Baltic Yearbook of International Law

Contents Ineta Ziemele: Editorial Note ...............................................................

ix

Special Theme: Reparations for Internationally Wrongful Acts of States Luzius Wildhaber: Article 41 of the European Convention on Human Rights: Just Satisfaction under the European Convention on Human Rights ...................................................................................................

1

Alexander Orakhelashvili: Peremptory Norms and Reparation for Internationally Wrongful Acts .............................................................

19

Lauri Mälksoo: State Responsibility and the Challenge of the Realist Paradigm: The Demand of Baltic Victims of Soviet Mass Repressions for Compensation from Russia ........................................

57

Rytis Satkauskas: A Bill for the Occupants or an Issue to Negotiate: The Claims of Reparations for Soviet Occupation ..............................

77

Dainius Žalimas: Commentary to the Law of the Republic of Lithuania on Compensation of Damage Resulting from the Occupation of the USSR ......................................................................

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Ineta Ziemele: State Continuity, Succession and Responsibility: Reparations to the Baltic States and their Peoples? .............................

165

General Articles Rein Müllerson: The Law of Use of Force at the Turn of the Millennia ..............................................................................................

191

Sabrina Urbinati: Non-Compliance Procedure under the Kyoto Protocol ................................................................................................

229

Laure Amoyel: Mainstreaming Human Rights in the European Investment Bank...................................................................................

253

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Baltic Yearbook of International Law Practice of the Commissioner of the Council of the Baltic Sea States on Democratic Development H.E. Helle Degn ...................................................................................

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Elements of Practices of the Baltic States in International Law: 2002 Michail Cvelich: Lithuania ..................................................................

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Book Reviews Dainius Žalimas, Skirgailė Žaltauskaitė-Žalimienė, Zenonas Petrauskas, Jonas Saladžius, International Organisations (Vilenas Vadapalas) ...........................................................................................

333

Česlovas Vytautas Stankevičius, The Negotiations with Russia on the Withdrawal of the Armed Forces from Lithuania (Vilenas Vadapalas) 339 Marc Benitah, The Law of Subsidies under the GATT/WTO System (Raimondas Ališauskas) .......................................................................

349

List of Contributors ..............................................................................

355

Information for Authors ........................................................................

357

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Editorial Note On the occasion of the inauguration of volume 1 of the Baltic Yearbook of International Law, the Editor-in-Chief in co-operation with the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund University organised a conference entitled 'Reparations to States, Groups and Individuals: Implementation of State Responsibility'. The conference took place on 20 April 2002 at Lund University and was supported financially by the Soderberg Foundations. There were two main reasons for the choice of the particular conference topic. First of all, it was linked to the main theme of Volume L. Contributors to that volume dealt with the question of a breach of international law regarding the Baltic States. It was only a natural step to address the questions whether a breach has been established, and if so, what are the possible legal consequences. Secondly, the International Law Commission finalised its work on Articles on Responsibility of States for Internationally Wrongiful Acts in 2001,' which provided the inspiration and background for many of the conference interventions and the contributions to this edition of the Baltic Yearbook. Volume 3 contains contributions addressing the issue of reparations in a more general context, in the framework of the European Convention on Human Rights, and in relation to the specific cases of the Baltic States. One way or another all articles published here raise the issue of ways and means to ensure the compliance of States with their international obligations and their responsibility in case of violations of these obligations. The contributions disclose several fundamental questions concerning the implementation of State responsibility: Can or should the general principles of State responsibility such as the obligation of full reparation be modified when applied within a specific fkmework of a treaty regime? Can or should these principles be modified when a treaty embodies rights that are generally considered to have achieved the character of jus cogens norms? How to enforce the obligation of reparations between States when one of them does not recognise any such obligation? Undoubtedly, there are many difficult legal and political questions surrounding the implementation of the law of State responsibility and this edition of the Baltic Yearbook can only address some of them. It seems, however, that one conclusion merits mentioning, especially in view of recent challenges posed to the international legal system based in the United Nations Charter. The development of, and compliance with, rules and UN Doc. A/Res/56/82, 12 December 2001.

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Editorial Note

principles of international law continues to depend largely on States. It is therefore that many governments need to be reminded on a regular basis that international law, including the law of State responsibility, only works, primarily, if and when States make it work. It is very much in the interests of stability and development of the international community that all States in their relations, either bilateral or within multilateral fixmeworks, actively uphold applicable rules and principles of international law. With this volume the Baltic Yearbook begins publishing surveys of the practice of the Commissioner on Democratic Development of the Council of the Baltic Sea States. This volume also contain a comprehensive contribution on Lithuania's practice in matters of international law in 2002. It has to be recalled that neither this section nor the Yearbook itself is limited to the three Baltic States; a wide spectrum of contributions is welcomed. The book review section introduces the reader to several books in international law that have been published in Lithuania as well as international publications.

Special Theme: Reparations for Internationally Wrongful Acts of States Article 41 of the European Convention on Human Rights: Just Satisfaction under the European Convention on Human Rights* Luzius Wildhaber**

Contents 1. 2. 3. 4. 5. 6. 7.

Introduction Origin of Just Satisfaction Subsidiary Context Discretionary Nature Practical Difficulties Heads of Damage Pecuniary Damage 7.1. Casual Connection 7.2. Right to Life 7.3. Right to Property 7.4. Procedural Defects 8. Non-pecuniary Damage 8.1. Reasonable Time Breaches 8.2. Particularly Serious Violations 8.3. Pure Non-pecuniary Damage 8.4. Article 5 – the Right to Liberty 8.5. Child Care Cases 8.6. Environmental Nuisance 8.7. Legal Persons 9. Costs and Expenses 10. Conclusion *

Address by Luzius Wildhaber, President of the European Court of Human Rights, at the International Conference on the Occasion of the Inauguration of the Baltic Yearbook of International Law, Lund, 20 April 2002. ** President of the European Court of Human Rights, Dr.iur., LL.M., J.S.D. (Yale), Dres.h.c., LL.D.h.c., Professor at the University of Basel. 1

Just Satisfaction under the European Convention on Human Rights 1. Introduction At first sight the question of just satisfaction under the European Convention of Human Rights may appear a rather dry topic, far less spectacular than the substantive provisions of the Convention through which the European Court of Human Rights has forged a remarkable and unique body of jurisprudence in the field of human rights law. However, this first impression should not lead us to the conclusion that Article 41 is unimportant. It is a provision whose operation can tell us a great deal about the nature of the Convention system. The uncertainty which has accompanied its application by the Court over the years reflects some of the questions which we must ask ourselves as to the true role of the Convention and particularly the place and function of individual relief in a subsidiary system designed to guarantee minimum standards in a growing community of States, which currently numbers 42, but is destined to expand to 44 and beyond in the near future. Any discussion of Article 41 must therefore, in my view, start from general considerations concerning the underlying objectives of the Convention system. We can, I believe, better understand the operation of Article 41 if seen from that perspective. In this connection the first question that perhaps has to be asked is whether the primary purpose of the Convention system is to provide individual relief or whether its mission is more a ‘constitutional’ one of determining issues on public policy grounds in the general interest. If the latter is the case, then the mechanism of individual applications is to be seen as the means by which defects in national protection of human rights are detected with a view to connecting them and thus raising the general standard of protection of human rights. This analysis may be taken further by looking at the Court’s judgments and the process of execution. As you will no doubt be aware, the Strasbourg judgments are declaratory in nature. The original intention of among others Pierre-Henri Teitgen, often referred to as the father of the Convention, was that the Court should be endowed with cassation powers and the competence to declare laws invalid, but this maximalist approach was rejected by the Governments. The Court has moreover consistently confirmed that it is not empowered to order consequential measures. Thus it establishes the existence of a violation, and the process of giving effect to that finding is left to the Committee of Ministers of the Council of Europe, ‘peer pressure’ being the most likely way to ensure proper execution of the judgment of what is, after all, and we do well to remind ourselves of this, an international court. The function of this execution process is to secure the elimination of the causes

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Luzius Wildhaber of the violation. In this sense the role of the Convention and the Court is prospective as much as it is retrospective. On this view the place of individual relief, while important and particularly so in respect of the most serious violations, is secondary to the primary aim of raising the general standard of human rights protection and extending human rights jurisprudence throughout the community of Convention States. In terms of the effectiveness of the system, the emphasis will thus be on the need to avoid repetition of the circumstances giving rise to the violation. Now I would be the first to admit that this analysis of the Convention system is not universally accepted and that this is the case even among my fellow Judges in Strasbourg, but whether or not it was correct at the outset, given the current situation with the ever-rising case-load from 42 States, soon to increase, as I have said, to 44 and even 45 and more, with a population of over 800 million, the future of the system cannot be based on individual-relief. In the light of that conclusion, let us look at how Article 41 fits into this scenario. Trying to explain the Court’s attitude to just satisfaction on this basis may be making generous use of hindsight. Yet, I am convinced that the dichotomy between individual relief and general interest does shed light on the difficulty that the Court has experienced in coming to terms with the notion of just satisfaction. 2. Origin of Just Satisfaction We can start from the origin of Article 41 (formerly Article 50), which is to be found in equivalent provisions in a number of arbitration treaties such as the 1928 Geneva General Act for the Pacific Settlement of International Disputes (Article 32). These clauses were intended to make it possible for a State party to an agreement that was unable for constitutional reasons to fulfil one of its obligations under the agreement to pay equitable satisfaction of another kind to the injured party.1 These provisions were therefore in essence an alternative solution to the normal performance of obligations. Translated to the Convention context, this could mean that satisfaction under the Convention had a purely accessory function in relation to the main obligation on a respondent State, whose primary duty is, as I have suggested, to eliminate the causes of the violation with a view to preventing its repetition in the general interest rather than according individual relief to the particular injured party. This reading is consistent with the subsidiary nature 1

De Wilde, Ooms and Versyp v. Belgium (Article 50), 10.3.1972, Series A no. 14, § 16, and the separate opinion of Judges Holmbäck, Ross and Wold.

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Just Satisfaction under the European Convention on Human Rights of the system, which the Court has never failed to stress, the fact that it is in the first place for the national authorities, and particularly the judicial authorities, to guarantee the rights and freedoms protected by the Convention. This is reflected notably in the requirement to exhaust domestic remedies in Article 35 of the Convention, the obligation to provide an effective remedy to enforce the substance of the Convention rights under Article 13 of the Convention, and the procedure for execution of the Court’s judgments under Article 46 of the Convention, which leaves it to the respondent State, under the supervision of the Council of Europe’s Committee of Ministers, to choose the means by which it implements the Court’s binding judgments. 3. Subsidiary Content Article 41 has therefore initially to be placed in this subsidiary context. Its wording reinforces its subsidiary character. Thus just satisfaction may be awarded ‘if the internal law of the High Contracting Party concerned allows only partial reparation to be made’. It took the Court some time to work out what this meant. In its first judgments finding a violation it included an operative provision reserving for the applicants the right, should the occasion arise, to apply for just satisfaction.2 As the Court later explained, it considered at the time that it was necessary to deal with the issues separately because it wished to take into account the reluctance of respondent States to argue the consequences of a violation whose existence they dispute and to maintain the possibility of settling the issue of reparation directly with the injured party without the Court being further concerned.3 The Court rapidly clarified two points concerning this requirement: ‘1. It did not mean that applicants were required to exhaust domestic remedies all over again before applying to the Court for just satisfaction.4 2. It did not mean that the existence of internal remedies excluded the possibility of Convention satisfaction. As the Court understood the purpose of Article 50, it covered not only the situation where it was impossible to wipe out entirely the consequences of a violation because the internal law precluded this being done, but 2

Belgian Linguistic case, 23.7.1968, Series A no. 6, point 1 of the operative provisions. 3 Ringeisen v. Austria (Article 50), 22.6.1972; § 18. 4 De Wilde, supra note 1, § 16.

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Luzius Wildhaber also where the nature of the injury made restitutio in integrum impossible.’5

4. Discretionary Nature Nevertheless the Court continued to regard just satisfaction with some suspicion. On, the one hand, it took restitutio in integrum as the guiding principle. This was in line with the general theory of damages prevailing in most national systems, namely that the aim is to restore the injured party in so far as possible to the position he or she was in before the injury. On the other hand, it was at pains to stress the discretionary nature of Article 50/41. According to the terms of that provision, the Court is to afford just satisfaction ‘if necessary’. In other words there is no automatic link between a finding of a violation and an award of compensation. Thus in Golder v. the United Kingdom, the Court had recourse for the first time to a formula that was to become familiar to Court watchers over the years, namely that the finding of a violation amounted in itself to just satisfaction.6 This confirms the general interest or constitutional approach as opposed to a system directed towards offering individual relief, which would suggest on the contrary that compensation should flow as an automatic consequence from a finding of violation. The Court has spelt out the discretionary character of just satisfaction, which ‘falls to be determined by the Court at its discretion having regard to what is equitable’.7 Another clue to the nature of just satisfaction is the fact that the Court will not raise claims of compensation of its own motion as no issue of public policy is involved in contrast to its position with regard to substantive matters under the Convention.8 5. Practical Difficulties In addition to the ‘philosophical’ difficulty of applying a provision of this nature within a subsidiary system, it soon became evident that the Court was ill equipped in practical terms to carry out the sort of valuation exercise necessary to make appropriate awards. As a collegiate body composed of 5

Ibid., § 20. Golder v. The United Kingdom, 21.2.1975, Series A. no. 18, point of the operative provisions. 7 Sunday Times v. United Kingdom (no. 1) (Article 50), 6.11.1980, Series A. no. 38 at § 15. 8 Ibid. 6

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Just Satisfaction under the European Convention on Human Rights Judges from different legal cultures and professional backgrounds dealing with cases covering a wide range of complaints from several different countries where the relative value of money varies significantly, it lacks the expertise to carry out the sort of assessment necessary. Just as the Court is not geared to the taking of detailed evidence as a tribunal of fact on questions going to the merits, so it does not have the capacity, or increasingly does not have the time, to analyze extensive material going to alleged damage. This had led the Court to have frequent recourse to the notion of equitable assessment and this approach has made it even more difficult to extract clear criteria from the case-law. Indeed two distinguished British human rights advocates have written that ‘there is danger spending time attempting to identify principles that do not exist’.9 6. Heads of Damage Coming to the heads of damage recognized under Article 41, the Court awards three types of satisfaction: compensation for pecuniary damage, compensation for non-pecuniary damage and reimbursement of costs and expenses, although the distinctions between the first two categories are sometimes blurred by the award of a global sum. Without conducting an exhaustive survey of the cases, we can see from a few examples that generally speaking the Court has hesitated to adopt an approach entirely based on individual relief. In some cases it has overtly preferred to concentrate on the public policy aspect, while in others it has encountered practical difficulties in valuation exercises. The individual relief aspect, through the notion of equitable assessment, and particularly under the head of non-pecuniary damage, becomes more a gauge of the gravity of the violation or even, on occasion, by the absence of an award, a means of indicating moral disapproval of the applicant’s conduct. 7. Pecuniary Damage 7.1. Causal Connection The main criterion under the head of pecuniary damage is the requirement of a strict causal connection between the violation found and the pecuniary damage claimed. Thus the Court awarded compensation for pecuniary damage when the applicants had lost their employment as a direct result of a 9

L. Lester and D. Pannick (eds.), Human Rights Law and Practice; London, Butterworths 1999, paragraphs 2.8.4.

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Luzius Wildhaber breach of Article 11 in the so-called ‘closed shop case’, that is the obligation for an employee on pain of dismissal to join a trade union.10 In a Swedish case, where expropriation permits had been left in force for a number of years making it impossible to exploit or dispose of the properties in question normally, there was a clear link between violation of Article 1 of Protocol No. l and the pecuniary damage claimed, and the Court awarded substantial compensation.11 The Court, however, recognized the difficulty of the task facing it, citing ‘the technical nature of real estate matters’ and ‘the complexity of the calculations made by the experts acting for the applicants and for Government’. The Court was acknowledging how ill equipped it was for this type of assessment. Ultimately it made its award ‘on an equitable basis’ rather than as a result of a ‘process of precise calculation’.12 7.2. Right to Life Violations of the right to life have led the Court to make awards for pecuniary damage. In Avşar v. Turkey, where the Court found a violation of Article 2 on the account of the abduction and murder of the applicant’s brother, it noted that the deceased had been involved in running an economically viable business at the time of his death and had been providing financial support to his wife and children. But for his death, the victim, a healthy 29-year-old, would have been anticipated to provide such support in the years which followed. It was accordingly appropriate to make an award to his dependants to reflect the loss of financial support. Having regard to awards made in other cases, and basing itself on equitable considerations, the Court awarded the sum of GBP 40,000 which were to be held by the applicant for the deceased’s widow and children.13 7.3. Right to Property In a Greek case, Papamichalopoulos,14 the Court found a violation of Article 1 of Protocol No. 1. The applicants’ land had been taken over by the Greek 10

Young, James and Webster v. the United Kingdom (Article 50), 18.10.1982, Series A no. 55. 11 Sporrong and Lönnroth v. Sweden (Article 50), 18.12.1984, Series A no. 88. 12 Ibid., §§ 27-31. 13 Avşar v. Turkey, 10.7.2001; see also Aksoy v. Turkey, 18.12.1996, Reports 1996VI, § 113. 14 Papamichalopoulos and Others v. Greece (Article 50), 31.10.1995, Series A no. 330-B.

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Just Satisfaction under the European Convention on Human Rights Navy in 1967 and even after the fall of the dictatorship, and despite decisions of the courts recognizing their title and the right to have the land returned to them, or to have land of equivalent value allotted to them, the applicants had not secured any reparation or other form of redress. The Court analyzed the dispossession as a de facto expropriation entailing the loss of all ability to dispose of the land in issue. In the main judgment the Court invited the parties to submit the names of experts chosen by agreement for the purpose of valuing the disputed land. Not without difficulty the experts finally reported, indicating the past and present value of the land. The Court reiterated the legal obligation of a Contracting State to put an end to a breach and make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. If the nature of the breach allows of restitutio in integrum, it is for the respondent State to effect it, the Court having neither the power nor the practical possibility of doing so itself. In this case therefore the Court expressly stated that the return of the land in question, which in the meantime had been developed, would put the applicants as far as possible in a situation in which they would have been if there had been no breach of the right of property. The increased value represented by the buildings that had been erected on the land would have compensated the applicants for their alleged loss of enjoyment. The Court held firstly that the respondent State was to return the land within six months and secondly that, failing restitution, the Government was to pay to the applicants the current value of the land as fixed by the experts, including the value of the buildings. Here again the causal connection between the violation found and the pecuniary loss claimed was clear. The link between violation of property rights and pecuniary damage will often be more obvious than in respect of other Convention guarantees. Thus for example, where the violation consisted in the delayed payment of compensation that failed to take full account of monetary depreciation, the Court made an award consisting of the difference between what the applicant was actually paid, and an adjustment to that amount to take account of real depreciation.15 7.4. Procedural Defects On the other hand, procedural defects resulting in a violation of the due process requirements of Article 6 of the Convention will seldom have a sufficiently close causal link to the damage claimed. The Court often rejects 15

8

Akkuş v. Turkey, 9.7.1997, Reports 1997-IV.

Luzius Wildhaber such claims on the basis that it cannot speculate as to what would have been the outcome of the proceedings if the breach had not occurred. For instance in Saunders v. the United Kingdom, the applicant, who had been chief executive of Guinness plc, claimed over GBP 3,500,000, mainly in lost earnings following his conviction of conspiracy, false accounting and theft. The Court found a breach of the privilege against self-incrimination as a result of the use at his trial of statements made by him on pain of prosecution to Department of Trade inspectors. There was not a sufficient link between that breach and the violation found, and the applicant was therefore not entitled to compensation. In a Spanish case, Barberà, Messegué ond Jabardo v. Spain16 the Court held that in view of a number of defects, taken as a whole, the proceedings leading to the applicants’ conviction for murder had not satisfied the requirements of a fair and public hearing under Article 6 of the Convention. This finding led to the reopening of proceedings at national level, which resulted eventually (nearly five years after the Strasbourg judgment) in the applicants’ acquittal on the basis that there was insufficient evidence. The European Court had stayed the proceedings on just satisfaction pending the outcome of the re-opened national proceedings. On the resumption of the Strasbourg proceedings, the applicants claimed compensation for loss of earnings and career prospects as a result of their detention (over five years before being placed in an open prison for a further two years). The Government contended that the Court’s judgment had been executed in the fullest manner possible by the new proceedings leading to their acquittal, and that in any event, it was open to the applicants to claim compensation within the domestic system. The Court accepted that evidence adduced at the first trial had not been available at the second trial and that it could not speculate as to what the outcome of the 1982 proceedings would have been had the violation of the Convention not occurred. It could not in any event assume a more favourable outcome. Nevertheless the applicants had suffered a real loss of opportunity to defend themselves in accordance with the requirements of Article 6 and thereby to secure a more favourable outcome. There was a clear causal connection between the damage claimed and the violation. The release and subsequent acquittal of the applicants could not in themselves afford restitutio in integrum or complete reparation for damage derived from the detention. Nor were the applicants required to complete a further set of 16

Barberà, Messegué and Jabardo v. Spain (Article 50), 13.7.1994, Series A no. 285-C.

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Just Satisfaction under the European Convention on Human Rights proceedings to obtain compensation at the national level, as the total duration of proceedings would then have been incompatible with effective protection of human rights. The Court, rejecting the method of calculation proposed by the applicant, made an award on an equitable basis. The conclusion that can be drawn from this case is that where it can be established that the procedural defect under Article 6 is such as to cause the applicant a real loss of opportunity, this may well constitute a sufficient causal connection to warrant the award of compensation for pecuniary damage. The same may apply in civil proceedings. Where the Court found in a German case that proceedings before the Federal Constitutional Court in relation to civil proceedings had exceeded a reasonable time in breach of Article 6, the applicant had suffered a loss of opportunities which warranted an award of just satisfaction in respect of pecuniary damage.17 Another conclusion that may be drawn from the Borberà case is that the reopening of proceedings at national level in the light of a finding of a violation of the Convention in Strasbourg is a highly appropriate response to the general problem of execution, which conforms with the subsidiary nature of the system, particularly where procedural errors or shortcomings cast doubt on the outcome of the domestic proceedings. This approach has since been reinforced by a Recommendation of the Committee of Ministers of the Council of Europe.18 8. Non-pecuniary Damage The nature of many of the claims for damage which come before the Court coupled with the lack of expertise in quantifying such damage has, as I have said, led the Court to award compensation primarily on an equitable basis. It has also resulted in a greater emphasis on non-pecuniary damage, which as the Court has observed ‘by reason of its very nature, . . . cannot always be the object of concrete proof’.19 Thus the tendency has been to take all damage under the head of non-pecuniary damage, where the quantification exercise is simpler and the requirement of causality, although still present, is less strict. 17

Probstmeier v. Germany, 1.7.1997, Reports 1997-IV. Recommendation No R (2000) 2 of the Committee of Ministers On the reexamination or reopening of certain cases at domestic level following judgments of the European Court of Human Rights (19.1.2000). 19 Abdulaziz, Cabales and Balkandali v. the United Kingdom, 28.5.1985, Series A no. 94, § 96. 18

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Luzius Wildhaber 8.1. Reasonable Time Breaches This has been particularly true of breaches of the reasonable time requirement under Article 6 § 1, which account for a sizeable proportion of the Court’s judgments on the merits (over 50 per cent in 2000 and 2001). Initially the Court considered that the finding of a violation constituted sufficient just satisfaction in such cases.20 Assuming that the applicants had suffered a degree of prejudice in the form of mental strain, adequate compensation was, in the Court’s view, furnished by the finding that the reasonable time was exceeded. In the case of Guincho v. Portugal, the Court awarded just satisfaction without specifying whether it was in respect of pecuniary or non-pecuniary damage. As the Court noted, not only did the delay in the proceedings reduce the effectiveness of the action brought, but it also placed the applicant in a state of uncertainty which still persisted at the time of judgment and in such a position that even a final decision in his favour would not be able to provide compensation for the lost interest.21 The Court increasingly came around to the idea that delayed proceedings will give rise to non-pecuniary damage, even where it is impossible to establish directly consequent pecuniary damage. In an Italian case, following a finding of a violation in respect of bankruptcy proceedings which had lasted eleven years, depriving the applicant of the possibility during that period to engage in commercial activity, the Court found that no consequential pecuniary damage had been established; on the other hand it awarded him ITL 50,000,000 for non-pecuniary damage.22 This trend has continued: On 28 March 2002, for example, the Court awarded compensation for nonpecuniary damage in no less than 36 different cases relating to the length of civil proceedings in Italy, the amounts ranging from EUR 3,000 to EUR 48,000. The proceedings in the case giving rise to the latter award had lasted 26 years and seven months, and were still pending at the time of judgment.23 I should add that the national proceedings in question concerned the right to a pension. Once again the Court could not perceive any link between the violation found and the alleged pecuniary loss; this must surely be right, as to find otherwise would have been to determine the substantive issue at the origin of the national proceedings, namely whether or not the applicant was 20

See for example, Zimmermann and Steiner v. Switzerland, 13.7.1983, Series no. 66, § 35. 21 Guincho v. Portugal, 10.7.1984, Series A no. 81, § 44. 22 Ceteroni v. Italy, 15.11.1996, Reports 1996-V. 23 Amici v. Italy, 28.3.2002, unreported.

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Just Satisfaction under the European Convention on Human Rights entitled to a pension. As I said earlier, it should never be forgotten that this is an international court, whose role is, in principle under the so-called fourth instance theory, not to retry the substantive issues that were before the national courts. The issue of just satisfaction cannot therefore be used to determine issues of merits, which were not before the Strasbourg Court. The problem of length of proceedings in Italy has been recognized as structural24 and this has no doubt influenced the Court’s policy as regards just satisfaction in the literally hundreds of cases with which it has had to deal. The award of compensation for non-pecuniary damage has become if not automatic, at least routine. Given the structural nature of the violation, there is a public policy aspect to such awards, as this is an area in which at least until recently, the execution process has failed to produce results in terms of general measures to eliminate the causes of the violation or to provide redress at national level. There is therefore an element of deterrence in relation to the State concerned in the Court’s policy here. 8.2. Particularly Serious Violations In Tomasi v. France,25 the Court found violations of Article 3 (inhuman and degrading treatment), Article 5 § 3 (length of pre-trial detention – the applicant was detained for over five years at the end of which it was found that he had no case to answer) and Article 6. The applicant had been awarded FRF 300,000 by the French Compensation Board in respect of his detention in an unreasoned decision. The Government argued that the Article 5 violation had been adequately compensated and the finding was in itself sufficient in respect of the other violations. The Court disagreed and awarded a substantial sum, FRF 700,000, to cover both pecuniary and nonpecuniary damage, assessed on an equitable basis. It made no attempt to analyze this amount, although the applicant had made claims under separate heads, including for loss of salary, merely noting that the applicant sustained undeniable pecuniary and non-pecuniary damage. The gravity of the violation found appears to play a role. Where the Court found a breach of the prohibition of torture in respect of Turkey, in making the full award of the compensation sought in respect of both pecuniary and non-pecuniary damage, it had regard for the extremely serious violations of the Convention suffered by the applicant and the anxiety and distress that these undoubtedly

24 25

Bottazzi v. Italy [GC), n. 34884/97, § 22, ECHR 1999-V. Tomasi v. France, 27.8.1992, Series A no. 241-A.

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Luzius Wildhaber caused to his father, who had continued with the application after his son’s death.26 In McCann v. the United Kingdom, on the other hand, the Court found a violation of Article 2 (right to life) following the killing of three IRA terrorists in Gibraltar by the British security forces. Having observed that it was not clear from the applicants’ submissions whether their claim for financial compensation was under the head of pecuniary or non-pecuniary damages, or both, the Court had regard for the fact that the three terrorist suspects who were killed had been intending to plant a bomb in Gibraltar. In those circumstances the Court did not consider it appropriate to make an award.27 Here the Court appears to express its moral disapproval of the conduct of the applicants’ deceased relatives. There is almost a suggestion of the French notion of ‘trouble à l’ordre public’, or the need to avoid public outrage. 8.3. Pure Non-pecuniary Damage As regards what one might call ‘pure’ non-pecuniary damage, the Court has awarded compensation for anxiety, stress, distress, frustration, sorrow, pain, and suffering. But here again, even when the Court accepts the existence of psychological stress and fear, it will not always conclude that compensation is required. In the case of Dudgeon v. the United Kingdom, for example, it found that the applicant should be regarded as having achieved his objective of securing a change in the law of Northern Ireland. Considering this and having regard for the nature of the breach found, the Court determined that the judgment finding a violation of Article 8, on account of the fact that homosexual acts between consenting adults were criminal offences in Northern Ireland, constituted adequate just satisfaction for the purposes of Article 50, without finding it ‘necessary’ to afford financial compensation.28 In contrast to the McCann case just mentioned, there were four cases involving the deaths of suspected terrorists where the Court found that the national authorities failed in their obligation to carry out a prompt and effective investigation into the circumstances of the death. The Court accepted that the applicants, relatives of the deceased, must have suffered feelings of frustration, distress and anxiety. It considered that the applicants 26

Aksoy v. Turkey, 18.12.1996, Reports 1996-VI, p. 2260, at p. 2291: TRL 4,283,450,000 . 27 McCann v. the United Kingdom, 27.8.1995, Series A no. 324, § 219. 28 Dudgeon v. the United Kingdom (Article 50), 24.2.1983, Series A. no. 59.

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Just Satisfaction under the European Convention on Human Rights sustained some non-pecuniary damage that was not sufficiently compensated by the finding of a violation of the Convention.29 In these cases the damage derived not from the death of the applicants’ relatives, but from the protracted nature and ineffectiveness of the investigation, and was therefore more directly linked to the applicants themselves and was unrelated to any motives that the authorities might have had for using lethal force against the deceased or tainted by the latter’s conduct. In a French case, the Court found a violation of the prohibition of torture under Article 3 of the Convention, having regard to the extreme seriousness of the violations of the Convention of which the applicant, a convicted drug trafficker, was a victim. The Court considered that he had suffered personal injury and non-pecuniary damage for which the findings of violations did not afford sufficient satisfaction. It made a substantial award on an equitable basis, taking into account the gravity of the violation.30 8.4. Article 5 – the Right to Liberty In relation to breaches of the procedural guarantees of the right to liberty protected by Article 5, and in particular, paragraphs 3 and 4 thereof, the Court has noted that just satisfaction could be awarded only in respect of damage resulting from a deprivation of liberty that the applicant would not have suffered if he or she had had the benefit of the guarantees in question. The Court has concluded, according to the circumstances, that the finding of a violation constituted sufficient just satisfaction in respect of any nonpecuniary damage suffered. In these cases the Court cannot speculate as to whether or not the applicant would have been detained if there had been no violation of the Convention.31 8.5. Child Care Cases In cases involving the taking of children into custodial care, the Court has been particularly sensitive to anxiety and stress caused by a breakdown in contact between parents and children.32 Thus it will award compensation notwithstanding the fact that it finds it impossible to assert that the relevant decisions would have been different if the violation of the Convention had 29

Jordan v. the United Kingdom, 4.5.2001, and three other judgments of the same day. 30 Selmouni v. France, 28.7.1999, ECHR 1999-V, p. 149, at p. 244: 500,000 FFR. 31 See for example Nikolova v. Bulgaria, 25.3.1999, ECHR 1999-II. 32 For example, Olsson v. Sweden, 24.3.1988, Series A no. 130.

14

Luzius Wildhaber not occurred. In Elsholz v. Germany, whilst it recognized that the applicant had been the victim of procedural defects, these had each been intimately related to the interference with one of the most fundamental rights, namely, that of respect for family life. It could not, in the Court’s opinion, be excluded that if the applicant had been more involved in the decision-making process, he might have obtained some degree of satisfaction, and this could have changed his future relationship with the child. In this respect he might therefore have suffered some real loss of opportunities warranting monetary compensation. In addition, the applicant certainly suffered non-pecuniary damage through anxiety and distress.33 8.6. Environmental Nuisance In a Spanish case, where the Court had found a violation of Article 8 on account of the nuisance caused by a waste-treatment plant, it considered that the applicant had undeniably sustained non-pecuniary damage. In addition to the nuisance caused by the gas fumes, noise and smells from the plant, she felt distress and anxiety as she saw the situation persisting and her daughter’s health deteriorating. However as the heads of damage accepted did not lend themselves to precise quantification, the Court made an award, as usual, on an equitable basis.34 8.7. Legal Persons Finally, on non-pecuniary damage, it should be noted that in the case of Comingersoll v. Portugal the Court accepted that legal persons could also suffer non-pecuniary damage,35 and therefore receive compensation awards under this head. It had previously found this to be the case for associations36 and political parties.37

33

Elsholz v. Germany, 13.7.2000, ECHR 2000-VIII. López Ostra v. Spain, 9.12.1994, Series A no. 303-C: ESP 4,000,000. 35 Comingersoll v. Portugal, 6.4.2000, ECHR 2000-IV. 36 Vereinigung demokratischer Soldaten Österreichs and Gubi v. Austria, 19.12.1994, Series A no. 302. 37 Freedom and Democracy Party (ÖZDEP) v. Turkey, 18.12.1999, ECHR 1999VIII. 34

15

Just Satisfaction under the European Convention on Human Rights 9. Costs and Expenses Coming to the question of costs and expenses, as with the other heads of claim, the Court has stressed that their reimbursement is discretionary and therefore is to be awarded only ‘if necessary’. The injured party is not entitled to his costs as of right.38 It is also clear that the Court does not consider itself bound by domestic scales and practices, although it may derive some assistance from them.39 On the other hand, it has found that, given the great differences in rates of fees from one Contracting State to another, a uniform approach to the assessment of fees does not seem appropriate.40 In particular the fees of British advocates are significantly higher than the majority of their continental counterparts and have led to reimbursement of substantial sums. Thus in a Greek case, where the applicants were represented by British counsel, the Court awarded GBP 125,000 in respect of costs and expenses.41 In this connection, the Court has observed that high costs of litigation may themselves constitute a serious impediment to the effective protection of human rights. It would, it noted, be wrong for the Court to give encouragement to such a situation in its decisions awarding costs. Applicants should not encounter undue financial difficulties in bringing complaints under the Convention and lawyers in Contracting States may be expected to co-operate to this end in the fixing of their fees.42 However, there has been little sign over the years that this call has been heeded and indeed the Court is also aware of the need to attract high quality advocacy to its proceedings, which in turn helps to produce high quality judgments. The test applied for the award of costs and expenses is that they be actually and necessarily incurred in order to prevent, or obtain redress for, the matter found to constitute a violation of the Convention, and that they be reasonable as to quantum.43 It follows that costs will not be recoverable in so far as no violation has been found and that therefore the award may be reduced if some of the applicant’s complaints have been held to be 38

Sunday Times v. the United Kingdom (no. 1) (Article 50), supra note 7, at § 15. König v. Germany, 10.3.1980, Series A no. 36. §§. 22-23 and 25. 40 Tolstoy Miloslavsky v. the United Kingdom, 13.7.1995, Series A no. 316-B, at § 77. 41 Stran Greek Refineries and Stratis Andreadis v. Greece, 9.12.1994, Series A. no. 301-B. 42 Young, James and Webster v. the United Kingdom (Article 50) 18.10.1982, § 15. 43 For example, Tolstoy Miloslavsky v. the United Kingdom, supra note 40. 39

16

Luzius Wildhaber unfounded.44 In addition, costs relating to the domestic proceedings may be reimbursed, but only in so far as they were incurred in order to prevent or obtain redress for the matter found to constitute a violation.45 Clearly the sort of problem that arises under this head is rather different from those deriving from compensation. Nevertheless the Court does not often analyze the claims in any detail, but again has recourse to an equitable assessment.46 10. Conclusion The difficulty in extracting clear principles in the Court’s approach to just satisfaction under the Convention is indicative of a dichotomy that runs throughout the Convention and much of the Convention case-law. This is the question to which I referred earlier, namely, as to whether the Convention system is primarily public policy based, or whether on the contrary, its main thrust is directed towards individual relief. It does seem to me that the Court’s treatment of the issue of just satisfaction, which has often been said to defy analysis, provides support for the former view. Compensation awarded to the individual applicant, which is in itself, if not an anomaly in relation to, at least a derogation from the subsidiary character of the overall system, has operated as a means of nuancing the finding of violation, with very serious violations being recognized by substantial awards, and purely technical ones or violations in respect of persons whose conduct is considered reprehensible giving rise to no award at all. Pecuniary damage is in effect limited by the strict causality rule to identifiable and quantifiable damage, other types of damage being taken under a global head or as nonpecuniary damage. The use of the technique of equitable assessment, dictated both by the character of the Convention system and practical constraints, again allows the Court to differentiate according to varying degrees of gravity of the violation as well as marking its disapproval of undeserving applicants. These are, broadly speaking, the marks of a public policy approach and the application of public order considerations. Let me conclude by saying that, even according to conservative estimates, we anticipate that the annual volume of incoming cases to the Strasbourg Court will exceed 20,000 within the next two years. In these circumstances, it is 44

Ibid., at § 78. See for example Philis v. Greece (no. 2), 27.6.1997, Reports 1997-IV. 46 See for example Van Mechelen and Others v. the Netherlands (Article 50), 30.10.1997, Reports 1997-VII, § 21. 45

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Just Satisfaction under the European Convention on Human Rights more than ever necessary to determine the true role of the Convention system, and it is hard to escape the conclusion that the Court must be allowed to concentrate on cases that make a difference to the general level of human rights protection in Europe. Individual relief, including appropriate compensation is, and must, remain primarily a matter for national courts.

18

Peremptory Norms and Reparation for Internationally Wrongful Acts Alexander Orakhelashvili*

Contents 1. 2. 3. 4.

Introduction The Concept and Relevance of Peremptory Norms The General Impact of Peremptory Norms on the Law of Reparations Impact of Jus Cogens on the Regime of Specific Remedies 4.1. Restitution as a Primary Remedy (1) The General Primacy of Restitution (2) Consequences of Invalidity of a Treaty in Conflict with Jus Cogens (3) Invalidity of Certain Acts, or Actions, of States (4) The Right of Displaced Persons to Return Home 4.2. Compensation 4.3. Satisfaction (1) General Impact of Jus Cogens on Satisfaction (2) Acknowledgment of a Breach (3) Material Compensation for Moral Injury (4) The Question of Punitive Damages (5) Individual Criminal Responsibility 5. Jus Cogens Limitations on the Duty to Provide Reparation 6. Conclusions 1. Introduction

Reparation for internationally wrongful acts is an undeniable element of general international law. As the Permanent Court of International Justice emphasized in the Chorzow Factory case, ‘it is a principle of international law that the breach of an engagement involves an obligation to make reparation in an adequate form’.1 In other words, the duty to make reparation is an inherent and self-evident consequence of any failure to comply with

*

LLM cum laude (Leiden); PhD Candidate, Jesus College, Cambridge, United Kingdom. 1 PCIJ Series A, 1928, No 17, p. 29.

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Alexander Orakhelashvili international engagement, and no additional agreement between the injured State and the wrongdoer State is required. The Permanent Court described the function of reparation in following terms: ‘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’.2 The principle of reparation has a universal character and extends to every international legal relationship. Its function is to repair all injuries caused by the wrongdoer State, whether moral or material. The injured State is entitled to obtain various forms of reparation either singly or in combination according to the nature and extent of injury. According to the Permanent Court, reparation should cover ‘restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it’.3 The Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility or ILC Articles) of the UN International Law Commission (ILC) adopted in 2001 confirm that ‘[t]he responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’. It is further specified that ‘[i]njury includes any damage, whether material or moral, caused by the internationally wrongful act of a State’. The ILC’s Articles further specify that reparation should be provided in the form of ‘restitution, compensation and satisfaction, either singly or in combination’.4 As soon as the traditional bilateral framework of law-enforcement is concerned, the duty of the author State to provide reparation exists only towards the directly injured State, similarly to substantive, or primary, obligations that operate on the basis the bilateral framework. However, there may be cases where the relevance of the problem transcends the limits of bilateral relations between the wrongdoer and injured States. The factor causing such alteration in the legal framework is the effect of peremptory norms of general international law (jus cogens). Such norms impose on States obligations towards the international community as a whole, and not towards the individual States. Consequently, the duty to make reparation to a directly injured State or other victims is similarly owed by the author State 2

Ibid., p. 47. Ibid. 4 Articles on State Responsibility, Article 31 (Reparation), in ILC Report 2001, p. 51. 3

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Peremptory Norms and Reparation for Internationally Wrongful Acts not to the injured State(s) individually, but to the international community as a whole. This transformation of the normal regime of reparations in cases involving community interest protected by peremptory norms is the focus of the present contribution. It is intended to deal with general impact of jus cogens on the regime of reparations, and afterwards with the same phenomenon at the example of specific forms of reparation: restitution, compensation and satisfaction. At the end, the relevance of jus cogens as a limitation on the duty to make reparation will be examined. Due to the content of international jus cogens, the present contribution will primarily (but not exclusively) focus upon the responsibility of States for violation of human rights and humanitarian norms. The literature on the subject is not rich. There have been some contributions in terms of reparation for victims of grave human rights violations,5 but there is hardly, at least to this author’s knowledge, any academic contribution focusing upon the problem from the perspective of jus cogens specifically. Bearing this in mind, the present contribution would have a difficult task of outlining the governing legal framework; it cannot realistically pretend to do so comprehensively and examine all aspects, or examples and precedents, of the problem;6 it would be an attempt to state certain issues while resolve others bearing in mind the overall effect of peremptory norms. 2. The Concept and Relevance of Peremptory Norms Peremptory norms exist to protect substantive values and interests that are fundamentally important to the international community as a whole. Both practice and doctrine would suggest that norms possess peremptory nature because of the basic community values they protect.7 Certain interests and values, such as some fundamental rights of States and their inherent dignity, as well as fundamental interests of some non-State actors are considered so 5

A. Randelzhofer & C. Tomuschat (eds.), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights, The Hague, Martinus Nijhof, 1999; D. Shelton, Remedies in International Human Rights Law, Oxford, OUP, 1999. 6 In particular, it is preferred not to deal here with the issue of ‘international crimes of States’ or any of its cognate concepts, and their impact on the duty of States on reparation. 7 Furundzija (Trial Chamber, ICTY), (1999) 38 International Legal Materials (ILM), p. 349; J. Frowein, ‘Jus Cogens’, in Encyclopedia of Public International Law, volume 7, p. 329.

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Alexander Orakhelashvili fundamental from the viewpoint of the community interest that they ought to receive a heightened degree of legal protection. This phenomenon is not least due to the concerns of morality involved in a specific legal interest. Such link between the morality and jus cogens is widely recognized. According to Special Rapporteurs Lauterpacht and Fitzmaurice, peremptory norms are expressive of the rules of cogent international morality.8 In literature, it is also accepted that public policy is not determinable by mere reference to norms of positive law, but refers also to the prevailing social and moral attitudes of the community.9 McNair seems to refer in terms of jus cogens to ‘some rules of law or some principles of morality which individuals are not permitted by law to ignore or to modify by their agreements’.10 This seems to be a reference to positive law and morality as two separate but mutually supportive concepts ensuring operability of jus cogens. As Cassese submits, even if the content of jus cogens may be unclear on the occasions, it may have effect due to its moral and psychological weight, and invalidate conflicting acts and transactions merely on the ground of their immorality.11 Lauterpacht also links public order to morality, and states that States cannot lay down obligations contrary to morality, e.g. in support of a unprovoked military attack.12 It is taken for axiomatic that ‘the law must decline to be an instrument of immorality’.13 At the same time, the mere immorality is not sufficient, ‘it must be such as to render its enforcement contrary to public policy and to socially imperative dictates of justice’.14 According to Judge Schücking in Oscar Chinn, tribunals would never apply a legal instrument the terms of which are contrary to public morality.15 Needless to say, the reference to morality here is to some minimum requirements of universal morality making certain acts and transactions unacceptable in the eyes of all. Viewed from this perspective, jus cogens comprises norms prohibiting the use of force in international relations, as well as norms protecting certain fundamental interests of non-State actors, 8

(1953-II) Yearbook of the International Law Commission (YbILC), p. 155; (1958II) YbILC, p. 41. 9 W. Levi, ‘The International Ordre Public’, (1994) 62 Revue de Droit International, p. 56. 10 A. McNair, The Law of Treaties, Oxford, OUP, 1961, p. 213. 11 A. Cassese, Self-Determination of Peoples, Cambridge, CUP, 1994, p. 174. 12 H. Lauterpacht, Collected Papers, volume I, Cambridge, CUP, 1970, p. 234. 13 Ibid., p. 357. 14 Ibid., p. 358. 15 PCIJ Series A/B, N.o. 63, p. 150.

22

Peremptory Norms and Reparation for Internationally Wrongful Acts such as the right to self-determination, basic human rights and norms of humanitarian law.16 Specific rules are peremptory because their violation leads to an especially immoral result. Certain acts, like prohibitions of torture or genocide, are universally and absolutely outlawed because their commission leads to a clearly immoral result that shocks the conscience of mankind.17 This is no doubt true for all other serious violations of human rights and humanitarian norms, the latter being particularly linked by their essence to the laws of humanity and dictates of public conscience.18 Since peremptory norms safeguard the interests of the international community as a whole, as opposed to the interests of individual States, they possess the absolute validity in difference to the relative validity of ordinary, or non-peremptory, norms of international law.19 In other words, jus cogens is an inherent attribute of certain norms which safeguard the public interest, and envisages the special effect of these norms, as exemplified by their nonderogability.20 Their rationale consists in invalidating or prevailing over incompatible acts and transactions of States in order to ensure the paramount superiority of fundamental community values and interests.21 Consequently, the purpose of jus cogens is to avoid fragmentation of certain international legal relationships safeguarding the community interest.22 The only provisions of positive law recognising the relevance and legal effects of jus cogens are Articles 53 and 64 of the 1969 Vienna Convention on the Law of Treaties, which refer to jus cogens and its effect in

16

I. Brownlie, Principles of Public International Law, Oxford, OUP, 1998, p. 515. Filartiga, 77 (Lauterpacht and Greenwood, eds.) International Law Reports (ILR), p. 169; Reservations to the Genocide Convention, ICJ Reports, 1951, p. 22. 18 About this link, see the Martens Clause, which has an unconditional and absolute validity comparable to jus cogens; see, in particular, the preambles of humanitarian instruments, such as the IV Hague Convention; see also, L. Green, The Contemporary Law of Armed Conflict, Manchester, Manchester University Press, 1993, pp. 16, 32; and see, D. Fleck, The Handbook of Humanitarian Law in Armed Conflicts, Oxford, OUP, 1995, pp. 28−29. 19 A. Verdross, ‘Jus Dispositivum and Jus Cogens in International Law’, (1966) 60 American Journal of International Law (AJIL), p. 58. 20 R. Kolb, Theorie du ius cogens international, Paris, Presses universitaires de France, 2001, pp. 172−173. 21 G. Jaenicke, ‘Zur Frage des Internationalen Ordre Public’, in Berichte des Deutschen Gesellschaft für Völkerrecht, volume 7, Karlsruhe, Verlag G.F. Müller, 1967, pp. 85−87. 22 Kolb, supra note 20, p. 96. 17

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Alexander Orakhelashvili invalidation and termination of treaties conflicting with it.23 But the absence of a similar authority as to the effect of jus cogens with regard to the acts and rules other than treaties does not mean that the relevance of jus cogens is limited only to the validity and termination of treaties. The relevance of jus cogens outside the law of treaties is continuously supported in doctrine, affirming that the invalidating capacity of jus cogens extends also to the actual acts and transactions of States offending against it.24 As Judge Lauterpacht emphasised, ‘the concept of jus cogens operates as a concept superior both to customary international law and treaty’.25 Practice also extends the operation of jus cogens beyond the law of treaties, especially to the areas such as extradition,26 unilateral acts,27 State responsibility,28 and amnesties.29 Therefore, ‘the criticism of any attempt to extend jus cogens beyond the confines of the law of treaties is firmly premised on an outmoded perception of international public order’.30 The function of jus cogens is not declaratory, but operative. In other words, this function consists not in a substantive outlawing or condemnation of a given conduct, but in determining what legal consequences shall operate in case of breach of certain fundamental norms, and supporting the peremptory nature of these consequences themselves. It may be contended that substance and enforcement of jus cogens are different things, and while peremptory norms are accepted in international law and bind States, they do 23

According to Article 53 of the Vienna Convention, ‘[a] treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law’. According to Article 64 of the same Convention, ‘[i]f a new peremptory norm of general international law emerges, any existing treaty which is in conflict with that norm becomes void and terminates’. 24 E. Suy, ‘The Concept of Jus Cogens in International Law’, in Lagonissi Conference: Papers and Proceedings, volume II, Geneva, Carnegie Endowment for International Peace, 1967, p. 75; Theodor Meron, Human Rights Law-Making in the United Nations, Oxford, OUP, 1986, p. 190. 25 Case concerning Application of the Genocide Convention, ICJ Reports, 1993, p. 440 (Separate Opinion). 26 Yearbook of the Institute of International Law, (1981) 59, Part I p. 150; see also, Vol.60, Part II, 1983, p. 234. 27 Fifth Report on Unilateral Acts by Special Rapporteur Rodriguez-Cedeno, UN Doc. A/CN.4/525/Add.1, pp. 6−10. 28 Articles on State Responsibility, ILC Report 2001, pp. 206−209, 277−292. 29 Furundzija (ICTY, Trial Chamber), 10 December 1998, IT-95-17/I-T, paras. 155−156. 30 J. Dugard, Recognition and the United Nations, Cambridge, CUP, 1987, p. 142.

24

Peremptory Norms and Reparation for Internationally Wrongful Acts not possess superior force with regard to their effect and enforcement.31 But such restrictive view of jus cogens questions its general rationale. It is not clear what is the function of differentiation in substantive nature of certain norms if this has no consequential effect, and why should a norm be specific in nature because of embodying community interest and yet be unable to produce specific consequences to safeguard the integrity of that community interest. There is sufficient evidence that such inherent distinction between substance and enforcement is not well founded. To illustrate, Articles 53 and 64 of the 1969 Vienna Convention are framed not in terms of substantive prohibition not to conclude agreements conflicting with jus cogens, but in effect-oriented terms, and focus upon the legal consequences in situations where such agreements are concluded. Beyond the law of treaties, the enforcement-oriented nature of jus cogens is also clear. In the Genocide Opinion, the International Court of Justice (ICJ) emphasised that the universal prohibition of genocide entailed the equally universal nature of the duty of cooperation in suppressing genocide, as exemplified by the duty of extradition and prosecution of persons accused of genocide.32 The principle of non-recognition of acts offending against jus cogens also relates not to the substantive nature of jus cogens, but to the area of its effect and enforcement.33 The prevailing view in the doctrine would also reject a categorical difference of substance and enforcement in case of jus cogens. It is clear that jus cogens rules ‘are only recognizable by their effects’.34 Therefore, ‘jus cogens as a higher-ranking group of legal rules comes into play only when the validity of a treaty is to be evaluated or when it has to be determined whether, by other means, a legal position can be created or maintained that is 31

As contended by Judge ad hoc Kreca in the Bosnia case, the legal nature of a norm and its enforcement are different things. See ICJ Reports, 1996, p. 658 (Dissenting Opinion). Judge Kreca opposed the International Court’s findings on the impact of the nature of a rule on its jurisdiction. But the Court itself held that the nature of a rule may influence existence of its jurisdiction in a specific case. See ICJ Reports, 1996, p. 116. 32 See, supra note 17, 23−24. As Rosenne submitted, the Opinion established a jus cogens duty of States to cooperate in the suppression of genocide. See YbILC, 1963I, p. 74. 33 About the principle of non-recognition, see Dugard, supra note 30, p. 137ff. 34 A. Pellet, ‘The Normative Dilemma: Will and Consent in International LawMaking’, (1990) 12 Australian Yearbook of International Law (Australian Yrbk.IL), p. 38.

25

Alexander Orakhelashvili incompatible with such peremptory rules’.35 When a principle in question is peremptory, it would be artificial to attribute different legal force to various rules and principles specifying, elaborating and implementing it. ‘The whole cluster of legal standards’ emanating from a peremptory norm and supporting its enforcement must be regarded peremptory as well.36 3. The General Impact of Peremptory Norms on the Law of Reparations The relevance of peremptory norms in relation to reparations follows from their general nature, namely from the fact that they are norms from which no derogation is permitted and which need to have absolute validity in order to meet their purpose. Such relevance of jus cogens influences the very concept of illegality in international law. Normally, in traditional bilateral contexts, illegality may be relative or conditional, and even may be excluded as a consequence of bilateral relations determined by estoppel or acquiescence.37 But for the rules and obligations involving the community interest such a model is no longer appropriate, because their breach shall be considered as illegal in objective sense. According to Rozakis, ‘objective illegality means the objective recognition of an illegality, as such, which can, therefore, be invoked with a view of its extinction by all members of the international community regardless of whether there is a particular damage sustained by the invoking States’.38 It seems to us that the following elements are deducible from the concept of objective illegality: (a) an act offending against peremptory norms is objectively illegal, independently of the attitudes of States; (b) illegality may be objectively invoked, independently of the attitudes of a directly injured State; (c) illegality must be objectively eliminated, and may not be cured through the expression of the attitudes of States. The absence of any of the abovementioned elements from the concept of objective illegality would negate its qualitative difference from the subjective illegality, since individual States would be left with the choice to prevent, through one means or another, the enforcement of a given peremptory norm through treating any of the aspects of illegality as subjective. This would cause the fragmentation of international public order, the avoidance of which is the purpose of jus cogens. Needless to emphasise, 35

C. Tomuschat, ‘Obligations Arising for States without or against Their Will’ (1993) 241 Recueil des Cours (Rdc), p. 276. 36 A. Cassese, Self-Determination of Peoples, Cambridge, CUP, 1994, p. 140. 37 Brownlie, supra note 16, pp. 511−512. 38 C. Rozakis, The Concept of Jus Cogens in the Law of Treaties, Amsterdam and New York, North-Holland Pub. Co., 1976, p. 24.

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Peremptory Norms and Reparation for Internationally Wrongful Acts the concept of objective illegality follows from the need to protect the community interest embodied in peremptory norms and ensure that such interest is safeguarded in an integral way. Therefore, in cases of breach of jus cogens the duty to make reparation has to be enforced objectively. Such objective performance is not the same as awarding reparations within a treaty-based institutional machinery. Such institutional machineries often fail to offer adequate compensation to the victims of human rights violations. For instance, in the McCann case, the European Court of Human Rights declined to award damages for unlawful killing contrary to Article 2 (right to life) of the European Convention on Human Rights,39 even though the Chorzhow Factory principle would require the Court to award compensation. Even where remedies are awarded by tribunals, they are not necessarily adequate. In Ogur, the same Court awarded remedies clearly inappropriate in terms of a violent loss of life (100,000 FFR to be converted in TRL), which prompted a following comment by Judge Bonello: ‘In this case, a State which had solemnly undertaken to cherish the right to life, has wantonly plucked and tossed away the being of a young man, paying the price of a small car – almost an entertainment tax on homicide. In the Strasbourg market it seems that life comes cheap, and killing is a tremendous bargain.’40

Therefore, the objective performance of the duty to make reparation means the measures taken to objectively satisfy the requirements of substantive peremptory norms and the duty of reparation they entail. The peremptory nature of a norm may produce certain effects in a given legal relationship, which would be absent in case of jus dispositivum. The nature of a norm which gives rise to an obligation is important in determining which remedies are due and to what extent do relevant actors enjoy discretion in deciding on remedies, and how imperative is the requirement to award a particular remedy. A starting-point is a general principle of international law that every breach of an international obligation gives rise to the duty to make reparation. If peremptory norms are nonderogable, the consequences thereof in terms of reparation must also be viewed as non-derogable. It thus lies beyond the power of directly interested States to determine whether and to what extent the reparation is due to the victims of breaches of jus cogens. 39

McCann and Others v. the United Kingdom, ECtHR., 18984/91, 27 September 1995. 40 Ogur v. Turkey, ECtHR, 21594/93, 20 May 1999.

27

Alexander Orakhelashvili A suggestion that although certain norms are peremptory and thus nonderogable, the remedies for breaches may nevertheless be treated by States as non-peremptory and derogable, would in fact make the primary substantive jus cogens norms derogable. If States may by mutual agreement ignore consequences of a breach, this means that they may in fact derogate from a peremptory norm by breaching it and not enforcing the respective consequences. Such an outcome is conceptually incompatible with the very concept of jus cogens. The entire regime of reparations in international law, as perhaps the entire law of State responsibility, is based on jus dispositivum, which means that it is up to the directly injured States whether and in which form the duty to make reparation is performed. But in the case of peremptory norms, this regime is overtaken by the operation of jus cogens. This is understandable since jus dispositivum is anyway derogable in all its aspects, while jus cogens is not. The law of State responsibility is in line with such an approach. As early as 1985, the International Law Commission emphasised that although the rules on State responsibility may be replaced by a lex specialis and States may adopt different legal consequences, as between them, of the internationally wrongful act concerned, they cannot ‘provide for legal consequences of a breach of their mutual obligations which would authorise acts contrary to peremptory norms of general international law’.41 At the final stage of the ILC’s work on State responsibility, this position has remained unchanged. The Commission emphasised in the commentary to the Articles that although the general regime of State responsibility may be replaced by lex specialis, States cannot, even as between themselves, provide for legal consequences authorizing acts against jus cogens.42 This approach is well founded as a general principle and also, as we shall see in due course, by the regime of specific remedies or forms of reparation. As the ILC’s Special Rapporteur Crawford emphasised, ‘[a] State whose right has been breached is entitled to protest, to insist on restitution or (even where restitution may be possible) to decide that it would prefer compensation. It may insist on the vindication of its right or decide in the circumstances to overlook

41

Commentary to Article 37 of the ILC’s draft, para. 2, YbILC 1985, volume II, Part 1, pp. 4−5. 42 Articles on State Responsibility, Article 55 (Lex specialis) and Commentary, in Report of the ILC (2001), p. 357.

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Peremptory Norms and Reparation for Internationally Wrongful Acts it and waive the breach. But the position where the obligation is a multilateral one may well be different.’43

Indeed, in the context of peremptory norms operating in the interest of the international community, and requiring, by their very nature, the objective performance, the question must not be how States (whether or not directly injured) consider the problem of reparations can be resolved adequately, but what the content and nature of a violated peremptory norm demands to be done in order to ensure the proper vindication and continued operability of that norm. Our approach seems to be supported by the rules governing invocation of wrongfulness by States. In a bilateral context, reparation can normally be claimed by the State whose individual rights and interests are encroached upon: either for its own injury or on behalf of its nationals. It is beyond doubt, however, that the above mentioned requirement is not relevant when the obligation breached is a fundamental international obligation protected by peremptory norms. Insofar jus cogens embodies the interests of the international community as a whole, the non-compliance with obligations established by those norms shall give rise to legal interest on behalf of the international community and therefore, all States shall have legal interest in protection and enforcement of these obligations.44 It is inherent to the notion of jus cogens that its violation shall have erga omnes effects and be invocable by every State regardless of having suffered individual injury.45 The objective nature of the duty to make reparation for the breach of jus cogens refers inter alia to the objective circumstances underlying an actual situation of a given breach. In case of breach of norms protecting the community interest, reparation shall be consistent with the nature of the wrong.46 Van Boven and Bassiouni, in their capacity as UN Special Rapporteurs, have affirmed that it is a paramount consideration that

43

J. Crawford, Third Report on State Responsibility, A/CN.4/507, 44. J. Frowein, ‘Reactions by Not Directly Affected States on Violations of Public International Law’, (1994) 248 Recueil des cours, p. 405. 45 Barcelona Traction, ICJ Reports, 1970, p. 34; G. Gaja, ‘Ius Cogens, Obligations Erga Omnes and International Crimes: A Tentative Analysis of Three Related Concepts’, in J. Weiler, A. Cassese and M. Spinedi (eds.), International Crimes of State: A Critical Analysis of Article 19 of the ILC’s Draft Articles on State Responsibility, Berlin, Walter de Gruyter Verlag, 1989, p. 159; B. Simma, ‘Injury and Countermeasures’, ibid., p. 299 et seq. 46 A. Cassese, International Law, Oxford, OUP, 2001, p. 203. 44

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Alexander Orakhelashvili reparation should conform to the needs of victim,47 and be proportionate to the gravity of the violations and the harm suffered.48 As the Inter-American Court of Human Rights stated in Aloeboetoe, reparation must reflect the nature of the right violated.49 Such conformity of reparations with the damage caused is by itself the concern of the international community as a whole. Furthermore, the objective assessment of injury in case of breaches of peremptory norms may perhaps even take priority over the right of an injured party to elect among remedies, and the amount of the award.50 In Suarez-Rosero, the Inter-American Court, based on the extent of moral suffering caused to the victim and his family, decided to award compensation for moral damages in an amount substantially more than requested by the applicant.51 As emphasised above, the vast majority of situations dealing with reparation for violations of jus cogens deal with the rights of human beings. This is only natural, because most of the cases of jus cogens are ‘cases where the position of the individual is involved, and where the rules contravened are rules instituted for the protection of the individual’.52 In this context, Professor Tomuschat has objected that international law knows no duty of States to make reparation for internationally wrongful acts committed not against other States, but against their own citizens. Tomuschat speaks about the traditional legal edifice of settling war claims in terms of inter-State relations.53 This approach seems to be too formalistic. As reparation is an 47

T. van Boven, Study concerning the right to restitution, compensation and rehabilitation for victims of gross violations of human rights and fundamental freedoms, E/CN.4/Sub.2/1993/8, 2 July 1993, para. 137. 48 Ibid., p. 57; van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law, E/CN.4/Sub.2/1996/17, para. 7; M. Bassiouni, Final Report on the right to restitution, compensation and rehabilitation for victims of gross human rights violations, E/CN.4/2000, 62, 9 (para. 15). 49 Aloeboetoe, 116 ILR, 275; see also Castillo Paez, 116 ILR, 499. 50 For the contrary view, see J. Crawford, Third Report, A/CN.4/507/Add.2, 11, referring to Rainbow Warrior. Also in Corfu Channel, the International Court refused to award more than claimed, ICJ Reports, 1949, 224. 51 Suarez-Rosero, 118 ILR, 110−111. 52 Sir Gerald Fitzmaurice, Third Report on the Law of Treaties (1958-II) YbILC, p. 40. 53 C. Tomuschat, ‘Individual Reparation Claims in Instances of Grave Human Rights Violations’, supra note 5, p. 7. Tomuschat also refers to the non-subordination of States to each other and their sovereign immunity as an obstacle for awarding reparations to individuals, ibid., 14. For similar approach and a rather unfounded

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Peremptory Norms and Reparation for Internationally Wrongful Acts automatic consequence of an internationally wrongful act, and the need to award it does not have to be supported by practice, then it can be assumed, even in absence of sufficient practical evidence, that States owe the duty to provide reparations when their actions injure non-State actors. The Chorzhow principle contains not even a slightest indication that the duty to make reparation no longer operates when a wrongful act is committed towards individuals. Indeed, the Permanent Court spoke about the breach of ‘every international engagement’.54 This approach seems to be supported by the ILC Articles on State Responsibility. This is clear from adopted Articles 35 to 37, which, unlike their counterparts in the draft articles on State responsibility adopted in 1996, do not state that the injured State may demand remedies like restitution, compensation or satisfaction, but purely and simply emphasise the that the wrongdoer State is under obligation to provide such remedies, without specifying the addressee of the remedies. Thus, these provisions do at least potentially cover individuals and their groups, and are in accordance with general international law. Furthermore, according to Article 48, ‘[a]ny State other than an injured State is entitled to invoke the responsibility of another State’ if ‘[t]he obligation breached is owed to the international community as a whole,’ and claim ‘[p]erformance of the obligation of reparation … in the interest of the injured State or of the beneficiaries of the obligation breached’.55 Therefore, there is a duty to make reparation to the injured non-State actors, and it is invocable by all States, whether or not directly injured by a given breach. The rationale of reparations in cases involving the rights of individuals can be formulated as follows. International law protects human rights and allocates the legal interest in this field to the international community as a criticism of the reparations practice of national and international courts, such as the Inter-American Court, see C. Tomuschat, ‘Reparation for Victims of Grave Human Rights Violations’ (2002) 10 Tulane Journal of International and Comparative Law, at p. 157, p.p. 166, 168 and 173. The practice of the Inter-American Court is duly dealt with below in the appropriate places. 54 As Professor Rolin has emphasised about the principle embodied in Chorzhow Factory: ‘Ce principe ne gouverne pas seulement la responsabilité interétatique, il s’entend egalement lorsque la responsabilité internationale d’un Etat est engagée directement ou indirectement a l’egard d’un individu.’ See H. Rolin, ‘La rôle du requérant dans la procédure prévue par la Commission Européenne des Droits de l’Homme’ (1956) 9 Revue Hellénique de Droit International, p. 6. 55 Articles on State Responsibility, Article 48 (Invocation of responsibility by a State other than an injured State), in ILC Report 2001, p. 56 (emphasis added).

