supreme Council of the Republic of Lithuania.96 All three acts are considered to be the primary sources of Lithuanian constitutional law, as all those acts have been adopted by the then supreme representative authorities of the State and people of Lithuania; all of them are in force and safeguarded by the current Constitution of Lithuania (this kind of constitutional protection follows, e.g., from the preamble of the current Constitution, which refers to the defence for centuries of the freedom and independence of the nation, as well as from Articles 1–3, which proclaim the constitutional principles of independence, democracy, sovereignty of the Nation, the right of the Nation to self-defence in cases where its independence, territorial integrity or constitutional order are in danger).97 Thus the 1992 Constitution has incorporated all the main principles of these constitutional acts. Obviously both the 11 March 1990 Act and the 16 February 1949 Declaration followed from the 16 February 1918 Act, as the cornerstone of all the subsequent constitutional acts. Both the 11 March 1990 Act and the 16 February 1949 Declaration sought to implement in the concrete historical situation the imperatives of the 16 February 1918 Act.

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See the following rulings of the Constitutional Courts: the 15 March 2011 Ruling on international military operations, exercises and other events of military co-operation, , visited on 17 April 2020; the 7 July 2011 Ruling on state secrets and official secrets, , visited on 17 April 2020. See Sinkevičius, supra note 10, pp. 65–67, 70–71. See supra note 12.

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In conclusion, the 16 February 1949 Declaration of the lffm Council may be regarded as an unique act in European (or at least in Lithuanian) legal history and culture. It is a document Lithuania should be proud of because it is inspiring due to the perpetual belief of its drafters in the survival and liberation of the country;98 it has also reflected and united the painful experience, the firm determination to fight for freedom and the deep insight into the future of statehood of the Lithuanian people.99 3.5 Legal Status of the Head of the Resistance The last important issue following from the 16 February 1949 Declaration of the lffm Council and recently pronounced by the Seimas of the Republic of Lithuania is the legal status of the head of the Resistance, i.e. the legal status of the Chairman of the lffm Council Presidium Jonas Žemaitis – Vytautas.100 Thus further analysis of this issue aims also at shedding light on the most important provisions of the 12 March 2009 Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania (see the text of this Declaration in Annex 2). It is only logical that if the State of Lithuania had not ceased to exist during the Soviet occupation and the highest Resistance authority had been the belligerent government and the supreme representative authority of the occupied country, then the head of this authority has to be considered as the head of the State of Lithuania at that time.101 Thus, as follows from the text of the 12 March 2009 Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania, its adoption was a logical continuation and the consequence of the previously adopted Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (see Annex 1), which recognised

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One should keep in mind that the 16 February 1949 Declaration of the lffm Council was drafted and adopted at the time when the Soviet rule in the occupied Lithuania was strengthening by brutal repressive measures and any hope for liberation was decreasing with each new day. The Declaration was drafted and adopted in the underground bunker by the chief partisan commanders who did not have any special legal background. But they were true Statesmen feeling by heart how to express the sufferings and demands of their Nation. On the other hand, as noted in the preamble of the Declaration (see ­Annex 1), the Declaration expressed, incorporated and developed the principles already pronounced by some previous Resistance bodies, though due to the lack of centralisation of the Resistance they had not been so representative as the lffm Council. 99 Sinkevičius, supra note 10, p. 55. 100 Vytautas was a nom de guerre (a partisan code name) of Jonas Žemaitis. 101 Sinkevičius, supra note 10, p. 72.

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the lffm Council as the sole legitimate authority within the territory of the occupied Lithuania. However, it would be wrong to state that the status of the head of State was retrospectively granted to the head of the Resistance by the said 12 March 2009 Declaration of the Seimas. That Declaration was only a statement of as well as  political and legal assessment of the fact that existed irrespective of the ­Declaration. The status of the head of the State had been acquired by the head of the Resistance (the Chairman of the lffm Council Presidium) due to the 16 February 1949 Declaration of the lffm Council.102 As noted in the 12 March 2009 Declaration of the Seimas, this status followed from the 16 February 1949 Declaration of the lffm Council as the latter had entrusted the Chairman of the lffm Council Presidium with many powers of the head of the State. Expressly the 16 February 1949 Declaration of the lffm Council mentioned only two powers characteristic to the head of the State (paragraphs 8 and 9), and both of them had to be exercised upon the liberation. These powers were to be the acting President of the Republic and to form the Temporary Government. Therefore it could be supposed that the person who had been empowered to perform the duties of the President upon the liberation of the country was likely to be considered as the head of the State, provided that in fact he also performed other official duties typical for any head of the State. The latter duties were implied by the 16 February 1949 Declaration of the lffm Council; expressly they were defined by the subsequent acts adopted in implementing the Declaration by the lffm Council (it was entitled to pass the necessary regulations under paragraph 13 of the Declaration) or developed in practice. In the 12 March 2009 Declaration the Seimas took note of the two general powers typical for any head of the State – “the functions of the Commander-in-Chief of the fighting armed forces of the Republic of Lithuania103 and the supreme official in charge of a political struggle of the State for liberation”.104 102 Ibid. 103 This function followed inter alia from the decisions adopted by the lffm Council at its first meeting of 11–17 February 1949. See the Protocol of the 17 February 1949 Meeting of the lffm Council, in Laisvės kovos 1944–1953 metais, supra note 25, p. 300. He made the appointments of the senior partisan commanders, issued the orders to the Resistance forces and granted military ranks for their members (see e.g. Gaškaitė-Žemaitienė, supra note 7, pp. 233, 276–290, 449–450, 453–460, 464–472, 475–477). 104 E.g., the Chairman of the lffm Council Presidium Jonas Žemaitis had in fact represented the interests of the Resistance and the State by sending and receiving correspondence from the Supreme Committee for Liberation of Lithuania in exile, which recognised the leadership of the Resistance as the highest authority of the State, and from the Chief of the Lithuanian diplomatic service S. Lozoraitis, by sending envoys to represent the interests of the Resistance abroad, by proclaiming on behalf of the State of Lithuania that it

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The most important act, though not the only one, to define the powers of the head of the Resistance was the lffm Statute,105 paragraphs 41–46 of which governed the activities of the Chairman of the lffm Council Presidium. Under this Statute, the Chairman of the lffm Council Presidium was entitled to head and manage the whole Resistance movement (the lffm); he was the direct and supreme chief of the lffm units, who was responsible for the preparation of the lffm and the whole country for eventual liberation. The head of the Resistance was also empowered to represent the lffm and to conclude treaties as well as to adopt other legal acts on its behalf, to issue the directives on all the issues related to the lffm activities, to coordinate the lffm activities with other factors relevant to the issue of liberation, to confer military ranks of officers and awards to the members of the Resistance forces, to approve the structure of the Resistance forces, to grant pardons to convicted persons, to issue decrees that had to be considered valid unless annulled by the lffm Council or its Presidium, etc. Thus, taking into account all the formal and factual duties of the Chairman of the lffm Council Presidium Jonas Žemaitis as well as his unbroken devotion to his oath to the State of Lithuania, by the 12 March 2009 Declaration the Seimas recognised him as the Head of the State of Lithuania fighting against the occupation, who had performed his duties from the adoption of the 16 ­February 1949 Declaration of the lffm Council to his death in captivity on 26 November 1954. The most debatable issue was not the recognition of the head of the Resistance as the head of State, but rather the statement of the Seimas about de facto performance by the head of the Resistance of the duties of the President of the Republic. One of the arguments against such a statement was that, although the head of the Resistance might be considered as the head of the State with the specific to that time title of the Chairman of the lffm Council Presidium, he might not be treated as the President of the Republic, since paragraph 8 of the 16 February 1949 Declaration of the lffm Council granted to him the power to hold the office of the President of the Republic only upon the restoration of independence of the State of Lithuania, which was not a case. However, one may see from the wording of the 12 March 2009 Declaration of the Seimas that the head of the Resistance is considered as the former head of the State de jure, who only de facto (i.e., not in accordance with the law) performed the duties of the President of the Republic. There should be no could not take part in the spectacle of the Soviet ‘elections’; he was also conceived by the enemy as the underground President of Lithuania. See e.g. Gaškaitė-Žemaitienė, supra note 7, pp. 212–213, 249–258, 423; Gaškaitė-Žemaitienė, supra note 17, p. 43. 105 See Laisvės kovos 1944–1953 metais, supra note 25, pp. 322–343.

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c­ ontradiction between regarding him as the de jure head of the State and the de facto acting President. The statement about the de facto performance of the presidential duties can be explained by the fact that the title of ‘the President of the Republic’ is a traditional constitutional name of the office of the head of the State of Lithuania.106 By the way, under the 1922 Constitution the lffm Council was referring to as well as the subsequent constitutions,107 the powers of the President of the Republic were similar to those of the head of the Resistance under the lffm legal framework (e.g., to be the Commander-in-Chief of the armed forces, to confer military ranks and State awards, to grant pardons, to represent the State, to send and to receive envoys, to appoint State officials, to sign treaties, to promulgate laws, to issue decrees, etc.). To conclude, the 12 March 2009 Declaration of the Seimas on Recognition of Jonas Žemaitis as the Head of the State of Lithuania is a mere statement of fact and legal assessment of that fact by the current supreme representative authority of the Republic of Lithuania. The Declaration has only recognised to the head of the Resistance the status adequate to the legal situation of that time.108 Therefore it may be regarded as an important pronouncement on the matter of historical truth and one of the symbolic acts stating the unbroken continuity of the State of Lithuania and the illegality of the Soviet rule in the occupied Lithuania.109 4

Concluding Remarks

Certainly the legal status of liberation movements during and shortly after World War ii, including the armed resistance against a foreign occupation, remains a controversial issue in the doctrine of international law. International law of that time may be regarded as not clear or at least ambiguous on the issue

106 Sinkevičius, supra note 10, p. 72. 107 K.L. Valančius (ed.), Lietuvos valstybės konstitucijos (Ekonomikos mokymo centras, Vilnius, 2001). 108 Sinkevičius, supra note 10, p. 71. 109 L. Baublys, ‘Faktiniai ir teisiniai istorinio teisingumo paradoksai (de jure – 1990 m. kovo 11 d., de facto – 1940 m. liepos 21 d.?)’, in Regnum est: 1990 m. Kovo 11-osios Nepriklausomybės Aktui – 20. Liber Amicorum Vytautui Landsbergiui (Mykolo Romerio universiteto Leidybos centras, Vilnius, 2010) pp. 312–314.

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of legal s­ tatus of members of liberation movements (guerrillas) fighting against the occupation of their countries. Therefore one may argue that it would be ­perhaps too categorical to treat the leadership of Lithuania’s armed Resistance to the second Soviet occupation as the legitimate government and the supreme representative authority of the occupied country. One may also question whether the head of the Resistance could be regarded, in particular retrospectively, as the head of the State or even as the de facto acting President. To support his doubts one may recall the fact that neither the leadership (the lffm Council) nor the head of the Resistance has ever been internationally recognised. However, I would prefer to seek as much as possible clear and unambiguous answers to the difficult questions, including the challenges posed by the history to a lawyer. Therefore I have to agree that the assessment given retrospectively by the Seimas of the Republic of Lithuania to the Resistance and its leadership provides for those answers, has strong legal logic and more than any other possible evaluation corresponds to the ideas of justice and rule of law. If the continuity of the Republic of Lithuania during the period of foreign occupations is well established, then it is only logical that this continuity of the State of Lithuania has to bring about the following important conclusions: first, the continuity of nationality, which entitled nationals of Lithuania to retain their nationality as well as to resist to the occupations, including by resorting to armed Resistance; secondly, the armed Resistance itself has to be regarded as the legitimate self-defence of the existing State of Lithuania against the Soviet occupation; thus, thirdly, the Resistance forces have to be regarded as the armed forces of the Republic of Lithuania; consequently, fourthly, the supreme Resistance authority (the lffm Council) has to be regarded as the legitimate government and the supreme representative authority of the occupied Republic of Lithuania at that time; meanwhile, fifthly, the head of that authority (the head of the Resistance – the Chairman of the LFFM Council Presidium) has to be recognised as the then acting head of the State of Lithuania; finally, sixthly, by the same token, the Soviet authorities, including those of the Lithuanian ssr, established on the Lithuanian soil have to be regarded as illegal. Indeed, in the context of the continuity of the State of Lithuania it would be difficult to find any other consistent and logical construction to clarify as much as possible the issues on the legal status of the Resistance. Thus the interpretation of the issues related to the Resistance by the present-day Seimas of the Republic of Lithuania, as the supreme political representative institution of the State, must be accorded due respect as it indicates how the State of Lithuania sees itself.

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Whatever the attitude towards recognition of governments, it is hard to deny the reality. First of all, there was a long and cruel war between the Republic of Lithuania and the ussr, where on behalf of the State of Lithuania the Resistance forces were fighting against the Soviet occupation and for the liberation of the country. Secondly, the Resistance forces were not scattered and had the united central political and command structure, i.e. the lffm Council, which claimed to the supreme legitimate authority in the occupied country. Thirdly, the Chairman of the Presidium of the lffm Council Jonas Žemaitis was both a political leader and the commander-in-chief of the Resistance. Thus it is obvious that the organs of the Resistance much more than any possible, whether recognised or not, government-in-exile could be conceived as organs of the State of Lithuania, acting on the basis of their own national legal order whose continuity has not been broken by the occupation. Therefore the role of the Resistance should not to be underestimated, irrespective of its characteristics and regardless of the absence of its international recognition. In any case it would be perceived that the Resistance was a key factor to establish the will of the State of Lithuania to survive the occupation, i.e. the will of the State to maintain its continuity. Meanwhile the precise definition of the place of the Resistance in the national legal system, whether its leadership could be regarded as the legitimate government and the supreme representative authority, is primarily a matter of national (constitutional) law. In any case, the retrospective recognition of the highest Resistance organs as the then supreme organs of the State by the present-day Seimas must be understood as a primarily symbolic act emphasising the unbroken continuity of the State of Lithuania and the illegality of the Soviet rule during the occupation. Finally, it is true that the Resistance in Lithuania was fighting alone against a much stronger enemy that posed a real threat to the community of democratic States. The Resistance declared its commitment to and defended the values of that community – freedom, justice, human rights, democracy and rule of law, i.e. the values of modern Western civilisation and contemporary international law. The Resistance paid for these values the highest possible price – ­numerous human lives and broken destinies. In my mind that should not be left unnoticed in deciding what should be preferred in international law: whether to recognise the similar clear legal status for the Resistance as granted by Lithuanian law, or to leave it uncertain, thus, at least indirectly, advocating to those who attempt to deny or justify the crimes committed by the aggressor.

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Annex 1: Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement110 12 January 1999, No. viii-1021 Vilnius

The Seimas of the Republic of Lithuania, stating that since 15 June 1940 Lithuania had experienced the ussr, German and yet another ussr occupations, that resistance under various forms against the occupations by the ussr and Germany had taken place in Lithuania during 1940–1990, that the armed uprising of 22–23 June 1941 by Lithuania and the 23 June 1941 Declaration by the Provisional Government of Lithuania did express the will of the Nation to restore an independent State, that the German occupation authorities stopped the activities of the Provisional Government of Lithuania, and that this gave rise to the formation of Lithuanian resistance organisations against that occupation, that a universal, organised, armed resistance, namely the self-defence of the State of Lithuania, against the Soviet occupation had taken place in Lithuania during 1944–1953, that the Diplomatic Service of the Republic of Lithuania, the Supreme Committee for Liberation of Lithuania and other Lithuanian organisations abroad did simultaneously strive for liberation of Lithuania; emphasising that the goal of all the structures of armed and unarmed resistance was the liberation of Lithuania, relying upon the provisions of the Atlantic Charter and a sovereign right acknowledged by the democratic world, and by fighting with arms against one of the World War ii aggressors; appraising the significance of the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement for the continuity of the State of Lithuania, passes this Law.

110 Official translation reproduced from the official website of the Seimas of the Republic of Lithuania () with corrections made by the author of this article.

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Article 1. Purpose of the Law This Law shall establish the status within the legal system of the Republic of Lithuania of the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement. 1.

2.

Article 2. The Council of the Lithuanian Freedom Fight Movement The Lithuanian Freedom Fight Movement comprised military formations and public groups, was led by a united leadership and pursued resistance by political and military means and fought for the liberation of Lithuania. The Council of the Lithuanian Freedom Fight Movement, having adopted the 16 February 1949 Declaration (annexed with a facsimile copy of the original), constituted the supreme political and military structure leading this fight and was the sole legitimate authority within the territory of the occupied Lithuania.

Article 3. Declaration of the Council of the Lithuanian Freedom Fight Movement The 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement is a legal act of the State of Lithuania.

