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The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory William J.H

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NYLS Journal of International and Comparative Law Volume 6 Article 5 Number 2 Volume 6, No. 2, 1985 1985 The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory William J.H. Hough III Follow this and additional works at: https://digitalcommons.nyls.edu/ journal_of_international_and_comparative_law Part of the Law Commons Recommended Citation Hough, William J.H. III (1985) "The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory," NYLS Journal of International and Comparative Law: Vol. 6 : No. 2 , Article 5. Available at: https://digitalcommons.nyls.edu/journal_of_international_and_comparative_law/vol6/iss2/5 This Notes and Comments is brought to you for free and open access by DigitalCommons@NYLS. It has been accepted for inclusion in NYLS Journal of International and Comparative Law by an authorized editor of DigitalCommons@NYLS. THE ANNEXATION OF THE BALTIC STATES AND ITS EFFECT ON THE DEVELOPMENT OF LAW PROHIBITING FORCIBLE SEIZURE OF TERRITORY TABLE OF CONTENTS I. INTRODUCTION ....................................... 303 II. HISTORICAL DEVELOPMENT OF LAW PROHIBITING FORCIBLE SEIZURE OF TERRITORY ................................ 305 A. European Origins ............................... 305 B. Legal Development After the Peace of Westphalia 308 C. Title to Territory in the Colonial Era ............ 319 D. Post World War I Development .................. 321 E. Birth of the Stimson Doctrine of Nonrecognition of Forcible Seizure of Territory ..................... 326 III. THE ANNEXATION OF THE BALTIC STATES ................. 351 A. Origins of the Baltic States ...................... 351 B. Independence of the Baltic States ................ 355 C. Soviet Invasion and Incorporation of the Baltic S ta tes .......................................... 369 IV. AN APPRAISAL OF THE LEGALITY OF THE SOVIET UNION'S ANNEXATION OF THE BALTIC STATES .................... 385 V. WORLD COMMUNITY RESPONSE TO THE ANNEXATION ...... 391 A. The United States of America ................... 391 B. The United Kingdom ............................ 412 C . G erm any ....................................... 424 D. Ireland ......................................... 427 E . C anada ........................................ 428 F . A ustralia ....................................... 429 G . F rance ......................................... 430 H. Yugoslavia ................................ 430 L Denm ark ...................................... 431 J. B elgium ........................................ 432 K. Spain and Portugal ............................. 433 L. The Vatican ................................... 433 M . M alta .......................................... 433 N. Greece, Italy, Luxembourg, Turkey, Norway and the Netherlands ................................... 434 0 . Sw itzerland .................................... 435 P . F inland ........................................ 437 302 N.Y.L. SCH. J. INT'L & CoMP. L. [Vol. 6 Q. Poland, Bulgaria, Czechoslovakia, Hungary and R om ania ....................................... 437 R. The European Parliament and the Council of Eu- rope .............................. ........... .. 4 3 8 S . S w eden ........................................ 440 T. South Am erica... .............................. 444 U . A sia ........................................... 445 VI. POST-WAR DEVELOPMENT OF LAW PROHIBITING FORCIBLE SEIZURE OF TERRITORY ................................ 447 A. Constant and Uniform Usage .................... 449 1. Consistent Repetition ........................ 449 2. Sufficient Degree of Generality ................ 466 3. Lapse of Tim e ............................... 466 B. Opinio Iuris Sive Necessitatis .................... 467 VII. CONTINUED LEGAL EXISTENCE OF THE BALTIC STATES ..... 480 V III. C ONCLUSION ......................................... 481 19851 BALTIC STATES ANNEXATION The struggle of man against power is the struggle of memory against forgetting. Milan Kundera, The Book of Laughter and Forgetting (1979) The surest way to disturb [international]relations is by sanctioning law breaking and sacrificing the victim .. to the aggressor. Haile Selassie, League of Nations debate 1936 I. INTRODUCTION For over 5000 years,' the struggle of two principles has pervaded recorded history: one of them embodied in the Machiavellian phrase "La forza fa giustizia," 2 and the other in the Roman maxim, "Ex ini- 1. Ancient Egyptian hieroglyphics record the forcible seizure and annexation of Up- per Egypt by the King of Lower Egypt, Menes, in the year 3100 B.C. B. SEWELL, EGYPT UNDER THE PHAROAHS 45 (1968). The King is depicted clubbing a submissive enemy, inspecting rows of headless