December, 1958 Vol. 4, No. 4
Managing Editor P. V. Vygantas
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© 1958 Lithuanian
Students Association, Inc. December, 1958 Vol. 4, No. 4 Managing Editor P. V. Vygantas |
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THE INTERNATIONAL STATUS OF LITHUANIA
DOMAS KRIVICKAS
DR.
DOMAS KRIVICKAS, studied at the Universities of Kaunas, Caen, Paris,
Berlin and Cologne and received his doctorate from the University of
Kaunas. Formerly Professor at the Universities of Kaunas, Vilnius and
the Baltic University in Germany. Ha? written numerous articles in the
area of international laiv and participated in many conferences.
In 1921, after the re-establishment
of an independent Lithuanian state, Lithuania was admitted into the
League of Nations, and in the years 1921-1922 she was granted de jure
recognition by many leading countries. Thus Lithuania became a
fullfledged member of the international community. On June 15, 1940,
however, Lithuania was occupied by the Red Army, and on August 3 she
was incorporated into the Soviet Union. On August 11, foreign
representatives were informed by the government of the Soviet Union
that it was now representing Lithuania in international affairs, and
that all foreign embassies and consulates in Lithuania must be closed
by August 25. As a result of this action and because of the existing
state of occupation, embassies and consulates were closed on the
following dates: Switzerland, August 31; United States, September 5;
Hungary October 4, etc.1.
The principal justification advanced by the Soviet Union for this
incorporation is the so-called will of the Lithuanian people, as
expressed in the election of a People's Diet and in that Diet's
subsequent request that the "Lithuanian Soviet Socialist Republic" be
incorporated into the Soviet Union. That this title to possession,
fabricated by the Soviet Union itself, has no legal foundation is
evident, and there is no need to discuss the question anew. Suffice it
to note that a committee of the United States Congress that
investigated the incorporation of the Baltic states into the U.S.SR.
stated, "The evidence is overwhelming and conclusive that Estonia,
Latvia and Lithuania were forcibly occupied and illegally annexed by
the U.S.S.R. Any claims by the U.S. S.R. that the elctions conducted by
them in July, 1940 were free and voluntary or that the resolutions
adopted by the resulting parliaments petitioning for rcognition as a
Soviet Republic were legal are false and without foundation in fact.'2
Except among Communist writers, the view prevails that the
incorporation of Lithuania into the Soviet Union was a unilateral
action on the Soviet Union's part, an act of annexation. In recent
times, especially on the American continent, the doctrine has been
advanced that any act of annexation is illegal, since such annexation
of the whole or a part of a nation's territory is contrary to the
principle of national self-determination. This doctrine has been
universally recognized since 1890 on the American continent, where it
is known as the Stimson Doctrine. In the treaty of Saavedra-Lamas of
October 10, 1933, that doctrine is expressed as follows: "Art. II—They
declare that as between the High Contracting Parties territorial
questions must not be settled by violence, and that they will not
recognize any territorial arrangement which is not obtained by
pacific means, nor the validity of an occupation or acquisition of
territory that may be brought about by force.'3
This pact is now adhered to by 21 American states and 11 non-American
states. It would seem that even Lenin's definition of annexation was
influenced by these ideas. "In accordance with the legal conscience of
democracy in general and especially of the working class, the
Government considers as annexation or arbitrary appropriation of
foreign lands any incorporation into a large or strong state of a small
or weak nation without that nation's clear and definite desire,
irrespective of what manner of violence may be employed in effecting
the incorporation, irrespective of how developed or undeveloped may be
the nation that is incorporated with violence or that is retained by
force within the limits of that state and, finally, irrespective of
whether the incorporated nation is in Europe or in some distant land.
"If any nation is retained within the limits of another state by force,
if, contrary to its desire — irrespective of whether this desire is
expressed in the press, at peoples meetings, in party resolutions or in
uprisings against national servitude — this nation is not accorded the
right to decide the problem of the form of the state structure of said
nation by a free vote, implying the complete withdrawal of the troops
of the incorporating or merely strong nation, then the incorporation is
an annexation, i.e., an act of arbitrary appropriation and violence"4.