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Alexander Orakhelashvili whole. Since the avoidance of undue suffering by a human being is among the basic values and legal interests of the international community, it is the reversal of these individual cases of human suffering which also forms part of the interest of the international community. Implementation of remedies goes thus far beyond the bilateral relationships between the victims and wrongdoer States, and acquires an important community dimension. If jus cogens protects the rights of an individual in the interests of the international community as a whole, it is hardly justified to regard that the enforcement of these rights, inter alia, by way of reparations in case of breach, should be dependent upon the respective will of national States of victims or other States. Individuals’ entitlement to reparation, which is independent from possible or actual claims by a State, is therefore a natural continuation of the peremptory nature of basic human rights. The ways international law foresees the exercise of individual standing in terms of claiming reparation is to bring suits within national legal systems or within international treaty mechanisms.56 Having overviewed the general impact of jus cogens on the law of reparations, it remains to examine the specific impact of jus cogens on particular kinds of remedies. The following analysis will demonstrate that along with the general concept of jus cogens, the context of operation of specific peremptory norms can also impact on the regime of specific remedies. 4. Impact of Jus Cogens on the Regime of Specific Remedies 4.1. Restitution as a Primary Remedy (1) The General Primacy of Restitution The ILC Articles on State Responsibility emphasise that: ‘A State responsible for an internationally wrongful act is under an obligation to make restitution, that is, to re-establish the situation which existed before the wrongful act was committed, provided and to the extent that restitution: (a) Is not materially impossible; (b) Does not involve a burden out of all proportion to the benefit deriving from restitution instead of compensation.’ 56

This is not to equate individuals’ position in this field with international legal personality. About the position of individual in international law, see A. Orakhelashvili, ‘The Position of the Individual in International Law’ (2001) 31 California Western International Law Journal, No. 2, pp. 241−276.

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Peremptory Norms and Reparation for Internationally Wrongful Acts Restitution is a remedy with retrospective effects. It is directed at the elimination of factual situations existing after commission of an internationally wrongful act. But sometimes in theory such a role of restitution is sceptically assessed. Brownlie states that restitution is exceptional in practice and it is difficult to state conditions of its application with any certainty.57 It is even suggested that restitution cannot be applied unless a specific provision is provided for in a compromise between the disputing parties,58 and the rarity of award of restitution dictates that it is not a primary remedy.59 Judicial practice concerning restitution as a remedy is not uniform indeed. The starting-point in this regard is Chorzhow Factory, in which the PCIJ stated that ‘restitution in kind or, if this is not possible, payment of a sum corresponding to the value which a restitution in kind would bear’ is a proper material consequence of internationally wrongful act.60 The PCIJ thus affirmed the primacy of restitution notwithstanding the fact that in that concrete case restitution was not awarded. The ICJ took the same position in Preah Vihear where it ordered Thailand to withdraw from the occupied Cambodian territory.61 Arbitral practice is not totally clear, but hardly supports any view that restitution cannot be applied as a remedy when a party so requests.62 Thus, judicial and arbitral practice does not reject 57

I. Brownlie, The System of the Law of Nations. State Responsibility, Oxford, OUP, 1983, pp. 211, 222; see also supra note 36, p. 464; C. Gray, Judicial Remedies in International Law, Oxford, OUP, 1990, p. 13ff., 95ff. 58 Gray, ibid., p. 16. 59 C. Gray, ‘The Choice between Restitution and Compensation’ (1999) 10 European Journal of International Law, No. 2, p. 411 et seq. 60 PCIJ Ser. A. no. 13, p. 47. 61 ICJ Reports, 1962, p. 6; see also Tehran Hostages, ICJ Reports, 1980. 62 Reference is made to cases such as Rhodophe Forests, Walter Fletcher Smith, Savarkar and Casablanca, see Gray, supra note 57, p. 15. But none of them rule out restitution. In Rhodophe Forests the arbitrator refused to award restitution because of the material impossibility of this remedy. The Tribunal did not rule out restitution as such, but indicated that it was impossible to restore confiscated forests to their condition before confiscation, RIAA, volume III, p. 1432. Walter Fletcher Smith might be invoked as an evidence of a somewhat liberal approach towards restitution. The Arbitrator awarded pecuniary compensation though he held that ‘it would not be inapropriate that, according to law, the property should be restored to the claimant’, Walter Fletcher Smith Claim, RIAA, volume II, p. 918. According to the ILC, the Tribunal took into account the internal situation of the defendant State in deciding the appropriateness of certain remedies. ILC Report (1993), A/48/10, p. 149. The ILC treated Walter Fletcher Smith as a case supporting primacy of restitution over

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Alexander Orakhelashvili restitution as a remedy in its own right, and nothing evidences that this remedy is exceptional rather than regular. Restitution is also a remedy widely used by treaty-based organs. It has been awarded by the European Court of Human Rights under Article 41 of the European Convention on Human Rights (just satisfaction),63 and the Inter-American Court has held that restitution is expressly mandated under Article 63(1) of the American Convention on Human Rights, dealing with the remedial competence of that Court.64 Importance of restitution as a remedy increases in cases of violation of fundamental international obligations protecting the community interest, the preservation of which all States have the legal interest. If under some circumstances restitution can be replaced by compensation in case of ordinary wrong (this consideration partly explains frequent application of compensation in judicial and diplomatic practice), no such approach can be tolerated in case of violations of peremptory norms. When a wrongful act affects the interests of the whole international community, reestablishment to the pre-breach situation goes beyond the interests of a directly injured State. Therefore, that State may not in such cases unilaterally refuse restitution. The nature of peremptory norms does not permit rejection of restitution. Aggression, genocide and massive violations of human rights by their very nature necessitate application of restitution. Monetary compensation could compensation, ibid., p. 153. It should also be kept in mind that the US, in taking up the matter of Smith, did not use its right to insist on restitution as a sole remedy but considered it only as one of options of settlement, RIAA, volume II, p. 916. Nothing in the submissions made by the US supports the idea that the it ruled out restitution. The US simply granted discretion to the Arbitrator to make choice between various remedies. From the reasoning of the Arbitrator it is clear that what he did was the exercise of that discretion, ibid., p. 918. Two other cases supply clearer evidence that restitution as a remedy cannot be ruled out. In Casablanca, the Tribunal condemned the non-respect of the German consular authority by French military officials in arresting deserters who were under the custody of German consul. But the Tribunal did not declare that the France’s conduct in holding deserters was unlawful, Affaire de Casablanca, RIAA, volume XI, p. 126. Consequently, the restitution could not be ordered because of the absence of wrongfulness. Savarkar follows the same reasoning. The Tribunal refused the restitution with regard to the Indian revolutionary, Savarkar, from Britain to France, because Britain obtained control over Savarkar not by violation of the French jurisdiction but as a consequence of error on the side of French authorities, Case of Savarkar, RIAA, volume XI, pp. 253−254. 63 Papamichalopoulos, ECtHR Series A-330B, p. 64. 64 Aloeboetoe, 116 ILR, pp. 275−276.

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Peremptory Norms and Reparation for Internationally Wrongful Acts only be subsidiary remedy in such cases, as Chorzow Factory suggests. And as a matter of fact, there is not a single judicial precedent denying restitution due to some exceptions or external circumstances in situations where a violation of jus cogens is involved. Toleration of automatic replacement of restitution by compensation in cases of violation of peremptory norms would defeat the object of those norms and jeopardize their very existence. As the Special Rapporteur Crawford noted, in certain cases the injured State is not entitled to waive restitution and prefer compensation, such as in case of forcible invasion and annexation of a State’s territory and illegal detention of persons.65 The Special Rapporteur Arangio-Ruiz also suggested that in cases of imperative rules, restitution cannot be renounced and in such situations the only justifiable solution would be to place on States a duty to provide full restitution in kind.66 As the ILC noted, in such cases the vital interests of the international community as such are at stake.67 In the same spirit, Professor Graefrath considers that while in case of ordinary delicts the parties are free to determine the contents of the duty to reparation, in case of a breach of jus cogens, legal restitution is a necessary part of the duty of reparation that cannot be disclaimed.68 In the specific context of human rights and humanitarian law, the primacy of restitution is more than clear. As the Special Rapporteur van Boven submits, restitution shall be performed in cases of serious and massive human rights violations, in order to ensure restoration of liberty, residence, citizenship, employment or property of victims, and is the best, suitable remedy for human rights and humanitarian law violations.69 The Special Rapporteur Bassiouni affirmed the same view.70 The Special Rapporteur on impunity of perpetrators of human rights violations affirmed

65

Crawford, Third Report, A/CN.4/507/Add.1, 5. G. Arangio-Ruiz, Preliminary Report on State Responsibility (1988-II(1)) YbILC, p. 37. 67 ILC Report 2000, pp. 56−58. 68 Graefrath, in Weiler, Cassese & Spinedi (ed.), supra note 45, p. 165. 69 Van Boven, supra note 47, p. 57; van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law, E/CN.4/Sub.2/1996/17, para. 6; R. Paolilo, ‘On Unfulfilled Duties: The Obligation to Make Reparation in Cases of Violation of Human Rights’, in V. Götz, P. Selmer, R. Wolfrum (eds.), Liber Amicorum Günther Jaenicke – Zum 85. Geburtstag, Berlin/Heidelberg, Springer-Verlag, 1998, p. 303. 70 M. Bassiouni, Final Report on the right to restitution, compensation and rehabilitation for victims of gross human rights violations, E/CN.4/2000, 62, p. 10. 66

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Alexander Orakhelashvili that restitution (seeking to restore victims to their previous state) is an indispensable consequence of serious human rights violations.71 It may be concluded that while the primacy of restitution may be subject to a different regulation by States in case of breaches of jus dispositivum, such primacy becomes as such peremptory in cases where a breach of jus cogens is involved and is no longer subject to the will of individual States. Having ascertained the general relevance of jus cogens for the primacy of restitution, it remains to consider some specific legal contexts, and the impact of specific peremptory norms, which by definition affirm the unconditional primacy of restitution and the general principle just formulated. (2) Consequences of Invalidity of a Treaty in Conflict with Jus Cogens Article 71 of the Vienna Convention on the Law of Treaties deals with the consequences of invalidity of treaties under Article 53 of the same Convention: ‘In the case of a treaty which is void under Article 53 the parties shall: (a) eliminate as far as possible the consequences of any act performed in reliance on any provision which conflicts with the peremptory norm of general international law; and (b) bring their mutual relations into conformity with the peremptory norm of general international law.’

Unlike the terms of Article 69, which deals with ordinary cases of treaty invalidity, Article 71 lays down these obligations imperatively and does not leave the choice to the States-parties or other States involved.72 This provision requires that the consequences of invalidity must be eliminated as such. It is impermissible to waive this remedy or replace it by something else, such as monetary compensation. The situation existing before the conclusion of a void treaty has to be restored. As such treaties would offend against the community interest embodied in jus cogens, it would be in the interest, and power, of the international community as a whole that the consequences of such treaties are fully eliminated, which is tantamount to the full performance of restitutio in integrum. 71

L. Joinet, Revised final report on question of immunity of perpetrators of human rights violations, E/CN.4/Sub.2/1997/20/Rev.1, para. 41, and principle 36. 72 As the ILC remarked, this provision is not about mutual adjustment of positions between parties, but about bringing the situation concerned in accordance with jus cogens. See (1966-II) YbILC, p. 266.

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Peremptory Norms and Reparation for Internationally Wrongful Acts (3) Invalidity of Certain Acts, or Actions, of States Certain acts or actions of States may become invalid in case of conflict with jus cogens and State practice is familiar with the invalidation of certain State actions as such, mostly dealing with the consequences of the unlawful use of force.73 The consequence of such invalidity is the duty of non-recognition. The obligation not to recognize as lawful the situation created by the violation of a public order norm is based on a generally recognised principle of international law ex injuria jus non oritur.74 It is a direct consequence of the operation of jus cogens.75 This principle is a specific consequence of validity of peremptory rules of international law in the field of lawenforcement. Benefits obtained through the use of force or violation of rights to self-determination have especially been confirmed as illegal by the UN General Assembly in the Friendly Relations Declaration (Resolution 2625(1970)), and the International Court in the Namibia case. The Court stated that the States are obliged to treat such situations as illegal. Moreover, the Court indicated that the illegal presence of South Africa in Namibia has an erga omnes character and is opposable to every State.76 It cannot be disputed that the principle of non-recognition – ex injuria jus non oritur − is an element of effective implementation and enforcement of fundamental rules of international law, and its specific relevance in the field of jus cogens is recognised by the ILC in terms of legal consequences of serious breaches of peremptory norms.77 This is nothing but an expression of the invalidating capacity of jus cogens. Violation of peremptory norms excludes recognition of lawfulness of or acquiescence to the consequences entailed.78 Obligation of non-recognition also prevails over prescription.79 This legal framework also supports primacy of recognition.

73

For the over view of such practice, see J. Sztucki, Jus Cogens and the Vienna Convention, Vienna/New-York, Springer-Verlag, 1973, p. 27, and Dugard, supra note 29, pp. 111−115. 74 I. Brownlie, International Law and the Use of Force by States, Oxford, OUP, 1963, p. 410; Sir Robert Jennings & Sir Arthur Watts (ed.), Oppenheim’s International Law, volume 1, 9th ed., London, Longmann, 1992, p. 183. 75 Dugard, supra note 30, p. 137. 76 ICJ Reports, 1971, p. 16. 77 Article 41 on State Responsibility, ILC Report 2001, p. 53. 78 Brownlie, supra note 16, p. 516. 79 Brownlie, supra note 74, p. 422, speaking on the example of the unlawful use of force.

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Alexander Orakhelashvili (4) The Right of Displaced Persons to Return Home Another context of substantive law definitively requiring performance of restitution is the right of displaced persons to return home. As emphasised, a forcible deportation or expulsion implies intent to forbid return.80 This means that the return to homes, and hence restitution – is the natural requirement for reversing the wrongfulness performed through deportation. As the Special Rapporteur on human rights and population transfer, Al-Khasawneh, affirmed the remedy for the displaced persons is restitutio in integrum.81 This approach is even more appropriate bearing in mind that expulsion or deportation is defined as crime against humanity or war crime. Under Article 18(g) of the ILC’s Draft code on crimes against peace and security of mankind and Article 7(1)(d) of the ICC Statute, the arbitrary deportation or forcible transfer of population is a crime against humanity, and under Article 8(2)(e)(VII) of the ICC Statute the ‘ordering the displacement of the civilian population for reasons related to the conflict’ an exceptionally serious war crime. This would naturally suggest that the violation of jus cogens is involved, with all due effects and consequences.82 The norm applicable to the right to return requires that the choice on return should lie with the victims themselves, and not with any other actor, including States. If this norm is peremptory, it is not subject to derogation by agreement or other legal instrument. Therefore, under human rights law, individuals may have the right to return. Such a right would be independent of the will of the States involved, especially the State of sojourn, and would be valid even if the State of sojourn does not insist on return.83 A logical consequence of the operation of rules protecting individuals as such, irrespective of the attitude of States in specific cases, is that these rules should operate and protect individuals irrespective of their nationality, and link their protection to the interests of the international community as a whole. In line with this approach, the UN Security Council has repeatedly emphasised that the right of displaced persons to return to their homes is 80

J. Quigley, ‘Displaced Palestinians and a Right to Return’ (1998) 39 Harvard International Law Journal, p. 221. 81 A. Al-Khasawneh, Final report on human rights and population transfer, E/CN.4/Sub.2/1997/23, paras. 60−61. 82 As the Special Rapporteur Waldock suggested, one of the criteria of determining a norm’s peremptory status is the criminality of the conduct it outlaws, see (1963-II), pp. 52−53. 83 Quigley, supra note 80, p. 196.

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Peremptory Norms and Reparation for Internationally Wrongful Acts inalienable and imprescriptible. The Dayton Peace Agreements express a similar view.84 By definition, such a state of law excludes replacement of restitution by compensation, above all in terms of an inter-State(bilateral) agreement. 4.2. Compensation Compensation is the most usual form of material responsibility, because it is easier to be implemented than restitution. As the ILC noted, the material damage caused by a wrongful act can always be evaluated in money and the gaps left after performance of relatively inflexible restitution in kind can be filed in this way.85 Thus, Article 36 of the ILC states: ‘1. The State responsible for an internationally wrongful act is under an obligation to compensate or the damage caused thereby, insofar as such damage is not made good by restitution. 2. The compensation shall cover any financially assessable damage including loss of profits insofar as it is established.’

The flexibility of compensation as a remedy is the reason for its frequent application in treaty practice as well as in judicial and arbitral proceedings. Compensation is also less disputed in theory because it is beyond doubt that this remedy can be applied in all situations. At the same time, it is necessary to note that compensation can, in some cases prove ineffective in wiping out the injury caused. Payment of money might be an artificial redress as compared with establishing the situation that existed before the wrongful act was committed, because the peculiarities of a legal relationship in context of which a breach is committed always play an important role. These circumstances justify inclusion of a provision in ILC’s Articles, according to which compensation is to be paid ‘insofar as such damage is not made good by restitution’, and another implicit reservation that there should be a further remedy for non-material injury. Thus, compensation shall not be identified with material reparation of moral damage, the latter being an element of satisfaction86 to be discussed 84

UNSCRes. 1255 (1999), 1287 (2000), 1393 (2002). Annex 4, article II (5) of the Dayton Peace Agreement confirms that the refugees have the right to have their property restored to them and to be compensated for the property that cannot be restored to them. This formulation is in line with the primacy of restitution. 85 Commentary to Article 36, para. 3, ILC Report 2001, pp. 244−245. 86 See (1993-II) Yrbk ILC, part 2, pp. 67, 71. Relevant judicial practice is also analysed.

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Alexander Orakhelashvili below. All punitive aspects from compensation shall be excluded because it is remedy of purely compensatory character,87 and includes only the economically assessable damage.88 As the Inter-American Court affirmed, compensation is due where restitution is impossible.89 In case of human rights violations, compensation has to ensure that reparation fully matches the suffering caused to victims. For instance, the mere release of a person who unlawfully spent a long time in detention is hardly adequate reparation. The suffering of deprivation of liberty and family, professional and other life needs to be repaired.90 Treatybased organs do regularly award compensation for materially assessable damage to victims of human rights violations. They even set objective conditions of such award. For instance, the Inter-American Court emphasized in Velasquez-Rodriguez that compensation for the disappearance and death of a person ‘must be calculated as a loss of earnings based upon the income the victim would have received up to the time of his possible death’.91 It is unusual that compensation impacts jus cogens. The only relevant issue from the perspective of jus cogens is that the amount of compensation should be objectively consistent with the breaches and suffering caused – a problem discussed above in a more general context. As the Special Rapporteur van Boven commented in respect of treaty-based human rights mechanisms, ‘[a]ny compensation or award granted to an injured party must not only be just towards that party itself, but also do justice to the purposes and principles of the human rights protection system’.92 A more problematic issue is the compensation for non-material injury, where the involvement of community interest acquires, as we shall see below, an additional relevance.

87

C. Annacker, ‘Part Two of the International Law Commission’s Draft Articles on State Responsibility’ (1994) 37 German Yearbook of International Law, p. 227; Crawford, Third Report, A/CN.4/507/Add.1, p. 18. 88 The economically assessable damage covers: (i) damage caused to the State’s territory in general, to its organization in a broad sense, its property at home and abroad, its military installations, diplomatic premises, ships, aircraft, spacecraft, etc. (so-called ‘direct’ damage to the State); (ii) damage caused to the State through the persons, physical or juridical, of its nationals or agents (so-called indirect damage to the state). See (1993-II) Yrbk ILC, part 2, p. 72. 89 Aloeboetoe, 116 ILR, p. 276; Gangaram Panday, 116 ILR, pp. 317−318. 90 Paolilo, supra note 69, p. 305. 91 Velasquez-Rodriguez (Compenastion), 95 ILR, p. 317. 92 Van Boven, supra note 47, p. 36.

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Peremptory Norms and Reparation for Internationally Wrongful Acts 4.3. Satisfaction (1) General Impact of Jus Cogens on Satisfaction The ILC’s Articles on State Responsibility treat satisfaction as one of substantive consequences of a wrongful act, and stress its residual role, which consists in ensuring that reparation is full and effective, by stating in Article 37 that ‘The State responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury caused by that act insofar as it cannot be made good by restitution or compensation’. The ILC’s Articles further specify that ‘Satisfaction may consist in an acknowledgement of the breach, an expression of regret, a formal apology or another appropriate modality’, and the Commission adds in the commentary that the appropriate mode of satisfaction will be determined having regard to the circumstances of each case.93 It is therefore clear that the modes of satisfaction listed in Article 37 are not exhaustive but merely illustrative, and should be understood in the light of the overall goal of the reparations regime to effectively eliminate the harm and injury caused. This entire framework confirms that satisfaction is the only form of reparation which has no self-explanatory concept and cannot, unlike restitution and compensation, be defined by reference to its title. It consists of specific headings of remedies, whose relevance has to be determined by reference to the overriding goals of reparation consisting in the elimination of the consequences of a wrongful act, as well as the governing legal framework. Consequently, peremptory norms protecting the community interest acquire their relevance here as well. Satisfaction as a form of reparation is widely applied in international judicial practice and focused upon in doctrine, but views on the subject are hardly uniform. According to Article 41 of the European Convention on Human Rights, if ‘there has been a violation of the Convention or the protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the [European] Court [of Human Rights] shall, if necessary, afford just satisfaction to the injured party’. The Convention does not describe the kind and extent of satisfaction nor does it distinguish between satisfaction and other forms of reparation. In practice, the European Court has interpreted this provision quite extensively and under the heading of ‘just satisfaction’ awarded multiple remedies according to general international law, and set out by the ILC’s Articles, 93

ILC Report 2001, p. 266 (commentary to Article 37, para. 5).

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Alexander Orakhelashvili including restitution in kind, compensation for material and non-material injuries, as well as some modes of satisfaction, either singly, or in combination.94 Sometimes, however, the European Court has exercised an unjustified judicial restraint in selecting applicable remedies and hence neglected the need to enforce effectively some Convention rights that form part of jus cogens, a notion that was perhaps not part of positive law when what is now Article 41 was adopted.95 The whole problem with this is how to construe a treaty-based notion of ‘just satisfaction’ in view of the attitudes of drafters, the purpose of the European Convention and other relevant factors in order to see whether Article 41 empowers the European Court to award specific remedies. But the concept of satisfaction dealt with here is qualitatively different from ‘just satisfaction’ in that the former is above all a concept of substantive law not inherently linked to any treaty-based judicial mechanism. Thus, the concept of satisfaction under general international law, as mirrored in the ILC’s Articles, is different from ‘just satisfaction’, in that it is not comprehensive, but residual and covers only those remedies which are to be awarded if the injury caused is not made good by restitution and compensation for material injury. As a form of responsibility, satisfaction shall be applied to the acts of the State which cause moral injury to the State and which are not assessable in material terms. The modes or extent of satisfaction cannot be measured according to material criteria, because it reflects moral injury only. Even if residual, satisfaction is a fundamental form of reparation, since it is an appropriate corollary for the respect of fundamental principles of international law such as sovereign equality of States and mutual respect of their dignity, by providing remedies for violation of those principles. In addition, with the introduction of humanitarian values into this legal system the importance of satisfaction has been established and gradually increased also in this area. Satisfaction is a suitable remedy in cases of human rights violations, because such violations involve a great deal of moral injury to human beings and the non-exhaustive 94

In the practice of the ECtHR, ‘satisfaction’ in sense of Article 50 ECHR includes elements both of compensation and satisfaction in sense of the ILC’s Articles. See Crawford, Third Report, A/CN.4/507/Add.1, p. 24, n. 304. 95 See the Selmouni case, ECtHR, 25803/94, 28 July 1999; and see, about the exercise of judicial restraint by the European Court of Human Rights in interpreting and applying Article 41 of the European Convention, T. Meron, Human Rights and Humanitarian Norms as Customary Law, Oxford, OUP, 1989, p. 145; and A. Orakhelashvili, ‘Questions of International Judicial Jurisdiction in the LaGrand Case’ (2001) 15 Leiden Journal of International Law, No. 1, pp. 105−130.

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Peremptory Norms and Reparation for Internationally Wrongful Acts nature of satisfaction is helpful in determining how such moral injury could be undone. Consequently, satisfaction is a remedy with multiple consequences, and it is no longer possible to keep its relevance within the traditional bilateral understanding of State responsibility and to limit it to purely inter-State remedies such as expression regret or apology. The open ended nature of the concept as mirrored in the ILC’s Articles shall be understood to effectively allow satisfaction to be used for making good the injury caused to non-State actors in consequence of violation of jus cogens – the injury in whose redress the international community as a whole is deemed to have a legal interest. The relevance of community interest consists not only in making the satisfaction imperative and non-derogable, but also (again, because of the open-ended nature of the concept) in determining which modes of satisfaction are suitable to meet the community interest in redressing the wrong caused. The reasons for the peremptory nature of the norms violated should be kept in mind. As most peremptory norms – such as those outlawing genocide, war crimes and crimes against humanity, torture, disappearance or unlawful killing – have reached such status because of the common desire to outlaw conduct so immoral as to shock the conscience of mankind, the existence of community interest in a proper and objective redress of the moral injury caused also becomes clear. This, in its turn, is crucial in determining which modes of satisfaction are appropriate in a given particular case. (2) Acknowledgment of a Breach Satisfaction may, under certain conditions, consist in a declaration that a certain act or conduct was wrongful. In Corfu Channel, the International Court of Justice stated that the actions by the British Royal Navy in Albanian territorial waters violated the sovereignty of Albania and that this declaration by the Court constituted appropriate satisfaction. But it should not be overlooked that Albania limited its request to this remedy and did not ask for anything else, which the Court took note of.96 In Rainbow Warrior, the Arbitral Tribunal stated that the condemnation of France’s actions in violation of its obligations towards New Zealand constituted appropriate satisfaction,97 but in the same case compensation was also awarded. If viewed pragmatically, declaration of wrongfulness is in fact the failure to award a remedy. Such an approach could be perfectly appropriate in disputes involving traditional bilateral legal frameworks, if this corresponds to the 96 97

Corfu Channel, ICJ Reports, 1948, p. 35. RIAA, volume XX, pp. 272−273, 275.

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Alexander Orakhelashvili will of the parties. But in disputes involving peremptory norms that protect community interests, such an approach is ill founded by definition, because remedying jus cogens violations is in the interest of the international community as a whole. In a considerable number of cases involving the non-pecuniary loss or moral damages, the European Court of Human Rights confines its ruling to holding that the finding of a breach in itself is an appropriate satisfaction (declaratory judgments),98 using this option to justify its failure to award compensation.99 But unlike the ICJ, the European Court generally offers no explanation why a declaratory judgement should be regarded as an appropriate just satisfaction and this casts doubt upon the correctness of the Court’s findings.100 For the purposes of remedying violations of peremptory norms (it may be routinely assumed that serious and grave human rights violations fall within that category), the option of declaratory judgments should be treated with caution and care, for is does not at all ensure that the wrongful consequences of a violation are objectively redressed. The approach of the Inter-American Court is better reasoned in that it recognizes that ‘a condemnatory judgment does not suffice when the right to life is concerned, and the reparation for the moral suffering caused to the victim and to the family must take an alternative form, such as pecuniary compensation’.101 (3) Material Compensation for Moral Injury While in terms of compensation for material damage the concept of jus cogens operates as making the duty to make reparation imperative as such, in terms of compensation for moral damage jus cogens seems to have a further function, namely influencing the very cause of action and the extent and

98

Krusilin, ECtHR, 11801/85 24 April 1990, para. 39; and Aquilina, ECtHR, 25642/94, 29 April 1999, para. 59; see also A. H. Robertson & J. G. Merrils, Human Rights in Europe, 1993, pp. 313−314. 99 M. Kamminga, ‘Legal Consequences of an Internationally Wrongful Act of a State against an Individual’, in Execution of Strasbourg and Geneva Human Rights Decisions in National Legal Orders, Bakhuysen et al. (eds.), pp. 67, 72; Penopaa, in Randelzhofer & Tomuschat (eds), supra note 5, p. 118; G. Dannemann, Schadenersatz bei Verletzung der Europaeischen Menschenrechtskonvention, 1994, p. 365. 100 Dannemann, supra note 99, 1994, p. 368. 101 Castillo Paez, 116 ILR, p. 511.

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Peremptory Norms and Reparation for Internationally Wrongful Acts possible amount of compensation.102 In case of material damage, the amount of compensation is determined in material terms depending upon the extent of material injury, but in terms of moral damage affronting the community interest the amount of compensation should be determined inter alia by reference to the fact that the conduct has been performed in detriment to what the international community as such considers to be a fundamental value or interest. It must not be forgotten that certain norms are peremptory because they prohibit a conduct that is excessively brutal and causes unjustified suffering to human beings or their groups (see 2. above). Such inherent link between the nature of the conduct prohibited and the community interest safeguarded by jus cogens justifies the assumption that an award of adequate pecuniary compensation for non-material injury suffered by non-State actors also forms an inherent consequence of violations of peremptory norms. At an earlier stage of the work on State responsibility, the ILC has noted that in practice satisfaction and compensation are frequently confused with each other.103 Therefore, it specified that damages, reflecting the gravity of infringement as part of satisfaction, shall be awarded for the injury over and above actual, or material, loss.104 This caused a strict delimitation between the concepts of compensation for material and non-material injuries, the latter concept being part of satisfaction. But the situation in the final version of the Articles on State Responsibility seems to be more confused and less clear. The Commission specified in the commentary to Article 36 that ‘Compensation corresponds to the financially assessable damage suffered by the injured State and its nationals. It is not concerned to punish the responsible State, nor does compensation have an expressive or exemplary character. ... It is true that monetary payments may be called for by way of satisfaction under article 37, but they perform the function distinct from that of compensation. ... Satisfaction is concerned with non-material injury, on which a monetary value can be put only in a highly approximate and notional way.’105

This function of satisfaction naturally is to make good a moral, or nonpecuniary damage, whether caused to a State or a non-State actor. The 102

See, inter alia, the Nicaragua’s Memorial on Compensation in the Nicaragua case, ICJ Pleadings 1986, volume V, pp. 326, 334. 103 See (1993-II) Yrbk ILC, Part 2, p. 76; ILC Report 1996, p. 143. 104 Ibid., p. 79. 105 ILC Report 2001, pp. 245−246 (commentary to Article 36, para. 4).

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Alexander Orakhelashvili formulation is broad enough to cover both categories. However, in its commentary to Article 37, the ILC suggests: ‘Material and moral damage resulting from an internationally wrongful act will normally be financially assessable and hence covered by the remedy of compensation. Satisfaction, on the other hand, is the remedy for those injuries, not financially assessable, which amount to an affront to the State. These injuries are frequently of a symbolic character, arising from the very fact of the breach of the obligation, irrespective of its material consequences for the State concerned.’106

If the ILC thereby means that satisfaction for not financially assessable injuries does not include an element of pecuniary compensation, this would contradict its own attitude just quoted above. But then, the ILC nevertheless seems to recognize the relevance of pecuniary compensation in terms of satisfaction, by stating, for instance, that satisfaction may include arrangement of a ‘trust fund to manage compensation payments in the interest of the beneficiaries’;107 it mentions the possibility of award of ‘symbolic damages for non-pecuniary injury’ and refers in this respect to the I’m Alone case,108 which can be taken as an authority supporting the notion of punitive damages. Furthermore, the ILC seems to acknowledge that in cases of serious breaches of peremptory norms, the payment of damages reflecting the gravity of infringement is not excluded since, as the ILC noted in the commentary, the author State remains under the duty to make reparation in accordance with the regime of reparations provided in the other provisions of the Articles on State Responsibility.109 Material compensation for non-material damage is a remedy widely recognized in practice of different international tribunals and it is unlikely to be abandoned as a remedy despite the possible scepticism, or even uncertainty, in the ILC’s approach.110 In the case of Rainbow Warrior the UN Secretary-General decided to impose on France payment of a sum that 106

Ibid, p. 264 (commentary to Article 37, para. 3). Ibid, pp. 265−266 (commentary to Article 37, para. 5). 108 Ibid, p. 266 (commentary to Article 37, para. 5). 109 Ibid, p. 291 (commentary to Article 41, para. 12). 110 Despite some sceptical views suggesting that State responsibility for non-material damage should be limited to non-material remedies, such as acknowledgment of a breach, expression or regret or apology, see S. Wittich, ‘Awe of the Gods and Fear of the Priests: Punitive Damages and the Law of State Responsibility’ (1998) 3 Austrian Review of International and European Law, pp. 139, 155−156. 107

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Peremptory Norms and Reparation for Internationally Wrongful Acts was much higher than the material damage suffered by New Zealand.111 Although it is held that the European Court of Human Rights is generally reluctant to grant exemplary or punitive damages,112 in a number of cases the clear distinction between the damages for pecuniary loss and the damages for non-pecuniary loss has been made, with pecuniary compensation in the amount higher than the material damage suffered by the applicant.113 Similarly, the Inter-American Court concluded in Velasquez-Rodriguez and Aloeboetoe that fair compensation includes reparation of the material and moral damages suffered by victims, and that in case of moral damages caused by human rights violations, pecuniary indemnity must be awarded.114 The UN Special Rapporteurs have unanimously affirmed that in case of serious human rights and humanitarian law violations, the compensation for non-material injury is a necessary consequence to remedy the victims’ mental harm, pain, suffering and emotional distress.115 As for the determination of quantum, the Inter-American Court stressed in Castillo Paez that ‘[t]he pecuniary compensation should be determined on the basis of equity and by a prudent assessment of the moral damages’.116 The Court went further and stressed that in case of serious human rights violations, moral damages need not be shown, as they can be presumed. They are a natural consequence in cases of disappearances and abusive treatment of victims, as well as in cases where their relatives experience terrible moral suffering.117 This practice evidences that material reparation for non-material injury possesses the relevance of an independent remedy at 111

RIAA, volume XX, pp. 224, 271. D. Harris, M. O’Boyle & C. Warbrick, The Law of the European Convention on Human Rights, Butterworths, 1995, p. 687. 113 Aydin, ECtHR, 23178/94, 1997, paras. 127-130; Aksoy, ECtHR, 21987/93, 1999, para. 113. 114 Velasquez-Rodriguez, 95) ILR, p. 232; Velasquez-Rodriguez (Compensation), 95 ILR, pp. 314−316; Aloeboetoe, 116 ILR, p. 277; Castillo Paez, 116 ILR, p. 512. 115 T. van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law, E/CN.4/Sub.2/1996/17, para. 13; M. Bassiouni, Final Report on the right to restitution, compensation and rehabilitation for victims of gross human rights violations, E/CN.4/2000, 62, 10 (para. 23); Joinet, Revised final report on question of immunity of perpetrators of human rights violations, E/CN.4/Sub.2/1997/20/Rev.1, para. 41(b) and principle 36; Guy McDougal, Report on systematic rape, E/CN.4/Sub.2/1998/13, para. 88. 116 Castillo Paez, 116 ILR, p. 511. 117 Ibid., p. 512; Suarez Rosero, 118 ILR, p. 111. 112

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Alexander Orakhelashvili least in the field here under consideration. The context of the norm and its breach determines what is full reparation in a given case and respectively what amount of moral damages should be paid. The nature of a specific violation is crucial in determining the availability and extent of compensation for non-pecuniary injury. The InterAmerican Court found the basis for compensation for the moral damages in the fright, anguish, and depression caused to the family members of the abducted persons.118 In Aloeboetoe, the Court held: ‘The beatings received, the pain of knowing they were condemned to die for no reason whatsoever, the torture of having to dig their own graves are all part of the moral damages suffered by the victims. In addition, the person who did not die outright had to bear the pain of his wounds being infested by maggots and of seeing the bodies of his companions being devoured by vultures.’119

It must be emphasised that the practice of the Inter-American Court is most appropriate in terms of elimination of wrongful consequences of violation of peremptory norms. The Court fully takes into account the objective circumstances of particular breaches and also tries to award sums of compensation appropriate for redressing the actual suffering.120 This practice illustrates that the Court tries to award damages in a way leading to objective elimination of wrongful consequences and the human suffering caused. (4) The Question of Punitive Damages Once it is clarified that material compensation for non-material injury is often an indispensable element of remedying violations of certain norms of jus cogens, it remains to clarify whether the violations of similar character permit award of punitive, or exemplary, damages to the victims of 118

Velasquez-Rodriguez (Compensation), 95 ILR, p. 318. Aloeboetoe, 116 ILR, p. 277. 120 Loayza Tamayo (Reparations), 116 ILR, p. 388; Castillo Paez (Reparations), 116 ILR, p. 483; Aloeboetoe, 116 ILR, p. 261; Suarez Rosero (Reparations), 118 ILR, p. 92. In Gangaram Panday, the Inter-American Court awarded to the family members of the victim of deprivation of life USD 10,000, which it considered to be a nominal amount, 116 ILR, p. 318. The reason for awarding nominal compensation was that the respondent State has not been found guilty of death of the victim, which died while imprisoned. The judgment makes clear that this essential sum is just nominal and would be insufficient to remedy fully the violation if it were attributed to the respondent State. 119

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Peremptory Norms and Reparation for Internationally Wrongful Acts violations. The question of punitive damages may be prompted by the nature of a norm breached, or the breach itself and the extent and gravity of the injury suffered by a victim State or individuals. As the ILC’s Special Rapporteur submitted, ‘there is no authority and very little justification for the award of punitive damages properly so-called, in cases of State responsibility, in the absence of some special regime for their imposition’.121 The Inter-American Court also stated that Article 63(1) of the American Convention dealing with its remedial competence does not refer to punitive damages, but makes possible the compensatory damages only,122 but this may well be taken as an observation on the Court’s remedial powers and not substantive law of remedies. The Court in fact often awards compensation for moral injury in sufficiently high amounts, which are not very far from punitive damages. Whether punitive damages are available could be clarified only after it is ascertained what is meant by the concept. Its difference from material compensation for moral injury is neither absolute nor strict. If material compensation is awarded for a moral injury, it is so awarded to remedy the moral suffering, but every material compensation from moral injury also has an exemplary or deterrent element. For example, it may be held that punitive damages have been awarded in I’m Alone123 for the intentional sinking of a ship, and in absence of any material damage to a State to which the damages were awarded. But it may then also be held that this was just compensation for the moral injury. It is accepted that there is some scepticism both in theory and judicial practice regarding the imposition of punitive damages on States, but some authors hold that punitive damages are perhaps permitted.124 A good example of description of the purpose of punitive damages is the judgment of the US District Court in Filartiga, whose criteria may apply to international law as well. The Court considered that punitive damages are not justified by the desire to punish the defendant, but are designed to compensate for the greater pain caused by the atrocious nature of the act, to respond to ‘human cruelty and brutality’.125 In this context, the Court focused upon the fact that 121

Crawford, Third Report on State Responsibility, A/CN.4/507/Add.1, p. 40. Velasquez-Rodriguez, 95 ILR, p. 306. 123 For the relevant passages from the case, see Brownlie, supra note 57, pp. 208−209. 124 Brownlie, supra note 74, p. 148, referring also to Oppenheim and Briggs. 125 Filartiga v. Pena-Irala, 77 ILR pp. 188, 190. The Court also emphasised that torture is viewed with universal abhorrence and a torturer is hostis humani generis, ibid., 187. 122

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Alexander Orakhelashvili ‘it is essential and proper to grant the remedy of punitive damages in order to give effect to the manifest objectives of the international prohibition against torture,’ the breach of which, in the Court’s view, cannot be remedied without punitive damages.126 In addition, the deterrent impact of this remedy was emphasised.127 The Court’s reasoning on the example of remedying breaches of the prohibition of torture − a profound example of jus cogens − is in accordance with the argument for the cause of a norm’s peremptory character and what should be the consequence of such peremptory character. As the observance of the prohibition is in the interest of the international community as a whole and not merely of individual States, it is equally in the interest of the former to deter violations of that prohibition and punitive damages, along with individual criminal responsibility (to be dealt with below), constitutes a useful tool in achieving this task. Whatever the term, the essence of punitive damages is therefore clear and it is hardly deniable that it has a unique function in redressing serious human rights violations. The ILC, which has sometimes been sceptical to the notion of punitive damages, nevertheless affirmed in its Report that if the egregious breaches of obligations owed to the international community are committed, the members of the international community must be able to seek aggravated damages on behalf of victims.128 Viewed in this way, the commonality of the concept of punitive damages with the concept of pecuniary compensation for moral injury becomes clear. The very concept will become less unacceptable if one accepts the constructive and balanced view of Brownlie and Rosenne, submitting that punitive or exemplary damages are to be regarded more as a form of calculating and quantification, in the light of all the circumstances, of the amount of reparation due in monetary terms, than as punitive sanctions.129 If this is accepted, one can conclude that the law of reparations would not sanction award of punitive damages not responding to an actual injury, but on the other hand it would require award of any amount of compensation responding to actual moral injury, however high in amount, even if it looks ‘punitive’ or ‘exemplary’ from an extra-legal point of view.130 Therefore, the better way is not to 126

Ibid., pp. 188−189. Ibid., p. 190. 128 ILC Report 2000, p. 108, para. 358. 129 S. Rosenne, ‘War Crimes and State Responsibility’ (1994) 24 Israel Yearbook of Human Rughts, p. 98; Brownlie, supra note 36, 1998, pp. 464−465. 130 Despite the view that large sums of compensation may look like punishment, see N. Jorgensen, ‘Punitive Damages in International Law’ (1997) 68 British Yearbook of International Law, p. 266. 127

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Peremptory Norms and Reparation for Internationally Wrongful Acts categorize damages into ‘punitive’ and ‘non-punitive’ and thus judge on their permissibility in an aprioristic way, but to examine the nature of a breach and suffering in each specific case and thus determine the kind and amount of compensation due. (5) Individual Criminal Responsibility The ILC’s Articles on State Responsibility affirm that satisfaction includes ‘disciplinary or penal action against the individuals whose conduct caused the internationally wrongful act’.131 In practice it has been affirmed that the measures consisting in investigation of breaches and the punishment of those responsible is the part of reparation.132 States must investigate serious human rights violations and punish perpetrators, even if this is contrary to their domestic law.133 Special Rapporteurs van Boven, Bassiouni and Joinet consider that every State shall exercise universal jurisdiction over serious violations of human rights and humanitarian law.134 The same principle has been upheld by the Special Rapporteur on systematic rape with regard to crimes against humanity and war crimes.135 From the perspective of jus cogens, this aspect of satisfaction acquires a specific importance. Prosecution of crimes against peace and security of mankind is the subject of interest of international community as a whole. The universal jurisdiction is hence established in respect of such crimes.136 It seems to be established that universal jurisdiction is available in case of breaches of jus cogens.137 States are in some circumstances under a duty to

131

ILC Report 2001, pp. 265−266 (commentary to Article 37, para. 5). Velasquez-Rodriguez (Compensation), 95 ILR, p. 315. 133 Loayza Tamayo, 116 ILR, p. 435. 134 van Boven, Revised set of basic principles and guidelines on the right to reparation for victims of gross violations of human rights and humanitarian law, E/CN.4/Sub.2/1996/17, para. 5; Bassiouni, Final Report on the right to restitution, compensation and rehabilitation for victims of gross human rights violations, E/CN.4/2000, 62, pp. 7−8 (para. 5); Joinet, Revised final report on question of immunity of perpetrators of human rights violations, E/CN.4/Sub.2/1997/20/Rev.1, principle 20. 135 McDougal, Report on systematic rape, E/CN.4/Sub.2/1998/13, para. 85. 136 Brownlie, supra note 36, p. 308. 137 Crimes implicating breaches of jus cogens justify States in taking universal jurisdiction over them wherever committed, because offenders are common enemies of mankind and all nations have an equal interest in their apprehension and prosecution, Lord Browne-Wilkinson, Pinochet, 2 XXX (All ER) (1999), p. 109; 132

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Alexander Orakhelashvili exercise universal jurisdiction by extraditing or prosecuting the accused because of the individual criminal responsibility of perpetrators of war crimes, and because crimes against humanity are based on a peremptory norms.138 As Judge van den Wyngaert suggested, ‘the ratio legis of universal jurisdiction is based on the international reprobation for certain very serious crimes such as war crimes and crimes against humanity. Its raison d’etre is to avoid impunity, to prevent suspects of such crimes finding a safe haven in third countries.’139 If, as a matter of fact, this statement is correct – there seems no plausible way of challenging it – the inescapable conclusion follows that the universal jurisdiction attached to those serious crimes is peremptory as such. The reason universal jurisdiction exists is to prevent impunity and to exclude, in all circumstances and without any exception, a possibility that criminals find safe haven. In order to ensure this, the principle vests jurisdiction with all States even if they have no individual link with a particular crime, and under certain circumstances even obliges them to exercise such jurisdiction. Having imperative purpose, emanating from imperative norms and envisaging community response, this kind of norm cannot be portrayed except as part of jus cogens. This is further mirrored in the observation of Judge Al-Khasawneh, suggesting that ‘[t]he effective combating of grave crimes has arguably assumed a jus cogens character reflecting recognition by the international community of the vital community interests and values it seeks to protect and enhance’.140 Thus, universal jurisdiction is just a logical extension of that legal framework, and must be seen as peremptory.141 In the same spirit, the ILC stated as early as in 1976 that individual criminal responsibility for certain crimes ‘testifies unquestionably to the exceptional importance now attached by the international community to the fulfilment of obligations having a certain subject-matter. It is, moreover, no accident that the

Lord Millett, ibid., pp. 177−178; see also, the Court of First Instance of Brussels, 119 ILR, pp. 356−357; Eichmann, 36 ILR, p. 1; Demjanjuk, 79 ILR, p. 545. 138 Lord Hope, Pinochet, 2 All ER (1999), p. 147, states that jus cogens imposes on all States an erga omnes obligation to punish certain international crimes. 139 Dissenting Opinion of Judge van den Wyngaert, the Arrest Warrant case, ICJ General List No. 121, 2002, para. 46. The majority of the Court avoided the issue of universal jurisdiction, having considered that the case could be decided even without focusing on it. 140 Dissenting Opinion of Judge Al-Khasawneh, supra note 136, para. 7. 141 M. Bassiouni & E. Wise, Aut Dedere aut Judicare: The Duty to Extradite of Prosecute in International Law, Dordrecht/Boston, Martinus Nijhoff, 1995, p. 52.

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Peremptory Norms and Reparation for Internationally Wrongful Acts obligations . . . whose breach entails the personal punishment of the perpetrators, correspond largely to the certain rules of jus cogens’.142 Therefore, what is an ordinary element of satisfaction as a part of the duty to make reparation becomes peremptory as soon as a given violation involves breach of peremptory norms. An otherwise bilateral legal framework of this element of satisfaction is in such cases overtaken by the overriding effect of jus cogens. 5. Jus Cogens Limitations on the Duty to Provide Reparation Apart from providing the basis for some remedies in specific situations and making them as such peremptory, the function of jus cogens in the field of reparations also consists in providing some limitations upon the duty to make reparation, if that endangers integral operation of peremptory norms. This can be explained by the fact that peremptory norms may be breached not only in the course of an original violation, but also of the consequential award of remedies. The purpose of such limiting function of jus cogens is to serve as a limitation both upon the concept of reparation in general, and specific remedies in particular, as well as to safeguard fundamental interests guaranteed under peremptory norms both to States and non-State actors. It is necessary to consider the inherent limitations on the remedy of pecuniary compensation. Some authors consider that compensation shall not endanger the existence and vital conditions of the population.143 Article 42(3) of the ILC’s draft articles adopted on first reading proclaimed the principle that reparation may not deprive a people of the means of subsistence. The commentary to that provision made it clear that its purpose was not to weaken the general regime of reparations, but to serve a specific purpose of not depriving the population of a State of the means of subsistence. The Commission noted that this provision was about the extreme cases applied in particular to the cases where an injured State has to provide reparation by payment of sums of money by way of compensation. In this context, the commentary explained that this principle would not prevent such remedies as, for example, the return of a territory wrongfully seized.144 Though certain States considered that this principle would enable the wrongdoer State to refuse full reparation, others treated it as a valid

142

YbILC, 1976, Volume II, Part Two, p. 104. A. de Hoogh, International Crimes and Obligations Erga Omnes, Kluwer, 1996, p. 190. 144 Commentary to Article 42(3), para. 8(a) ILC Report 1996, p. 152. 143

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Alexander Orakhelashvili principle,145 and the principle was finally dropped from the ILC’s Articles. The principle that a people shall in no way be deprived of means of its subsistence is an important aspect of the right to self-determination, itself a jus cogens rule. It is further affirmed by the common Article 1 of the two human rights covenants of 1966. According to the General Comment 12(21) of the Human Rights Committee (para. 5), the right of peoples to selfdetermination entails corresponding duties for all States and the international community, and the duty to preserve the subsistence of peoples would have a similar effect. In addition, as the ILC emphasised, a crippling compensation could involve serious violations of human rights.146 Consequently, in every bilateral relationship involving reparations the duty to preserve subsistence of peoples would be a full-fledged limitation on the conduct of parties. As the Special Rapporteur suggested, there is a difference the delay in payment and exclusion of it, between the quantum due and the method of payment. If a State for the time being is unable to pay, the provisions on circumstances precluding wrongfulness would govern this situation.147 Therefore, reparation may still be refused to the extent it may endanger subsistence of peoples. But for a more effective legal security of protected actors, it would be better if the provision had not been dropped from the ILC’s Articles, in case of which the interested actors would be enabled to refer to a substantive principle rather than invoke circumstances precluding wrongfulness. But this latter circumstance does not affect their legal entitlement to refuse reparation insofar the subsistence of peoples is endangered. 6. Conclusions This paper has demonstrated that jus cogens may influence the law of reparations in a variety of ways. This may take place through different modes: (1) The otherwise bilateral regime of reparations based on jus dispositivum is overtaken by the regime of consequences of operation of jus cogens. In cases of breach of jus cogens the duty to make reparation, or certain of its forms, such as restitutio in integrum, itself becomes peremptory and hence the subject of interest of the international community as a whole; 145

Crawford, A/CN.4/507, p. 13 (UK and Germany respectively). ILC Report 2000, p. 61, para. 191. 147 Crawford, Third Report, A/CN.4/507, p. 21. 146

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Peremptory Norms and Reparation for Internationally Wrongful Acts (2) Certain substantive norms of jus cogens may be crucial in determining whether specific remedies, such as the material compensation for non-material injury or punitive damages are available, and in what amounts; (3) Certain specific consequences of the operation of jus cogens may cause certain aspects of reparation to become peremptory as such. This holds true in case of restitution, as well as individual criminal responsibility as an element of satisfaction; (4) Jus Cogens operates not only as a cause for, but also as a limitation on reparations, when they are likely to result in breach of a peremptory norm. Such effects of peremptory norms do supplement their role to safeguard the interests of the international community as a whole, and do so in an integral way, not allowing fragmentation of respective legal relations in any aspect. There are many aspects of operation of jus cogens in the law of reparations, and most are already widely recognized on their own merits, sometimes due to the factors not totally or not clearly identical of jus cogens. But the purpose of this contribution has been to set out that what is recognized in specific instances may be due to a more general phenomenon. Jus cogens may have a comprehensive impact on the law of reparations for the interests of the international community as a whole, and the respective effects of jus cogens should be examined in a consolidated way, thereby making clear the necessary link between the concept of peremptory norms and their specific effects.

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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

* Dr.iur.; Counsellor of international and European law of the Legal Chancellor of Estonia; contractual lecturer of international law at the University of Tartu. The views represented in this article are only those of the author. Parts of this article are excerpts from the author’s doctoral thesis, defended by the author at the Faculty of Law of the Humboldt University Berlin, to be published in Erik Castrén Institute Monographies series, edited by Professor Martti Koskenniemi at Kluwer Law International. 1 Article 1, 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.1. 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.

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Lauri Mälksoo 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 3

28 U.S.C. § 1350. 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. 4

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State Responsibility and the Challenge of the Realist Paradigm 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 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 preWorld 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

6

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. 8 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. 9 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. 7

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Lauri Mälksoo necessary corollary of rights. All international rights entail international responsibility’.10 The progressive codification of the international law of State responsibility, undertaken by the ILC since early 1950s, relies on the intellectual concept developed by former ILC 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 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 selfdefence, countermeasures, force majeure, distress, and – subject to farreaching 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. 10

Reports of International Arbitral Awards (RIAA), 1925, vol. II, p. 641. See, Yearbook of the ILC, 1970, vol. II, p. 306, para. 66(c). 12 P.C.I.J., Ser. A, 1927, No. 17, 47. 11

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State Responsibility and the Challenge of the Realist Paradigm 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 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? 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, p. 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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Lauri Mälksoo 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 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 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 14

See already, J. Repečka, Die gegenwärtige völkerrechtliche Stellung der baltischen Staaten, unter besonderer Berücksichtigung der diplomatischen Vorgeschichte der Eingliederung 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. 15 Д. Левин, Ответственность в современном международном праве, Москва, Международные отношения, 1966 (quoted after the German translation, published in Potsdam-Babelsberg in 1969, p. 32 et seq.); H. Ушаков, Основания международной оветственности государств, Москва, Международные отношения, 1983, p. 137. 16 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.

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State Responsibility and the Challenge of the Realist Paradigm 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 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 SecretaryGeneral 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 17

Namibia Opinion, I.C.J. Reports, 1971, p. 16, at p. 56, para 125. See, B. Stern, ‘La succession d’Ėtats’ (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 Staatensukzession 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. 18

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Lauri Mälksoo 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. 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

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, ‘Правопреемство России в отношении собственности Российской Империи на Ближнем Востоке’ (2000) 1 Правоведение, pp. 237−247, at pp. 246−247. 22 See, Ф. Чуев, Сто сорок бесед с Молотовым. Из дневника Ф. Чуева, Moscow, Terra, 1991. 23 See, J. Repečka, Der gegenwärtige völkerrechtliche Status der baltischen Staaten, unter besonderer Berücksichtigung 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. 24 See further, W. Czaplinski, ‘State Succession and State Responsibility’ (1990) 28 Canadian Yearbook of International Law, pp. 339−359.

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State Responsibility and the Challenge of the Realist Paradigm 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 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: ‘[l]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 matière 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

25

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. 26 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. 27 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.

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Lauri Mälksoo 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. 2.2. 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 loyally-formed party, government, administrative and judicial institutions share joint responsibility – to the extent that they carried out the policies of a foreign power.’29 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.

28

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; I. Teder, N. Liidu agressiooniga Eesti Vabariigile tekitatud kahjude hüvitamisest, (About the Compensation of Damages Inflicted upon the Republic of Estonia with the Aggression of the USSR), ibid., pp. 252−254. 29 See, Kahk, ibid. 30 Republic of Lithuania Law on Compensation of Damage resulting from the Occupation by the USSR, 13 June 2000, No. VIII-1727, Vilnius.

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State Responsibility and the Challenge of the Realist Paradigm 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 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 31

See, e.g., T. Sildam, ‘Valitsus kõhkleb Moskvalt valuraha küsimast’ (The [Estonian] Government Hesitates to Ask Compensation from Moscow), Postimees, 2 July 2002. 32 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. 33 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. 34 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. 35 H. Käärik, ‘Mina nõuan, sina nõuad’ (I demand, you demand), Postimees, 9 August 2002.

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Lauri Mälksoo 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, I 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 (Diet) this past June. The Russian Foreign Ministry opportunely appraised it as an instrument unfriendly toward Russia. Stressing that we could 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 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 36

A. Avdeev, ‘Russian-Lithuanian Relations: An Overview’ (2000) Lithuanian Foreign Policy Review No. 2 (6), pp. 27−33 at 29. (Emphasis added) 37 See, e.g., G. Ginsburgs, From Soviet to Russian International Law. Studies in Continuity and Change, The Hague, Nijhoff, 1998.

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State Responsibility and the Challenge of the Realist Paradigm ‘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 ‘socialclass 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] ackowledge[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 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 38

Р. Борбов, Основные проблемы теории международного права, Москва, Международные отношения, 1968, p. 80. (translation from Russian.) 39 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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Lauri Mälksoo 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 ‘legalistic-moralistic’ 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 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 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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State Responsibility and the Challenge of the Realist Paradigm 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 Responsibilty 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 Realpolitik42, mutatis mutandis acommodated 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 41

H. Bull, The Anarchical Society. A Study of Order in World Politics, 2nd. ed., New York, Columbia University Press, 1995, pp 88−89. 42 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, Parkkland, 2000.) 43 ‘Stand up, demand justice’ is an allusion to an Estonian patriotic song. 44 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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Lauri Mälksoo almost 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,

45

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’. 46 A. Moishes, ‘Russia-Lithuania: Preserving Interaction’ (2000) Lithuanian For. Pol. Rev., No. 2(6), p. 83.

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State Responsibility and the Challenge of the Realist Paradigm consequently, deterioration of bilateral relations will become unavoidable.’47

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 the 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

47

Ibid., pp. 83−84. 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, Tübingen, 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. 49 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, fn 13; and F. Tesón, ‘Realism and Kantianism in International Law’ (1992) 86 American Society of International Law Proceedings, pp. 113−118, at 113. 50 N. Chomsky, Rogue States. The Rule of Force in World Affairs, London, Pluto Press, 2000, p. 170. 48

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Lauri Mälksoo 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. 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.

51

T. Sildam, ‘Välisminister Ilves: ajalugu pole pudupood’ (Foreign Minister Ilves: 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 Ilves 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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State Responsibility and the Challenge of the Realist Paradigm 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 politicallysensitive 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 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 52

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

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Lauri Mälksoo realist argument about unequal power relations and non-effectiveness of international law.

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A Bill for the Occupants or an Issue to Negotiate: The Claims of Reparations for Soviet Occupation* Rytis Satkauskas**

Contents 1. Introduction 2. Is There a Claim? 2.1. Request for Damages in the Context of the Withdrawal of Troops 2.2. Continued Efforts Thereafter 3. The Objective Nature of the Right to Reparations 3.1. The Obligation for Reparations 3.2. The Limits of the Obligation to be Defined 4. The Next Steps: Continued Hesitation 4.1. Not a Priority Question 4.2. Finding the Path to Negotiations 5. Conclusions 1. Introduction After a lengthy discussion, on 13 June 2000 the Lithuanian Parliament adopted a Law on Compensation of Damages Resulting from the Occupation by the USSR (Law on Compensation).1 The law advised the Lithuanian government to submit an estimate of damage inflicted by the Soviet occupation and to form a delegation for negotiations with Russia for compensation. Clear terms were indicated for the first steps: 1 September 2000, form the delegation; 1 October 2000, finish the calculations; and 1 November 2000, submit the written estimate to Russian authorities, and similarly inform the United Nations, the Council of Europe and the European Union. So far, the calculation of the damages remains in the archives of the Lithuanian Government. At the same time the Law on compensation remains *

The view expressed in this article does not necessarily reflect the view of the Lithuanian government. ** Masters of Law Vilnius University (1999), DEA in Public International Law Université Paris I, Panthéon-Sorbonne (2000). 1 English text at http://www3.lrs.lt/cgi-bin/getfmt?C1=w&C2=104885. For the text of the law, see also, the article by D. Žalimas in this Yearbook

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Rytis Satkauskas in force, unchanged. What prevents the executive from further action and why does the legislature keep silent? This article sheds some light on the process of enforcing international legal responsibility against the Soviet Union for the damage done by the occupation and annexation of the Baltic States. It begins with the invocation measures already taken, then, turns to the legal grounds upon which the claim is based, and finally offers some thoughts on possible future actions. The author’s intention is to concentrate on the inter-State claim already advanced, reserving the issue of possible private demands for compensation for future research. The issue of jurisdiction by international bodies is also intentionally omitted. 2. Is There a Claim? It is clear that a State that wishes to protest against a breach of international law by another State, or remind an alleged bad-acting State of its international responsibilities, should formally notify the alleged violator by protest, consultation or other means. Article 44 paragraph 1 of the Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility), adopted by International Law Commission (ILC) at its fifty-third session,2 requires that ‘an injured State which invokes the responsibility of another State shall give notice of this claim to that State’, and in the contrary, the responsibility of a State may not be invoked if ‘the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim’ (Article 46(b)). Tacit agreement negates the obligation of the aggressor to provide reparation.3 2

In accordance with the Statute of the ILC, the adopted articles were submitted to the General Assembly accompanied with the recommendations to take note of the draft articles in resolution and to consider the possibility of convening an international conference with a view to concluding a convention on this topic. See Report of the International Law Commission, Fifty-third session (23 April−1 June and 2 June−10 August 2001), Doc. A/56/10, New York, United Nations, 2001, pp. 41, 42. 3 See the Certain Phosphate Lands in Nauru case, where the International Court of Justice (ICJ) recognized that ‘even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible. [The Court] notes, however, that international law does not lay down any specific time limit in that regard. It is therefore for the Court to determine n the light of the circumstances of each case whether the passage of time renders an application inadmissible’. Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary

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The Claims of Reparations for Soviet Occupation As Lithuanian Government gained international recognition at the beginning of the last decade, negotiations began with the USSR on various issues, including the issue of compensation of damage resulting from the Soviet occupation. Resolution of 4 June 1991, On compensation for the damage inflicted by the USSR on the Republic of Lithuania and its Citizens, advised the Government to submit calculations of damage to the State delegation for the negotiations with the USSR, and instructed the delegation to formally present the issue to the USSR.4 The claim for occupation damages naturally went in line with the Baltic statement on the recognition of continuous statehood and illegality of its annexation by the USSR; only the status of continued statehood of the three Baltic Republics ensures for them the legal interest necessary to invoke the international responsibility of the USSR. At the same time it logically obliges them to pursue the claim. Thus, the claim for damages was at the same time the direct precondition and the consequence of the continued statehood of the three Republics of 1940.5 At the time, however, the talks on this issue had not been successful for Lithuania. 2.1. Request for Damages in the Context of the Withdrawal of Troops The Act of the Supreme Council of the Republic of Lithuania on the Reestablishment of the State of Lithuania of 11 March 1990 proclaimed the reestablishment of the execution by the State of its sovereign powers. The unauthorized presence of foreign military forces clearly contradicted this declaration. The compensation issue was raised in 1991 together with the question of withdrawal of the troops of the former USSR from the territory of Lithuania. Objections, I.C.J. Reports 1992, pp. 253−254, para. 32. There are also many examples throughout history of expressed waiver of right to reparations. Many Asian countries, for instance, renounced their claims against Japan after World War II; see, W. Morway, ‘Peace Treaty with Japan’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, North-Holland, Amsterdam, 1982, p. 128. The United States and the United Kingdom did the same with respect to Italy; see, B.J. Cohen, ‘Reparations in the Post War Period’, Reprints in International Finance, No. 9, New Jersey, Princeton University, 1968, p. 272. 4 Lithuanian text at http://www3.lrs.lt/cgi-bin/getfmt?C1=w&C2=1394. 5 See, for details, R. Satkauskas, ‘États Baltes: succession ou identité’, Mémoire DEA, Université Paris I Panthéon-Sorbonne, sous la direction de Brigitte Stern, Paris, 2000, available at http://addioi.free.fr/travaux/memoires/memoires_etats.html.

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Rytis Satkauskas A substantial part of the damage to Lithuania was inflicted by the mere presence of the occupational forces and the resulting destruction of landscape, pollution of the environment and as well as other effects.6 Lithuania’s former Defence Minister Česlovas Stankevičius recalled that initially Lithuania also demanded compensation for the weaponry and the military assets of the Lithuanian Armed Forces seized in 1940 in the form of new weapons and military equipment necessary for the restoration of Lithuania’s defence capacity.7 On 14 June 1992, a referendum was held demanding ‘the withdrawal of the former USSR troops from the territory of the Republic of Lithuania should be commenced immediately and completed in 1992, and that the damage inflicted to the people of Lithuania and the State should be compensated’.8 Shortly thereafter, Article 15 of the CSCE Helsinki Summit Declaration adopted on 10 July 1992 demanded the rapid, orderly and complete withdrawal of foreign troops from the territory of the Baltic States.9 As prescribed by paragraph 76 of the Helsinki Final Recommendation, the Lithuanian interpretative statement was read when adopting the Declaration stating that, being the successor to the international rights and obligations of the USSR, Russia is obliged to eliminate all consequences of the 1940 annexation, including compensation for the damages inflicted to Lithuania.10 6

According to approximate assessment presented by the experts of the Lithuanian delegation conducting the negotiations at that time, the damage directly inflicted by the occupation troops as well as the damage caused by their presence to the people, to nature, to assets, to economy, and to agricultural assets and the forests could amount to USD 80−90 billion. See Č. Stankevičius, ‘Enhancing Security of Lithuania and Other Baltic states in 1992-94 and Future Guidelines’, NATO Individual Democratic Institutions Research Fellowship Report, 1994−1996, Chapter 2, note 41, available at http://www.nato.int/acad/fellow/94-96/stankevi, accessed on 1 January 2002. 7 See Stankevičius, supra note 6, Chapter 2, paragraph 35. It was ascertained then that the value of the weaponry of the Lithuanian Armed Forces and its military assets comprised not less than USD 600 million. 8 Resolution of the Supreme Council of the Republic of Lithuania No. I-2683 of 30 June 1992 On the decision adopted by the citizens of Lithuania on referendum of 14 June 1992. Lithuanian text available at http://www3.lrs.lt/cgi-bin/getfmt?C1=w&C2 =2210. 9 Text at http://www.osce.org/docs/english/1990-1999/summits/hels92e.htm. 10 See Paragraph 4 of the Preamble of the Law on compensation of 13 June 2000. Copy of Interpretive Statement on file with author.