corpses and leading captives away into servitude. C. ALDRED, EGYPT TO THE END OF THE OLD KINGDOM 43 (1965). The true effects experienced by the inhabitants of a territory forcibly seized by an aggressor should never be forgotten: There is a profound psychological difference between a transfer of territory and a change in a trade treaty or pact of international cooperation. Territory is near and plain and evokes personal feelings and group sentiments . To all [peoples] landscape is an essential part of home. Enshrined in every national literature are the changing moods and compositions of river, mountain, plain, forest and shore. All the familiar techniques of living are involved in the com- plex of feeling, remembered experiences and imagination surrounding place and home. It is title to sentiments like these, and not merely to so-and-so many square miles of land, that is transferred when there is a change of boundaries and rule. A. DE ZAYAS, NEMESIS AT POTSDAM: THE ANGLO-AMERICANS AND THE EXPULSION OF THE GERMANS 196-97 (1977). (citing Bowman, The Strategy of TerritorialDecisions, 24 FOR- EIGN AFF. 177 (1946)). 2. The principle of "might makes right" was enunciated by the Italian political scien- tist, Nicol6 Machiavelli, in his classic 1513 work, The Prince. Machiavelli states: "You must know there are two ways of contesting: the one by law and the other by force. The first method is proper to men, the second to beasts; but because the first is frequently not sufficient, it is necessary to have recourse to the second." N. MACHIAVELLI, THE PRINCE 25 (1513) (W.K. Marriott trans. 1952). Machiavelli's recommendations to those who conquer foreign territory are of particular interest: And he who becomes master of a city accustomed to freedom and does not destroy it, may expect to be destroyed by it, for in rebellion it has always the watchword of liberty and its ancient privileges as a rallying point, which neither time nor benefits will ever cause it to forget. And whatever you may do or pro- vide against, they never forget that name or their privileges . but at every chance they immediately rally to them, as Pisa after the hundred years she had been held in bondage by the Florentines. Id. at 8. N.Y.L. SCH. J. INT'L & COMP. L. [Vol. 6 uria ius non oritur."3 With regard to the issue of territorial change, the first principle remained unchallenged throughout the centuries, em- bodied in the so-called "right of conquest."4 According to this princi- ple, the seizure by one state of another's territory was of no legal con- cern to other members of the international community; it was a fait accompli and legal title to territory acquired by conquest had to be acknowledged as valid by the rest of the world.5 Only in the beginning of the seventeenth century did the idea begin to develop that the effec- tiveness of territorial change should be based on something more than a unilateral tour de force, namely, on some form of assent by third party states.6 Historically, two stages in this later development are already dis- cernable. At first, the legal right to change the territorial status quo by 3. "Legal rights will not arise out of wrongdoing." This principle constitutes one of the fundamental maxims of jurisprudence. Lauterpacht, The Principle of Non-Recogni- tion in International Law, in LEGAL PROBLEMS IN THE FAR EASTERN CONFLICT 139 (Q. Wright ed. 1941). This is not to say that wrongdoing will not produce some legal results. It may serve as a grounds for legal sanctions against the lawbreaker; it may confer rights on third parties, acting in good faith, who seek expansion of commercial ties or desire to protect their security interests; and it may, after passage of a considerable period of time crystallize into a legal right as a result of prescription. Id. at 139-40. "But to admit that, apart from these well-defined exceptions, an unlawful act or its immediate consequences and manifestations may become suo vigore a source of legal right for the wrongdoer is to introduce into the legal system a contradiction which cannot be solved by a denial of its legal character." Id. at 140. 4. The definitive chronicle of the development of law prohibiting seizure of territory is R. Langer, Seizure of Territory (1947). See also T. KOMARNICKI, LA SocIrkr DES NA- TIONS (1923); M. LINDLEY, THE ACQUISITION AND GOVERNMENT OF BACKWARD TERRITORIES (1926); M. GRAHAM, IN QUEST OF A LAW OF RECOGNITION (1933); R. SHARP, NON-RECOGNI- TION AS A LEGAL OBLIGATION (1934); H. LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 142-46 (1962); R. JENNINGS, THE ACQUISITION OF TERRITORY IN INTERNATIONAL LAW (1963); M. McDOUGAL AND M. REISMAN, INTERNATIONAL LAW IN CONTEMPORARY PERSPEC- 'rvE 658-69 (1981); Wright, The Stimson Note of January 7, 1932, 26 AM.
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