Thus, an act of annexation is an illegal act, an act of violence. This
same view is expressed in a resolution of the League of Nations adopted
on March 11, 1932, which obliged the members not to recognize any
treaty or situation that was achieved in a manner contrary to the
stipulations of the League of Nations or the Pact of Paris. This
resolution became the basis of the decision at the Nuremberg War Crimes
Trials holding that the various annexations made by Germany were not
only illegal but also punishable. "It was contended before the Tribunal
that the annexation of Austria was justified by the strong desire
epressed in many quarters for the union of Austria and Germany; that
there were many matters in common between the two peoples that made
this union desirable; and that in the result the object was achieved
without bloodshed.
These matters, even if true, are 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."5
But
there is a different view of annexation which holds that in spite of
the illegality of an annexation, it can be legalized by the de jure
recognition of leading powers. According to the first view, it is the
duty of states to refuse to recognize annexation; according to the
second, each state is free to recognize the new situation or to refuse
to recognize it. The followers of the second theory maintain that in
international practice the will of the state is the deciding factor,
and that an illegal situation may be legalized by the granting of
recognition.6
Bearing the above remarks in mind, we may examine the
practice in relation to the annexation of Lithuania and the conclusions
that may be drawn from this practice.
The United States.
Once the fate of Lithuania became apparent, the United States, faithful
to the doctrine of nonrecognition, on July 24, 1940, condemned the
Soviet act through Sumner Welles: "The policy of this Government is
universally known. 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... The
United States will continue to stand by these principles, because of
the conviction of the American people that unless the doctrine in which
these principles are inherent once again governs the relations between
nations, the rule of reason, of justice, and of law — in other words,
the basis of modern civilization itself — cannot be preserved."7
From
among the many statements made by United State officials on the
nonrecognition of the incorporation of the Baltic states into the
Soviet Union, we will cite the following more significant ones:
In view of this United States
position,
Lithuanian diplomatic and consular representatives continue to function
and to possess all the prerogatives usually accorded such
representatives. United States courts base their decisions on this
position. For example, on December 1, 1953, Court of Claims Judge J.
Whitaker, in dismissing plaintiff's petition, based on the 1940
nationalization decrees of the L.S.S.R., for the transfer of ownership
of a Lithuanian sbio requisitioned in a U.S. port in 1942, noted: "The
Executive Department of our Government has refused to recognize the
incorporation of Lithuania into the Union of Soviet Socialist Republics
and has refused to recognize the validity of any decrees issued by the
Union of Soviet Socialist Republics or of the People's Commissars of
the Soviet Socialist Republic of Lithuania relative to persons and
property within the territory of Lithuania. That action having been
taken by the Executive Department of our Government, the courts have
also uniformly refused to recognize the validity of such decrees. For
example, see The Maret, 3 Cir., 145 F. 2d 431, 433; Latvian State Cargo
and Passenger S.S. Line v. McGrath ...188 F. 2d 1000; The Florida, 5
Cir., 133 F. 2d 719. We fully concur in these opinions."14
United
States courts continue to recognize the right of Lithuanian consuls to
protect the interests of Lithuanian citizens in American courts and to
deny that right to Soviet consuls. For example, in the case of Mike
Shaskus a demand was made that the Lithuanian consul-general be evicted
from the court; the court turned down the demand on the grounds that
the United States has, by treaty, granted de jure recognition to the
Lithuanian government, and hence the Lithuanian consul is entitled to
protect the rights of its citizens.15
In the Adler's Estate case, the
court rejected the powers of attorney submitted to it that had been
signed by a notary in Riga and later certified by the so-called
Ministry of Justice in occupied Latvia and the Soviet Union's
consul-general in New York, stating that since the State Dpartment does
not recognize the incorporation of Latvia into the U.S.S.R., nor the
legality of any of the acts or decrees of that regime, and added, "As a
corollary of this principle, a court may not give effect to an act of
an unrecognized government, for by so doing it would tacitly recognize
the government, invade the domain of the political department and
weaken its position. If, therefore, the court may not give effect to an
act of an unrecognized government, it may not give effect to an act of
an official acting in behalf of that regime."16
Great Britain.
The attitude of Great Britain toward the annexation of the Baltic
states was not as strict as that of the United States. Nevertheless,
immediately after the annexation the Baltic states' assets in Great
Britain were frozen and the legations continued to function as before.