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The Claims of Reparations for Soviet Occupation In accordance with the 1992 Helsinki documents, the General Assembly of the United Nations also adopted Resolutions 47/21 and 48/18, expressing its concern about the ‘stationing of foreign military forces on the territories of Estonia, Latvia and Lithuania without the required consent of those countries’.11 However, neither the Helsinki documents nor the UN Resolutions addressed the right to reparation or redress. With the increasing international pressure and the changes in Soviet Government, agreements concerning the withdrawal of the troops were finally signed on 8 September 1992. However, Moscow postponed and later refused to sign four of the negotiated agreements, including the one containing the provisions on compensation for damage.12 As for the Lithuanian side, the withdrawal of troops was then the priority task.13 Similar efforts were taken by Latvia and Estonia to invoke the responsibility of the new Russian Federation, as successor to the USSR, for illegal annexation. Latvian Prime Minister, Māris Gailis officially expressed his concern about the damage inflicted by the occupational army at the United Nations General Assembly on 7 December 1994.14 This declaration primarily stressed the ecological damage caused by the occupational military forces. Indeed, the scale of the destruction of the environment related to the Soviet military presence was enormous. The evaluation carried out jointly by Baltic and foreign experts established that it would take 20 years and require up to USD 20 billion to clean contaminated soil, forest and water in more than a million Soviet military facilities, which occupied around two per cent of on the land territory of the three

11

United Nations General Assembly Official Records, Forty-seventh Session, Doc. A/RES/47/21 and United Nations General Assembly Official Records, Forty-eight Session, Doc. A/RES/48/18. 12 Russia acknowledged in these drafts its international obligation to withdraw the armed forces and consented to compensate for the weaponry and assets of the Lithuanian Armed Forces seized in 1940, as well as for the ecological damage inflicted by the occupational troops after 24 December 1991, when Russia succeeded to the obligations of the former USSR. For details on the withdrawal of troops, see Stankevičius, supra note 6. 13 In its declaration of 10 September 1993, the Lithuanian parliament expressed its belief that the agreed further negotiations on the compensation issue would contribute to the further normalisation of the relations between the two countries. 14 United Nations General Assembly Official Records, Forty-ninth Session, 79th Meeting, Doc. A/49/PV.79.

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Rytis Satkauskas Republics.15 It is not surprising therefore that the new Governments were so firm in their demands. The Estonian case is somehow more complicated due to the fact that the agreement of 26 July 1994 between Estonia and Russia on the withdrawal of troops confirmed expressly that ‘the parties recognize that, once this treaty becomes effective, all finances, property, and other claims connected with the Armed Forces presence on the territory of the Republic of Estonia, including ecological and other damage, be regarded as completely settled’.16 Nevertheless, officially this was not considered by the Estonian Foreign Ministry as the waiver of all the claims for damage done by illegal occupation.17 Therefore, it is doubtful whether this refusal would meet the criteria prescribed by the International Court of Justice in Phosphate Lands in Nauru case that the waiver of claims shall be effected in a clear and unequivocal manner.18 2.2. Continued Efforts Thereafter The damage was not exclusively associated with the Soviet armed forces deployed in the Lithuanian territory. Instead, governmental regulation No. 484 of 5 April 1995 sets up a commission for the questions of damage inflicted to the Republic of Lithuania by the former USSR during the years 1991−1993 and the damage done by the armed forces of the Russian Federation during the years 1940−1991. Similarly, Article 1 of the Law on Compensation fixes two separate ‘periods of damage inflicted by the USSR occupation of Lithuania’: before and after the restoration of independence. That is, the presence of the occupational army after the proclamation of restored independence was considered as continued aggression. Notwithstanding the former multiple calculations, on 13 February 1996 the program of action for fixing the damages was adopted by governmental regulation No. 242.19 It sets a list of several groups of damage including: 15

See Stankevičius, supra note 6, Chapter 2, section 4. See Article 8, Treaty between the Republic of Estonia and the Russian Federation on the withdrawal of the Armed Forces of the Russian Federation from the territory of the Republic of Estonia and the conditions of its temporary stay in its territory, done in Moscow on 26 July 1994. On file with author. 17 See, Press Release of Estonian Foreign Ministry of 2 September 1994 on troop withdrawal. On file with author. 18 See Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, I.C.J. Reports 1992, pp. 247, para. 13. 19 Lithuanian text at http://www3.lrs.lt/cgi-bin/getfmt?C1=w&C2=24625. 16

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The Claims of Reparations for Soviet Occupation damage resulting from repressions, executions, deportation, forced labour, forced recruitment, confiscation of private property, accounts and valuables, forced resettlement, expenses of repatriation, damage inflicted to the catholic church, lost cultural heritage, damage done by presence of occupational armed forces, loss done by the armed aggression in 1990−1992, expenses of restoration of public administration, the army and monetary system, environmental damage, moral damage, and, curiously, part of the German reparations for damages inflicted to Lithuania by the latter in 1941−1944.20 These calculations concluded, at that time, that the Soviet Union inflicted USD 667,700,000 of damage on Lithuania;21 this breathtaking amount was later drastically reduced.22 Finally, in accordance with the Article 3 of the Law on Compensation, ‘The Fund for the Return to the Homeland of the Persons Deported by the USSR’ was established by governmental regulation on 8 November 2000. The Law also advised the Government to appeal to the Russian Federation regarding the allocation of funds for the return to the homeland of the persons deported from Lithuania and their descendants. This appeal was based on the commitment of Russian Federation ‘to assist persons formerly deported from the occupied Baltic states or the descendants of deportees to return home according to special repatriation and compensation programmes which must be worked out’, assumed by the Russian Federation before the Council of Europe on 25 January 1996.23 It should be remembered that altogether, around fifteen per cent of the population of the Baltic States was arrested, deported, and/or executed by the USSR in order to overcome the resistance, both intellectual and military, against the communist regime.24 20

The latter claim bases on the fact that the Baltic States did not participate in the agreements on World War II reparations; 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” ’ (2001) 1 Baltic Yearbook of International Law, pp. 148−151. 21 R.M. Tracevskis, ‘Ladsbergis asks Russia for billions’, The Baltic Times, 18−24 May, 2000, pp. 1, 6. 22 See the text accompanying infra note 59. 23 See Russia’s request for membership of the Council of Europe. Document OPI 193 (1996) at http://stars.coe.fr/ta/ ta96/EOPI193.htm. 24 See, L. Mälksoo, ‘Soviet Genocide? Communist Mass Deportation in the Baltic States and International Law’ (2001) 14 Leiden Journal of International Law, pp. 757−787.

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Rytis Satkauskas The Council of Europe is not the only inter-governmental organisation addressing these questions. Compensation issues were also frequent on the agenda of the Baltic Assembly – the inter-parliamentary organ of the three Baltic States. Its resolution of 15 May 1994 On Relations with Russia urges the Russian Federation to ‘demonstrate justice, understanding and a sense of responsibility, and to recognize the material and moral damage inflicted on the Baltic States and citizens during the Soviet occupation and to assist them in resolving problems related to the repatriation of citizens of all four States’ and to ‘recognize the fact that as the Russian Federation is the successor State of the Soviet Union it is also responsible for compensation of the damage and loss caused by the Soviet Union to Estonia, Latvia and Lithuania during the years of occupation’.25 Unresolved, the same question was raised once again six years later in the 17th session of Baltic Assembly held in December 2000 in Vilnius. A document demanding the recognition of the former occupation was proposed by the Estonian delegation, but was not adopted due to a lack of time and was postponed until the next session that was held in May 2001 in Riga.26 Finally the Latvian delegation refused once again to vote for the document at the 18th session of the Baltic Assembly. This time the resolution called upon the Russian Federation as the successor of the USSR to enter into formal negotiations with the three States concerning the compensation for damage, assessing its extent, and possible solutions for this matter.27 The Baltic parliaments have also launched appeals to foreign countries and international organisations to help them achieve the goal of repairing the consequences of the aggression. On 22 August 1996, the Latvian Parliament passed a declaration stating that the Soviet Union had occupied Latvia and calling for political support to eliminate the results of that occupation.28 The Lithuanian Seimas adopted a similar appeal on 25 November 1992. It is true that the aggression and mass deportations are now considered a violation of the customary erga onmes obligations of States. In conformity wit the Judgment of the International Court of Justice in Barcelona Traction 25

See entire text at http://www.baltasam.org/activity/documents/04_03_document. html. 26 See R. M. Tracevskis, ‘Baltic Assembly reaches some consensus’, The Baltic Times, Dec.14−20, 2000, pp. 1−2. 27 ‘Latviai buvo prieš’ (Latvians were Against), Lietuvos Rytas, 4 June 2001, p. 1. 28 See S. Girnius, ‘Restraint and resentment from the Baltic States’, Transition, No. 23, 15 November 1996, p. 18. See text in French at http://www.letton.ch/lv occup.htm.

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The Claims of Reparations for Soviet Occupation case, all States have the right to vindicate erga omnes obligations, such as deriving ‘from the outlawing of acts of aggression, and of genocide, and also from the principles and rules concerning the basic rights of the human person’.29 However, Estonia, Latvia and Lithuania received no official support in their actions for compensation of damages. In one way or another the claims for compensation were advanced by each of the three Baltic States, mostly separately in different times and in different extents, but also by a trilateral declaration. The form of their actions varied from the declarations of high-ranking officials or national institutions to the demands presented directly by diplomatic communications or discussions. Also, the amount of the compensation changed with every new calculation of the damage. Nevertheless, their will to seek redress for the injustice inflicted to the population of the three countries remained unchanged. As of this writing, no State has unequivocally waived its demands. After all, notice of a claim for the responsibility of a State need not be in writing, nor is it a necessary condition to provide reparation.30 Still, an injured State is entitled to respond to the breach and the first step should be to call the attention of the responsible State to the situation and to call on it to take appropriate steps to cease the breach and to provide redress. Once it this is done, it is up to the claimant to decide the moment and the form of further action. 3. The Objective Nature of the Right to Reparations The first paragraph of the Law on Compensation refers to the universally recognised norms and principles of international law as well as the international practice of compensation of damage caused by occupations, including the damage caused by the German occupation to the other countries and the citizens thereof, during the World War II period as a basis to invoke the responsibility of the Russian Federation for damage resulting from the occupation of Lithuania by the USSR. Let us take a more precise look at these grounds.

29

See Case concerning the Barcelona Traction Light and Power Company, Ltd. (Second Phase, Belgium v. Spain), ICJ Reports 1970, p. 32. 30 See Commentary to Article 43, in Report of the International Law Commission, Fifty-third session (23 April−1 June and 2 June−10 August 2001), Doc. A/56/10, New York, United Nations, 2001, p. 302.

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Rytis Satkauskas 3.1. The Obligation for Reparations Article 1 of Articles on State Responsibility declares: ‘Every internationally wrongful act of a State entails the international responsibility of that State.’31 Even though Articles on State Responsibility are still in a form that, as such, may not be legally binding, it is hard to disagree that the right to reparation is of a customary nature. In the well-known Chorzów Factory case, the Permanent Court of International Justice has indicated that ‘it is a principle of international law, and even a general conception of law, that any breach of an engagement involves an obligation to make reparation’.32 It is generally agreed that this principle should equally apply to damage caused by aggression in the form of illegal occupation of a territory, a violation one of the peremptory norms of general international law.33 During the years of de-colonization it developed with a new strength. Article 4(f) of the Declaration of the General Assembly of the United Nations On the Establishment of a New International Economic Order, contained in its Resolution 3201 (S-IV) of 1 May 1974, states that ‘countries, territories and nations which are occupied by other states have the right to full reimbursement or compensation for exploitation and exhaustion, as well as for damage inflicted to environment and other resources of said country, territory or nation’. Equally, Article 16 of the Charter of Economic Rights and Duties of States, adopted by Resolution 3281 (XXIX) of 12 December 1974, imposes a duty to liquidate all the consequences of all kinds of aggression and occupation. The question of whether the incorporation of the Baltic States into the USSR can be regarded as aggression is easy to answer by comparing it with another similar case. On 14 June 1940, the Lithuanian delegation in Moscow was faced with an ultimatum demanding the formation of a new pro-Soviet government and a possibility for the Soviet Army to move freely within the country. Two days later was the turning point for Estonia and Latvia; all three Governments surrendered and Soviet troops met no organised resistance. Shortly, the puppet authorities presented demands to accept Estonia, Latvia and Lithuania into ‘the Family of Soviet Republics’. The identical case of Austria, annexed by the Third Reich, was evaluated by the 31

Supra note 2. See Factory at Chorzów, Jurisdiction, P.C.I.J., Series A, 1927, No. 9, p. 21. 33 See Commentary to Article 40, in Report of the International Law Commission, Fifty-third session (23 April−1 June and 2 June−10 August 2001), Doc. A/56/10, New York, United Nations, 2001, p. 283. 32

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The Claims of Reparations for Soviet Occupation judgment of the Nuremberg International Criminal Tribunal as an act of aggression. The argument that there was a desire for the union of Austria and Germany was regarded by the Tribunal as ‘really immaterial for the facts 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’.34 The Soviet Union declared the Anschluss as the breach of the Covenant of the League of Nations and the Treaty of Paris (Briand−Kellogg Pact). The Soviet delegate to the League of Nations stressed that neither the direct seizures and annexations of other people’s territory, nor those cases where such annexation are camouflaged by setting-up of puppet ‘national’ governments, could be recognised as legal.35 The illegality of the annexation of Lithuania, Latvia and Estonia by the USSR was ascertained many times. Continued protests and declarations of non-recognition of the forced incorporation together with the concrete measures taken by the Western democracies to ensure the functioning of Baltic legations and preserve their property abroad during all the 50 years of occupation supported the peoples of the three countries in their struggle for independence. The continuity of the three Baltic States of 1940 was generally accepted by the international community as they regained sovereignty. In 1989, the Soviet Union itself condemned the secret protocols of the Molotov-Ribbentrop Pact of 1939, which led to the annexation of the Baltic countries.36 After the examination carried out by a special commission, the Supreme Council of the USSR affirmed by its resolution of 24 December 1989, that, inter alia, ‘the protocols have not created a new legal basis for the relations of the Soviet Union with the third countries but were used by Stalin and his entourage to present ultimatums and threaten to use force against other States in violation of obligations assumed against them’.37 Similarly, in the preamble of the Treaty on the Foundations of Inter-State Relations between the Republic of Lithuania and the Russian Federation of 29 July 34

Judgment of the International Military Tribunal for the Trial of German Major War Criminals at http://www.yale.edu/lawweb/avalon/imt/imt.htm. 35 Cited in D. Žalimas ‘Legal Issues on the Continuity of the Republic of Lithuania’ (2001) 1 Baltic Yearbook of International Law, p. 7. 36 On the Molotov-Ribbentrop Pact, see S.Sužiedėlis, ‘The Molotov-Ribbentrop Pact and the Baltic States: An Introduction and Interpretation’, Lituanus, Vol. 35, 1989, No. 1. 37 Text in French at http://www.letton.ch/lvriben2.htm.

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Rytis Satkauskas 1991, Russia recognized that the USSR annexed Lithuania in 1940, and stated that the consequences of the annexation should be eliminated.38 Taking into account the fact that according to international law Russia is the successor of rights and obligations of the former Soviet Union,39 the claim for damages from occupation is attributable to the Russian Federation, which, however, gives a strong response on the demands for compensation. Leaving apart the repeated argument of voluntary incorporation of the Baltic States into the Soviet Union,40 from Russia’s point of view one must also recognize all the positive developments the Baltic States experienced during the Soviet era.41 Even the sum of 21 million USSR roubles invested in the territory of Lithuania was once mentioned.42 38

The unofficial translation reads as follows: ‘[Parties] … being convinced that once the Union of Soviet Socialist Republic annuls the consequences of the 1940 annexation violating Lithuania’s sovereignty, created will be additional conditions for mutual trust…’; see text, at United Nations Treaty Series, vol. 1787, 1994, No. I31051, New York, United Nations, 1994, pp. 20−26. 39 See, for more on succession of States in the former USSR, B. Stern, ‘Succession d’États’ (1996) 262 Recueil de cours de l’Académie de droit international, p. 437. 40 Russian deputy foreign minister Mr. Ivan Sergeyev declared on 28 March 2001 that in 1940 Soviet Army entered territory of Lithuania with the permission of the latter in accordance with the international law of that period and the decision on annexation was based upon demand of Lithuanian authorities. See ‘Moscow revising history on eve of Lithuanian presidential visit’, BNS report of 28 March 2001. 41 L. Kaupilla, ‘The Baltic Puzzle. Russia’s Policy towards Estonia and Latvia 19921997’, Pro gradu, January 1999, University of Helsinki, pp. 36−47, accessed on 1 January 2002. 42 These reclamations were categorically rejected by the Lithuanian side. In an interview for French magazine ‘Politique internationale’ Vytautas Landsbergis then Chairman of Lithuanian Parliament have logicaly remarked: ‘Quant au problème de ‘réparations’ que nous devrions verser pour les “investissements” soviétiques en Lituanie, permettez-moi de vous faire remarquer que nous n’avons jamais demandé à l’URSS ni de nous occuper ni de nous accorder quelque aide économique que ce fût. Pendant 50 ans l’Union soviétique a fait ce qu’elle a voulu de notre économie et de notre peuple. Si les Soviétiques ont dépensé 21 milliards de roubles pour maintenir notre pays sous leur occupation, dévaster sa nature et exploiter son peuple, il serait bien étrange, vous en conviendrez, de faire payer les frais entraînés par l’usage de la violence à ceux qui en ont été des victims’. See, V. Landsbergis, ‘Lituanie: sortir de l’empire’, entretien réalisé par Jacques Broyelle, Politique internationale, n 48, 1990, p. 26.

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The Claims of Reparations for Soviet Occupation Nevertheless, as explained in the commentary to Articles on State Responsibility, ‘the general obligation of reparation arises automatically upon commission of an internationally wrongful act and is not, as such, contingent upon a demand or protest by any State, even if the form which reparation should take in the circumstances may depend on the response of the injured State or States’.43 3.2. The Limits of the Obligation to be Defined Even though the right to reparation for the violation of international law is universally recognized, the fact of violation, the amount of loss and the methods of compensation are to be defined in each separate case. For instance, by signing and ratifying the Treaty of Versailles, Germany accepted all reparation clauses contained in that treaty44. In the aftermath of World War II German reparations were agreed by the Allies; peace treaties of 1947 provided for reparations from Italy, Bulgaria, Hungary, Romania and Finland, and Japan, following the provisions of the San Francisco Peace Treaty, signed bilateral agreements for a totalling approximately USD 1.5 billion.45 Finally, Iraq’s legal responsibility for losses resulting from its invasion and occupation of Kuwait was established by the legally binding United Nations Security Council Resolution 687 of 3 April 1991.46 However,

43

Commentary to Article 31 in Report of the International Law Commission, Fiftythird session (23 April−1 June and 2 June−10 August 2001), Doc. A/56/10, New York, United Nations, 2001, p. 224. 44 Article 231 of the Treaty reads: ‘The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage … as a consequence of the war imposed upon them by the aggression of Germany and her allies’. More on reparations after World War I; see C.P.R. Romano, ‘Woe to the Vanquished? A Comparison of the Reparations Process after World War I (1914-18) and the Gulf War (1990-91)’ (1997) 2 Austrian Review of International and European Law, pp. 361−390. 45 I. Seidl-Hohenveldern, ‘Reparations after World War II’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, North-Holland, Amsterdam, 1982, pp. 180−184. 46 It stated inter alia that: ‘Iraq . . . is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.’

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Rytis Satkauskas except for Iraq, full compensation was not demanded in the above examples.47 It is true, that the complexity of estimating the damage done by the fifty year occupation of a territory makes it almost impossible for any objective calculation. Generally or in relation to a particular aspect of a claim, the form and amount of reparation, whether it should be restitution or compensation, or even one of declaratory nature,48 can form the object of negotiations of interested States. Indeed, looking back at the history, especially World War II practice, referred to in the preamble of the Law on Compensation, we can take an obvious lesson of different economic and political consequences of war reparations.49 On the one hand we have the paradoxical fact that West Germany paid in total a mere USD one billion and East Germany another USD 14 billion of the agreed World War II reparations.50 On the other hand we see the unquestionable success of German decisions to pay reparations for Jews and forced labourers.51 Negotiations helped to find the form of reparations most acceptable for both victims and the aggressors. For instance, Italy and Japan insisted on satisfying their reparations obligations to the victim nations whenever possible in kind rather than in cash.52 Reparation clauses should not be associated with the peace treaties exclusively. Settlements of outstanding claims are contained in many postwar bilateral agreements.53 The settlement of disputes by negotiations is especially helped when the responsible party for one reason or another is not willing to admit violation 47

A. Steinkamm, ‘War Damages’, in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 4, North-Holland, Amsterdam, 1982, p. 301. 48 Ian Brownlie even separates the protest aiming to assert the illegality of an act from the claim for State responsibility; see, I. Brownlie, System of the Law of the Nations, State Responsibility, Part I, Oxford, Clarendon, 1983, p. 29. 49 See, the study in B.J. Cohen, ‘Reparations in the Post War Period’, Reprints in International Finance, No. 9, New Jersey, Princeton University, 1968, pp 268−288. 50 Not forgetting another USD 4 billion that Western Germany received in economic aid. Source: A. Cairncross, The Price of War, Oxford, Blackwell, 1986, p. 219. 51 See for details, R. Bank, ‘The New Programs for Payments to Victims of National Socialist Injustice’ (2001) 44 German Yearbook of International Law, pp.307−352. 52 B.J. Cohen, ‘Reparations in the Post War Period’ (1968) 9 Reprints in International Finance, Princeton University, p. 277. 53 See, I. Brownlie, System of the Law of the Nations, State Responsibility, Part I, Oxford, Clarendon, 1983, p. 120 et seq.

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The Claims of Reparations for Soviet Occupation of an international norm, for instance, where a violator seeks to exclude the value of the settlement as a precedent with respect to possible other claimants for compensation. Thus, after the bombardment of the State of San Marino on 26 June 1944 by British air forces, the United Kingdom did not admit the violation of neutrality. After almost twenty years of dispute, on 5 July 1961, the two counties signed a common declaration whereby the UK assumed the obligation to provide GBP 80,000 ‘as a gesture of sympathy for the suffering of the people of San Marino caused by the bombardment’.54 Similarly, in settlement of the issue of passage through the Great Belt Strait, Denmark claimed that the compensation payment for the narrowed navigation possibilities was made on ex gratia basis and without reference to any Finnish right.55 Taking the terminology of the International Law Commission, the legal consequences of an internationally wrongful act are not for an injured State to stipulate or define. The indication of what form the reparations should take, however, may be helpful for the responsible State to know what would satisfy the injured State.56 4. The Next Steps: Continued Hesitation It is hard to argue whether the demand for compensation was initially advanced as a mere remonstrance of the illegality of the presence of Soviet troops in the territory of the Baltic States, only as a political action in order to gain political sympathies, or was it indeed a legal request for reparations.57 54

Immagini Memoria Coscienza: Il bombardamiento del 26 giugno 1944, San Marino, 1996, p. 50. 55 See M. Koskenniemi, ‘Case Concerning Passage Through the Great Belt’ (1996) 27 Ocean Development & International Law, pp. 255−289. 56 See, Commentary to Article 31, in Report of the International Law Commission, Fifty-third session (23 April−1 June and 2 June−10 August 2001), Doc. A/56/10, New York, United Nations, 2001, p. 303. In this respect it is of interest to quote the Concurrent Resolution of the US Congress of 10 May 1996, where it was stated that ‘the Government of Japan should immediately pay reparations to United States military and civilian prisoners of war held by the Japanese during World War II in an amount equal to not less that $22,000 for each such prisoner of war’, 104th CONGRESS, 2nd Session, H.CON.RES.176 at accessed on 1 January 2002. 57 It is not required that the invocation of State responsibility be notified by means of formal diplomatic correspondence. In Certain Phosphate Lands in Nauru it was

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Rytis Satkauskas The satisfaction from the aggressor State provided by a statement in the Lithuanian−Russian Treaty of 29 July 1991,58 did not suffice, as the referendum of 14 June 1992 indicated the firm position of the population of Lithuania to seek the reparation and this could not be neglected nor repealed by the legislative. It was repeated several times thereafter on different occasions and the damages are already calculated. Meeting its legal deadline, a governmental committee announced on 6 October 2000 that the Soviet occupation of Lithuania caused an estimated USD 20 billion in damages, including the costs for property loss by destruction or seizure, and the persecution of individuals and groups.59 Once established, the claim, except if officially waived, would last.60 In the words of the International Law Commission: a mere lapse of time without a claim being resolved is not, as such enough to amount to acquiescence.61 4.1. Not a Priority Question In the Baltic reparations cases, it will probably take time until the next step in this direction will be taken. It is clearly understood by the foreign policy makers of Estonia, Latvia and Lithuania that any such reclamation would weaken mutual reliance, and create tension and instability in the region. This is especially true where Latvia and Estonia are concerned.

sufficient that the respondent State was aware of the claim as a result of the communications from the claimant in the form of press reports of speeches or meetings. See Certain Phosphate Lands in Nauru (Nauru v. Australia), Preliminary Objections, I.C.J. Reports 1992, p. 254, para. 33−34. 58 Supra note 27. 59 ‘Soviet Occupation said to have cost Lithuania $20 billion’, RFE/RL Baltic States Report, Vol. 1, No. 33 of 16 October 2000. Text also at http://www.rferl.org/Balticreport/2000/10/33-161000.html. The compensation for the violations was calculated as follows: executions USD 7.5 billion, repression USD 1.8 billion, forced recruitment USD 2.3 billion, nationalisation 500 million, damage to the Catholic Church and other violations 200 million; see for original text, ‘Sovietų okupacijos padaryta žala – 20 milijardų dolerių’, Lietuvos Rytas, No. 236, 7 October 2000, p. 2. 60 Supra note 3. 61 See commentary to Article 44 b, in Report of the International Law Commission, Fifty-third session (23 April−1 June and 2 June−10 August 2001), Doc. A/56/10, New York, United Nations, 2001, pp. 309−311.

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The Claims of Reparations for Soviet Occupation Following the Lithuanian Law on Compensation, a similar document was presented before the Latvian Parliament in October 2000. Support for the returnees from Siberia was primarily claimed, and, once again, German payments to Nazi victims was used as an example. The bill has not been passed, however. According to Latvian foreign minister Indulis Bērzinš,‘Our relations with Russia are already not at all simple’, and ‘this would complicate them further’,62 referring to the pending issue of citizenship of the Russian minorities residing in Latvia and Estonia. One must not forget also that in the case of Latvia and Estonia the issue of reparations for occupation is also related to restitution for parts of their territories, taken in 1940. If Russia accepts to pay, it would give another reason for these States to advance their territorial claims. Therefore it is not surprising that Russia does not see any urgency in resolving the reparations case. Lithuanian politicians for the moment also indicate that they are no longer willing to confront their eastern neighbours. Speaking to reporters in January 2001, Lithuanian foreign minister Antanas Valionis identified the improvement of relations with Russia as a priority in the program of the new government, adding that the compensation issue should be raised ‘with much thought’. The spokesman of the Lithuanian foreign ministry added that ‘we will continue bringing it to Russia’s attention, without any negative effect on Lithuanian−Russian relations’ and ‘more so, as the issue should be coordinated within the country before bringing it to the international level’.63 Similarly, on 20 March 2001 after meeting with a delegation of deputies from the Russian Parliament, Lithuanian Chairman Arturas Paulauskas said that the law adopted by the previous Lithuanian Parliament demanding compensation for damages inflicted during the Soviet occupation will not be recalled, but could be revised to make it acceptable to both Russia and Lithuania.64 62

N. Coleman, ‘MPs seek Soviet occupation damages’, The Baltic Times, October 12−18, 2000, p. 2. 63 See, ‘Chairmen of Lithuanian-Russian commission to meet in Nida on Saturday’, BNS report of 19 January 2001. Later he proposed, though unsuccessfully, to include the compensation question in the agenda of Lithuanian−Russian intergovernmental cooperation commission. See RFE/RL Baltic States Report, Vol. 2, No. 8 of 2 April 2001, http://www.rferl.org/balticreport/2001/04/8-020401.html accessed on 1 January 2002. 64 ‘Law on occupation damages to be revised’, The Baltic Times, March 22−28, 2001, p. 6.

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Rytis Satkauskas 4.2. Finding the Path to Negotiations Despite their unwillingness to increase pressure on Russia, neither can Baltic Governments take back already advanced claims. The attempt to change the Law on Compensation has already failed once in January 2001, even though the bill on its revocation was introduced again to the agenda of Lithuanian Parliament in 2002.65 Therefore, at least for the time being, the Lithuanian position could be best illustrated by the words of deputy foreign minister Evaldas Ignatavicius: ‘we are obliged to [raise the compensation issue] by a referendum held and by legislation adopted, and Russia has certain obligations in these matters as well’.66 It can be disputed whether it is even possible for a victim State to revoke a claim when the violation involves a massive abuse of basic human rights and other international norms of the peremptory character, as they are in the case of the Soviet occupation. Recent developments in international law have often affirmed the international obligations of States towards individuals.67 As the Inter-American Court of Human Rights has clearly pronounced in the judgment in the Velásquez Rodriguez case: ‘The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations omitted within its jurisdiction, to identify those responsible, to impose the appropriate punishment and to ensure the victim compensation’.68

Should this obligation be limited to the State’s action at the national level? Probably not: It is generally accepted that States not only have the duty to respect internationally recognized human rights, but also the duty to ensure these rights, even internationally. 65

See ‘Lithuanian lawmakers include revoking of Soviet Compensation bill into spring agenda’, BNS report of 20 March 2002. 66 See ‘Deputy foreign minister says Lithuania to expand bilateral ties’, BNS report of 18 January 2001. 67 See further, A. Randelzhofer and C. Tomuschat (eds.), State Responsibility and the Individual: Reparation in Instances of Grave Violations of Human Rights,

The Hague, Nijhoff, 1999, pp. 320. 68 Judgement, Inter-American Court of Human Rights, Series C, No. 4 (1988), paragraph 174. See further, J. E. Méndez and J. M. Vivanco, ‘Disappearances and the Inter-American Court: reflections on a litigation experience’ (1990) 13 Hamline Law Review, pp. 507−577. 94

The Claims of Reparations for Soviet Occupation On the other hand, as has been clearly reaffirmed lately by the Russian Minister of Foreign Affairs Mr. Igor Ivanov: ‘Lithuanian parliamentarians should review the Law’.69 At the same time, Russian Ministry of Foreign Affairs spokesman Alexander Yakovenko called the Lithuanian Law on Compensation ‘an anachronism . . . in which financial claims against Russia, groundless from the legal point of view, are formulated’.70 Therefore, the way toward negotiations on the reparations for damages seems to be quite long and difficult path. 5. Conclusions Today, the illegality of annexation of the Baltic States by the Soviet Union is generally accepted by the international community. On the contrary, there are no further significant developments concerning claims for damages caused by the annexation and occupation, as the Russian Federation refuses to negotiate the issue, and, presently the Baltic States seem complacent. In the terms of law, neither can the aggressor unilaterally reject the claim, nor can the injured State stipulate the legal consequences of the breach of international law.71 Eventually it is likely that the parties to the dispute find a mutually acceptable solution. As it has already been noted, the claims for reparations for occupation damages is still strongly associated with the logic of the continuity of the pre-war Baltic States.72 During the last ten years it has 69

‘Transcript of Russian Foreign Minister Igor Ivanov Press Conference on Outcomes of Meeting with Lithuanian President Valdas Adamkus (Vilnius, 7 March 2002)’, Daily News Bulletin of Ministry of Foreign Affairs of the Russian Federation Information and Press Department, 12 March 2002. Text at http://www.ln.mid.ru/ website/bl.nsf/900b2c3ac91734634325698f002d9dcf/8c003f26c29d84a043256b7a0 0341719?OpenDocument. 70 ‘Interview to Russian News Agency RIA Novosti in Relation to the Upcoming Visit of Russian Minister of Foreign Affairs Igor Ivanov to Lithuania’, Daily News Bulletin of Ministry of Foreign Affairs of the Russian Federation Information and Press Department, 6 March 2002. Text at http://www.ln.mid.ru/website/bl.nsf/900 b2c3ac91734634325698f002d9dcf/76710954962115b943256b75005cc759?OpenDo cument. 71 Supra notes 43 and 56. 72 The issue of the restitution of the building of Lithuanian Embassy in Paris, occupied by Soviets immediately after the annexation of Lithuania in 1940 and actually used by the diplomatic services of Russian Federation has been expressly mentioned in the last paragraph of the preamble of the Law on Compensation. See

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Rytis Satkauskas reappeared again and again with every more or less radical wind in politics. Besides, the lawmakers are highly motivated by the pressure of those directly victimised by the Soviet repressions. Neither should it be forgotten that the prime objective of this action was to seek the assurance that the aggression would not be repeated, in addition to seeking apology and redress. On the other hand, Russia’s acceptance of payment obligations risks the side effect of endless demands of other victims of Stalin’s injustices. Moreover, it would certainly weaken its position in the outstanding territorial disputes with Latvia and Estonia. Russia’s will to negotiate could possibly be increased by the submission of the demands to an international jurisdiction or by commencement of a class action before the domestic courts. Yet, this has not the occurred. It seems unlikely in the near future that the dispute could be settled by the agreement of all the parties. The continued neglecting of Russia’s international responsibility will certainly provide interesting questions for scholars and lawyers in the years ahead.

for more on this subject, R. Satkauskas, ‘Practice of France with Respect to the Baltic States’ (2001) 1 Baltic Yearbook of International Law, pp. 111−120.

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Commentary to the Law of the Republic of Lithuania on Compensation of Damage Resulting from the Occupation of the USSR Dainius Žalimas*

Contents The text of the Law of the Republic of Lithuania on Compensation of Damage Resulting from the Occupation by the USSR 1. Introduction 2. The Preamble 2.1. Admissibility of the Claim for Compensation (1) Lithuania’s Previous Acts Raising the Demand for Compensation (2) The Role of the Law (3) Russia’s Awareness of the Lithuanian Claim 2.2. The Legal Ground for Russia’s Responsibility (1) The Objective Element of Breach (2) The Subjective Element of Attribution 2.3. The Scope and the Form of Reparation 2.4. Relevant State Practice Concerning Compensation 2.5. Real Estate Issues Mentioned in the Preamble of the Law 3. Article 1 4. Article 2 5. Article 3 6. Conclusion

*

Associate Professor of International Law at the Law University of Lithuania; Ph.D. in Law, Vilnius University; one of the authors of the Law of the Republic of Lithuania on Compensation of Damage Resulting from the Occupation of the USSR.

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Dainius Žalimas

Law of the Republic of Lithuania on Compensation of Damage Resulting from the Occupation by the USSR 13 June 2000. No. VIII-1727 Vilnius The Seimas of the Republic of Lithuania, in line with: the universally recognised norms and principles of international law as well as the international practice of compensation of damage caused by occupations, including the compensation of the damage caused during the World War II period by the German occupations to other countries and the nationals thereof, the 4 June 1991 Resolution of the Supreme Council – Re-constituent Seimas of the Republic of Lithuania ‘On Compensation of the Damage Inflicted by the USSR on the Republic of Lithuania and its People during 1940-1991’, the 29 July 1991 Treaty between the Russian Federation and the Republic of Lithuania on the Fundamentals of Interstate Relations, in which the Parties declared to be ‘convinced that once the Union of Soviet Socialist Republics eliminates the consequences of the 1940 annexation violating Lithuania’s sovereignty, additional conditions for mutual trust between the High Contracting Parties and their peoples will be created’, the will of the people expressed by the universal vote of the nationals of the Republic of Lithuania in the 14 June 1992 Referendum on the withdrawal of the Russian armed forces and compensation for the caused damage and demand that ‘the damage inflicted upon the Lithuanian people and the State of Lithuania be compensated’, which was approved by the 30 June 1992 Resolution of the Supreme Council – Re-constituent Seimas, Paragraph 15 of the 10 July 1992 Helsinki Summit Declaration and the accompanying Interpretative Statement of the Lithuanian Delegation, which notes that the compensation of the damages inflicted on Lithuania, as well as the withdrawal of the Russian occupation troops from the territory of sovereign Lithuania, is an indispensable condition for the elimination of the consequences of the occupation and annexation of Lithuania; taking into account the fact that according to international law, the Russian Federation is the State continuing the rights and obligations of the USSR, and this it acknowledged itself by the 21 December 1991 decision of 98

Commentary to the Law on Compensation the Council of the Heads of States of the Commonwealth of Independent States, the 24 December 1991 letter of the President of the Russian Federation B. Yeltsin addressed to the Secretary General of the United Nations, the 13 January 1992 note of the Ministry of Foreign Affairs of the Russian Federation addressed to the heads of the diplomatic missions, and other documents, as well as the fact that on 23 December 1991 the European Community and its Member States stated that ‘Russia shall continue to implement the international rights and obligations of the former USSR’; stating that although Russia demonstrated a great deal of good will and withdrew its armed forces in accordance with the procedure and within the terms established by the 8 September 1992 agreements, it has not yet eliminated all the consequences of the USSR occupation and annexation of Lithuania, and it still occupies the land and building belonging to Lithuania in Paris and similar issues in Rome have not been resolved as yet, passes this Law: Article 1. Periods of Damage Inflicted by the USSR Occupation on Lithuania The periods of damage inflicted by the USSR occupation on Lithuania shall be as follows: 1) the USSR occupation and damage during the period of 1940-1990, including the damage caused to the Lithuanian people deported and forcibly detained in the USSR territory during 1941-1945, as well as the damage inflicted by the USSR armed forces and repression structures during that period; 2) the damage caused by the USSR, its repression structures and the armed forces during the period of 1990-1991, and the damage caused by the armed forces of the USSR (the Russian Federation in 1992-1993) during the period of 1991-1993. Article 2. Duties of the Government of the Republic of Lithuania The Government of the Republic of Lithuania shall: 1) prior to 1 September 2000 form a delegation of the Republic of Lithuania for negotiations with the Russian Federation concerning the compensation of the USSR occupation damage to the Republic of Lithuania; 2) prior to 1 October 2000 in accordance with the work programme approved by the 13 February 1996 Resolution No. 242 of the Government ‘On the Work Programme on the Evaluation of the Damage Inflicted on the Republic of Lithuania by the Armed Forces of the Former USSR during 1940-1991 and the Armed Forces of the Russian Federation during 19911993’, specify more precisely and finish calculations of the damage caused 99

Dainius Žalimas by the USSR occupation, including payments to the Lithuanian nationals for the damage caused during the USSR occupation and its consequences, as well as expenses related to the return to the Homeland of the deportees and their descendants; 3) prior to 1 November 2000 appeal to the Russian Federation for the compensation of the damage caused during the period of the USSR occupation, submitting the calculations of damage, also inform the United Nations, the Council of Europe and the European Union about this, and constantly seek the support of these international organisations and the Member States thereof when solving the issues of the compensation of the USSR occupation damage to Lithuania; 4) initiate negotiations and constantly seek that the Russian Federation compensate to the Lithuanian people and the State of Lithuania for the damage caused by the USSR occupation; 5) accumulate funds, received from the Russian Federation as the compensation of the damage caused by the USSR occupation, in the separate occupation damage compensation account of the State Treasury, and primarily allocate such funds to compensate for the damage caused to the Lithuanian people due to deportations, forced labour, occupation regime repression and lost property. Article 3. The Fund for the Return to the Homeland of the Persons Deported by the USSR Bearing in mind that on 25 January 1996 the Russian Federation committed itself before the Council of Europe to assist the persons, previously deported from the occupied Baltic States and (or) their descendants, to return to their countries according to special repatriation and compensation programmes, the Government of the Republic of Lithuania shall create a Fund for the Return to the Homeland of the Persons Deported by the USSR, and shall appeal to the Russian Federation regarding the allocation of funds for the return to the Homeland of the persons deported from Lithuania, and their descendants. Based upon the second paragraph of Article 71 of the Constitution of the Republic of Lithuania, I promulgate this Law passed by the Seimas of the Republic of Lithuania. CHAIRMAN OF THE SEIMAS OF THE REPUBLIC OF LITHUANIA

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VYTAUTAS LANDSBERGIS

Commentary to the Law on Compensation 1. Introduction The Law on Compensation of Damage Resulting from the Occupation of the USSR (the Law or Lithuania’s Law on Compensation), adopted by the Seimas (the Parliament) of the Republic of Lithuania on 13 June 2000,1 on the eve of 60th anniversary of Lithuania’s occupation in 1940, has raised much discussion, both in Lithuania and abroad. Mostly, the discussions have been of political rather than legal nature and the main issues are about the time and reasons of adoption of the Law as well as its impact to Lithuania’s relations with Russia.2 Some politicians treated the Law as meaningless because of vague prospects of its implementation, therefore, they accused the initiator of the Law, Professor Vytautas Landsbergis, who at that time was the Chairman of the Seimas and the leader of the ruling Conservative Party, of trying to increase their own popularity before forthcoming elections at the risk of good neighbourly relations with Russia. Others welcomed the adoption of the Law; they were of opinion that it was necessary to remind Russia about injustices suffered by Lithuania as well as about Russia’s moral and legal duty to compensate all losses sustained by Lithuania during the Soviet occupation. According to them, such a law could have been passed much earlier, but nevertheless it was important as a reflection of a firm position based on international law and the will of Lithuanian people. Moreover, the Law was considered as a constant obligation to the future governments not to compromise on the issue of reparation for the sake of any arrangements with Russia. Supporters of the Law stated that even the 1

The first draft of this Law was introduced to the Seimas by its Speaker, Professor Vytautas Landsbergis. It was improved by the working group that consisted of A. Katkus (MP, the Chairman of the parliamentary Committee of National Security and Defence), S. Pečeliūnas and A. N. Stasiškis (MPs, members of the same parliamentary committee), Č. V. Stankevičius (MP, member of the same committee and the Minister of National Defence), D. Žalimas (Legal Adviser to the Minister of National Defence). The final draft was approved and submitted to the plenary sitting of the Seimas by the Committee of National Security and Defence. After the adoption by the Seimas, the President of the Republic, Valdas Adamkus, abstained from signing but did not veto the Law, since he agreed to the content of the Law but disagreed with this kind of action that, in his opinion, could create unnecessary tensions in relations with Russia. Therefore, according to the Constitution, the Law was signed by the Chairman of the Seimas and entered into force on the date of its official publication (28 June 2000). 2 See, for example about these debates, R. Tracevskis, ‘Landsbergis Asks Russia for Billions’, The Baltic Times, 18−24 May 2000.

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Dainius Žalimas impossibility to implement the Law due to Russia’s probable refusal to recognise Lithuania’s request for compensation could serve as excellent proof that Russia had not changed its mentality towards the Baltic States. Despite political pressure from Russia and internal political changes in Lithuania,3 the Law remains fully in force. Moreover, it is unlikely to be annulled because several attempts to do so have completely failed in the Seimas (proposals to annul the Law have been rejected in the first reading).4 Therefore, it means that the Law on Compensation is something more than a will of one political leader or party, as such it must be treated as an official position of the whole State of Lithuania. Thus, a legal analysis of the Law is not a matter of one-day importance. Moreover, it is important also due to the fact that the Law consolidates legal grounds for claims to compensation from Russia, most of which are common demands of all three Baltic States, although until now only Lithuania has a special law on the request for compensation. Logically, Lithuania’s Law on Compensation could serve as an example if other Baltic States decided to pursue the matter more actively. Even if Latvia and Estonia are not going to adopt similar laws, they will continue to rely on the same international legal grounds for their claims as stated in Lithuania’s Law on Compensation. The main subject of this commentary is a legal analysis of the provisions of Lithuania’s Law on Compensation of Damage Resulting from the Occupation of the USSR. Political issues are touched upon so far as they are related to the implementation of the Law. It should be also noted that the Law concerns only interstate relations; therefore, the Law neither deals with or prevents possible demands for compensation by private individuals, such as Lithuanian nationals injured from the Soviet occupation.5 Thus, this 3

The Conservative Party lost parliamentary elections at the end of 2000 and now is in opposition. The present ruling majority of parliamentarians and the Government consists of representatives of those political parties (namely, social-democrats and social-liberals) who previously strongly opposed adoption of the Law on Compensation of Damage Resulting from the Occupation of the USSR. 4 These proposals were submitted and supported only by a few non-influential parliamentarians of extreme leftist views (they also failed to initiate broad public actions against Lithuania’s integration into NATO). The annulment drafts were written in non-legal language that was very similar to the former Soviet propaganda about a huge Russian contribution to the progress of Lithuania’s economic and social development. 5 Obviously, according to the Law, the State is entitled to present at interstate level the demand for compensation for all damage sustained during the occupation,

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Commentary to the Law on Compensation commentary leaves aside the issue of the means available for private demands. 2. The Preamble The Preamble is the most important part of the Law because it lays down legal grounds for further demands for compensation, i.e. the Preamble is a core from which other provisions of the Law can be derived. There are three groups of sources mentioned in the Preamble as the grounds to seek compensation: general international law, unilateral legal acts of Lithuania and bilateral treaties with Russia. The first group can be regarded as primary legal rules, while the latter two set a kind of secondary rules based on the norms and principles of general international law, i.e. their aim is to detail and implement general rules of state responsibility in the concrete case of Lithuania’s relations with Russia. Thus not without reason the first paragraph of the Preamble refers to the universally recognised norms and principles of international law as well as the state practice of their implementation. In that way the Seimas (Lithuania’s Parliament) stressed that it acted strictly in line with general international law when formulating obligations for the Government to seek compensation from Russia. It is obvious that the Seimas had in mind customary rules of international law governing issues of State responsibility. These rules were developed in practice. Now they are codified in Articles on Responsibility of States for Internationally Wrongful Acts (Articles on State Responsibility), adopted by the UN International Law Commission at its fifty-third session in 2001.6 Although the Commission has also adopted several previous versions of Articles on State Responsibility, it is necessary to stress that the basic principles of State responsibility have not been changed since the beginning of the work of the Commission on that subject.7 These principles remain the including damage suffered by its nationals. However, it does not prevent individuals or companies from actions that might be taken on behalf of their own since in that case it is different kind of legal claims, i.e. non-interstate relations. 6 See Official Records of the UN General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp. IV.E.1. Available on the Internet site of the ILC at http://www.un.org/law/ilc/texts/State_responsibility/responsibilityfra.htm. 7 See, for example, Chapter I (Article 1−4) of the 1996 Articles on State Responsibility, in D. Harris, Cases and Materials on International Law, London, 1998, p. 485. Chapter I, Articles 1−3, of the 2001 Articles on State Responsibility are essentially of the same content. Supra note 6.

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Dainius Žalimas same because they have been deduced from the state practice, legal doctrine and jurisprudence that existed long before.8 The Court of International Justice has confirmed customary nature of the basic rules codified in the draft Articles on State Responsibility at the time.9 Therefore, the provisions of Lithuania’s Law on Compensation were construed in the light of the customary rules of international law codified in Articles on State Responsibility and, consequently, they must be interpreted accordingly. Several basic principles and norms of state responsibility are important in this respect. Further this Commentary will focus on these as well as on the relevant provisions of the Preamble of Law. 2.1. Admissibility of the Claim for Compensation First of all, the well-known principle that ‘every internationally wrongful act of a State entails the international responsibility of that State’ (Article 1 of Articles on State Responsibility) from which follows that international responsibility is established immediately as between the two States when one State commits an internationally wrongful act against another State.10 Consequently, the illegal occupation and annexation of Lithuania created legal relations where the injured State has an indisputable right to invoke responsibility of the wrongdoer for the whole period of an illegal act (the modalities for the realisation of this right are set in Articles 1 and 2 of Lithuania’s Law on Compensation). On the other hand, the latter has an obligation to make reparation in accordance to the legitimate demands of the former. Obviously, the Republic of Lithuania can pursue the claim for 8

It is clear from the Commentaries of the International Law Commission to Chapter I ‘General Principles’ of Articles on State Responsibility, where the Commission refers to numerous decisions of the Permanent Court of International Justice and the International Court of Justice as well as legal writings. See, Official Records of the UN General Assembly, Fifty-sixth session, Supplement No. 10 (A/56/10), chp. IV.E.2; also available on the Internet site of the International Law Commission at http://www.un.org/law/ilc/texts/State_ responsibility/responsibilityfra.htm. 9 See for example, the 25 September 1997 Judgement in Case Concerning Gabčikovo-Nagymaros Project (Hungary/Slovakia) where the Court relies on Articles on State Responsibility several times, ICJ Reports, 1997, paras. 47, 50−54, etc; see also website of the International Court of Justice: http://www.icjcij.org/icjwww/idocket/ihs/ihsjudgement/ihs_ijudgment_970925_ frame.htm. 10 This conclusion is drawn by the International Law Commission referring to the ICJ decision in Phosphates in Morocco, see Paragraph 2 of the ILC Commentary to Article 1 of Articles on State Responsibility, supra note 8.

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Commentary to the Law on Compensation responsibility as it restored its independence on the basis of the de jure continuity of statehood.11 In connection with Article 1 of Articles on State Responsibility it is also necessary to mention Articles 43 and 45 of Articles on State Responsibility. Both set certain requirements for the existence of relations of State responsibility that are important in respect of the responsibility for the Soviet occupation of Lithuania. According to Article 43, ‘an injured State which invokes the responsibility of another State shall give notice of its claim to that State’ (paragraph 1); the injured State may also specify in particular ‘what form reparation should take’ (paragraph 2(b)). Claims of responsibility can be raised at different levels of government, and it is sufficient that the respondent State is aware of the claim as a result of communications from the claimant even in the form of press reports of speeches or meetings.12 Thus, according to the International Law Commission, ‘Article 43 concerns the modalities to be observed by an injured State in invoking the responsibility of another State’.13 The failure of the injured State to comply with these modalities may result in negative consequences for that State, including the loss of the right to invoke responsibility and subsequent cessation of the relations of State responsibility under Article 45 of Articles on State Responsibility. According to this Article, ‘the responsibility of a State may not be invoked if: (a) the injured State has validly waived the claim; (b) the injured State is to be considered as having, by reason of its conduct, validly acquiesced in the lapse of the claim’. In other words, the latter provision means that passivity or delay to submit the claim within a 11

See D. Žalimas, ‘Legal Issues on the Continuity of the Republic of Lithuania’ (2001) 1 Baltic Yearbook of International Law, pp. 19−20; 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, p. 141; R. Satkauskas, ‘A Bill for the Occupants or an Issue to Negotiate: the claims for reparations for Soviet occupation’, in this issue of the Baltic Yearbook; see generally, about the continuity and international legal status of Lithuania and other Baltic States, Baltic Yearbook of International Law, Vol. 1, 2001, p. 1−166. 12 See, paragraph 4 of the ILC Commentary to Article 43 of Articles on State Responsibility, supra note 8. The International Law Commission refers to paras. 31−36 of the 26 June 1992 Judgment of the International Court of Justice in Certain Phosphate Lands in Nauru, ICJ Reports, 1992, available at http://www.icj−ij.org/ icjwww/Icases/inaus/inaus_ijudgments/inaus_ijudgment_19920626.pdf. 13 Paragraph 1 of the ILC Commentary to Article 43 of Articles on State Responsibility, supra note 8.

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Dainius Žalimas reasonable time as well as tacit consent of the injured State amounts to the waiver of the claim and, consequently, repeals the obligation of the wrongdoer to provide reparation.14 With regard to interpretation of Article 45 of Articles on State Responsibility, it is valuable to look again at the 26 June 1992 Judgment of the International Court of Justice in Certain Phosphate Lands in Nauru.15 According to the Court, the waiver of the claim must be clear and unequivocal (paragraph 13 of the Judgment); thus, Article 45(a) of Articles on State Responsibility must be explained accordingly. Meanwhile paragraph 32 of the Judgment is related to Article 45(b) of Articles on State Responsibility. There the Court recognised that ‘even in the absence of any applicable treaty provision, delay on the part of a claimant State may render an application inadmissible’. However, it noted that ‘international law does not lay down any specific time-limit in that regard’. Logically, only in the light of the circumstances of the concrete case is it possible to determine whether the passage of time renders an application inadmissible. As the International Law Commission also pointed out, if a claim has been notified to the respondent State, delay in its prosecution will not usually be regarded as rendering it inadmissible.16 Therefore, it is only logical that, all the more, delay in settlement of the claim due to unwillingness or refusal of the respondent State can not be treated as a factor nullifying the claim, unless the injured State itself decides to waive it. Thus, turning back to the Preamble of Lithuania’s Law on Compensation, one can conclude from its provisions that Lithuania has duly presented its claim for compensation and never waived it. All the abovementioned modalities in invoking the responsibility have been observed and, consequently, the claim is fully valid, notwithstanding that it still remains far from a final settlement. (1) Lithuania’s Previous Acts Raising the Demand for Compensation Indeed, if we look at the Preamble of the Law, we can see that at various levels Lithuania has raised the claim for compensation several times before. In this respect a special attention should be drawn to the most important 14

See, Satkauskas, supra note 11. Supra note 12. See also the ILC Commentary to Article 45 of Articles on State Responsibility, supra note 8. 16 Paragraph 10 of the ILC Commentary to Article 45 of Articles on State Responsibility, supra note 8. 15

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Commentary to the Law on Compensation unilateral acts of Lithuania chronologically enumerated in the second, fourth and fifth paragraphs of the Preamble. As we can see from the second paragraph, Lithuania initially raised the compensation issue shortly after the restoration of its independence on 4 June 1991. The Supreme Council adopted the Resolution On Compensation of the Damage Inflicted by the USSR on the Republic of Lithuania and its People during 1940-1991,17 which charged the Government to estimate the damage sustained by Lithuania and its people between 1940−1991 and to submit the calculations to the State Delegation for the Interstate Negotiations with the USSR, while the Delegation was also requested to raise the compensation issue in the official negotiations with the USSR.18 It is necessary to note that this Resolution was adopted when, in January of 1991, the Soviet armed forces had undertaken and continued aggressive acts against Lithuanian State and 17

Officially published in Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios, 1991, No. 17-456. 18 The text of the Resolution reads as follows (unofficially translated by the present author): ‘The Supreme Council of the Republic of Lithuania, seeking to restore the property rights of Lithuania’s population violated during 1940-1991, noting that the occupation and annexation of Lithuania, accomplished by the USSR in 1940 and renewed since 1940, has resulted in a huge damage for the State and population of Lithuania, having in mind that this damage has been done by exterminating and torturing innocent Lithuanian people, illegally expropriating, destroying and taking away the property of the republic of Lithuania and its people, coercively destroying structures of Lithuanian economy and accomplishing forcible collectivisation, as well as by other means, acting in line with the universally recognised norms and principles of international and civil law, representing the right to compensation of those nationals and residents of Lithuania who suffered the damage, decides: 1. To charge the Government of the Republic of Lithuania with the submission to the State Delegation of the Republic of Lithuania for Interstate Negotiations with the Union of SSR of the calculations as a ground of the amount of the damage inflicted by the USSR on the Republic of Lithuania and its people during 1940-1991. 2. To obligate the State Delegation of the Republic of Lithuania for Interstate Negotiations with the Union of SSR to raise officially the compensation for damage issue before the Soviet Union.’

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Dainius Žalimas population. The Soviet Union still existed at that time and, therefore, it was the first addressee of Lithuania’s claim to compensation. It should be also added that the USSR was reluctant to start any official bilateral negotiations with Lithuania and serious talks on relations between the parties had not been started until the very dissolution of the Soviet Union. Consequently, the compensation issue was not resolved in Lithuania’s relations with the USSR. However, the 4 June 1991 Resolution was important as the first step in demanding the compensation and setting the guidelines to its calculation. After the dissolution of the USSR, the compensation issue was brought before Russia together and in the context of the withdrawal of Russian armed forces from Lithuania.19 No doubt that the illegal presence of the occupation forces and the damage done during the occupation were the consequences of the aggression against Lithuania in 1940. Therefore, it is only logical that both the withdrawal of illegally stationed foreign armed forces and the compensation for the damage sustained during the occupation can be regarded as different issues of the same subject, i.e. they both belong to the sphere of state responsibility. Here it is appropriate to recall customary rules of State responsibility specified in Articles 30(a) and 43(2)(a) of Articles on State Responsibility, according to which the respondent State has an obligation to cease a wrongful act, while the injured State is entitled to specify ‘the conduct that the responsible State should take in order to cease the wrongful act, if it is continuing’. Obviously, these rules were applied with regard to the withdrawal of Russian armed forces from Lithuania. As Professor V. Vadapalas notes, Lithuania’s demand and the corresponding Russia’s obligation to withdraw its armed forces (i.e., to cease their illegal

19

See, R. Satkauskas, supra note 11. It should be also noted that the issue of the withdrawal of occupation forces from Lithuania had been addressed several times to the Soviet Union. For example, such a demand was formulated in the 27 August 1991 Resolution of the Supreme Council On the Complete Withdrawal of the Armed Forces of the USSR from the Republic of Lithuania. Officially published in Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios, 1991, No. 25-672. It was among the principal tasks for negotiations with the USSR since the restoration of independence on 11 March 1990. It was also raised by 1,650,000 Lithuanian nationals who signed a special petition in 1989. See, for more on the initiation of the withdrawal of the Soviet armed forces, Č. Stankevičius, ‘Enhancing Security of Lithuania and Other Baltic States in 1992−1994 and Future Guidelines’, Chapter 2, paras. 4−6, NATO Research Fellowships Reports, http://www.nato.int/acad/fellow/ 94-96/stankevi/home.htm.

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Commentary to the Law on Compensation presence on Lithuanian soil) emerged from the international law in force rather than any future agreement.20 Naturally, after the restoration of independence the withdrawal of the occupying armed forces became the foremost issue for Lithuania because their illegal presence on Lithuanian soil significantly restricted its sovereign rights. However, although subsequent Lithuanian negotiations with Russia in 1992 focused on the withdrawal of Russian armed forces, some aspects of the compensation for damage resulting from the occupation were also touched on by the parties (e.g., it was impossible to avoid the issue of damage inflicted by the armed forces).21 At the same time, Lithuania once more raised the issue of compensation for all the damage sustained during the occupation. It also stated that the compensation issue had to be dealt with in the negotiations with Russia together with the withdrawal of Russian armed forces. This position was strengthened by the results of a Lithuanian referendum22 held on 14 June 1992 that supported negotiations with Russia and seeking broader international support for the legitimate Lithuania’s demands.23Ninety per cent of participating voters (69 per cent of all 20

V. Vadapalas, ‘Pratarmė’, in Č.V. Stankevičius, Derybos su Rusija dėl kariuomenės išvedimo iš Lietuvos, Vilnius, Leidybos centras prie KAM, 2002, pp. 14−15. This text is translated into English and published as the Review of the book of Č.V. Stankevičius in this Volume of the Baltic Yearbook of International Law. Besides, Lithuania has never agreed with the presence in its territory of the Soviet and Russian armed forces. As the former the Head of the State Delegation for negotiations with the Russian Federation, Ambassador Č.V. Stankevičius, also observes, Russia’s ‘obligation obviously could not arise from the forthcoming agreement because it was rooted in the very fact of a violation of international law’. See Č. Stankevičius, supra note 19, Chapter 2, para. 28. 21 On the negotiations on the withdrawal of Russian armed forces, see Č. Stankevičius, supra note 19, Chapter 2, section 3 (especially, paras. 35 and 41 concerning the issues of the compensation for the damage inflicted by the occupation armed forces as well as for the weaponry and military assets of Lithuanian armed forces seized by the Soviets in 1940). 22 The main issue at the referendum was formulated as the unconditional and immediate withdrawal of the armed forces of the former USSR, at that time belonging to Russia’s jurisdiction, in 1992 as well as the compensation of the damage inflicted on Lithuania and its people. 23 Indeed, the referendum was an important drive to move forward the stalled negotiations regarding the withdrawal of Russian armed forces from Lithuania. Soon after the referendum, on 8 September 1992, the parties signed the agreement on the withdrawal of troops until 31 August 1993. Not the last input to successful negotiations and due implementation of this agreement were the CSCE Helsinki

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Dainius Žalimas Lithuanian nationals) demanded that Russia start and complete the withdrawal of its armed forces in 1992, as well as to compensate for all damage sustained by the State and people of Lithuania.24 Thus the referendum expressed a clear demand of Lithuanian people to eliminate all the consequences of the Soviet occupation. It is useful to recall that a year before the referendum, the Russian Federation itself recognised the necessity to eliminate these consequences in the 29 July 1991 Treaty between the Republic of Lithuania and the Russian Soviet Federal Socialist republic on the Basis of Interstate Relations (Treaty on Interstate Relations). That is why, not only due to chronological reasons the 14 June 1992 referendum is mentioned in the fourth paragraph of the Preamble of Lithuania’s Law on Compensation just after the Treaty (the third paragraph of the Law). The referendum had to encourage Russia to fulfil its corresponding commitments, succeeded from the USSR. Undoubtedly, under constitutional law the will of Lithuanian people expressed in the 14 June 1992 referendum is the most important internal legal ground for the adoption of Lithuania’s Law on Compensation.25 Therefore, as we can presume from the fourth paragraph of the Preamble of the Law, to raise and pursue the claim for compensation is a legal obligation rather than a matter of discretionary powers of Lithuanian authorities, including the Seimas that adopted the Law, acting in line with the will of people. Moreover, since the Law is based on the will of people, it cannot be annulled, unless through another referendum the people decided to renounce the demand for compensation.26 Summit Declaration as well as several UN General Assembly resolutions of 1992 and 1993. They pressed on Russia to withdraw its troops stationed in the Baltic States without their consent. See V. Vadapalas, supra note 20, p. 12; Č. Stankevičius, supra note 19, Chapter 2, paras. 37−39, 41, 42. 24 As required by law, the results of the referendum were approved by the 30 June 1992 Resolution of the Supreme Council On the Decision Adopted by the Nationals of the Republic of Lithuania in the 14 June 1992 Referendum. Officially published in Lietuvos Respublikos Aukščiausiosios Tarybos ir Vyriausybės žinios, 1992, No. 21615. 25 According to Article 2 of the Constitution of the Republic of Lithuania, sovereignty belongs to the people of Lithuania. The people implement its sovereign powers either directly or through the elected representatives (Article 4 of the Constitution), whereby a referendum is a way to decide the most important issues for the State and people (Article 9 of the Constitution). 26 This argument was taken into consideration when the Seimas decided to reject initiatives concerning the annulment of the Law. See supra note 4.

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Commentary to the Law on Compensation The approach that required to raising the compensation issue together with the withdrawal of Russian troops, as determined by the 29 July 1991 Treaty and the 14 June 1992 referendum, was later continued by Lithuania in bilateral negotiations with Russia as well as in multilateral forums. This is confirmed by the fifth paragraph of the Law, which mentions the 1992 CSCE Helsinki Summit and the documents adopted therein. At the initiative of the Baltic States, the last sentence of Paragraph 15 of the Summit Declaration included the request for Russia to conclude, without delay, the agreements and timetables necessary for the early, orderly and complete withdrawal of its troops from the Baltic territory.27 This concrete requirement followed from the preceding general statement in the same paragraph, which pointed out the necessity to remove the problems inherited from the past.28 Therefore, it also followed from Paragraph 15 of the Declaration that the withdrawal of Russian armed forces was regarded as the foremost example but not the last task in removing the consequences of the Soviet occupation for the Baltic States. Having that in mind, the Lithuanian Delegation to the CSCE Helsinki Summit made the appropriate Interpretative Statement to Paragraph 15 of the Summit Declaration.29 The Statement was read upon the adoption of the 27

The 1992 CSCE Helsinki Document On the Challenges of Change (edition of the CSCE Helsinki Summit). Also available at the OSCE website: http://www.osce.org/docs/english/ 1990-1999/summits/hels92e.htm. 28 Paragraph 15 of the Helsinki Summit Declaration reads as follows: ‘5. Even where violence has been contained, the sovereignty and independence of some States still needs to be upheld. We express support for efforts by CSCE participating States to remove, in a peaceful manner and through negotiations, the problems that remain from the past, like the stationing of foreign armed forces on the territories of the Baltic States without the required consent of those countries. Therefore, in line with basic principles of international law and in order to prevent any possible conflict, we call on the participating States concerned to conclude, without delay, appropriate bilateral agreements, including timetables, for the early, orderly and complete withdrawal of such foreign troops from the territories of the Baltic States.’ 29 The Interpretative Statement reads as follows (a copy from the archives of Č. Stankevičius, the member of the Lithuanian Delegation): ‘Lithuania welcomes the adoption of the Helsinki Concluding Document 1992, especially taking note of the Paragraph 15 of the Political Declaration, where the most vital concerns of the Baltic States are reflected. Regarding this particular paragraph, Lithuania considers that the importance, attached by the Participating States to the issue of the withdrawal of foreign troops

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Dainius Žalimas Summit Declaration without any objection and, in accordance with the procedure (paragraph 79 of the Helsinki Final Recommendations), became an official document of the Summit.30 As it is noted in the fifth paragraph of the Preamble of Lithuania’s Law on Compensation, the main idea of the from the Baltic States, shows that this problem is not a bilateral one, since in its essence it is a violation of international law and a delay in removing this violation. This is also underscored in the Paragraph 15, which clearly states that these troops are present on the territories of the Baltic States without the required consent of those states, whereby “required” could only be interpreted as required by the virtue of basic principles of international law. That is why the 51 Participating States are reasonably concerned about this problem and each of them became engaged for observing, stating, not tolerating further hesitation to withdraw Russian troops from Lithuania. Furthermore, this situation is not automatically inherited by all of us. Nobody was tried for the assaults on Lithuania in 1940. The responsibility for the aggression and occupation, e.g. for the illegal appearance and presence of foreign troops in Lithuania, is still on the agenda. Besides, this situation is not anonymous, it did not arise from nowhere, but from the State, rights and obligations of which were succeeded by Russia, when it was admitted into the UN. When signing on 29 July 1991 in Moscow the Treaty between the Republic of Lithuania and the Russian Soviet Federal Socialist Republic on the Fundamentals of Interstate Relations, Russia was convinced that “… once the Union of Soviet Socialist Republics annuls the consequences of the 1940 annexation violating Lithuania’s sovereignty, created will be additional conditions for mutual trust between the High Contracting Parties …”. Now Russia itself will implement this conviction by eliminating the illegal presence of its troops on the territory of sovereign Lithuania as one of the consequences mentioned above; this also applies to the compensation for the damages, inflicted to Lithuania, that being the unanimous demand of the referendum of 14 June 1992. Of special importance was the request of this referendum to withdraw Russian troops until the end of this year. Only in that way Lithuania can interpret and interprets the term “early”, being convinced the CSCE signatories were aware of this unanimous demand of Lithuanian people. Considering the modalities for proper implementation of “orderly withdrawal” Lithuania holds that it could include further possibilities for the CSCE meaningful involvement through the means of monitoring as well as other available CSCE mechanisms. Lithuania expects cooperative approach from all the CSCE partners and reserves its right to raise this issue on any occasion, when deems it necessary.’ 30 Č. Stankevičius, supra note 19, Chapter 2, para. 39.