Article 4. Final Provisions The 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement, with the facsimile copy of the original and a list of the signatories (annexed), constitute inalienable annexes to this Law. Pursuant to the provision of para. 2 of Article 71 of the Constitution of the Republic of Lithuania, I promulgate this Law passed by the Seimas of the Republic of Lithuania. Speaker of the Seimas of the Republic of Lithuania Vytautas Landsbergis Annex 1 to the 12 January 1999 Law of the Republic of Lithuania No. viii-1021 Declaration of the Council of the Lithuanian Freedom Fight Movement The Council of the Lithuanian Freedom Fight Movement, representing all of the military public formations present within the territory of Lithuania and headed by a united leadership, namely:

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a)

the South Lithuania Region including the Dainava District and the Tauras District, b) the East Lithuania Region including the Algimantas District, the Didžioji Kova District, the Vytis District and the Vytautas District, c) the West Lithuania Region including the Kęstutis District, the Prisikėlimas District and the Žemaičių District, that is to say, expressing the will of the Lithuanian Nation, reiterating the fundamental principles of the 10 June 1946 Declaration of the Supreme Committee for the Restoration of Lithuania, the 28 May 1947 udrm111 decisions and the udrm Declaration No. 2 and supplementing them by the decisions, adopted on 10 February 1949 at the joint meeting of the udrm Presidium and at the udrm Military Council, declares: 1. Relying on the 10 February 1949 decisions by the udrm Presidium and udrm Military Council joint meeting, during the occupation period the lffm112 Council, shall be the supreme political body of the Nation, in charge of the political and military fight for the liberation of the Nation. 2. The headquarters of the lffm Council and its Presidium shall be located in Lithuania. 3. The State system of Lithuania shall be a democratic republic. 4. The sovereign authority of Lithuania shall belong to the Nation. 5. The governance of Lithuania shall be exercised by the Seimas elected through free, democratic, universal, equal elections by secret ballot and the accordingly formed Government. 6. The Provisional National Council shall have the legislative power during the period from the end of the occupation until the democratic Seimas of Lithuania is convened. 7. Observing the principle of proportional representation, the Provisional National Council shall consist of the representatives of all the regions, districts, groups, high schools, cultural and religious organisations and movements and political parties having national support, under a united leadership fighting in Lithuania and abroad. 8. Upon the restoration of Lithuania’s independence until the Seimas is convened, the Chairman of the lffm Council Presidium shall hold the office of the President of the Republic. 9. The Provisional Government of Lithuania shall be formed upon the assignment of the Chairman of the lffm Council Presidium. The Government shall be accountable to the Provisional National Council. 111 udrm – the United Democratic Resistance Movement (clarification by the author of this article). 112 lffm – the Lithuanian Freedom Fight Movement (clarification by the author of this article).

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10. For the coordination of the activities by the Lithuanians abroad and the restoration of Lithuania, the lffm Council Presidium shall maintain the lffm Delegation Abroad that, in co-operation with the representatives of Lithuania accredited to the Western States, shall establish commissions and delegations to defend and represent Lithuania’s interests before the United Nations Organisation, at various conferences and other international institutions. 11. Members of the lffm Delegation Abroad shall elect of their number the Chairman of the lffm Delegation Abroad, who shall be considered the Deputy Chairman of the lffm Council Presidium. 12. Members of the lffm Delegation Abroad shall be considered full and equal members of the lffm Council. 13. To implement this Declaration the lffm Council shall issue regulations. 14. Prior to the Seimas adopts and promulgates the State Constitution complying with human freedom and democracy aspirations, the restoration of the State of Lithuania shall be implemented in accordance with the provisions declared by this Declaration and in the spirit of the 1922 Constitution of Lithuania. 15. The restored State of Lithuania shall guarantee equal rights for all of Lithuania’s nationals who have not committed any crimes against Lithuanian national interests. 16. As dictatorial and in essence contrary to the principal aspiration of the Lithuanian Nation and the cornerstone of the Constitution, that is Lithuania’s independence, the Communist Party shall not be considered a legal party. 17. Persons who have betrayed their Homeland during the Bolshevik or German occupation by collaborating with the enemy, having by their actions or influence undermined the Nation’s fight for liberation and have been stained by treason or blood, shall be held responsible before the Court of Lithuania. 18. The positive influence of religion in developing the Nation’s morality and sustaining its strength during the most difficult period of the freedom fights is underlined. 19. Social care is not a matter of individual citizens or organisations alone, but it is rather one of the priority tasks of the State. Particular care shall be provided by the State to the victims of the liberation fight and their families. 20. A rational settlement of the social problems and the reconstruction of the State economy are linked to the reform of agriculture, municipalities and industry, which shall be implemented at the very outset of independent existence.

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21. In close union with the fighting Nation, the lffm Council invites all the Lithuanians of good will, residing within the Homeland and outside its borders, to forget the differences in their views and to join the activities of national liberation. 22. Contributing to the efforts of other nations to establish the world over a constant peace founded on justice and freedom and based on a full implementation of the principles of a real democracy following from an understanding of Christian morality and declared in the Atlantic Charter, Four Freedoms, the President Truman’s 12 Points, the Declaration of Human Rights113 and other declarations of justice and freedom, the lffm Council appeals to all of the democratic world for assistance in implementing its goals. Occupied Lithuania 16 February 1949 Chairman of the lffm Council Presidium Members of the lffm Council

Vytautas

Faustas Kardas Merainis Naktis Užpalis Vanagas Žadgaila

Annex 2 to the 12 January 1999 Law of the Republic of Lithuania No. viii-1021 List of the Signatories of the Declaration of the Council of the Lithuanian Freedom Fight Movement The Declaration was signed by:114 Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement: Jonas ŽEMAITIS – VYTAUTAS; Commander of the Tauras District: Aleksandras GRYBINAS – FAUSTAS;

113 The Universal Declaration of Human Rights, adopted by the UN General Assembly on 10 December 1948 (clarification by the author of this article). 114 Italics mark a nom de guerre (a partisan code name) of each of the signatories of the Declaration.

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Chief of the West Lithuania Regional Headquarters: Vytautas GUŽAS – KARDAS; Chief of the Didžioji Kova District Headquarters and the Authorised Representative of the Algimantas District and the Vytautas District: Juozas ŠIBAILA – MERAINIS; Chief of the Prisikėlimas District Headquarters: Bronius LIESYS – NAKTIS; Commander of the Prisikėlimas District: Leonardas GRIGONIS – UŽPALIS; Acting Commander of the South Lithuania Region, Commander of the Dainava District: Adolfas RAMANAUSKAS – VANAGAS; Secretary of the Presidium of the Council of the Lithuanian Freedom Fight Movement: Petras BARTKUS – ŽADGAILA. Annex 2: Declaration of the Seimas of the Republic of Lithuania on Recognition of Jonas Žemaitis as the Head of the State of Lithuania115 12 March 2009, Vilnius The Seimas of the Republic of Lithuania, commemorating the 60th anniversary of the Declaration of the Council of the Lithuanian Freedom Fight Movement and the 100th anniversary of birth of Jonas Žemaitis, the Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement; relying on the continuity of the State of Lithuania which means that the Republic of Lithuania, as the subject of international law, had not been overthrown during all the period of the 1940–1990 occupations; taking into consideration that such a continuity of the State of Lithuania was expressed inter alia by the self-defence of the Republic of Lithuania against the ussr aggression when in 1944–1953 the forces of nationals of the Republic of Lithuania, volunteer soldiers, had pursued an organised armed fight against the second Soviet occupation, as well as by the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement which was in charge of that fight; 115 Non-official translation made by the author of this article. Official Lithuanian text of the Declaration is published in the Valstybės žinios (Official Gazette), 2009, No. 30-1166, as well as in the official website of the Seimas of the Republic of Lithuania (, visited on 20 February 2011).

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following the provision of Art. 2(2) of the Law of the Republic of Lithuania on the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement (Official Gazette, 1999, No. 11–241) that the Council of the Lithuanian Freedom Fight Movement ‘constituted the supreme political and military structure leading this fight and was the sole legitimate authority within the territory of the occupied Lithuania’; stating that the Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement Jonas Žemaitis had performed the functions of the Commander-in-Chief of the fighting armed forces of the Republic of Lithuania and the supreme official in charge of a political struggle of the State for liberation, and the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement had entrusted him with many other powers of the head of the State including the power to hold the office of the President of the Republic upon the restoration of independence of the State of Lithuania until convocation of the Seimas; noting that the Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement Jonas Žemaitis had fulfilled his duties honourably and, being in captivity by an enemy from 30 May 1953 until his murder on 26 November 1954, he had remained devoted to his oath to the State of Lithuania, recognises that as from the adoption of the 16 February 1949 Declaration of the Council of the Lithuanian Freedom Fight Movement to his death on 26 November 1954 the Chairman of the Presidium of the Council of the Lithuanian Freedom Fight Movement Jonas Žemaitis had been the Head of the State of Lithuania fighting against the occupation, who had de facto performed the duties of the President of the Republic. Speaker of the Seimas Arūnas Valinskas

Volume 12 (2012): Symposium “After the Empire. International Law and the Post-Soviet Space”

Transitional Criminal Justice at the ECtHR: Implications for the Universality of Human Rights James A. Sweeney Contents 1 Introduction 2 Transitional Justice, International Human Rights Law and the Universality of Human Rights 3 “Successor Trials” and Retroactivity 3.1 The Berlin Wall Cases: Avoiding Retroactivity by Reference to Extant Law of the Predecessor Regime Itself 3.2 Continuing to Deal with the Communist Past 3.3 Dealing with the Pre-Communist Past: The Kononov Case and “Historical Truth” 4 The ECtHR, Historical Justice and Successor Trials 5 Conclusion: Tying the Threads and Divining the Implications for Universality 1 Introduction The early 1990s saw a massive enlargement of the Council of Europe, the parent organisation of the European Convention system. This, in turn, brought a great many new Contracting Parties to the European Convention on Human Rights (echr).1 The wisdom of the Council’s rapid enlargement and the consequent extension of the jurisdiction of the European Court of Human Rights is not universally accepted. There had been concerns for a long time about the European Court’s idiosyncratic use of the “margin of appreciation” doctrine and its potential to drive a culturally relativist wedge into the European Court’s

1 See J.A. Sweeney, ‘Divergence and diversity in post-communist European human rights cases’, 21 Connecticut Journal of International Law (2005) p. 1.

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_009

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otherwise strong commitment to the universality of human rights.2 It was feared that the participation of the new contracting parties would lead to this wedge being driven even deeper into the Convention jurisprudence.3 This author has argued previously that such fears were not necessary.4 The Court’s use of the margin of appreciation doctrine in general, and in relation to the States from Central and Eastern Europe in particular, does not amount to a deviation from the universality of human rights. However there was another, less clearly foreseen, potential basis on which the European Court would be called upon to modulate the standards of justice it had hitherto applied. The basis was not cultural, but that the distinctively transitional experiences of the new contracting parties would require some strategic behaviour by the European Court in which it would recognise the need for a special form of justice: transitional justice. We shall return to this concept shortly. The Parliamentary Assembly of the Council of Europe (pace) offered the new member States advice on the transitional process in the form of Resolution 1096, on “Measures to dismantle the heritage of former communist totalitarian systems”.5 It identified four principles that should guide the transition process: demilitarisation, decentralisation, demonopolisation, and debureaucratisation.6 These general principles were accompanied by some more specific recommendations relating to criminal responsibility for acts carried out under the previous regime; the rehabilitation of people convicted of political offences under the former regime; the opening of secret service files; the restitution of property expropriated under the former regime; and the treatment of people who, whilst not the perpetrators of crimes under the former regime, held high positions within the Communist apparatus and are singled out for special treatment in the new regime (such as restrictions on holding public office).7 This paper focuses on the first of these recommendations, namely the pursuit of those who committed crimes during the previous regime. 2 E.g., M. Janis, ‘Russia and the “legality” of Strasbourg law’, 8 ejil (1997) p. 93; R. Kay, ‘The European Convention on Human Rights and The Authority of Law’, 8 Connecticut Journal of International Law (1993) p. 217. 3 See e.g. the comments of Mahoney and Lester in P. Mahoney, ‘Speculating on the future of the reformed European Court of Human Rights’, 20 Human Rights Law Journal (1999) p.1, at p. 3; A. Lester, ‘Universality versus subsidiarity: a reply’, 1 European Human Rights Law Review (1998) p. 73, at p. 74. 4 J.A. Sweeney, ‘Margins of appreciation: Cultural relativity and the European Court of Human Rights in the post-Cold War era’, 54 iclq (2005) p. 459. 5 pace Resolution 1096 on “Measures to dismantle the heritage of former communist totalitarian systems”, text adopted by the Assembly on 27 June 1996 (23rd Sitting). 6 Ibid., para. 5. 7 Ibid., paras. 7–14.

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The recommendations of Resolution 1096 can be viewed within the paradigm of “transitional justice”. The notion of transitional justice can be understood in two main ways: as an umbrella term for “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation”;8 or, more theoretically, as the modified notion of justice inherent in these policies. Under this second view, transitional justice is the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes”.9 In Teitel’s influential analysis she identified five strands of transitional ­justice: criminal justice, historical justice, reparatory justice, administrative ­justice, and constitutional justice.10 This paper will focus on transitional criminal justice and the search for the truth about contested events in order to secure historical justice.11 The issues are presented in human rights cases emerging from so-called “successor trials”– trials initiated by the new regime in relation to crimes committed at the behest of the former regime. Although the term “successor trial” is often used in the literature,12 its use does not imply that the new regime is necessarily a successor State. 2

Transitional Justice, International Human Rights Law and the Universality of Human Rights

Often when we think of the relationship between human rights and transitional justice we are concerned with looking at attempts to deal with the human rights violations of the previous regime. For example Teitel notes that “the 8 9 10 11

12

“The rule of law and transitional justice in conflict and post-conflict societies”, UN Security Council, S/2004/616, 3 August 2004, p. 4 (para. 8). R. Teitel, ‘Transitional Justice Genealogy’, 16 Harvard Human Rights Law Review (2003) p. 69, at p. 69; see also R. Teitel, Transitional Justice (oup, New York, 2000), to which frequent reference will be made below. Ibid. The present author has addressed other interactions between European human rights law and transitional justice in inter alia J.A. Sweeney, ‘Freedom of religion and democratic transition’, in M. Hamilton and A. Buyse (eds.), Transitional Jurisprudence and the echr: Justice, Politics and Rights (cup, Cambridge, 2011); J.A. Sweeney, ‘Restorative Justice and Transitional Justice at the echr’, International Criminal Law Review (forthcoming 2012); J.A. Sweeney, The European Court of Human Rights in the Post-Cold War Era: Universality in Transition: (Routledge, Abingdon, forthcoming 2012). See e.g. Teitel, supra note 9, p. 29.

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most vigorous enforcement of human rights law occurs in transitional periods”, citing the creation of ad hoc tribunals to prosecute human rights abusers from the Rwandan and Bosnian conflicts.13 Orentlicher’s classic work argues that there is an international legal duty to prosecute violations of the previous regime.14 The UN’s “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious violations of International Humanitarian Law” recognise inter alia that States have a duty investigate and, where there is sufficient evidence, to prosecute people responsible for human rights abuses.15 However in this paper we are looking not at the actions of the former regime, but of the current one. Transitional measures taken by the new contracting parties may themselves impact upon human rights: successor trials may come into conflict with principle of non-retroactivity; attempts at property restitution may interfere with the property rights of present occupiers; lustration measures may affect both the right to home, family and private life as well as fair trial rights; wider measures of de-communisation might interfere with political rights, and not only those of communist supporters. In its early jurisprudence on the Southern European transitions, the Court appeared to rule-out the possibility of a transitional jurisprudence by stressing the importance of Article 1 echr. In Guincho v. Portugal16 the European Court declined to take the transitional context into account when assessing the reasonableness of the length of proceedings in a civil action for damages sought in relation to a road traffic accident. The Court had stated that it could not, overlook that the restoration of democracy as from April 1974 led Portugal to carry out an overhaul of its judicial system in troubled circumstances which were without equivalent in most of the other European countries….17

13 14

15

16 17

Ibid., p. 228. D. Orentlicher, ‘Settling accounts: The duty to prosecute human rights violations of a prior regime’, 100 Yale Law Journal (1991) p. 2537; see also D. Orentlicher, ‘“Settling accounts” revisited: Reconciling global norms with local agency’, 1:1 International Journal of Transitional Justice (2007) p. 10. UN, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by General Assembly Resolution 60/147 of 16 December 2005 (UN Doc. A/RES/60/147), para. 4. Guincho v. Portugal, 10 July 1984, echr, no. 8990/80, Series A no. 81. Ibid., para. 38.

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However the European Court went on to stress that in Article 1 echr Portugal had guaranteed to secure to everyone the rights in the Convention, including Article 6, and that there was an unavoidable obligation to organise its legal system in compliance with Convention.18 The European Court’s duty to police the overarching obligation from Article 1 echr precluded it from allowing the transitional context to affect its assessment of Convention compliance. It has subsequently been suggested that, since the European Court has already recognised that the Convention is a “living instrument”, it has a “mandate” to reorient European human rights law to reflect the idea of transition.19 However evolutive interpretation of the Convention has tended in the past to result in standards being raised, rather than in the approval of context-specific rights limitations. A clear example would be the evolving standards in relation to Article 3 echr, where in Selmouni v. France the Court explained that, having regard to the fact that the Convention is a “living instrument which must be interpreted in the light of present-day conditions” … the Court considers that certain acts which were classified in the past as “inhuman and degrading treatment” as opposed to “torture” could be classified differently in future. It takes the view that the increasingly high standard being required in the area of the protection of human rights and fundamental liberties correspondingly and inevitably requires greater firmness in assessing breaches of the fundamental values of democratic societies.20 Thus there is no clear basis within the Court’s existing jurisprudence on the Convention as a living instrument to introduce a different, lower standard of review for States emerging from periods of democratic transition. Likewise the margin of appreciation doctrine allows for European States to comply with the Convention in a variety of ways but it has always gone “hand in hand” with a European supervision and, in any event, interferences with qualified Convention rights must always be necessary in a democratic, not a transitional, society.21 This creates problems for international human rights supervisory mechanisms, like the European Court of Human Rights, since by upholding human rights law they might impede transitional policies. 18 19 20 21

Ibid. M. Varju, ‘Transition as a concept of European human rights law’, European Human Rights Law Review (2009) p. 170, at p. 172. Selmouni v. France [gc], 28 July 1999, echr, no. 25803/94, echr 1999-v, para. 101. See Sweeney, ‘Freedom of religion and democratic transition’, supra note 11, p. 118.