Later, during the war, Great Britain signed a treaty with the Soviet
Union extending de facto recognition to the incorporation. On May 26,
1942, the names of the Baltic states' representatives in the Diplomat's
Annual listings were transferred to an appendix with this
note: "List
of Persons no longer included in the Diplomatic List but still accepted
by H.M. Government as Personally Enjoying Certain Diplomatic
Courtesies." No indication was given of the countries the people
represented. This position has been maintained to the present day; the
Diplomat's Annual
still carries an appendix listing three ministers
plenipotentiary of unnamed states. This extraordinary procedure has
not, however, been followed by the Foreign Office List, which carries
the Baltic diplomatic missions in the normal manner.17
Great
Britain's representative at the Nuremberg War Crimes Trials made
essentially the same reservation that was made by the United States
prosecutor: that the listing of the Baltic states in the indictment as
part of the Soviet Union had no relation to the British position on the
question of Soviet sovereignty in the Baltic states.18
The
British position was clearly formulated in the case of Tallina
Laeveuehisus v. Tallina Shipping and Estonian Shipping Line, in which
the court solicited the opinion of the Ministry for Foreign Affairs.
The reply stated: "I, H.M. Government recognise the Government of the
Estonian Soviet Socialist Republic to be de facto Government
of
Estonia, but does not recognize it as de jure Government of Estonia. 2.
H.M. Government recognise that Estonia has de facto entered the
Union
of Soviet Socialist Republics, but have not recognized this de iure. 3.
H.M. Government recognise that the Republic of Estonia as constituted
prior to June, 1940, has ceased de facto to have any effective
existence."19
What was here said about Estonia is mutatis
mutandis
applicable to Lithuania.
When, on February 15, 1954, the
question of demanding from the Soviet Union reparations for losses
suffered by British nationals in the Baltic states was raised,
Dodds-Parker, a Foreign Ministry official, replied: "No, Sir. Her
Majesty's Government are not prepared to take any steps which would
imply or constitute de
jure recognition of the Soviet annexation of the
Baltic states."20
Although Great Britain has recognized the
annexation de facto. British courts, like U-nited States courts, have
refused to recognize the validity of Soviet decrees respecting the
Baltic states. Also the Baltic states' diplomatic missions continue to
function as before and the Foreign Ministry of Great Britain maintains
diplomatic ties with them.21
There is little difference in this respect
between the British and the American practices. "It may thus be asked
what exactly de facto recognition by Britain of the annexation of the
Baltic States really signifies," writes K. Marek. "It may well be that
the British Government has resorted to this particular form of
recognition in order to acknowledge the existence of undoubted facts on
the one hand, while registering its disapproval of these facts on the
other. In view of the continued recognition of, and dealing with, the
Baltic Legations in London, it can hardly mean more than this. The
recognition of facts which have taken place in the Baltic States on the
one hand, and the refusal to recognize these facts de jure as well as
the continued recognition of the London Legations, on the other, leads
to the conclusion that Great Britain still recognizes the existence of
the Baltic States, even though they have ceased to exercise de facto
authority in their territories."22
Marek quotes H. Lauterpacht, a noted
British jurist, in support of his conclusions. Lauterpacht has this to
say about de facto
recognition: "There would seem to be full scope for
de facto
recognition in situations where conditons other than
effectiveness of power are a legitimate consideration. This applies in
particular to recognition of a new international title which has its
origin in an international wrong, as was the case of the Italian
annexation of Abyssinia in 1936. In such cases de facto recognition,
which takes into account the actuality of power while expressly
refusing to admit its legality in the field of international law, is a
proper device for combining disapproval of illegal action with the
requirements of international intercourse."23
The members of the British Commonwealth have for the most part adopted
the same attitude as Great Britain.
Canada.
On May 17, 1954, when the question was raised in the Canadian
Parliament, Benedick-son, an official of the Canadian Foreign Ministry,
stated: "There has been no occasion when the government of Canada
considered it necessary to reaffirm or withdraw formally de jure
recognition of these states." However, in 1947, in the course of an
action in Canada's Exchequer Court, the Secretary of State for Internal
Affairs informed the court that the government of Canada recognized
that "Estonia has Republics, but does not recognize this de jure."24
Furthermore, when on March 12, 1948, the Soviet Legation in Canada
announced that all former residents of the Klaipëda area should
register at the Soviet consulate or embassy, in conformity to a Soviet
decree of January 29, 1948, the Canadian government protested the
action on the ground that the Canadian government had never granted de
jure recognition to Lithuania's incorporation.25 A
Lithuanian consulate
is functioning in Toronto and possesses full rights, but it does not
figure in the official lists.