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Commentary to the Law on Compensation Interpretative Statement is to state expressis verbis that the compensation of the damage is also an essential precondition for the elimination of the consequences of the Soviet occupation; consequently, the compensation issue should remain on the agenda of bilateral negotiations after the agreement on the withdrawal of Russian troops from Lithuania. It should be stressed that Russia accepted such an interpretation of paragraph 15 of the Helsinki Summit Declaration as well, because at the Summit the Russian president did not object to Lithuania’s Interpretative Statement.31 It should be added that there were more actions pursuing the claim for compensation in line with the said position, which are not mentioned in Lithuania’s Law on Compensation. For instance, on 10 September 1993 the Seimas of the Republic of Lithuania adopted the Statement to the United Nations and Parliaments of All States on the Withdrawal of Russian Armed Forces from Lithuania.32 The Statement inter alia expressed the conviction that after the withdrawal of Russian troops the negotiations on the compensation of the damage inflicted of Lithuania had to continue in order to proceed with the normalisation of bilateral relations.33 Besides, the Baltic Assembly (the inter-parliamentary organisation of Lithuania, Latvia and Estonia) has also adopted a few statements on the necessity to compensate for the damage caused by the Soviet Union to the Baltic States.34 The Government of the Republic of Lithuania has also taken concrete steps in order to pursue the demand for compensation, i.e. in accordance to its competence, to implement the decisions adopted at the referendum and by 31

D. Žalimas, supra note 11, p. 20. Officially published in Valstybės žinios, 1993, No. 47-927. 33 The text of the Statement reads as follows (unofficially translated by the author): ‘The Seimas of the Republic of Lithuania notes that the Russian Federation has fulfilled its commitment, signed on 8 September 1992 in Moscow, to withdraw the military units of the former USSR from the territory of Lithuania by 31 August 1993. The already agreed further negotiations on the compensation of the damage inflicted on Lithuania, the regulation of economic relations and other issues will undoubtedly contribute to the further normalisation of the relations between the two parties. The unconditional and rapid withdrawal of foreign troops from Latvia and Estonia will provide more security to Lithuania and its people, as well as it will promote the transformation of all Baltic sea countries into the region of strong peace, international stability and fruitful co-operation.’ 34 R. Satkauskas, supra note 11, see for example, the 15 May 1994 Resolution On Relations with Russia: at http://www3.lrs.lt/cgi-bin/preps2?Condition1=86744& Condition2=. 32

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Dainius Žalimas the parliament. As it is mentioned in Article 2(2) of Lithuania’s Law on Compensation, on 13 February 1996 the Government approved the special work programme on the evaluation of the damage inflicted on the Republic of Lithuania by the occupation (Work Programme).35 It was preceded by the 5 April 1995 Resolution of the Government On the Calculation of the Damage Inflicted on the Republic of Lithuania by the Armed Forces of the Former USSR during 1940−1991 and the Armed Forces of the Russian Federation during 1991−1993.36 (2) The Role of the Law Next, it can be asked why it was necessary to adopt Lithuania’s Law on Compensation if the demand for compensation had been stated several times before. The answer follows from the text of the Law. From a political point of view, the Law clearly proves that, despite Russia’s unwillingness to negotiate the matter, Lithuania is going to maintain its claim for compensation among the pending issues. Therefore, it may be regarded as the programme law that confirms one of the goals of the foreign policy of the State.37 From the point of view of Lithuanian national law, the Law logically finalises the formulation of the claim in line with the previous acts. However, differently from the previous acts, the Law clearly defines the concrete steps to be taken by the Government in continuing to pursue the claim, i.e. it establishes precise legal rules for the purposes of further realisation of the will of Lithuanian people expressed at the 14 June 1992 referendum. According to the Constitution of the Republic of Lithuania, any programme document, especially if it lays down compulsory rules or instructions for the Government, has to be adopted by the Seimas in the form

35

The 13 February 1996 Resolution No. 242 of the Government of the Republic of Lithuania On the Work Programme on the Evaluation of the Damage Inflicted on the Republic of Lithuania by the Armed Forces of the Former USSR during 19401991 and the Armed Forces of the Russian Federation during 1991-1993. Officially published in Valstybės žinios, 1996, No. 16-424. 36 Officially published in Valstybės žinios, 1995, No. 31-726. 37 As defined by the Constitutional Court of the Republic of Lithuania in its 19 January 1994 Ruling, programme laws set the goals of various activities for the State. Officially published in Valstybės žinios, 1994, No. 7-116. For English translation of the Court’s Ruling, see the website of the Seimas of the Republic of Lithuania: http://www3.lrs.lt/cgi-bin/preps2? Condition1=21850&Condition2=.

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Commentary to the Law on Compensation of law.38 Thus, the Law implements this constitutional requirement, whereas the previous acts are not of programme or normative nature. From the point of view of international law, by analogy with the Certain Phosphate Lands in Nauru case, we can conclude that the Law testifies that, given the nature of Lithuania’s relations with Russia, as well as steps taken by Lithuania since the restoration of its independence, Lithuania’s claim is not rendered inadmissible by passage of time.39 Thus Lithuania once more notified that the reparation should take the form of compensation as well as that the claim for compensation remains valid in its full extent (Article 43 of Articles on State Responsibility).40 The Law also demonstrates sufficiency of the previous notices of the claim to Russia.41 (3) Russia’s Awareness of the Lithuanian Claim As we can see from the Preamble of the Law, Russia has been aware of the claim since it was first raised before the Soviet Union. Moreover, Russia has even recognised Lithuania’s claim for compensation. First and foremost this recognition follows from the 29 July 1991 Treaty on Interstate Relations.42 38

This requirement follows from the 19 January 1994 Ruling of the Constitutional Court of the Republic of Lithuania, see supra note 37. 39 In paragraph 36 of the 26 June 1992 Judgment, the International Court of Justice made the conclusion that ‘given the nature of relations between Australia and Nauru, as well as the steps thus taken, Nauru’s Application was not rendered inadmissible by passage of time’, see supra note 12. 40 It is necessary to note that Lithuania has not waived its claim in regard to any kind of the damage. Meanwhile, though rather ambiguously, Estonia seems to have waived a part of its claim regarding the damage inflicted by the occupation armed forces in the 26 July 1994 Treaty on the Withdrawal of Russian Armed Forces. In Article 8 Estonia regarded as completely settled all claims related with the presence of Russian troops in Estonia. However, on 2 September 1994 Estonian Ministry of Foreign Affairs stated that this provision was not considered as the waiver of all the claims for the damage sustained during the occupation; therefore, it is not clear and unequivocal waiver of the claim as required by international law. See the Certain Phosphate Lands in Nauru case, supra note 15; see also, Č. Stankevičius, supra note 19, Chapter 4, paragraph 9; R. Satkauskas, supra note 11. 41 See supra note 12, as mentioned, by analogy with the Certain Phosphate Lands in Nauru case, it is sufficient that the respondent State is aware of the claim by means of press reports of speeches or meetings, whereas unilateral acts of Lithuania regarding the claim have been done in a higher official level. 42 Lithuanian text of the Treaty is available at the website of the Seimas of the Republic of Lithuania at http://www3.lrs.lt/cgi-bin/preps2?Condition1=131851&

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Dainius Žalimas As referred in the third paragraph of the Preamble of Lithuania’s Law on Compensation, in the Treaty Russia declared its conviction that the USSR had to eliminate ‘the consequences of the 1940 annexation violating Lithuania’s sovereignty’ (the second paragraph of the preamble of the Treaty). Logically this statement also implied the recognition of the illegality of Lithuania’s annexation and its consequences (otherwise the statement would be meaningless because there would be no duty to eliminate the consequences of a legal act). Besides, in Article 1 of the Treaty, Russia recognised the de jure continuity and identity of the Republic of Lithuania, therewith admitting Lithuania’s right to claim responsibility from the Soviets for their illegal acts committed since 1940.43 As mentioned before, the responsibility of the Soviet Union included its obligations to eliminate two main consequences of the illegal occupation and annexation of Lithuania, such as the presence of the occupation armed forces on Lithuanian soil (the obligation to cease a wrongful act (Article 30(a) of Articles on State Responsibility) and the damage inflicted on Lithuania by the occupants (the obligation to make reparation (Article 31(1) of Articles on State Responsibility).44 The International Law Commission confirmed that ‘the obligation to make full reparation is the second general obligation of the responsible State consequent upon the commission of an internationally wrongful act’.45 The 1991 Treaty on Interstate Relations was signed when the USSR still existed and Russia claimed a separate international personality. Therefore, Condition2=. For English translation, see Lithuanian Foreign Policy Review, 1998, No. 1 or . 43 See, Žalimas supra note 11, p. 15. As stated in Article 1 of the Treaty, Russia recognises the Republic of Lithuania as a fully-fledged subject of international law and sovereign State according to the State status ‘as established by the fundamental acts adopted by the Republic of Lithuania on 11 March 1990’. These acts restored the independence as well as expressly confirmed the continuity and identity of the State of Lithuania. 44 See supra note 8, as noted in paragraph 2 of the ILC Commentary to Article 28 of Articles on State Responsibility, ‘the core legal consequences of an internationally wrongful act … are the obligations of the responsible State to cease the wrongful conduct … and to make full reparation for the injury caused by the internationally wrongful act …’. According to paragraph 6 of the ILC Commentary to Article 35 of Articles on State Responsibility, the withdrawal of the occupying State’s forces may be seen ‘as involving cessation rather than restitution’ (a form of reparation). 45 Ibid., para. 1 of the ILC Commentary to Article 31 of Articles on State Responsibility.

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Commentary to the Law on Compensation the Treaty addressed the USSR as the third party. However, upon its dissolution at the end of the same year, the Soviet Union was replaced by Russia in international relations. In other words, Russia assumed international rights and obligations of the USSR, including the responsibility for internationally wrongful acts. Therefore, it became incumbent on Russia to eliminate the consequences of Lithuania’s annexation, particularly as Russia itself declared its conviction that such a duty had to be fulfilled.46 It is necessary to add that the third paragraph of the Preamble of Lithuania’s Law on Compensation Lithuania also refers that, in accordance to the said 1991 Treaty, the elimination of the consequences of Lithuania’s annexation is regarded as the additional condition for mutual trust between Lithuania and Russia. Thus, this purpose of the Treaty, as well as mutual trust between the parties and their peoples, will not be achieved until Russia fails to fulfil all its relevant commitments. Indeed, it is hard to imagine how to create and promote the atmosphere of mutual trust until one party is not held fully responsible to another party for manifestly wrongful acts, particularly if the former is trying to deny the responsibility, despite its previous antipodal statements. In latter case the injured State especially cannot be assured that its sovereignty and other legitimate rights will be duly and in good faith respected by the respondent State.47 Apart from the 1991 Treaty, it is also obvious that Russia was well informed about the demands of the 14 June 1992 referendum in Lithuania.48 Besides, as a participating State of the CSCE, Russia agreed to the above 46

Supra note 29. Noted in the Interpretative Statement of Lithuanian Delegation to the 1992 CSCE Helsinki Summit. 47 Such a link between the realisation of State responsibility and the sovereign equality of States is underlined in the doctrine of international law. For example, Professor Shaw points out that ‘state responsibility is a fundamental principle of international law, arising out of the nature of the international legal system and the doctrines of state sovereignty and equality of states’. See M. Shaw, International Law, 4th edition, Cambridge, University Press, 1997, p. 541. Prof. I. Lukashuk emphasises that one of the main aims of State responsibility is to ensure that the future conduct of the parties will carry out their obligations in a good faith. See, И. Лукашук, Международное право: общая часть, Москва, БЕК, 1996, p. 179. 48 Shortly after the referendum, on 30 June 1992 Lithuania officially submitted for negotiations with Russia draft agreements necessary to comply with the demands of Lithuanian people. It also informed about the results of the referendum at the 9−10 July 1992 CSCE Helsinki Summit. See Č. Stankevičius, supra note 19, Chapter 2, paras. 38−39, 55. For the text of the Interpretative Statement of Lithuanian Delegation to the 1992 CSCE Helsinki Summit, see supra note 29.

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Dainius Žalimas mentioned paragraph 15 of the 1992 Helsinki Summit Declaration as it was fully aware of, but did not contradict to the corresponding Interpretative Statement of Lithuanian Delegation to the Summit. The course of the negotiations on the withdrawal of Russian troops from Lithuania also proves that Russia was aware of Lithuania’s claim for compensation. During the negotiations the parties succeeded in drafting of seven agreements concerning various issues of the withdrawal of the troops.49 Particular attention should be given to the draft of the main Agreement between the Russian Federation and Lithuania regarding the Withdrawal of the Armed Forces of the Russian Federation from the Territory of the Republic of Lithuania, according to which Russia intended not only to agree with Lithuania’s claim, but even to begin compensation for a part of the damage.50 In the preamble of the draft Agreement the parties referred to the 14 June 1992 referendum in Lithuania, which under Article 9 Russia was to assume the duty to compensate for the weaponry and other property of Lithuanian armed forces that had been seized by the USSR in 1940 (‘with the purpose of restitution of defence capacity of the Republic of Lithuania’, the Russian Federation had to be committed to transfer to Lithuania a necessary quantity of modern armament, military equipment and ammunition). In accordance with Article 12, Russia had to compensate any material damage made by its armed forces to Lithuania ‘from the moment of State succession’ (i.e., from the dissolution of the USSR and subsequent to Russia’s assuming jurisdiction over the former Soviet armed forces stationed in Lithuania). Moreover, Russia initially agreed that the Special Statement of the Republic of Lithuania had to be a constituent part of the Agreement. In this Statement Lithuania intended, inter alia, to emphasise that the parties had to continue the negotiations concerning the remaining issues of the compensation for the damage inflicted on Lithuania since 1940.51 However, on 8 September 1992, at the final meeting of the heads and delegations of States in the Kremlin, the Russian president refused to sign the previously agreed and initialled text of the said Agreement, as well as three other 49

See, for more, V. Vadapalas, supra note 20, p. 15−17; Č. Stankevičius, supra note 19, Chapter 2, paras. 35, 41−45. Lithuanian texts of the main documents of the negotiations are published in Č. Stankevičius, supra note 20, pp. 87−125. 50 See for, Lithuanian text of the draft Agreement, Č. Stankevičius, supra note 20, pp. 108−115. 51 By this document Lithuania also intended to state that the conclusion of the Agreement was not to be regarded as the legalisation of the presence of Russian troops on Lithuanian soil.

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Commentary to the Law on Compensation agreements (however, three remaining agreements were signed by the ministers of defence). Later Russia tried to revise the text of the Agreement, demanding from Lithuania, inter alia, to remove its Special Statement and to change substantially the said provisions on the compensation (Articles 9 and 12).52 Undoubtedly, Lithuania could not accept such proposals because they contradicted the already reached compromise and could turn the negotiations back to initial positions, by the same token jeopardising the withdrawal of the troops.53 Thus the main Agreement regarding the withdrawal of Russian troops has never been signed. Nevertheless Russia has fulfilled its obligation to withdraw the troops from Lithuania: On 8 September 1992 Russia signed the Schedule of the withdrawal and two other related agreements, and in accordance to the agreed timetable, withdrew its troops by 31 August 1993. That is why the last paragraph of the Preamble of Lithuania’s Law on Compensation commends Russia for a great deal of good will in withdrawing of its armed forces from Lithuania and in such manner eliminating one of the consequences of the USSR occupation and annexation of Lithuania. At the same time, this paragraph is a reminder of the remaining consequences that have not yet been eliminated, i.e. the outstanding issues of reparation for the damages.54 Thus we can state that by the wording of the last paragraph of the Law Lithuania appeals to Russia to demonstrate further good will in resolving the reparation issue. It is understandable that the due settlement of this issue depends on Russia’s will to enter into negotiations, since at the disposal of Lithuania there are no other available means of settlement (without consent of the other party Lithuania cannot resort to any conciliatory procedure, either arbitration or judicial settlement). It is also 52

Russia also demanded to delete the provision concerning Russia’s obligation under international law to withdraw the troops from Lithuania, as well as requesting; to recognise the alleged property rights of Russian armed forces in Lithuania, to allow for military personnel to retire and stay in Lithuania, and to grant for the retired personnel all civil and political rights. See Č. Stankevičius, supra note 19, Chapter 2, note 49. 53 It was not the first time Russia submitted such proposals, however, they had been rejected by Lithuania since the very beginning of the negotiations, and later the parties found a compromise expressed in the initialled agreements concerning the withdrawal of troops. See Č. Stankevičius, supra note 19, Chapter 2, paras. 17, 18, 26−35, 40, and 44. 54 As stated in this paragraph, despite demonstration of good will, Russia ‘has not yet eliminated all the consequences of the USSR occupation and annexation of Lithuania’.

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Dainius Žalimas clear that it would be easier to start the settlement from the simplest issues that do not require deep efforts. Therefore, the last paragraph expressly refers to the unsettled issues of Lithuania’s real estate seized by the Soviets and still occupied by Russia in the third countries. As such, Lithuania indicates that the return of the said immovable property could be the foremost sign of Russia’s continuing good will to comply with its commitments regarding the elimination of the consequences of Lithuania’s annexation (the reparation issue). However, this hope still appears futile. It could be added that Russia was well informed about Lithuania’s Law on Compensation even before its adoption. Russia’s reaction to the draft Law was severe. On 9 June 2000, the Ministry of Foreign Affairs issued the special statement on the matter in which it categorically denied any responsibility for the Soviet occupation of Lithuania as well as rejecting any respective claims for compensation.55 Moreover, distorting and falsifying the historical facts, this statement repeated the Soviet cliché about the legitimate and voluntary incorporation of Lithuania’s into the Soviet Union as well as about the tremendous Soviet input into well-being of Lithuania.56 It is an 55

The 9 June 2000 Statement No. 342 of the Ministry of Foreign Affairs of the Russian Federation concerning the beginning of deliberations by the Seimas of the Republic of Lithuania of the draft Law on Compensation of the Damage Resulting from the Soviet Occupation in which material claims to Russia are to be raised. In Russian, Заявление МИД России № 342 от 09.06.2000 ‘Сейм Литовской Республики начал рассмотрение законопроекта “О возмещении ущерба, нанесенного советской оккупацией”, в котором выдвигаются материальные претензии к России’. A copy from the website of the Ministry of Foreign Affairs of the Russian Federation , accessed on 10 June 2000. 56 The text of the Statement reads as follows (unofficially translated from Russian by the present author): ‘The Seimas of the Republic of Lithuania began to consider the draft Law on Compensation of the Damage Resulting from the Soviet Occupation, in which material claims to Russia were to be raised. We would like to remind to the initiators of this draft of some historical facts. The USSR troops were introduced (into Lithuania) in 1940 with the consent of the highest leadership of that State, which had been received in the framework of international law of that time. During the Soviet period, (in Lithuania) the power functions had been exercised by national authorities. The 3 August 1940 Resolution of the Supreme Soviet of the USSR on Lithuania’s admission to the Soviet Union was preceded by the corresponding appeals of the highest representative organs of the Baltic States.

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Commentary to the Law on Compensation allusion to possible counter-claims for the alleged Lithuanian debts.57 However, this completely ill founded statement can neither legitimise the Soviet occupation and annexation of Lithuania, nor nullify the respective Lithuanian claim for compensation. From a legal point of view, the Statement does not correspond to the norms of both modern international

Thus it is wrong to qualify Lithuania’s entry into the USSR as the result of unilateral actions of the latter. Statements about Lithuania’s “occupation” and “annexation” by the Soviet Union, as well as related claims of any nature ignore political, historical and juridical realities and, consequently, are groundless. With regard to the “initiative” of Lithuanian Seimas, one more issue attracts our attention. Lithuania does not consider itself as the successor to the former USSR. Nevertheless Lithuania further has the use of industrial, agricultural, science and research as well as other objects that were built during the period of its presence in the USSR from the Union funds. Some say the consideration by Lithuanian Seimas of the draft Law on Compensation of the Damage Resulting from the Soviet Occupation to be a show organised by the right-wing forces on the eve of parliamentary elections. However, it is also the step directed to a deterioration of RussianLithuanian relations. Affirming the intention to develop mutually beneficial co-operation and good neighbourly relations with Lithuania, the Russian MFA expresses its hope that, in accordance to the real interests of the country, Lithuanian parliamentarians will reconsider their attitude to the anti-Russian initiative removing this serious irritant in our relations.’ 57 Until now, Russian politicians continue to speculate about perpetual historical debt of the Baltic peoples for their ‘tremendous social and economic progress’ under the Soviet rule. For instance, recently the group of 105 Russian State Duma members led by the famous Soviet reactionary and fighter against the Baltic independence, V. Alksnis, initiated calculations of the alleged damage inflicted on Russia due to the fact that the Baltic States had taken over the Soviet assets in their territory. In addition, they requested that the Russian Court of Audit estimate the damage caused to Russia by the transfer of Vilnius and Klaipėda territories, allegedly not belonging to Lithuania. This group of Duma members explained its initiative as a response to the Baltic claims for reparations from Russia, particularly to Lithuania’s Law on Compensation. V. Alksnis preliminarily estimated possible Russian counter-claims to the Baltic States at USD 60 billion. Reported in, ‘Rusijos reakcionierius mėgins suvesti istorines sąskaitas su Baltijos šalimis’, Baltic News Service (BNS), 27 January 2003.

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Dainius Žalimas law58 and those that were in force in 1940.59 It also manifestly contradicts Russia’s position established by the 1991 Treaty on Interstate Relations, i.e. the official recognition by Russia of the illegality of Lithuania’s annexation,60 as well as of the de jure continuity and identity of the State of Lithuania. For the latter reason, the Statement also is incompatible with the generally recognised principle of estoppel that does not allow for a State to alter (without good reasons) its previously declared position61. In conclusion, the latest Russian position, as expressed in the 9 June 2000 Statement, can only impede the further practical realisation of its responsibility rather than change the objective nature of Russia’s obligation to provide reparation to Lithuania. As stated by the International Law Commission, ‘the general obligation of reparation arises automatically upon commission of an internationally wrongful act and is not, as such, contingent upon a demand or protest by any State’,62 i.e. in a given case it means that the existence of Russia’s obligation of reparation does not depend on such statements as that of 9 June 2000.

58

See for example, D.A. Loeber, supra note 11, pp. 122−135; D. Žalimas, supra note 11, pp. 2−8; see also, infra part 2.2 (1) of the Commentary to the Preamble of the Law. 59 Recalling the 24 December 1989 Resolution of the Congress of People’s Deputies of the USSR On the Political and Juridical Appraisal of the Soviet-German Nonaggression Treaty of 1939, which has to be followed by Russia as the legal entity continuing the rights and obligations of the former Soviet Union. Thereafter, the USSR recognised that the secret protocols of the Molotov−Ribbentrop Pact and subsequent their implementation ‘from the standpoint of international law were in conflict with the sovereignty an independence of several third countries’, including Lithuania and other Baltic States. See for English translation, Eesti Teaduste Akadeemia Toimetised, 1990, No. 39 (2), pp. 198−199. 60 See supra note 59. The recognition of the illegality of Lithuania’s annexation logically also implies the recognition of the illegality of preceding acts aimed at annexation, namely, the conclusion of the secret Molotov−Ribbentrop agreements as well as the subsequent aggression against and occupation of Lithuania. This conclusion follows also from the 24 December 1989 Resolution of the Congress of People’s Deputies of the USSR On the Political and Juridical Appraisal of the Soviet−German Non-aggression Treaty of 1939. 61 D. Žalimas, supra note 11, p. 15. 62 See supra note 8, para. 4, ILC Commentary to Article 31 of Articles on State Responsibility.

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Commentary to the Law on Compensation 2.2. The Legal Ground for Russia’s Responsibility Thus, according to Article 1 of the Articles on State Responsibility, an internationally wrongful act is a legal ground of state responsibility.63 For the purposes of further interpretation of Lithuania’s Law on Compensation, in particularly the first paragraph of the Preamble of the Law, the second important customary norm of State responsibility is found in Article 2 of Articles on State Responsibility, which specifies the conditions required to establish the existence of an internationally wrongful act of the State. According to this norm, every internationally wrongful act has two constituent elements: the subjective element – an act or omission is attributable to the State under international law – (Article 2(a) of Articles on State Responsibility) and the objective element – the act or omission constitutes a breach of an international obligation of the State – (Article 2(b) of Articles on State Responsibility).64 Since the issue of the illegality of Russia’s occupation and annexation of Lithuania has been analysed in detail by many authors, it will receive minimal attention here. 65 Meanwhile the Article 2 issues deserve more attention because in the case of Russia’s responsibility for the illegal Soviet acts, it can be discussed in a nontraditional manner. At first sight some may ask why Russia must be held responsible for the acts committed by another State − the USSR? (1) The Objective Element of Breach Since there is a large uniformity in a legal appraisal of the 1939 Molotov−Ribbentrop Pact and its consequences for the Baltic States, the objective element has not been fully covered in the Preamble of Lithuania’s Law on Compensation. It is obvious that the implementation of the Pact constituted many serious breaches of the most important international legal obligations, such as the obligation not to resort to any act of aggression, the obligation to respect sovereignty of any State, the principles of peaceful

63

See supra note 8, para. 1, of the ILC Commentary to Article 1 of Articles on State Responsibility, and para. 1 of the ILC Commentary to Article 2 of Articles on State Responsibility. 64 Supra note 8, paras. 1 and 3 of the ILC Commentary to Article 2 of Articles on State Responsibility; see also, V. Vadapalas, Tarptautinė teisė: bendroji dalis, Vilnius, Eugrimas, 1998, p. 354. 65 See e.g., the bibliography on the subject in D.A. Loeber, supra note 11, pp. 153−166.

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Dainius Žalimas settlement of disputes and pacta sunt servanda, etcetera.66 In other words, the drafters of the Law were guided by a firm presumption of the illegality of the Soviet acts committed with regard to Lithuania. There was no need to state extensive details about the evidence concerning the illegality of the occupation, since the Soviet Union itself had declared the 1939−1941 secret agreements with the Nazi Germany as null and void, thereby recognising the fact of violation of Lithuania’s sovereignty.67 Therefore it was decided, by reference to the 1991 Lithuanian−Russian Treaty on Interstate Relations in the third paragraph of the Preamble of the Law, to emphasise only the main fact that Russia also itself has recognised the illegality of the occupation and annexation of Lithuania. By the same token, it was logical to have the legitimate expectation that Russia could not change its position. Anyway, from a legal point of view, it is enough that the first paragraph of the Preamble of the Law makes a general reference to the norms of international law,68 which is in accordance to international law to qualify the Soviet acts against Lithuania as the aggression that had been started by the 15 June 1940 invasion of the Soviet armed forces,69 and later continued in the form of subsequent occupation and annexation as well as the illegal foreign armed presence in Lithuania after the restoration of its independence in 1990.70 With regard to the latest Russian claims that the Soviet acts were committed in the framework of international law of that time because, 66

D. Žalimas, supra note 11, p. 8. See supra notes 59 and 60. As mentioned, that follows from the 24 December 1989 Resolution of the Congress of People’s Deputies of the USSR On the Political and Juridical Appraisal of the Soviet-German Non-aggression Treaty of 1939. 68 See supra note 6. According to Article 3 of Articles on State Responsibility ‘the characterization of an act of a State as internationally wrongful is governed by international law’. 69 See, V. Vadapalas, V. Žalys, ‘Secret Protocols to the Soviet-German Treaties of 1939 and the Problem of Prescription in International Law’ (1990) 39 Eesti Teaduste Akadeemia Toimetised, No.(2), p. 131. The invasion of foreign armed forces, with or without a declaration of war, was regarded as an act of aggression under paragraph 2 of Article II of the 1933 Convention for the Definition of Aggression between Lithuania and the Soviet Union. 70 See for example, Harris, supra note 7, p. 946. Article 3 (particularly paras. (a) and (e) of the Definition of Aggression, approved by the 14 December 1974 UN General Assembly Resolution No. 3314 (XXIX), according to which the occupation and annexation resulting from military invasion, as well as presence of troops in foreign territory without a consent of the respective state, are treated as acts of aggression. 67

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Commentary to the Law on Compensation allegedly, threat of force was not prohibited71 and it acted in accordance with Lithuania’s consent and request.72 From the point of view of international law such arguments cannot be seriously considered, as they are manifestly wrong. For the purposes of the present commentary it is enough to recall that the Nuremberg Tribunal evaluated the identical case of the 1938 annexation of Austria as an act of aggression. In this regard it is worth quoting the 1946 Judgement of the Tribunal, where the alleged Austrian consent and even desire to unite with Germany was regarded as ‘really immaterial, for the facts plainly proved 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’.73 Besides, in 1938 the Soviet Union itself treated the Anschluss as an international crime and a year later it particularly condemned the cases where annexations were camouflaged by the setting up of puppet ‘national’ governments.74 Thus, there are no reasons to treat differently the analogous case of Lithuania.75

71

For instance, following this line, Russian author S. V. Chernichenko tries to justify the seizure of the Baltic States. See С. В. Черниченко, ‘Континуитет, идентичность и правопреемство государств’, Российский ежегодник международного права, 1996-1997, Санкт-Петербург, Россия-Нева, 1998, pp. 941; С. В. Черниченко, Теория международного права, Москва, НИМП, 1999, том II, pp. 72−79. 72 This argumentation was raised in Russia’s official reaction to the draft Lithuania’s Law on Compensation. See the text of the 9 June 2000 Statement No. 342 of the Ministry of Foreign Affairs of the Russian Federation, supra note 56. See also the comments concerning the Statement, particularly its inconsistency with Russian position established by the 1991 Treaty on Interstate Relations. Supra 2.1 (3) of the Commentary to the Preamble of the Law. 73 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 or Нюрнбергский процесс над главными немецкими военными преступниками, том 7, Москва, Госюриздат, 1961, p. 327. 74 See, Loeber, supra note 11, pp. 131−135; W. J. H. Hough III, ‘The Annexation of the Baltic States and Its Effect on the Development of Law Prohibiting Forcible Seizure of Territory’ (1985) 6 New York Law School Journal of International and Comparative Law, No. 2, p. 390. 75 D. Žalimas, supra note 11, p. 6.

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Dainius Žalimas (2) The Subjective Element of Attribution It is obvious that the illegal military invasion as well as the subsequent occupation and annexation of Lithuania was attributable to the USSR, since the aggression against Lithuania was manifestly committed by the Soviet armed forces and other State organs.76 Therefore the corresponding obligation to make reparation initially rested with the Soviet Union. However, the USSR no longer exists as of the end of 1991, as stated by Russia, Belarus and Ukraine who were the formal founders of the Soviet Union in the preamble of the 8 December 1991 Agreement on the Establishment of the Commonwealth of Independent States (the 1991 Minsk Agreement), ‘the Union of SSR, as a subject of international law and geopolitical reality, ceased to exist’.77 Thus at first sight we may draw the conclusion that Russia, on equal footing with other former Soviet republics, has to be treated as a new State, the successor to the former USSR.78 If that is true, we can logically ask why Lithuania addresses the claim for compensation only to Russia, but not to all twelve former Soviet republics, as successors to the Soviet Union. We can also ask whether such a claim is at all acceptable as these new States might not be succeeded all rights and duties of the USSR and, consequently, could not be responsible for all illegal acts committed by the USSR. Indeed, initially Russia tried to raise such arguments in denying Lithuania’s claims for reparation. For instance, in the course of the bilateral negotiations regarding the withdrawal of the troops 76

See for example, supra note 6, Article 4 of Articles on State Responsibility. Международное публичное право: сборник документов, Москва, БЕК, 1996, том 1, p. 468. 78 Indeed, if we look at the initial agreements between the former Soviet republics regarding the succession to State debts, property and archives of the USSR, in particular the 4 December 1991 Treaty Concerning Succession to State Foreign Debt and Assets of the Union of SSR and the 6 July 1992 Agreement on the Division of the Whole Property of the Former Union of SSR, Which Is Located Abroad, we can see that the signatories thereto planned to apply classical rules of State succession, whereby Russia had to assume state debts and property proportionally with other Soviet republics. See Действующее международное право, Москва, изд-во Московского независимого института международного права, 1996, том 1, pp. 476−490. However, later this approach was changed and Russia took over all former Soviet debts and State property in foreign countries. See for more, 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 Baltic Yearbook of International Law, pp. 194−202. 77

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Commentary to the Law on Compensation from Lithuania, Russia initially asserted not to be responsible for the damage inflicted by the USSR on Lithuania because Russia itself had seriously suffered from the totalitarian Soviet regime, particularly during the years of Stalin’s rule; on that ground Russia claimed that all fault for the damage allegedly rested with the former communist regime for which the present democratic Russia is not responsible.79 Even recently, the Russian ambassador to Latvia, Igor Studenikov, made a similar statement denying Russia’s responsibility for human rights violations during the Soviet occupation of Latvia. He regarded any claims against Russia for compensation as completely wrong, since the deportations of Latvian population had been carried out by ‘another State, another social system’.80 From the standpoint of international law, it is easy to deny the arguments concerning the fault of the regime rather than the State. It is obvious that the illegal occupation and annexation of Lithuania was accomplished by the USSR State organs and officials, though headed by criminal leadership. In accordance to international law, any conduct of State organs and officials, despite of nature of the internal regime and even if they exceed their authority or contravene instructions, is attributable to that State.81 Moreover, the characterisation of an act of a State as internationally wrongful cannot be affected by the characterisation of the same act as lawful by internal law.82 Thus, in the negotiations on the withdrawal of Russian troops Lithuania firmly rejected the said Russian claims, stating that the legality of the communist regime is an internal matter of Russia and, consequently, this issue cannot influence and should not be confused with international responsibility of the State.83 That is not a surprise because, in accordance to classical rules of state continuity and identity, the State, as a subject of international law, does not depend on internal social and political changes, i.e. it ‘remains unimpaired by amendments of the constitutional order, even

79

See, Stankevičius, supra note 20, pp. 37−38. Reported in ‘Rusija neatsako už Sovietinio režimo padarytus žmogaus teisių pažeidimus, teigia ambasadorius Latvijoje’, BNS, 6 September 2002. 81 See for example, supra note 6, Articles 4, 5 and 7 of Articles on State Responsibility. 82 See for example, supra note 6, Article 3 of Articles on State Responsibility; see also, Article 32 of Articles on State Responsibility ‘the responsible State may not rely on the provisions of its internal law as justification to comply with its obligations’ concerning reparation. 83 Č. Stankevičius, supra note 19, Chapter 2, para. 36. 80

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Dainius Žalimas in extreme cases of national upheavals’.84 As the first paragraph of Lithuania’s Law on Compensation refers to the State practice regarding compensation for the damage caused by the German occupations during the World War II, it is also worth recalling in this context that Germany was held responsible, despite of the fact that the damage had been done under the Nazi regime that was recognised as criminal by the Nuremberg Tribunal.85 However, one issue remains; why the Russian Federation that declared sovereignty only on 12 June 1990 may be held responsible for the past of the Soviet regime? Undoubtedly, it would be impossible to deny Russia’s responsibility for the Soviet illegal acts, if Russia had a special legal status, that of continuing legal personality of the former USSR. That is why the sixth paragraph of the Preamble of Lithuania’s Law on Compensation is focused on the fact that, ‘according to international law, the Russian Federation is the State continuing the rights and obligations of the USSR’.86 In other words, it could also mean the ‘total succession’ by Russia to the rights and obligations of the former USSR.87 If that is true, Russia cannot escape the obligation to make reparation to Lithuania, as this obligation automatically passed to Russia from the Soviet Union upon the dissolution of the latter.88 Indeed, we can enumerate many facts to prove that Russia is not treated as a new State and, consequently, is not the same successor to the Soviet Union as other former Soviet republics.89 Both objective and subjective 84

W. Fiedler, ‘Continuity’, in Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Amsterdam, Elsevier, 1987, Vol. 10, p. 66. 85 See for example, the Judgement of the International Military Tribunal for the Trial of German Major War Criminals at the website of the Avalon Project at Yale Law School or Нюрнбергский процесс над главными немецкими военными преступниками, том 7, Москва, Госюриздат, 1961. 86 There was a mistake in the initial official translation of the Law into English. The Lithuanian word ‘tęsėja’ – ‘the continuator’ – was translated from the official Lithuanian text of the Law as ‘the successor’ (meanwhile the latter term in Lithuanian is ‘perėmėja’). That could mislead the reader and even result in wrong conclusions. Fortunately, this mistake was recently corrected by replacing the word ‘the successor’ into the phrase ‘the State continuing’. 87 I. Ziemele, State Continuity and Nationality in the Baltic States, Ph.D. Dissertation, Cambridge, University of Cambridge, 1998, p. 28; V. Vadapalas, supra note 64, p. 226. 88 Č. Stankevičius, supra note 19, Chapter 2, para. 57. 89 I. Ziemele, supra note 78, p. 202.

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Commentary to the Law on Compensation factors90 ‘suggest that Russia really does continue the existence of the Soviet Union, albeit in diminished borders and with a diminished population’.91 For instance, geographic and demographic factors show that Russia’s territory and population consist of the large majority of the former Soviet territory and population; Russia assumed the jurisdiction over the Soviet armed forces stationed outside the CIS countries, as well as took over all nuclear weaponry of the former Soviet Union and the obligations arising thereof. Russia also assumed all Soviet international debts and state assets as well as State property abroad. Russia continues to be bound by multilateral and bilateral treaties of the former USSR unless otherwise decided on bilateral basis. Russia continues membership of the former USSR in international organisations (meanwhile membership in international organisations is not an object of State succession). The international community did not accord recognition to the Russian Federation and, consequently, all States having diplomatic relations with the former USSR continued them with Russia. In principle, States accepted Russia’s responsibility for the former Soviet international obligations. Hence, ‘the presumption of State continuity is employed when there is both the will of the State concerned and general acceptance of the international community’.92 That is why the drafters of Lithuania’s Law on Compensation decided to back up their thesis about the continuity of Russia in both directions. The same paragraph six of the Preamble of the Law also mentions same of the most important documents testifying Russia’s acknowledgement and international recognition of its continuity. Firstly, the sixth paragraph of the Preamble refers to the 21 December 1991 decision of the Council of the Heads of States of the Commonwealth of Independent States by which all the CIS countries, including Russia, expressed their support of Russia ‘in continuing the membership of the USSR in the UN, 90

See for, more about these factors, I. Ziemele, supra note 78, pp. 194−202; R. Müllerson, International Law, Rights and Politics: Developments in Eastern Europe and the CIS, London, Routledge, 1994, pp. 139−145; R. Mullerson, ‘The Continuity and Succession of States, by Reference to the Former USSR and Yugoslavia’ (1993) 42 International and Comparative Law Quarterly, pp. 475−480; Международное право, Москва, Международные отношения, 2001, pp. 105−108; С. Черниченко, ‘Континуитет, идентичность и правопреемство государств’, supra note 71, pp. 14−16, 26−27; С. В. Черниченко, Теория международного права, supra note 71, p. 65−67, 84−89. 91 R. Müllerson, International Law, Rights and Politics, supra note 90, p. 142. 92 I. Ziemele, supra note 87, p. 41.

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Dainius Žalimas including the permanent membership in the Security Council, as well as in other international organisations’.93 This support was one of the crucial factors in order to establish that the Russian Federation would continue the international legal personality of the USSR.94 For instance, one of the reasons why the continuity of Yugoslavia (FRY) was not recognised is that it failed to receive consent from other former constituent units of the federation (SFRY).95 The 21 December 1991 decision of the CIS Council of the Heads of States can also be regarded as a basis for subsequent legal acts confirming Russia’s continuity. For instance, it was a ground for the 24 December 1991 letter of the President of the Russian Federation, Boris Yeltsin, addressed to the Secretary General of the United Nations, which is the second document mentioned in the sixth paragraph of the Preamble of Lithuania’s Law on Compensation. This letter informed that, with the support of other CIS countries, Russia was continuing the membership of the USSR in the UN, including the Security Council, as well as in other organs and organisations of the UN system.96 In this connection President Yeltsin asked to replace in the UN the title ‘the Union of the Soviet Socialist Republics’ with ‘the Russian Federation’. He also assured that the Russian Federation would maintain ‘full responsibility for all the rights and obligations of the USSR under the Charter of the United Nations’.97 The third document mentioned in the sixth paragraph of the Preamble of Lithuania’s Law on Compensation is the 13 January 1992 note of the Ministry of Foreign Affairs of the Russian Federation addressed to the heads of the diplomatic missions accredited in Moscow.98 By this note Russia informed other countries that it was continuing to implement rights and obligations arising from those international treaties which had been concluded by the Soviet Union. Russia also notified that its government, instead of the government of the USSR, would discharge depository functions in regard to respective international treaties. In this connection foreign states were asked to treat Russia as a party to all valid international treaties of the former USSR. 93

Действующее международное право, supra note 78, p. 474. Международное право, supra note 90, p. 105. 95 I. Ziemele, supra note 87, p. 42. 96 See Действующее международное право, supra note 78, p. 475. 97 Ibid. 98 See Действующее международное право, supra note 78, p. 476. 94

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Commentary to the Law on Compensation The sixth paragraph of the Preamble of Lithuania’s Law on Compensation also indicates that there are more than the expressly mentioned documents confirming Russia’s will to continue international legal personality of the Soviet Union since all documents could not have been mentioned in the Law. For instance, upon the dissolution of the USSR, Russia notified that embassies and consulates of the former Soviet Union should be regarded as ‘the diplomatic and consular missions of the Russian Federation’.99 On 8 February 1993, the President of the Russian Federation issued the Decree Concerning State Property of the Former Union of SSR Abroad by which it was resolved that ‘the Russian Federation, as the State – continuator of the Union of SSR (“государство – продолжатель Союза ССР”), assumes all rights to the immovable and movable property of the former USSR, which is located abroad, as well as undertakes to carry out all obligations related to the use of that property’.100 Similarly, in accordance to Article 1(3) of the 15 July 1995 Federal Law on the International Treaties of the Russian Federation, this Law shall be applied ‘to the international treaties to which the Russian Federation is a party as the State – continuator (“продолжатель”) of the USSR’.101 As mentioned, the international community recognised such a continuity of Russia. Because of the particular importance of the European Union for Lithuania’s foreign policy, the drafters of Lithuania’s Law on Compensation decided to stress only the position of the European Community and its Member States, which was expressed on 23 December 1991 and later followed by other states and international organisations. In the Statement On the Future Status of Russia and Other Former (Soviet) Republics, issued on that day, the European Community and its Member States took into consideration the fact that ‘Russia shall continue to implement the international rights and obligations of the former USSR, including rights and obligations under the Charter of the UN’.102 The European Community and its Member States also welcomed the consent of the Russian Government to assume these obligations and responsibility, as well as expressed their readiness to continue friendly relations with Russia ‘taking into account the change of its constitutional status’.103 Thus, such a position may be regarded

99

Международное право, supra note 90, p. 106. Действующее международное право, supra note 78, p. 493. 101 Действующее международное право, supra note 78, p. 410. 102 Действующее международное право, supra note 78, p. 160. 103 Ibid. 100

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Dainius Žalimas as an allusion that Russia’s legal personality is identical with that of the former Soviet Union. Concerning the reference to the existence of ‘other documents’ testifying Russia’s continuity, which is made in the sixth paragraph of Lithuania’s Law on Compensation, I can also mention the position of the United Nations and the Council of Europe because both organisations, like the European Union, are regarded as important for the settlement of Lithuania’s claim for reparation (see e.g., Article 2(3) of the Law). The UN, without any objection, acknowledged Russia’s claim to the continuation of the membership of the USSR. At Russia’s request, the UN allowed it to take over the Soviet seat in the General Assembly, the Security Council and other organs of the Organisation as well as to change plates and flags.104 The Council of Europe also recognised Russia’s continuity, since Russia is regarded as responsible for returning to other Member States the property seized by Soviets as well as for the assistance to the persons formerly deported by the Soviets from the occupied Baltic States.105 It is also pertinent that Russian authors often assert the complete legal identity of the Russian Federation and the former USSR, as the subjects of international law. For instance, S.V. Chernichenko regards as incorrect any statement about Russia’s succession to the Soviet Union, as well as he treats the phrase of the 1991 Minsk Agreement about the extinction of the USSR as misleading.106 According to him, the main reason for such mistakes was that the documents concerning the fate of the USSR were prepared quickly and resulted in insufficient juridical accurateness. Therefore Chernichenko also claims that the political and legal continuity of Russian statehood should be construed according to such a chronological chain: the Russian empire – the

104

See, I. Ziemele, supra note 78, pp. 195−196. See, I. Ziemele, supra note 78, p. 197; I. Ziemele, supra note 87, p. 195; see also paras. 7(xii) and 10(xii)(xiv) of the 25 January 1996 Parliamentary Assembly of the Council of Europe Opinion No. 193(1996) on Russia’s request for membership of the Council of Europe (a copy from the archives of the Information Bureau of the Council of Europe in Vilnius), available at the website of the Parliamentary Assembly of the Council of Europe . 106 С. Черниченко, ‘Континуитет, идентичность и правопреемство государств’, supra note 71, p. 27; С. В. Черниченко, Теория международного права, supra note 71, p. 87. 105

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Commentary to the Law on Compensation Soviet Russia (RSFSR) – the USSR – the Russian Federation.107 It seems that Russia’s legal identity with the former Soviet Union was also confirmed by the above described Russian statement on the draft Lithuania’s Law on Compensation.108 Russia did not argue that the USSR was another State, but tried to justify the Soviet acts as if committed by itself. That eliminates any doubt regarding attribution of the Soviet occupation of Lithuania to the Russian Federation − the State continuing legal the personality of the former Soviet Union. 2.3. The Scope and the Form of Reparation The third customary rule of international law relevant to the interpretation of Lithuania’s Law on Compensation can be found in Article 31 of the Articles on State Responsibility. This rule in short can be described as the principle of full reparation. In accordance with Article 31(1), ‘the responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act’. The principle of the full reparation was explained in detail already in 1928 by the Permanent Court of International Justice in the Factory at Chorzów case and is properly reflected in Article 31109 as well as other following Articles.110 Article 31(2) reveals the notion ‘full reparation’: ‘any damage, whether material or moral, caused by the internationally wrongful act’, is subject to reparation. As it was stressed by the Permanent Court of International Justice in the Factory at Chorzów case, ‘the essential principle contained in the actual notion of an illegal act – a principle which seems to be established by international practice and in particular by the decisions of arbitral tribunals – is that 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. Restitution in kind, or, if this is not possible, payment of a sum corresponding to the value which a 107

С. Черниченко, ‘Континуитет, идентичность и правопреемство государств’, supra note 71, p. 15; С. В. Черниченко, Теория международного права, supra note 71, pp. 66−67. Non-Russian authors also write about such a chain of Russian statehood, see for example, Č. Stankevičius, supra note 19, Chapter 2, para. 13; I. Ziemele, supra note 78, pp. 199−200. 108 Supra notes 55 and 56. 109 See, paras. 1−3 of the ILC Commentary to Article 31 of Articles on State Responsibility. Supra note 8. 110 See, Articles 34−36 of Articles on State Responsibility. Supra note 6. Also the ILC commentaries thereto are of particular importance. Supra note 8.

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Dainius Žalimas restitution in kind would bear; the award, if need be, of damages for loss sustained which would not be covered by restitution in kind or payment in place of it – such are the principles which should serve to determine the amount of compensation due for an act contrary to international law’.111 Hence, from the Factory at Chorzów case, we can also find a few means suitable to achieve full reparation, i.e. possible forms of reparation in order to wipe out all consequences of an internationally wrongful act. Article 34 of the Articles on State Responsibility enumerates forms of reparation: ‘full reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either slightly or in combination’. In case of the injury sustained by Lithuania as a consequence of the Soviet occupation, all forms in combination could be possible in order to achieve full reparation;112 that was not excluded by Lithuania’s Law on Compensation either despite the fact that most of the provisions were focused on the compensation issues.113 For instance, as follows from the Factory at Chorzów case as well as Articles 34 and 35, restitution (the reestablishment as far as possible of the situation that existed before the commission of the illegal act) might be the first of the available forms of reparation.114 In this context we may recall the last paragraph of the Preamble of Lithuania’s Law on Compensation which clearly refers to the possible restitution in kind with regard to specifically mentioned real estate issues, i.e. Lithuania’s embassy buildings and land plots in Paris and Rome which had been seized by the USSR. Obviously, Russia was capable to 111

Harris, supra note 7, p. 515; Paragraph 2 of the ILC Commentary to Article 31 of Articles on State Responsibility. Supra note 8. 112 As noted by the International Law Commission, Article 34 of Articles on State Responsibility ‘makes it clear that full reparation may only be achieved in particular cases by the combination of different forms of reparation … Wiping out all the consequences of the wrongful act may thus require some or all forms of reparation to be provided, depending on the type and extent of the injury that has been caused.’ See Paragraph 2 of the ILC Commentary to Article 34 of Articles on State Responsibility. Supra note 8. 113 It is worth to note here that the word ‘(žalos) atlyginimas’ from Lithuanian title of the Law (Įstatymas ‘Dėl SSRS okupacijos žalos atlyginimo’) could be translated into English both as ‘reparation’ and as ‘compensation’. However, as the Law regulates mostly the calculation and monetary compensation of material damage, it was decided to use the word ‘compensation’. 114 See Paragraph 1 of the ILC Commentary to Article 35 of Articles on State Responsibility. Supra note 8.

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Commentary to the Law on Compensation return these buildings and plots to Lithuania as the legitimate owner.115 Return of property is one example of restitution.116 In addition to restitution and compensation for material damage, Lithuania could also request satisfaction117 for moral damage that is not associated with actual damage to property or persons, but resulted from the affront in justifying the Soviet occupation.118 For example, as in the 9 June 2000 Statement No. 342 of the Ministry of Foreign Affairs of the Russian Federation concerning the draft Lithuania’s Law on Compensation,119 Russia’s formal apology or other similar modality could be appropriate under Article 37 of the Articles on State Responsibility in order to ensure its full compliance with the 1991 Treaty on Interstate Relations, which recognised the fact of the illegal annexation of Lithuania. However, it is clear from the circumstances that the main available and essentially the only possible mode of full reparation for the injury sustained by Lithuania is that of compensation, except for the possible restitution with regard to the above-mentioned real estate. According to Article 36(1) of the Articles on State Responsibility, ‘the State responsible for an internationally wrongful act is under an obligation to compensate for the damage caused thereby, insofar as such damage is not made good by restitution’. In light of Articles 35(a) and 43(2)(b) we can conclude that, if restitution is not materially possible or the injured State so prefers, then the damage is subject to compensation usually in the form of monetary payment, though sometimes a compensation may take other agreed forms,120 e.g., the transfer

115

More about these issues, supra part 2.5 of the Commentary to the Preamble of the Law. 116 Paragraph 5 of the ILC Commentary to Article 35 of Articles on State Responsibility. Supra note 8. 117 According to Article 43(2)(b) of Articles on State Responsibility, the injured State has a right to choose an appropriate form of reparation, notifying about that to the responsible State. Supra note 6. 118 As noted by the International Law Commission, the subject matter of satisfaction comprises ‘moral damage’ to a State, ‘i.e., the affront or injury caused by violation of rights not associated with actual damage to property or persons’. See Paragraph 1 of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8. 119 Supra notes 55 and 56. 120 Paragraph 4 of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8.

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Dainius Žalimas of a certain property of the same value.121 Indeed, it often happens that restitution (restoration of the situation that existed prior to the illegal act) is impossible due to loss, destruction or deterioration of property,122 or loss of human lives or health.123 Besides, often a monetary compensation can be easier to achieve than restitution in kind (for instance, if the seized property was transferred to a third party who may be regarded as the honest owner). However, in all these cases we can speak about financially assessable damage that can be subject to the matter of compensation (Article 36(2)). That is why, ‘of the various forms of reparation, compensation is perhaps the most commonly sought in international practice’.124 Therefore the International Court of Justice has even deduced a general right of an injured State to compensation. As the Court stated in the Gabčikovo-Nagymaros Project case, ‘it is a well-established rule of international law that an injured State is entitled to obtain compensation from the State which has committed an internationally wrongful act for the damage caused by it’.125 Thus, the case of Lithuania is not an exception in this regard either. It is obvious that due to the length of time and nature of the Soviet occupation it was impossible to restore the situation that existed more than 50 years ago. However, the damage can be assessed in financial terms by evaluating the value of lost, destroyed or seized property, as well as even human losses and sufferings. Therefore, as testified by Lithuania’s Law on Compensation, Lithuania decided to make calculations of the damage in accordance to the principle of full reparation, as it is expressed in Article 36(2) of Articles on State Responsibility which stipulates full compensation (‘the compensation shall cover any financially assessable damage including loss of profits insofar as it is established’). In order to encompass all the consequences of the Soviet occupation, Article 1 of the Law fixed the period for which the 121

Paragraph 3 of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8. 122 Paragraph 9 of the ILC Commentary to Article 35 of Articles on State Responsibility. Supra note 8. 123 Monetary compensation may also be paid for non-material damage, if it is financially assessable. See Malcolm N. Shaw, supra note 47, p. 555. 124 Paragraph 2 of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8. As noted by Prof. M. N. Shaw, ‘monetary compensation is clearly of importance of reparation’. See Malcolm N. Shaw, supra note 47, p. 555. 125 Paragraph 152 of the 25 September 1997 Judgement in the Case Concerning Gabčikovo-Nagymaros Project (Hungary/Slovakia), supra note 9.

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Commentary to the Law on Compensation damage would be estimated, starting from the beginning of the occupation and ending at the withdrawal of Russian troops.126 Also the Work Programme referred to in Article 2(2) of the Law was elaborated in such a way as to estimate all the financially assessable damage inflicted on Lithuania during that period. Thus, the title of the Work Programme (Work Programme on the Evaluation of the Damage Inflicted on the Republic of Lithuania by the Armed Forces of the Former USSR during 1940−1991 and the Armed Forces of the Russian Federation during 1991−1993127) is not precise according to its content; the Programme comprises all forms of damage resulting from the Soviet occupation rather than only damage done by the armed forces, i.e. the Programme is supposed to enable Lithuania to wipe away all financially assessable consequences of the Soviet occupation.128 Various types of damage to have been calculated in accordance to the Work Programme fully corresponding to the notion of ‘any financially assessable damage’ under Article 36(2) of the Articles on State Responsibility, since they encompass both the damage suffered by the Lithuanian State to its property or personnel, or in respect of expenditures reasonably incurred to remedy or mitigate damage flowing from the Soviet occupation, and the damage suffered by Lithuanian nationals, whether persons or companies.129 Any list of the categories of the possible injuries suffered by States usually may be regarded only as exemplary.130 The damage to a State itself may comprise the damage caused to any public property including: roads and infrastructure, environmental damage, including the depletion of natural resources and the costs necessary to respond to the pollution damage, incidental damage arising out of need to pay pensions and medical expenses for the injured officials. Additionally, 126

Supra the Commentary to Article 1 of the Law. Supra note 35. 128 The Programme also set a list of institutions responsible for the calculation of each kind of the damage. 129 This notion is explained by the International Law Commission in Paragraph 5 of the ILC Commentary to Article 36 of Articles on State Responsibility as follows: ‘financially assessable damage encompasses both damage suffered by the State itself (to its property or personnel or in respect of expenditures reasonably incurred to remedy or mitigate damage flowing from an internationally wrongful act) as well as damage suffered by nationals, whether persons or companies, on whose behalf the State is claiming within the framework of diplomatic protection’. Supra note 8. 130 Paragraph 8 of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8. 127

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Dainius Žalimas the damage to nationals may mean: any assessable personal injury, both of material nature (e.g., loss of property, earnings or earning capacity, the costs of medical treatment) and the non-material damage (loss of loved ones, pain, mental and other sufferings, the affront of sensibilities associated with an intrusion on the person, home or private life, as well as similar injuries to feelings, humiliation, shame, degradation, loss of social position or injury to credit and reputation).131 Besides, under Article 36(2) the damage may include ‘loss of expected profits, but not more remote prospective gains’ which does not mean punitive compensation, since it would go beyond the concept of reparation.132 In this context it could be appropriate, apart from the costs arising out of the restoration of state economic power, also to evaluate loss of national income due to the destruction of economy.133 However, in the concrete case we can speak at least approximately about a comprehensive list of the compensable damage. Thus, in accordance to the need of full compensation, the said Lithuanian Work Programme comprised 15 categories of damage related to the Soviet occupation, which are essentially analogous with those mentioned above. They are as follows:134 1) damage resulting from genocide and other repressions, inter alia, including the damage done by massive deportations to the deportees and their families (death or killing of people, damaging their health, forced and non-paid labour), as well as by political persecutions and terror of Lithuanian people (capital punishments, imprisonment, arrests, forced disappearances and forced labour during deprivation of liberty), the costs related to search, burial and reburial of remains of the repressed people; 2) damage resulting from the persecutions of the resistance to the occupation, inter alia, including killing and injuries to the participants of resistance movement (mostly the 1944−1953 ‘guerrillas’), related damage to 131

E.g, Paragraphs 8–20, in particular, 8, 12, 14 and 16, of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8. 132 Malcolm N. Shaw, supra note 47, p. 555. See also Paragraph 10 of the ILC Commentary to Article 31 of Articles on State Responsibility. Supra note 8. 133 That could be possible, provided that the lost future national income is a matter of certainty (i.e., without any speculative element), whereby ‘an anticipated income stream has attained sufficient attributes to be considered a legally protected interest of sufficient certainty to be compensable’. See Paragraph 27 of the ILC Commentary to Article 36 of Articles on State Responsibility. Supra note 8. 134 About the results of the calculation of the damage infra the Commentary to Article 2 of the Law.

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Commentary to the Law on Compensation their families, as well as the terror against civil population, killing of Lithuanian people in 1991, the damage to the property of resistance members and their families, and the costs related to the search and reburial of their remains; 3) damage done by forced recruitment of the population of the occupied country to the Soviet armed forces, including damage to the recruits and their families (inter alia, caused by forced labour in the virgin lands and Chernobyl); 4) damage to urban residents and countrymen, including the damage to their property due to nationalisation, confiscation, collectivisation, forced resettlement (including lost profits), as well as seized and non-returned savings and bank deposits; 5) damage resulting from forced emigration from Lithuania to the West (including material losses suffered by emigrants); 6) damage to the Catholic Church and other confessions, including the damage to its property (seizure or destruction of churches, monasteries or other religious buildings) and the costs of restoration, as well as persecutions of priests and church members; 7) damage to the legal persons (e.g., the damage to enterprises and companies resulting from the destruction or seizure of their property, including loss of profits); 8) damage sustained by non-governmental organisations (e.g., liquidation and seizure or destruction of their property, including loss of funds); 9) damage related to the cessation of State functions of vital importance as well as the costs of their renewal, inter alia, including the violation of sovereign rights, the destruction of the armed forces and the costs necessary for the restoration of the defence capabilities, the damage to the judiciary system, the costs of the restoration of national systems of education, finance and banks (including the restoration of national currency) as well as of public administration system and diplomatic representation; 10) damage done to the State property, inter alia, including the seizure or destruction of immovable and movable property, assets and military hardware, the railways, national radio and television as well as other state objects seized in 1990−1991; 11) environmental damage, including pollution from military and industrial objects; 12) damage to Lithuania’s economy, inter alia, including the loss of national income due to the forced introduction of the ineffective Soviet economic system (in comparison with the development of economies of 139

Dainius Žalimas other states that were similarly developed in 1940 and later were not occupied by the Soviets), the loss of profits due to the reduction of the population as the consequence of the occupation, the costs arising out of need to pay pensions and other compensatory payments to the persons injured by the Soviet aggression and occupation; 13) damage to Lithuanian culture (e.g., the destruction or seizure of items of cultural value); 14) damage resulting from the presence of the occupation armed forces and other repression structures, inter alia, including the damage caused to the land, natural resources and other property, as well as debts incurred for use of public utilities and other services provided by local authorities; 15) reparations paid to the Soviet Union by Germany for the damage inflicted on Lithuania during the German occupation in 1941−1944 (Lithuania has a right to this part of German reparations, since it did not participate in the agreements concerning these reparations, while the USSR was not entitled to seek the reparations on behalf of Lithuania).135 We can see that in the Work Programme the priority was given to the calculation of the damage suffered by nationals, as this kind of damage is the most sensitive for any democratic State acting on behalf of its nationals. That priority is also reflected in Articles 2(2), 2(5) and 3 of Lithuania’s Law on Compensation. As to the possible Russian counter-claims for the reimbursement of the alleged Soviet input into progressive economic and social development during the occupation of Lithuania and the alleged Soviet property left behind in Lithuania after the restoration of its independence, this cannot in any way affect the calculation of the damage caused by the occupation.136 As mentioned, State responsibility, including the general obligation of reparation, arises automatically upon the commission of an internationally wrongful act and does not depend on any demand (including counter-claim) or protest by other State.137 Moreover, in this context it would be absurd to demand reimbursement of any costs of the occupying State, since under the general principle of law ex injuria jus non oritur the occupant cannot obtain 135

R. Satkauskas, supra note 11. Supra part 2.1(3) of the Commentary to the Preamble of the Law, in particular supra note 57. 137 Ibid., Paragraph 4 of the ILC Commentary to Article 31 of Articles on State Responsibility. Supra note 8. 136

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Commentary to the Law on Compensation any legal right from the illegal occupation, including any property rights.138 Therefore, every endeavour and construct of the occupying power in Lithuania was a matter of the risk of the occupant,139 while all property located in the territory of Lithuania was regarded as the property of Lithuanian State and, consequently, cannot not be an object of any talks with Russia.140 Besides, the losses inflicted on Lithuania by the occupation are manifestly far greater than the alleged Soviet investments.141 By the way, even in cases of State succession that do not concern the elimination of the consequences of an illegal act, immovable State property of the predecessor State, situated in the territory to which state succession relates, should remain to the successor State.142 2.4. Relevant State Practice Concerning Compensation Apart from the norms of international law, the first paragraph of the Preamble of Lithuania’s Law on Compensation expressly refers to the ‘international practice of compensation of damage caused by occupations’. By this reference the drafters of the Law wanted to point out that Lithuania’s claim for compensation is neither an exceptional case, nor novel in state practice. In other words, the reference shows that the claim for compensation is the norm in cases of illegal occupations, therefore aiming to restore justice as much as possible rather than to humiliate the responsible State. Thus, state practice might be well directed to urging Russia to reappraise its past and, accordingly, to mitigate the injustices done by the Soviets to other nations. Referring to the international practice of reparations, the drafters of the Law also had in mind the modalities used in the state practice for the 138

Č. Stankevičius, supra note 19, Chapter 2, Paragraph 27. From the testimony of the former Head of State Prof. Vytautas Landsbergis during the trial of the former 1990-1991 pro-Soviet plotters against the State of Lithuania. See Vytautas Landsbergis, Nauji dokumentai apie Sausio 13-ąją, Vilnius, Baltijos kopija, 2003, p. 166. 140 Lithuania rejected any Russia’s property claims and Russia failed to defend them in the course of the negotiations on the withdrawal of Russian troops from Lithuania. See Č. Stankevičius, supra note 19, Chapter 2, Paragraph 27. That also follows from the initialled texts of the negotiated agreements: Č. V. Stankevičius, supra note 20, pp. 87−125. 141 For the figures infra the Commentary to Article 2 of the Law. 142 V. Vadapalas, supra note 20, p. 15. E.g., Articles 14 and 15 of the 1983 Vienna Convention on Succession of States in respect of States Property, Archives and Debts. 139

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Dainius Žalimas settlement of reparation issues. Reparation claims previously were resolved in several ways.143 The classical mode is to reach an agreement on the subject, for instance, reparation clauses were included into various peace treaties concluded after the World War I144 as well as the 1947 Peace Treaties with the former Axis powers.145 Obviously, in this context negotiations should be regarded as the mean of paramount importance146 because only negotiations between the parties concerned could lead either to a final agreement on reparation issues or to other appropriate means of their settlement. That is why Article 2(4) of Lithuania’s Law on Compensation obligated the Lithuanian Government to initiate negotiations with Russia in order to seek the compensation for the damage caused by the Soviet occupation. The first paragraph of the Preamble of the Law also makes a special reference to the practice of ‘the compensation of the damage caused during the World War II period by the German occupations to other countries and the nationals thereof’. As follows from the 28 July 2000 Resolution of the

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R. Satkauskas, supra note 11. He refers to such State practice as German reparations after the World War I (provided by the 1919 Versailles Peace Treaty) and the World War II, the reparations under the 1947 Peace Treaties with the former Axis countries, the 1961 Agreement between the United Kingdom and San Marino concerning the symbolic payment by the former for the accidental bombardment of the latter in 1944, Iraq’s responsibility for the 1990-1991 occupation of Kuwait which was regulated by the UN Security Council resolutions. 144 E.g., under the 1919 Versailles Peace Treaty Germany was obliged to make long-term reparation payments. The peace treaties with Austria, Hungary and Bulgaria were patterned on the Versailles Peace Treaty. See Ellinor von Puttkamer, ‘Versailles Peace Treaty (1919)’, in Rudolf Bernhardt (ed.) Encyclopedia of Public International Law, Amsterdam, Elsevier, 1982, Vol. 4, pp. 278, 280-281; Stephan Verosta, ‘Peace Treaties After World War I’, ibid., p. 114. 145 E.g., the peace treaties with Italy, Finland, Hungary, Bulgaria and Romania established the concrete amounts of compensations to the indicated injured countries as well as some obligations of restitution. See Ellinor von Puttkamer, ‘Peace Treaties of 1947’, Rudolf Bernhardt (ed.) Encyclopedia of Public International Law, Amsterdam, Elsevier, 1982, Vol. 4, p. 121. 146 R. Satkauskas, supra note 11. He notes that ‘the settlement of dispute by negotiations especially helps when the responsible party for one reason or another is not willing to admit the fact of violation of an international norm, for instance, to exclude the value of the settlement as a precedent with respect to possible other claimants for compensation’.