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This observation leads us to a series of questions that will be asked when examining the European Court’s jurisprudence on so-called “successor trials”. Firstly, has human rights law been a barrier to the pursuit of transitional criminal justice by contracting parties? We shall investigate the potential conflict between the desire to punish members of the previous regime and the general prohibition on retroactive criminal prosecutions. Secondly, how and in what ways has the advice of the European Court assisted in the formulation, implementation or improvement of transitional policies? Even where the transitional policy is not in direct conflict with the general thrust of European human rights law, there may well be procedural or other defects within the policy that can form the basis for a human rights complaint. However if the European Court were to push for a uniform approach to transitional policies, it would conflict with the general Convention principle of subsidiarity and run counter to the accepted wisdom that locally constructed transitional policies posses greater legitimacy.22 Thirdly, finally and most importantly, has the European Court of Human Rights altered its standards in respect of the transitional States and thus held itself out as dispensing transitional justice? The final question is the most significant because if the European Court were to alter its own conception of justice in order to accommodate transitional policies, then it would risk undermining its commitment to the universality of human rights. Transitional criminal justice embodied by the trials of people who served the previous regime present a particularly interesting set of issues, since the European Court generally does not recognise a margin of appreciation in relation to Article 7 echr. We shall also see that there are more subtle engagements between human rights and transitional justice arising from the cases on these types of trial. Trials in general, Teitel has argued, “are traditional ceremonies affording a ritual to publicly contextualize and share past experience of wrongdoing”.23 Thus the significance of trials in a transitional context goes beyond determining individual responsibility and beyond the findings of fact in particular cases: they contribute to the establishment of a collective memory. The European Court’s findings of fact may amplify or contradict domestically constructed historical narratives, with a consequent impact on the transition itself. Indeed 22

B. Oomen, ‘Transitional justice and its legitimacy: The case for a local perspective’, 25 Netherlands Quarterly of Human Rights (2007) p. 141; J. Ramji-Nogales, ‘Designing bespoke transitional justice: A pluralist process approach’, 32 Michigan Journal of International Law (2010) p. 1; L. Viaene and E. Brems, ‘Transitional justice and cultural contexts: Learning from the universality debate’, 28:2 Netherlands Quarterly of Human Rights (2011) p. 199, at pp. 220 et seq.; note also the comments of the UN Secretary General, supra note 8, p. 4. 23 Teitel, supra note 9, p. 75.

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the ­judgments of the European Court necessarily become part of the process of historical accounting, whether in cases relating to successor trials or other transitional issues, and by not only their legal findings but also by the presentation of historical matter as background material. The next part of this paper examines successor trials and retroactivity, whilst the final part returns to the question of historical justice. 3

“Successor Trials” and Retroactivity

Choices about criminal justice in transitional periods have the potential both to affect the construction of the new democratic society and to address past wrongs.24 Such choices have complex interactions with international human rights law. For example in successor trials the conduct of the individual on trial is subjected to a set of standards that is applied with some degree of hindsight and is, therefore, potentially tainted with retroactivity – which runs counter to intuitions founded on the rule of law. Human rights law, including Article 7 echr, also generally prohibits retroactive criminal prosecutions and could therefore inhibit the implementation of this transitional policy. The new democratic regime must attempt to sidestep or eliminate the rule of law dilemma that retroactivity presents through the deployment of legal techniques of varying degrees of ingenuity.25 The Council of Europe is certainly conscious of the potential for retroactivity. In pace Resolution 1096, the Parliamentary Assembly gave the following advice: The Assembly also recommends that criminal acts committed by individuals during the communist totalitarian regime be prosecuted and punished under the standard criminal code. If the criminal code provides for a statute of limitations for some crimes, this can be extended, since it is only a procedural, not a substantive matter. Passing and applying retroactive criminal laws is, however, not permitted. On the other hand, the trial and punishment of any person for any act or omission which at the time when it was committed did not constitute a criminal offence a­ ccording 24 Teitel, supra note 9, p. 67; on prosecutions brought in the Baltic States (and Russian’s reluctance to prosecute) see L. Mälksoo, ‘Soviet Genocide: Communist Mass Deportations in the Baltic States and International Law’, 14 Leiden Journal of International Law (2001) p. 757. 25 E. Posner and A. Vermeule, ‘Transitional Justice as Ordinary Justice’, 117 Harvard Law Review (2004) p. 761, at p. 792.

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to national law, but which was considered criminal according to the general principles of law recognised by civilised nations, is permitted. Moreover, where a person clearly acted in violation of human rights, the claim of having acted under orders excludes neither illegality nor individual guilt. It can be noted here that the guidance from the Council of Europe is far less detailed than the advice on prosecution initiatives provided in 2006 by the Office of the UN High Commissioner for Human Rights as part of its series of “Rule-of-Law Tools for Post-Conflict States”.26 Article 7(1) echr itself contains two main principles: firstly that “no one should be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed”; and secondly that no heavier penalty shall be imposed than the one that was applicable at the time a criminal offence was committed. The omission of the second element of Article 7 from Resolution 1096 is regrettable. Further, Article 7(2) states that the two core principles “shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations”. Both Resolution 1096 and Article 7 echr explicitly deny that prosecutions rooted in an appeal to international standards extant at the material time would constitute retroactivity. We shall see that in its transitional jurisprudence on Article 7 the European Court has thus been called on to pronounce upon the content and historical development of international law, international humanitarian law and international criminal law.27 The Berlin Wall Cases: Avoiding Retroactivity by Reference to Extant Law of the Predecessor Regime Itself The prosecution of East German border guards and their superiors after German reunification has presented some novel and difficult issues. This section focuses on two cases brought before the European Court of Human Rights that concerned such prosecutions. 3.1

26 27

Office of the UN High Commissioner for Human Rights, Rule-of-Law Tools for Post-Conflict States: Prosecution Initiatives (Geneva, United Nations 2006) (HR/PUB/06/4). See B. Schabas, ‘Synergy or fragmentation: International criminal law and the European Court of Human Rights’, 9 Journal of International Criminal Justice (2011) p. 609 for a positive assessment of the European Court’s contribution to substantive international criminal law.

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The two cases are introduced together since they were decided by an identically constituted Grand Chamber of the European Court of Human Rights; the judgments were issued on the same day (22 March 2001); and large portions of the judgments are verbatim reproductions of each other. It is in the contrast between certain elements of them that the fault lines on the application of transitional justice in the reasoning of different judges become clearer. The applicants in Streletz, Kessler and Krenz v. Germany28 had all occupied senior positions in the government of the German Democratic Republic (the gdr, or East Germany) and Socialist Unity Party.29 Krenz had briefly served as the leader of East Germany in 1989, but the prosecution against the gdr’s leader from 1971 until 1989, Erich Honecker, was discontinued on health grounds and he was permitted to leave the country for Chile.30 The regime had attempted to stop the flow of refugees to the Federal Republic of Germany (West Germany) by building the infamous Berlin Wall in 1961. The integrity of the border was supported by anti-personnel mines, automaticfire systems and armed border guards.31 The European Court observed that official figures show that at least 264 people were killed, although there were reports that it could in reality be up to around 1,000 or more.32 Border guards were told that “border violators” should in all cases be arrested as adversaries or, if necessary, “annihilated”.33 They were instructed to lay land mines “with a view to halting the movements of ‘border violators’ and … bringing about their arrest or annihilation”.34 As a result of their actions during time spent as members of the gdr’s National Defence Council, Streletz and Kessler were convicted in 1993 of incitement to commit intentional homicide in relation to victims who died after triggering anti-personal mines or being shot by East German border guards as they attempted to cross to West Germany. In 1997 Krenz was convicted of intentional homicide as an indirect principal for his role in relation to two particular decisions of the Political Bureau and two of the National Defence Council, all of which concerned border policing, and which caused the death of four 28 29 30 31 32 33 34

Streletz, Kessler and Krenz v. Germany [gc], 22 March 2001, echr, nos. 34044/96, 35532/97 and 44801/98, echr 2001-ii. Ibid., para. 16. G. Bruce, ‘East Germany’, in L. Stan (ed.) Transitional Justice in Eastern Europe and the Former Soviet Union (Routledge, Abingdon, 2009) p. 26. Streletz, Kessler and Krenz case, supra note 28, para. 13. Ibid. Ibid., para. 15. Ibid.

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people who were shot to death by East German border guards. Each applicant had attempted several forms of domestic appeal against their sentence. The applicants had been sentenced to between five and a half and seven and a half years imprisonment. The case of K.-H. W. v. Germany35 was brought not by a senior official, but by a former border guard. The President of the European Court agreed to the applicant’s request that his identity not be disclosed.36 In 1993 K.-H. W was convicted of intentional homicide in relation to the death of a 29 year old man who was shot dead whilst trying to swim away from East Berlin on the night of the 14 to 15 February 1972. At the time of the events, K.-H. W. was aged 20. He was given a suspended sentence of one year and ten months juvenile detention. This approach to sentencing was quite common and indeed only two German border guards ever actually served time for their actions.37 Teitel has identified the combination of prosecution with minimal punishment as a frequent occurrence within transitional criminal justice, and categorised it as a form of transitional justice that can be labelled the “limited criminal sanction”.38 All of the applicants in these cases subsequently argued before the European Court of Human Rights that their rights under Article 7 echr had been violated. They all argued that the acts on account of which they had been prosecuted did not constitute offences at the time when they were committed. None were successful. However there was a difference of approach in the two cases, and whilst Streletz, Kessler and Krenz was decided unanimously, there was some dissent in relation to K.-H. W. The approach to transitional criminal justice taken by the newly reunified Germany was to seek prosecution of crimes perpetrated by the previous regime through a strict application of the criminal law of the gdr that was in existence at the time.39 Posner and Vermeule would characterise the German courts’ technique for addressing the potential retroactivity of successor trials as “taking nominal law seriously”.40 Taking nominal, but formally applicable, domestic law seriously may help to resist the accusation that victors’ justice is being imposed.41 However, critics would argue that in employing this technique successor regimes are merely using subterfuge to disguise the 35 K.-H. W. v. Germany [gc], 22 March 2001, echr, no. 37201/97, echr 2001-ii. 36 Ibid., para. 1. 37 Bruce, supra note 30, p. 26. 38 Teitel, supra note 9, pp. 46 et seq. 39 Streletz, Kessler and Krenz case, supra note 28, para. 27; K.-H. W. case, supra note 35, para. 21. 40 Posner and Vermeule, supra note 25, p. 794. 41 Bruce, supra note 30, p. 25.

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r­etroactivity of the punitive legislation.42 In response Posner and Vermeule have argued that similar techniques for balancing retroactivity and justice exist in many legal systems, and that consequently the accusation of subterfuge mistakenly holds transitional States up to standards that would be unrealistic in well-established democracies.43 The applicants in both of the Berlin Wall cases argued that in the light of State practice at the time, the acts for which they were convicted did not constitute offences.44 The ex post facto interpretation of the gdr’s criminal law that was necessitated for their conviction to go ahead had been impossible for them to foresee at the time the material events took place.45 They also alleged that the acts for which they were prosecuted did not constitute offences under international law.46 In both cases the government argued that the domestic courts’ interpretation of the gdr law was legitimate, and that although contrary practice was established at the time it was foreseeable that the killing of unarmed fugitives might give rise to prosecution at some point, particularly after a change of regime.47 Indeed if the gdr authorities had applied their own law correctly they would have arrived at the same conclusion.48 The consideration of foreseeability raised different issues in the two cases. In Streletz, Kessler and Krenz the European Court observed that the gulf between the written law and the actual practice was “to a great extent the work of the applicants themselves”.49 This was obviously not the case for K.-H. W., who claimed that he was the last link in the chain of command and had always followed the orders he was given.50 In dealing with this argument, the majority 42 43 44 45 46 47

48 49 50

J. Elster, Closing the books: Transitional justice in historical perspective (cup, Cambridge, 2004) p. 83. Posner and Vermeule, supra note 25, p. 797. Streletz, Kessler and Krenz case, supra note 28, para. 46; K.-H. W. case, supra note 35, para. 41. Streletz, Kessler and Krenz case, supra note 28, para. 47; K.-H. W. case, supra note 35, para. 42. Streletz, Kessler and Krenz case, supra note 28, para. 47; K.-H. W. case, supra note 35, para. 42. Streletz, Kessler and Krenz case, supra note 28, para. 48; K.-H. W. case, supra note 35, para. 43; note that in other cases the European Court has been at pains to take into account the way that the law was applied at the material time: C. Murphy, ‘The principle of legality in criminal law under the European Convention on Human Rights’, European Human Rights Law Review (2010) p. 192, at p. 196, citing Kafkaris v. Cyprus [gc], 12 February 2008, echr, no. 21906/04, para. 145. Streletz, Kessler and Krenz case, supra note 28, para. 48; K.-H. W. case, supra note 35, para. 43. Streletz, Kessler and Krenz case, supra note 28, para. 78. K.-H. W. case, supra note 35, para. 66.

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coupled the application of nominal law with an appeal to international principles. The majority identified that the gdr criminal code explicitly stated that both civilians and members of the armed forces were prohibited from citing orders they had received as justification for violating human rights, public international law or the written criminal law.51 The Court also drew attention to the fact that the applicant had voluntarily enlisted in the army, which amounted to his giving allegiance to the regime.52 Moreover, unlike the applicants in Streletz, Kessler and Krenz, K.-H. W. was given a suspended sentence precisely because of his having merely followed orders. The approach of the majority in K.-H. W was not without its critics. Indeed both Judges Baretto and Pellonpää in their partly dissenting opinions described the applicant as a victim of the regime.53 Even in their concurring opinion Judges Bratza and Vajić conceded that soldiers in the applicant’s position had been “indoctrinated”.54 In its conclusions on foreseeability, the European Court made the same point of principle in both cases. The European Court acknowledged that the more general problem of how to approach the prosecution of members of the former regime had arisen in a number of other States that had gone through a process of democratic transition.55 It went on to explain that, it is legitimate for a State governed by the rule of law to bring criminal proceedings against persons who have committed crimes under a former regime; similarly, the courts of such a State, having taken the place of those which existed previously, cannot be criticised for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law.56 In this passage the European Court recognised that there is something distinctive in transitional cases where crimes committed by and under the previous regime are being considered. This is even clearer in the concurring opinion of 51 52 53 54 55 56

Ibid., para. 77, citing Article 95 of the 1968 gdr Criminal Code, and para. 78, citing Article 258 of the 1968 gdr Criminal Code. Ibid., para. 74. Ibid., Partly Dissenting Opinion of Judge Cabral Barreto, para. 6; Partly Dissenting Opinion of Judge Pellonpää, joined by Judge Zupančič, first paragraph. Ibid., Concurring Opinion of Judge Sir Nicolas Bratza, Joined By Judge Vajić, second paragraph. Streletz, Kessler and Krenz case, supra note 28, para. 80; K.-H. W. case, supra note 35, para. 84. Streletz, Kessler and Krenz case, supra note 28, para. 80, emphasis added.

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Judge Levits in Streletz, Kessler and Krenz, which demonstrates that the Court was fully aware that the courts of the gdr and the German courts after reunification were completely different in their approach to the interpretation and application of the law.57 Judge Levits conceded that the interpretation of the same legal texts by them would lead to different results.58 In his view, however, there was “no room” for any solution other than to apply the “old” law according to the approach to interpretation and application of the law which is inherent in the new democratic political order.59 Does this mean that the European Court held itself out as dispensing transitional justice in these cases? Probably not, since the Court also stressed parallels with its non-transitional jurisprudence. In the past the Court has generally recognised that there is inevitable judicial interpretation in the criminal law, allowing for the explanation of doubtful points and adaptation of the law to changing circumstances.60 In Streletz, Kessler and Krenz and K.-H. W. the Court found that the same concept “remains wholly valid” even in cases like these, where one State had succeeded the other.61 Taking this into account, the Court found that the acts committed by the applicants were defined with sufficient accessibility and foreseeability in the gdr at the material time and, therefore, that their prosecution was compatible with Article 7(1) echr.62 By fitting the “taking nominal law seriously” approach within the general human rights jurisprudence on the gradual evolution of criminal law, the European Court allowed Germany to downplay the rule of law dilemma presented by the disjuncture between the totalitarian and democratic eras. It found legal continuity between the eras in the text of the positive law. Indeed in his concurring opinion in Streletz, Kessler and Krenz Judge Zupančič expressly stated that the approach of the frg courts to the application of gdr criminal law had been “legally consistent”.63 In a much briefer element of its judgments in Streletz, Kessler and Krenz and K.-H. W. the European Court also found that the acts constituted offences that 57 58 59 60 61 62 63

Ibid., Concurring Opinion of Judge Levits, para. 5. Ibid., para. 6. Ibid., para. 8. P. van Dijk et al. (eds.), Theory and Practice of the European Convention on Human Rights (Intersentia, Oxford, 2006) p. 654. Streletz, Kessler and Krenz case, supra note 28, para. 82; K.-H. W. case, supra note 35, para. 85, emphasis added; c.f. Murphy, who is not convinced by this reasoning, supra note 47, p. 201. Streletz, Kessler and Krenz case, supra note 28, para. 89; K.-H. W. case, supra note 35, para. 91. Streletz, Kessler and Krenz case, supra note 28, Concurring Opinion of Judge Zupančič.

