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Restoration of the Effect of Estonia’s International Treaties

The question about international treaties concluded by the Republic of Estonia during the first period of independence between World Wars I and II has been an object of political and legal discussions during the last decade.

Most Western countries did not recognize the annexation of Estonia and other Baltic States by the Soviet Union in June 1940. In August 1991 Estonia re-established its independence on the basis of historical continuity of statehood. Estonia received wide international recognition as the Republic of Estonia that did not cease to exist de jure since 1918 through all the period of Soviet occupation and had also existed de facto between 1918 to 1940. Logically, the question of Estonia’s obligations under international law, including the continuity of international treaties, was raised then, and it has not lost it’s pertinence hitherto.

During the first period of independence from 1918 to 1940, the Republic of Estonia acceded to 82 multilateral conventions and concluded 214 bilateral treaties. A list of treaties in force for Estonia on December 31, 1939 was published in the beginning of 1940, and the final number of bilateral treaties is not conclusively known due to the fact that the Archives of the Ministry of Foreign Affairs of Estonia were destroyed during the Second World War.

The most important group of conventions consists of those signed under the auspices of the League of Nations. Between 1918 to 1940 Estonia acceded to twenty covenants of the League of Nations.

Between 1918 and 1940 the Republic of Estonia signed bilateral treaties with 28 countries. The biggest number of treaties were concluded with neighbouring countries like Latvia, the Soviet Union and Finland, or with major trading partners like Great Britain and Germany.

Most Western countries never rendered de jure recognition to the annexation of Estonia by the Soviet Union in 1940. This non-recognition policy was crucial for Estonia’s return into the international community of sovereign countries after the restoration of independence.

During the unsuccessful military coup in Moscow in August 1991, the Supreme Soviet of Estonia passed a decision on the re-establishment of independence on the basis of historical continuity of statehood.

This principle of re-establishment is known in international law as restitutio ad integrum. The decision of 20 August 1991 is logically supported by the policies of the United States and other Western countries, who either expressly or tacitly declined to recognize the Soviet occupation of the Baltic countries and continued to recognize de jure existence of the Republics of Estonia, Latvia and Lithuania. This policy was also pursued in the re-establishment of diplomatic relations between Estonia and other countries. Most countries with whom Estonia had had diplomatic relations before 1940 re-established, rather than established, diplomatic relations with Estonia in and after 1991. The first country to re-establish diplomatic relations with Estonia was Iceland. The new constitution, approved in 1992, declares that the state of Estonia was proclaimed on February 24, 1918.

The steps taken by Estonia in the process of the restoration of independence demonstrate how carefully Estonia acted in order to underscore that the country that emerged on the international arena in 1991 was, in essence, the same Republic of Estonia that had de jure existed through the factual occupation by the Soviet Union. One of the effects of restitutio ad integrum was that the Republic of Estonia is not regarded as a successor state of the Soviet Union and therefore bears no responsibility for the liabilities of the USSR. On the other hand, according to the principles of continuity, Estonia became fully responsible for the rights and obligations the Republic of Estonia had owned before the occupation. This includes obligations originating in international treaties which were concluded before annexation by the Soviet Union in June 1940.

According to the principle of restitutio ad integrum the country should have inherited without exception all the obligations deriving from treaties concluded before June 16, 1940. Another principle, rebus sic stantibus, provides that the party to the treaty is not obliged to honor the commitments if circumstances are fundamentally changed. This principle is certainly more flexible than restitutio ad integrum, but some lawyers find that rebus sic stantibus could undermine international agreements by providing a convenient excuse for breaches of treaty obligations that states find inconvenient to fulfill.

Regarding multilateral treaties or conventions, the basic doctrine of the international law presumes that as long as a country has not declared the opposite, she is considered to be accepting the treaty. According to this presumption Estonia did not need to take any positive actions in order to re-establish its membership to the pre-1940 conventions. Regardless of this, the Government took certain measures to assure the status of Estonia before the conventions.

In a letter to the Secretary General of UNESCO, the minister of foreign affairs of Estonia stated that "Estonia, as a member of the United Nations, considers it its solemn duty to fulfil all the League of Nations and the United Nations conventions which have been ratified by Estonia or which Estonia has joined." In this document the minister recognized on the one hand that the conventions signed under the auspices of the League of Nations are still in force for Estonia, and on the other hand that Estonia did not deem it necessary to make any reference to the circumstances that could except the country from complying with the rules of these conventions.