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Commentary to the Law on Compensation Government of the Republic of Lithuania,147 in such a way the Law first of all alludes to the recent positive German experience concerning the compensation payments for the damage caused by Nazi regime to the residents of the formerly occupied Eastern and Central European states, particularly the compensations to former deportees and forced labourers from those countries.148 Indeed, Germany succeeded in providing ‘some relief to Baltic victims of Nazi persecution on an individual basis. The indemnification came in several stages and each one was declared to be final’.149 Starting from 1990 Germany established several compensation schemes,150 in accordance to which special compensatory funds were created. These schemes were funded from the state budget as well as from the German companies (or their successors) that benefited from the forced labourers during the World War II. The schemes were administered by a central ruling body with its local partner organisations responsible for the collection of applications from injured persons and the payment of compensations. The first Conciliation Fund was set up in Moscow in 1993. It provided in total DEM 1 billion to compensate Nazi victims from the former USSR (mainly Russia, Ukraine and Belarus). In 1998, Germany started another compensation project for the former victims residing in the West. Germany also provided each Baltic State with DEM 2 billion for national social and humanitarian projects that supported the needs of the Nazi victims in these countries. These amounts did not include any direct payments for the injured persons. The financing for Lithuanian projects was provided under the 1996 special intergovernmental agreement, in accordance to which 147

See Paragraph 2 of the 28 July 2000 Resolution No. 884 of the Government of the Republic of Lithuania On the Partial Amendment of the 5 April 1995 Resolution No. 484 of the Government of the Republic of Lithuania ‘On the Calculation of the Damage Inflicted on the Republic of Lithuania by the Armed Forces of the Former USSR during 1940-1991 and the Armed Forces of the Russian Federation during 1991-1993’. Officially published in Valstybės žinios, 2000, No. 65-1946. 148 According to the Resolution, the special governmental Commission was obligated to finish calculations of the damage so as to include payments to the Lithuanian nationals for the damage caused during the occupation and expenses related to the return to the Homeland of the deportees and their descendants, ‘taking into account the practice of the compensation of the damage caused during the World War II period by the German occupations to other countries and the nationals thereof’. Supra note 147. 149 D.A. Loeber, supra note 11, p. 148. 150 More about these compensatory schemes see, e.g., ibid., pp. 148−150.

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Dainius Žalimas both parties (Germany and Lithuania) declared settlement of the issues related to the compensation for Nazi victims from Lithuania.151 Nevertheless in 2000 Germany established the Fund ‘Errinerung, Verantwortung und Zukunft (Remembrance, Responsibility and Future)’ in order to provide the compensation for the persons formerly subject to forced labour by the Nazi regime. This Fund accumulated up to DEM 10 billion (5 billion provided by the German Government and 5 billion from German companies). It was expected that between 700,000 and 1.5 million persons from Eastern and Central Europe could claim compensation. The direct payments to former forced labourers were supposed to be between DEM 1,000 and 15,000 per claimant, depending on individual circumstances.152 Lithuanian nationals could also apply for compensation either through the Genocide and Resistance Research Centre of Lithuania, or directly to the Fund’s partner organisation in Moscow (the Conciliation Fund).153 Thus, the reference to German practice was made in the first paragraph of the Preamble of Lithuania’s Law on Compensation deliberately in order to emphasise the positive experience of compensation for the deportations and forced labour. In particular we should keep in mind that Germany started to pay compensation long after the end of the World War II, thereby suggesting that the responsibility is not excused by a long period of time passing since violations were committed.154 Therefore it was an intention of the drafters of the Law to show Germany as an example to be followed by other nations in dealing with analogous issues. It is only logical that Russia would also be able to commit itself to set up and allocate similar special funds for the Lithuanian nationals deported and subjected to forced labour under the Soviet regime, despite the time passage since these violations. Moreover, from a practical and psychological point of view, making direct compensatory payments would be much easier for Russia than to 151

According to the 5 June 2000 Information paper of the Ministry of Foreign Affairs of the Republic of Lithuania on the compensation payments for the Lithuanian nationals deported to Germany for forced labour during the World War II (on file with author). 152 Ibid. 153 According to the information provided by the Genocide and Resistance Research Centre of Lithuania. See at the website of the Centre: or . 154 It could be worth to mention here that the establishment of the German Fund ‘Remembrance, Responsibility and Future’ was one of the strongest impulses to initiate Lithuania’s Law on Compensation.

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Commentary to the Law on Compensation compensate victims of the Soviet persecutions through interstate mechanisms, i.e., to make payments to the Lithuanian State, which subsequently would pay compensations to its nationals. On the other hand, the most important issue for the Lithuanian State is to achieve compensation for its nationals rather than to insist on any concrete schemes of compensation. Therefore, the reference to the positive German practice had a further impact on different provisions of Lithuania’s Law on Compensation. For instance, Articles 2(2), 2(5) and 3 established a manifest priority for compensation of the damage inflicted on Lithuanian nationals. These provisions left it possible to provide the compensation in different ways, e.g., through possible contributions to the special account of the State Treasury of Lithuania (Article 2(5)) or to the Lithuanian Fund for the Return to the Homeland of the Persons Deported by the USSR (Article 3), or other appropriate mode as could be agreed in the negotiations initiated in accordance to Article 2(4), including the possibility of establishing a special Russian fund servicing the same purposes. 2.5. Real Estate Issues Mentioned in the Preamble of the Law The last paragraph of the Preamble of Lithuania’s Law on Compensation specifically mentions the real estate issues that could be easily settled in a form of restitution in kind, if good will on the part of Russia prevails. In comparison with the total compensation for the material damage resulting from the Soviet occupation, the return of real estate in third countries is a minor issue. However, this issue is very sensitive politically, since it is related with diplomatic representation and state immunity (thus, by the same token, in a certain extent dignity of the State is at stake). Moreover, its successful settlement could mean a major turn in the whole case of reparation. The real estate issues comprise Lithuanian embassy buildings and related land plots seized by the Soviets in third countries. Latvia and Estonia have the similar problems, too. All three Baltic States successfully raised these issues in the Council of Europe, which recognised the legitimacy of their restitution claims as well as the need to solve these pending issues in a prompt and just manner through negotiations.155 For the first time Russia’s commitment to resolve those issues was fixed in paragraph 10(xiv) of the 25 January 1996 Parliamentary Assembly of the Council of Europe Opinion No. 193(1996), On Russia’s request for membership of the Council of Europe, 155

E.g., I. Ziemele, supra note 78, p. 197.

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Dainius Žalimas according to which the Russian Federation fully understood its commitments and intended, inter alia, ‘to settle rapidly all issues related to the return of property claimed by Council of Europe Member States’.156 As stated in the Explanatory Memorandum On Russia’s request for membership, that also included the return of the seized Baltic embassy buildings in third countries.157 Later the same position was confirmed by the special 4 November 1998 Parliamentary Assembly Recommendation No. 1392(1998) Concerning the former embassies of the Baltic States on the territory of some Council of Europe Member States.158 The Recommendation stated the fact that the former embassies of the Baltic States in Paris and Rome were turned over to the diplomatic representatives of the Soviet Union, ‘as a result of the Second World War’. It was also stressed that ‘legally speaking, these former embassies are still the property of the three Baltic States’, therefore the Assembly expressed its firm conviction ‘that these embassies should be returned to their rightful owners’. Finally, all parties concerned were urged ‘to conduct effective negotiations to arrange for the return of the embassies’, as this could not be achieved through other legal means ‘because of the diplomatic immunity accorded to those who occupy the buildings’. In the Recommendation the Assembly also stated the fact that ‘these premises are presently used by various diplomatic and consular services of the Russian Federation’.159 Reminder of Russia’s commitment to settle the issues of the return of diplomatic property of the Baltic States was offered once more in paragraph 8(xvi) of the 23 April 2002 Parliamentary Assembly of the 156

Supra note 105. I. Ziemele, supra note 87, p. 195. 158 A copy from the archives of the Information Bureau of the Council of Europe in Vilnius, also available at the website of the Parliamentary Assembly of the Council of Europe . 159 E.g., in 1991−1994 Lithuania, Latvia and Estonia unsuccessfully tried to vindicate their property rights by judicial means in France. French courts (the Paris High Court, the Paris Court of Appeals and the Court of Appeals of Versailles) regarded the claims as inadmissible on the grounds of diplomatic immunity enjoyed by Russian services installed in the buildings and members of their staff. See R. Satkauskas, ‘The Practice of France with Respect to the Baltic States’ (2001) 1 Baltic Yearbook of International Law, pp. 118−119. However, it could be reasonably asked why the immunity of one state (Russia) should be regarded as superior to the immunity of another state (Lithuania), particularly since the latter immunity had been violated by the seizure of the embassy building in Paris. See V. Vadapalas, supra note 64, p. 188. 157

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Commentary to the Law on Compensation Council of Europe Resolution No. 1277(2002) On the honouring of obligations and commitments by the Russian Federation,160 as well as in paragraph 5(v) of the subsequent Recommendation of the Assembly No. 1553(2002).161 However, Russia has not yet been willing to start any negotiations on the matter. Therefore Lithuania was compelled to seek alternatives in solving the problem, namely it conducted negotiations with other parties concerned (France and Italy) by analogy with the case of the Latvian mission building in Geneva.162 Those parties might be also held partially responsible for the violation of Lithuania’s rights, since their authorities took over and transmitted Lithuanian embassy buildings for the use to the Soviet Union.163 Thus, the last paragraph of the Preamble of Lithuania’s Law on Compensation expressly mentions two issues concerning the seized immovable property of Lithuania. First of all it points out that Russia ‘still occupies the land and building belonging to Lithuania in Paris’. Lithuania purchased this embassy building and corresponding land plot in 1925. After the Soviet occupation of Lithuania, in 1940 the Vichy administration, which was not regarded as the legitimate government of France since it was a puppet institution of the German occupants, took over the building and later transferred it to the Soviets. However, after the liberation in 1944 France did not return the key of the embassy to the diplomatic representative of the 160

A copy from the archives of the Information Bureau of the Council of Europe in Vilnius, also available at the website of the Parliamentary Assembly of the Council of Europe . 161 The 23 April 2002 Parliamentary Assembly of the Council of Europe Recommendation No. 1553(2002) Concerning the honouring of obligations and commitments by the Russian Federation (a copy from the archives of the Information Bureau of the Council of Europe in Vilnius), available also at the website of the Parliamentary Assembly of the Council of Europe . 162 Since Russia was not willing to return the Soviet seized mission building to Latvia, in 1994 Switzerland bought the building from Latvia, as the legitimate owner (in such a way Latvia was compensated for the illegally seized property). See R. Satkauskas, supra note 159, p. 119. 163 In this regard it is worth to recall Article 47.1 of Articles on State Responsibility according to which ‘where several States are responsible for the same internationally wrongful act, the responsibility of each State may be invoked in relation to that act’. See ‘Plurality of responsible States’, supra note 6.

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Dainius Žalimas occupied Republic of Lithuania and left the building at the disposition of the Soviet Union.164 The problem of Lithuania’s real estate in Paris was settled only recently, however, without realising Russia’s responsibility. On 13 December 2001 the governments of Lithuania and France concluded the Agreement Concerning the Status of the Building of the Diplomatic Mission of the Republic of Lithuania in Paris.165 Under the Agreement the parties recognised Lithuania’s property rights to its embassy building as well as the fact that ‘the building is illegally occupied by the diplomatic representatives of the third party’. Therefore, in order to find a way out of the situation in which ‘the legitimate owner can not use the building’, France assumed the obligation to buy Lithuania’s property rights to the building (by the same token, it could be also regarded as the obligation to provide an actual compensation). Thus, the problem of returning Lithuania’s Paris real estate is resolved. The Italian issue is more complicated than the real estate in Paris. That is why the last paragraph of the Preamble of Lithuania’s Law on Compensation only refers to ‘similar issues in Rome’ which ‘have not been resolved as yet’, without a firm statement about unquestionable Lithuanian property rights to the former embassy building and land.166 In 1937, Lithuania bought this immovable property on an instalment plan to be fulfilled by 1952. Until the Soviet occupation in 1940 Lithuania had paid for approximately 45 per cent of the total value of the property. After the occupation of Lithuania, the fascist Italian government expelled the Lithuanian diplomatic representatives and transferred the building and land to the Soviet Union. Although Italy ruptured diplomatic relations with the USSR in 1941, it did not allow the Lithuanian representatives to return to the embassy. After the World War II, a Rome court decided to sell the embassy building and its land in order to ensure payment of the remaining debt. The property was redeemed by the Italian government and later transmitted again to the Soviet Union; however, 164

More about the seizure of Lithuanian embassy building in Paris, see V. Vadapalas, supra note 64, pp. 187−188; R. Satkauskas, supra note 159, pp. 113−114. 165 A copy from the archives of the Ministry of Foreign Affairs of the Republic of Lithuania. 166 More about the case of Lithuanian embassy building and land in Rome, e.g.: V. Vadapalas, supra note 64, p. 188; Paulius Jurkevičius, ‘Diplomatai šturmuoja okupacijos paminklą: Italija pagaliau sutiko pradėti derybas dėl Lietuvos prieškario ambasados rūmų’, Lietuvos rytas, 11 July 2002.

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Commentary to the Law on Compensation the Soviets paid only approximately 19 per cent of the initial price. Now the building and its land plot are occupied by Russia’s consulate general. In summary, it is clear that Lithuania can claim at least the compensation of its original payments (45 per cent of the 1937 cost). Since Russia refused to start talks on the return or compensation for the seized property, in 2002 Lithuania entered into the negotiations with Italy. They are likely to be finished by an agreement on the monetary compensation similar to that provided by France (expected by the end of 2003 during the Italian presidency in the EU).167 3. Article 1 In order to confirm the principle of full reparation, Article 1 of Lithuania’s Law on Compensation fixed the period for which the damage would be estimated.168 This period was divided into two sub-periods, before and after the restoration of the independence of Lithuania. That allowed for encompassing all the damage that resulted as the consequence of the illegal occupation, not leaving aside the damage caused during the first years of the restored independence by the Soviet and Russian forces (i.e. after the occupation, but as a consequence thereof). In Article 1 of the Law, the period of the damage is defined approximately (to within a year rather than precise date), more as a matter of legal principle. Meanwhile the exact period of the damage has already been established for the purposes of precise calculation under the above-described governmental Work Programme on the Evaluation of the Damage.169 The first sub-period is described in Article 1(1) of the Law. It comprises all the period of the 1940−1990 Soviet occupation when the Republic of Lithuania was deprived of the independence. Obviously, the period of 1940−1990 is associated with the largest amount of the damage resulted as the consequence of the Soviet occupation (e.g., repressions of the population and resistance as well as the destruction of national economy, defence and other State powers). The Soviet occupation started on 15 June 1940 and formally ended upon the restoration of Lithuania’s independence on 11 March 1990. Article 1(1) 167

Reported in ‘Vilniuje bus tęsiamas dialogas apie prieškario Lietuvos ambasadą Romoje’, BNS, 12 November 2002; ‘Lietuvos prieškario ambasados pastato Romoje likimą tikimasi išspręsti per Italijos pirmininkavimą ES’, BNS, 13 November 2002. 168 More about this principle supra part 2.3 of the Commentary to the Preamble of the Law. 169 Ibid.

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Dainius Žalimas of the Law also specifically points to the period of 1941−1945 when Lithuania was occupied by Nazi-Germany.170 As pointed out in Article 1(1), that period must be included into the whole period of the damage caused during the Soviet occupation so as not to leave aside any damage associated with that occupation. As indicated, during 1941−1945 the Lithuanian people who had been deported to the USSR prior to the German occupation of Lithuania171 continued to suffer damage, since they were forcibly detained in the territory of the Soviet Union. Besides, during the German occupation some damage was also inflicted on Lithuania by the Soviet military units (including the Soviet partisans) operating on Lithuanian soil. That damage is also expressly included in Article 1(1), as the damage done by the Soviet armed forces and repression structures during 1941−1945. According to Article 1(2) of the Law, the second sub-period of the damage comprises the period of 1990−1993, starting from the restoration of Lithuania’s independence on 11 March 1990 and finishing at the complete withdrawal of Russian troops on 31 August 1993 (a few small platoons were withdrawn three months later172). Thus, it is associated with the illegal presence and activities on Lithuanian soil by foreign armed forces and other repression structures, which was the continuing consequence of the already ended Soviet occupation. It took a certain time before Russia ceased these illegal acts. The second sub-period is also divided into several sub-periods according to the subjects that made the damage. Firstly, as indicated in Article 1(2), during 1990−1991 Lithuania suffered the damage ‘caused by the USSR, its repression structures and the armed forces’. That was the period when the Soviet Union tried to seriously impair the restored independence of Lithuania in order to return the country to its control. Therefore, the Soviet armed forces and repression structures continued the aggressive acts against Lithuania and its people: The most serious acts took place on 11−13 January of 1991 when the USSR unsuccessfully tried to overthrow the legitimate Lithuanian authorities and to set the puppet government (Soviet forces killed 13 people as well as seized radio-television and some other buildings). These 170

The German occupation of Lithuania started on 22 June 1941, while the Soviets began to re-occupy the country in the summer of 1944 and finished in January of 1945 with the seizure of Klaipėda port city. 171 The massive deportations of Lithuanian people started on 14 June 1941, i.e. a week before the beginning of the German-Soviet war. 172 Č. Stankevičius, supra note 19, Chapter 2, Para. 53.

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Commentary to the Law on Compensation illegal efforts were terminated after the failure of the August coup d’état in the Soviet Union, and on 6 September the USSR recognised the restored independence of Lithuania. After that all activities of the Soviet repression structures, the KGB and other secret services as well as the Soviet militia and other paramilitary units, were formally ceased in Lithuania. However, some Soviet armed forces continued to be illegally stationed in the country until their complete withdrawal. That is why Article 1(2) of the Law separately indicates ‘the damage caused by the armed forces of the USSR (the Russian Federation in 1992−1993) during the period of 1991−1993’. The period of 1992−1993 is marked out because during that period the former Soviet armed forces in Lithuania were treated as the armed forces of the Russian Federation. Russia took over the jurisdiction of those forces upon the dissolution of the USSR.173 During the period of 1991−1993, the Soviet (Russian) armed forces caused less damage than in previous periods. It consisted mostly of the continuing environmental pollution and destruction of the property under their control, debts for public utilities, as well as illegal military exercises and other similar acts of non-obedience to Lithuanian laws.174 4. Article 2 Article 2 of Lithuania’s Law on Compensation set the main steps (including timetable) to be taken by the Government in continuing to seek the compensation for the damage inflicted by the Soviet occupation. They consist of a few duties of the Government of the Republic of Lithuania. Firstly, according to Article 2(1) of the Law, the Government was obliged prior to 1 September 2000 to ‘form a delegation of the Republic of Lithuania for negotiations with the Russian Federation concerning the compensation of the USSR occupation damage to the Republic of Lithuania’. That was accomplished by the 28 July 2000 Resolution of the Government.175 The functions of the delegation for negotiations were entrusted to the governmental Commission responsible for the calculation of the damage (the same Commission finished the calculation under Article 2(2) of the Law). However, due to Russia’s refusal to negotiate the Delegation practically does not work. 173

To be more precise, it happened not on 1 January 1992, but at the last days of December 1991. 174 See Č. Stankevičius, supra note 19, Chapter 2, Paragraphs 20-25, 30, 46. 175 See para. 3 of the Resolution, supra note 147.

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Dainius Žalimas Secondly, according to Article 2(2) of the Law, the Government was obliged prior to 1 October 2000 to ‘specify more precisely and finish calculations of the damage caused by the USSR occupation’. As indicated, that work had to be done in accordance with the above described Work Programme176 approved by the 13 February 1996 Resolution No. 242 of the Government On the Work Programme on the Evaluation of the Damage Inflicted on the Republic of Lithuania by the Armed Forces of the Former USSR during 1940−1991 and the Armed Forces of the Russian Federation during 1991−1993.177 In addition to the damage specified in the Work Programme, Article 2(2) obliged the Government to include into the calculation ‘payments to the Lithuanian nationals for the damage caused during the USSR occupation and its consequences, as well as expenses related to the return to the Homeland of the deportees and their descendants’. That corresponds to the principle of full compensation,178 according to which the compensable damage must include the ‘expenditures reasonably incurred to remedy or mitigate damage flowing from an internationally wrongful act’, including pensions and other compensatory payments from the State budget to the injured persons as well as the non-compensated costs incurred on these persons in relation to the injury. 179 Thus, it was only logical to add this kind of damage to the previous calculations. It could not be estimated under the 1996 Work Programme, since at that time the planning of compensatory payments and the return of the deportees was only beginning. Besides, German schemes for the compensation of similar expenses, which are referred as an example in Lithuania’s Law on Compensation and the 28 July 2000 governmental Resolution, had not been sufficiently developed yet.180 The payments to Lithuanian nationals for the damage resulted by the Soviet occupation, inter alia, include such payments from the State budget of Lithuania, as the state pensions for the injured persons181 (e.g., they have to be paid to the former 176

More about this Work Programme supra part 2.3 of the Commentary to the Preamble of the Law. 177 Officially published in Valstybės žinios, 1996, No. 16-424. 178 More about this principle see supra part 3 of the Commentary to the Preamble of the Law. 179 Para. 5 of the ILC Commentary to Article 36 of Articles on State Responsibility. 180 More about that see supra part 2.4 of the Commentary to the Preamble of the Law. 181 Provided by the 22 December 1994 Law on the State Pensions. Officially published in Valstybės žinios, 1994, No. 101-2018.

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Commentary to the Law on Compensation resistance-members, political prisoners and deportees, or, if they are dead, to the members of their families) as well as to the persons seriously injured by the Soviet forces in January−August 1991 or the members of the families of the persons fallen during these events), as well as the extraordinary allowances to the former freedom fighters (resistance-members)182 and the families of the fighters killed,183 and the compensations to those former deportees or detainees who were subject to force labour.184 Meanwhile, Lithuania did not use the State budget to pay direct compensations for the costs incurred on the former deportees and their descendants, which were related to their return to the Homeland. Thus, Russia would be able to pay the compensations to these persons either through its own specially established funds, or through the contributions to the special Lithuanian fund as specified in Article 3 of Lithuania’s Law on Compensation, or to the special compensation account of the Lithuanian State Treasury (Article 2(5) of the Law). All duties prescribed in Article 2(2) of the Law were accomplished by the Government. By the said 28 July 2000 Resolution185 the Government renewed the Commission for the consideration of the issues related to the damage inflicted on Lithuania by the Soviet occupation. It also obligated the Commission to finish the calculation of the damage by 1 October 2000 so as to include the above-mentioned category of the damage − taking into account the appropriate practice of German compensations. It should be noted that the previous governmental Commission had almost finished its task in accordance with the 1996 Work Programme. The preliminary evaluation of the damage completed in 1997 amounted to the breath-taking total of USD 667.7 billion186 (however, it included all losses of national income and other similar economical losses incurred due to the 182

Provided by the 25 November 1997 Law on the State Support to the Participants of the Armed Resistance. Officially published in Valstybės žinios, 1997, No. 1142868. 183 Provided by the 6 October 1998 Law on the State Support to the Families of the Fallen Participants of the Resistance to the 1940-1990 Occupations. Officially published in Valstybės žinios, 1998, No. 92-2543. 184 Provided by the 12 August 1991 Resolution No. 327 of the Government On the Compensation of the Material Damage Inflicted by Persons during the World War II and the Occupations Deported for Forced Labour or Detained in Ghettos, Prisons or Other Places of Deprivation of Freedom. Officially published in Valstybės žinios, 1991, No. 26-704. 185 See, para. 1 of the Resolution, supra note 147. 186 See, R. Tracevskis, supra note 2.

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Dainius Žalimas Soviet impediment to regularly expected economic development in Lithuania187). The renewed Commission continued the work and reported to the Government about the final results of the calculation on 6 October 2000. According to its announcement, the overall damage resulted from the Soviet occupation, estimated according to the UN recognised methodologies188 (including the loss of gross domestic product due to the Soviet interference into national economy of Lithuania), amounted to approximately USD 800 billion.189 However, the direct damage (without loss of profits by national economy) was evaluated at USD 20 billion.190 This sum consists, inter alia, of the compensable damage estimated in USD as follows:191 1) compensation for killed and fallen Lithuanian people, 7.5 billion;192 2) damage inflicted by the genocide and other repressions, 1.8 billion; 3) damage inflicted by the persecutions of the resistance to the occupation, 171 million; 4) damage done by forced recruitment of the population to the Soviet armed forces, 2.3 billion; 5) damage to the population inflicted by the nationalisation, collectivisation and confiscation of bank deposits, 500 million; 6) damage inflicted on the Catholic Church and other confessions, 200 million; 7) damage related to the cessation of State functions of vital importance, 1.4 billion; 8) damage from forced emigration and the damage to nongovernmental organisations, 6 billion.

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While, e.g., the environmental damage caused by the Soviet (Russian) armed forces amounted to USD 1.76 billion. See, Č. Stankevičius, supra note 19, Chapter 2, para. 55. 188 More about various methods of evaluation of the damage see, e.g., Paragraphs 21-34 of the ILC Commentary to Article 36 of Articles on State Responsibility. 189 Reported in ‘Sovietų okupacijos padaryta žala – 20 milijardų dolerių’, Lietuvos rytas, 7 October 2000. 190 Ibid.; ‘Soviet Occupation Said to Have Cost Lithuania $20 Billion’, RFE/RL Baltic States Report, 16 October 2000, Vol. 1, No. 33, . 191 Supra note 189. 192 More about Lithuanian population losses in 1940-1952 see, e.g., at the website of the Genocide and Resistance Research Centre of Lithuania: http://www.genocid.lt.

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Commentary to the Law on Compensation Understanding that the demand to compensate the overall damage could create an unbearable burden for Russia, the Government of Lithuania decided to seek the compensation at least for the direct losses estimated at the minor sum of USD 20 billion (therefore this sum is more well known to the public in Lithuania and abroad). However, it does not mean that Lithuania waived its claim for the full compensation, and the Government did not state anything of the kind. Lithuania still reserves the right to raise the issue of full compensation when it could be appropriate. For instance, it could be appropriate to raise such a claim in response to any Russian claims for the alleged Soviet investments into the economy of Lithuania: the overall damage inflicted on Lithuania (approximately USD 800 billion) is immense compared to the alleged Russian counter-claims (USD 20 billion193 or 21 billion deflated Soviet roubles194). Thirdly, Article 2(3) of Lithuania’s Law on Compensation stipulated a few interrelated duties of the Lithuanian Government. The Government was obliged prior to 1 November 2000 to ‘appeal to the Russian Federation for the compensation of the damage caused during the period of the USSR occupation, submitting the calculations of damage’. That was accomplished. The prior information and submission of the calculations of the damage to Russia was important for the initiation of the negotiations as provided by Article 2(4) of the Law: thereby Russia was afforded an opportunity to prepare for the future negotiations (e.g., to evaluate the substantiality of Lithuania’s calculations and to arrange possible counter-arguments in response to the claim). However, Russia has refused to negotiate on the matter as yet.195 According to Article 2(3) of the Law, the Lithuanian Government was also obliged prior to 1 November 2000 to inform the United Nations, the Council of Europe and the European Union about the appeal to Russia for the compensation (that was also accomplished in time), as well as to ‘constantly seek the support of these international organisations and the Member States thereof when solving the issues of the compensation of the USSR occupation damage to Lithuania’. That provision was set deliberately having in mind the positive influence of the international community in the past negotiations with Russia concerning the withdrawal of its troops from

193

See supra note 57. R. Satkauskas, supra note 11. 195 Infra the Commentary to Article 2 (4) of the Law. 194

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Dainius Žalimas Lithuania.196 In this context the United Nations, the Council of Europe and the European Union are regarded as the organisations whose support in pursuing the compensation claim is the most important for Lithuania. The United Nations played an important role in pressing on Russia to withdraw its troops from the Baltic States and, therefore, should be interested in further elimination of the consequences of the Soviet occupation, since Russia’s admission in 1996 the Council of Europe has been engaged in the elimination of the consequences of the Soviet occupation for the Baltic States. Meanwhile the role of the European Union was underlined, since Lithuania, as the future member of the Union, could expect its support in the framework of the common foreign policy. Besides, the support of Lithuania’s claim would be consistent with the EU position that has recognised Russia’s continuity197 and the illegality of Lithuania’s occupation.198 Obviously, Article 2(3) of the Law does not exclude the possibility to appeal to other organisations as might be necessary, since in principle it requests the Government to seek as much international support as possible referring to the desirable support from the UN Member States.199

196

More about the political pressure of the international community on Russia during those negotiations, see V. Vadapalas, supra note 20, p. 12; Č. Stankevičius, supra note 19, Chapter 7, section 1 (paras. 1−6). 197 As mentioned in the sixth paragraph of the Preamble of Lithuania’s Law on Compensation. See also supra part 2.2 (2) of the Commentary to the Preamble of the Law. 198 More about the position of the European Communities and their Member States with regard to the Soviet annexation of Lithuania, see W. J. H. Hough III, supra note 74, pp. 412−428, 431−434, 437, 438−439. In the 13 January 2003 Declaration adopted at the solemn meeting to mark the 20th anniversary of the 13 January 1983 Resolution of the European Parliament and the Day of Defenders of Freedom. Officially published in Valstybės žinios, 2003, No. 5-171. English text available in the website of the Seimas of the Republic of Lithuania at ) The Seimas of the Republic of Lithuania referred to the said Resolution of the European Parliament as to the one of the best known examples of international condemnation of the unlawful occupation of the Baltic States. 199 Neither Article 2(3) of the Law excludes the possibility to seek a support from non-governmental organisations, e.g., the Red Cross. For instance, recently the Estonian Government approved the initiative of the Red Cross to collect complaints from the victims of the communist repression. Reported in ‘Raudonasis Kryžius Estijoje rinks komunistinių represijų aukų pareiškimus’, BNS, 17 December 2002.

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Commentary to the Law on Compensation However, as yet Lithuania has not received an official support of its claim, either from the UN or the EU (e.g., the UN did not made any statement concerning the reparation issue in its resolutions on the withdrawal of Russian troops from the territory of the Baltic States).200 Therefore it seems that Lithuania can essentially rely only on its own efforts in pursuing the claim for compensation. As Professor Loeber notes, the 1995 Pact on Stability in Europe could mean that the Baltic States must themselves overcome the problems inherited from the Molotov−Ribbentrop Pact.201 Only the Council of Europe has more actively seized of the matter dealing with certain issues of Russia’s responsibility. As mentioned, its Parliamentary Assembly fixed Russia’s commitment to return to Lithuania the real estate seized by the Soviets in the third countries.202 In addition, paragraph 7(xii) of the 25 January 1996 Parliamentary Assembly of the Council of Europe Opinion No. 193(1996) On Russia’s request for membership of the Council of Europe203 fixed the commitment of the Russian Federation to ‘assist persons formerly deported from the occupied Baltic States or the descendants of deportees to return home according to special repatriation and compensation programmes which must be worked out’. That obligation had to be fulfilled in the near future as it was regarded as stemming from Russia’s membership in the Council (paragraph 7 of the Opinion). However, as yet Russia has neither returned to Lithuania the 200

R. Satkauskas, supra note 11. Sometimes it even seemed to the author of this Commentary that some key international organisations wished the Lithuanian claim would be withdrawn from the agenda, as they were concerned not to create any political tensions in the relations with Russia. That is doubtful, however, whether a firm basis for good and friendly relations could be built up, if the tragic past would be forgotten and the responsibility for those events would be washed away. As the former President of the Czech Republic Václav Havel rightly observed in the eve of the 2002 NATO Prague summit, we can not sacrifice the values of the democratic world, including the rule of law and justice, human rights as well as other values to be defended by NATO, for the sake of the development of the partnership with Russia. See ‘The Transformation of NATO’, the opening speech by Václav Havel, the President of the Czech Republic, at the conference organised on 20 November 2002 in Prague by Host Committee and Aspen Institute of Berlin, available in the NATO website at . 201 He relies on the provision of the Stability Pact that the candidate States to the EU must ‘overcome the problems inherited from the past’. See Dietrich A. Loeber, supra note 11, p. 150. 202 Supra part 2.5 of the Commentary to the Preamble of the Law. 203 Supra note 105.

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Dainius Žalimas seized real estate nor provided the assistance to the former deportees and their descendants (no special repatriation and compensation programme has been worked out, too). Therefore, recently the Parliamentary Assembly repeatedly urged and called on the Russian authorities to settle ‘as quickly as possible’ the pending issues regarding ‘the return of diplomatic property of the Baltic States transferred to the Soviet Union in 1940, and compensation for those persons deported from the Baltic States and their descendants, as stated in Opinion No. 193’.204 Despite that, Russia continues to ignore those and a number of other major commitments related with its membership in the Council of Europe. Fourthly, according to Article 2(4) of Lithuania’s Law on Compensation, the Government was obliged to ‘initiate negotiations and constantly seek that the Russian Federation compensate to the Lithuanian people and the State of Lithuania for the damage caused by the USSR occupation’. It is obvious that negotiation is the best way to settle all claims (and even possible counterclaims) as well as to find a mutually acceptable amount of the compensation. The negotiations could also lead to the use of other mutually acceptable peaceful means of dispute settlement in order to reach a just solution of the claim (this possibility is not excluded by the Law either): for instance, the parties may agree to resort to the arbitration or judicial settlement. The Government of Lithuania officially initiated (though unsuccessfully) the negotiations with Russia on the compensation for the damage resulted from the Soviet occupation. For instance, on 22 March 2001 the Foreign Minister of Lithuania requested to include the compensation issue in the agenda of the Lithuanian−Russian intergovernmental co-operation commission, however the Russian side rejected this proposal.205 Russia has not changed its position as yet.

204

Paragraph 8(xvi) of the 23 April 2002 Parliamentary Assembly of the Council of Europe Resolution No. 1277(2002) On the honouring of obligations and commitments by the Russian Federation, supra note 160. That request was also included into Paragraph 5(v) of the 23 April 2002 Parliamentary Assembly of the Council of Europe Recommendation No. 1553(2002) Concerning the honouring of obligations and commitments by the Russian Federation, supra note 161. 205 See RFE/RL Baltic States Report, 2 April 2001, Vol. 2, No. 8, .

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Commentary to the Law on Compensation Nevertheless the Lithuanian Government remains to be obliged by Article 2(4) of the Law constantly to seek the negotiations on the matter.206 The compensation issue will continue to be brought to Russia’s attention, at the same time trying to keep the optimum balance with the need to develop good friendly relations with Russia.207 It would be too early to think that the compensation issue is hopeless to resolve, in particular having in mind that Germany only recently started to compensate victims of Nazi regime from Eastern and Central Europe. It is also clear that Russia needs some time to rethink its past as well as to acknowledge sincerely the illegality of the Soviet acts against other nations. The recent Russia’s promise to start talks with Poland on the compensation payments to the former Polish deportees208 also proves that the hope to settle the similar issues related to the responsibility for the Soviet occupation of Lithuania is not futile. We only need to be patient to wait for favourable political climate. Fifthly, according to Article 2(5) of Lithuania’s Law on Compensation, the Government is obliged to ‘accumulate funds, received from the Russian Federation as the compensation of the damage caused by the USSR occupation, in the separate occupation damage compensation account of the State Treasury’, as well as to ‘primarily allocate such funds to compensate for the damage caused to the Lithuanian people due to deportations, forced labour, occupation regime repression and lost property’. The latter provision reflects the priority given by the State of Lithuania to the compensation claim for the damage suffered by its nationals. This priority follows from the foremost task of each democratic state to protect its nationals.209 It is obvious that the means received from Russia would enable the Lithuanian State to provide more material support for its people suffered from the occupation, for example, to increase the spectrum and amount of the compensatory 206

Besides, we should recall that, once established, the claim for compensation would last, unless officially waived. See supra part 2.1 (1) of the Commentary to the Preamble of the Law. 207 R. Satkauskas, supra note 11. 208 On 20 February 2003, in Warsaw the Prime Minister of Russia Michail Kasjanov promised to his Polish counterpart Leszek Miller to start talks concerning the compensations to Poles formerly deported to Siberia. Reported in ‘Opozicijos politikas ragina valdžią priminti Rusijai įsipareigojimus padėti tremtiniams grįžti į Tėvynę’, BNS, 27 February 2003. 209 It is also reflected in other provisions of the Law as well as in the calculation of the damage. See supra parts 2.3 and 2.4 of the Commentary to the Preamble of the Law and the Commentary to Article 2(2) of the Law, as well as the Commentary to Article 3 of the Law below.

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Dainius Žalimas payments mentioned above210 as well as to compensate for the deposits lost in the former Soviet banks. However, no funds have yet been received from Russia as compensation for the damage caused by the Soviet occupation. The separate occupation damage compensation account opened in the State Treasury of Lithuania should remind Russia’s legal and moral duty to compensate for the damage, therefore the empty account could be regarded as a continual reproach on Russia for its unwillingness to carry out those duties.211 5. Article 3 Guiding by the aspiration to assist those suffered the most, the drafters of Lithuania’s Law on Compensation decided to insert the special Article 3 designed for the concerns of the deportees and their descendants. The rationale for this article is expressly mentioned, i.e. the commitment ‘to assist the persons, previously deported from the occupied Baltic States and (or) their descendants, to return to their countries according to special repatriation and compensation programmes’, which was assumed by the Russian Federation on 25 January 1996 before the Council of Europe.212 Therefore, the main aim of Article 3 is to urge and help Russia in carrying out that commitment. According to Article 3, the Government of the Republic of Lithuania was obliged to ‘create a Fund for the Return to the Homeland of the Persons Deported by the USSR’, as well as to ‘appeal to the Russian Federation regarding the allocation of funds for the return to the Homeland of the persons deported from Lithuania, and their descendants’. The Fund was established on 8 November 2000.213 Apart from the means allocated by Russia according to special repatriation and compensation programmes, the 210

Supra the Commentary to Article 2(2) of the Law. According to the words of the Member of the Seimas of the Republic of Lithuania Antanas Napoleonas Stasiškis, who also is one of the authors of the Law and the former political prisoner persecuted by the Soviet authorities for the participation in the resistance movement against the occupation. 212 See Paragraph 7(xii) of the 25 January 1996 Parliamentary Assembly of the Council of Europe Opinion No. 193(1996) On Russia’s request for membership of the Council of Europe, supra note 105. Supra the Commentary to Article 2 (3) of the Law. 213 The Resolution No. 1375 of the Government On the Establishment and Approval of the Regulation of the Fund for the Return to the Homeland of the Persons Deported by the USSR. Officially published in Valstybės žinios, 2000, No. 98-3108. 211

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Commentary to the Law on Compensation Fund was entitled to accumulate donations and other legally acquired means for the purpose to compensate the expenses related to the return of deportees and their descendants to the Homeland.214 The latter means remains the only source of financing of the Fund’s activities because, despite the official Lithuanian appeal, as yet Russia has not allocated any funds. 6. Conclusion This commentary analyses the provisions of Lithuania’s Law on Compensation of 13 June 2000 as well as the course of its implementation. Undoubtedly, the Law is important for all three Baltic States as it is one of the major steps in pursuing common claims for compensation for the damage resulted from the Soviet occupation. The Law is significant in a few aspects. First of all it consolidates all legal grounds of Lithuania’s claim for reparation. Obviously the foremost legal basis of the Law consists of the universally recognised norms and principles of international law, in particular those codified in Articles on State Responsibility. Thus, the Law testifies that Lithuania’s claim for compensation is well established and admissible from the standpoint of international law as well as that Russia is duly notified about the claim. In other words, by analogy with the Certain Phosphate Lands in Nauru case, the Law also shows that, given the nature of Lithuania’s relations with Russia, as well as steps taken by Lithuania since the restoration of its independence, Lithuania’s claim is not rendered inadmissible by passage of time. By the Law Lithuania only once more notified that the reparation should take the form of compensation as well as that the claim for compensation remains valid in its full extent. The Law also stated that Russia could not escape the responsibility for the illegal acts committed by the former USSR: The obligation to make reparation to Lithuania automatically passed to Russia upon the dissolution of Soviet Union, since Russia is regarded as the State continuing legal personality of the latter. Moreover, the Law recalled Russia’s commitment to eliminate the consequences of the Soviet occupation of Lithuania, which was 214

On 14 December 2001, the Lithuanian Minister of Social Security and Labour approved the Rules of Compensation of the Expenses Related to the Return of Deportees and Their Descendants to the Homeland. Officially published in Valstybės žinios, 2001, No. 107-3893. On 11 June 2001, the Minister formed the Board to administer the Fund consisting of 7 representatives of non-governmental organisations of former deportees and the state authorities concerned. The ministerial Order is officially published in Valstybės žinios, 2001, No. 53-1902.

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Dainius Žalimas stipulated in the 1991 Treaty on Interstate Relations. That includes both the withdrawal of Russian troops from Lithuania (it was finished in 1993) and the compensation for damages inflicted by the occupation. Secondly, from the point of view of Lithuania’s national law, the Law logically finalised the formulation of the claim for compensation, in line with the previous acts. Differently from the previous acts, the Law clearly defined the concrete steps to be taken by the Government in accordance to the prescribed timetable, i.e. it established the precise legal rules for the purposes of further realisation of the will of Lithuanian people expressed at the 14 June 1992 referendum. They demanded that Russia compensate for the damage resulting from the Soviet occupation of Lithuania. According to the Constitution of the Republic of Lithuania, any document laying down compulsory rules or programme goals for the Government has to be adopted by the Seimas in the form of statutory law. Thus, the Law implemented this constitutional requirement, whereas the previous acts were not of program or normative nature. Thirdly, from the political point of view, the Law clearly proved that, despite Russia’s unwillingness to negotiate on the matter, Lithuania would maintain its claim for compensation among the pending issues. Therefore, it may be regarded as the programme law in the field of the foreign policy of the State. Fourthly, the drafters of the Law relied on the state practice concerning responsibility for the damage resulted from occupations, in particular they had in mind the recent practice of German compensations to the former deportees and forced labourers from Eastern and Central Europe. Therefore the Law contains the provisions urging Russia to deal with Lithuania’s claim for compensation in a similar manner as well as confirming the priority given to the compensation of the damage inflicted on Lithuanian nationals, primarily those suffered from deportations, forced labour and other repression policy. Fifthly, the Lithuanian Government has fulfilled its duties under the Law as far as it depended only on Lithuanian side. The most important is that the calculation of the damage resulted from the Soviet occupation was completed. The overall damage, including the loss of gross domestic product due to the Soviet interference with the national economy of Lithuania, was estimated at approximately USD 800 billion. The direct damage without loss of profits by national economy was evaluated up to USD 20 billion. Lithuania hopes that at least the latter sum will be compensated sooner or later. 162

Commentary to the Law on Compensation According to the Law, the Government remains to be obliged constantly to seek the negotiations with Russia on the compensation issue. However, as yet Russia has refused to start talks on the matter. Moreover, it even tried groundlessly to justify the Soviet aggression against Lithuania, disregarding its antipodal position firmly established by the bilateral Treaty on Interstate Relations. Besides, the international community shows little sympathy to Lithuania’s claim for reparation, probably with the exception of the Council of Europe, which, however, is too weak to ensure Russia’s compliance with a great number of its major commitments. Nevertheless it would be too early to presume that the compensation issue is hopeless, in particular having in mind that Germany only recently started to compensate victims of Nazi regime from Eastern and Central Europe. It is also clear that Russia needs some time to rethink its past as well as to sincerely acknowledge the illegality of the Soviet acts against other nations. The recent Russia’s promise to start talks with Poland on the compensation payments to the former Polish deportees also proves that the hope to settle the similar issues related to the responsibility for the Soviet occupation of Lithuania is not futile. However, we need much patience to wait for favourable political conditions both in Russia and in international arena. It could even last decades until such conditions will be created. Meanwhile the realisation of Russia’s responsibility is one of the essential preconditions of regional stability. While this issue remains unsettled on the agenda, it will be impossible to achieve the foremost purpose of the Russian−Lithuanian Treaty on Interstate Relations, namely to create an atmosphere of mutual trust between the parties and their peoples. Indeed, it is hard to imagine such an atmosphere until Russia fully accepts its responsibility to Lithuania for manifestly wrongful acts, in particular if the former fails even to make a formal apology and, on the contrary, tries to justify the wrongful conduct. Thus, for the sake of establishing a firm basis for good and friendly relations, the tragic past cannot be forgotten. Otherwise we would sacrifice the rule of law and justice − the most important values of the modern democratic world.

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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 *

Söderberg Professor of International Law and Human Rights at the Riga Graduate School of Law (Latvia), Visiting Professor at the Raoul Wallenberg Institute of Human Rights and Humanitarian Law, Lund University (Sweden).

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Ineta Ziemele 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 wrongful act’ is a fundamental element of State responsibility if the international 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 identical patterns of action towards all 1

See J. Crawford, The International Law Commission’s Articles on State Responsibility. Introduction, Text and Commentaries, Cambridge University Press, 2002, p. 201. 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, Rīga, 1995. For the view that the MolotovRibbentrop 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., Genève, 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

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State Continuity, Succession and Responsibility 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 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. 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.’ 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 Tālavs 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:

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Ineta Ziemele Lithuania in the alliance after the Pacts were signed.6 The Soviet Government considered 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 ‘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, 2nd 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 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. 7 See ‘Soviet Russia’s Ultimatum to Latvia’, reproduced in Sontang & Beddie (1948) 202. 8 Revue Baltique, 1940, 296. 9 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

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State Continuity, Succession and Responsibility 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 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 advanced toward Tallinn. Soviet forces entered Rīga on the same day. They had already occupied Lithuania on 15 June 1940. 10 See ‘Telephonogram from A.Vyshinskii to the Foreign Affairs Commissariat of the USSR’, in Grava-Kreituse et al. (1995) 233. 11 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 Ļ. Zīle (eds.) Latvijas valsts atjaunošana 1986-1993 [Restoration of Latvia 1986−1993], Rīga, LU Žurnāla ‘Latvijas Vēsture’ fonds, 1998, pp. 31−34. 12 The Presidents of Estonia and Latvia, Konstantin Päts 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. 13 See ‘Protocol No. 56. Meeting of the Cabinet of Ministers’, reproduced in GravaKreituse (1995) 282−284.

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Ineta Ziemele 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 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. 14

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. 15 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. 16 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; c. to operate with all State funds, movable and immovable property at the disposal of the said missions; … e. to liquidate missions, with the exception of the Legation in the United States of America; f. to designate delegates to meetings and conferences . . . 17 For the argument that the Baltic governments were naïve, see E. Andersons, Latvijas vēsture 1920−1940, Stockholm, Daugava, 1982, pp. 680−681.

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State Continuity, Succession and Responsibility ‘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 the 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 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?

18

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. 19 See for example, Loeber (2001) 147, also, note 104. 20 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.

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Ineta Ziemele 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.21 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.22 In other words, there must be rights and obligations that appertain to a State, irrespective of its status as old or new State, and, with this in mind, State responsibility may arise. 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 21

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, 204−205. 22 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 à l’éprouve des facts/State Succession: Codification Tested against the Facts, The Hague, Boston, London, Martinus Nijhoff Publishers, 2000, pp. 121−122.

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State Continuity, Succession and Responsibility 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. 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 State succession, 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 23

See Article 2 (a) and Chapter II entitled ‘Attribution of Conduct to a State’ in Articles on State Responsibility. 24 Crawford (2002), p. 117. 25 Ibid., pp. 118−119.

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Ineta Ziemele 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 a view on the issue of legal personality of Yugoslavia at the time 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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State Continuity, Succession and Responsibility 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 extinction? 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 evidence concerning the position 28

See, Article 21 of the Austrian State Treaty.

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Ineta Ziemele 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 Gabčikovo-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

29

See Crawford (2002) p. 257. 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. 30

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State Continuity, Succession and Responsibility 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 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: ‘2. 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 32 33

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

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Ineta Ziemele 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 Indonesia’s 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 cases 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 34

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). 36 Crawford (2002), pp. 250−251. 37 See for more on this point, the discussion accompanying note 58 below. 35

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State Continuity, Succession and Responsibility 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 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.

38

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/1_3, para. 474. 40 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. 41 See, the 1994 Declaration on Baltic Issues, available at http://www.osce.org/docs/ english/1990-1999/summits/buda94e.htm. 39

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Ineta Ziemele 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 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 42

See for, a fairly exhaustive account of the examples of State practice, Baltic Yearbook, 2001, volume 1. 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, p.p. 194−202.

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State Continuity, Succession and Responsibility 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 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 minority on the territory of Latvia. Latvia’s demands have stayed at the level of different unilateral or trilateral declarations. There are no 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 44

‘Landsbergis asks Russia for billions’, The Baltic Times, 18−24 May 2000, p. 1, 6. See, D. Žalimas and R. Satkauskas in this volume of the Baltic Yearbook. 46 See, Deklarâcija par Latvijas okupâciju, 22.08.1996. Published in Latvijas Vestnēsis, No. 143, 27.08.1996. 45

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Ineta Ziemele 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 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

47

See, L. Mälksoo in this volume of the Baltic Yearbook. 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. 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 48

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State Continuity, Succession and Responsibility 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 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, 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, Rīga, Academy of Sciencies of Latvia, 2nd rev. ed, 2001, pp. 224−247. 52 See, Zakon o reabilitaciy zhertv politicheskih represyi, 18.10.1991. with last amendments in 2001 (on file with the author).

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Ineta Ziemele 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 to admit any such breach entailing relevant responsibility.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 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 Renewal of the Independence of the Republic of Latvia (the Independence Declaration) was adopted. The Act on the Restoration of the Lithuanian State was passed on 11 March 1990. 56 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. 57 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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State Continuity, Succession and Responsibility 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) The injured State has validly waived the claim; b) 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 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 185

Ineta Ziemele 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 determining 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 58

Crawford (2002) p. 266. Ibid., p. 267. 60 ICJ Reports, 1992, para. 13. 59

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State Continuity, Succession and Responsibility 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, only Estonia has 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 diplomatic and legal work, the resources for which may not be available because the Baltic States are focusing most of their resources on entry into the EU. 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. 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 exSoviet institutions are to try to bring claims to the European Court of Human Rights or the UN Human Rights Committee. 61

Ibid., para. 32.

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Ineta Ziemele Related but a slightly different issue concerns the prosecution of those ex-Soviet officials who may be suspected in ordering or carrying out crimes against humanity and who live in Russia. At least, Latvian Criminal Code 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 colonising 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 minorities 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 62

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

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State Continuity, Succession and Responsibility admitted that the governments have not done enough to tackle them and that more clear statements on reparations claims need to be prepared.

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General Articles The Law of Use of Force at the Turn of the Millennia Rein Müllerson*

Contents 1. A Short Historical Excursion: From the Peloponnesian War to the Gulf Wars 2. The Charter Paradigm on the Use of Force 3. Terrorism and the Law on Use of Force 4. Specific Characteristics of Self-defence against Terrorist Attacks 5. Terrorist Organizations and States Supporting Them 6. Use of Force and Formalism versus Dynamism in International Law This article is being written as the United States, Great Britain and their allies are preparing to invade Iraq to ‘disarm’ Saddam Hussein and to carry out a ‘regime change’ – an unfinished business that, in this author’s opinion, should have been finished in 1991. Especially, since Security Council Resolution 678 of 29 November 1990 authorised States, in cooperation with Kuwait, to use all necessary means not only to uphold the previous Resolutions of the Council concerning Iraq but also ‘to restore international peace and security in the area’1(emphasis added). Saddam Hussein’s regime is a permanent threat to peace and security and its containment by sanctions has only hurt Iraqi people, not the regime. At the same time, in London, Glasgow, Berlin, Paris, and Rome and in a host of other cities, millions of people participate in anti-war marches, but they are not protesting against North Korea’s long-range missiles and pullout from the nuclear nonproliferation treaty and threats to South Korea, or Saddam Hussein continuing to present a threat to international peace and security. Millions in Western democracies are protesting against the policy of their democratically elected governments. Similar demonstrations against American and British imperialism were organised by the Iraqi regime in Baghdad. In a way, Western peaceniks involuntarily performed the role of *

Professor of International Law, King’s College, London; member of the Institut de droit international. 1 SC Res.678, 29 November 1990.

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Rein Müllerson what Vladimir Lenin in similar circumstances had called ‘useful idiots’ for the Iraqi regime. Lenin then, like Leonid Brezhnev in the 1970s and 1980s when the US was introducing medium range missiles in Western Europe or Saddam Hussein today, was utterly cynical. Most of those in Western democracies who demonstrate for peace are not only genuinely concerned what wars mean for peoples but they also have many valid questions to ask of their elected governments. One thing they lack, however, is the inside knowledge of the regimes that shamelessly exploit their genuine concerns. How to explain such contradictions and what can be done to resolve them are important political and even philosophical questions. However, for international lawyers today there is an urgent need of revisiting and reviewing some of the familiar notions of the law concerning use of force, since with terrorists and dictators like Saddam Hussein and Kim Chong-il of North Korea, force seems to the only language they understand. 1. A Short Historical Excursion: From the Peloponnesian War to the Gulf Wars Depending on what one expects from international law, legal regulation of use of force (jus ad bellum) is either at the very centre of international law, or there is very little law in it since these matters are determined by politics only (i.e. by power-politics). In my opinion, the nature, content and effectiveness of this branch of law mirror the very nature and limits of this legal system, much more clearly than any other domain of international law. To help to grasp the essence of current confusion and trends in this area of international law, it is advisable to have a short but comprehensive overview of how international law’s attitude towards use of military force evolved. Thucydides’ History of the Peloponnesian War demonstrates complete absence of any legal (or even legal-moral-religious) limits to recourse to war. As Thucydides writes, ‘the Athenians and the Peloponnesians began the war after the thirty-year truce’ since ‘Sparta was forced into it because of her 2 apprehensions over the growing power of Athens’. This sounds quite familiar and contemporary since there seems to have been a violation of the balance of power that caused one party, Sparta, to ally with smaller Greek city-states to form the Peloponnesian League, which aimed to counter militarily the Delian League headed by Athens. But differently from today’s world, or even from yesterday’s, Greek city-states did not feel any need to 2

Thucydides, The Peloponnesian War, W. W. Norton & Company, 1998, pp. 11−12.

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The Law of Use of Force at the Turn of the Millennia justify their recourse to arms. Athenians believed that ‘it is an eternal law that the strong can rule the weak’ because ‘justice never kept anyone who 3 was handed the chance to get something by force from getting more’. Their ambassadors explained to the Melians that ‘those who have power use it, while the weak make compromises . . . Given what we believe about the gods and know about men, we think that both are always forced to dominate everyone they can. We didn’t lay down this law, it was there – and we 4 weren’t first to make use of it’, and ‘each of us must exercise what power 5 he really thinks he can’. Starting from Saint Augustine, through Saint Thomas Aquinas and other Christian theologians, various concepts of just wars were developed. Founding fathers of international law such as Balthazar Ayala, Francisco Suarez, Franciscus de Vittoria, Alberico Gentili and Hugo Grotius, all had much to say about just and unjust wars. Wars had to be declared and waged by proper authorities, and they had to have just cause and just intention. Of course, what it was that amounted to just cause was open to debate and to widely differing interpretations. This was the period of the dominance of natural law doctrines in international relations, where legal arguments were based on, and were indistinguishable from, religious and moral reasoning. This period continued beyond the times of Grotius. Legal limits on use of force were drawn from the interpretation of religious texts or Roman private law, and not so much from what States or other political entities actually did. If international law governed (i.e. limited or justified) use of armed force at all, it was because its arguments were drawn from and supported by the interpretation of religious texts. Christianity was not the only religion that had something to say about use of force. Interpreters of the Old Testament and the Koran, similarly, tried to distinguish between just and unjust causes of resorting to arms. As Majid Khadduri writes in his 1966 Preface to Shaybani’s Siyar The Islamic Law of Nations (written at the end of the eighth century by Shaybani who served as a judge and an adviser to the Caliph Harun al-Rashid): ‘Islam was neither the first nor the last of the nations that sought to establish a world public order based on divine legislation and to enforce it by the “jihad”. The jihad is the

3

Ibid., p. 30. Ibid., p. 229. 5 Ibid., p. 227. 4

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Rein Müllerson Islamic bellum justum and may be regarded as the very basis of Islam’s 6 relationship with other nations.’ There are some striking similarities, though no doubt significant differences too, between the main monotheistic religions in that respect. For example, the Spanish Dominican professor, Franciscus de Vittoria, explained that, as the Indians in America, though not Christians, were nevertheless humans and as such endowed with reason, it was not possible to use force against them without just cause and ‘difference in religion is not a cause of 7 just war’. At the same time, ‘the Indians had violated the fundamental right of the Spaniards to travel freely among them, to carry on trade and to 8 propagate Christianity’. Consequently, force could not be used to proselytise, but it could be used when proselytees refused to be proselytised. In 1948 Sheikh Shaltut of Al-Azhar University in Cairo justified the Muslim conquests of Byzantine and Persia on the grounds of the Byzantine and Persian hostility to communications calling them to convert to Islam. He wrote that ‘Moslems only attacked people when they showed a spirit of 9 hostility, opposition and resistance against the mission and contempt for it’. As Ann Elisabeth Mayer comments, ‘here religious reasons, resistance to converting to Islam and contempt for Islamic missionaries, apparently justify recourse to military force – at least where the states attacked are perceived to 10 be a danger to Muslims or the spread of Islam’. Here too, only those who refused to adhere to the ‘true faith’ were killed and their lands conquered. After Emerich de Vattel, positivism gradually started to prevail in international law. The differentiation between just and unjust wars based on God’s laws or laws of nature (either the human nature or the nature of the State) lost its meaning. Although this was not a return to the naked power politics of Ancient Greece, it was only thinly veiled power politics. Any offence, either real or perceived, or even simply any pretext may have been 6

Majid Khadduri (ed.), The Islamic law of Nations of Shaybani’s Siyar, The John Hopkins Press, 1966, p. XI. 7 Y. Dinstein, War, Aggression and Self-Defence, 3rd ed., Cambridge University Press, 2001, pp. 61−62. 8 Ibid., p. 61. 9 Quoted by Ann Elisabeth Mayer in her ‘War and Peace in the Islamic Tradition and International Law’, in J. Kelsay and J. T. Johnson (eds.), Just War and Jihad. Historical and Theoretical Perspectives on War and peace in Western and Islamic Tradition, Greenwood Press, 1991, p. 204. 10 Ibid., p. 205.

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The Law of Use of Force at the Turn of the Millennia good enough to justify use of military force. In such a situation the Caroline 11 incident and the exchange of letters between the Secretary of State Daniel Webster and the British Minister to Washington were more an aberration than a pattern of widely accepted behaviour. The Caroline formula may have become a rather interesting explanation for some of today’s conflicts (see below), but in the middle of the 19th century, it was at best opinio juris of these two States and not confirmed by any, including their own, practice. Let us recall that in 1914 during the Vera Cruz incident the US used military force against Mexico when the offence consisted of refusal by the Mexican authorities to salute the US flag in a special ceremony. Apologies from Mexican authorities for the arrest of three members of the crew of the U.S.S. Dolphin, and their subsequent release, were not considered by Washington 12 as adequate remedy for the offence. Similarly, Great Britain and Germany used gunboats to force Venezuela to pay its debts to nationals of these 13 States. These are clearly not cases of ‘necessity of self-defence, instant, overwhelming, leaving no choice of means and no moment for deliberation’14. Starting from the beginning of the 20th century, in the domain of legal regulation of use of force, positivism as a State practice accepted as law (i.e. there were practically no limits to the use of military force), became diluted by positivism as normativism, i.e. law was not so much what States did to each other but what they had agreed upon that they should or should not do. Using customary law terminology, it was not so much State practice as their opinio juris that mattered. Here, the term opinio juris is of course being used in a wider sense that includes any authoritative statement by States on what international law is, including statements enshrined in international treaties. Whether a treaty that is formally in force but is not implemented in practice is law at all is another issue. However, treaties solemnly signed and ratified but not implemented in practice and opinio juris not confirmed by State practice are quite similar phenomena. This ‘normativist’ turn in international law had controversial consequences. On the one hand, this led to situations where we may have ‘good’ law but bad practice. One may rightfully say that there is always a 11

R. Jennings, ‘The Caroline and McLeod Cases’ (1938) 32 American Journal of International Law (AJIL), pp. 82−99. 12 I. Brownlie, International Law and the Use of Force by States, Clarendon Press, 1963, pp. 36−37. 13 Ibid., p. 35. 14 R.Y. Jennings, supra note 11., p. 89.

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Rein Müllerson gap between words and deeds but too big a difference between what States do and what they say undermines faith in legal obligations. On the other hand, words, as well as notions and ideas expressed in these words, if repeated long enough and desired by many, have a tendency to impact on reality. Although the gap may still be considerable, in today’s world the reality concerning use of force is significantly different from hundreds of years ago. The mentality of a few may change laws, while laws may change mentality of many, and even force those whose mentality has not changed to act within the law. Here the relationship between law and behaviour is a kind of chicken-and-egg question. It is impossible to say, for instance, whether European neighbours (e.g., Great Britain and Germany; France and Germany) who for ages had waged wars against each other do not do it any more because they eventually came to the conclusion that they needed effective norms and institutions that would help them have good-neighbourly relations instead of constantly being at each other’s throats, or whether they do not attack each other today because of these norms and institutions. Obviously, the change of mentality and the creation of norms and institutions went hand in hand. Europe is not the only place, though it is the most prominent one (having also been one of the bloodiest and having become the most peaceful), where such changes have taken place. The American continent has moved in the same direction. Starting from the beginning of the 20th century through such developments as the League of Nations Covenant, the Kellogg-Briand Pact of 1928, the UN Charter and other acts, the world has written norms that severely restrict use of military force in relations between States. On the one hand, this normative system has been violated so many times, and often with impunity, that it is hardly possible to call it an effective (even relatively effective) legal system. On the other hand, peoples’ desire to avoid the repetition of the two world wars that within one generation had brought untold sorrow to mankind, and especially to Europe, is reflected in this rather ineffective normative system. It certainly has become internalised in the mentality of many people and therefore also conditions their attitude towards use of force. The current UN Charter paradigm concerning use of force may be called a normative positivism since it is based on the consent (agreement) of States and not what they (or at least quite a lot of them) do in practice. It is normative since it is not premised on actual practice of States. It is positivist since, in contradistinction to various natural law approaches, it does make 196

The Law of Use of Force at the Turn of the Millennia any distinctions between just, unjust, more justified, less justified etc. causes of use of force. The Charter paradigm sees use of force between States as an absolute evil (after the two world wars such an approach was understandable) without distinguishing between causes of use of force. The Charter paradigm, at least as it was understood by the founding fathers of the UN, did not provide for any use of force at all, except against use of force (even the collective security paradigm in Chapter VII was meant to provide for possible preemptive use of force as a collective self-defence measure). In 1945 threats to international peace and security were not considered as being able to stem, for example, from humanitarian crises or even from civil wars.15 The Cold War period was conducive to the development of formal normative positivism since what was just for the West (e.g., the containment of the Soviet expansion) was most unjust from the point of you of the East, and what was just in the eyes of the Soviet leaders (e.g., the advancement of socialism all over the world) was the thing most feared by the West. Here the law had to be a product of what formal norms the two antagonistic groups, led by the US and the USSR respectively, were able to agree upon. Naturally, it was difficult, if not impossible to have an agreement on the basis of what would have justified use of force, except use of force against use of force. Now the situation has changed, though not entirely, of course. There are still, and there will remain in the foreseeable future, States with various interests. Religion may have replaced ideology, but is not religion one of the forms of ideology? One of the things that has changed in the domain of use of force is the turn towards morality or ethics and away from strict positivistic formalism. In some cases use of force that has not been sanctioned by the UN Security Council has been justified by references to morality that may have legitimised, if not made lawful, certain uses of force. Even the chief custodian of the UN Charter, Kofi Annan, speaking in Stockholm about Kosovo, said that ‘there is emerging international law that countries cannot hide behind sovereignty and abuse people without expecting the rest of the 15

Even in 1991 3 States (Cuba, Yemen and Zimbabwe) voted against and 2 States (China and India) abstained from voting for Security Council Resolution 688 of 5 April 1991 on the humanitarian crisis in Northern Iraq that constituted a threat to international peace and security. As Zimbabwe asserted, ‘a domestic political conflict lies at the core of the situation and, therefore, despite the humanitarian dimensions, it should not be before the Security Council’. See S. Murphy, Humanitarian Intervention, University of Pennsylvania Press, 1996, p. 171.