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were defined with sufficient accessibility and foreseeability in international law at the material time.64 This contributed to the prosecutions’ compliance with Article 7 echr. This particular appeal to international law as a mediating factor was relatively weak, but the European Court certainly validated it as a potentially Convention-compliant approach to successor trials and, in doing so, set the tone for the majority of cases that will be discussed below. Brems has argued that these cases fall into a category of transitional responses that the European Court has found that States “can do” (i.e. as opposed to those responses that it has prohibited, or those to which it has given only conditional approval).65 It is arguable that the Court has done a little more than this: by validating both approaches the European Court suggested to other States that they would have some flexibility in choosing transitional criminal justice approaches that aligned with the legal and historical circumstances of their transition. In summary, in these two cases the European Court confirmed that States facing the rule of law dilemma presented by successor trials could resort both to taking nominal law seriously and to an appeal to international norms, without violating the European Convention on Human Rights. Thus human rights law did not necessarily constitute a barrier to achieving the transitional aim at stake. Although the Court clearly recognised that the backdrop to these cases was important and distinctive, the judgments were presented as a logical extension of existing echr principles rather than an exception to them. It did not therefore appear to modify its own conception of justice to reach this outcome. 3.2 Continuing to Deal with the Communist Past Following the Berlin Wall cases a series of judgments followed the trend of validating domestic prosecutions via the mediating tool of both extant domestic66 and international67 standards. In Korbely v. Hungary,68 however, a Grand 64

65 66 67 68

Ibid., para. 105. The Concurring Opinion of Judge Loucaides expands upon the Court’s fairly terse reasoning in this regard. Strangely, in his formally concurring opinion Judge Zupančič stated that he found it “difficult to agree” with the finding in paragraph 105. However, in his view, the judgment did not rely on the concept of an “international offence” anyway. E. Brems, ‘Transitional Justice in the Case Law of the European Court of Human Rights’, 5 International Journal of Transitional Justice (2011) p. 282, at pp. 298 et seq. Kuolelis and Others v. Lithuania, 19 February 2008, echr, nos. 74357/01, 26764/02 and 27434/02. Penart v. Estonia (dec.), 24 January 2006, echr, no. 14685/04; Kolk & Kislyiy v. Estonia (dec.), 17 January 2006, nos. 23052/04 and 24018/04, echr 2006-i. Korbely v. Hungary [gc], 19 September 2008, echr, no. 9174/02.

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Chamber of the Court69 found a violation of Article 7 in circumstances that merit some detailed discussion because of its unorthodox approach to the relationship between war crimes and crimes against humanity. The Korbely case was decided in 2008 and concerned the prosecution of a retired military officer for his part in quelling the 1956 Hungarian uprising against Soviet influence. In the formulation of her proposition that international law is a useful mediating concept in periods of political flux, Ruti Teitel used the Hungarian prosecutions for events in 1956 as an example.70 She noted that the Hungarian Constitutional Court had declared unconstitutional an explicitly retroactive statute that revived certain political offences. The impugned law was discontinuous with the rule of law. However, Teitel stressed that the same court upheld a new statute that authorised prosecutions relating to the 1956 events, and which was based on war crimes and crimes against humanity (in fact it was these cases that formed the background to Korbely v. Hungary, and as such they were duly summarised in the European Court’s judgment).71 The rule of law required continuity, Teitel argued, and this was precisely what international law provided.72 Taking this into account, it is all the more striking that the Grand Chamber found a violation of Article 7 in Korbely’s case. The prosecution of Korbely related specifically to an event on 26 October 1956, when the applicant led a group of officers in a mission to regain control over the Police Department building in the town of Tata, which revolutionaries had occupied. During the course of the mission, three people were killed – one of whom was shot and killed by the applicant himself. After a series of domestic cases and appeals the applicant was convicted of multiple homicides, which according to the Hungarian courts constituted a crime against humanity punishable under Article 3(1) of the Geneva Convention.73 As such, the prosecution was not subject to statutory limitation. The European Court observed that the prosecution was based wholly on international law, and since the prosecution cited the Geneva Conventions the European Court had to check their accessibility to Korbely and the ­foreseeability 69

The case was initially referred to the second section of Court, but the Chamber relinquished jurisdiction in favour of the Grand Chamber in accordance with Article 30 echr. Article 30 allows a Chamber to relinquish jurisdiction where a case “raises a serious question affecting the interpretation of the Convention or the Protocols thereto, or where the resolution of a question before the Chamber might have a result inconsistent with a judgment previously delivered by the Court”. See Korbely, ibid., para. 3. 70 Teitel, supra note 9, pp. 20–21. 71 Korbely case, supra note 68, paras. 16 et seq. 72 Teitel, supra note 9, p. 20. 73 Korbely case, supra note 68, para. 45.

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of the interpretation given to them.74 However, if the decisive question was whether it was foreseeable that Korbely’s actions would lead to a prosecution for crimes against humanity, then the classification of the victim under the Geneva Conventions was superfluous. The applicability or otherwise of common Article 3 of the Geneva Conventions would only have been relevant if Korbely was being prosecuted for war crimes, which he was not. The essential questions should have been whether the actions for which the applicant was prosecuted constituted murder; committed against a civilian population; in a systematic or organised manner in the furtherance of a particular policy. This was explained cogently in the dissenting opinion of Judge Loucaides. The majority did observe that in the materials presented by the Hungarian government there was nothing cited that demonstrated how actions contrary to common Article 3 of the Geneva Conventions could in fact be crimes against humanity.75 According to the law as it stood in 1956 there would have to be additional elements along with the act constituting murder, in particular that the crime in question should not be an “isolated or sporadic incident”.76 The European Court found that the Hungarian Supreme Court had not addressed this issue and that, therefore, it was “open to question” whether the constituent elements of a crime against humanity were made out in Korbely’s case.77 In the light of this, it is slightly odd that the Court then went on to examine whether Korbely’s victim was a “non-combatant” for the purposes of Article 3 of the Geneva Conventions. The real question was whether the victim was part of the civilian population as it is understood in relation to crimes against humanity, which is a similar but distinct question. Regardless of the above, the Court’s approach to the disputed events was problematic for another reason. It hinged on the interpretation of the actions of both Korbely and his victim on the afternoon of 26 October 1956. Indeed, it was so finely balanced that the essential question was whether when the victim reached into his coat and brought out a handgun he was in the process of surrendering it or attempting to fire upon the applicant and his men. The Hungarian Supreme Court had found that Korbely knew the victim intended to hand over the gun.78 These are precisely the sort of highly specific and hotly contested events about which domestic successor trials may contribute to the formation of a collective memory and the achievement of historical justice. 74 75 76 77 78

Ibid., para. 74. Ibid., para. 80. Ibid., para. 83. Ibid., para. 85. Ibid., para. 44.

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The European Court reviewed the findings of fact made by the domestic courts and found that within them there was nothing that could lead to the conclusion that the victim intended to surrender. The victim had “embarked on an animated quarrel with the applicant, at the end of which he drew his gun with unknown intentions”.79 In the view of the European Court it was not clear enough that the victim was taking no active part in the hostilities, and so it could not be said that he gained protection under the Geneva Conventions. In response to this the joint dissent by Judges Lorenzen, Tulkens, Zagrebelsky, Fura-Sandström and Popović stated that the majority had “on a flimsy, uncertain basis, quite simply substitute[d] their own findings of fact for those of the Hungarian judicial authorities”.80 Instead, the dissent argued that, [i]n view of the complexity of the task of reconstructing the facts of the case more than fifty years after they occurred, we see no reason to place more reliance on the conclusions reached by the Court than on those of the domestic courts. On the contrary, we consider that the national courts were in a better position to assess all the available facts and evidence. The dissenters’ reference to the national courts being in a “better position” is identical to one of the justifications for recognising a margin of appreciation in relation to other articles of the European Convention, and implicitly invokes the notion of subsidiarity.81 The significance of this is that if the European Court of Human Rights seeks to validate reliance on international norms as one means of securing the legal consistency required to avoid the rule of law dilemma presented by successor trials, then its guidance on the content of those international norms is crucial. With both its approach to the applicable international law, and its approach to the domestic findings of fact, the European Court missed the opportunity to “improve” the transitional policy. Dealing with the Pre-communist Past: the Kononov Case and “Historical Truth” Finally in this part of the paper we turn to case a brought in the post-­Communist era but which deals with events that took place before that era even began. The case of Kononov v. Latvia concerned the night-time killing of a number of 3.3

79 80 81

Ibid., para. 91. Ibid., Joint Dissenting Opinion of Mr. Lorenzen, Ms. Tulkens, Mr. Zagrebelsky, Ms. FuraSandström and Mr. Popović. See e.g. Handyside v. the United Kingdom, 7 December 1976, echr, Series A no. 24, para. 48.

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villagers suspected of collaborating with the Nazis during World War ii. In this case a Chamber of the European Court, sitting prior to the judgment in Korbely, found a violation of the Convention82 but a Grand Chamber, sitting afterwards, reversed the Chamber’s findings.83 In a sense it could be argued that this case is not a transitional justice case at all or, if it were, that it concerned the transition between war and peace at the end of World War ii. To that extent the instant parallels might lay with cases concerning the prosecution of Nazi collaborators, which the European Court has consistently found do not violate Article 7 echr, rather than the cases discussed elsewhere in this paper.84 However, in its submissions before the Chamber the Latvian government drew attention to the importance of trials such as this for the restoration of democracy in Latvia, for establishing “historical truth”, and guaranteeing justice for victims of war crimes and crimes against humanity.85 The Latvian government’s argument engages the idea of a right to truth – although the case was not itself decided from that perspective. Teitel has argued that the establishment of the truth about repressive prior regimes is a form of transitional justice in its own right.86 The UN Basic Principles and Guidelines recognise the importance of victims knowing the truth about the human rights abuses that they have suffered.87 From an initially relatively narrow interpretation of the Article 10 echr right to receive information,88 there are signs that the European Court has recognised the importance of the right to truth in transitional contexts via its development of positive obligations emanating from Article 2 echr.89 Returning now to the Kononov case, it is notable that the Russian government intervened in the proceedings (we shall discuss the nature of the 82 83 84

Kononov v. Latvia, 24 July 2008, echr, no. 36376/04. Kononov v. Latvia [gc], 17 May 2010, echr, no. 36376/04. See e.g. the 1997 admissibility decision of the European Commission in Touvier v. France (dec.), 13 January 1997, ECommHR, no. 29420/95 and the 2001 admissibility decision in Papon v. France (No. 2)(dec.), 15 November 2001, echr, no. 54210/00. In both cases the elements of the application based on Article 7 echr and which related to alleged war crimes and crimes against humanity committed during World War ii were declared inadmissible. 85 Kononov (Chamber), supra note 82, para. 92. 86 Teitel, supra note 9, p. 72. 87 UN Basic Principles, supra note 15, paras. 22(b) and 24. 88 Leander v. Sweden, 26 March 1987, European Court of Human Rights, no. 9248/81, (1987) 9 ehrr 433, para. 74. 89 See Association “21 December 1999” and others v. Romania, 24 May 2011, echr, nos. 33810/07 and 18817/08.

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i­ntervention in the next section). The involvement of Russia in this case adds an important dimension to the case since the applicant’s allegiances appear to have lain with the former Soviet Union. After the war the applicant was celebrated as a Soviet war hero90 and received the Order of Lenin, the highest distinction awarded in the ussr, for his activities as a partisan.91 Until his retirement in 1988, he worked as an officer in the Soviet police force.92 Kononov was charged, prosecuted and found guilty of war crimes for his part in the killing of the villagers. The Latvian statute of limitations did not apply to such crimes. Note that this case, unlike Korbely, dealt explicitly with war crimes and not crimes against humanity and, therefore, the law of the Geneva Conventions was undoubtedly relevant. When Kononov alleged that his conviction violated Article 7 echr, it fell again to the European Court to determine whether the interpretation of the relevant international law that underpinned his prosecution was sufficiently accessible and foreseeable. If his actions were not war crimes, then the statute of limitations would protect him from prosecution. The Chamber found no reason to contest the facts as they had been found by the Latvian courts.93 The Chamber’s 4/3 majority finding that there was a violation of Article 7 echr was based on the conclusion that under the law applicable at the time the victims could not be regarded as civilians, and that therefore their summary execution was not a war crime.94 This conclusion was supported by a strikingly personal concurring opinion by Judge Myjer, which drew on his upbringing in the Netherlands in the post-war era and went to on explain why he felt that there could be no forgiveness for collaboration with the Nazis. In legal terms, Judge Myjer also argued that it was only after the Nuremburg trials in 1945–1946 that it had become clear that anyone who committed similar crimes could be held personally responsible. Thus Kononov’s acts, committed in 1944, could not be classified as war crimes to which the statute of limitations did not apply. In its submissions the Latvian government had identified that the Nuremburg trials only punished crimes perpetrated by the Nazis, whereas trials such as Kononov’s allowed some redress for war crimes and crimes against humanity that were perpetrated by the Allies.95 It was the fact that this case concerned 90 91 92 93 94 95

Kononov [gc], supra note 83, para. 158. Kononov (Chamber), supra note 82, para. 30. Ibid. Kononov (Chamber), supra note 82, para. 111. Kononov (Chamber), supra note 82, para. 131 (in respect of the men); Kononov (Chamber), supra note 82, para. 139 (in respect of three women). Kononov (Chamber), supra note 82, para. 92.

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the trial of someone on the side of the Allies that made the case stand out – but perhaps misleadingly. This point was developed in the joint dissenting opinion of Judges Fura-Sandström, Davíd Thór Björgvinsson and Ziemele, in a passage which also drew attention to the enlargement of the Council of Europe and the issue of double standards. They pointed out that, [t]his case is allegedly different since the applicant belonged to the Allied powers fighting against the Nazis. The legal basis for such an approach is unclear. Why should criminal responsibility depend on which side those guilty of war crimes were fighting on? There is certainly nothing in the Convention itself to limit the application of Article 7 to Nazi crimes alone. On the contrary the Article is drafted broadly and with a specific purpose as the travaux préparatoires amply show. True enough, today the Convention covers many more States then at the time of its drafting. However, now that this expansion has taken place, does that mean that more recent States Parties have different rights and obligations under Article 7? Or, in other words, that the Convention should operate with double standards? We do not think so. They argued that the majority’s interpretation of the international law at the time was faulty, and that the fact that the Court found the villagers to have held “pro-Nazi views” could not deprive them of the protection afforded to civilians in international humanitarian law.96 They also drew attention to the historical context,97 which might suggest that collaboration with Nazi Germany against the ussr was essentially a hard choice between totalitarian regimes.98 In 2010 the Grand Chamber revisited the Kononov case and found by a majority of 14/3 that there was no violation of the Convention. Attempting to put the actions of the villagers in context, the Latvian government drew on the dissent in the Chamber and argued that the Soviet and Nazi occupations of Latvia were “equally unlawful”.99 Likewise the government of Lithuania intervened before the Grand Chamber arguing that the Baltic States suffered aggression from both Nazi Germany and the ussr.100 The significance of these

96

Ibid., Joint Dissenting Opinion of Judges Fura-Sandström, Davíd Thór Björgvinsson and Ziemele, para. 12. 97 Ibid., note in particular footnote 14. 98 See also Kononov (Chamber), supra note 82, Individual Dissenting Opinion of Judge David Thór Björgvinsson, para. 2. 99 Kononov [gc], supra note 83, para. 152. 100 Ibid., para. 179.

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arguments for the European Court’s involvement in the delivery of historical justice is developed in the next section. The Grand Chamber did not rule on the question of whether the victims were “civilians who had participated in hostilities” or combatants: it simply found that even if they were, they were unarmed at the time and thus, applying the law as it was understood in 1944, were hors de combat.101 The Grand Chamber considered the questions of accessibility and foreseeability together. It found that, given Kononov’s role as a commanding military officer, he could have foreseen in 1944 that his actions would constitute war crimes.102 The applicant argued that his prosecution was “politically unforeseeable”, and was in a fact a political exercise.103 In this regard the European Court went on to recall its earlier dicta on foreseeability in the context of changes of regime. The Grand Chamber again stated that the successor courts “cannot be criticised” for applying and interpreting the legal provisions in force at the material time in the light of the principles governing a State subject to the rule of law and with regard to the “core principles on which the Convention system is built”.104 This actually extends the approach from Streletz and K.-H. W. in two ways. Firstly it grafts appreciation of the change of regime on to the foreseeability of prosecutions based on international law. Secondly it more explicitly addresses not only transition towards establishing the rule of law, but also transition towards compliance with the core principles of the echr. 4 The ECtHR, Historical Justice and Successor Trials We noted above that domestic successor trials deal not only with individual criminality but also take on a ritual function, de-legitimating the previous regime and helping to establish the legitimacy of the successor regime.105 The establishment of the truth about repressive prior regimes is a form of justice in its own right, and although truth and reconciliation processes may be the clearest embodiment of historical justice, successor trials can make a s­ ignificant contribution.106 101 Ibid., para. 216. 102 Ibid., para. 237. 103 Ibid., para. 234. 104 Ibid., para. 241. 105 Teitel, supra note 9, p. 73. Again, this is not to imply that the successor regime is necessarily also at the head of a successor state. 106 Ibid., p. 72.

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If domestic successor trials play this ritual function in terms of the delivery of historical justice, then undoubtedly (and intentionally or otherwise) the judgments of the European Court of Human Rights in relation to them will take on the same ritual function. It was therefore argued above that the European Court’s approach to the human rights cases generated by such trials could amplify or impede the process of historical accounting that they represent. This was why the Court’s apparent rejection of the Hungarian Supreme Court’s findings on the facts leading up to the prosecution in Korbely was particularly awkward. There is, therefore, a much broader sense in which the European Court’s judgments on transitional issues will be received as playing a role in historical accounting. Writing in relation to restitution policies, Patrick Macklem has observed that international human rights law has begun to find ways in which to give expression to collective memories.107 Macklem argues that this does not come naturally to human rights lawyers because of “the field’s fearlessly modernist focus on the present and future at the expense of the past, and for its optimistic tendency to equate human rights with human progress”.108 Nevertheless, he observes that law can and does play a role in the construction of collective memories. In the same way that statues or monuments may become “memorial sites” by which groups may seek to sustain their collective identity, “[l]aw’s memorial sites are comprised of principles, rules and procedures that invest moments in history with normative significance”.109 Specifically on the issue of equality claims arising from post-communist property restitution policies, Macklem goes on to contrast the approach of the UN Human Rights Committee and the European Court of Human Rights and finds that the latter remains “thoroughly modernist in orientation in its steadfast resistance to engage the past”.110 There is yet another important, arguably meta-juridical, sense in which the European Court “does” (or is asked to “do”) historical justice: the way that it presents not just the facts of the case but the broad historical context in which those facts can be placed. The parties themselves may attempt to enlist the European Court’s assistance to settle not only contested facts directly relevant to the case at hand, but also wider historical debates. For example, the circumstances surrounding the Baltic States’ incorporation into the ussr in 1940 have 107 P. Macklem, ‘Rybná 9, Praha 1: Restitution and Memory in International Human Rights Law’, 16:1 ejil (2005) p. 1. 108 Ibid., p. 13. 109 Ibid., p. 14. 110 Ibid., p. 21.