Australia.
The government of the Commonwealth of Australia reacted just as Canada
did to
Soviet demands that all its citizens register at the Soviet legation.
On May 9, 1948, the government told the refugees in Australia under the
International Refugee Organization program to disregard the Soviet
plea. The statement pointed out that Australia does not recognize the
incorporation of Estonia, Latvia and Lithuania into the Soviet Union.26
Ireland.
The position of Ireland was stated in the Zarins v. Owners case, which
involved the ownership of ships nationalized by Latvia and Estonia
after their annexation. The High Court of Ireland reached this
conclusion: "That the government of Eire having stated their opinion
that the states of Latvia and Estonia were not under the sovereign
independent authority of the Union of Soviet Socialist Republics, the
court must treat as nullities the various transactions and documents
alleged to have culminated in the alleged sovereignty and purporting to
pass the property in those ships."27
When the case reached the Supreme
Court, the Ministry for Foreign Affairs stated that Ireland does not
recognize, either de
facto or de
jure, Soviet sovereignty in Latvia or
Estonia.28
France. On
August 15, 1940, immediatly after the
Baltic states were annexed by the Soviet Union, the Soviet Union's
representative in France demanded that those states' legations in
France be closed. In spite of strong protests by the Baltic legations,
they were forced to hand over the keys of the embassies to a prefect,
who then gave them to the Soviet embassy.
After the war Baltic
representatives asked the French government to permit the renewal of
diplomatic and consular activities. However, the request was denied.29
If it might appear from this that France has recognized the annexation,
such an interpretation was denied by the French Supreme Court in the
case of Gerbaud v. de Me-dem. On January 10, 1951, the court stated:
"Considering that no act of international significance has intervened
to obliterate the recognition of the Latvian State; that no treaty has
intervened to sanction the disappearance of that State as a holder of
rights and liable to legal obligations; that the Court of Appeal
rightly decided that so long as the Peace Treaty has not determined the
fate of Latvia, it is impossible to say that Latvians at present have
no nationality.' "30
We must conclude, then, that the
above-mentioned closing of the Baltic legations in France constituted
only de facto recognition of the annexation. Nevertheless, Baltic
representatives in France have only a personal status and maintain no
official premises. They are, however, the agents of the diplomatic
services of their respective states, and we should note, that in a 1948
audience with the President of France, the Baltic representatives were
accorded the courtesies reserved for diplomatic representatives.31
Furthermore, with respect to Lithuania, official quarters duly noted
the granting of the rank of minister to Dr. S. Bačkys by the chief of
the Lithuanian diplomatic srvices; Dr. Bačkys had represented Lithuania
in France prior to 1940.
West Germany. When West Germany was
under Allied occupation, its courts maintained positions on the
question of the Baltic states coinciding with the position of the
occupational government of the respective zone. The postition of West
Germany itself was clarified only when that state was granted the right
of international representation. On April 29, 1953, the Ministry of
Foreign Affairs of the Federal Republic of Germany notified the
judicial organs of the city of Berlin that it considered Latvia to be
still in existence, since neither the German Reich nor the present
federal government had ever recognized the annexation of Latvia.32
Also, a circular letter of the Foreign Ministry dated March 2, 1953,
states that since the annexation of the Baltic states is not recognized
in international law and the citizens of those states have not
become citizens of the Soviet Union, the citizenship of these persons
has remained unchanged. Passports issued by the diplomatic and consular
services of Estonia, Latvia and Lithuania are valid so long as they
conform to the usual regulations.33
The functioning of the
diplomatic and consular services of the Baltic states was suspended by
the government of the German Reich in 1940. And at present the
Lithuanian diplomatic service agent who protects Lithuanian interests
in Germany, like his counterpart in France, maintains no official
premises.
Spain and Portugal.
Both Spain and Portugal are
members of the Saavedra-Lamas pact. Therefore neither of them can
recognize territorial changes accomplished by force. Immediately after
the annexation, Portugal's Foreign Ministry announced that it did not
recognize the annexation, but it suspended all treaties with the Baltic
states so long as the situation remains unresolved.34
Lithuania's
representative in France was also the country's representative in
Spain, before incorporation of Lithuania into the Soviet Union and it
would seem that there are no barriers to a renewal of Lithuanian
representation in Spain considering that at the present time Estonia is
represented in Spain by her former representative to France.35
The
Vatican. The Lithuanian legation here functions just as it
did before,
with full prerogatives, since the Vatican has not recognized the
incorporation cf Lithuania into tho Soviet Union. (Beginning with
January 1959 the title of the chief of the Lithuanian Legation at the
Vatican has been changed to that of gerant d'affaires.)