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world to do something about it’. Although it may be still a far cry from just war doctrines, neither is it any more a formal positivism on which the UN Charter was premised. The Security Council itself has expanded the concept of threats to international peace and security to legitimise uses of force that would not have been justified in the eyes of the drafters of the UN Charter. Just war considerations have led to this bending of the Charter paradigm. And the National Security Strategy of the United States (NSSUSA) promulgated by President George W. Bush 20 September 2002 speaks of pre-emptive actions to counter a sufficient threat to US national security: ‘the reasons for our actions will be clear, the force measured and the cause just’ (emphasis added).17 2. The Charter Paradigm on the Use of Force The question what is the current law on the use of force may be approached from different angles: (a) What does the text of the UN Charter say? (b) What did the drafters of the Charter mean in 1945? (c) What may be reasonable or plausible interpretations of the Charter principles and rules concerning use of force? (d) What do the current circumstances require? (e) What is the prevalent (if any) consensus on use of force today? Different authors have used all these approaches in their study of use of force. States have also relied, in various degrees and combinations, depending on concrete circumstances, on all of these possible interpretations of jus ad bellum. Today, however, we have a rather schizophrenic situation in jus ad bellum. The more one thinks of it, the less one seems to understand it. The more one tries to understand it, the less certain one becomes about what it requires. Therefore, it is wise in many cases to avoid definitive conclusions like ‘international law certainly allows this or that’, or vice versa, that ‘it certainly prohibits such and such acts’. Most conclusions of that nature are not only vulnerable to convincing criticism but they also cannot be verified beyond any reasonable doubt.

16 17

Financial Times, 26 May 1999. NSSUSA, p. 16.

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The Law of Use of Force at the Turn of the Millennia It would be equally wrong to say that there have been no changes whatsoever in the domain of use of force, or, on the contrary, to interpret too creatively certain tendencies in the rather confused international practice in order to conclude, for example, that there undoubtedly is a right to use force to save lives in foreign countries. Today, there are not so many areas in jus ad bellum where we may use the word ‘undoubtedly’. It is better speak of tendencies, legitimisation and more justifiable or less justifiable practices, and to avoid definitive terms such as lawful or illegal. For some, the UN Charter seems to have acquired certain characteristics of the Holy Books – either the Bible or the Koran. One cannot change it, one has to believe in it and even swear allegiance to it, but at the same time, one can hardly live by it. However, fundamentalism in the Charter may be almost as dangerous as Biblical or Koranic fundamentalisms. Literal and non-contextual interpretation of any text – be they religious or secular texts – is bound to lead to social impasse. If in the case of holy texts such interpretation sometimes guides towards, and justifies, violence, in the case of the UN Charter, it may, on the contrary, be one of the causes of the inability to adequately respond to violence. However, it is often said that the prohibition to use force [Article 2(4) of the Charter] is a jus cogens norm18 and therefore not only treaties, but also any contrary practice not only cannot deviate from it, but such practice, even if rather widespread, is not able to undermine or change such a norm. How can one put in doubt what the Charter says on the use of force in such a case? There may be many things said about jus cogens in support of this concept as well as by way of its criticism.19 However, here it is necessary to emphasise what Oscar Schachter has written about principles of international law. He distinguishes between the core and penumbra of applicability of such principles.20 While the core may be jus cogens, the penumbra need not necessarily be of such a character. If we take by way of comparison and illustration, for example, one of the basic human rights norms − the right to life − we see that the core of it – the prohibition of arbitrary deprivation of life and especially the prohibition of 18

See, for example, Yearbook of the International Law Commission, 1966, II, pp. 247−248. 19 See, for example, R. Müllerson, Ordering Anarchy, Kluwer Law International, 2000, pp. 156−161. 20 O. Schachter, International Law in Theory and Practice, Martinus Nijhoff Publishers, 1991, p. 20.

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Rein Müllerson genocide (e.g., Article 6 of the International Covenant on Civil and Political Rights) – is undoubtedly jus cogens in the sense that no deviation from it is permitted under any circumstances, and existing deviations that unfortunately exist do not undermine these prohibitions since there is strong and general opinio juris supporting this core of the norm. However, when we take, for instance, the issue of death penalty, we are less certain. There are contradictory practices as well as contradictory opinions (including opinio juris) on this matter. Sensitive areas such as abortion and euthanasia – all hotly debated right to life issues − make the problem of the jus cogens character of the right to life (its absolute and non-derogable character) as a whole even more uncertain and complicated. A similar situation exists in the legal regulation of use of force. Of course, there are areas of jus ad bellum where legal rules are rather certain. The Charter and customary international law prohibition to use force, for example, for territorial aggrandizement or political subjugation of other States (as well as the right to use force in self-defence) remain valid and relatively non-controversial issues. The Iraqi aggression against Kuwait and the world community’s responses to it have confirmed, reiterated and reinforced these aspects of the prohibition to use force. As Anne-Marie Slaughter and William Burke-White, referring to the numerous resolutions of the General Assembly and the Security Council, write, ‘when interstate aggression happens, the vast majority of the world’s nations routinely and automatically condemn it as illegal’.21 However, when we consider issues such as the use of force for humanitarian purposes we find differing practices and conflicting views. Therefore, I am in partial agreement with Michael Glennon that ‘there is, today, no coherent international law concerning intervention by States. States disagree profoundly on fundamental issues – issues on which consensus is necessary for a treaty or customary rule to work’.22 However, I disagree with him that there is no consensus at all in the domain of jus ad bellum, and it is difficult to accept his negative evaluation of the role the UN Security Council in the changes that are taking place in jus ad bellum. Glennon writes:

21

A. Slaughter and W. Burke-White, ‘An International Constitutional Moment’ (2002) 48 Harvard International Law Journal 1, p. 1. 22 M.J. Glennon, Limits of Law, Prerogatives of Power. Interventionism after Kosovo, Palgrave, 2001, p. 2.

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The Law of Use of Force at the Turn of the Millennia ‘By intervening in the internal affairs of states, the Security Council itself contributed to the erosion of the Charter’s constraints on use of force, beginning with Southern Rhodesia and continuing with legally questionable interventions in South Africa, Iraq, Somalia, Rwanda, and Haiti. Governments that have come to justify humanitarian intervention by states acting in the face of Security Council paralysis rely on the Council’s own record.’23

Glennon believes that ‘there can be little doubt that the Security Council has acted in a manner inconsistent with the limits placed on its authority by Article 39 and Article 2(7) of the Charter’.24 In support of this thesis he quotes Sean Murphy who wrote: ‘By considering essentially internal human rights violations and deprivations to be “threats to the peace”, the Security Council is expanding the scope of its authority beyond that originally envisioned in Chapter VII of the Charter’.25 However, these are two rather different statements. Murphy’s understanding rather corresponds to Oscar Schachter explanation that ‘no text adopted by governments can or should foreclose choices imposed by changing conditions and by new perceptions of ends and means. The Charter is, as often stated, a living instrument. It is, like every constitutional instrument, continuously interpreted, moulded and adapted to meet the interests of the parties’.26 Had not the Security Council reacted to changing circumstances, had it stuck to the interpretation of the Charter held by its drafters in 1945, the Council would have remained completely inadequate. Moreover, as the Permanent Court of International Justice observed already in 1923, ‘the question whether a certain matter is or is not solely within the jurisdiction of a State is an essentially relative question; it depends upon the development of international relations’.27 In my opinion, the Council has not even come close to intervening in internal affairs of any State. Even if one were to think, as I do, that in some cases when the Council, using its wide discretionary powers, has found threats to international peace and security where no such threats existed in practice (e.g., in Haiti), the manner that the

23

Ibid., p. 114. Ibid., p. 120. 25 S. Murphy, Humanitarian Intervention: The United Nations in the Evolving World, 1996, p. 1996. 26 O. Schachter, International Law in Theory and Practice, Martinus Nijhoff Publishers, 1991, pp. 118−119. 27 P.C.I.J., Rep., Series B, No.4, (1923), p. 24. 24

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Rein Müllerson governments behaved towards their peoples was not the internal affairs of these States. I believe Michael Schmitt is right emphasising that ‘Professor Glennon’s thoughtful analysis exaggerates the de jurede facto divide. In fact, what has been happening over the past half-century is a regular evolution in the global community’s understanding of the use of force regime. This evolution has been, as it always is and always must be, responsive to the changing circumstances in which international law operates. Practice does not contradict law so much as it informs law as to global community’s normative expectations’.28

Although the end of the Cold War and the accelerating pace of events that are all relevant for jus ad bellum have required more changes in the law29 than the previous fifty years, neither the existing Charter interpretation nor a completely new set of rules is either possible or even desirable. International lawyers, be they in the service of their governments or academics, have to avoid extreme choices between, using the words of Ronald Dworkin, ‘the dead but legitimate hand of the past and the distinctly illicit charm of progress’30 (though Dworkin writes that judges have to choose between these extremes, his whole book seems to indicate that the proper choice has to be somewhere in between and not always the legitimate hand of the past is dead and not always the charm of progress is illicit). Past decisions have to be interpreted and reinterpreted in the light of current needs and tendencies. In today’s world, international law and various international institutions perform the legitimising functions. Although power moulds international law and institutions (sometimes even through violation of international law), the latter, while limiting and directing power, endow it with greater legitimacy. It seems that the struggle and horse-trading within (and beyond too) the UN Security Council over Resolution 1441 may serve as a good example of how power and legitimacy interact. The US was threatening to use unilateral 28

M. Schmitt, ‘Counter-Terrorism and the Use of Force in International Law’, a paper presented at the Conference at the Naval War College (RI), 26−28 June 2002 (not yet published but Professor Schmitt’s kind permission for references is obtained). 29 A. Slaughter and W. Burke-White even write that ‘to respond adequately and effectively to the threats and challenges that are emerging in this new paradigm, we need new rules. Just as in 1945, the nations of the world today face an international constitutional moment’. See Slaughter, Burke-White, supra note 21, p. 2. 30 R. Dworkin, Law’s Empire, Oxford, 1998, p. 348.

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The Law of Use of Force at the Turn of the Millennia (together with some allies) force to enforce previous UN Security Council Resolutions if the Council would not take effective measures to disarm Iraq. Here threats to ignore international law may have served, ironically, the purpose of enforcing international law. Power pushes the limits of legitimacy, but power also secures implementation of international law. At the same time, the search for legitimacy also limits power since in this case the US had to negotiate conditions of use of force against Iraq and at the end of the day a military action could have been avoided altogether. The fact that it is necessary for the enforcement of the most important norms of international law and Chapter VII resolutions of the Security Council to threaten to violate international law or to by-pass the Council shows that there is something seriously wrong not only with US unilateral tendencies but with both international law and institutions too. One of the problems with international law is that especially in the domain of peace and security it is still, using the terminology of Wolfgang Freedman,31 very much the law of co-existence rather than the law of cooperation. It contains prohibitions – not to use force and not to interfere in internal affairs – without mapping roads for solving problems. This defect of international law has become especially noticeable today when most threats to peace and security stem from ‘non-traditional’ (in terms of the Cold War) sources such as terrorism, inter-ethnic and inter-religious conflicts. So, Gareth Evans and Mohamed Sahnoun are not wrong observing that ‘there were no agreed rules for handling cases such as Somalia, Bosnia, Rwanda, and Kosovo at the start of the 1990s, and there remain none today’.32 Though the Security Council may, in principle, decide or authorise use of even military force, and it has done so on several occasions, the Council has not always risen to the challenge. It is doubtful, for example, whether Resolution 1441 (2002) would have been adopted at all had not Washington energised the Council (especially two of its permanent members – China and Russia) by threatening to by-pass the Council. 3. Terrorism and the Law on Use of Force Since terrorism is basically about means and methods and not about purposes of use of force,33 why is jus ad bellum an issue at all? Should not it 31

W. Freedmann, The Changing Structure of International Law, 1964. G. Evans, M. Sahnoun, ‘The Responsibility to Protect’ (2002) 81 Foreign Affairs, No. 6, p. 99. 33 Granville Byford draws our attention to the fact that many historical figures admired today (at least, but not exclusively, by their own people) have committed 32

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Rein Müllerson be, as some writers34 argue, an issue of criminal justice, or if it has anything to do with the legal regulation of use of force at all, then a jus in bello topic only? However, something cannot be a jus in bello issue without first coming under jus ad bellum and terrorism belongs to the domain of jus ad bellum because terrorist attacks may constitute a specific, non-traditional (i.e. what the drafters of the UN Charter did not have in mind in 1945) form acts that now would be defined as terrorism or crimes against humanity. Byford refers to Henry V who killed his prisoners before the Battle of Agincourt but was still lionised by Shakespeare (G. Byford, ‘The Wrong War’, (2002) 81 Foreign Affairs, No. 6, p. 36). Also, Tamerlane enjoyed building huge pyramids from human skulls but today on his monument in the centre of Uzbek capital Tashkent the following words are ascribed to him: ‘Power is in Justice’. Even in the second half of the twentieth century (the UN Charter period) several future Israeli leaders used terror tactics in their fight for Israeli statehood and even the accusations of terrorism against Nelson Mandela’s ANC were not at all groundless. The IRA has had sympathisers in various US governments and the list can be continued. Byford therefore proposes, in order to untangle the knot, ‘to think of a graph with the morality of means running along one axis and the morality of the ends running along the other’ (Ibid., p. 38). He correctly observes that even in today’s world in certain conditions noble aims cannot be achieved without the recourse to violence. However, what was acceptable or even heroic in the past may well be criminal today, and secondly, if violence (even considerable) may be necessary and acceptable for the achievement of even noble aims, this does not mean that terrorism is acceptable too. No graph that would justify terrorist violence depending on the high morality of pursued aims should be acceptable. We have had enough of this logic already in statements such as: one man’s terrorist is another man’s freedom fighter. 34 Abdullahi Ahmed An-Na’im, for example, writes that ‘the answer is simply that the attacks were international crimes of the utmost seriousness that must be vigorously investigated in order to hold those responsible accountable under the law. … If there is the political will to treat the attacks as a matter for law enforcement, not military retaliation, I believe there are enough normative and institutional resources to begin the process of criminal accountability under international law’. See A.A. An-Na’im, ‘Upholding International Legality against Jihad’, in Worlds in Collision, (K. Booth, T. Dunne eds.) Palgrave, 2002, p. 169. It is interesting that though An-Na’im writes that in the case of the 9−11 attacks, to pursue an extradition matter would have been unrealistic, he nevertheless accuses the US of not pursuing this course (Ibid). This is like asking the current Iraqi regime to extradite Saddam Hussein. Such a joke does not correspond to the seriousness of the matter. Moreover, in the case of crimes of that magnitude, as history since the Nuremberg trials have shown, military and criminal justice measures are almost necessarily interlinked.

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The Law of Use of Force at the Turn of the Millennia of an armed attack that gives rise to the right of self-defence and/or collective security measures involving use of force under Chapter VII of the UN Charter. Of course, if a terrorist attack is covered by jus ad bellum, i.e. if it constitutes an armed attack or a threat to international peace and security against which Chapter VII collective security measures involving use of force are applied, it is automatically also contrary to jus in bello. Such a conclusion follows from the very definition of terrorism as a crime.35 It is possible to say that if not every terrorist attack is contrary to jus ad bellum (either because it does not have any foreign element or because of relatively insignificant nature of the attack), every terrorist attack that comes under jus ad bellum violates, by definition, also jus in bello. For terrorists, attacks against civilians and civilian objects are not collateral to the recourse to military force but one of the necessary elements of it. Jason Vest writes that a defining characteristic of fourth-generation warfare is ‘the emphasis on bypassing an opposing military force and striking directly at cultural, political, or population targets’.36 This is what terrorists do and this kind of tactic is, ab initio, contrary to jus in bello and, as we will discuss further, this specific feature of terrorist attacks necessarily changes some modalities of defensive responses. Of course, a direct armed attack by armed forces of State A against State B may be also committed as a terrorist attack if the attack is carried out in flagrant violation of jus in bello requirements and if at least one of the purposes of the use of such modalities of attack is spreading terror among the population of the victim State or forcing the government to change its policies or surrender. Caleb Carr, in his book The Lessons of Terror,37 has well illustrated that terror tactics were historically used as a supposedly effective method of waging wars (however, Carr convincingly argues that even in the past, though such tactic may have given some short-term tactical advantages, it has always been counterproductive in the long run). 35

Of course, one may ask whether those who commit acts of terror in armed conflicts are terrorists or war criminals. They are both, of course. In time of war, acts of terror (e.g., deliberately attacking civilians, killing prisoners of war, using indiscriminate force etc.) are either grave breaches under the Geneva Conventions or other acts defined as war crimes. 36 J. Vest, ‘Fourth-Generation Warfare’ (2001) 288 The Atlantic Monthly, December, No. 5, pp. 2−3. 37 C. Carr, Lessons of Terror. A History of Warfare against Civilians − Why it has always failed, and why it will fail again, Little, Brown, 2002.

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Rein Müllerson The necessity of self-defence against terrorist attacks has several aspects that will be developed later in the article. First, though terrorism may have different causes and there are circumstances that are more favourable (or vice versa less favourable) for its emergence and flourishing, and that have to be taken care of, leaving terrorist attacks without tough responses and addressing only so-called underlying causes (and who knows what they are and how long it will take to change them?), would, like any impunity, only encourage new attacks. Therefore, use of force either as a law-enforcement measure or as a military response, though not the only and often not even the most important means of dealing with terrorism, is necessary as a special and general deterrent (further we will discuss how the use of force that may have a considerable deterrent rationale fits with the prohibition of armed reprisals). Secondly, military responses to terrorist attacks may combine, as circumstances precluding wrongfulness, the elements of self-defence and that of necessity. Moreover, there is hardly a high barrier between selfdefence and necessity in that respect. Does not the classical, though maybe somewhat controversial, Caroline case speak of ‘a necessity of selfdefence’? It is interesting to note that though the Caroline case is often used in practice and especially in teaching of international law as a self-defence precedent (it is sometimes also used to prove the existence of a right to and limits of so-called anticipatory self-defence) for clarifying issues such as necessity, immediacy and proportionality, the International Law Commission (ILC) has dealt with the case under the heading of necessity.38 The 1980 Report of the ILC, for example, observes that ‘in the past, there has been no lack of actual cases in which necessity was invoked precisely to preclude the wrongfulness of an armed incursion into foreign territory for the purpose of carrying out one or another of the operations referred above. To cite only one example of the many involving situations of this kind, there was the celebrated “Caroline” case…’.39

In today’s world and under contemporary international law that are not as state-centric as the world and law were in the first half of the 19th century, when the Caroline incident was unfolding, the right to self-defence may 38

See, for example, paragraph 5 of the ILC Commentaries to Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted by the ILC in August 2001. 39 Yearbook of the ILC, 1980, Vol. II, Part 2, p. 44.

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The Law of Use of Force at the Turn of the Millennia cover measures undertaken against non-state entities40 (more about that further in this article). Therefore, we may have a situation when self-defence measures against terrorist attacks may be carried out, by necessity and under certain circumstances, in the territory of a third State even without its consent. Hence, we use the concept of self-defence characterising the use of force vis-à-vis a terrorist organisation, while using the concept of necessity characterising the use of such force in the territory of another State. Necessity, differently from the inherent right to self-defence, is not a right (though both are considered as circumstances precluding wrongfulness), but as a justification used in exceptional circumstances, or as the ILC comments, ‘under certain very limited conditions’.41 If a State from which terrorists operate is unable to put an end to their activities, but the State itself is not supporting or condoning such activities, military responses of other States against terrorists in the territory of that without its consent may be justified as a State of necessity. This is what Roberto Ago’s comment to the draft article in the ILC Report called ‘the existence of conduct which, although infringing the territorial sovereignty of a State, need not necessarily be considered as an act of aggression, or not, in any case, as a breach of an international obligation of jus cogens’.42 In such a case we have a self-defence operation against the terrorist organisation that is by necessity carried out in the territory of a third State; preferably, of course, with the latter’s consent. However, if the territorial State, which has itself been unable to prevent terrorists attacking other States or their nationals and interests, resists the victim-State (or its allies), it itself becomes an accomplice to the terrorist organisation. The Entebbe raid in 1976 may illustrate the point. By attacking the Israeli commandos that were in the process of doing what the Ugandan authorities themselves had failed to do, Ugandan forces became a legitimate target of Israeli counter-measures. Once again, of course, requirements of necessity and proportionality play an important role in determining the character of self-defence measures. Indeed, the character of terrorist attacks that are often of uncertain origin and 40

By the way, in the Caroline incident, the British in 1837 crossed the Niagara River and destroyed the steamship Caroline that was used by private persons who helped rebels fighting the British. It was not attacked by the US or by irregulars who would have acted on behalf of the US. Therefore, so far as the Americans and British talked about self-defence it could have been about defence against non-state entities in the territory of another State. 41 Paragraph 14 of the ILC Commentaries to the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in August 2001. 42 Yearbook of the ILC, 1973, vol. II, p. 249.

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Rein Müllerson magnitude puts even higher emphasis on the need to observe the principles of necessity and proportionality in the use of military force in response to such attacks. They are especially important in helping to avoid escalation of terrorist related conflicts. This article concentrates on one of the two jus ad bellum paradigms of military responses to terrorist acts − the self-defence paradigm – more or less leaving aside the collective security paradigm, i.e. measures that may be taken or authorised by the Security Council under Chapter VII. These paradigms are not exclusive and ideally responses to terrorist attacks should involve use of force not only in the light of the self-defence paradigm but also in the light of the collective security paradigm. An armed attack, be it in the form of a terrorist attack or not, is an erga omnes violation of international law and the victim State is not the only injured State.43 A terrorist act (or usually acts) that is tantamount to an armed attack concerns the whole international community and therefore any such attack should ideally trigger the UN collective security mechanism in parallel with the right of the victim State to use force, either alone or together with its allies, in self-defence. Moreover, Resolution 1373 of the Security Council of 28 September 2001, dealing under Chapter VII mainly with terrorist assets and prohibiting any forms of support for terrorists, also decided that all States shall ‘take the necessary steps to prevent the commission of terrorist acts, including …’. Although the phrase is different from and falls short of one authorising the ‘use of all necessary means’, its interpretation in concrete circumstances may lead to similar conclusions. It is interesting to note that the Security Council, taking measures necessary to maintain international peace and security, at the same time recognised (Resolution 1368) and reaffirmed (Resolution 1373) the inherent right to individual and collective self-defence.44 This means that though the 43

Article 48(1)(b) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted in August 2001. 44 Myjer and White point to the fact that references to the right to self-defence were only in the Preambles of the Security Council Resolutions 1368 and 1373 and therefore, in their opinion, the Council did not unequivocally determine that there had been an armed attack against the US on 11 September 2001. They believe that ‘at an early stage therefore the Security Council should have made it clear without a shadow of doubt whether it was of the opinion that there solely is an Article 39 situation, or a Chapter VII self-defence situation (Myjer, White, ‘The Twin Towers Attack: An Unlimited Right to Self-Defence?’, 2002 Journal of Conflict and Security Law, vol. 7, p. 10). However, on 12 September 2001, when the Council

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The Law of Use of Force at the Turn of the Millennia Council was acting within the collective security paradigm, it did not consider that these measures in any way interfered with or superseded the right to use force in individual or collective self-defence. In the current fight against terrorism the use of military force in selfdefence in Afghanistan by the US, British, Canadians and other allies is combined with collective security measures including the International Security Assistance Force (ISAF)45 in the territory of Afghanistan (at the moment only in Kabul). The Security Council has decided to use other Chapter VII means such as financial measures against Al-Qa’ida, other terrorist organisations and individuals linked to them. As Chapter VII nonmilitary measures are beyond the scope of this article, I will not dwell upon them. However, it is necessary to emphasise once again that only a combination of various means and methods of fighting terrorism can lead to desired results. 4. Specific Characteristics of Self-defence against Terrorist Attacks Terrorist attacks have some characteristics which traditional armed attacks, as a rule, do not have: (i) attacks are usually carried out not by State’s armed forces but by non-state groups which may or may not have links with some States (except that terrorist groups have to operate on the territory of at least some States and this is one of the essential differences between piracy and terrorism, though in some respect they may be comparable); (ii) the identity of the attackers, their affiliation with other entities (including States) is usually not clear; (iii) means and methods used by terrorists are, by definition, contrary to international humanitarian law since they intentionally target non-combatants and attack prohibited objects. These particular features of terrorist attacks condition the character of responses to them. First, what is the status of terrorist organisations in international law? Does Article 51 apply to attacks carried out by non-state entities? Michael Byers writes that ‘it will probably be argued that the atrocities of 11 passed Resolution 1368, it may not yet have been clear who was behind these attacks (e.g., had they been committed by a US terrorist group, then such an attack would not have given any right to self-defence under international law notwithstanding the magnitude of the attack). Therefore, because of the shadow of doubt the Council could not use very specific language. I also believe that a reference to the right to self-defence in the preamble of a resolution wholly devoted to a terrorist attack is a sufficient indication that the Council believed that there was at least a prima facie self-defence situation. 45 Resolution 1386 (2001), 20 December 2001.

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Rein Müllerson September did not constitute an armed attack since they did not involve the use of force by a State, and that the relevant framework of analysis is instead international criminal law’.46 Eric Myjer and Nigel White write that ‘the categorization of the terrorist attacks on New York and Washington as an “armed attack” within the meaning of article 51 is problematic to say the least. … Self-defence, traditionally speaking, applies to an armed response to an attack by a State’.47 Pierre-Marie Dupuy writes that ‘the shock of 11 September should cause a re-examination of norms conceived solely on the basis of relations between States’.48 However, such a re-examination has already been going on for some time and international law is no longer as State-centric as it was, for example, in 1945 when the UN Charter was adopted. Not only are individuals held criminally responsible directly under international law for genocide, war crimes and crimes against humanity, for example, the Security Council has imposed sanctions against non-state entities such as the Ian Smith regime in Southern Rhodesia, UNITA in Angola and Bosnian Serbs.49 There is little doubt that after World War II the drafters of Article 51 had in mind armed attacks by States only, though the Article itself does not explicitly say so. However, it is not only the absence of any direct reference to an armed attack by a State only in Article 51, but even more the need to interpret the Charter in the context of current realities that indicates that the right of self-defence may arise also in the case of attacks by non-state entities.50 As Yoram Dinstein writes: ‘… it should be pointed out that, for an armed attack to justify countermeasures of self-defence under Article 51, it need not be committed by another state. Ordinarily, the perpetrator of the 46

M. Byers, ‘Terrorism, the Use of Force and International Law after 11 September’ (2002) 51 International and Comparative Law Quarterly, Part 2, p. 411. 47 Myjer, White, supra note 44 p. 7. 48 P.M. Dupuy, ‘The Law After the Destruction of the Towers’ (2002) The European Journal of International Law, Discussion Forum: The Attack on the World Trade Centre: Legal Responses, http://www.ejil.org/forum_WTC . 49 For example, Resolution 924 of the UN Security Council imposed sanctions against Bosnian Serbs, while Resolution 864 found that ‘as a result of UNITA’s military actions, the situation in Angola constitutes a threat to international peace and security’. An arms embargo was imposed against UNITA −a non-state entity. 50 See, for example, R. Wedgwood’s article which was written and published before the September 11th attacks, ‘Responding to Terrorism: The Strikes against bin Laden’ (1999) 24 Yale Journal of International Law, p. 559.

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The Law of Use of Force at the Turn of the Millennia armed attack is indeed a foreign state as such. Yet, in exceptional circumstances, an armed attack – although mounted from the territory of a foreign state – is not launched by that state.’51

Referring to the case when the Security Council had employed the term ‘armed attacks’ characterising raids by mercenaries from the territory of Angola and condemning Portugal for not preventing these raids, Dinstein emphasises that ‘armed attacks by non-state actors are still armed attacks, even if commenced only from – and not by – another State’.52 Giorgio Gaja, analysing the September 11th attacks against the US in the light of references to the right to self-defence in Security Council resolutions and the NATO decision activating Article 5 of the Washington Treaty, cautiously opines that ‘depending on the factual circumstances, the definition of the terrorist acts of September 11th as “armed attack” may not necessarily imply that the concept actually refers to acts that are not attributable to a state’.53 However, the US demands addressed to the Taliban (which itself was a non-recognised authority that various Security Council Resolutions had called ‘the Afghan faction known as the Taliban, which also calls itself the Islamic Emirate of Afghanistan’54) to surrender Osama bin Laden and other Al-Qa’ida terrorists seem to indicate that the US, at least initially, did not consider that Afghanistan (or even the Taliban for that matter) was directly responsible for the attacks.55 Only the refusal of the Taliban regime to comply with the US demands and their active defence of

51

Y. Dinstein, War, supra note 6, p. 192. Ibid., p. 214. 53 G. Gaja, ‘In What Sense was There an “Armed Attack”?’, The European Journal of International Law web site: Discussion Forum. The Attack on the World Trade Centre: Legal Responses, visited 16 July 2002. 54 See, for example, Security Council Resolution 1267 (1999), para.1. 55 The United States insisted that the Taliban: ‘Deliver to United States authorities all the leaders of Al-Qa’ida who hide in your land. Release all foreign diplomats, including American citizens, you have unjustly imprisoned. Protect foreign journalists, diplomats, and aid workers in your country. Close immediately and permanently every terrorist training camp in Afghanistan, and hand over every terrorist and every person in their support structure to appropriate authorities. Give the United States full access to terrorist training camps, so we can make sure they are no longer operating’. See Address Before a Joint session of the Congress on the United States Response to the Terrorist Attacks of September 11, 37 Weekly Compilation of Presidential Documents, 1347 (Sept. 20, 2001). 52

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Rein Müllerson Al-Qa’ida network led to the use of force in self-defence against both AlQa’ida and the Taliban. The current war against terrorism, of course, differs from previous wars in the sense that though there was a clear victim of the attack – the United States (or rather several victims because, e.g., hundreds of British and other nationals were attacked too), there was no prima facie perpetrator. This is one of the peculiarities of 21st century wars, which, however, is not without precedent. Acts of so-called indirect aggression56 do not always have an obvious author since it may be difficult to attribute acts of paramilitary or irregular forces to a specific State. However, indirect aggression, as enshrined in the 1974 Definition of Aggression, presumes the existence of an aggressor State, which instead of using its regular armed forces perpetrates acts of aggression through irregular armed bands, guerrilla forces, etc. In such a case, irregulars are agents of an aggressor State. Contemporary terrorism is even more complicated. Acts of indirect aggression are usually, though not necessarily always, carried out against neighbouring States and notwithstanding that there may be difficulties in attributing acts of irregulars to the State from the territory of which these attacks are launched, the identity of the State (what may be questioned is whether that State is an aggressor or not) is not, as a rule, in question. September 11th type attacks may not even have such a prima facie culprit State, or even a non-state entity for that matter. However, this does not mean that there is no aggressor, but only victims of aggression. Such a conclusion would not only be contrary to common sense, but it is hardly even required by contemporary international law. In a sense, military responses to terrorist attacks do not raise legal, philosophical, moral or even political issues as complicated as, for example, humanitarian intervention does. First of all, notwithstanding its specific and even non-traditional features, terrorist attacks originating from abroad can still be qualified as armed attacks giving rise to the inherent right to selfdefence. Together with military operations to rescue one’s nationals abroad such ‘into-terrorist operations’ may be qualified as special (non-traditional) self-defence operations. Secondly, military responses to terrorist attacks are today politically less controversial than, for example, the use of force to 56

See, Article 3(a) of the Definition of Aggression of 1974 which states that ‘the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another State of such gravity as to amount to the acts listed above, or its substantial involvement therein’, is an act of aggression.

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The Law of Use of Force at the Turn of the Millennia protect human rights in foreign countries. Although some States still refuse to condemn specific terrorist attacks and even try to find justifications for some of them (e.g., most Arab States still refuse to condemn, without any qualification, Palestinian terrorism), the traditional support for the idea that a just cause (e.g., national-liberation struggle) justifies the use of terrorist methods is becoming weaker.57 If the right to use of force in self-defence is dependent on the existence of an armed attack (or arguably in the case of so-called anticipatory or interceptive self-defence in anticipation of such an attack), the modalities of the exercise of this right depend on the characteristics of the armed attack.58 Therefore, we have to consider what are the specific and distinctive features of terrorist attacks that would condition specific methods and means of defensive responses. In the case of responses to terrorist attacks, the question of immediacy may have to be addressed differently. As the source of attacks may not be immediately obvious and preparations for responses that often have to be secret may take time (gathering intelligence data, building coalitions etc.), the period between the attack and responsive measures may be rather substantial. In that respect, the situation may be compared to one that existed, for example, after the Iraqi invasion of Kuwait. Although for almost half a year there were no active military operations going on after the Iraqis had occupied Kuwait, Kuwait and its allies’ right to use force in self-defence was not extinguished (maybe only suspended for a while due to the active involvement of the Security Council). The Gulf War did not start on 15 January 1991 when the Coalition launched Operation Desert Storm; it started on 1 August when the Iraqi troops attacked and occupied Kuwait. Similarly, 57

In 1978 the statement by Ambassador Harriman of Nigeria, who was Chairman of the Ad Hoc Committee on the Drafting of an International Convention Against the Taking of Hostages, disputed the use of the word ‘terrorist’ in describing Palestinian struggle against Israel: ‘Here I wish to reiterate that my Government does not believe that any liberation movement should damage its prestige by taking hostages, and that the noble fights for liberation should be based on very high values. I believe that the PLO at no stage in its war for liberation has abused privilege; at no stage has it terrorised; it is at war’. See, W.V. O’Brien, ‘Reprisals, Deterrence and SelfDefence in Counterterror Operations’ (1990) 30 Virginia Journal of International Law, p. 449. If at that time, the Soviet Union, a permanent member of the Security Council, wholeheartedly subscribed to this statement, today Russia, which is facing separatist terrorism in Chechnya, as well as Central Asian successor States to the Soviet Union, adamantly reject such assessments of ‘liberation’ movements. 58 Y. Dinstein, supra note 6, pp. 192−221.

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Rein Müllerson the war against terrorist attacks started on 11 September 2001 at 8:45 a.m., the moment the first aircraft hit the World Trade Centre, if not earlier had the US been able to use its right to anticipatory or interceptive self-defence. The question of immediacy is also closely related to two other issues: use of force in anticipation of an attack and defensive reprisals. Often military responses to terrorist attacks have to draw a fine balance between two controversial modalities of use of military force in self-defence – the Scylla of anticipatory self-defence and the Charybdis of reprisals. As Gregory Travalio writes, ‘if the anticipated action by terrorists is not sufficiently imminent, the right to use force is not available for purposes of deterrence. On the other hand, if past terrorist actions by a group are too remote in time, the response by force is likely to be characterised as an illegal reprisal’.59 Because terrorist warfare usually consists of series of relatively small-scale attacks that often need to be prevented by measures that combine some elements of retaliation (since a response comes after the attack) and anticipation (since a response comes in anticipation of a new attack), the exercise of the right to self-defence against terrorist attacks requires at least some (sometimes quite considerable) practical use of concepts of anticipatory self-defence and defensive reprisals. The need to use preventive force against terrorists becomes even more obvious when we take into consideration the fact that terrorists typically do not attack military targets that are usually well defended and that, at least in principle, should be defensively prepared when attacked. Anne-Marie Slaughter and William Burke-White observe that ‘in our previous understanding of war, it was possible to attack the vital life within a nation by first destroying the army that protected it’.60 Today, terrorists avoiding military objectives intentionally target defenceless civilians and civilian objects, i.e. non-combatants; they choose soft targets that would be almost inevitably destroyed if attacks were not prevented. Therefore, in many cases preventive, anticipatory or interceptive self-defence is the only effective method of preventing terrorists from achieving their goals. Earlier I expressed agreement with Yoram Dinstein that it is better to speak not of pre-emptive or anticipatory self-defence but only of interceptive self-defence ‘when the other side has committed itself to an armed attack in an ostensibly irrevocable way’.61 Interceptive self-defence seems to indicate 59

G.M. Travalio, ‘Terrorism, International Law, and the Use of Military Force’ (1999) 18 Wisconsin International Law Journal 1, p. 165. 60 A. Slaughter, Burke-White, supra note 21, p. 3. 61 Dinstein, supra note 7, p. 172.

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The Law of Use of Force at the Turn of the Millennia that only when an attack is already launched is it legitimate to intercept (e.g., intercepting missiles on their boost trajectories but not destroying them in their launching silos). In the case of traditional inter-state conflicts this is probably a prudent interpretation of the right to self-defence. However, today and in the context of self-defence against terrorist attacks (especially if the latter have access to WMD), I believe, preventive or anticipatory measures are justified. As terrorism is usually a continuous process being carried out in the murky underworld, it would be too late or risky to rely only on the interception of individual attacks that have already been irrevocably launched without attempting to destroy terrorist bases, supply lines, training camps and other similar facilities. The necessity to use military force in self-defence against terrorist attacks shows that the dividing line drawn, for example, by the International Court of Justice in the Nicaragua case between armed attacks and ‘less 63 grave forms’ of use of force,62 is not any more, if it ever was, tenable. Dinstein, referring to J.L. Hargrove and J.I. Kunz, has rightly emphasised that ‘in reality, there is no cause to remove small-scale armed attacks from the spectrum of armed attacks. “Article 51 in no way limits itself to large, direct or important armed attacks”’.64 The same criticism also applies to Article 3(g) of the Definition of Aggression, which emphasises that actions by armed bands, groups, irregulars or mercenaries’ sent by or on behalf of a State, which carry out acts of armed force against another State ‘of such gravity as to amount to an actual armed attack conducted by regular forces’ 65 could be considered as acts of aggression. Why only attacks of such gravity? Why this difference? It is the requirement of proportionality between a legitimate purpose of use of force and the character and scale of force necessary to achieve that purpose that has to take care that relatively minor incidents involving use of military force do not escalate (sometimes unintentionally) into whole-scale wars. Antonio Cassese has recently observed that:

62

Military and Paramilitary Activities (Nicaragua v. U.S.), ICJ Report 1986, para. 191. 63 Judge Rosalyn Higgins (Problem and Process: International Law and How We Use It, Clarendon Press, 1994, pp. 250−251), Professor Yoram Dinstein (War, Aggression and Self-Defence, 2nd ed., p. 192) and many other authors have criticised this distinction drawn by the ICJ between armed attacks and ‘mere border incidents’. 64 Dinstein, War, Aggression and Self-Defence, 2nd ed., p. 192. 65 U.N. Doc., A/9631 (1974).

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Rein Müllerson ‘As to the specific question of how to react to terrorist attacks, some States (notably Israel, the United States and South Africa) argued in the past that they could use force in self-defence to respond to such attacks by targeting terrorist basis in the host country. This recourse to self-defence was predicated on the principle that such countries, by harbouring terrorist organisations, someway promoted or at least tolerated terrorism and where therefore “accomplices”: they were responsible for the so-called indirect armed aggression. However, the majority of states did not share let alone approve this view. Furthermore, armed reprisals in response to small-scale use of force short of an “armed attack” proper, have been regarded as unlawful both against states and against terrorist organisations. The events of 11 September have dramatically altered this legal framework.’66

The traditional attitude that may have prevailed before 9-11 was predicated on the paradigm of traditional State-to-State conflicts but it does not correspond to the character and seriousness of today’s terrorist threats. In the case of terrorist attacks the immediate gravity of a single attack may not be very significant indeed either because this is a link in a chain of attacks, or even more importantly, because in the case of a terrorist attack the immediate target is not the only and even the most important objective. As Michael Reisman writes, ‘terrorism, like any other act of unauthorised violence (I do not think that this really applies in cases of all acts of unauthorised violence), has three expanding circles of effects including: an immediate effect of killing or injuring people, who are deemed, either for all purposes or in that context, to constitute an internationally prohibited target; an intermediate effect of intimidating a larger number of people and thereby influencing their political behaviour and that of their government; and an aggregate effect of undermining inclusive public order.’67

66

A. Cassese, ‘Terrorism Is also Disputing some Crucial Categories of International Law’ (2001) 12 EJIL, p. 996. 67 W.M. Reisman, ‘International Legal Responses to Terrorism’ (1999) 22 Houston Journal of International Law, No. 1., pp. 6−7.

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The Law of Use of Force at the Turn of the Millennia This means that legal frames of responses to terrorist attacks cannot be tailored on the basis of the experience of the World Wars (or even the Gulf War for that matter) only. To conclude this part: in order to provide for effective response to terrorist attacks law cannot prohibit use of military force in self-defence in cases that the ICJ may have defined as ‘less grave forms’68 of use of force; at the same time, responses to terrorist attacks may combine significant elements of deterrence, anticipation and reprisal. As to the changing character of jus ad bellum, it seems that today the evolution of the domain of the legal regulation of use of force will most probably lead, at least in the short run, towards the emergence of a kind of flexible (soft) jus ad bellumjus ad bellum in which the concept of legitimacy instead of legality is central, where the impact of a few specially interested States (or their organisations such as NATO, G8 or G9) is crucial, where the legitimising role of the Security Council (especially its P5) remains noticeable, where the practice of some States and opinio juris of other States may considerably differ, and where the frontiers between interState and intrastate conflicts is becoming more and more blurred. Such a flexible set of guidelines enjoying consensus of the majority of States and being supported by the world public opinion creates at least relative predictability in this domain and is therefore preferable to ‘hard’, definitive and clear rules that are not observed in practice. 5. Terrorist Organisations and States Supporting Them Another specific feature of military responses to terrorist attacks arises from the link between terrorist organisations and States in the territory, or from the territory, of which they operate. The situation is somewhat different when a State supports terrorists (e.g., financially, logistically, politically, ideologically or otherwise) but its territory is not used as a basis for launching terrorist attacks. Differences, however, do not mean that the latter can eschew responsibility for its support of terrorists. The fact that non-state entities are directly responsible under international law for armed attacks and that States have the right to use force in self-defence against such entities does not mean that host-States or neighbouring States from which terrorist groups operate are not responsible under international law. Depending on the degree of support given to, or

68

Nicaragua Case, (1986) ICJ Reports, para.191.

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Rein Müllerson control exercised by a State over a terrorist organisation, such a State may be directly responsible for armed attacks carried out by terrorists. It has been argued, however, that mere tolerance of the presence of terrorist groups in the territory of a State, or even encouragement of their activities, is an insufficient connection to constitute an armed attack by that State.69 It has been asserted that the State must exercise actual control over a terrorist organisation to have the latter’s acts attributed to the State.70 In the Nicaragua case the ICJ held, for example, that assistance in the form of providing weapons, logistical or other support did not amount to an armed attack.71 The Court found that ‘by training, arming, equipping, financing and supplying the contra forces or otherwise encouraging, supporting and aiding military and paramilitary activities in and against Nicaragua’ the US had been ‘in breach of its obligation under customary international law not to intervene in the affairs of another State’.72 The Court also said that only ‘by those acts of intervention referred to in subparagraph (3) (i.e. aiding the contras and otherwise encouraging and supporting military and paramilitary activities in and against Nicaragua), which involved ‘the use of force’, had the US acted ‘in breach of its obligation under customary international law not to use force’.73 Here the Court clearly made a distinction between the breach of the non-use of force principle and the concept of armed attack since it did not consider that any support by the US to the contras constituted an armed attack. However, it is not clear at all what of kind of force (used by whom?) did the Court speak of in paragraph 292(4). If it meant force used by the contras against the Sandinista government then should it not be quite obvious that the US support as a whole should have been in breach of the non-use of force principle? Judge Stephen Schwebel in his dissenting opinion concluded that ‘the Judgement of the Court on the critical question of whether aid to irregulars may be tantamount to an armed attack departs from accepted – and desirable – law’.74 Judge Sir Robert Jennings expressed similar view stating that ‘it may be readily agreed that the mere provision of arms cannot be said to 69

See, e.g., R. Erickson, Legitimate Use of Force Against State Sponsored Terrorism, U.S. Air War College, 1989, p. 134. 70 See ‘Military Responses to Terrorism: Remarks of Francis A. Boyle’ (1981) 81 Proceedings of the American Society of International Law, 288. 71 Nicaragua, supra note 66, para. 195. 72 Ibid., para. 292 (3). 73 Ibid., para. 292 (4). 74 Dissenting Opinion of Judge Schwebel, Nicaragua Case, para. 155.

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The Law of Use of Force at the Turn of the Millennia amount to an armed attack. But the provision of arms may, nevertheless, be a very important element in what might be thought to amount to armed attack, where it is coupled with other kinds of involvement. Accordingly, it seems to me that to say that the provision of arms, coupled with “logistical or other support” is not armed attack is going much too far’.75 During the Cold War, State practice did not seem to consider assistance in the form of arming and financing armed groups that operated in other countries as armed attacks by supporting States (because both parties of the Cold War regularly financially and militarily supported their proxies), but today there are rather strong arguments in favour of reconsidering such a condescending posture towards States that support terrorist groups. The fact that international law has not always had such a complacent attitude towards attribution to States of acts by non-state entities was recently reminded by the International Criminal Tribunal for the Former Yugoslavia (ICTY). The Appeals Chamber of the ICTY in its judgement of 15 July 1999 in Tadic, found that ‘a first ground on which the Nicaragua test as such may be held to be unconvincing is based on the very logic of the entire system of 76 international law on State responsibility’. The Chamber stated that under this logic ‘States are not allowed on the one hand to act de facto through individuals and on the other to disassociate themselves from such conduct when these individuals breach international law. The requirement of international law for the attribution to States of acts performed by private individuals is that the State exercises control over the individual. The degree of control may, however, vary according to the factual circumstances of each case. The Appeals Chamber fails to see why in each and every circumstance international law should require high threshold for the test of control’.77

The Chamber found that ‘the “effective control” test propounded by the International Court of Justice is at variance with international and State practice’.78 References to State practice collected over many years, inter alia, in various ILC reports on the Draft Articles on State Responsibility, seem to support the position of the Appeals Chamber of the ICTY. 75

Dissenting Opinion of Judge Jennings, Nicaragua Case, p. 543. ICTY, Appeals Chamber, Prosecutor v. Dusko Tadic, 15 July 1999, para. 116. 77 Ibid., para. 117. 78 Ibid., para. 124. 76

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Rein Müllerson Although one of the important features of the changing international landscape is the increasing role (both positive and negative) of non-state actors, the world still is, and in the foreseeable future will remain, divided between sovereign States. Therefore, terrorists necessarily act (prepare, train, and receiving financial and other support for attacks) from the territory of some States even when they do not act on behalf of, or are not even supported by States. Such States are either unable or unwilling79 to prevent non-state terrorist organisations from using their territory for the purposes of carrying out attacks against other States. Thereby they are committing, using the language of the Draft Articles on State Responsibility recently adopted by the ILC,80 internationally wrongful acts either by action (condoning or supporting terrorists) or by omission (not preventing attacks from its territory against another State)81. At the same time, as Gregory Travalio writes, ‘although this may not necessarily preclude the use of military force in response to a terrorist attack emanating from such a State, the impotence of a State to control international terrorist organisations would not be an armed attack against another State, and, therefore the use of force in response is not expressly sanctioned by Article 51’.82 However, this only means that the use of force is not sanctioned against such an impotent State. This does not mean that use of force would be unlawful against the terrorist group, which is present and operates in the territory of that State. If a State is impotent to prevent the presence of terrorist groups in its territory and their attacks against third States it must not prevent a victim State or its allies from exercising their right to individual or collective self-defence in response to armed attacks by terrorists. In such a case, the State from the territory of which a terrorist group operates is under the obligation not to hinder the victim State to exercise its right to individual or collective selfdefence in the territory that it is unable to control. If such a State tries to prevent the exercise of the right to use force in self-defence against the terrorist organisation, it becomes an accomplice of the terrorist organisation. 79

The term ‘unwilling’ should here include not only tolerance of the presence of terrorist organisations and sympathy for their cause but also active support, assistance as well as various degrees of control. 80 The Draft Articles on Responsibility of States for Internationally Wrongful Acts. 81 See, Article 2 of the Draft Articles on State Responsibility, which says that ‘there is an internationally wrongful act of a State when conduct consisting of action or omission’ is attributable to the State and constitutes a breach of an international obligation of the State. 82 G. Travalio, supra note 59, p. 153.

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The Law of Use of Force at the Turn of the Millennia In that case it is not important whether the State supports terrorists, or vice versa as seems to have been the case with Al-Qa’ida in control of Afghanistan. Otherwise, the impotence of territorial States would lead to impunity of terrorist organisations. 6. Use of Force and Formalism versus Dynamism in International Law In The Gentle Civilizer of Nations,83 Martti Koskenniemi, either overtly or implicitly, but certainly constantly, returns to the theme of formalism versus dynamism in international law. Choosing the US invasion of the Dominican Republic in 1965 as an example and thoroughly analysing the 1966 debate over this invasion between Professor A.J. Thomas and Professor A. Berle, on the one hand, and Professor Wolfgang Friedmann, on the other, Koskenniemi comes to the conclusion that two cultures exist in international law: the culture of dynamism that ‘is represented by the American antiformalists’ and the culture of formalism. In a sense, a significant part of the book is devoted to the defence of the culture of formalism. He writes that ‘a culture of formalism − a story of international law from Rolin to Friedmann does have coherence’,84 that ‘nothing has undermined formalism as a culture of resistance to power, a social practice of accountability, openness, and equality whose status cannot be reduced to the political positions of any one of the parties whose claims are treated within it’85 and that ‘a more determined defence of formalism and legal autonomy would be needed’.86 Before dealing with the culture of formalism, one has to clarify what this culture is not; what it is distinctive from. The culture of dynamism – the nemesis of the culture of formalism – is characterised by ‘a pervasive rulescepticism’, by an emphasis on ‘flexible, policy-dependent’ instruments, by the use of ‘a flexible concept of international law that would serve their [decision-makers] preferred values by facilitating decision-making in contexts where they thought they were dominant’.87 Koskenniemi writes: ‘Today, many lawyers in the United States persist in calling for an integration of international law and international relations theory under a

83

M. Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870-1960, Cambridge University Press, 2001. 84 Ibid., pp. 502−507. 85 Ibid., p. 500. 86 Ibid,, p. 492. 87 Ibid., pp.475, 481, 483.

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Rein Müllerson “common agenda” ’.88 Such an interdisciplinary agenda, he believes, ‘together with a deformalised concept of law, and enthusiasm about the spread of “liberalism”, constitutes an academic project that cannot but buttress the justification of American empire, as both Schmitt and McDougal had understood. This is not because of bad faith or conspiracy on anybody’s part. It is the logic of an argument – the Weimar argument − that hopes to salvage the law by making it an instrument for the values (or better, “decisions”) of the powerful that compels the conclusion’.89 However, by liberating law from politics we also liberate politics from legal restraints and we are once again in a ‘Weimar situation’ with ‘good’ international law and bad politics. It follows from Koskenniemi’s narrative that as a result of the collapse of international law in the post-1914 world, the consequent loss of faith in it and an overwhelming emphasis on the role of politics, national interest and ideology, American international lawyers developed two basic responses to the ‘traditionalist, “European” attitude towards international law’.90 One, represented, for example, by Hans Morgenthau and George Kennan retained the traditional formalistic and rule-oriented understanding of international law, but found that international law was irrelevant in areas of vital national interests of States. This approach may be expressed by the words of Dean Acheson in his comment on the Cuban missile crisis: ‘The power, position and prestige of the United States had been challenged by another state; and law simply does not deal with such questions of ultimate power – power that comes close to sources of sovereignty’.91

An attempt to salvage international law and its relevance even for issues where vital interests of States were at stake was made by Myres McDougal and his associates through their policy-oriented approach that was the most visible among such attempts. Koskenniemi seems to underestimate the influence of the policy-oriented approach when he writes that ‘McDougal’s and Harold Lasswell’s Yale School was only the most visible but perhaps the least influential of the new approaches that grew up in the United States

88

Ibid., p. 483. Ibid., p. 484. 90 Ibid., p. 481. 91 Proceedings of the American Society of International Law, 1963, p. 14. 89

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The Law of Use of Force at the Turn of the Millennia in the 1950s and 1960s’.92 I would rather agree with him when he wrote in From Apology to Utopia that ‘while many find it difficult to accept his [McDougal’s] theoretical expositions and feel especially alien to his idiosyncratic language, his assumptions about the relatedness of law and politics are shared by perhaps a majority of modern international lawyers’.93

However, Koskenniemi believes that both of these anti-formalistic approaches, as well as other dynamic – i. e. non-formalistic approaches – had either an overt or an inadvertent agenda – to justify American dominance in the world. He, for example, quotes extensively from the article by Hans Morgenthau where such an agenda was indeed explicitly outlined.94 That is why Koskenniemi spares no effort in defending the culture of formalism in international law. There is always a danger, he writes, that ‘the Empire will project its internal morality to the world at large’ and ‘to avoid this, a more determined defence of formalism and legal autonomy would seem needed’.95 At the same time, Koskenniemi inadvertently (or maybe on purpose) provides arguments against the culture of formalism. So, he acknowledges that ‘formal rules are just as capable of co-existing with injustice as informal principles’.96 However, even more importantly, the culture of formalism did not prevent international law from being neglected or completely sidelined when international society was challenged by significant political changes, economic crisis or ideological confrontation. 92

Koskenniemi, supra note 83, p. 475. M. Koskenniemi, From Apology to Utopia. The Structure of International Legal Argument, Lakimiesliiton Kustannus, Finnish Lawyers Publishing Company, 1989, p. 171. 94 In 1968 Morgenthau wrote: ‘The international legal order appropriate to the globalism of American foreign policy would be monistic and absolutistic rather than pluralistic and relativistic. For American globalism assumes the existence of one valid legal order whose content is defined by the United States and which reflects the objectives of American foreign policy. The American globalism of necessity culminates in a pax Americana or American imperium in which the political interests and legal values of the United States are identified with universal ones’. H. Morgenthau, ‘Emergent Problems of United States Foreign Policy’, in K. Deutsch, S. Hoffmann (eds.), The Relevance of International Law, Schenkman, 1968, pp. 55−56. 95 Koskenniemi, supra note 81, p. 492. 96 Ibid., p. 496. 93

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Rein Müllerson In its entirety, of course, international law has never completely broken down. When we say that the two World Wars and the rise of fascism and communism were severe blows to international law, we have in mind the most important fundamental principles of international law such as the prohibition to use force or violations of elementary humanitarian norms. In times of crises such principles are first to break down. In that respect Koskenniemi draws our attention to ideas expressed by authors such as Carl Schmitt and Hans Morgenthau in the sense that in international society, like in domestic societies in periods of crises, it is the exception that is more important than the rule. As Schmitt had written, sovereign is ‘he who decides on the exception’ and, in his opinion, the exception ‘confirms not only the rule but also its existence, which derives only from the exception’.97 Or as Morgenthau, emphasising the fact that international law was obsessed with the preservation of status quo observed: ‘As pressure for change increases, international law will break down’.98 Today, we can see that the end of the bipolar world has brought about such fundamental changes in the world (or rather released hereto hidden or suppressed tendencies) that some core principles of international law are in the process of radical reinterpretation. We also see that this re-interpretation is done mainly by the US with, or sometimes even without, the support of its closest allies who ‘deciding on the exception’ in the time of radical changes and crises, are thereby setting new patterns of behaviour for the future, i.e. today’s exception has a tendency to become tomorrow’s rule. Therefore, it seems that at times of significant global changes there is more room for the culture of dynamism than for the culture of formalism. And of course the context determines the balance between these two cultures. When Koskenniemi analyses the Thomas and Berle clash with Friedmann over the US invasion in the Dominican Republic, his recommendations of how the dispute should have been conducted go far beyond what I understand by formalism and rather indicate the way out of the dilemma between what Koskenniemi calls ‘the Scylla of Empire and the Charybdis of fragmentation’.99 To achieve that, he writes, arguments must have opened the way to ‘the possibility of a non-imperialist universality’. If Thomas’s and Berle’s universalism was one of complete difference – us against them, ‘Friedmann’s formalism would have required an open 97

Ibid., p. 428. Ibid., p. 454. 99 Ibid., p. 504. 98

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The Law of Use of Force at the Turn of the Millennia articulation of the universalist principle and its subjection to a critique that would have integrated Thomas and Berle in a single universe with the communists – thus undermining the imperialist effect of their dichotomous world’.100 In the case of the Dominican Republic, Koskenniemi believes, ‘this might have involved looking into the claims of the local factions, giving the effect to the results of the election, and examining the meaning of “communism” in the conditions of social deprivation that had existed in the country’.101 Such an approach, in my opinion, may have been exactly what the doctor would have ordered but how this approach could be called an exercise of the culture of formalism is beyond me. I would rather call it a contextual, non-formalistic (even dynamic and certainly multidisciplinary) interpretation and application of international law. The Dominican invasion may have been a too easy a case to analyse because this invasion was a rather clear violation of international law and therefore it was explained and defended by its advocates not so much in terms of international law as in terms of politics and ideology. However, to be fair to the culture of formalism, it is necessary to mention that the socalled ‘Brezhnev doctrine’ also expressly rejected formal ‘bourgeois’ rules prohibiting intervention. In that case, the flexible principles of ‘socialist internationalism’ were to prevail over formal (abstract) rules. One of the earlier Soviet attempts to have a completely informal, political approach to international law was made by Eugene Korovin who wrote of intervention: ‘Our negative approach to various intentions of intervention by the Entente does not mean that we reject intervention as a method of class struggle. An intervention that in certain circumstances may be like a surgical operation helping to bring about a new world would be a synonym of regression in the hands of the Entente.’102

These are extreme examples of open rejection of law for the sake of dubious political expediency. They have nothing to do not only with formal requirements of law but also with values and interests protected and promoted by law. This remark may be considered as my contribution to the defence of formalism. Koskenniemi believes that the culture of formalism helps particular (suppressed) voices be heard. I am not sure of that and the author’s 100

Ibid., p. 506. Ibid., p. 507. 102 E.A. Korovin, International Law of the Transitional Period (in Russian), Moscow, 1924, p. 62. 101

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Rein Müllerson arguments did not persuade me. I think that often, on the contrary, law’s excessive formalism may serve to conceal the interests of the powerful, where the particular (powerful’s particular) is disguised as the universal. Only by unveiling law’s formalism is it possible to discover whose interests and values are protected and promoted by seemingly universal impartial and formal rules. Koskenniemi believes that the culture of formalism ‘represents the possibility of universal (as Kant well knew) but it does this by remaining “empty” ’103, thereby helping to articulate the needs of those whose voices are usually suppressed. One of the attempts to consider norms of international law as empty forms was undertaken by some early generation Soviet international lawyers who tried to explain how there could emerge and exist general international law in the divided world. In the light of such interpretation of international law, every state had to fill these ‘empty’ norms in the process of their application since application of law is always concrete. This is a dangerous concept. Of course, Koskenniemi does not follow that path. I understand his reference to the emptiness of international law in the sense that its norms, prescribing or permitting certain patterns of behaviour, are devoid of any ultimate objective or value. In that sense, emptiness and formalism of norms of international law basically mean the same thing. This aspect of the dilemma of the culture of formalism versus the culture of dynamism brings us close to the problem of values and interests protected and promoted by international law, and the value of international law as such. Law is never an end in itself. It is an instrument for achieving or preserving certain ends. If we take today’s international law, such ends encompass general purposes such as peace, economic development, a clean environment, the fight against terrorism and for human dignity, rational exploitation of renewable natural resources as well as quite concrete objectives such as building a dam on a certain river or guaranteeing landlocked States’ access to the sea. This is the content or context of international law and neither of them is really formal. However, international law promotes and protects these values and interests through specific means and methods that indeed include a significant degree of formalism and, of course, international law, like any other normative systems, needs quite a considerable measure of formal definitiveness and in that sense there is 103

Koskenniemi, supra note 81, p. 504.

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The Law of Use of Force at the Turn of the Millennia indeed a noticeable degree of the culture of formalism in the international law profession. There is certain intrinsic value in observing formal requirements of law, in achieving purposes and objectives promoted and protected by law through methods and means provided by law and not bypassing them even if doing so may sometimes seem more expedient. In that respect, every lawyer, especially in comparison with a non-lawyer, is a bit of normativist, positivist and formalist. However, interpretation and application of law is seldom, and in difficult and complicated cases never, automatic. Values and interests that form both the content and context of international law should not be sacrificed to the culture of formalism. The observation of the maxim of Roman law Fiat justitia et pereat mundus is not only an oxymoron since justice can exist only so far as human society exists, but it would be an extreme testimony to the professional narrow-mindedness of lawyers (of course, other professions have their own professional limits). There are various reasons why there is less formalism in international law than in most domestic legal systems. Already the Permanent Court of International Justice observed in the in the Mavrommatis Palestine Concessions: ‘Even if the grounds on which the institution of proceedings was based were defective for the reason stated, this would not be an adequate reason for the dismissal of the applicant’s suit. The Court, whose jurisdiction is international, is not bound to attach to matters of form the same degree of importance which they might possess in municipal law.’104

The International Court of Justice applied this principle in the case concerning the Northern Cameroons,105 as well as Military and Paramilitary Activities in and against Nicaragua.106 Even the Appeals Chamber of the International Criminal Tribunal for the Former Yugoslavia (ICTY) in the Tadic case, speaking of international humanitarian law (sic! this is not about the law applicable between States but about international criminal law applicable to individuals), observed that ‘this body of law is not grounded on formalistic postulates. Rather, it is a realistic body of law, grounded on the notion of

104

PCIJ, Series A, No. 2, p. 34. I.C.J. Reports, 1963, p. 28 106 I.C.J. Reports, 1984, pp. 428−429, para. 83. 105

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Rein Müllerson effectiveness and inspired by the aim of deterring deviations from its standards to the maximum extent possible’.107

It seems that the higher we go on the ladder of interests and values protected by law as well as on the ladder of decision-makers (e.g., Supreme Courts of individual states or the International Court of Justice), the guidance of values and interests in the decision-making process is usually stronger. And judicial application of international law, though slowly becoming more frequent, is still rather an exception than a rule. The UN Security Council may even set aside international law (not all of it, of course) for the sake of achieving its main goal – restoration and maintenance of international peace and security. As Judge Rosalyn Higgins wrote a number of years ago, ‘there is, of course, a very substantial difference between the use . . . of international law by the Security Council, on the one hand, and a purely judicial body such as the International Court of Justice, on the other’.108 Hence, there is an everpresent need of balancing between the culture of formalism and the culture of dynamism in international law. The fact that in the process of interpretation and application of international law one has to constantly choose between the universal and the particular, dynamism and formalism, apology and utopia, makes our profession not only difficult but also interesting.

107

See, paragraph 96 of the Prosecutor v. Dusko Tadic in The Appeals Chamber, Judgement of 15 July 1999 (http://un.org/icty/tadic/appeal/judgement/tadaj9907150e.h.) 108 R. Higgins, ‘The Place of International Law in the Settlement of Disputes by the Security Council’ (1970) 64 AJIL, pp. 15−16.