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surfaced as background issues in several cases – including the Kononov case discussed in the previous section. It is clear from several cases brought before the European Court that the Baltic States seek recognition that their incorporation into the ussr was unlawful, whereas Russia maintains it was not. The 2004 Chamber111 and 2006 Grand Chamber112 judgments in Ždanoka v. Latvia reached opposite conclusions on the alleged violation of the Convention, which concerned restrictions on the political rights of a communist politician. Of relevance to this paper is that both judgments stated that the European Court would not pronounce on matters of “purely historical fact”.113 This chimes with Tom Allen’s observations about certain restitution cases which, he argues, show that “there is a reluctance to allow the Court to be used as a forum for hearing disputes that have their origin in the pre-transitional era”.114 Indeed, Allen concluded that in transitional restitution cases generally “there is a strong (though not universal) belief [within the European Court] that there is little to be gained by investigating the stories of victims”.115 It is Allen’s reference to “stories” that is relevant. It supports the idea that the European Court could play a role in the construction of historical narratives both within and outside its formal fact finding role, although it is clear that Allen does not think it is doing so at present. Nevertheless the Grand Chamber judgment in Ždanoka went on to observe that, Latvia, along 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.116 This observation formed the backdrop to legal discussion of the proportionality of a restriction placed upon the applicant’s rights under Article 3 Protocol 1 echr. By giving recognition to the proposition that the Molotov-Ribbentrop Pact was unlawful, the European Court may have helped the transitional Baltic 111 112 113 114

Ždanoka v. Latvia, 17 June 2004, echr, no. 58278/00. Ždanoka v. Latvia [gc], 16 March 2006, echr, no. 58278/00, echr 2006-iv. Ždanoka [gc], supra note 112, para. 96; Ždanoka (Chamber), supra note 111, para. 77. T. Allen, ‘Restitution and Transitional Justice in the European Court of Human Rights’, 13:1 Columbia Journal of European Law (2007) p.1, at p. 30. See also T. Allen and B. Douglas, ‘Closing the Door on Restitution: The European Court of Human Rights’, in Hamilton and Buyse, supra note 11. 115 Allen, supra note 114, p. 45. 116 Ždanoka [gc], supra note 112, para. 119.

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States in the development of a historical narrative of their experiences under communism. In the course of its submissions in Kuolelis v. Lithuania the respondent State explained that it had been the subject of “annexation”, and that the Lithuanian government had been “illegally ousted by Soviet occupying forces from 1940 to 1990”. The European Court, however, did not make a finding in this regard since the legally decisive question pertained to the crystallisation of Lithuanian independence from the ussr in the early 1990s, rather than the circumstances surrounding the prior loss of its independence. Nevertheless, in the introduction to the judgment the European Court had referred to the Soviet “invasion” of Lithuania in early 1940 and the completion of the “annexation” in August 1940.117 These comments were made under the heading of “historical and political background”, and the European Court simply stated that the background “was set out” in the relevant domestic courts.118 The background materials were not therefore presented as contested domestic findings of material fact, but rather as stable propositions that merely appear in the domestic findings. Thus the European Court seemed content to accept and to repeat the proposition that in 1940 there was an invasion and annexation of the Baltic States. Although not as explicit as Ždanoka, the approach to the Molotov-­Ribbentrop Pact in Kuolelis is consistent with it. Even referring to it as unlawful in the introduction, rather than in the legal findings, lends credence to the position of the Baltic States. Given this relative consistency of approach to the events of 1940, the approach of the European Court in both the 2008 Chamber judgment and 2010 Grand Chamber judgment in Kononov v. Latvia and by the Grand Chamber  in Andrejeva v. Latvia119 merit some discussion. In these judgments the Court seems to have retreated from its earlier observations about the Molotov-­ Ribbentrop Pact. The Andrejeva case concerned the applicant’s exclusion from certain elements of a pension entitlement that she would have gained but for the fact that she did not have Latvian nationality. A 16/1 majority in the Grand Chamber found that it was a straight case of discrimination on the basis of nationality for which there was no objective justification: it was undisputed that a Latvian citizen in the same position as Andrejeva, and who had worked at the same “entity” for the same period of time, would gain the better pension.120

117 118 119 120

Kuolelis, supra note 66, para. 8. Ibid., para. 7. Andrejeva v. Latvia [gc], 18 February 2009, echr, no. 55707/00. Ibid., para. 87.

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A violation of Article 14 in conjunction with Article 1 Protocol 1 followed (as well as a violation of Article 6). Judge Ziemele’s long and detailed partly dissenting opinion was predicated on the statement that Latvia had been unlawfully occupied for 50 years, and went on to provide considerable legal and academic support for that assertion. Judge Ziemele argued that there could be no human rights obligation upon an injured State to bear the responsibility for paying a pension earned in the service of the aggressor State to which Latvia was not the successor.121 Judge Ziemele took particular issue with the majority’s findings and use of language when they discussed the Latvian government’s argument that from the perspective of public international law, Latvia had not inherited the rights and obligations of the former Soviet Union as regards welfare benefits. The majority described the argument as “misconceived”, and continued stating that “[e]ven assuming that the Government were correct on this point, the conclusion that has to be drawn in this case would be unaffected”.122 The majority expanded on this latter point, but it is the formula “even assuming” that concerned Judge Ziemele: [T]he phrase ‘even assuming that the Government were correct’ is incomprehensible. Are the majority suggesting that Latvia is a new successor State to the ex-USSR? The adoption of such a position by the Court would go against its own approach in several other cases (for example, Ždanoka v. Latvia [gc] …).123 … [S]aying or implying that Latvia has some automatic obligations stemming from the Soviet period would defy the fact that the occupation and annexation of Latvia were illegal in international law and it would raise a question as to the Court’s compliance with the general principle of ex injuria non jus oritur and the obligation of non-recognition in international law.124 The real difference with Judge Ziemele’s opinion is the way that the dispute is framed. Indeed she concluded by expressing concern that the Court should not avoid complex matters by dealing with issues in a “narrow and isolated manner”.125 Wider public international law, including the law of State 121 122 123 124 125

Ibid., Partly Dissenting Opinion of Judge Ziemele, para. 10. Ibid., para. 78, emphasis added. Ibid., Partly Dissenting Opinion of Judge Ziemele, para. 17. Ibid., para. 22. Ibid., para. 41; see also the Partly Concurring and Partly Dissenting Opinion of Judge Mijović, joined by Judge Hajiyev and the Dissenting Opinion of Judge Bonello in Sejdić

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s­ uccession and State continuity, was therefore central to Judge Ziemele’s analysis of the case.126 Judge Ziemele also stressed that the applicant’s presence in Latvia was typical “of the many people who were encouraged to move to the Baltic republics as part of the policy of Sovietisation and Russification of the Baltic States by the Soviet Communist Party after their unlawful incorporation into the Soviet Union”.127 The narrowing of the approach to “historical” issues continued in Kononov v. Latvia. In the Chamber’s hearings the parties and Russia as a third party intervener all made submissions on whether Latvia’s incorporation into the ussr in 1940 was lawful. We saw above that the Latvian government specifically drew attention to the importance of successor trials such as this for establishing “historical truth”.128 As we saw above, the facts of the case related to alleged war crimes committed in 1944. The Chamber reiterated that it would not pronounce on matters of “purely historical fact”, and that for the purposes of the case before it the issues surrounding Latvia’s incorporation were neither decisive nor relevant.129 The Grand Chamber was faced with the similar arguments. The applicant argued that, Latvia was lawfully one of the Republics of the ussr since 1940 and it was contrary to historical fact and common sense to state otherwise. The Declaration of 4 May 1990 and his conviction were designed to achieve a condemnation of the annexation of Latvia in 1940 as illegal, rather than a desire to fulfil international obligations to pursue war criminals.130 The Russian government intervened in support of this position, stating that the European Court “was not competent to re-evaluate history and notably the incorporation of Latvia into the ussr in 1940”.131

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127 128 129 130 131

and Finci v. Bosnia and Herzegovina [gc], 22 December 2009, echr, nos. 27996/06 and 34836/06, both of which accuse the majority in that case of “divorcing” the respondent State from its own recent history when they held that elements of the Dayton Peace Agreement were contrary to the European Convention. It is worth noting Judge Ziemele’s citation of the Commission decision in Jasinskij and others v. Lithuania, where in 1998 the Commission clearly found that Lithuania was not the successor to the ussr in a case where the applicants argued that Lithuania should be responsible for certain debts owed by the ussr: Jasinskij and others v. Lithuania (dec.), 9 September 1998, ECommHR, no. 38985/97. Andrejeva v. Latvia, supra note 119, Partly Dissenting Opinion of Judge Ziemele, para. 27. Kononov (Chamber), supra note 82, para. 92. Ibid., para. 112. Kononov [gc], supra note 83, para. 16, emphasis added. Ibid., para. 174.

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The government of Lithuania intervened alongside Latvia to remind the European Court that it had already recognised that the Baltic States had lost their independence through the Molotov-Ribbentrop Pact (although it cited no cases to support this proposition), and that the Pact was “an undisputed historical fact, an illegal agreement to commit aggression against, inter alia, the Baltic States and resulted in their illegal occupation by Soviet forces”.132 Despite its earlier finding in Ždanoka, and the Chamber’s references to “annexation” in Kuolelis, the Grand Chamber in Kononov explicitly held that it was “not its role to pronounce on the question of the lawfulness of Latvia’s incorporation into the ussr”.133 This is a wholesale retreat from the clear statement of the Grand Chamber in Ždanoka, and the summary of apparently uncontested facts in Kuolelis. It may be notable that Judge Ziemele, the Latvian judge, had withdrawn from sitting in the Grand Chamber in Kononov.134 In 1998 in Lehideux and Isorni v. France the Grand Chamber had held that  there was a “category of clearly established historical facts – such as the ­Holocaust – whose negation or revision would be removed from the protection of  Article 10 by Article 17”.135 The European Commission and Court have also made reference to more specific assertions being “historical facts of common knowledge”, such as the fact that people were gassed to death at the StruthofNatzweiler Nazi death camp (in an inadmissible application brought by someone charged with complicity in the denial of crimes against humanity).136 From the Ždanoka and Kuelelis judgments, it might have appeared that the events of 1940 were on their way to becoming “historical facts of common knowledge”, rather than “purely historical facts” outside the European Court’s jurisdiction to consider. A cursory examination of basic public international law would show that the acquisition of territory by force was outlawed at least as early as 1928 through the Pact of Paris (also known as the Briand-Kellogg Pact); that the principle was affirmed with the crystallisation of the “Stimson doctrine of non-recognition”;137 and was explicitly reaffirmed by the Assembly of the League of Nations in 1932.138 This makes the legal quality of the 132 133 134 135

Ibid., para. 179. Ibid., para. 210. Ibid., para 7. Lehideux and Isorni v. France, 23 September 1998, echr, Reports of Judgments and Decisions 1998-vii, para. 47. 136 Marais v. France (dec.) 24 June 1996, ECommHR, no. 31159/96. 137 See Q. Wright, ‘The Stimson Note of January 7 1932’, 26 American Journal of International Law (1932) p. 342. 138 See generally D.J. Harris, Cases and Materials on International Law, 5th edition (Sweet & Maxwell, London, 1997) pp. 218 et seq.

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­ olotov-Ribbentrop Pact and its secret protocol at least questionable.139 The M USA never recognised the incorporation of Latvia, Lithuania and Estonia into the ussr, and the UK gave only de facto recognition.140 In 1987 the Parliamentary Assembly of the Council of Europe passed a Resolution “on the situation of the Baltic peoples” in which it “recalled that the incorporation of the three Baltic States into the Soviet Union was and still is a flagrant violation of the right to self-determination of peoples”.141 Moreover, and as the Lithuanian government pointed out in the Kononov case, in 1989 the Supreme Soviet of the ussr had even recognised its unlawful aggression towards the Baltic States in its “Resolution on the Political and Juridical Appraisal of the Soviet-German Non-Aggression Treaty of 1939”.142 Thus whenever the European Court has explicitly or tacitly accepted that the incorporation of the Baltic States into the ussr was by way of annexation, and was therefore unlawful, it has undoubtedly impacted upon the achievement of historical justice in those States by validating such a crucial element of their historical narrative. By contrast, its failure to continue this trend in the Kononov case risks undermining the delivery of historical justice in the Baltic States. It might also appear to the Baltic States that the European Court was influenced by the pressure placed on it by Russia (which, at the time of the Chamber judgment, was still refusing to ratify Protocol 14).143 In this section we have seen that the judgments of the European Court may play a significant role in the memorialisation of certain events. The Court’s approach to major historical events forming the background to its cases may impact upon the achievement of historical justice in the newer contracting parties from Central and Eastern Europe. In Andrejeva taking greater account of the historical context could have radically altered the scope of the case. The inconsistent approach to the Molotov-Ribbentrop Pact suggests that the European Court either does not recognise these implications, or has consciously retreated from a position in which it might “do” transitional justice by 139 See D. Žalimas, ‘Legal Issues on the Continuity of the Republic of Lithuania’, 2 Hawaiian Journal of Law and Politics (2006) p. 73, at pp. 74 et seq.; see also the discussion in Mälksoo, supra note 24, pp. 761 et seq. 140 R. Wallace, International Law, 3rd edition (Sweet & Maxwell, London, 1997) p. 99. 141 pace Resolution 872 (1987) “On the situation of the Baltic peoples”, text adopted by the Assembly D 28 January 1987 (25th Sitting), para. 3. 142 Kononov [gc], supra note 83, para. 179; Žalimas, supra note 139, p. 76; S.D. Murphy, ‘Democratic Legitimacy and the Recognition of States and Governments’, 48:3 iclq (1999) p. 545, at p. 557. 143 Russia ratified Protocol 14 on 18 February 2010: details available at (accessed 30 April 2020).

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c­ onfirming the circumstances by which the Baltic States became subject to totalitarian rule. 5

Conclusion: Tying the Threads and Divining the Implications for Universality

In this paper we have seen that successor trials have raised not only questions about transitional criminal justice but also about historical justice. In its approach to the national successor trials that have come before it, the European Court has, in every case, accepted the broad legitimacy of the respondent State’s attempt to circumvent the rule of law dilemma that successor trials present. Convention law has not acted as a barrier to successor trials. The European Court also has great potential to assist in the formulation, implementation and improvement of transitional policies. It was clear even from Streletz, Kessler and Krenz and K.-H. W. that there would be more than one Convention-compliant way of justifying successor trials, including those based on taking nominal law seriously, and those based on international law. In this way, the Court has not undermined the principle of subsidiarity, nor has it imposed a one-size-fits all solution on all the transitional States. The impact upon universality of confirming both approaches is discussed shortly. However the Court’s track record on confirming whether the interpretation of the relevant law and claimed findings of facts were reasonable is more mixed. Although it claims to recognise that domestic courts have the primary role as fact finders, its approach to the facts of the case in Korbely and the wider circumstances of Kononov were a little problematic. The legal guidance given regarding the relevance of common Article 3 of the Geneva Conventions to the prosecution in Korbely was also a little unorthodox. The final question is to determine the implications for the universality of human rights. The Court’s approach has a twofold implication for the universality of human rights: diversity between transitional States is recognised in accordance with the principle of subsidiarity, but diversity between the transitional States and democratic States has been downplayed. The ability of the European Court to accommodate the need for diversity between the different approaches of different transitional statutes is hugely significant. As Oomen has argued, transitional measures gain legitimacy from their “endogeneity”: the extent to which they are rooted in local values of right and wrong, as well as local laws.144 On this basis as well as in order to respect 144 Oomen, supra note 22, p. 146.

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the principle of subsidiarity, the European Court does well to accommodate a variety of solutions. It may be well poised to identify faults in transitional policies, but it is another exercise altogether to prescribe what ought to be done.145 Diversity between the transitional and non-transitional cases is only opaquely visible in the Article 7 cases on successor trials. The jurisprudence shows that the European Court considers that factually well-supported prosecutions, based on a legally and historically valid interpretation of war crimes and crimes against humanity, do not amount to retroactive prosecutions. The relevant international law existed at the material time so a prosecution based on it could not violate Article 7 echr. Likewise, the prosecutions in the German Berlin Wall cases were not retroactive because they were based on domestic law that existed at the material time. Nevertheless the reality of the situation is that under both approaches the new regimes have engaged in prosecutions that would probably never have taken place under the former regime. The European Court does not seem to consider that the pursuit of such prosecutions amounts to impermissible retribution by the new regime. Thus the totalitarian ancien régime and the successor democratic governments are not afforded equal respect: the European Court rightly recognises that States governed by the rule of law and abiding by the core principles of the Convention are entitled to correct the misdeeds of prior regimes that did not. The subtlety of this approach hinges upon the difference between acknowledging the transitional context, and actually altering the form of justice applied in the case because of it. To ignore the context completely would be to engage in what has been described as the “dynamics of condescension” from Western States towards the newer contracting parties from the East.146 However since transitional justice is always “non-ideal” the European Court should not seek to become engaged in departing from its earlier standards on this ground, not least of all because the European system itself is not the subject of democratic transition (it is only the contracting parties that are undergoing democratic transition). Moreover, such a departure would put the European Court in the invidious position of avowedly dispensing non-ideal justice in relation to some States but protecting and promoting universal human rights in 145 Of course the Court’s introduction of pilot judgments in respect of some of post-Cold War restitution cases merits study in this regard: see Sweeney, ‘Divergence and Diversity’, supra note 1, pp. 36 et seq.; see more generally P. Leach et al., An Analysis of ‘Pilot Judgments’ of the European Court of Human Rights and Their Impact at National Level (Intersentia, Oxford, 2010). 146 M.-B. Dembour and M. Krzyzanowska-Mierzewska, ‘Ten Years On: The Voluminous and Interesting Polish Case Law’, European Human Rights Law Review (2004) p. 517, at p. 517.