Estonia had acceded to several conventions concerning the Permanent Court of International Justice (PCIJ). This court was created on the initiative of the League of Nations in 1920, and Estonia acceded to the Statute of the PCIJ in 1922. The PCIJ was superseded after World War II by the International Court of Justice (ICJ). Article 92 of the UN Charter states that the Statute of the ICJ is based upon the Statute of the Permanent Court of International Justice and forms an integral part of the UN Charter. The ICJ is a continuation of the PCIJ, with virtually the same statute and jurisdiction and with a continuing line of cases. All members of the UN are ipso facto parties to the Statute of the ICJ. Therefore, by becoming a member of the United Nations in September 1991, Estonia recognized also the continuity of the conventions related to the international court. The only special action taken in this regard was a declaration made by the Chairman of the Supreme Council (head of state) in October 1991, which stated that Estonia recognizes as compulsory ipso facto and without special agreement the jurisdiction of the ICJ. This announcement replaced the similar declaration that Estonia had made in respect of the PCIJ in 1922.

There were some conventions that had become void or had been shelved during the period when Estonia was occupied. One of them was the multilateral pact of Renunciation of War as an Instrument of National Policy, commonly known as Briand-Kellogg Pact, which failed to avoid the outbreak of the Second World War, and which was later replaced by the Resolution of the United Nations from April 29, 1949.

There were conventions that had been significantly amended, so that the Government considered it necessary to accede to the new, modernized versions. In this manner Estonia has re-established its membership to 9 multilateral treaties.

As mentioned above, Estonia had more than 200 bilateral treaties in force before 1940, most of them with the closest neighbours and trading partners. Below, the Estonian pre-1940 treaties are discussed as being divided into two categories: personal treaties and real treaties. The latter are mostly treaties related to territories and boundaries. Therefore, termination or withdrawal based on rebus sic stantibus is not applicable in respect of real treaties.

Personal treaties, on the other hand, are usually related to the regime in power and to its political orientation. For example, treaties of friendship and political cooperation belonged to this category. It is assumed, that if one of the parties ceases to exist, either through annexation, dismemberment or federation, it ceases to be able to fulfill the treaty, which thus expires.

The group of real bilateral treaties concluded by Estonia before 1940, involves altogether 5 boundary treaties, including the Tartu Peace Treaty with Russia of 1920. The Tartu Peace Treaty has a special position among Estonian treaties, since it not only established the peace and border with Soviet Russia, but also granted the first formal international recognition of the Republic of Estonia, declared on February 24, 1918. The treaty is also mentioned in the Constitution of Estonia as one of the instruments establishing the Estonian land border. During the occupation the Soviet Union changed the administrative border between the Estonian SSR and the Russian SFSR, moving it considerably westwards to Estonia´s disadvantage. The initialized text of the new treaty is still not signed due to delays and irrelevant political demands from the Russian side, and, thus, replacement of the provisions concerning the border of the 1920 treaty is still not completed.

Estonia had concluded 4 bilateral treaties with Latvia concerning boundaries. In addition, there were 14 related agreements concerning border-crossing, use of roads, rivers and plots of land on and around the border. All these agreements and protocols were replaced with a single instrument when Estonia and Latvia signed the Treaty on Restoration of Border in March 1992, which has been in force since September 1993.

The practice concerning personal treaties has been varied. The general position of Estonia has been that as long as the treaties have not expressly been terminated by either side, they continue to be in force. Some countries have declared that they consider the treaties concluded before 1940 void. These countries are, for example, Japan, Germany, Italy, China and Russia. Among the reasons for this kind of approach are, logically, the political changes that have taken place in the named countries during and after the Second World War and the Cold War.

With other countries, the restoration of effect of the old treaties has usually developed on a case by case basis. Most countries have acknowledged that from a formal point of view the old treaties are in force. Belgium, for example, presented a diplomatic note that stated that having recognized the continuity of the Baltic States, it regarded the treaties concluded before 1940 as valid. The note also stated that these treaties could be declared as null and void only after a detailed examination and in accordance with the Vienna Convention on the Law of Treaties.

As the circumstances have, indeed, changed considerably during the half-century after the Second World War, most countries have proposed to revise the pre-1940 treaties. Since Estonia has been quite active in concluding new and modern agreements with its neighbours and major economic and political partners, many old treaties have been replaced by newer versions of bilateral treaties. Today there is also a wide range of issues that are covered by multilateral arrangements, and in several cases Estonia has agreed with the counterpart to the old treaty to be bound by the multilateral convention instead of a bilateral treaty.

With regard to some treaties the termination on grounds of rebus sic stantibus seems to be the only logical implication, regardless of lack of explicit notification. To the number of such treaties belong those that concern former colonies of the colonial powers, specifically Great Britain, and some friendship treaties, which can be considered outdated more than 60 years after their conclusion.

Summarizing the aforedescribed circumstances, it can be stated that during the ten years that have passed since the re-establishment of Estonia's independence, its authorities have assumed full responsibility for Estonia´s international obligations deriving from the principle of continuity. The process of restoration of the old treaties serves just as another illustration to that.

Jaan Salulaid, LL.M.
First Secretary, Legal Department

Last updated: 12 September 2008

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