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Non-Compliance Procedure under the Kyoto Protocol Sabrina Urbinati∗

Contents 1. Introduction 2. The Participants in the Non-Compliance Procedure 2.1. The Conference of the Parties 2.2. The Secretariat 2.3. The Role of the Compliance Committee (1) The Structure of the Compliance Committee (2) The Functions of the Compliance Committee 2.4. The Parties to the Convention 2.5. The Party Not in Compliance 3. The Non-Compliance Proceedings 3.1. Gathering Information Concerning Non-Compliance 3.2. Review of the Data: The Procedure before the Compliance Committee 3.3. The Consequences Applied in Cases of Non-Compliance 4. Conclusion 1. Introduction One of the questions thrown up by the rapid proliferation of treaties on environmental protection is that of non-compliance with their provisions by the States Parties. In the field of environmental law, the first international instrument to adopt a non-compliance procedure was the Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol).1 The ∗

PhD candidate in Public International Law, University of Paris I, PanthéonSorbonne. 1 This Protocol was adopted by the Conference of the Parties to the Vienna Convention on the Law of Treaties at Montreal on 16 September 1987. Signed immediately by 46 States, it entered into force on 1 January 1989. By 30 August 2002, 183 States had ratified the Protocol. The non-compliance procedure was adopted on the basis of Article 8 of the Montreal Protocol entitled ‘Noncompliance’ which reads: ‘The Parties, at their first meeting, shall consider and approve procedures and institutional mechanisms for determining non-

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Sabrina Urbinati procedure was adopted in 1992. Non-compliance procedures can also be found in other environmental protection agreements, such as those instituted by the Protocol to the 1979 Convention on Long-range Transboundary Air Pollution,2 concerning the further reduction of sulphur emissions and the Protocol to the 1992 Convention on the Protection of the Marine Environment of the North-East Atlantic.3 Moreover, in November 2001, a non-compliance procedure was introduced by a Decision of the Conference of the Parties4 (henceforth ‘the Decision’), within the context of the Kyoto Protocol.5 It is the Kyoto Protocol non-compliance procedure that forms the subject of this study. In fact, the Kyoto procedure has the advantage of being more than usually complete and well developed and has specific features that distinguish it from the procedures established by other international instruments. Thus, it would seem useful to describe this system by asking a series of questions with a view to proposing a frame of reference for future discussions. To begin with, however, certain general points concerning noncompliance procedures need to be clarified. First of all, there is the matter of how they should be defined. For the purposes of this study, a noncompliance procedure is a mechanism that can be used (1) to verify the noncompliance by a State Party with the provisions of a convention, (2) at the compliance with the provisions of this Protocol and for treatment of Parties found to be in non-compliance.’ For the text of the Protocol on Substances that Deplete the Ozone Layer of 16 September 1987, see (1987) 26 International Legal Materials (ILM), p. 1550. 2 This Protocol was adopted at Oslo in 1994. See (1994) 33 ILM, p. 1542. 3 (1993) 32 ILM, p. 1069. 4 See Decision 24/CP7 of November 2001 in the Report of the Conference of the Parties on the work of its seventh session, held at Marrakesh from 29 October to 10 November 2001, FCCC/CP/2001/13/Add.3, of 21 January 2002. This decision was taken on the basis of Article 18 of the Kyoto Protocol, which reads as follows: ‘The Conference of the Parties serving as the meeting of the Parties to this Protocol shall, at its first session, approve appropriate and effective procedures and mechanisms to determine and to address cases of non-compliance with the provisions of this Protocol . . .’. 5 The Protocol was adopted on 11 December 1997 by the third Conference of the Parties to the Framework Convention on Climate Change and was opened for signature on 16 March 1998. On 30 August 2002, the Protocol had not yet entered into force. Although it has been signed by 84 States, so far only 54 have ratified it. For the text of this Protocol, see (1998) 37 ILM, pp. 22−43.

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Non-Compliance Procedure under the Kyoto Protocol same time to understand why that Party failed to comply, and (3) to respond to a situation of non-compliance. Secondly, the language used in relation to this type of procedure is also revealing. In fact, whereas the term noncompliance is universally employed, the term violation is never used. Thus, it seems reasonable to suppose that this choice of terms is intended to stress the distinction between non-compliance and violation situations. In this connection, it is worth recalling what Professor Brigitte Stern had to say in her Managua address: ‘To speak of non-compliance rather than violation represents a semantic separation between two similar situations which are addressed according to two different ways of thinking. With respect to non-compliance, control institutions will draw on dialogue and comprehension and the will to assist a State in fulfilling its obligations. As regards violation, on the other hand, control institutions will react through sanction measures.’6

There are two preliminary questions directly relating to the non-compliance procedure, which need to be dealt with before proceeding any further. These concern, firstly, the verification of the existence of a jurisdictional limit and, secondly, the determination of the applicable law. With regard to the former, it is possible to establish very precise limits on the competence of the facilitative branch and the enforcement branch.7 Thus, there is an overall mandate and a more specific mandate based on a list that makes explicit reference to the articles of the Protocol. This list will be analysed below when the various functions of these two bodies are considered. As far as the law applicable to non-compliance procedures is concerned, the reference texts are silent on this point. It seems that each individual convention, together with its protocols, constitutes the legal yardstick for determining both the existence of non-compliance and its consequences. To paint as complete a picture as possible of the non-compliance procedure adopted under the Framework Convention on Climate Change8 and the Kyoto Protocol, it would seem useful to proceed as follows. First of 6

See B. Stern, ‘Intervention by the President of the French National Commission for the Elimination of Anti-Personnel Mines on the Article 8 of the Ottawa Convention at the Managua Conference’, in Report 2000 of the Commission for the Elimination of Antipersonnel Mines, Annex 13, La documentation Française, 2000, p. 6. 7 As we shall see these two groups form part of the body responsible for monitoring compliance under the Kyoto Protocol procedure. This body is called the Compliance Committee. 8 (1992) 31 ILM, p. 848.

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Sabrina Urbinati all, an attempt will be made to analyse the participants, after which the procedure itself will be described. 2. The Participants in the Non-Compliance Procedure The description of the non-compliance procedure adopted under the Kyoto Protocol may usefully begin by examining the participants. These may be divided into two types. Thus, on the one hand, there are the institutional bodies concerned with the administration of the non-compliance procedure which could be described as passive, namely the Conference of the Parties, the Secretariat and the Compliance Committee,9 and, on the other hand, there are the active participants, that is to say those authorised to initiate the noncompliance procedure, normally all the Parties to the Convention and the Protocol, the Secretariat and the State Party not in compliance. It seems necessary to distinguish the former from the latter in order to highlight the different functions they perform within the non-compliance process. This means describing their structures, responsibilities and powers, which can best be done by considering them one by one. 2.1. The Conference of the Parties The Conference of the Parties is the supreme body of the institutional structure created by the Framework Convention on Climate Change and by the Kyoto Protocol.10 It is the decision-making body and is responsible, among other things, for keeping under regular review the implementation of the Convention and all related instruments.11 To this end, the Conference has 9

See for, an overview of the various possible institutional mechanisms, W. Lang, ‘Compliance Control in International Environmental Law: Institutional Necessities’, (1996) 56 Zeitschrift für auslädisches öffentliches Recht und Völkerrecht (ZaöRV), pp. 686−689. 10 The Framework Convention on Climate Change, supra note 8, established a Conference of the Parties while the Kyoto Protocol, supra note 5, provides for a Meeting of the Parties. However, these appear to be one and the same body. Thus, for example, Article 13, paragraph 1, of the Kyoto Protocol reads as follows: ‘The Conference of the Parties, the supreme body of the Convention, shall serve as the meeting of the Parties to this Protocol . . .’. Within the context of the present analysis, for the sake of convenience and simplicity, only the term Conference of the Parties will be used to denote the supreme body of the convention in question, that is to say its decision-making authority. 11 Cf. paragraph 2 of Article 7 of the Framework Convention on Climate Change, supra note 8, and Article 13, paragraph 4, of the Kyoto Protocol, supra note 5.

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Non-Compliance Procedure under the Kyoto Protocol been granted a range of powers, detailed in the instruments concerned, including: the assessment of information communicated by the Parties, the consideration and adoption of regular reports on the implementation of the Convention and related instruments, the power to make recommendations, the power to establish subsidiary bodies, data exchange and technical assistance.12 In particular, with respect to the framework of the non-compliance procedure, the Conference of the Parties receives and considers reports prepared by expert review teams13 on the basis of reports submitted by the States Parties. It also receives reports on the activities of the Compliance Committee and its two branches, as stipulated in section III of the Decision.14 Nevertheless, it has neither the power to initiate the noncompliance procedure nor the power to adopt a final decision on the measures to be applied to a Party found not to be in compliance. On the other hand, as will be shown in the part of this study that deals with the procedure stricto sensu, it has the power to review decisions concerning the consequences of a situation of non-compliance, after having received and considered the decision of the Compliance Committee. 2.2. The Secretariat In order to provide regular services for the institutional mechanisms, and in particular the Conference of the Parties, the international instruments concerned provide for the establishment of a Secretariat15 to carry out the 12

Cf. Article 7 of the Framework Convention on Climate Change, supra note 8, and Article 13 of the Kyoto Protocol, supra note 5. 13 Cf. Article 8 of the Kyoto Protocol, supra note 5. 14 See Decision 24/CP.7 in the Report of the Conference of the Parties on the work of its seventh session…, FCCCP/CP/2001/13/Add.3, supra note 4. The relations between the Conference of the Parties and the Compliance Committee are best defined in section XII of the Decision which reads as follows: ‘[t]he Conference of the Parties serving as the meeting of the Parties to the Protocol shall: . . . (b) consider the reports of the plenary on the progress of the work; (c) provide general policy guidance, including on any issues regarding implementation that may have implications for the work of the subsidiary bodies under the Protocol; (d) adopt decisions on proposals on administrative and budgetary matters; (e) consider and decide appeals in accordance with section XI.’ 15 Cf. Article 8 of the Framework Convention on Climate Change, supra note 8; see also, S. Maljean-Dubois, ‘Le foisonnement des institutions conventionnelles’, in

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Sabrina Urbinati decisions taken by the decision-making body. The Secretariat is provided with the resources and staff necessary to perform the administrative and executive functions indispensable to the implementation of the convention. As regards, in particular, the role of the Secretariat in connection with the non-compliance procedure adopted under the Kyoto Protocol, as provided for in the Decision establishing the system itself, it has the essential task of coordinating the application of the procedure, assisting the States Parties and verifying compliance with the resulting decisions.16 Within the context of this procedure, the Secretariat is the body, which in the initiation phase and throughout the non-compliance process, assists and ensures liaison between, on the one hand, the Party not in compliance and the other Parties and, on the other, the Conference of the Parties and the Compliance Committee. Moreover, the Decision provides for the Compliance Committee to receive, through the Secretariat, questions of implementation and noncompliance by a State Party17 indicated in reports of expert review teams.18 Thus, the Secretariat may play two types of role: it may have to refer questions to the Compliance Committee – active participant, and it is responsible for the transmission19 of reports on non-compliance – passive participant. 2.3. The Role of the Compliance Committee The Kyoto non-compliance procedure provides for the establishment of a body responsible for verifying compliance with the obligations arising out of the Framework Convention on Climate Change and the Protocol. This body is called the Compliance Committee and is divided into two branches known as the facilitation branch and the enforcement branch. L’effectivité du droit international de l’environnement. Contrôle de la mise en oeuvre des Conventions internationales, Paris, Economica, 1998, pp. 37−40. 16 See S. Doumbe-Bille, ‘Les Secrétariats des conventions internationales’, in L’effectivité du droit international de l’environnement. Contrôle de la mise en oeuvre des Conventions internationales, Paris, Economica, 1998, p. 58. 17 Article 8 of the Kyoto Protocol, supra note 5, provides that ‘[t]he information submitted under Article 7 by each Party included in Annex I shall be reviewed by expert review teams . . . ’. 18 Cf. section VI of Decision 24/CP.7, in Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 19 A comparison might be made between the role of the Secretariat, as described above, and that of a court registrar.

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Non-Compliance Procedure under the Kyoto Protocol In order to characterise this body it is necessary to examine, firstly, its structure and, secondly, its functions and powers. (1) The Structure of the Compliance Committee The composition of a body is of great importance for its functioning, effectiveness and impartiality. The Compliance Committee established under the Kyoto Protocol procedure has a rather elaborate structure. The Decision provides20 for the Compliance Committee21 to ‘function through a plenary, a bureau and two branches, namely, the facilitative branch and the enforcement branch. The Committee shall consist of twenty members elected by the Conference of the Parties serving as the meeting of the Parties to the Protocol, . . .’. The twenty members are divided equally between the facilitative branch and the enforcement branch, they serve in their individual capacities and must have recognised competence relating to climate change and in relevant fields such as the scientific, technical, socio-economic or legal fields. The structure and composition of the Compliance Committee call for comment and raise a number of questions. First of all, the Kyoto Protocol’s non-compliance procedure has a very intricate and complicated structure. Although this may be partially attributable to the special nature of the international convention itself, it may also be that a sort of confidence in the effectiveness of non-compliance procedures and their problem-solving potential is building up, thereby encouraging the development of more elaborate and sophisticated systems. At the same time, however, it is also important to consider whether an overly elaborate and even bureaucratic structure might not undermine the effectiveness of the procedure. Secondly, as regards the composition of the Committee, it is interesting to note that, although its members must be experts, they are also required to serve in their individual capacities. This no doubt reflects the desire of the negotiators to emphasise the Committee’s impartiality. Nevertheless, it could be detrimental to the principle of cooperation between the Parties, which is one of the basic principles of mechanisms of this type.

20

Cf. Section II, paragraph 2, of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session. . ., FCCCP/CP/2001/13/Add.3, supra note 4. 21 Below, this body may also be referred to simply as the Committee.

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Sabrina Urbinati (2) The Functions of the Compliance Committee The Compliance Committee has numerous functions, with each of its subdivisions having different powers. The Committee itself has the power to take all decisions.22 These are adopted by consensus or, in the absence of a majority, by three fourths of the members present and voting. According to section III of the Decision,23 the plenary of the Committee must report to the Conference of the Parties on all its activities and, in particular, submit a list of decisions taken by the facilitative and enforcement branches. Moreover, it must apply the general policy guidance received from the Conference of the Parties. Finally, it is required to carry out administrative and budgetary tasks, to develop any further rules of procedure, and to perform such other functions as may be requested of it. As for the facilitative branch, it is responsible for providing advice and facilitation to Parties in implementing the Protocol. In particular, in accordance with paragraphs 5 and 6 of section IV of the Decision, the facilitative branch, outside the mandate of the enforcement branch, is responsible for addressing questions of implementation, such as those arising from the consideration of information on how a Party included in Annex I to the Framework Convention on Climate Change24 is endeavouring not to exceed its assigned quantified limitation on aggregate anthropogenic emissions. Moreover, the facilitative branch must address questions relating to the provision of information on the use by a Party included in Annex I of Articles 6,25 1226 and 1727 of the Protocol as supplemental to its domestic action, taking into account any reporting under Article 3, paragraph 2, of the Protocol. Furthermore, the facilitative branch must provide advice and facilitation for compliance with commitments under Article 3, paragraph 1,28

22

Cf. paragraphs 8 and 9 of section II of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 23 Cf. Decision 24/CP.7, ibid. 24 Namely, the developed countries and the countries that are undergoing the process of transition to a market economy. 25 This Article concerns the possibility of the greenhouse gas emission reduction units being traded between States Parties. 26 This Article concerns the ‘clean development mechanism’. 27 This Article concerns emissions trading. 28 Namely, not to exceed their assigned quantified amounts of aggregate anthropogenic emissions.

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Non-Compliance Procedure under the Kyoto Protocol Article 5, paragraphs 1 and 2,29 and Article 7, paragraphs 1 and 4,30 of the Protocol. To this end, it is made responsible for applying the consequences31 described in the second part of this study. For its part, the enforcement branch is composed of members who must have legal experience.32 The enforcement branch is responsible33 for determining whether a Party included in Annex I to the Convention is or is not in compliance with the provisions of the Kyoto Protocol34 and with the eligibility requirements under its Articles 6, 12 and 17. Moreover, the enforcement branch is also responsible for determining whether to apply adjustments to inventories under Article 5, paragraph 2, of the Protocol, in the event of disagreement between an expert review team and the Party involved, and for addressing questions of implementation relating to Article 7, paragraph 4, of the Protocol. Finally, the enforcement branch is responsible for applying the consequences set out in section XV of the Decision, as described in the second part of this study. As already mentioned, under the non-compliance procedure the power of decision concerning the response to a non-compliance situation lies with the Compliance Committee. In fact, the Conference of the Parties has merely to be informed of the decisions taken by the Committee, which it cannot influence unless the interested Party resorts to the appeals procedure under section XI. 2.4. The Parties to the Convention The States Parties are also authorised to initiate the non-compliance procedure. Under paragraph 1(b) of section VI of the Decision, the noncompliance procedure may be initiated by: ‘[A]ny Party with respect to another Party, . . .’. The negotiations over the text of the Decision raised the 29

The establishment of a national system enabling the Parties included in Annex I to estimate anthropogenic emissions. 30 The Parties included in Annex I must provide the necessary supplementary information for the purposes of ensuring compliance with Article 3 of the Protocol. 31 Cf. sections IV and XIV of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 32 Cf. paragraph 3 of section V, ibid. 33 Cf. paragraph 4 of section V, ibid. 34 The commitments in question are those specified in Article 3 paragraph 1, Article 5, paragraphs 1 and 2, and Article 7, paragraph 1, of the Kyoto Protocol, supra note 5.

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Sabrina Urbinati question of guarantees for the States Parties in relation to this provision. In fact, if it had remained as it stood, it could have been open to abuse, since one Party could have taken advantage of the rule to exert political pressure on another. The negotiators solved this problem by providing that any submission concerning non-compliance by another Party must be supported by ‘corroborating information’.35 Moreover, as described in connection with the analysis of the procedure, provision is made for a preliminary examination of questions of implementation to make sure that they are serious. 2.5. The Party Not in Compliance One of the distinguishing characteristics of non-compliance procedures in general, and their most important innovation, is the possibility of ‘selfdenunciation’. In other words, a State Party which is aware that it will be unable to fulfill or has failed to comply with its obligations, despite having deployed all its resources, may make a submission to the Committee in which it explains how this has come about, endeavors to show that it has done its utmost to achieve its objectives and analyses the reasons for its having failed to do so. Paragraph 1(a) of section VI of the Decision refers merely to submissions made by: ‘[A]ny Party with respect to itself.’ Clearly, this provision forms part of a context of cooperation, since it allows the State Party to acknowledge its difficulties in fulfilling its obligations, despite its best efforts, and, at the same time, to make known its technical or financial assistance requirements. The only risk is that some States Parties might try to obtain facilities, and in particular financial facilities, without really having made every effort to honour their commitments. 3. The Non-Compliance Proceedings Having considered and reviewed the mechanisms of the non-compliance procedure under the Kyoto Protocol, in order to complete the picture it is now necessary to examine how the procedure itself unfolds. It can be broken down into three parts: the gathering of information concerning noncompliance (2.1.), the examination of that information (2.2.), and the choice of a response (2.3.).

35

Cf. section VI of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4.

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Non-Compliance Procedure under the Kyoto Protocol 3.1. Gathering Information Concerning Non-Compliance In order to examine and evaluate an alleged situation of non-compliance reported by one of the possible initiators of the procedure, the Compliance Committee must be able to gather the information it needs to verify the facts and decide upon its response. Under the Kyoto Protocol procedure, the facilitative branch and the enforcement branch can gather this information in a number of ways which can be divided into two different categories. Firstly, there are the submissions by means of which the active participants refer questions of implementation to the Compliance Committee.36 Then there is the information, which that body can gather from investigations, from reports provided by other bodies established under the Convention, or by the other branch and from reports prepared by competent intergovernmental and non-governmental organisations. A Party not in compliance may initiate the non-compliance procedure by making a submission to the Compliance Committee containing all the necessary reasons and clarifications and all relevant information on the activities carried out in its territory with a view to fulfilling its obligations under the Convention. Such a submission could be likened to a request for assistance. Indeed, it this were not the case, a State Party would have nothing to gain from drawing attention to its difficulties in achieving its objectives. With regard to the initiation of the non-compliance procedure on the basis of review team reports, it should be pointed out that these teams may, in support of their arguments, even provide information other than that derived from government reports such as, for example, information gathered by non-governmental organisations with which they collaborate. In this connection, it is pertinent to inquire whether these reports based on information from non-governmental organisations might not be a means by which the latter could exert indirect influence on the States Parties. If this were the case, the States Parties might find themselves exposed to various types of pressure. The initiation of the procedure by one State Party with respect to another must also be based on a submission. The actual text does not give any precise indication of what this submission should contain, simply noting that the questions submitted must be ‘[s]upported by corroborating information .

36

In particular, the submission made by a Party initiating the procedure with respect to another Party, the submissions made by review teams through the Secretariat, and that made by the Party not in compliance.

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Sabrina Urbinati . . ’37. It has already been pointed out that these words were inserted in order to prevent abuse, such as the political pressure that one State Party might exert on another. It is therefore unnecessary to pursue this particular point any further. Investigations are a means of gathering additional information needed by the Compliance Committee. Normally, the investigation would be carried out by experts.38 It should be noted that, even though it might be considered very effective and useful, this information-gathering technique might be liable, in certain circumstances, to encroach on the sovereignty of the States Parties. For example, the expert opinion might be based on information that the experts had to seek out in the territory of the Party suspected of noncompliance. The commonest case is that of expert assessments requested and conducted by non-governmental organisations. In other words, the information obtained within the context of an expert assessment could be provided, in principle, by entities other than States, and this could create interference between the Compliance Committee, which can seek expert advice from a non-State entity, and the sovereignty of the Party concerned. Moreover, the Decision says nothing about how these expert assessments are to be carried out. There are two points to be made concerning the information provided by the principal and subsidiary bodies established under the Convention and the Protocol, and information that may be submitted by international, intergovernmental and non-governmental organisations. First of all, since all these bodies, save for the Conference of the Parties, are composed of experts, their reports may be regarded as expert opinions. If this is so, then how do these means of gathering information differ from seeking expert advice and does the latter serve any useful purpose? The second observation concerns the information that may be provided by intergovernmental and non-governmental organisations. In this respect, it seems pertinent to consider whether, through these means of gathering information, the Parties might not find themselves being indirectly influenced by entities other than States. Without wishing to pursue this point too far, it should be noted out that the Kyoto non-compliance procedure is based on cooperation between the States Parties with a view to resolving non-compliance situations. Thus, 37

See section VI of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . . , FCCCP/CP/2001/13/Add.3, supra note 4. 38 See C. Imperiali, ‘Le contrôle de la mise en œuvre des conventions internationales’, in L’effectivité du droit international de l’environnement. Contrôle de la mise en oeuvre des Conventions internationales, Paris, Economica, 1998, p. 10.

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Non-Compliance Procedure under the Kyoto Protocol it seems legitimate to inquire how the cause of cooperation could be served by an influence, and an indirect one at that, exerted by entities other than States. 3.2. Review of the Data: the Procedure before the Compliance Committee Within the mechanism established under the Kyoto Protocol, the procedure for examining an alleged non-compliance situation is quite elaborate since, firstly, the examination may be carried out by either of the two branches that make up the Compliance Committee and, secondly, it consists of several phases. The first phase is referred to as ‘Allocation and preliminary examination’,39 while the second may follow either of two different paths depending on whether it corresponds to the ‘Procedure for the enforcement branch’ or the ‘Expedited procedures for the enforcement branch’. In the ‘Allocation and preliminary examination’ phase, the question is allocated to the appropriate branch which, except in the case of a question raised by a Party with respect to itself, must ensure, within a period of three weeks, that the question before it: ‘[(a)] is supported by sufficient information; (b) is not de minimis or ill-founded; and (c) is based on the requirements of the Protocol’.40 Before continuing with the description of the procedure, it seems worthwhile pausing to consider what criteria may be used by the Compliance Committee to verify that the information is sufficient and the question is not de minimis or ill-founded. In actual fact, the Decision is silent on this point and the terms used remain extremely vague. At the end of the preliminary examination phase, the relevant branch must decide whether to proceed or not.41 The Party concerned must be notified, through the Secretariat, of the decision taken and, if the branch decides to proceed, provided with a statement identifying the question of implementation, the branch that will consider the question and the information on which the question is based.42 The Party concerned is given an opportunity to comment in writing on the decision to proceed and on the information on which it is based43. On the other hand, if the branch decides

39

See heading of section VII of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session. . ., FCCCP/CP/2001/13/Add.3, supra note 4. 40 See paragraphs 2 and 3 of section VII, ibid. 41 Expressions used in section VII, ibid. 42 See paragraph 4 of section VII, ibid. 43 See paragraph 7 of the section VII, ibid.

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Sabrina Urbinati not to proceed, its decision must be made available by the Secretariat to other Parties and to the public.44 In principle, in the phase that follows the adoption of a decision to proceed, that is to say the phase in which the question of implementation is examined by the relevant branch, the State Party concerned may designate one or more persons to represent it. On the other hand, it may not be present ‘during the elaboration and adoption of a decision of the branch’.45 Any information considered by the branch in the process of reaching a decision must be made available to the Party concerned and, subject to any rules relating to confidentiality, to the public. The Party concerned must be given an opportunity to comment in writing on such information. Any decision adopted, including the reasons for it, must be notified to the Party concerned and made available to the other Parties. The Party concerned must be given an opportunity to comment in writing on any decision of the relevant branch. Following the ‘Allocation and preliminary examination’ phase, the continuation of the procedure, before the enforcement branch, may take one of two forms known as the ‘Procedure for the enforcement branch’46 and the ‘Expedited procedures for the enforcement branch’, respectively47. The latter apply when the question of implementation relates to eligibility requirements under Articles 6, 12 and 17 of the Protocol and is characterised by shorter time frames. The ‘Procedure for the enforcement branch’, described in Section IX of the Decision, is spread out over precise time frames which can be extended only in specific cases and only at the discretion of the enforcement branch. Within ten weeks of receipt of notification of the decision to proceed, the Party concerned may make a written submission to the branch rebutting the information on which it is based. Within the same time frame, the Party concerned may also request the holding of a hearing at which it can make known its views, by presenting expert testimony or opinion. The hearing must be arranged by the branch within four weeks of receipt of the request. The hearing will normally be held in public unless the enforcement branch decides otherwise. To some extent, the procedure places the branch and the Party concerned in a sort of adversarial situation since ‘[t]he enforcement branch may put questions to and seek clarification from the Party concerned, 44

See paragraph 6 of the section VII, ibid. See paragraph 2 of section VIII, ibid. 46 See section IX, of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 47 See section X, ibid. 45

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Non-Compliance Procedure under the Kyoto Protocol either in the course of such a hearing or at any time in writing, and the Party concerned shall provide a response within six weeks thereafter’.48 Upon completion of this exchange of written communications or the hearing, the enforcement branch adopts a reasoned ‘preliminary finding that the Party concerned is not in compliance with commitments under one or more of the Articles of the Protocol referred to in section V, paragraph 4; or [o]therwise determines not to proceed further with the question’.49 The Party concerned must be notified forthwith, in writing, of the branch’s preliminary finding. A decision not to proceed must also be made available to the other States Parties and to the public. If the Party concerned is found not to be in compliance with its commitments, it is allowed ten weeks50 in which to provide the enforcement branch with a further written submission concerning the preliminary finding. If the Party provides such a submission, the branch must consider it and, within four weeks, adopt a final reasoned decision on the question of implementation. The final decision will indicate whether the preliminary finding is confirmed, in whole or in part. If, on the other hand, the State Party does not provide a further submission, the enforcement branch will adopt a final decision confirming its preliminary finding. The Party concerned is notified, through the Secretariat, of the final decision, which is also made available to the other Parties and to the public.51 According to section IX, paragraph 12, of the Decision, where appropriate, the enforcement branch may, at any time, refer the question to the facilitative branch. The Party in respect of which the enforcement branch has adopted a final decision may also appeal to the Conference of the Parties, within 45 days of being informed thereof. To initiate this further phase, the Party must lodge an appeal with the Secretariat. The Conference of the Parties will consider the appeal at its first session after the lodging of the appeal, taking its decision on the basis of a three-fourths majority vote of the Parties present and voting. If the Conference of the Parties adopts a decision overriding that 48

See paragraph 3 of section IX ibid. See paragraph 4 of section IX, of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 50 From the date of receipt of the notification of the preliminary finding, see paragraph 7 of section IX, ibid. 51 See paragraphs 7, 8, 9, and 10 of section 9 of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 49

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Sabrina Urbinati of the enforcement branch, the matter is referred back to that branch.52 It is also interesting to note that the decision of the enforcement branch will stand pending the decision of the Conference of the Parties on appeal and ‘becomes definitive if, after 45 days, no appeal has been made against it’.53 However, judging from the description of the various powers of the Conference of the Parties and the Compliance Committee, it appears that the Conference of the Parties may have been edged out of its role as supreme body by the body responsible for implementing the non-compliance procedure. Combined with the impartiality and restricted membership of the Compliance Committee, this could lead to the creation of a two-headed institutional structure which, in the worst case, is not subject to any control. Unfortunately, as they stand, law and practice throw no light on this situation. It is already clear that the non-compliance procedure under the Kyoto Protocol is a very elaborate one. This could be due to the general development of the procedural structures of non-compliance systems or it might be a consequence of the specific characteristics of the Kyoto Protocol. There is something to be said for both these hypotheses. On the one hand, the negotiators of the mechanism may have been relying on it to solve the problems of non-compliance. On the other hand, it should be borne in mind that the Kyoto Protocol has not yet entered into force, and the adoption of a non-compliance procedure may well have been used as a means of convincing still hesitant States to accede. However, there is one criticism that can be levelled against the procedure. It is, indeed, a complicated one and this could work to the disadvantage of the poorest countries. In fact, it could result in the following paradox: the poorest countries need help but lack the means to request it. Unfortunately, this is nothing new. The same situation can be found even within the least elaborate of assistance procedures. Before proceeding to examine the consequences that the Compliance Committee can apply at the end of the non-compliance procedure, a final observation is called for. It concerns the similarities between the procedure adopted under the Kyoto Protocol and the dispute settlement system of the World Trade Organisation (WTO). Can the non-compliance procedure really be likened to the quasi-judicial system adopted by the World Trade Organization? It would seem not. In fact, the similarities between the noncompliance procedure and the dispute settlement system remain purely at the 52 53

See section XI, ibid. See paragraph 4 of section 11, ibid.

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Non-Compliance Procedure under the Kyoto Protocol procedural level. Unfortunately, space is lacking to develop this question further. 3.3. The Consequences Applied in Cases of Non-Compliance Having considered the alleged non-compliance situation, the relevant branch adopts a decision, which, if non-compliance has in fact been proved, provides for consequences. Sections XIV and XV of the Decision54 specify the various types of consequences. These can be divided into two main categories: on the one hand, those that provide for assistance and can be described as measures to facilitate implementation and, on the other, consequences that sanction the State Party found not to be in compliance. In fact, the Decision provides55 for the consequences to be adjusted to the degree of non-compliance. Thus, if the non-compliance is due to a lack of structural, financial or other resources, there is no point in imposing penalties. In this case, the appropriate response is to devise a plan for the provision of aid or assistance to enable the Party concerned to implement the terms of the Protocol more effectively. On the other hand, if a State Party has deliberately not complied, that is to say, has acted in bad faith, then the consequences may take the form of sanctions. Section XIV stipulates that the facilitative branch may confine itself to the ‘[p]rovision of advice and facilitation of assistance to individual Parties regarding the implementation of the Protocol’,56 but it may also provide: ‘(b) Facilitation of financial and technical assistance […], including technology transfer and capacity building from sources other than those established under the Convention and the Protocol for the developing countries; (c) [f]acilitation of financial and technical assistance, including technology transfer and capacity building, taking into account Article 4, paragraphs 3, 4 and 557, of the Convention; (d) [f]ormulation of recommendations to the Party

54

Cf. Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session. . ., FCCCP/CP/2001/13/Add.3, supra note 4. 55 See for example, section XV, paragraph 1, ibid., reads: ‘[T]aking into account the cause, type, degree and frequency of the non-compliance . . .’. 56 See subparagraph (a) of section XIV, ibid. 57 Paragraphs 3 to 5 of Article 4 concern the provision of financial resources by the developed country parties and other developed parties included in Annex II to help the developing countries comply with their obligations.

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Sabrina Urbinati concerned, taking into account Article 4, paragraph 758, of the Convention’.59

Likewise, section XV of the Decision describes the measures that can be adopted by the enforcement branch. Under this section, various consequences may be applied depending on the nature of the noncompliance. In the event of non-compliance with paragraph 1 or 2 of Article 5,60 or paragraph 1 or 4 of Article 7,61 of the Protocol, it is stipulated62 that: ‘1. Where the enforcement branch has determined that a Party is not in compliance with […], it shall apply the following consequences, taking into account the cause, type, degree and frequency of the non-compliance of that Party: (a) Declaration of non-compliance; (b) [d]evelopment of a plan in accordance with paragraphs 2 and 3 below. 2. The Party not in compliance under paragraph 1 above shall, within three months after the determination of non-compliance, or such longer period that the enforcement branch considers appropriate, submit to the enforcement branch for review and assessment a plan that includes: (a) An analysis of the causes of non-compliance of the Party; (b) [m]easures that the Party intends to implement in order to remedy the non-compliance; (c) [a] timetable for implementing 58

Paragraph 7 of Article 4 reads as follows: ‘The extent to which developing country Parties will effectively implement their commitments under the Convention will depend on the effective implementation by developed country Parties of their commitments under the Convention related to financial resources and transfer of technology and will take fully into account that economic and social development and poverty eradication are the first and overriding priorities of the developing country Parties.’ 59 Cf. section XIV of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session. . ., FCCCP/CP/2001/13/Add.3, supra note 4. 60 This article provides for each State Party to put in place a national system for the estimation of anthropogenic emissions. 61 This article concerns the supplementary information that the Parties included in Annex I to the Convention must incorporate in their annual inventories of anthropogenic emissions by sources and removal by sinks of greenhouse gases not controlled by the Montreal Protocol. 62 Cf. paragraphs 1, 2 and 3 of section XV of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session. . ., FCCCP/CP/2001/13/Add.3, supra note 4.

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Non-Compliance Procedure under the Kyoto Protocol such measures within a time frame not exceeding twelve months which enables the assessment of progress in the implementation. 3. The Party not in compliance under paragraph 1 above shall submit to the enforcement branch progress reports on the implementation of the plan on a regular basis’.

Where the enforcement branch has determined that a Party is not in compliance with Article 3, paragraph 1,63 of the Protocol, it may apply consequences such as: ‘(a) Deduction from the Party’s assigned amount for the second commitment period of a number of tonnes equal to 1.3 times the amount in tonnes of excess emissions; (b) [d]evelopment of a compliance action plan in accordance with paragraphs 6 and 7 below; and (c) [s]uspension of the eligibility to make transfers under Article 17 of the Protocol until the Party is reinstated in accordance with section X, paragraph 3 or paragraph 4.64’

The compliance action plan under subparagraph (b) must be drawn up by the non-complying Party within three months, unless it can be shown that the individual circumstances warrant a longer period. This plan must be submitted to the enforcement branch for review and assessment. The compliance action plan must include: ‘a) An analysis of the causes of the non-compliance of the Party; (b) [a]ction that the Party intends to implement in order to meet its quantified emission limitation or reduction commitment in the subsequent commitment period, giving priority to domestic policies and measures; (c) [a] timetable for implementing such action, which enables the assessment of annual progress in the implementation, within a time frame that does not exceed three years or up to the end of the subsequent commitment period, whichever occurs sooner. At the request of the Party, the enforcement branch may, where the circumstances of an 63

Namely, as explained in the same paragraph of the Decision, ‘[t]he emissions of a Party have exceeded its assigned amount, calculated pursuant to its quantified emission limitation or reduction commitment inscribed in Annex B to the Protocol and in accordance with the provisions of Article 3 of the Protocol as well as the modalities for the accounting of assigned amounts under Article 7, paragraph 4, of the Protocol, taking into account emission reduction units, certified emission reductions, assigned amount units and removal units the Party has acquired in accordance with section XIII . . . ’. 64 Namely, through the expedited procedures for the enforcement branch.

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Sabrina Urbinati individual case so warrant, extend the time for implementing such action for a period which shall not exceed the maximum period of three years mentioned above.’65

Moreover, there is provision for monitoring the progress made with the implementation of the compliance action plan. Thus, each year the Party not in compliance must submit a progress report on the implementation of the plan. On the other hand, where a non-compliance situation is found to result from a Party’s unwillingness to act, the procedure provides for the application of consequences in the form of a suspension of the rights, benefits and privileges granted under the Convention. Under the Kyoto Protocol procedure there are two cases in which privileges and benefits may be suspended. The first is where a Party included in Annex I fails to meet one or more eligibility requirements under Articles 6, 12 and 17 of the Protocol.66 The second is the case of non-compliance with commitments under Article 3, paragraph 1, of the Protocol, to which reference has already been made. It is impossible to ignore the fact that this measure is in the nature of a sanction. Moreover, the suspension of rights, privileges and benefits could be construed as contrary to the spirit of implementation since they are normally granted in order to help the recipient State Party to apply the provisions of the convention and thus comply with its commitments. Nevertheless, sanctions should also have an educational effect since they are intended to discourage the Parties from yielding to the temptation of noncompliance. Furthermore, as Professor Boisson de Chazournes points out, ‘there is the idea that a State Party cannot do without the benefits of international cooperation. Just as the advantages of cooperation induced it to become party to the Protocol, they should also lead it to comply with its commitments’.67 It is also useful to distinguish between the consequences 65

See paragraph 6 of section 15 of Decision 24/CP.7, in the Report of the Conference of the Parties on the work of its seventh session . . ., FCCCP/CP/2001/13/Add.3, supra note 4. 66 See paragraph 4 of section XV, ibid. 67 See L. Boisson de Chazournes, ‘La mise en oeuvre du droit international dans le domaine de la protection de l’environnement: Enjeux et défis’ (1995) Revue Générale de Droit International Public, pp. 66−67. Cf. the french version: ‘on trouve l’idée qu’un Etat partie ne pourrait pas se passer des bénéfices de la coopération internationale. Les avantages de celle-ci l’ayant incité à devenir partie au protocole, ils devraient également le conduire à respecter ses obligations.’

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Non-Compliance Procedure under the Kyoto Protocol described above and the sanctions of general international law. Whereas in the measures in question it is possible to discern the aim of restoring legality, they contain no hint of a compensation-seeking element.68 Another question, concerning the relationship between the suspension clause in the Decision and the suspension provisions of Article 60 of the Vienna Convention on the Law of Treaties, suggests itself, namely: why not simply rely on Article 60? Professor Koskenniemi69 offers a very interesting analysis of the possible relationship between suspension under the Kyoto Protocol procedure and under Article 60 of the Vienna Convention. Likewise, Madame Bannelier-Christakis very pertinently points out that: ‘[s]uspending the application of a convention in respect of a State not in compliance may not only prove contrary to the objective pursued, namely the protection of the environment, but may also turn out to be impracticable for conventions that contain nonreciprocal obligations’.70

On the other hand, the suspension of rights, privileges and benefits for which the Decision provides has its advantages. Firstly, not suspending the entire treaty in respect of a Party leaves it bound to continue fulfilling its other obligations. Secondly, a sanction such as that for which the Decision provides can be adapted according to whether the Party is a developing or a developed country. In other words, whereas the suspension of a financial benefit would be a severe blow to a developing country Party, the suspension of trade privileges should be particularly effective against a developed country.71

68

Ibid., pp. 52−62. M. Koskenniemi, ‘Breach of Treaty or Non-Compliance? Reflections on the Enforcement of the Montreal Protocol’ (1992) 3 Yearbook of International Environmental Law, pp. 123−162. 70 See K. Bannelier-Christakis, ‘Techniques de contrôle. Le système des rapports’, in L’effectivité du droit international de l’environnement. Contrôle de la mise en oeuvre des Conventions internationales, Paris, Economica, 1998, pp. 91−110. Cf. the French version: ‘[s]uspendre l’application d’une convention à l’égard de l’Etat défaillant peut non seulement se révéler contraire au but recherché, à savoir la protection de l’environnement, mais aussi se révéler à l’usage impraticable pour des conventions contenant des obligations qui n’ont pas un caractère réciproque’. 71 Ibid. 69

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Sabrina Urbinati 4. Conclusions After this attempt to describe, as faithfully as possible, the non-compliance procedure established under the Kyoto Protocol only one observation remains to be made. It concerns the similarities that can be discerned between the procedure in question and judicial systems, which appear to indicate an intention on the part of the negotiators to create such a mechanism. A similar observation was also made when pointing out the resemblance between the Kyoto Protocol procedure and the dispute settlement system of the WTO. Other similarities that might make it possible to approximate the Kyoto Protocol procedure to judicial proceedings include the right of a Party to submit a question to the Compliance Committee with respect to another Party, the application of consequences in situations of non-compliance, the fact that the Compliance Committee is composed of experts who serve in their individual capacities and the fact that a State Party is entitled to designate one or more persons to represent it before the Committee. Nevertheless, these similarities do not appear to be decisive or sufficient to justify the conclusion that the non-compliance procedure is essentially judicial. In fact, there are other elements that favour a comparison with mechanisms concerned with the provision of assistance. These include the standing of the active participants in general and the active status accorded to the Party not in compliance in particular, together with the types of consequences that the Compliance Committee can apply. As regards the standing of the active participants in non-compliance procedures, it does not seem possible, in this particular case, to identify a legal interest in bringing proceedings equivalent to that on which the bringing of an action before a judicial body is based. In principle, a person may bring an action before a court when he has an interest in doing so. Normally, leaving special cases aside, such an action would be based on the damage suffered by that person as a result of another person’s violation of the law. In the case of the active participants in non-compliance procedures, such as, for example, the Secretariat or the Party not in compliance, it is difficult to see how they could have a legal interest in bringing proceedings in such circumstances. In these procedures, standing is accorded to participants on the basis of a situation of non-compliance or non-conformity with the provisions of a convention. As noted in the introduction, in connection with the quotation from the address by Professor Brigitte Stern, it appears that a non-compliance situation may be deemed to be de facto a violation situation. Nevertheless, the semantic distinction made by the 250

Non-Compliance Procedure under the Kyoto Protocol negotiators of non-compliance procedures is evidence of their intention to treat a violation situation differently. Moreover, as regards the active status of the Party not in compliance, even though the Decision does not say so expressly, these provisions doubtless testify to the desire of the negotiators to enable the Party concerned, acting in good faith, to seek aid and assistance, not to ‘lay information’ against itself in the strict sense of the term. With regard to the types of consequences that the Compliance Committee can apply, it is worth noting the care with which the negotiators of the Kyoto Protocol procedure formulated the consequences applicable in non-compliance situations. They appear to have wanted to establish a genuine system for providing assistance. In fact, the relevant provisions of the Decision suggest that the facilitative branch and the enforcement branch could be described as bodies concerned with the provision of assistance for Parties experiencing difficulty in fulfilling their commitments. The most noteworthy example of this is the requirement for an action plan to remedy the non-compliance. Moreover, it appears that the consequences for which the Decision provides are also intended to educate the Party not in compliance. Thus, for example, through technology transfer, that Party is offered an opportunity to learn new techniques. Likewise, because the Party not in compliance is responsible for drawing up the action plan, it is given an initial opportunity to analyse the causes of non-compliance and to try to remedy them through the development of the plan itself. Moreover, the desire to solve the problem of non-compliance through cooperation with the Party not in compliance constitutes a clear and obvious distinction between the non-compliance procedures in question and the settlement of disputes. To conclude, from the various consequences applicable on completion of the non-compliance procedure it is clear that the purpose of the procedure is not to punish the guilty but to assist a Party in difficulty. This holds true not only for the developing but also for the developed countries, since even though the measure may seem more like a sanction, at its core it is always be possible to discern a spirit of education and cooperation.

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Mainstreaming Human Rights in the European Investment Bank* Laure Amoyel**

Contents 1. Introduction 1.1. The EIB as an Instrument of the Union 2. The European Investment Bank 2.1. Objectives and Mandate 2.2. Legal Personality and Structure 2.3. The Project Cycle and the Evaluation Process (1) The Project Cycle (2) The EIB’s Operations Evaluation Directorate and Ex-post Evaluations 3. The EIB and EU Institutions 3.1. The European Commission (1) Article 21 Procedure for Community Resource Loans 3.2. The European Council and the European Parliament (1) The European Council (2) ‘Strengthening the Dialogue with the European Parliament’1: A New Tradition 3.3. The EU Control Mechanisms 3.4. The European Court of Auditors 3.5. The European Ombudsman 3.6. The European Court of Justice 3.7. The European Anti-Fraud Office 4. In line with Union Policy? *

This article is made available by courtesy of the European Master’s Degree in Human Rights and Democratisation, as an excerpt of the thesis ‘Mainstreaming Human Rights in the European Investment Bank’ of Laure Amoyel published in E.MA Awarded Theses of the Academic Year 2001/2002, Marsilio Editori S.P.A., Venice, August 2003, pp. 93−168. ISBN 88-317-8293-2. ** M.A. in Modern History from University College, London, and recent graduate from the European Masters Programme in Human Rights and Democratisation. The article is based on the author’s Master Thesis defended in fulfilment of the requirements of the European Masters Degree in Human Rights and Democratisation. 1 P. Maystadt, European Parliament Debates, 5 February 2002.

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Laure Amoyel 4.1. The Environment: A Case Study of a Third Generation Right (1) The Latest Internal Reorganisation (2) Sustainable Development 4.2. The Development Strategy: The Potential for the Inclusion of a Human Rights Clause 5. Conclusion 1. Introduction ‘Social progress and development shall be founded on the respect for the dignity and value of the human person and shall ensure the promotion of human rights and social justice.’2 Hence begins the United Nations Declaration on Social Progress and Development, linking human rights with social and economic progress. The goals of the European Investment Bank (EIB) fit well with this association since its ultimate aim is to contribute to the ‘balanced and steady development of the common market in the interest of the Community’.3 Human rights would therefore have a place of their own in the mandate of the Bank; should the EIB decide to make such a choice. They nevertheless differ from other of the EIB’s objectives in that they do not refer to such direct material interests and are more difficult to quantify. In choosing to promote them, an international financial institution, like the EIB, has to face the difficult option of policies and priorities. The European Investment Bank is of particular interest because it habitually remains in the shadow of the European Union, the World Bank and the European Bank for Reconstruction and Development (EBRD). It continues to be unfamiliar despite the fact that its role is constantly expanding geographically but also content wise. EIB loans now cover novel areas such as health and education and are no longer restricted to the Member States. In fact, the EIB has substantially contributed towards building an increasingly integrated and interdependent Europe.4 It exercises significant influence in Europe, and, is today the world’s biggest lender with loans amounting to EUR 36.8 billion granted in the year 2001 and a balance sheet total of EUR 209 billion.5

2

Article 2, UN Declaration on Social Progress and Development, 1969. Article 267, Treaty establishing the European Community, 1957. 4 Sir Brian Unwin, ‘Preface’ (1998) 3 EIB Papers: International financial institutions in the 21st century, pp. 4−5. 5 EIB, The EIB Group in the Year 2001: Projects financed and statistics, Luxembourg, 2002. 3

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Mainstreaming Human Rights in the EIB Another original aspect in analysing the EIB’s approach to human rights, is that, it is often assumed that human rights are political concerns and therefore do not enter into the sphere of an international financial institution, like the EIB. However, human rights transcend all political and sector boundaries. Human rights go beyond geographical barriers. In order for the individual to be treated with dignity and equality, human rights must be mainstreamed into all activities related to the human being. The hypothesis that I have based this paper on is that the European Investment Bank may have certain consciousness as regards human rights and a right-based approach but these are solely taken into account on an ad hoc basis and, not in a coherent and comprehensive manner as in other institutions. There is no systematic inclusion of human rights and related issues into the lending policies or internal workings of the Bank. Thus, in order for human rights to be systematically included into the European Investment Bank, they have to be mainstreamed into all areas of its work. Human rights should not only be mainstreamed by States. Other international actors such as MNEs and international financial institutions may have a duty to contribute to the mainstreaming of human rights. Human rights are an integral part of the Bank’s work because of its dual nature as an international financial institution and as an instrument of the European Union (EU). Today, the EU is in the process of developing a coherent and comprehensive commitment to the promotion and respect of its human right triptych (human rights, democracy and the rule of law). It is within this commitment that it has elaborated its policy of mainstreaming and has started to put it into practice in a number of its policies. Nevertheless, it is important to note that not all of the Union’s institutions are mainstreaming human rights with the same vigour. The European Investment Bank, in particular, has faced a multitude of criticism from the European Parliament but also by a number of non-governmental organisations regarding its rather ambiguous and sometimes ambivalent attitude towards its general human rights approach and particularly, its environmental policy. Since the light was shed over the controversial internal malfunctioning of the ‘main’ institutions, namely the European Commission and the European Parliament, more attention has been conferred to grant the European Union as a whole more accountability and credibility. It has taken more than half a decade for the EIB to begin restructuring internally and externally. As an instrument of the EU, the EIB’s obligations and duties have to be analysed in the wider legal framework of the EU’s decision-making process. What is the mandate of the EIB in making decisions? How does it account to 255

Laure Amoyel the European Commission? How has it responded to the allegations made by the European Parliament? The EIB is not an initiator or generator of policy but rather executes that agreed upon by the European Commission, as has been the case in a number of framework agreements concluded between the Bank and the European Commission. In this respect, the EIB may not be the one to be pinpointed when criticising the EIB’s lack of inclusion of human rights or environmental concerns. Is it merely a non-political body and therefore cannot interfere or be held accountable for its project implementation? 1.1. The EIB as an Instrument of the Union This part begins by analysing, in the context of the European Union, the governance structure of the EIB, stressing the Bank’s special legal personality and highlighting the EIB’s autonomy from the governments that constitute it.6 The Bank’s lack of independence from the EU will also be emphasised. In the subsequent section, I shall evaluate the EIB’s relationship with other EU institutions. This analysis will be central to the comprehension of the close interconnection between the various EU bodies and the power they have to audit, control and influence the Bank’s loans externally. In the final section, I shall examine the EIB in the context of its activities within the Union and assess the degree to which it can mainstream human rights, based on the case study of its experience of inserting environmental considerations into its policy. 2. The European Investment Bank 2.1. Objectives and Mandate The Bank was created as a result of the Intergovernmental Conference of Messina, (1−2 June 1955) and the Spaak report (1956). These two concluded that the most adequate tool, to enable the Community to have the necessary resources to realise its project of increasing the Founding Six Members’ economic and social cohesion, was the creation of an autonomous structure which would be able to gain the confidence of the financial markets. Thus, the Bank was founded in 1958 on the basis of a Protocol attached to the

6

T. Gutner, Policy Process: Institutionalising Environmental Objectives, Banking on the Environment: Multilateral Development Banks and Their Environmental Performance in Central and Eastern Europe, Cambridge, MIT Press, 2002, p. 107.

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Mainstreaming Human Rights in the EIB Treaties of Rome in order to ‘contribute to the balanced and steady development of the common market in the interest of the Community’.7 The core objective of the EIB is to promote economic and social cohesion. Since its creation, the Bank fulfils this aim by focusing on the support of infrastructure projects. It does so by granting loans to individual companies, governments or other enterprise projects, which, in its view, will enhance the economic and social consistency of the European Union. Accordingly, the mission of the EIB can be linked to the International Covenant on Economic, Social and Cultural Rights since the ultimate goal of the EIB is indirectly the preservation of each individual’s economic and social development. Yet, there is a significant difference between directly promoting economic, social and cultural rights and contributing to them indirectly. In the case of the EIB, human rights appear to be an indirect goal and the human rights approach does not always seem to be at the forefront; although in most cases, EIB loans do ultimately benefit individuals’ dignity and equality. As an EU institution, the EIB is expected to continuously adapt its activities to the developments in the Union’s policies.8 It is, according to its statutes, required to respect a number of principles. These include the fact that it must ‘ensure that its funds are employed as rationally as possible in the interest of the Community’.9 In conjunction with the European Council,10 the EIB has nonetheless adapted its role by interpreting it in an extensive manner Article 267(b) and (c), extending its fields and regions of action in relation to the Union’s objectives.11

7

Article 267, Treaty establishing the European Community, 1957. European Parliament, Report on the EIB Annual Report for 2000, Committee on Economic and Financial Affairs, Rapporteur: Olle Schmidt, A5-0392/2001, 8 November 2001. 9 See Article 20.1, EIB Statutes. 10 One key European Council was in Edinburgh (1992). It invited the EIB to extend its field of action by increasing its participation in a project relating to the infrastructures of transport to 75% compared to the previous 50%. Another important European Council concerning the EIB, was that of Amsterdam (1997) which encouraged the EIB to invest in projects related to education, health and employment. 11 J.P. Minnaert, ‘La Banque Européenne d’Investissement’, in Philippe Léger (ed), Commentaire article par article des traités UE et CE, Brussels, Dalloz, 2000, p. 1793. 8

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Laure Amoyel The EIB is dynamic within the Union in providing financial assistance and expertise but is also increasingly active in working with non-EU Member States, particularly accession countries since 1989. The Bank’s added value is to further the Union’s development policy by providing technical and financial competence in partner countries. Nevertheless, as an instrument of the EU, the EIB is under the supervision of the Union’s executive power, the European Commission. It is the Commission that gives the Bank the ‘green light’ it needs to begin its operations in a given region. The EIB’s mandate to grant loans is restricted by the general political guidelines, which the Union has fixed. Hence, whilst considering the Bank in the context of the European Union, its instrumental role in implementing policy must be underlined. Unlike a number of other EEC funds, the European Investment Bank is not a ‘caisse’ wholly dependent on contributions from Member States. This distinction is important since the autonomy of the Bank rests partly on the fact that it has to provide most of its own funds.12 The EIB is a publicly run institution, to which Member States have committed their support, should it not be able to raise the money necessary on the capital markets.13 It is, above all, a policy-driven public bank comprising as its main mission the contribution to the attainment of the EU’s policy objectives.14 It is due to this dependency on the Union’s policy objectives that the role and the missions of the Bank have increased over the years. Hence, the Bank’s activities focus mainly on the European Union although this geographical scope is gradually changing to respond to the current trends within the EU’s policy objectives. The EIB has been granted a complex mandate as an instrument of the Union, and yet, remains relatively independent from its own shareholders, the Member States. 2.2. Legal Personality and Structure The EIB is according to most official EU documents, the Union’s financial institution. In its founding Statutes, the Bank was granted its own legal personality and financial autonomy. Although the EIB was created by the Treaty of Rome and appears to have been considered as a full entity of the Community, it was not included in the listing of Community institutions of 12

S. Lewenhak, The role of the European Investment Bank, London, Croom Helm, 1982, p. 3. 13 B. Laffan, The Finances of the European Union, London, Macmillan Press Limited, 1997, p. 219. 14 EIB, The EIB Group in the Year 2000, Luxembourg, 2001.

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Mainstreaming Human Rights in the EIB Article 9 of the Treaty. Instead, the Bank was categorised in a specific article (Article 4). The jurisprudence of the European Court of Justice (ECJ) has gradually led to defining the nature of the ‘special legal personality’ of the EIB. The ECJ recognised, in 1976,15 that the Bank assumed the character of a Community organ appointed with its own legal personality by the Treaty. The Court, then, further deepened the question of defining the status of the Bank by stating in 198816 that the originality of the Bank within the Community system lays in the fact that ‘the position of the Bank is ambivalent in so far as it is characterised by an independent management of its affairs, especially in the financial sector, on the one hand, and on the other hand, by a narrow link with the Community’s objectives’. The Court concluded that the legal personality and financial autonomy conceded to the EIB do not constitute a genuine sign of independence but rather have been granted to the Bank so that it can perform, in the best conditions, its banking activities.17 The EIB’s particular legal personality has been translated into the establishment of the Bank’s independent decision-making organs. The EIB’s Statutes provide for a Board of Governors (Article 9), a Board of Directors (Article 11), a Management Committee (Article 13) and an Audit Committee (Article 14).18 The structure of the Bank has made the separation of powers of the different decision-making organs very visible. The accentuated political role of the Board of Governors contrasts with the essentially operational and financial responsibilities granted to the Management Committee for instance.19 The responsibility to mainstream human rights within the Bank may therefore mainly lie with the Board of Governors since it is the latter which sets the political agenda. In addition to these decision-making bodies, the EIB is divided into a number of directorates. The structure is divided by country20 and also has a thematic, horizontal approach since the Projects Directorate covers the main 15

ECJ case, 110/75, Mills, 15 June 1976. ECJ case, 85/86, Commission v. EIB Board of Governors, 3 March 1988. 17 Minnaert, supra note 11, p. 1780. 18 Based on the Statutes of the EIB and Bankwatch’s annexes, http://www.bankwatch.org/ publications/studies/eib/eib2.html. 19 Minnaert, supra note 11, p. 1780. 20 There are approximately two bankers working on each country, see T. Gutner, Policy Process: Institutionalising Environmental Objectives . . . , p. 169. See supra note 6. 16

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Laure Amoyel sectors such infrastructure, energy or industry. There is however ‘no real research arm in the Bank’21 which would allow a horizontal and vertical reflection on the strategic nature of the policy and long-term objectives of the Bank. It would be in a unit such as the Project Directorates that the mainstreaming of human rights could be the most ideally tackled. In sum, the EIB’s main task is economic and social cohesion, which it carries out through financing projects. It has, nevertheless, begun to include a horizontal approach into its structural policy, but to this day, is still lacking a global strategic approach to encompass the entire range of issues affecting the Bank. This is particularly visible in the Bank’s approach to its project cycle and its evaluation procedure. 2.3. The Project Cycle and the Evaluation Process The project cycle and evaluation process are two important elements of the general structure of the EIB since it is thanks to them that the Bank’s work and its wider repercussions can be monitored and evaluated. The Bank does not design the projects it lends money to. In actual fact, the EIB’s projects are subject to the demand from promoters as well as the guidelines given by the European Union. The Bank, therefore, has a very limited scope in which it can select projects. Even though the EIB has been criticised for not ensuring a balance in its loans, much of the decision cannot be directly attributed to the Bank. Indeed, the EIB relies on the European Council and the Member States to receive its mandate and to know what are the regional and thematic priorities. Consequently, in many cases the Bank finances projects where the concept has already been developed. It is then more difficult for the EIB to insist on changes in the design of the project.22 (1) The Project Cycle Under these particularly constrained circumstances, the EIB elaborated its own very specific project cycle and evaluation process. It has been developed over the years primarily in response to the Bank’s needs, but also in answer to the general international concerns and to counter criticisms from non-governmental organisations and the European Parliament, in particular. Hence, in granting loans, the underlying issue for the EIB is not to determine what makes up sound development projects, but what constitutes 21 22

Ibid., p. 170. Ibid., p. 173.

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Mainstreaming Human Rights in the EIB good European Investment Bank, indeed, European Union interventions in favour of development23. The Bank evaluates such projects presented by the promoters through its internal appraisal procedure.24 Once a project has been approved by the EIB’s official procedure, a Project Team accompanies each assignment from its initial stages to its full application. It provides the technical expertise for a project and usually consists of three people, who each have their own skills in a particular field relevant to the project. It has been stressed on many occasions during this research that the Project Team is very much ‘aware’ of human rights and related issues, some having even received training on the social aspects. One example used to illustrate this is, that it is customary for the Project Team to take upon itself to meet with local non-governmental organisations and the other actors involved in the project. This consultation process is however not systematic and very much depends on the degree of sensitivity of the Project Team. The mainstreaming of human rights is dependent on the fact that these issues are not left to be included by the professionals on an ad hoc basis. The Project Team instead has to be trained to systematically integrate human rights concerns into the internal procedures of the Bank. A number of recent changes appear to confirm that the EIB is gradually evolving towards this methodical inclusion. Officially, the Bank assesses the viability of a project according to four guiding principles: economic, technical, environmental and financial. These are each conferred the same level of importance. In practice, however, also due to increasing public opinion pressure, an evaluation of the consensual feasibility is completed and taken into account before any type of financial and technical study of a project is launched.25 Thus, despite the seemingly very technical approach to a project, the social or indeed, the so-called ‘soft dimension’ is analysed and taken into consideration at the very beginning of a project in what would appear to be at present a very ad hoc manner. (2) The EIB’s Operations Evaluation Directorate and Ex-post Evaluations In recent years, the EIB has made a number of significant steps to ensure the long-standing effect of its projects. It started in 1995, by restructuring from within and creating an internal independent directorate for the ex-post evaluation of projects: the EIB’s Operations Evaluation Directorate (EV). 23

J. Baneth, ‘Selecting Development Projects for the World Bank’ (1996) 322 World Bank Discussion Papers, p. 59. 24 EIB, The Project Cycle at the European Investment Bank, Luxembourg, 2001. 25 Based on interviews with EIB Officials.

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Laure Amoyel Since then, the Directorate has been shaping its evaluation methodology based on the criteria developed by the experienced Evaluation Cooperation Group (ECG).26 This new procedure has been an important step considering the previously lacking long-term broad strategic appraisal of the Bank’s financing. Nevertheless, these reforms only mark the first step in the stages that shall be necessary for the Bank’s evaluation system to conform to the requirements established by international bodies or indeed, which are a requisite to gain a comprehensive and global understanding of the Bank’s work. This knowledge will be able to bring about more substantial changes as regards the mainstreaming of human rights. Until recently, the EIB has worked on mostly country or economic and technical evaluation reports. These include a concise analysis on the added value of the Bank in the project as well as a brief environmental assessment. Today, two kinds of reports may be distinguished: on the one hand, there are completion reports which are drawn up for each project and are exclusively for the Bank’s internal use. On the other hand, the EIB has introduced expost evaluations. These reports analyse the ‘impact, relevance and sustainability’27 of a project. However, there do not appear to be any clear guidelines as to what each assessment report should contain.28 Reports all include a vertical approach since they cover for example, the Bank’s contribution to regional development or the operations carried out by the EIB in four African, Caribbean and Pacific (ACP) countries. Nonetheless, a horizontal approach is gradually being built-into the evaluation process. The European Investment Bank is a very complex body, which is expected to conform to EU policy whilst functioning as a bank. It has begun to move in a very ad hoc manner towards the mainstreaming of human rights and has much potential to go further in this necessary direction. Having restructured its Projects Directorate to encompass a pluri-disciplinary approach, it is now able to further this horizontal approach by systematically

26

The ECG gathers the heads of Evaluation in the Multilateral Development Banks ‘in an effort to harmonise their methods and strengthen the use of evaluations towards improved effectiveness and accountability’. See EIB, Evaluation of the Risk capital operations carried out by the EIB in four ACP Countries, 1989-1999: A synthesis report, Luxembourg, 2000, p. 1. 27 Ibid. 28 This however may be changing in so far as the most recent assessment reports seem to contain a similar structure. A more accurate and clear approach in evaluation might, however, be necessary to ensure the effectiveness of these reports.

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Mainstreaming Human Rights in the EIB including human rights considerations into its policies, should it and the Union deem it crucial. 3. The EIB and EU Institutions In considering the European Investment Bank as an instrument of the European Union, it is important to comprehend the Bank’s relationship with the other European institutions. It will enable the evaluation of, on the one hand, the degree to which the EIB is the Union’s financial instrument and, on the other hand, its legitimacy and accountability to the EU’s policies in the field of human rights. The main question underlying this section is to whom, if at all, is the EIB accountable to? Alternatively, is the EIB no longer just an instrument of the Union but rather its equal ‘partner’?29 In the latter case, human rights considerations would be of the Bank’s sole resort. In the scrutiny of EU institutions, two different categories can be distinguished. There are first, the main actors, namely the Commission, the Parliament and the European Council. There are then, what can be considered as secondary institutions like the European Anti-Fraud Office (OLAF) and the European Court of Auditors. These were essentially created to control, monitor and respond to the growing criticism concerning the Union’s democratic deficit. 3.1. The European Commission In the past, the relationship between the Commission and the EIB was qualified as tense.30 This may have been due to the fact that the Commission’s relationship with the EIB was not considered as important as the EIB’s relationship with the Member States; the latter being the ones who provide the budget and those who are the ultimate decision-making body of the Bank. The EIB’s strained relationship with the Commission might also have been due to an internal rivalry between the various European institutions, where the Bank had difficulties in accepting the implications of its status as an instrument of the Union, including the Commission. In order to ensure the coherent functioning of EU institutions, the Bank’s founding statutes had, nevertheless, installed one system of consultation and control: the Article 21 procedure.

29 30

EIB, The EIB Group in the Year 2000, p. 32. Supra note 14. See European Parliament, Report on the EIB Annual Report for 2000, supra note

8.

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Laure Amoyel (1) Article 21 Procedure for Community Resource Loans Although the European Commission is not a direct shareholder in the EIB, it plays an active role in supervising the general policy of the Bank. The Commission’s representatives in the Board of Directors ‘actively take part in the discussions thereby seeking to ensure that the Bank retains its flexibility to cater for calls by the Parliament and/or the Council to contribute to specific policy actions or needs.’31 The general procedure, based on Article 21 of the EIB’s statutes, consists in the following for each of the Bank’s projects: once the project is finalised within the Bank,32 the EIB sends the project to the Directorate General of Economic and Financial Affairs of the Commission (DG ECFIN), which has a unit responsible for liasing and negotiating with the Bank. The DG ECFIN is then in charge of dispatching, without any selection whatsoever, the project to the Interservice EIB Group. This latter includes all of the Commission’s directorate generals in charge of political issues and those who may have an opinion on the particular project. Each Directorate General will then verify that the particular project respects the acquis communautaire in their particular area of expertise and whether it conforms to the EU’s policy objectives. The Article 21 procedure in theory provides for the Commission to entirely supervise the projects issued from the Union’s budget. Nevertheless, an important condition needs to be fulfilled to warrant the functioning of this entire cycle of accountability. This conditions lies in the fact that the information provided on a given project to each DG has to be complete. Each DG nevertheless has the possibility to ask the EIB through the DG ECFIN for more information should they believe it necessary. In order to avoid superfluous time-consuming procedures, this practice should be further revaluated. Even so, the Commission appears to be very much present in the evaluation of the EIB’s projects and the verification of the Bank’s activities with EU legislation. The Commission partly accounts for the Bank’s activities’ legitimacy and conformity to the acquis communautaire. Despite this original procedure to render the EIB’s activities more accountable to the Union’s objectives, the awkward relationship between the two bodies remained, possibly due to unresolved power struggles. Recently, however, much has been achieved to improve their relations. This has led to 31

Environment and the EIB: Answer to parliamentary written question to the Commission by Christopher Heaton-Harris, E-3488/01, 16 December 2001. 32 This Article 21 procedure takes place in parallel to the negotiations between the promoters of the project and the Bank’s specialised staff.