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relation to others. This would by no means be culturally relativist, but could result in precisely the “pernicious ‘variable’ geometry of human rights” that Lester and others feared could materialise via use of the margin of appreciation doctrine in an enlarged Council of Europe.147 The European Court’s involvement with historical justice is of quite a different order. Firstly whilst there is something inherently judicial about successor trials, legal systems do not necessarily have such a central role in historical accounting. Nevertheless it is clear from the cases discussed above that the European Court’s approach not only to the facts of the case but also to wider issues of historical importance certainly impacts upon historical justice. Secondly it is by no means so clear that human rights law presents a prima facie barrier to achieving historical justice in the way that we saw in relation to successor trials (although we encountered academic commentary that argued the European Court is reluctant to become sufficiently involved in the process of memorialisation).148 The European Court’s developing reticence towards the events of 1940 would seem also to support this hypothesis. If human rights law does not constitute a barrier to historical justice, then arguably the European Court could do more in this regard. This is not to say that courts make ideal places for findings of fact, be they material to the case or a part of its background. Legal epistemology can be a little underdeveloped,149 and the European Court should do its best to nurture domestic narratives rather than impose internationally palatable official truths. However, and without doing this, there are at least some questions – such as those relating to the events of 1940 – that the Court is surely able to answer without compromising either its neutrality or its commitment to the universality of human rights. 147 Lester, supra note 3, p. 76. 148 E.g. Allen, supra note 114; Macklem, supra note 107. 149 See A. Good, ‘Expert Evidence in Asylum and Human Rights Appeals: an Expert’s View’, 16:3 International Journal of Refugee Law (2004) p. 358, at p. 375 lamenting that for lawyers facts are often seen as “philosophically unproblematic”. See also A. Good, Anthropology and Expertise in the Asylum Courts (Routledge, Abingdon, 2007); J.L. Montrose, ‘Basic concepts of the law of evidence’, 70 Law Quarterly Review (1954) pp. 527–555; W. Twining, ‘Taking Facts Seriously’, reprinted in W. Twining, Rethinking Evidence: Exploratory Essays, 2nd edition (cup, Cambridge, 2006). This research is discussed by the present author in J.A. Sweeney, ‘Credibility, proof and refugee law’, 21:4 International Journal of Refugee Law (2009) p. 700, at p. 725; J.A. Sweeney, ‘The “lure” of facts in asylum appeals’, in S. Smith (ed.) Applying Theory to Policy and Practice: Issues for Critical Reflection (Ashgate, Aldershot, 2007).

Volume 13 (2014)

Implementation of the Sustainable Development Principle in Nuclear Law Jolanta Apolevič Contents 1 Introduction 2 Sustainable Development Principle in the Field of International Law 2.1 Genesis and Concept of the Sustainable Development Principle 2.2 The Concept of Intergenerational and Intergenerational Equity 3 Sustainable Development Principle in the Field of Nuclear Law 3.1 Ecocentric Side of the Principle: Reaching Sustainability of Environment via Minimisation or Exclusion of Environmental Externalities 3.1.1 Requirement to Foresee Radioactive Waste Storage/Disposal facilities in Order Not to Put the Environment at the Risk of Degradation 3.1.1.1 Long-lived, High-level Radioactive Waste: How Far into the Future Should the State Plan to Ensure the Safety of the Repository Site? 3.1.1.2 Exclusion of Radioactive Waste from Military Reactors from the Conventional Regime and General Antidumping Regulation Gaps 3.1.1.3 Radioactive Waste from Mining and Milling 3.1.2 Managing Other externalities of Nuclear Power Generation: Cooling Water Systems Issue 3.2 Anthropocentric Side of the Principle: Reaching Sustainability of the Fuel Resources via Preserving Uranium 3.3 100 Per Cent Sustainable Nuclear Energy: Closed-Fuel-Cycle as an Option to Solve the Problems of Sustainable Development Principle Enforcement in the Field of Nuclear Law 3.3.1  Externalities of Sustainable Closed-Fuel-Cycle: Non-­ Proliferation Issue 4 Conclusion

© koninklijke brill nv, leiden, ���1 | doi:10.1163/9789004433151_010

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We have not inherited this planet from our ancestors; we have borrowed it from our children. Ancient Indian proverb

1 Introduction The principles of environmental protection play an important role in the field of nuclear law. Some of them have reached the level of customary international law (e.g. Principle 21 of the Stockholm Declaration, which prohibits States from acting within their territory so as to cause harm outside their territory) or ‘level of general requirement of international law’ (this is an odd definition that the International Court of Justice (icj) provided for the duty to conduct a transboundary environmental impact assessment in the case Argentina v. Uruguay)1 and impose binding obligations on the States. There are however some principles of environmental protection that are very controversial in terms of their content and their status. The principle of sustainable development – which is the object of this paper – and the precautionary principle are amongst them. Elli Louka aptly describes the abovementioned status controversy: “The sustainable development concept, polluter pays principle, and precautionary principle may not be the principles that would resolve future environmental disputes”. Instead, other similar principles “such as that of equitable sharing of costs of polluting activities and a preventive rather than a precautionary approach, may gain ground”.2 Gunther Handl similarly describes this unjust phenomenon of one of the environmental law p ­ rinciples

1 See Case Concerning Pulp Mills on the River Uruguay (Argentina v. Uruguay), i.c.j. Reports 2010, para. 204: “In this sense, the obligation to protect and preserve, under Article 41 (a) of the Statute, has to be interpreted in accordance with a practice, which in recent years has gained so much acceptance among States that it may now be considered a requirement under general international law to undertake an environmental impact assessment where there is a risk that the proposed industrial activity may have a significant adverse impact in a transboundary context, in particular, on a shared resource. Moreover, due diligence, and the duty of vigilance and prevention which it implies, would not be considered to have been exercised, if a party planning works liable to affect the regime of the river or the quality of its waters did not undertake an environmental impact assessment on the potential effects of such works”. 2 E. Louka, International Environmental Law: Fairness, Effectiveness, and World Order (Cambridge University Press, New York, 2006) p. 53, emphasis added.

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taking over the other ones with the Chernobyl3 example: “Sometimes, an argument for substituting Source State’s full accountability for accidental ­transboundary harm with international solidarity cost sharing as the general international allocative principle for transboundary nuclear damage is made”.4 We should not however undermine the fact that those ‘vaguely defended’ principles, inter alia the principle of sustainable development and precautionary principle, “articulated as such, are informing the intellectual background of decisionmakers and are helping to establish a common credo among those who are involved in the everyday shaping of international environmental affairs”.5 This paper analyses how the principle of sustainable development, being a typical environmental principle, influences the decision-makers and helps them to shape international affairs within such a specific field of law as nuclear law (this question is sensitive, controversial and therefore tends to be forgotten in the legal scientific articles or studies). The aim of this paper is not to provide judgments on whether or not nuclear energy6 can be considered a sustainable technology, or influence the strategy of an individual State towards nuclear energy. The paper aims to identify the main environmental impacts of nuclear energy in a sustainable development perspective and inform decision-makers about the main challenges that must

3 This approach is still alive nowadays since despite the theoretical remedy to claim damages for Fukushima disaster, it seems unlikely that any nation would sue Japan just as no nation sought to hold the Soviet Union responsible for the widespread damages suffered by neighbouring states after Chernobyl. 4 “Although Chernobyl prima facie does not appear to raise questions about the justifiability of shifting away from the traditional principles of liability and compensation, closer examination shows that the question whether ‘a nuclear accident anywhere is a nuclear accident everywhere’ has been raised implicitly: the Soviet Union’s a priori rejection of possible claims for compensation implied that such claims were inappropriate in light of the extent and nature of the calamity suffered by the source state itself. The underlying premise of this perception is that economically better off victim states should contribute to the costs of reducing transnationally harmful pollution and, in the case of accidents, should bear – or at least share – the costs of dealing with the transboundary impacts. … The supporters of this theory called limitation of Soviet liability ‘a matter of practical politics and common sense’ and urged victim countries to absorb part of their damage costs as an ‘expression of international solidarity in world that utilizes nuclear power’…” G. Handl, ‘Transboundary Nuclear Accidents: the Post-Chernobyl Multilateral Legislative Agenda’, 15 Ecology Law Quarterly (1988) pp. 203, 222–228. 5 Louka, supra note 2. 6 The term ‘nuclear energy’ in the paper, for the sake of convenience, covers wide scope of activities, including reactor design, construction, operation, fuel issues.

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be overcome so that nuclear energy can best contribute to the goals of sustainable development (as was mentioned, the analysis deals with environmental impacts only and excludes social and economic dimensions). The analysis is divided into three parts. In the first part, I will start from (a) the genesis of the sustainable development principle which was born as a principle of international environmental law and can now be found in numerous treaties, conventions, case-law of the international courts and arbitrations and (b) its dichotomic meaning that covers two notions of intergenerational and intragenerational equity. Since – within the scope of environmental law – the boundaries between the definitions of goals, measures and principles of environmental law are not always clear, I will suggest my own understanding of interrelation between the principle of sustainable development, the goals of intergenerational and intragenerational equity, different measures (such as environmental impact assessment) to reach those goals and the precautionary approach. Having decided in the first part of the paper on the terminological ‘coordinate system’ of environmental law and having determined the position of the sustainable development principle in it, also after elaborating the crystallised content of the sustainable principle – I then move to the second and the main part of the paper where I try to practically apply the externalised definition of the sustainable development principle in a completely different ‘coordinate system’ of nuclear law. Although nuclear law is generally resistant to the intrusion of ‘alien principles’ coming from the other fields of law, inter alia environmental law, here the principle of sustainable development is applied. In the different setting of nuclear law the shape of the environmental sustainable development principle remained recognisable, but its classical features of intergenerational and intragenerational equity are moved slightly to the background. As a result, we could still contemplate the dichotomy of the sustainable development principle, but this dichotomy has obtained another nature. Thus, the principle of sustainable development is applied as an ecocentric approach (aiming to protect sustainable environment, e.g. through cautious radioactive waste management and disposal) and anthropocentric approach (aiming to protect not the environment per se, but human interests through the cautious use of nuclear fuel resources). I will try to analyse if these two approaches of the sustainable development principle enforcement in the specific field of nuclear law are successful. Sure enough, as it is claimed in the third part of the paper, almost all the problems of the enforcement of sustainable development principle in the field of nuclear law, identified in the main part of the paper, could be solved with the closed-fuel-cycle, but there is no international consensus on this question.

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The object of this paper is the principle of sustainable development in the narrow environmental7 sense: unlike in the Organisation for Economic ­Co-operation and Development (oecd) study,8 it does not cover economic or social factors, radiological protection,9 nuclear safety and third party liability10 issues. 2

Sustainable Development Principle in the Field of International Environmental Law

2.1 Genesis and Concept of the Sustainable Development Principle Although “the concept of sustainable development can be traced back … to such events as the Founex meeting of experts in Switzerland in 1971; the conference on environment and development in Canberra in 1971; and United Nations General Assembly Resolution 2849 (xxvi)”11 – it received a powerful impetus only from the 1987 World Commission’s12 publication called “Our Common Future” (known as the ‘Brundtland Report’)13 and the definition of sustainable development therein became the most popular one: “Sustainable development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs. It contains within it two key concepts: the concept of needs, in particular the essential needs of the world’s poor, to which overriding priority should be given; and the idea of limitations imposed by the state of technology and social organisation on the environment’s ability to meet present and future needs”. This 7 8 9

10 11 12

13

I.e. natural resource management, climate change, air and water quality, biodiversity and landscapes. oecd, Nuclear Energy in a Sustainable Development Perspective (2000), , visited on 17 April 2020. I believe radiological protection is based on precautionary approach, rather than sustainable development principle per se. Moreover, as the practice shows, the primary objective of the radiological protection standards is protection of human health, and not the environment itself. Likewise, these are two nuclear law fields that are more related to the prevention and polluter pays principles than to sustainable development principle. Separate opinion (in majority) of Judge Weeramantry in Gabcikovo-Nagymaros project case, i.c.j. Reports 1997. The World Commission was an institution established by the UN General Assembly Resolution in 1983 in order to address the environmental problems. Gro Harlem Brundtland was the chairman of the Commission (for further information, see , visited on 17 April 2020). “Our Common Future” addressed the problems of sustainable development, the international economy, the debt crisis, food security, species, ecosystems, industry, the urban challenge, peace and the arms race, climate change, and ozone depletion.

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definition and focus on future generations as a rightful beneficiary of environmental protection have led to the link between sustainable development and intergenerational equity that will be discussed later on in this paper. From the Brundtland Report, the sustainable development concept was transferred to the Rio Declaration on Environment and Development14 (elaborated during the Earth Summit) and ultimately during the Johannesburg Summit or World Summit on Sustainable Development in 2002, it was divided into three pillars, namely: economic development, social development and environmental protection. Speaking on a global scale, the final balance of environmental and development considerations in an international document (and fitting that all under one term of sustainable development) was considered a true success because until this point there was no agreement in question between the developing and developed countries. Thus, developed countries and their ngos have used the principle to underline the importance of environmental values, whereas developing countries have used the principle to buttress their right to development … Despite these misgivings, however, the principle has assisted in reconciling in one phrase what before seemed irreconcilable – namely, environmental protection and development … The Rio Conference was significant because it was an attempt to find a common ground between what developed states wanted to accomplish and what developing countries stood for.15 Following the recommendation of Agenda 21, the UN General Assembly16 established the Commission on Sustainable Development as a functional commission of the Economic and Social Council (ecosoc). The main tasks of the Commission was to “monitor the progress of Agenda 21 by gathering information from various sources; reviewing the access to financial, technological, and other resources; and serving as a forum for the discussion of environmental and developmental issues”. To sum up, the genesis of the sustainable development principle, as many authors point out, has ultimately received considerable endorsement and can be now found expressly or implicitly in many legal environmental instruments, such as (a) treaties, e.g. the UN Framework Convention on Climate Change (1992) (Articles 2 and 3), the Convention on Biological Diversity (the Preamble and Articles 1 and 10), African Convention (2003) (Article iii); (b) international declarations, e.g. in the aforementioned Rio Declaration ­sustainable 14

Principle 3 of Rio Declaration states: “the right to development must be fulfilled so as to equitably meet developmental and environmental needs of present and future generations”. 15 Louka, supra note 2, p. 52. 16 General Assembly Resolution 47/191, A/Res/47/191, 23 December 1992.

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d­ evelopment became a central concept and it is emphasised in Principles 4–5, 7–9, 20–22, 24, 27); (c) regional acts, e.g. European Council Dublin D ­ eclaration (1993); (d) agreements establishing international organisations, e.g. the European Union (EU) Treaty (Article 2), the North American Free Trade Agreement (nafta) (1993) (Preamble), the World Trade Organization Marrakesh Agreement (1994) (Preamble); (e) acts of international financial institutions, such as World Bank Group, European Bank for Reconstruction and Development, InterAmerican Bank, African Development Banks; (f) case law of the icj (e.g. Gabcíkovo-Nagymaros case)17 and arbitrations (e.g. the decision of the Permanent Court of Arbitration in the Arbitration Regarding the Iron Rhine Railway).18 Finally, analysing the meaning of sustainable development principle, we will inevitably come across the precautionary approach (or precautionary principle), which expands the le raison d’être of environmental policy – ­declaring “that it is better to prevent environmental damage than to employ measures to restore the environment thereafter”19 and “is based on the premise that action on environmental matters should be taken even if there is a lack of total scientific certainty, often reversing the burden of proof and placing it on those who claim that an activity is not damaging”.20 The precautionary principle is also included in many environmental instruments; it serves as a guiding21 tool for 17

In this case the icj for the first time was directly confronted with the question of how to balance and reconcile protection of environment and right to economic development throughout technical progress, the Court directed parties to consider the principle of sustainable development notwithstanding the absence of an applicable treaty provision expressly using this term (see para. 140). Judge Weeramantry, Vice-President of the icj, elaborated a separate opinion on the role of the principle of sustainable development in international law, giving this principle more substance: “sustainable development is … a part of modern international law by reason … of its inescapable logical necessity”, it is “universal value which command international recognition”. Although Judge Weeramantry agrees with the Court that the sustainable development principle is too abstract to impose specific obligations on States, it is an erga omnes principle and serves as a tool for interpreting other international provisions. See Weeramantry supra note 11. 18 The Arbitration Regarding the Iron Rhine Railway (Belgium v. Netherlands), 24 May 2005, Permanent Court of Arbitration, paras. 28–29, 222, 59: “Environmental law and the law on development stand not as alternatives but as mutually reinforcing, integral concepts, which require that where development may cause significant harm to the environment there is a duty to prevent or at least mitigate, such harm … This duty, in the opinion of the Tribunal, has now become a principle of general international law” (emphasis added). 19 Louka, supra note 2, p. 50. 20 D. Freestone, ‘The Precautionary Principle’, in R. Churchill and D. Freestone (eds.), International Law and Global Change (1991) pp. 21, 31. 21 One of few exceptions where precautionary approach can indeed help to resolve environmental disputes by taking over the rest of the general principles of international

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decision-makers and is sometimes considered a part of customary international law.22 In terms of the relationship between the two principles, I would describe the sustainable development principle as a goal of the international environmental regulation, while the precautionary principle together with other environmental law principles are rather ‘approaches’ to reach that goal than ‘goals’ per se. 2.2 The Concept of Intergenerational and Intragenerational Equity Having highlighted the various concepts of sustainable development in different environmental law documents, the sustainable development principle, within the scope of this paper, is understood as the duty for each generation not to impose undue burdens on future generations since “economic and social development can be ‘sustainable’ only if the world’s environment is protected from degradation”23 (please note that the specific meaning of the sustainable development principle in nuclear law, which implies ecocentric and anthropocentric approaches, will be discussed later on in this paper). At the same time, it must be noted that the principle of sustainable development is sometimes considered a synonym for the other term used in this paper, i.e. ‘intergenerational equity’. I would not fully agree with such an interpretation because although the concept of intergenerational equity is also vastly described in the same Stockholm Declaration24 and uses the same wording as the principle of sustainable development, this principle focuses on generations rather than environment or development per se. Moreover, the intergenerational equity in my opinion can be identified as a final result of the successful implementation of the sustainable development principle.