Switzerland.
The position of Switzerland in regard to the Baltic states was set
forth in a report of the Federal Council in 1946: "The Federal Council
has reconsidered the status of the former Estonian, Latvian and
Lithuanian diplomatic and consular missions and of their personnel. As
of the 1st of January, 1941, these missions have not been recognized by
the Federal Council. On November 15, 1946, the Federal Council passed a
resolution whereby the public property of the above-mentioned Baltic
states and also the legation archives located in Switzerland were
transferred to the federation under a fiduciary title."36 And so the
property of the Baltic states in Switzerland were not transferred to
the Soviet Union but assumed in trust by the federal government. In B.
Meissner's opinion, this would constitute only de facto recognition.37
Sweden.
Sweden closed the Baltic legation in 1940. It would seem that Sweden is
a clear exception to the already mentioned countries; its actions would
indicate that it has granted de
jure recognition to the incorporation
of the Baltic states. However, Swedish courts are not unanimous on the
question of the citizenship of Baltic nationals, whom they occasionally
treat as persons without citizenship.
The Latin-American States.
The Latin-American states, on the basis of international obligations
arising from the Saavedra-Lamas pact, do not recognize the annexation
of the Baltic states, whose diplomatic and consular legations function
as before. Argentina alone in 1948 suspended the
functioning of the Lithuanian legation until such time as the question
of the Baltic states is resolved by the United Nations.33 The
Lithuanian delegation was transferred from Argentina to Uruguay, where
it continues to function. Furthermore, the Lithuanian consulate in Rio
de Janeiro, Brazil, was raised to the status of an embassy, and
Brazil's Foreign Ministry recognized the grant of the title of Minister
to Dr. F. Meier, formerly Lithuanian Charge d'Affairs in Brazil, by the
chief of the Lithuanian diplomatic service. Also, a consulate was
establishd in Bogota, Colombia, and on August 25, 1954, the Colombian
government accepted the appointment of Stasys Sirutis as consul by the
chief of the Lithuanian diplomatic service.
Conclusions to Be
Drawn from State Practice. It is evident from this brief
survey that
the leading states of the Western world, along with many other states,
do not recognize the Soviet annexation and continue to maintain
relations with the representatives of independent Estonia, Latvia and
Lithuania. There is a certain gradation in their attitudes, however: In
some cases the missions and consulates retain their full functions; in
others, they retain their functions with certain limitations, mostly of
a protocol nature; while in still others they exist only de facto.
Therefore, even if we held to the opinion that the illegal annexation
of the Baltic states can be legalized and the "original sin' pardoned,
so to speak, once the annexation is granted de jure recognition,
so far
this has not happened. In the face of these facts. B. Meissner makes
the following conclusions: "An investigation of the attitudes of the
several members of the international community shows that with the
execption of several doubtful incidents, a large majority of the
sovereign states, led by the leading anti-Communist powers, do not
recognize the annexation of the Baltic states de jure. In refusing
to
grant de jure
recognition to the annexation, the international
community has challenged the legality of the Soviet intervention and
has refused to justify the annexation, inasmuch as it is illegal.
Within the framework of de
facto recognition, several states have
temporarily, and without essential commitment, accepted the situation.
In this way, the international juridical personality of the Baltic
states was not injured. Since their international personality has not
been extinguished, their citizenship, their judicial system and even
their material law remain as they were before 1940."39
K. Marek
reaches the same conclusion, that a large majority of states still
recognize the continuity of the Baltic states. In her opinion, "not
international recognition alone which is decisive for the legal
continuity of the Baltic States. Such continuity cannot be considered
as a result of an arbitrary action on the part of the international
community. On the contrary, it conforms to the basic principle of all
law, according to which illegal acts should be debarred from producing
legal results. In the last resort it is therefore once again the
principle ex iniuria ius
non oritur, which, failing any other
protective rule, constitutes the legal basis of the continuity of the
Baltic States just as it constituted the legal basis of the survival of
Czechoslovakia, Albania, Austria and, possibly, Ethiopia."40