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law is the group of the environmental conventions regulating dumping in the sea. Thus, ­precautionary approach was that impetus that pushed within the already mentioned amended London Convention in 1993 to convert the temporary moratorium on low-level radioactive waste dumping into permanent prohibition. S. Marr, Southern Bluefin Tuna Cases: the Precautionary Approach and Conservation and Management of Fish Resources, , visited on 17 April 2020. C. Stoiber, A. Baer, N. Pelzer, W. Tonhauser, Handbook on Nuclear Law (iaea, 2003) pp.  –9. The interest of future generations is emphasised in the Stockholm Declaration, i.e. in its Preamble (“to defend and improve the human environment for present and future generations has become an imperative goal of humankind”), in Principle 1 (“man … bears a solemn responsibility to protect and improve the environment for present and future generations”), in Principle 2; as well in e.g. UN General Assembly Resolution on the Historical Responsibility of States for the Protection of Nature for the Benefit of Present and Future Generations (ga Resolution 35/8, 30 October 1980).

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What is intergenerational equity? Professor Edith Brown Weiss, a leading scholar on the principle of intergenerational equity, describes it as the basis for the duty of the current generation to protect the natural system for future generations and proposes three basic principles of this equity. First, each generation should be required to conserve the diversity of the natural and cultural resource base, so that it does not unduly restrict the options available to future generations in solving their problems and satisfying their own values, and should also be entitled to diversity comparable to that enjoyed by previous generations. This principle is called ‘conservation of options’. Second, each generation should be required to maintain the quality of the planet so that it is passed on in no worse condition than that in which it was received, and should also be entitled to planetary quality comparable to that enjoyed by previous generations. This is the principle of ‘conservation of quality’. Third, each generation should provide its members with equitable rights of access to the legacy of past generations and should conserve this access for future generations. This is the principle of ‘conservation of access’. These proposed principles, as Weiss notes, constrain the actions of the present generations in developing and using resources, but they do not, however, dictate the details of how members of the present generation should actually manage their resources. Also, the principle of intergenerational equity requires modifications to our procedures and expands our concept of judicial standing to future generations.25 The emphasis on intergenerational equity in international environmental (and as we will see in nuclear law) should not lead to neglecting equity within the current generation that lives in different States, belongs to different social classes, races or ethnic groups. This other type of equity, intragenerational equity, suggests a right of different segments of the current generation not to be discriminated against in environmental terms. In other words, intragenerational equity is concerned with environmental justice within countries and between countries but without the temporal element of intergenerational equity.26 This principle of equity can be seen in a different context. For example 25

26

See e.g. Oposa v. Factoran, Supreme Court of Philippines Case (1993) called ‘Philippine Children’s case’ (Juan Antonio Oposa, et al. v. the Honorable Fulgencio Factoran, Jr., Secretary of the Department of the Environment and Natural Resources et al., Supreme Court of the Philippines, Judgement of 30 June 1993 g.r. No. 101083). In Sam Emmerechts opinion, ‘intragenerational equity’ relates to the equitable use of uranium meaning that use by one state must take account of the needs of other states. S. Emmerechts, ‘Environmental Protection under Nuclear Law: Still a Long Way to Go’, International Nuclear Law: History, Evolution and Outlook, 10th Anniversary of the International School of Nuclear Law (2010) p. 139.

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in the environmental law sphere, the Rio Declaration emphasises the indispensable role of poverty alleviation in achieving sustainable development (Principle 5) and the specific role of underrepresented groups, e.g. indigenous peoples. In the nuclear law sphere, there is also a ban to impose a disproportionate burden of environmental pollution or costs on low-income, developing countries or global commons (e.g. ban of export of nuclear waste to the African con-tinent27 or Antarctica28) and a vision of equitable distribution of scarce resources, i.e. nuclear fuel between European Union countries (creation of emergency stocks29 or the European Atomic Energy Community (Euratom) Supply Agency (esa),30 which is to ensure that all users in the Community receive a regular and equitable supply of ores and nuclear fuels and to exercise the Community’s right of ownership with respect to special fissile materials).31 3

Sustainable Development Principle in the Field of Nuclear Law

Without a doubt the principle of sustainable development exists in the field of nuclear law. In fact, even in the non-peaceful uses of nuclear energy sphere, which has little connection with environment protection, the International Court of Justice in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons implicitly mentioned the sustainable development principle: The Court recognizes that the environment is under daily threat and that the use of nuclear weapons could constitute a catastrophe for the environment. The Court also recognizes that the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn. The existence of the general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas

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1991 Convention on the Ban of the Import of Hazardous Wastes into Africa and on the Control of Transboundary Movements within Africa, which is not yet in force, bans import, export and transit of such waste on the African continent. The 1959 Antarctic Treaty prohibits the transport of nuclear materials to and disposal of radioactive wastes in the Antarctic, the region also defined as latitude 60 degrees south. Article 72(2) of Euratom Treaty. Council Decision 2008/114/Euratom of 12 February 2008 establishing Statutes for the Euratom Supply Agency (Official Journal of the European Union L/41 of 15 February 2008), pp. 15–20. Article 2(d) and (f) of Euratom Treaty.

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beyond national control is now part of the corpus of international law relating to the environment.32 Returning to the sphere of peaceful use of nuclear energy, international nuclear law instruments have their own identification of ‘intragenerational’ and ‘intergenerational’ equity and the abovementioned duty for each generation not to impose undue burdens on future generations. Furthermore, I would claim there is a certain structural dichotomy of the sustainable development principle in nuclear law. We could distinguish the ecocentric side – aiming to protect the environment from degradation – which means minimisation or excluding the negative effects that a nuclear facility may cause to the environment in order for it to sustain and recover. Here we could mention such issues as radioactive waste management, storage, disposal options, dumping, thermal discharges, etc. There is also an anthropocentric side of the principle – aiming to use the resources, which in the case of nuclear activities is uranium, carefully, in a sustainable manner, in order not to deprive it from the future generation or from other States (so called ‘intergenerational’, ‘intragenerational’ equity). This side of the principle is also called ‘sustainability of fuel cycle’, but I insist on naming it the anthropocentric approach in order to highlight its final purpose, which is to protect interests of people, not the environment per se. Ecocentric Side of the Principle: Reaching Sustainability of Environment via Minimisation or Exclusion of Environmental Externalities As was just mentioned, the principle of sustainable development has a particular applicability in the nuclear field due to its specific externalities. At the outset, sustainable economic and social development cannot exist without sustainable environment, and sustainable environment is not possible if we are not dealing properly with the problem of fissile material and sources of ionizing radiation that can pose health, safety and environmental risks for shorter or longer periods of time, depending on their type. Therefore, applied to the nuclear field, the principle of sustainable development implies the need to ensure that environmental considerations are integrated into economic and policy plans and programmes for developing nuclear energy generation. The practical enforcement of this principle can be traced in the various situations presented below: 3.1

32

Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, i.c.j. Reports 1996, para. 29, , visited on 17 April 2020.

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(1) in radioactive waste (including mining and milling tailings) storage and disposal,33 as well as (2) in management of other externalities, such as cooling water intake and discharge issues. 3.1.1

Requirement to Foresee Radioactive Waste Storage/Disposal Facilities in Order Not to Put the Environment at the Risk of Degradation International environmental law and the principle of sustainable development are at stake in discussions regarding management and disposal of nuclear waste. The 1997 Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management,34 the largest and only convention on radioactive waste, was one of the first nuclear law instruments that linked future generations with environment quality and made reference to the concept of sustainable development.35 33

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In the light of nuclear wastes question, a few points still advocate nuclear energy as the sustainable energy (data taken from the OECD, Nuclear Energy in a Sustainable Development Perspective study (2000), pp. 34, 41, 42, , visited on 17 April 2020): a) Nuclear power plants “extract more than 10 000 times more energy per unit mass from uranium than other technologies do from fossil or renewable fuels”, therefor “a much smaller amount of material is extracted, processed, stored, and transported for each kilowatt-hour of electricity produced than for other sources, and the waste volumes are also proportionately smaller”. b) “A single large nuclear power plant of 1 GWe capacity offsets the emission of about 1.75 mln. tonnes of carbon each year if it displaces coal, about 1.2 mln. tonnes if it displaces oil, and 0.7 mln. tonnes if it displaces natural gas”, it also “offsets the emission of SOx, NOx, … contributing to the air quality”. c) The main challenge of nuclear energy concerning the long-lived waste remaining hazardous in the very long term is not unique for radioactive waste only, because “other types of toxic waste, such as heavy metals, remains in the biosphere indefinitely, or cause enough impact in the near term to permanently influence the longer term”. Meanwhile, “waste arising from the use of nuclear energy represents small volumes, typically less than 1 per cent of the overall toxic waste in countries with a nuclear energy industry (the amount of spent fuel produced annually in the world is about 10 000 tonnes only) and besides that they can be isolated from the biosphere at affordable cost using available technologies”. Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive Waste Management was adopted in 1997 and entered into force in 2001, , visited on 17 April 2020. Article 1 declares that: “The objectives of this Convention are … (ii) to ensure that during all stages of spent fuel and radioactive waste management there are effective defences against potential hazards so that individuals, society and the environment are protected from harmful effects of ionizing radiation, now and in the future, in such a way that the

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To enforce the sustainable development principle and pursue the aim of prevention of the environment from degradation, the majority of States have created national requirements to elaborate the nuclear wastes programme for the spent fuel long before construction of nuclear power plants. The operators are required to pay a certain amount of money to a special nuclear wastes fund, created according to one of three possible models of decommissioning funding.36 However, in terms of interim storage of radioactive waste, there is no clear requirement under national37 or international law to present the national regulator, before the nuclear power plant is constructed, with the storage facility plan – although, theoretically speaking, lack of an adequate onsite storage plan, just like lack of permanent offsite storage facility, raises safety and environmental concerns that should be analysed at the preconstruction licensing stage. Moreover, although the problem is in fact solved in the case of low level and short-lived intermediate level waste – three-quarters of all generated

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needs and aspirations of the present generation are met without compromising the ability of future generations to meet their needs and aspirations” (emphasis added). Article 4 ‘General Safety Requirements’ states that: “Each Contracting Party shall take the appropriate steps to ensure that at all stages of spent fuel management, individuals, society and the environment are adequately protected against radiological hazards”. In so doing, each Contracting Party shall “… (vi) strive to avoid actions that impose reasonably predictable impacts on future generations greater than those permitted for the current generation; … (vii) aim to avoid imposing undue burdens on future generations” (emphasis added). Individual operators build provisions and administer these decommissioning funding on their own (e.g. Germany, Japan, The Netherlands, Great Britain, and France); operators pay into a provident fund that is controlled, or administered, by the national governments (e.g., Finland, Spain); operators pay into a provident fund that is controlled by the operators themselves (e.g., the USA, Belgium, and Canada). Even within one country, the practice of the national courts and regulators on the need to present a waste storage facility plan could be different. E.g. in the US, on the one hand, the Nuclear Regulatory Commission upheld the nuclear operator and reasoned that the lack of a permanent facility or plan for off-site low-level waste did not preclude a col applicant from constructing and operating a new plant that stored all of its low-level waste onsite indefinitely (In The Matter of Tennessee Valley Authority, nrc Commission Memoranda and Order CLI-09-03, Feb. 17, 2009). On the other hand, the same Commission in another case (In The Matter of Southern Nuclear Operating Co., nrc Commission Memoranda and Order CLI-09-16, 31 July 2009) adopted an opposite decision and directed the applicant to do a more thorough analysis of safety issues related to on-site low-level waste storage, by holding that the record “would benefit from further development by the Board and the parties, particularly with respect to the information a col applicant should supply in order to satisfy our regulations regarding the safety of long-term storage of low-level radioactive waste”.

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waste38 have already been placed at disposal facilities – the problem of longlived high-level waste is left unsolved. So far the above mentioned long-lived high-level waste, i.e. spent fuel, is stored in two modes. In the beginning, it is stored in water pools for three to five years on the site of each nuclear power plant in which the fuel was used, in order to cool the fuel and to shield it from radiation. There are numerous studies39 conducted on the environmental effects and safety of these storage facilities (e.g. new studies on the resistance of these facilities to terrorists attacks appeared after the 9/11 events). After the mentioned five years, the spent fuel is moved to dry cask storage40 (e.g. castor41 containers) that uses concrete or steel containers to shield radiation and the fuel is cooled by inert gas or air. The operating costs of dry cask storage are much lower than that for water pool storage because it is a “passive system”, i.e. it does not require any electricity, water, maintenance or constant supervision – just monitoring and surveillance and, according to the US National Commission on Energy Policy, “is a proven, safe, inexpensive waste-sequestering technology that would be good for 100 years or more … before a further geologic repository can be ready”.42 Although the requirements related to onsite fuel storage are stringent in order to minimise environmental effects, this storage is only a temporal solution. Therefore, provided the option to reuse spent fuel is disregarded and the decision to dispose it is reached, special sites need to be found. Since this waste in 38

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It is interesting to note that the amount of the generated waste is not big: over the course of a year a 1000 megawatt nuclear plant typically produces ~ 30 tons of nuclear waste and one reactor’s wastes in its lifetime fits to only one Olympic pool (50 metres long and 2 metres deep). By comparison, a coal burning plant of similar power, apart from the CO2 footprint (it emits 30,000 tons of carbon dioxide per day) annually burns four million tons of coal and releases 5.2 tons of uranium (containing 74 pounds of uranium-235) and 12.8 tons of thorium within its volatile and non-volatile waste ‘streams’. See A. Gabbard, ‘Coal Combustion: Nuclear Resource or Danger’, 26:3–4 Oakridge National Laboratory Review (1993); W. Tucker, Terrestrial Energy (Bartleby Press, 2008) pp. 38–39. E.g. see US National Research Council, Safety and Security of Commercial Spent Nuclear Fuel Storage: Public Report (National Academies Press, 2006). To illustrate the storage percentage differentiation in those two modes of storage, I might mention the fact that in the US, according to the US Congressional Research Service ­(using nei data), there were ~62,683 metric tons of commercial spent fuel accumulated as of the end of 2011, and ~ 78 per cent of them were stored in pools and ~ 22 per cent in dry casks. Acronym for ‘cask for storage and transport of radioactive material’. National Commission on Energy Policy, Ending the Energy Stalemate: A Bipartisan Strategy to Meet America’s Energy Challenges (2004), p. 58 Truth is, the first dry cask storage did not take place until 1986, so that the assumptions of 50–200 years of reliability are based solely on modeling.

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particular is generally not acceptable for near-surface disposal using conventional waste disposal practices, there is an international consensus on the advisability of storing nuclear waste in deep underground repositories in locations selected43 for their long-term geological stability44 and safety, tectonic stability, and lack of risk posed by groundwater content and flow. The location must be sufficiently far from population centres, yet accessible to transporters of waste. Notwithstanding the fact that the repository is situated deep underground, its construction always faces opposition from the local population. Speaking of siting in the light of the sustainable development principle enforcement on a global, not national, level, the international community does realise that “permanent disposal of spent nuclear fuel in a small number of international geological repositories could be less costly than individual national repositories – especially for nations that have small nuclear programs or unfavorable geology for spent fuel storage”.45 Moreover, the international repository would spare the State from the necessity to fight mass nimby syndrome. However, notwithstanding the great economic gains for the host nation, the political costs are too great and only a few States (Russia and Mongolia) expressed their interest to actually host one. There is no France, Sweden or Finland with their national repositories on this list, due to the political will to ban the import of foreign spent fuel. In the case of Russia and Mongolia, the perspective is dull as well. Mongolia’s “land-locked position deep within the Asian continent limits its feasibility as a possible site” (neighbouring countries most probably will not authorise the transit of the wastes through their territory), and the State-owned company Rosatom in 2006 stated that it would not accept any foreign-origin spent nuclear fuel46 (although the Russian Parliament did pass a law allowing the import of spent nuclear fuel in 2001). In addition to domestic opposition, the international community is also unsure 43 44

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E.g. US Department of Energy has not yet decided how to dispose of this waste, , visited on 17 April, 2020. In the given context, it is not the repositories’ depth but their geological stability (lack of seismic activity, volcanism, major faults, etc.) as well as the intrinsic properties of the host rock that are important. Unfortunately, this common position of the geological scientific community is forgotten during debates with the regulators. Princeton University’s Woodrow Wilson School of Public and International Affairs and School of Engineering and Applied Science Report, A Proposal for Spent-fuel Management Policy in East Asia: The Current State and Future Plans of South Korea, China, and Japan (2011), p. 20, , visited on 17 April 2020. N. Chapman and Ch. McCombie, ‘Nine Requirements to Develop an International Repository in Russia,’ in International Nuclear Waste Disposal Concepts (World Nuclear Association, 2010), , visited on 17 April 2020.

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whether Russian authorities would implement environmental “solutions” that reach the “highest international standards”47 and therefore the International Atomic Energy Agency (iaea) might require additional powers to be provided to its inspectors. Last but not least, the policy the Russian Federation has regarding its wastes from military reactors (discussed below) makes it a weak candidate for hosting an international repository. Apart from the siting specifics of the spent fuel disposal facilities, the next question of long-term forecasts is raised. 3.1.1.1

Long-lived, High-level Radioactive Waste: How Far into the Future Should the State Plan to Ensure the Safety of the Repository Site? It might seem obvious to some that every principle of environmental law has indefinite application. The principle of sustainable development is also intergenerational in terms of the timescale. But if each generation has a duty not to jeopardise or impose undue burdens on future generations, how many generations are we able to ‘protect’ in advance? What timeframe does the word ‘intergenerational’ imply? There is general acceptance of the loosely stated time horizon ‘now and in the future’ that the World Conference on Environment and Development established. Sometimes environmental law instruments set more strict time horizons which range from a single generation of 25–30 years to several generations (e.g. the Intergovernmental Panel on Climate Change ipcc assessments were extended until 2100) or on contrary leave lawyers with the implicit term ‘forever’. In the case of the sustainable development principle applied in the specific sphere of nuclear law, there is an even bigger dilemma involved. If the radiation in the long-lived, high-level radioactive waste remains for 300,000 years, does it mean that we have to store it and not ‘impose undue burdens’ on the future 10,000 generations? Are we able to provide sufficient data on the future conditions of the planet in 300,000 years? From a geological point of view, roughly speaking, it might happen that the wastes disposed in the final repository inside the mountain will be on the top of the mountain after such period of time. Moreover, even if the perfect site for the final repository is found, can we irreversibly contain the wastes and deprive our future generations of a chance to reuse it?

47

N. Chapman and Ch. McCombie, ‘Regional and International Repositories: Not If, But How and When’, paper presented at the World Nuclear Association Annual Symposium, London, September, 2002, p. 10, , visited on 17 April 2020.

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This problem was mentioned in the Handbook of Nuclear Law: “the very long lived character of these [long-lived, high-level radioactive] materials has made it difficult to determine which current measures are necessary in order to protect generations adequately in the very remote and unpredictable future”.48 Carl Stoiber points out a certain compromise that can be reached in this situation: “One approach in applying the sustainable development principle in the nuclear field has been to urge that the current generation does whatever is possible for long term safety, but without foreclosing options for future generations and without relying unduly on long term forecasts, which are unlikely to be accurate over the extended timescales involved”.49 In this compromise, Carl Stoiber has basically reconciliated two opposite positions. One of these concepts, described e.g. by Richard B. Steward,50 claims that since nuclear fuel is a partially renewable resource that can be recycled not once but several times, “a revised ethic is appropriate [here]: Our obligation is to give succeeding generations a real choice and the opportunity to shape their own decisions while at the same time not imposing a burden that future generations may not be able to manage. This principle point to a step-by-step approach towards dealing with nuclear waste”.51 The other concept is described e.g. by Karl S. Coplan, in his article with a symbolic name “The Externalities of Nuclear Power: First, Assume We Have a Can Opener”,52 who looks at intergenerational equity and comes to the opposite conclusion, that is, that waste management problems must not be deferred to future generations. Erikson takes a similar position: “Our generation got the benefits of nuclear power and should take the consequences. Many environmental groups supported this philosophy and thus supported the idea of entombment that would remove the waste from the environment once and for all, and would protect not only ourselves … but the people of a distant future whose way of life and cast of mind we can know nothing about”. As we can see, the answers to those questions on ‘long-term forecasts’ and ‘foreclosing options for future generations’ do not have legal character; they 48 Stoiber, supra note 23, p. 9. 49 Ibid. 50 R.B. Steward, ‘U.S. Nuclear Waste Law and Policy: Fixing a Bankrupt System’, 17 n.y.u. Environmental Law Journal (2008) pp. 783, 820–825. 51 Basically, Steward asks questions what if it turns out that scientists discover economical methods of retrieving useful material from the spent fuel and should we deprive future generations of those opportunities simply because those techniques now seem too expensive to be practical. 52 K.S. Coplan, ‘The Externalities of Nuclear Power: First, Assume We Have a Can Opener’, 35:17 Pace Environmental Law Review (2008) pp. 17–28.

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depend purely on the national waste policy of the State.53 The best example to illustrate the changing political view on the principle of sustainable development in terms of waste management, in my opinion, is the US (Nevada) Yucca Mountain high-level wastes geological repository programme. Initially, the US Congress refused to designate properly designed spent fuel pools combined with dry cask storage as an adequate provision for dealing with the waste disposal (partially because of security reasons)54 and decided to start the Yucca Mountain nuclear waste (including high-level radioactive waste from US defence programmes; all in all the repository would hold 70,000 tons of waste)55 repository programme. For 25 years, the State of Nevada has been fighting Congress’ selection of Yucca Mountain as the site for this permanent disposal of high-level nuclear waste. Despite Nevada’s objections (Nevada officials have argued inter alia the existence of the volcanic ridge line near the site), work has proceeded on preparation of the site, using funds paid for by the utilities that use nuclear power.56 After the US Department of Energy (doe), the US Nuclear Regulatory Commission (nrc) and US Environmental Protection Agency (epa) approved the site as being safe, President George W. Bush submitted to the Congress a recommendation that the site be approved, which 53

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Speaking of the differing waste policy of the states in terms of the options, e.g. Canada, Sweden, France and Finland are considering permanent disposal of spent nuclear fuel: See R. Stone, ‘Deep Repositories: Out of Sight, Out of Terrorists` Reach’, 303:5655 Science (2004) pp. 161–164; W.F. Pickard, ‘Finessing the Fuel: Revisiting the Challenge of Radioactive Waste Disposal’, 38 Energy Policy (2010) p. 709; ‘Canadian Nuclear Waste Management Organization Adaptive Phased Management’ strategy, , visited on 17 April 2020. Congress has taken the position that permanent underground disposal would provide the best security against potential terrorist attempts to obtain and use dangerous nuclear material. Again, this policy is not universal: some States believe that a wiser policy would be to leave the waste on the surface so that it can be more easily monitored, reused or modified (see D. Bodansky, Nuclear Energy: Principles, Practices, and Prospects, 2nd edition (Springer, New York, 2004) pp. 281–284, 359–361; K.S. Shrader-Frechette, Burying Uncertainty: Risk and the Case Against Geological Disposal of Nuclear Waste (University of California Press, 1993). I would uphold the latter policy because the risk of non-State actors using spent fuel is extremely low, as is analysed in the subsection of this article on the externalities of closed-fuel-cycle. See U.S. Government Accountability Office, Disposal of High-Level Nuclear Waste, , visited on 17 April 2020. Under the terms of the 1980s Nuclear Waste Policy Act, electric utilities and users of nuclear-generated electricity since the early 1980s have supplied more than usd 30 billion to the federal government Nuclear Waste Fund for the disposal of used nuclear fuel from commercial nuclear power plants. The Nuclear Waste Fund has a usd 26 billion surplus and earns annual interest in excess of usd 1 billion.

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Congress accepted. This authorised the doe to proceed submitting a license application to nrc seeking to authorise the repository in Nevada (June 2008). However, with the Obama administration, in February 2011 the doe withdrew57 the license ‘with prejudice’, which would mean the application could not be reconsidered at a future date for a nuclear waste repository at Yucca Mountain. The main reasons for this political move were the following: 1) First of all, the President’s decision reflected the fact that there has been some weakening of scientific support for the idea of permanent disposal of nuclear waste (instead, the old studies on the retrievability58 were recalled and the new Blue Ribbon Commission on America`s Nuclear Future was established).59 2) The second reason, interesting from the environmental law standpoint, was of a procedural scientific character and dealt with the time horizon set for the ensuring the safety of the disposal facility. To describe the situation briefly, Congress required the epa to establish site-specific public health and safety standards for a repository at Yucca Mountain. These standards (apart from prescribing “the maximum annual effective dose equivalent to individual members of the public from releases to the accessible environment from radioactive materials stored or disposed of in the repository”) shall be “based upon and consistent with the findings and recommendations of the National Academy of Sciences”.60 In its turn, the Academy found that in terms of the length of the compliance period there is “no scientific basis for limiting the time period of the

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It is interesting to note the catch-22 phenomena in the abovementioned situation in US: the US government, which withdrew from the project, violated Nuclear Waste Policy Act of 1982 to build the federal repository for the spent fuel (the final deadline was 1998), and now has to pay nuclear energy generators compensations for the storage facilities that they had to build on their own (e.g. the US Court of Federal Claims awarded Xcel Energy usd 116.5 million for the Energy Department’s breach of contract – this was one of 56 actions pending against the government). See M.L. Wald, ‘As Nuclear Waste Languishes, Expense to U.S. Rises’, The New York Times, 17 February 2008 issue, , visited on 17 April 2020. E.g. in 1995, the US National Research Council studied the possibility that the temporary storage of spent fuel in retrievable form would provide opportunities for re-use of the material. See US National Research Council, Nuclear Wastes: Technologies For Separation And Transmutation (1995). The Commission’s task is to review policy for managing the back end of the nuclear fuel cycle and provide recommendations for developing safe, long-term solutions to managing the used nuclear fuel and nuclear waste. 1992 US Energy Policy Act, § 801 (a) (1).

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i­ ndividual-risk standard to 10,000 years or any other value”61 and that “it is scientifically possible to predict repository performance for an approximately 1,000,000 years”. The most controversial fact was that the epa refused to accept the opinion of the Academy of Sciences and promulgated draft standards in which it proposed a shorter, i.e. 10,000 year, compliance period. doe supported epa, claiming that “significantly longer time period of assessing compliance would be unprecedented, unworkable, and probably unimplementable”. In the epa’s opinion, “simply because such [computer] models can provide projection for those [one million years] time periods does not mean those projections are meaningful and reliable enough to establish a rational basis for regulatory decision-making”.62 In the end, the Court upheld the Academy’s position and decided that epa must either issue a revised standard that is ‘based upon and consistent with’ Academy findings and recommendations or return to Congress and seek legislative authority to deviate from the Academy report.63 In response to the remand from the Court, in 2005 the epa published a revised rule, but the only change it made was the new requirement that the median background radiation for the post-10,000 year period must remain no more than 350 mrem per year, the natural level of background radiation in the area. According to the latest news,64 the epa will indeed set building codes and other regulations for the repository that for the first time in history will cover the next not 10,000 but one million years. “This will be the only rule that applies for such a long duration into the future … Most epa rules apply for the foreseeable future – five or six generations. This rule is for basically 25,000 generations”.65 Whichever position we take in relationship to long-lived nuclear waste disposal, the default outcome is that until the long-term repository is completed, 61 62 63

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National Academy of Sciences report, Technical Bases for Yucca Mountain Standards (1995), p. 55. Nuclear Energy Institute, Inc. v. Environmental Protection Agency, 373 F.3d 1251 (D.C.Cir. 2004), at 32, 083–84. In the Court’s opinion, “[i]t was Congress that required epa to rely on nas’s expert scientific judgment, and given the serious risks nuclear waste disposal poses for the health and welfare of the American people, it is up to Congress – not epa and not his court – to authorize departures from the prevailing statutory scheme”. See Nuclear Energy Institute, Inc. v. Environmental Protection Agency, 373 F.3d 1251 (D.C.Cir. 2004). See , visited on 17 April 2020. National Public Radio (npr), epa Expected to Issue Million-Year-Long Regulation: Transcript (interview with Elizabeth Cotsworth, epa Director of Radiation and Indoor Air, November 24, 2006), ,visited on 17 April 2020.

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the waste will remain where it currently is, at reactors and government sites, sealed into dry casks – and this is definitely not a safer or more environmentally friendly approach considering the principles of precaution and sustainable development. 3.1.1.2

Exclusion of Radioactive Waste from Military Reactors from the Conventional Regime and General Antidumping Regulation Gaps Although this paper deals with peaceful atomic energy, the radioactive waste coming from military use of nuclear energy, in my opinion, create a serious obstacle in pursuing the goal of sustainable development; therefore I would like to briefly touch upon this issue. The international regime of terrestrial wastes disposal expressly excludes from its scope the waste produced from military reactors. For instance, Joint Convention Article 3(3) declares that: This Convention shall not apply to the safety of management of spent fuel or radioactive waste within military or defence programmes, unless declared as spent fuel or radioactive waste for the purposes of this Convention by the Contracting Party. However, this Convention shall apply to the safety of management of spent fuel and radioactive waste from military or defence programmes if and when such materials are transferred permanently to and managed within exclusively civilian programmes. Unfortunately, the Joint Convention – regulating used fuel and radioactive waste and being the only document containing stringent provisions requiring States to prevent environmental damage66 and control it67 and allowing States to raise contentions about the possible endangerment of the environment68 – cannot be used to prevent environmental damage arising from e.g. decommissioned military nuclear reactors or their spent fuel. The situation as regards sea disposal cannot be described as managed more efficiently than with terrestrial disposal. Although it was realised at the dawn 66 67 68

See Article 4: “Each Contracting Party shall take the appropriate steps to ensure that at all stages of spent fuel management, individuals, society and the environment are adequately protected against radiological hazards”. Articles 24 (3) requires parties to insure that “in the event that an unplanned or uncontrolled release of radioactive materials into the environment occurs, appropriate corrective measures are implemented to control the release and mitigate its effects”. See Article 30(3): “At each review meeting each Contracting Party shall have a reasonable opportunity to discuss the reports submitted by other Contracting Parties and to seek clarification of such reports”.

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of the nuclear era that sustainable environment is not possible without the establishment of a radioactive waste disposal in the sea and antidumping regime, in the very beginning the international community tended to ignore completely pollution prevention and sustainable development principles in terms of marine pollution with regard to radioactive waste. To illustrate the point, according to a 1993 Russian White Paper, in Russia alone unknown quantities of solid and liquid radioactive waste were dumped into the Barents Sea, the Sea of Japan, and the Sea of Okhotsk from 1959 to 1992 and it has been estimated that this dumping amounted to approximately 2.5 million curies of liquid low level radioactive material – an amount which has been more than twice what all other countries have dumped into the ocean until 1984. As a result, since the precautionary and sustainable development principles with their weak (at that time) status were not capable of dealing with the problem, various environmental conventions, i.e. antidumping conventions, were created. Dumping in the sea is almost the only field where nuclear law, generally being resistant to the intervention of environmental regulations into its scope, surrendered its position to environmental conventions with the result that environmental provisions are applied directly to the nuclear field:69 e.g. the 1982 United Nations Convention on the Law of the Sea (unclos),70 1972 London Convention on the Prevention of Marine Pollution by Dumping of Wastes and other Matter, the 1974 Convention for the Prevention of Marine Pollution from Land-Based Sources which was later replaced by the 1992 ospar Convention for the Protection of the Marine Environment of the North-East Atlantic,71 and the 1991 Convention on Environmental Impact Assessment in a Trans-­boundary Context. Most of the environmental law antidumping conventions contain provisions of customary international law, which States are obliged to follow. Still there are plenty of issues in question that remain unsolved, inter alia: (a) theoretically any radioactive waste could be disposed ­beneath the seabed 69

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Standard interaction between environmental law and nuclear law on the example of s­ ustainable development principle would be the following: . The scheme of the rarer, direct interactions between those two legal systems in the field of antidumping would be different from the one above: . Unfortunately, the biggest producer of nuclear energy, the usa, did not ratify the Convention even though the meeting of parties took into account the US request made during the negotiations and changed deep sea provisions accordingly. It imposes obligations for contracting parties to adopt measures to forestall and eliminate pollution of the maritime area by radioactive substances from land-based sources, watercourses or pipelines.

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(e.g. if the disposal is made via a tunnel from the cost,72 it might be considered terrestrial rather than sub-seabed disposal, and would not be subject to London Convention moratorium);73 (b) the fight against low-level74 radioactive waste from civil reactors was not successful from the very beginning. The problem was acknowledged, but it was decided that is was to be dealt with via softer legal instruments: a moratorium instead of real abolishment of the low-level radioactive waste disposal in the sea was adopted. Finally, the following Protocol of 199675 on the general prohibition of dumping of all radioactive wastes into the sea, which was supposed to fill the above-mentioned regulation gaps, received little support from the States parties. For example, the UK did adopt the moratorium on disposal of low-level radioactive waste and the Protocol, although it continues to maintain that deep sea disposal remains the best environmental option for certain types of radioactive waste. Russia did not follow the UK,76 and filed an objection to the prohibition within the Protocol and thus it is not bound by these additional obligations; (c) since the iaea had not defined level of de minimis,77 the States will most likely retain the authority to 72

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There were proposal to dispose of the radioactive waste in lead containers beneath the seabed of France, South Africa and Sweden. ‘Nuclear Plots for sale in Seabed Graveyard proposes sub-seabed nuclear waste disposal inside torpedo-shaped steel and lead containers’, New Scientist, 9 December 1995. Special legal experts are unable to reach consensus on whether such disposal is covered by the London Convention: the eighth Consulting Meeting in 1984 only agreed that the Convention was the appropriate international forum to address that matter and that “no such disposal should take place unless and until it is proven to be technically feasible and environmentally acceptable, including a determination that such waste can be effectively isolated from the marine environment, and a regulatory mechanism is elaborated in accordance with the provisions of the London Convention to govern disposal into the seabed of such radioactive wastes”. The 13th Consultative Meeting adopted a resolution (non-binding document) which stated that sub-seabed disposal of low-level waste into repositories accessed from the sea (not from the land) would be covered by the 1983 moratorium. The distinction between low- and high-level radioactive wastes within the Convention is based on iaea definitions from iaea Classification of Radioactive Waste, Safety Series No. 111-G-1.1., iaea, Vienna (1994). The Protocol entered into force in 2006 and has half the contracting parties than the Convention itself (42 out of 87). See