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Mainstreaming Human Rights in the EIB placing the enhanced cooperation with the Commission at the top of the Bank’s lending priorities for the 2001−2003 period.33 Increasingly, the EIB and the Commission co-finance and manage together the day-to-day running of projects. This may imply that the EIB has a growing role in the daily decision-making process. It could thus, play a more active role, in conjunction with the Commission, in incorporating a human rights dimension into the projects the EU finances. The Bank would then appear increasingly as an equal partner of the Commission. It may, on the other hand, imply that the EIB obtains its accountability through the Commission. Close working ties between the two institutions are crucial so as to make the policies of the Union, in which the Bank is also active, more coherent, effective and comprehensive. The EIB appears to have a dual relationship with the Commission: it is at times the instrument of the Union and consequently has to follow the recommendations of the Commission. At other times, it acts as a consultant34 or equal partner, in co-financing projects with the Commission, providing technical and financial expertise, in areas in which the Commission lacks the means to control the know-how. It might finally be suggested that the further elucidation of the Bank and Commission’s respective roles in this cooperation process might facilitate mainstreaming human rights within the EIB. This clarification process should also include the systematic use of the same rules and definitions of concepts when granting a loan or a grant. 3.2. The European Council and the European Parliament The Council and the Parliament are able to render the EIB accountable. They are both competent to make legal recommendations and amendments to lead the Bank’s mandate towards the direction that the Union wants it to take. (1) The European Council Since the creation of the EIB, the role of the European Council has been important in legislating on the target areas the Bank should concentrate on. It has emphasised regional development and highlighted the EIB’s role in the general infrastructure of the Union. In addition, it has also enabled the Bank’s activities to spread beyond the EU’s frontiers.

33

EIB, ‘The Corporate Operational Plan 2001−2003’, supra note 14, p. 7. The EIB has, for instance, provided consultancy services regarding water management.

34

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Laure Amoyel Lately, as an instrument of the Union, the EIB has made much progress to retort to the inadequacies and claims addressed by the European Council. Following the demands formulated by the Amsterdam Council Resolution On Growth and Employment in June 1997, the EIB attempted to respond to the governing bodies by creating its Amsterdam Special Action Programme (ASAP), which unequivocally contributes to economic growth and stimulates employment35, or more recently the Innovation 2000 Initiative (i2i), which, in line with the Lisbon European Council, focuses on investing and encouraging the transformation of the EU into an innovation-led and knowledge based society. Should the European Council deem mainstreaming human rights within the Bank appropriate, it has the potential to stipulate the inclusion of such considerations into the Bank’s activities. (2) ‘Strengthening the Dialogue with the European Parliament’36: A New Tradition The European Parliament is another body, which could demand the EIB to prioritise human rights concerns. As yet, it has decided to concentrate on environmental concerns but it seems that it considers first generation human rights as a next item to put on the Bank’s agenda.37 Since 2000, the President of the EIB reports directly to the European Parliament in a formal debate where Members of the European Parliament, the Commission and the EIB are present. This new tradition, indeed dialogue, creates a further area of democratic accountability for the EIB. It is in this novel framework, that the EIB is able to discuss its strategies and results with the Parliament. Although the Bank is under no legal obligation to respond to the Parliament’s recommendations, it has taken upon itself to ‘appear’ before the Parliament due to increasing democratic concerns.38 In fact, the European Parliament seems to have been one of the main catalysts of the EIB’s gradual integration of social, environmental or human right issues. Although the Parliament’s resolutions do not legally bind the Bank to act, the reputation risk that the EIB incurs is such that it can no longer ignore the European Parliament’s recommendations. 35

See Opinion of the Economic and Social Committee on the role of the European Investment Bank in the European regional policy, CES 1001/2000, 20 September 2000. 36 P. Maystadt, European Parliament Debates, 5 February 2002. 37 Based on an interview with European Parliament Officials. 38 See Philippe Maystadt’s speech in front of the European Parliament, supra note1.

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Mainstreaming Human Rights in the EIB Depending on the political determination of the European Parliament and the European Council, it is their tandem that will ultimately enable genuine changes to take place. 3.3. The EU Control Mechanisms The European Court of Auditors (ECA), the European Ombudsman, the European Court of Justice and finally the European Anti-Fraud Office (OLAF) have a very different relationship with the EIB, to that which the Bank entertains with the principle bodies of the Union. In fact, the Bank has a very different relationship with each of these four EU organs cited above. Still, it is the complementary work of these four institutions, which to a great extent has enabled the EIB to answer to its alleged lack of democratic control. 3.4. The European Court of Auditors39 The Bank’s relationship with the ECA is mainly governed by a Tripartite Agreement, to which the Commission is also a party.40 It was only with the Treaty of Amsterdam and the inclusion of article 24841 that the ECA was given more legitimate and direct access to the Bank. In so far as the ECA was now explicitly part of the Treaties, the EIB had no other option but to accept this fact. The ECA has no competence in auditing human rights related issues. In fact, according to the Tripartite Agreement, the Court has a very limited mandate to audit the Bank and this does not cover the financing covered by the Bank’s own resources. ECA staff interviewed claim that the permitted 39

Article 248 in Provisions relating to the European Investment Bank in the Treaty establishing the European Community, mainly regulates the legal power the ECA has as regards the EIB. 40 Although this Tripartite Agreement is a confidential and internal document, I was granted the privilege to consult it and am basing this section on the conclusions I can reach in the human rights field, whilst not revealing its entire content, as was agreed with the three parties involved. 41 Article 248 of the Treaty reads: ‘In respect of the European Investment Bank’s activity in managing Community expenditure and revenue, the Court’s rights of access to information held by the Bank shall be governed by an agreement between the Court, the Bank and the Commission. In the absence of an agreement, the Court shall nevertheless have access to information necessary for the audit of Community expenditure and revenue managed by the Bank.’

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Laure Amoyel audit on the Bank is so limited that it is not possible for the Court to judge the EIB as a whole. Although it is not their primary task, ECA officials regret that they are not able to comment or have an insight into the Bank’s general strategies regarding the environment or human rights. Although the ECA appears to have very little auditing power over the Bank, the fact that it is able to conduct audits on the EIB, grants credibility and respectability to the Bank. The ECA will also be an important factor in encouraging the Bank to further open and account for its policies thanks to the lobbying it has began with the European Parliament. 3.5. The European Ombudsman The mandate of the European Ombudsman in relation to the EIB has never been questioned.42 In fact, it has been taken for a fait accompli. His recommendations impact on the EIB’s internal policy-making. Although the Ombudsman’s decisions are legally binding, there are no lawful mechanisms to enforce his conclusions. Contrary to the ECA, the Ombudsman seems to be relatively satisfied with the responses the Bank gives. He tends to comprehend the EIB’s complex status and to grant it a genuine ‘margin of appreciation’ in his decisions43. This is important since the Ombudsman’s understanding differs from that the ECA has. Does the ruling of the ECA therefore have more legal and answerable value than that of the Ombudsman? The supervision of the Bank is ensured by the activities of the Ombudsman and the ECA, which have complementary, indeed, often conflicting approaches to the issues involved. The ECA ensures its proper financial management, whereas the Ombudsman gives credibility to the Bank’s dichotomous nature. 3.6. The European Court of Justice The European Court of Justice’s relationship with the European Investment Bank44 is again of a very different nature of the ones analysed previously. The ECJ has contributed to defining the genuine status of the Bank. One important judgement was that of the Commission against the Board of

42

According to EIB Officials, there has never been an internal study on the applicability of the European Ombudsman on the Bank. 43 Decision of the European Ombudsman on complaint 1338/98 ME v. EIB, 1998. 44 Articles 29 and 30 of the EIB’s Statutes regulate the European Court of Justice’s jurisdiction over it.

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Mainstreaming Human Rights in the EIB Governors45, which created a very essential jurisprudence for the EIB. In its ruling, the ECJ acknowledged that the Bank is part of the sphere of the Union and, in this respect, all European directives are applicable to the Bank except if they go against the very raison d’être of the Bank. A more recent judgement furthered this direction by stating that, in the field of personnel legislation, the EIB has its own rules but when the Bank does not have any specific internal rules, EU law then applies. The ECJ, like the European Ombudsman, appears not to deny the Bank’s particular legal personality. 3.7. The European Anti-Fraud Office46 In 1999, the EIB’s Management Committee and the, then, recently formed European Union Anti-Fraud Office (OLAF) began a new cooperation. The EIB’s relationship with OLAF is of symbolic importance. The Bank did not resist the cooperation with OLAF, despite the fact that it was under no legal obligation to conform to such an organ. Although OLAF’s mandate within the EIB has to be further investigated to distinguish its possible restrictions, this cooperation agreement has much potential in granting the Bank supplementary legitimacy as a European Union institution. Gradually, as the EIB is making efforts and is adopting a proactive attitude in confining to EU legislation, the auditing and legal bodies seem, in general, to be comforting the Bank in granting it a special margin of appreciation. Similarly, to the method applied by international institutions, a margin of appreciation is endowed to the EIB, since it is necessary to balance the Bank’s complex status in the relation to its overall aim of ensuring European economic and social cohesion. In addition, this margin of appreciation, which puts into perspective the work of the Bank in comparison to institutions who specifically work in the field of human rights, should also be granted to the EIB’s activities as a whole. It is essential to evaluate the rights of the individual and the community as well as the rights of the national or local population. Indeed, in building roads, bridges and other types of infrastructure, the Bank contributes in its own way and in accordance to its limited mandate to the increasing of the economic, social and cultural rights of individuals in having access to medical care, education, and employment. On the other hand, by building such new infrastructures, the EIB will cause the displacement of local populations. Thus, indirectly, it will violate individuals’ right to appropriate housing and property. The Bank’s right to a 45 46

ECJ case, 4/85, Commission v. Board of Governors, 1985. As yet, no report on the EIB seems to have been prepared.

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Laure Amoyel discretionary margin of appreciation, due to the apolitical nature of its work and mandate has been recognised as being a crucial point by the Ombudsman47 in evaluating the Bank’s possibilities to encourage the execution of a human rights-based approach. Although the EIB acts as an instrument of the Union, it has a special legal personality, which the Union cannot disavow. This in turn influences the way in which the Bank can apply European Union legislation. The EIB is becoming increasingly more accountable within the Union, thanks to its cooperation with the Commission, ECA, and OLAF. Despite the fact that the EIB acts and is treated as an instrument of the Union, the final responsibility lies within the Bank to make itself become more accountable, in concordance with one of its priorities, EU legislation. In this respect, human rights might be of the sole jurisdiction of the Bank. They appear to need specific in-house EIB policy so as to conform to the full dichotomous nature of the Bank as well as to EU guidelines. 4. In line with Union Policy? Much of the justification for the fact that the EIB does not initiate any policies in the field of human rights is that the Bank is a technical organ and that it should not enter into the political sphere. Nevertheless, there happens to be one very clear example in which the Bank has, on its personal initiative, established its own policies, independently from those promoted by the Commission: the environment. 4.1. The Environment: A Case Study of a Third Generation Right The EIB’s experience as regards the environment, a third generation right, ought to be deemed as a model in the study to mainstream human rights into the Bank. An in depth analysis will be necessary to see how environmental considerations have been gradually mainstreamed into the EIB. This example consists in a case study that may be applied to first, second and third generation rights. However, one reserve to keep in mind throughout this investigation is that unlike the environment where it is most of the time possible to measure the progress achieved, human rights considerations are much more intangible, and, in effect, more difficult to assess. The mainstreaming of the environment into the EIB was the result of an internal gradual and slow process. The Bank did not wait for instructions 47

Decision of the European Ombudsman on complaint, 1338/98 ME v. EIB, supra note 43.

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Mainstreaming Human Rights in the EIB from within the Union but began to draw its specific policy guidelines on its own initiative.48 The EIB did not patiently await the decisions of the Community and hesitate about the fact of making policy. It acted on its own, applying international standards and creating its own paradigm and criteria.49 In doing so, it made a ‘very practical contribution to the Union’s environmental policies’50 but also created a precedent for the mainstreaming of political ‘soft’ issues. The EIB’s commitment to the environment was then pursued in 1996, by creating the position of ‘Environmental Policy Coordinator’ within the Projects Directorate to help develop and ensure the implementation of the Bank’s broad environmental policy. The Bank’s most recent environmental statement dates from May 200151 and considers the Bank as playing a major role in implementing the European Union’s environmental policy. The EIB elaborated a ‘common environmental approach to all projects’ laying down the main criteria to be respected and finally, highlighted the close working relationship between the Bank and other institutions, namely the European Commission and the multilateral financial institutions. This statement is of symbolic importance as well as of practical significance, since today the EIB has a clear position on the environment. It enables both civil society and the European Parliament to base their evaluation and criticism on a constructive foundation as this stance is constantly being updated. At present, the protection of the environment within the Bank’s policies has in addition become a goal in itself in so far as the Bank taken upon it to finance purely environmental projects.52 48

See supra note 6, p. 167. Tamar Gutner argues that the EIB even had to struggle to institutionalise its environmental mandate because its shareholders do not have high expectations for the Bank’s activities in this field. 49 This is all the more surprising that the Bank’s staff have much less strong incentives to actively promote environmental issues than its international counterparts. For a more complete comparison, see ibid, p.166. 50 http://www.eib.org/about/obj/obj1h.htm. 51 A human rights statement is considered to be a necessary step to mainstream human rights into the EIB. Such a statement should, like the Bank’s one on sustainable development, reiterate the Union’s position on the matter and highlight the relevance with the EIB’s activities. 52 The degree of effectiveness of financing environmental projects as such has been raised by the Economic and Social Committee, although no genuine response has been as yet granted. See ‘Opinion of the Economic and Social Committee on the role of the EIB’, supra note 35.

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Laure Amoyel Consequently, today, the environmental impact assessment (EIA)53 is a sine qua non condition to ensure a project’s eligibility. This EIA includes the likely effects on the environment and mitigating measures.54 It is an integral part of the project cycle, which the project has to go through in order to be appraised and this is done in a methodical manner thanks to the intervention of the Bank’s environmental unit. In reality, the EIB is increasingly granting conditional loans regarding the environment. Indeed, in countries where no funding is available to make the EIA and on the condition that no major impact on the environment is to be anticipated, part of the loan is ceded in order to ensure the proper functioning of the evaluation process. The rest of the disbursement of the loan is made conditional on the full conduct and compliance of the results of the EIA. (1) The Latest Internal Reorganisation In 2001, the EIB created a fully-fledged unit (ENVU) 55 within its own Projects Directorate to reflect on the Bank’s strategies in the field of the environment, enabling the publication of clear environmental statements and guidelines on a variety of topics including sustainable development, climate change and the systematic evaluation of the impact of projects on the environment.56 (2) Sustainable Development Recently, ENVU started working on sustainable development, taking into account a form of social assessment. 57 The Social Assessment designed by ENVU includes the evaluation of group and individuals’ rights, poverty eradication, the rights of indigenous peoples, cultural heritage, occupational health and safety and discrimination. The unit has resolved to include this social assessment by assimilating it into 53

Here again, the EU has a directive on the strategic and environmental assessment. The EU directive will only come into effect in 2004, whereas the Bank’s EIA is already being applied. See Environment: public participation in plans and programmes, COM (2000)839, 2001. 54 See EIB, EIB Financing in the ACP: Supporting private enterprise and investment in developing economies, Luxembourg, 2002. 55 ENVU consists of 3 full time staff. 56 P. Maydstadt, European Parliament Debates, 14 February 2002. 57 Oral presentation given by Peter Carter at the Copenhagen NGO workshop, 28 June 2002.

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Mainstreaming Human Rights in the EIB the existing environmental and economic frameworks.58 Hence, ENVU mainstreams human rights related issues. Nevertheless, it should consider the inclusion of a human rights expert to analyse human rights-based issues in an experienced manner. This human rights banker could, on the basis of the example set forth by ENVU, write policy papers and add human rights content. The presence of a human rights expert will be the most adequate and credible way for the Bank to include the entire spectrum of human rights into its activities. This new provision would extend the Bank’s mainstreaming of human rights, including the environmental aspect in an independent and apolitical way, making the EIB answerable to human rights concerns in a systematic and coherent manner. One may therefore question, whether the Bank cannot, based on its experience and positive feedback in the field of the environment, establish and include in its projects a more conscientious and proactive human rights evaluation. The so-called ‘human aspects’ are already taken into account in most assignments through the Bank’s social assessment. However, the mainstreaming of human rights in the EIB would call for a more systematic inclusion of these considerations into the general objectives of the Bank and not rely on the subjective ‘humanism’ of project teams.59 The case of the environment has shown that the EIB is willing to include soft aspect considerations into its work. In this particular case, it has used the EU environmental standards as its minimal common denominator. 4.2. The Development Strategy: The Potential for the Inclusion of a Human Rights Clause The Bank plays an ever-increasing role in granting loans to third countries, which are beyond its original mandate. The question nevertheless remains: does the EIB have a development mandate?60 If so, what is its the content,

58

The fact that the Bank under the heading of environmental projects funds for instance the preservation of cultural heritage, has been contested by members of staff of the European Court of Auditors and poses the question as to whether the definition of environmental loans is not too broad and if so, if it does not risk to dilute the positive effects of including the environmental dimension. 59 One example provided was that of a lending project in Lebanon, where out of the own initiative of the EIB Lending team, the Bank took on itself to consult with the three main monotheist religions present in Lebanon, possibly against the will of the government in power. 60 CEE Bankwatch claims that the EIB does.

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Laure Amoyel particularly in respect to human rights, and is it coherent with the Commission’s policies in development cooperation? In order for the Union to pursue its development cooperation objectives, it has at least three different sources of finance at its disposal.61 These sources are the EU’s own budget, the European Development Fund and, thirdly, the European Investment Bank. It is in this respect, that the Bank plays a specific role in the development of the EU’s policies since it assists the Commission. Therefore, it would seem that the Bank has been granted a development mandate by the European Union. As a matter of fact, the share of EU aid managed by the EIB has increased from seven per cent, 30 years ago to seventeen per cent today.62 Nonetheless, the Bank does not have a clear development mandate except that it provides the Union with additional policy instruments for use in development cooperation and economic development outside the Union.63 The EIB grants loans in more than 120 countries, ‘within the framework of the external cooperation and development policies of the EU’.64 Despite the EIB’s growing responsibility,65 the Commission remains the body responsible for the monitoring and implementing of development aid policy and objectives.66 It has put to the forefront, the mainstreaming of human rights through its distinctive approach67 of including its triptych of human rights, rule of law and democracy. The EU’s policy is also based on a genuine dialogue, as opposed to a recipient donor relationship, particularly in agreements with the ACP states. In May 2000, the Commission adopted a communication setting out three areas in which the EU could play a more 61

H. Smith, European Union Foreign Policy: What it is and What it does, London, Pluto Press, 2002, p. 24. 62 Communication from the Commission to the Council and the European Parliament, The European Community’s Development Policy, COM(2000)212, 2000. 63 European Parliament, Report on the EIB Annual Report for 2000, supra note 14. 64 F. Palanza and J.P. de Jong, ‘The European Investment Bank and the Cotonou Investment Facility’, The Courrier ACP-EU, March−April 2002, pp. 32−33. 65 It should also be noted that the Bank’s added value in the Community’s development strategy is barely acknowledged nor mentioned in the Commission’s annual reports. Thus, there seems to be no systematic inclusion of the Bank in the European Union’s development policy but rather an ad hoc cooperation between the two institutions varying according to the will and demands of the Member States. 66 Smith, supra note 61, p. 173. 67 See C. Leben, ‘Is there a European Approach to Human Rights?’, in Philip Alston (ed.), The EU and Human Rights, Oxford, Oxford University Press, 1999.

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Mainstreaming Human Rights in the EIB effective role in pursuing the EU’s objectives in the field of human rights and democratisation. The first of which encouraged the consistency between the EU and European Commission policies, whilst according greater priority to these objectives in the EU’ s relations with third countries.68 This should therefore include the harmonisation between the policies of the EIB and the Commission. Part of this harmonisation process should start by establishing clear and tangible development guidelines for the EIB. In fact, as an instrument of the EU, the Bank needs a ‘more evolved policy when it comes to development issues’69 so as to grant coherence to the general European Union guidelines. In order for the EU to have a sound and comprehensive policy, the EIB should be systematically included into the general strategy of the Union. Indeed, the Union views financial assistance to third countries as one of the main components of the EU’s external action, alongside trade policy and political dialogue. It thus, conceives financial assistance, including the role played by the EIB, as an important tool ‘for promoting the fundamental values of the European Union and for meeting the global challenges of the 21st Century’.70 Hence, the Bank, as an EU institution, must also be entitled to require the same standards as the Commission does in its cooperation with third countries. These standards particularly include the conditionality on social aspects, which the Union has applied since 1995. Having created a precedent of mainstreaming the environment within the EIB’s lending procedures, the Bank should be strongly encouraged to adhere to a similar path by finding the internal means to amend to its lack of a human rights conditionality clause.71 The EIB has adopted a particularly proactive approach to environmental considerations with the inclusion of these aspects into the lending contract itself. The Bank has confirmed that it can include and negotiate a number of elements so that recipients take environmental considerations into account. The Bank is therefore open to important content modifications of its lending contracts so as to include ‘soft’ issues. 68

Ibid. J. Sjöstedt, European Parliament Debates, supra note 1. 70 European Commission, Annual Report on the Implementation of the European Commission’s External Assistance, Luxembourg, 2001. 71 The European Parliament also expects the EIB to impose a pseudo-human rights clause in certain specific cases. ‘Framework agreement between the EIB and the People’s Republic of China on investment funding’, written question by Wolfgang Kreissl-Dörfler (V) to the Commission, E-3590/95, 10 January 1996. 69

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Laure Amoyel In the field of human rights, the EIB is starting to put into place ad hoc measures so that the Bank is able to ask the recipient of a loan, who is benefiting from the excellent lending conditions the Bank provides that the interest rate subsidy is used for educational, social or gender issues. This is very much at the embryonic stage but the EIB should take advantage of this evolution to make these requirements systematic. Thanks to the Bank’s particular prompt adaptation to respond to the Union’s development demands and translate it into its internal decisions72, it is possible to foresee the creation of a task force to work on the conception of human rights conditional clauses to be included into the EIB lending contracts. As part of its initial mandate, this task force should tackle one of the main obstacles to the introduction of such a clause: the pressure under which the EIB is put by the Member States and the Commission to make loans and increase its lending capacity. Member States are gradually giving up their bilateral or multilateral cooperation and in replacement are encouraging or placing the Bank under pressure to substitute for their cooperation policies. As an instrument of the Union, the EIB is under the obligation to lend to targeted third countries with which the EU has signed political agreements, whatever their human rights situation may be. An integral part of the establishment of the EIB’s development strategy is the integration of a fully-fledged human rights clause, specific to its financing activities and coherent with the general policies, particularly in the field of human rights, pursued by the Union as a whole. Due to the complex nature of the Bank, it is not sufficient for the EIB to comply with the EU’s policy. Instead, it is more appropriate for it to adapt these policies according to its own priorities and activities. As an instrument of the EU, the Bank’s policies must be in line with the Union’s. More importantly however, the EIB needs to regularly update its internal guidelines so as to conform to the EU’s policies whilst maintaining its performance as a Bank. 5. Conclusion The EIB appears to be gradually becoming a partner in policy-making rather than an instrument of the Union. In the field of the environment, the Bank proved that it needed to review its own policies on an internal level and structure. The EIB is the only body that is competent to reassess its policies since it has the financial and technical knowledge as well as a broad 72

P. Tabary, La Banque européenne d’investissement: des prêts pour construire l’Europe, Paris, Notes et Etudes Documentaires, 1989, p. 99.

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Mainstreaming Human Rights in the EIB comprehension of the EU’s procedures and legislation. Although, the European Parliament has been able to provoke the Bank to react in the field of human rights, at present, it is up to the EIB’s internal decision-making bodies to seize the opportunity to reflect on how it can grant itself further legitimacy and accountability. As an instrument of the European Union, the Bank is challenged to concord to the Union’s basic standards. Based on the political will of the decision-making bodies of the Bank, the mainstreaming of human rights can be fulfilled in an appropriate manner and in concordance to the EIB’s own objectives and structural procedures.

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Practice of the Commissioner of the Council of the Baltic Sea States on Democratic Development H.E. Helle Degn*

Contents 1. 2. 3. 4. 5.

Introduction General Provisions of the Mandate of the CBSS Commissioner Obligations and Rights of the CBSS Commissioner The CBSS Commissioner’s Right to Receive Communications The CBSS Commissioner and other Institutions for Human Rights Protection 6. Special focus: Children in Prison 7. Concluding Remarks Annex: Commissioner of the Council of the Baltic Sea States on Democratic Development 1. Introduction The main task of the Commissioner is to promote and enhance democracy of the Council of the Baltic Sea States (CBSS) Member States. The Mandate of the Commissioner of the CBSS was adopted at the Ministerial Session of the CBSS in Bergen (Norway) on 21−22 June 2000. This survey intends to outline the role of the Commissioner of the CBSS as a particular democracy and human rights protection institution within the region. Thus, the survey will present the mandate, powers, tasks and purposes of the Commissioner of the CBSS, followed by examples of the Commissioner’s activities in 2002. The Council of the Baltic Sea States was set up on 5−6 March 1992 at the conference of Ministers for Foreign Affairs in Copenhagen (Denmark). The main objective of the CBSS proclaimed in its founding paper 1 Copenhagen Declaration is to strengthen existing co-operation among the Baltic Sea States and serve as an overall regional forum for intensified cooperation and coordination with emphasis on such focus areas as democratic *

Commissioner of the Council of the Baltic Sea States. 5−6 March 1992. The Copenhagen Declaration is available on the website of the CBSS http://www.cbss.st. 1

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H.E. Helle Degn institutions, economic and technological assistance, protection of the environment, development of infrastructure and trade as well as other key issues important for the political and economic stability and a regional identity around the Baltic Sea. The CBSS consists of 11 Member States (Denmark, Estonia, Finland, Germany, Iceland, Latvia, Lithuania, Norway, Poland, Russia, Sweden) and the European Commission. The Council meets every year on the level of Ministers of Foreign Affairs; in between the sessions of the Ministers the main working body is the Committee of Senior Officials, which meets regularly once every one to two months.2 The idea to establish the institution of the Commissioner for the Baltic Sea States arose at the same First Ministerial Session of the CBSS in Copenhagen (Denmark) on 5−6 March 1992. After careful scrutiny of all points of the issue by government representatives and experts from participating countries as well as from international organisations, the Council of the Baltic Sea States approved the mandate of the Commissioner of the Council of the Baltic Sea States on Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities at the Third Ministerial Session in Tallinn (Estonia) on 24−25 May 1994. The first Commissioner appointed was Mr. Ole Espersen3 (Denmark) for a term of three years after which the Council was to review the future need and functions of the Commissioner. Denmark accepted to host the Secretariat of the Commissioner with premises in Copenhagen. After evaluation of the situation in the Member States at the Sixth Ministerial Session in Riga (Latvia) on 2−3 July 1997, the Council prolonged the mandate of the Commissioner of the Council of the Baltic Sea States on Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities for another three-year term and re-appointed Mr. Ole Espersen in this position. Bearing in mind the necessity of strengthening democratic institutions and importance of human rights protection in the Baltic Sea Region, the Council adopted a revised mandate for the Commissioner for the period from 1 October to 30 September 2003 at the Ninth Ministerial Session in Bergen

2

For further information on the CBSS, see Mare Kukk ‘The Council of the Baltic Sea States’ (1993) 3 Helsinki Monitor, pp. 5−12. 3 Mr Ole Espersen is a Professor (International Law and Human Rights) at the University of Copenhagen and former Danish Minister of Justice.

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Practice of the CBSS Commissioner (Norway) on 21−22 June 2000. Ms. Helle Degn4 (Denmark) was appointed as the Commissioner of the Council of the Baltic Sea States on Democratic Development (the CBSS Commissioner) for this three-year period. 2. General Provisions of the Mandate of the CBSS Commissioner According to paragraph 1.1 of the revised mandate,5 the institution of the CBSS Commissioner is an instrument for promoting and consolidating democratic development in the CBSS Member States, based upon the respect for human rights. This declaration is cleared in the paragraph 1.3, according to which the CBSS Commissioner supports the functioning and development of democratic institutions, including human rights institutions, in the CBSS Member States, concentrating her efforts on such issues as democracy at national, regional and local level, good governance and administration, good law-making, local self-government, strengthening of the civil society and promotion of human rights, including the rights of persons belonging to minorities. The mandate of the CBSS Commissioner refers to the provisions and principles of the United Nations Charter, the Council of Europe and OSCE standards and other international standards relevant to democracy and human rights as well as relevant documents of the CBSS. Thus, the CBSS Commissioner is guided by these internationally recognised standards and instruments, but within the limits of these directions she uses her own discretion for determination of work methods. It can be communications with representatives of the Member States (from central and local public authorities), undertaking official visits, keeping correspondence, collecting information, contacts with non-governmental bodies, groups and individuals. It must be underlined that incorporation of the notion ‘international standards relevant for democracy and human rights’ (and not only reference to legally binding conventions) in the mandate text allows to attain a higher level of human rights protection and democratic institutions functioning than the degree foreseen in legally binding international instruments. Such propitious prerequisites as comparatively limited size of the region, shared interests of the Member States in other areas of co-operation makes it easier 4

Ms. Helle Degn is the former President of OSCE Parliamentary Assembly, former Danish Minister of Development Co-operation and a former Member of the Danish Parliament (Folketinget). 5 The mandate of the CBSS Commissioner is annexed.

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H.E. Helle Degn to achieve aims proclaimed in the mandate of the CBSS Commissioner and corresponding CBSS documents. The CBSS Commissioner is obliged by the mandate to seek co-operation with national and international organisations dealing with democratic development and protection of human rights. The mandate makes a reference to such international institutions as the United Nations institutions on human rights, the Council of Europe, the OSCE and other relevant international organisations and non-governmental institutions (Paragraph 1.9.). The mandate also imposes upon the CBSS Commissioner the duty of seeking to establish and maintain co-operation with national organisations relevant to her mandate, in particular with the national Ombudsmen, Chancellors of Justice and non-governmental organisations as well (Paragraph 1.8.). Since the post of the Commissioner is an institution founded by the CBSS, she is accountable to the Council (Paragraph 1.1.). 3. Obligations and Rights of the CBSS Commissioner The mandate of the CBSS Commissioner is the exclusive source of the Commissioner’s obligations and rights. There is no possibility for the CBSS Commissioner to enjoy other rights than those indicated in the mandate or fulfil duties, which are not described in it. According to the mandate, the CBSS Commissioner has the following obligations: -

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the obligation to study issues relevant to her mandate (Paragraph 1.7); the obligation to provide the Council with advise on issues relevant to her mandate (Paragraph 1.7); the obligation to monitor the implementation of the Council’s decisions (Paragraph 5.2); the obligation to report to the Council: on issues relevant to her mandate (Paragraph 1.7); after termination of the involvement of the CBSS Commissioner in a particular issue on the findings, results and conclusions (Paragraph 5.1); prior to the annual Ministerial Session of the CBSS about her activities for the previous year in an Annual Report (Paragraph 5.3); before the conclusion of the term of office in form of a Final Report (Paragraph 5.6);

Practice of the CBSS Commissioner -

the obligation to present to the Committee of the Senior Officials a programme of planned seminars and meetings in the beginning of each activity year (Paragraph 1.5).

The word-combination ‘issues relevant to his/her mandate’ is widely used in the text of this document. It seems essential to clarify the meaning of this phrase and to understand what in fact implied with this set of expression. As was mentioned above, efforts of the CBSS Commissioner are concentrated on democracy at national, regional and local level, good governance and administration, good law-making, local self government, strengthening of civil society and promotion of human rights, including the rights of persons belonging to minorities. The CBSS Commissioner in her first annual report presented at the Tenth Ministerial Session of the CBSS in Hamburg (Germany)6 has identified specific focus areas from the provisions of the mandate, which are of interest to several (or all) Member States of the CBSS, they are: -

democratic culture and good governance; organised crime; trafficking in human beings; border crossing; national minorities.

The mandate confers the CBSS Commissioner certain rights to ensure her duties’ execution: -

the right to recommend/organise seminars and meetings (Paragraph 1.4); the right to collect the information (Paragraph 3.1); the right to undertake visits to the Member States (Paragraph 4.1); the right to undertake relevant actions when appropriate (Paragraph 1.7); the right to publish her annual report (Paragraphs 5.4, 5.5); the right to receive communications (Paragraph 1.6) - this right is examined below in the paragraph ‘5. The CBSS Commissioner’s Right to Receive Communications’.

There is no specific reference to the CBSS Commissioner’s right to initiate surveys on issues relevant to her mandate. According to the mandate, one of 6

The two first annual reports of CBSS Commissioner Ms. Helle Degn are available on the website of the CBSS Commissioner http://www.cbss-commissioner.org.

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H.E. Helle Degn the CBSS Commissioner’s duties is studying issues, which are of relevance to the mandate. The mandate leaves the CBSS Commissioner a wide discretion to choose ways for carrying-out of this duty. The choice of subjects of the surveys prepared is called forth by the appraisement of the current situation formed after official visits to the member states, meetings with the government representatives as well as contacts with nongovernmental organisations and individuals. All the surveys are composed in a way that all the Member States are included. Usually the surveys give an account of current international standards and binding instruments in the area of investigation at first. Then the analysis of the existing situation is brought forward, which is followed by the recommendations for its improvement. The CBSS Commissioner submits the surveys to the Council of the Baltic Sea States and considers accomplishment of the recommendations with the Member States.7 4. The CBSS Commissioner’s Right to Receive Communications The right to receive individual communications is a special feature of the CBSS Commissioner provided by the mandate, which should ensure the CBSS Commissioner opportunity to follow the situation as concerns the observance of human rights in the CBSS Member States. It has to be underlined that as a rule, the CBSS Commissioner does not consider a communication, if it is pending before a court of a Member State or before an ombudsman or similar institution of a Member State at the same time. A person may communicate with the Commissioner after having used all opportunities for legal remedy granted by national legislation. The paragraph 1.6 of the mandate stipulates: ‘The Commissioner may receive communications from individuals, groups and organisations regarding functioning of democratic institutions and human rights issues’. This means that every physical or legal person whose country of residence is one of the CBSS Member States has the right to lodge a communication to the CBSS Commissioner – if a person alleges that a human rights violation or infringement of democratic institutions’ functioning has taken place. The mandate does not contain specific linguistic or procedural provisions with regard to communications. A person may write his/her communication in any language of the CBSS Member States. There is also no formal communication’s form. A complaint should include the following 7

The surveys undertaken by the CBSS Commissioner and her predecessor are available on the CBSS Commissioner’s website http://www.cbss-commissioner.org.

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Practice of the CBSS Commissioner information that will facilitate the CBSS Commissioner’s work with the complaint: -

name and address of the person who files the complaint; name of an institution which the person wants to complain against; short description of problems and events the person wants to complain about; reason for the person’s complaint; copies of official documents relevant to the person’s complaint; reference number or file number with authorities in a country, which the person files the complaint against.

The CBSS Commissioner reviews received communications strictly confidentially. Assumption of confidentiality does not imply anonymity – the CBSS Commissioner does not examine anonymous communications. The person also may request that he/she will remain anonymous with the authorities in his/her residence country. It is specially mentioned in the mandate that the CBSS Member States guarantee individuals and organisations possibility to file a communication with the CBSS Commissioner without being persecuted by the public authorities (Paragraph 3.2) and undertake not to prevent individuals and organisations on their territory from communicating with the CBSS Commissioner (Paragraph 3.3.). The CBSS Commissioner informs the complainant whether she could deal with a received communication. If the CBSS Commissioner is not sure that a case described in a communication falls within the scope of her mandate and therefore would like to be capable of estimating the situation entirely, she may ask the person to provide additional information concerning his/her complaint. The normal action taken by the CBSS Commissioner after examination of the complaint is to contact public authorities in a country of a person’s residence (most often this is done through the Ministry of Foreign Affairs) and to ask for information or comments about the case. Before taking any action the CBSS Commissioner consults with the complainant about his/her agreement in this connection. If the CBSS Commissioner concludes that a violation of human rights conventions of the United Nations, the OSCE, the Council of Europe or other internationally accepted human rights instruments have taken place, she makes recommendations to a public authorities of a Member State to remedy the situation or suggest, how to avoid similar situations in the future. 285

H.E. Helle Degn The complainant is informed by the CBSS Commissioner about results of her inquires of a case. The mandate gives the CBSS Commissioner the right to report to the Council about received communications. The Council, in its turn, may decide to publish the full text of the CBSS Commissioner’s report or part of it. If the CBSS Commissioner draws a conclusion about the necessity of technical assistance to a Member State on the basis of these communications, she may propose certain measures to assist Member States to reach the desired goals. As of 1 September 2002, 36 new complaints had been received by the Commissioner’s office within the present mandate period. Of these, eight had already been closed (solved) and six had been rejected. 46 pending cases had already been handed over from the predecessor and seven of those where still pending, leaving a total of 24 complaints awaiting final resolution at that point. Communications received by the CBSS Commissioner so far have focused on such issues as inadequate or outdated legislation, the right to a fair trail, implementation of decisions by courts, minority rights (especially citizenship issues and the right to use a minority language), freedom of speech and expression, freedom of religion, residence permits, social security and bureaucratic and slow procedures of State structures. The number of received complaints has fallen during the last two years, which inter alia is due to increasingly well functioning ombudsman institutions in the CBSS Member States. In addition, the nature of received complaints has changed from primarily human rights violations to a mix of human rights violations and socio economical welfare-related complaints. 5. The CBSS Commissioner and other Institutions for Human Rights Protection There are six institutions dealing with human rights protection in the CBSS area (listed in order of their establishing): 1. The European Court for Human Rights (its competence covers 43 Member States of the Council of Europe); 2. The UN Committee on the Elimination of Racial Discrimination (its competence covers 185 Member States of the UN); 3. The UN Human Rights Committee (its competence covers 185 Member States of the UN);

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Practice of the CBSS Commissioner 4. The OSCE High Commissioner on National Minorities (the Commissioner’s competence covers 55 Member States of the OSCE); 5. The CBSS Commissioner on Democratic Development (the Commissioner’s competence covers 11 member states of the CBSS); 6. The Council of Europe Commissioner for Human Rights (the Commissioner’s competence covers 43 Member States of the Council of Europe).8 After a thorough analysis of documents authorizing the above listed institutions to protect and to promote human rights in the CBSS area9 a number of conclusions can be made. The main task of all the institutions examined is to protect and to promote human rights. They are independent and act impartially when fulfilling this task. As a general rule, most of the institutions have competence in dealing with standards deriving from the organisation to which the institution belongs. Contrary to this, CBSS Commissioner is given a broader mandate, as she follows human rights standards of the UN, the Council of Europe and the OSCE – both legally binding and legally non-binding standards (it should be mentioned that the CBSS have not elaborated human rights standards by itself). Four institutions from the six listed above have the right to receive communications (complaints) from physical and legal persons, they are, besides the and the CBSS Commissioner on Democratic Development the

8

The author has not examined activities of the UN Committee against Torture and the European Parliament’s Ombudsman. The UN Committee exclusively deals with questions relating to torture and other cruel, inhuman or degrading treatment or punishment. The competence area of the European Ombudsman is issues concerning mal-administration in activities of the European Community institutions (except the European Court of Justice and the Court of the First Instance), which besides does not cover the whole CBSS area. 9 The documents, which regulate activities of these institutions, are: 1950 Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms; 1965 UN Convention on the Elimination of all Forms of Racial Discrimination; 1966 UN International Covenant on Civil and Political Rights, 1966 UN Optional Protocol to the International Covenant on Civil and Political Rights; 1992 Mandate of the OSCE High Commissioner on National Minorities; 2000 Mandate of the CBSS Commissioner on Democratic Development; 1999 Council of Europe Resolution 99 (50) On the Council of Europe Commissioner for Human Rights.

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H.E. Helle Degn European Court of Human Rights, the UN Committee on the Elimination of Racial Discrimination and the UN Committee on Human Rights. In this context, it should be mentioned that the OSCE High Commissioner on National Minorities is an institution exclusively dealing with national minority issues. As is stated in the mandate of the CBSS Commissioner, she exercises her mandate in a manner to avoid duplication with other activities within the field of her mandate (Paragraph 1.10). The mandate also foresees such a duty of the CBSS Commissioner as co-operation and coordination of her activities with international organisations dealing with democratic institutions and human rights protection, in particular with human rights bodies of the Council of Europe, OSCE and UN (Paragraph 1.9). In order to minimise the risk of unconstructive duplication of activities, the mandate induces more intensive, exchange of information between these human rights protection bodies (Paragraph 1.9). The CBSS Commissioner is called upon to serve as the centre for exchange of information on international and national programmes aimed at strengthening democratic institutions, available technical assistance and expertise in the CBSS Member States (Paragraph 1.3). Nevertheless, sometimes, duplication of activities and simultaneous concentrated efforts of several institutions are more effective means to guarantee international standards observance when human rights protection is the goal. In any case sharing information is crucial and of high value and so, the role of the CBSS Commissioner cannot be underestimated. 6. Special focus: Children in Prison One of the Commissioner’s priority areas has been the protection of the rights of children. Already in 1997 the Commissioner’s predecessor published the survey on ‘The implementation of the UN Convention on the Rights of the Child in CBSS Member States with regard to specific articles’, which served as the starting point for consideration of further activities within this area.10 Several CBSS Member States have recently been facing a growing rate of crimes committed by youth. Protecting the rights of children in this context deserves special attention, because children, even if criminal actors, should be given special attention and care as they form a group especially vulnerable to abuse, victimization and violations against their rights. 10

Supra, note 7.

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Practice of the CBSS Commissioner As continuation of the Commissioner’s previous work and in response to the growing concerns of NGOs dealing with the protection of children in the Baltic Sea area, the Commissioner researched the question of protecting of the rights of children deprived of their liberty. All CBSS Member States have recognised the main principles and provisions to protect the rights of detained children, especially such international standards as the UN Convention of the Rights of the Child (CRC), the UN Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines), the UN Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules), and the UN Rules for the Protection of Juveniles Deprived of their Liberty. However, the Commissioner found that professionals carrying out the CRC and other standards into national laws point to the lack of uniform definitions and methodology for the implementation of the standards. It also became apparent that the CRC was in certain cases interpreted differently in different Member States. Therefore, the Commissioner recognised the need for an open discussion and exchange of experiences between professionals on the practical level, which would be of great use when coping with the described difficulties. Another important question was, of course, how to keep the rights- prescribed by various international standards − in practise. In many countries the conditions in the closed institutions are unbelievably bad: prisons are overcrowded, young prisoners are kept together with adults, they do not enjoy the rights to adequate education, vocational training, recreation or nursing, their pre-trial detention often exceeds any reasonable time limit, they are not seeing their relatives as often as they are entitled to – just to mention a few things which we should not, but in fact still see in our region.11 Based on these considerations, the Commissioner decided to organise a round table meeting ‘Children in Prison’ on the protection of the rights of the children deprived of their liberty. The Ministry of Foreign Affairs of Finland kindly hosted the meeting, which was held on 11−12 September 2002 in Helsinki.

11

In September 2002, the CBSS Commissioner launched a project on ‘Pre-trial Detention in the Baltic Sea Area’. In this connection a working paper was prepared to reveal the practice of pre-trial detention in the area. Parts of this working paper is available at the Commissioner’s web-site www.cbss-commissioner.org, which provides detailed information on juveniles in pre-trial detention facilities. Based on this working paper, a survey will be published in May 2003.

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H.E. Helle Degn The meeting consisted of three thematic sections: firstly, legal implementation of international standards for the protection of the rights of children deprived of their liberty, including such concerns as transfer of rules from conventions to national legislation, the importance of good lawmaking, considerations to be taken to ensure the implementation of rules, the practises and experiences in different countries; secondly, practical implementation of these international standards, including how to ensure knowledge of conventions and other documents among people working with children and responsible for it, what impact do they have on a child, how to ensure that the standards are implemented and not only remain on paper; and thirdly, the role of relevant NGOs in the process of protecting the children who have been placed into the closed institutions, including making use of the NGOs in ensuring the monitoring of implementation of the international standards for the protection of these children. The meeting brought together 34 experts and practitioners representing the CBSS Member States; countries were represented by one representative from the relevant ministry, one from the prison administration and one from an NGO dealing with children’s and/or prisoners’ rights. The key-note speech was presented by the Member of the Council of Europe Committee of Experts on New Ways of Dealing with Juvenile Delinquency and the Role of Juvenile Justice – Dr. Peter van der Laan from the Netherlands Institute for the Study of Crime and Law Enforcement, who spoke on the topic ‘Instruments for the Protection of the Rights of Children Deprived of their Liberty’. The round table discussions provided a forum for exchange of experiences, ideas and creation of professional co-operation and networks. The aim of the meeting was at the end of the thought-provoking presentations and constructive discussions to come up with a number of recommendations from the experts and professionals to the Governments of the CBSS Member States on how to best protect the children placed into closed institutions, which the Commissioner forwarded to all the Governments of the CBSS Member States and encouraged to give them serious consideration. These recommendations included: -

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Guarantee the timely response of society to crimes committed by juveniles. Ensure coordinated and appropriate action by multiagency and interdisciplinary approach to youth crime and strengthen especially the co-operation between prison authorities and social authorities.

Practice of the CBSS Commissioner To be successfully solved, the problems of children in prisons need the cooperation of all institutions and organisations: governmental, intergovernmental and non-governmental. The close involvement of prison and social authorities should help to prevent imprisonment. And if there has been no other option than prison, social authorities play the key role in creating the supportive environment for the reintegration of a prisoner into the society by providing necessary programmes, counselling and places to turn to. -

Increase work of social authorities during probation and reintegration into society to guarantee that these children are not returned to their previous environment without anything being done to their benefit.

This is to further stress in importance of involving the social authorities – as key players – into the process. -

Give special emphasis to the implementation of specific non-institutional interventions (victim/offender mediation, ‘youth contract schemes’, MST (Multisystemic therapy), ‘efforts against street gangs’) – prison should only be the last resort.

The round table meeting stressed that the placement of a juvenile into prison should always be a disposition of last resort and for the minimum necessary period of time. The strictly punitive approaches simply do not work. There can be numerous alternatives to the closed institutions, which should be made a better use of. -

Prevent institutional abuse of children by regulations on the rights of children in institutions and effective monitoring.

Whereas the importance of putting down regulations for the protection of children is hardly underestimated, it is equally important that the work does not stop there, but effective implementation and monitoring are in place as well. -

Enhance further the international co-operation and exchange of experience.

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H.E. Helle Degn It is important to learn from the experiences of other countries and to cooperate, especially on the regional basis, because the problems as well as the solutions to them are becoming increasingly cross-border and international. -

Give special attention to juveniles during pre-trial detention and apply at least the same principles and measures for protection of children and safeguarding their rights in pre-trial detention as after conviction.

In a number of CBSS Member States, the pre-trial detention of juveniles lasts for many months, even years, which is far beyond reasonable time limits and sometimes, as pointed out by the EU progress reports, even though initial progress has been made, the length of pre-trial detention for juveniles is still not always in conformity with international standards. Apart from length, there is a need to further improve prison conditions, especially with regard to overcrowding and health and sanitary conditions, but also finding the meaningful engagement of the detained children. -

Prioritise the protection of the health of institutionalised children (especially with regard to tuberculosis, hepatitis, HIV); Encourage setting up the office of Children’s Ombudsman in Member States where it has not been established so far; Enhance transparency by giving relevant and well-known NGOs possibility to monitor institutions where juvenile delinquents are placed, including prison guards, police authorities and social care, and carefully consider their comments and findings. The NGOs should publicise their findings.

In a democratic society one tool of many possibilities and great perspective would be to involve the relevant NGOs to the process of monitoring the protection of the rights of children deprived of their liberty. The NGOs could especially enhance transparency when given the possibility to monitor the closed institutions where youngsters are placed. Of course, these should be well-established relevant NGOs, which would be under obligation to publicise their findings. -

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Encourage NGOs to operate youth centres and give counselling (including legal counselling) to help reintegration and rehabilitation of youngsters from institutions into society.

Practice of the CBSS Commissioner More often than not, re-socialisation inside the prisons does not take place as planned and as the result of this the prisons are said to produce the real criminals. One way to avoid this is to guarantee to all young detainees the adequate rehabilitation and re-socialisation programmes, which could be run by the NGOs with or instead of prison institutions. -

Encourage NGOs to lobby lawmakers for appropriate legislation concerning children deprived of their liberty; Encourage NGOs and the press to raise public awareness about the issues concerning juvenile delinquents.

The NGOs also need to carry on other important aspects of their activities − lobbing for the appropriate legislation and raising public awareness, also in the field of children’s rights issues, including the rights of children deprived of their liberty. On 12 September 2002, the participants of the ‘Children in Prison’ round table meeting had the opportunity to pay a visit to one of the Finnish juvenile institutions − the Kerava Prison, where a comprehensive tour was hosted by the Governor of the Kerava Juvenile Prison. 7. Concluding Remarks Apparently, two aspects secure the particular position of the CBSS Commissioner among other human rights protection bodies of the Baltic Sea region: one of them is the specific nature of its ‘Mother Organisation’ the CBSS and the second – the substance of the mandate of the CBSS Commissioner itself. As previously mentioned, the CBSS is an intergovernmental organisation aimed at intensifying co-operation and coordination of activities on issues of great importance for all the actors in the Baltic Sea area. This strongly pronounced regional nature of the CBSS is conducive to high flexibility of the institution of the CBSS Commissioner. The high level of flexibility is ensured by two principal factors: the relatively small number of CBSS members (the CBSS consists, as already mentioned, of 11 Member States and the European Commission), and the intensity of the work of the CBSS (the Council meets annually on the level of Ministers of Foreign Affairs; the main working body of the CBSS – the Committee of Senior Officials – meets regularly once or twice a month). Presumably, the 11 Member States of the CBSS do not face significant difficulties on the way of reaching an agreement and taking substantive 293

H.E. Helle Degn decisions on the basis of consensus. The organisational structure of the CBSS favours quick reactions of this intergovernmental body towards changes in political and economic environment and urgent necessities of the region. The striking example of such flexibility may be the mandate of the CBSS Commissioner itself. After realizing the need of general democratic development of the Baltic Sea region without concentrating particular attention on separate issues as rights of persons belonging to minorities by the heads of the Member States, the mandate of the Commissioner of the Council of the Baltic Sea States on Democratic Institutions and Human Rights, including the Rights of Persons belonging to Minorities was revised and the Council adopted the renewed mandate of the Commissioner of the Council of the Baltic Sea States on Democratic Development. The special feature, which makes the institution of the CBSS Commissioner different from other human rights organisations of the region, is its aim to promote and consolidate democratic development in the Member States, based upon respect of human rights. It means that the CBSS Commissioner deals not only with human rights protection issues. The CBSS Commissioner seeks to guarantee developing and functioning of such a political system where every inhabitant within the region could rely on democracy at national, regional and local level, the rule of law, good governance, good law-making, local self-government. Obviously, these conceptions are not a part of a catalogue of human rights, though they are a constituent part of the system based upon democratic principles, in which all human beings should live in a democratic society and have the right to count on respect of the notions mentioned above. That is the reason why other human rights organisations do not concentrate their attention on these issues, which are of particular interest in terms of creating a genuine democratic community in the Baltic Sea area. As the CBSS Commissioner deals not only with human rights, but also with the political framework, which contributes to developments of human rights, and acts in the margins of the specific region, it might be considered as a unique institution for human rights protection.

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Annex COMMISSIONER OF THE COUNCIL OF THE BALTIC SEA STATES ON DEMOCRATIC DEVELOPMENT 1. MANDATE 1.1. The Commissioner is an instrument for promoting and consolidating democratic development in the Member States, based upon respect of human rights. The Commissioner acts independently and is accountable to the Council. 1.2. The Commissioner is guided by the aims, principles and provisions of the UN Charter, the Council of Europe and OSCE standards, as well as other international standards relevant for democracy and human rights, and by relevant documents of the CBSS. 1.3. The Commissioner supports the functioning and development of democratic institutions, including human rights institutions, in the Member States, in particular concentrating his/her efforts on such issues as democracy at national, regional and local level, good governance and administration, good law-making, local self-government, strengthening of civil society and promotion of human rights, including the rights of persons belonging to minorities. 1.4. The Commissioner may recommend/organise seminars and meetings on subjects comprising his/her Mandate, serves as a centre for exchange of information on available technical assistance and expertise, national and international programmes aimed at strengthening democratic institutions in the CBSS Member States. 1.5. In the beginning of each activity year, the Commissioner presents to the CSO a programme of planned seminars and meetings. 1.6. The Commissioner may receive communications from individuals, groups and organisations regarding functioning of democratic institutions and human rights issues. These communications are reviewed by the Commissioner confidentially. On these communications the Commissioner may report to the Council confidentially. The Council may, however, decide to publish the full report or parts of it. If the communications indicate the 295

H.E. Helle Degn need for technical assistance, the Commissioner may propose concrete measures to assist CBSS Member States to such effect. 1.7. In addition to direct support to the Member States, the Commissioner studies and reports to the Council on issues relevant to his/her Mandate, provides the Council with advice on these issues and follows up when appropriate. 1.8. The Commissioner seeks to establish and maintain co-operation with national institutions relevant to his/her Mandate, in particular with national Ombudsmen, Chancellors of Justice, as well as non-governmental organisations. 1.9. The Commissioner seeks to co-operate and co-ordinate his/her activities with the Council of Europe, OSCE, UN institutions on human rights, as well as other relevant international institutions. The Commissioner draws upon the facilities of these institutions, as appropriate, in particular to enhance information exchange. The Commissioner also seeks to establish and maintain co-operation with international non-governmental organisations. 1.10. The Commissioner exercises his/her mandate in a manner to avoid duplication with other activities within the field of his/her Mandate. 2. APPOINTMENT AND SUPPORT 2.1. The Commissioner shall be an eminent international personality from whom impartial performance of the function is expected. 2.2. The Commissioner is appointed by the Council of the Baltic Sea States upon recommendation of the CSO for a term of three years, before the expiry of which the Council reviews the future need and functions of the Commissioner. The same person shall henceforth be appointed to the office of the CBSS Commissioner for no more than two consecutive terms. 2.3. Financing of the Commissioner's activities shall be carried out from the special Commissioner Fund, which the Member States shall contribute to in accordance with an established scale of distribution. The fiscal year of the Commissioner starts on 1st January and ends on 31st December.

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Practice of the CBSS Commissioner 3. SOURCES OF INFORMATION 3.1. The Commissioner has the right to collect the information he/she requires. 3.2. Member States of the CBSS undertake not to persecute individuals and/or organisations for providing information to the Commissioner, and shall also provide the Commissioner with information upon his/her request. 3.3. Member States of the CBSS shall not prevent persons and organisations on their territory from communicating with the Commissioner. 4. CONDITIONS FOR TRAVEL BY THE COMMISSIONER 4.1. The Commissioner has the right to undertake visits to the CBSS Member States. 4.2. Prior to an intended visit, the Commissioner shall inform the State concerned about the purpose of the visit. Within two weeks, the State concerned shall consult the Commissioner on the objectives of the visit, which may comprise the promotion of dialogue, confidence and cooperation. During the visit, the State concerned shall allow the Commissioner to travel and communicate freely. 4.3. During such visits the Commissioner is entitled to receive confidentially from every individual, group or organisation directly concerned, information on matters pertaining to his/her mandate. 4.4. Upon completion of a visit, the Commissioner shall issue a short account of his/her findings to the Member State concerned. 5. ACCOUNTABILITY 5.1. After termination of the involvement of the Commissioner in a particular issue, the Commissioner reports to the Council on the findings, results and conclusions. 5.2. The Commissioner monitors the implementation of the Council's decisions in areas covered by his/her Mandate.

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H.E. Helle Degn 5.3. The Commissioner shall prior to the annual Ministerial Session of the CBSS present the Council an activity report for the previous year. 5.4. The Commissioner may make his/her annual report public after it has been presented to the Council at the annual Ministerial Session of the CBSS, unless the Council decides otherwise. 5.5. The Commissioner may decide to make his/her reports to the Council available to the public no sooner than one month after the report has been presented to the Council or the CSO, unless there is a consensus against publication. The Commissioner shall notify the Council or the CSO in writing of his/her intention to release the report no later than one month before publication. 5.6. The Commissioner shall conclude his/her term of office by providing the Council with a final report on matters related to his/her mandate.

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Elements of Practices of the Baltic States in International Law: 2002 Lithuania Michail Cvelich* Contents 1. Cases in the European Court of Human Rights 1.1. Decisions on Admissibility (1) Jasiūnienė v. Lithuania (2) Siaurusevičius v. Lithuania (3) Meilius v. Lithuania (4) Karalevičius v. Lithuania 1.2. Judgments on Merits (1) Stašaitis v. Lithuania (2) Butkevičius v. Lithuania (3) Sipavičius v. Lithuania (4) Puzinas v. Lithuania (5) Birutis and Others v. Lithuania 2.Implementation of the Judgments of the European Court of Human Rights 2.1. Daktaras v. Lithuania 2.2. Birutis and Others v. Lithuania 2.3. Butkevičius v. Lithuania 3.Practice of Domestic Courts 3.1. Application of the Convention on Carriage of Goods by Roads (1) Parties to the Contract (2) The Form of the Contract (3) The Form and Contents of the Consignment Note (4) Rights and Duties of the Parties (5) The Grounds for the Carrier’s Liability (6) Carrier’s Relief of Liability 3.2. State Immunity Cases 3.3. Human Rights (1) The Right to Strike (2) Irreproachable Character of Assistant to the Attorney-at-law *

Attachè, Law and International Treaties Department, Ministry of Foreign Affairs, Lithuania.

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Michail Cvelich (3) Best Interests of the Child (a) Šeškas v. Lengvelienė and Lengvelis (b) J. Barinova v. I. Bobrovskaja and others 1. Cases in the European Court of Human Rights 1.1. Decisions on Admissibility During 2002, the European Court of Human Rights (hereinafter referred as the European Court or the Court) delivered judgments on the merits in five cases initiated by Lithuanian nationals. By 5 November 2002, there were 380 applications registered, nine applications were being examined on admissibility and four applications were proclaimed admissible. The latter category comprises the following cases. (1) Jasiūnienė v. Lithuania Jasiūnienė v. Lithuania (application No. 41510/98) raised questions of (i) protection of property rights – Article 1 of Protocol No. 1 to the European Convention on Human Rights – here related to the restitution of expropriated property, and (ii) failure to execute a court judgment – Articles 6(1) and 13 of the Convention. Under the Restitution of Property Act municipal authorities have restored the applicant’s and her sister’s property rights in regard to their deceased mother’s land, expropriated during Soviet occupation. The relevant ordinance did not however specify either the form of applicable restitution (land or monetary compensation), or the amount of it, and thus was not (and, as the domestic court later found could not be) properly implemented. Furthermore there was no progress achieved following the court decision, revising and ordering the correction of the aforementioned drawbacks of the ordinance. In the course of events the applicant had declined several offers made by local authorities for alternative parcels of land, stating that the location of proposed plots was inconvenient and the value was not equivalent to the plot she was entitled to and thus alleging her rights being discriminated. (2) Siaurusevičius v. Lithuania Siaurusevičius v. Lithuania (application No. 50551/99), where the applicant’s separate cassation appeal in criminal case was disallowed by the Supreme Court as being ‘repetitive’, for it did not differ in the subject-matter from that lodged earlier by his co-defendants and already examined. In the 300

State Practice − Lithuania applicant’s view the Supreme Court acted arbitrarily in that it had examined the cassation appeal of his co-defendants before the expiry of the time limit prescribed by domestic law for submission of cassation appeals thus denying the applicant’s access to justice, consequently violating his rights under Article 6 of the Convention. (3) Meilius v. Lithuania In Meilius v. Lithuania (application No. 53254/99), the applicant complained under Article 6(1) of the Convention of the excessive length of criminal proceedings, which began in November 1994, and by 30 May 2002 (the date of adoption of admissibility decision), have not been concluded (in fact on 15 October 1998 the applicant was convicted by a domestic court but the conviction was subsequently quashed by the cassation court and the investigation was renewed). (4) Karalevičius v. Lithuania The applicant’s complaints in Karalevičius v. Lithuania (application No. 53254/99) were based on and declared admissible under Article 3 (as regards the conditions of applicant’s pre-trial detention on remand), Article 5 (the lawfulness of certain periods of detention) and Article 8 (censorship of applicant’s correspondence with the European Commission of Human Rights and the Court). 1.2. Judgments on Merits In cases where judgments on the merits were delivered, questions of the violation of a right to a fair trial, the right to respect for private life, and rights to liberty and security, were raised. The Court addressed the issues of alleged deprivation of defence rights in criminal proceedings, the lawfulness and the possibility of contesting of detention on remand, the breach of presumption of innocence, the censorship of correspondence of inmates, and the use of anonymous witnesses in criminal procedure. Violations of Articles 5, 6 and 8 of the Convention were ascertained. (1) Stašaitis v. Lithuania In Stašaitis v. Lithuania (application No. 47679/99),1 the applicant was held in custody from 1 November 1994 to 8 February 2000 in the course of 1

Judgment 21 March 2002, final judgment 21 June 2002.

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Michail Cvelich criminal proceedings against him with no final judgment being delivered at first instance (conviction by first instance court of 15 October 1998 was quashed by the Supreme Court returning the case for re-examination). Besides finding the whole length of detention excessive under Article 5(3) (the total length of detention since the entry into force of the Convention with regard to Lithuania – 20 June 1995 – amounted to 3 years, 8 months and 3 days, while the actual detention commenced 7 months and 19 days prior to that date), the Court considered certain periods of it as unlawful (not being authorised by an appropriate domestic court order or justified by other ‘lawful’ basis) and thus contrary to Convention Article 5(1). (2) Butkevičius v. Lithuania The same conclusion as to the lawfulness of detention was made in Butkevičius v. Lithuania (application No. 48297/99).2 Recalling Jėčius v. Lithuania (application No. 34578/97), the Court held inter alia that: ‘access [by the applicant] to the case-file … or the sole fact that the case had been transmitted to the court did not constitute a “lawful” basis for detention on remand within the meaning of Article 5 § 1 of the Convention, and … could not prolong or replace the valid detention order required by domestic law.’

The arguments of the Government justifying the length of detention as to the reasonable suspicion of committed crime, the danger of the person arrested and the complexity of the proceedings were equally dismissed. The Court noted respectively that: ‘persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices; …the danger of [applicant’s] absconding and obstructing the investigation and the strength of the evidence against him in the case-file, may have initially justified his detention;… in 1997 and 1998… this ground had already become less convincing, given that the applicant had spend almost four years in detention on remand before his conviction was pronounced; …the complexity of the proceedings cannot, as such, justify the very long period of… remand in custody, in view of the numerous procedural irregularities in the domestic courts’ handling of [the applicant’s] detention matters …

2

Judgment 26 March 2002.

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State Practice − Lithuania and the lack of “relevant and sufficient” reasons given when authorising his remand in custody…’.

Regarding the applicant’s claim of the alleged violation of Article 5(4) insofar as the provision of the Code of Criminal Procedure of the Republic of Lithuania, valid in the respective time period, prohibited the appeal against the court decision ordering, varying or revoking a remand measure, the Court cited its former judgment in Jėčius v. Lithuania. It was reiterated that the mentioned Convention provision ‘guarantees no right, as such, to an appeal against decisions ordering or extending detention, but the intervention of a judicial organ at least at one instance must comply with the guarantees of Article 5(4)’. Given that domestic courts, in their decisions gave no reply to [applicant’s] numerous complaints about the unlawfulness of his detention in view of the statutory bar, the Court ascertained that there was no adequate judicial response to the applicant’s complaints, contrary to what is required by Article 5(4). The same conclusion was reached in Butkevičius v. Lithuania. The case of Butkevičius v. Lithuania (application No. 48297/99) is famous for its political background as the applicant, Mr. Audrius Butkevičius, was an outstanding political figure; one of the signatories of Lithuania’s Independence act of 11 March 1990, the first Lithuanian minister of defence after the restoration of independence, the Lithuanian State agent in negotiations with Russia on withdrawal of the latter’s army and the signatory of the respective agreement, and the member of Seimas (Parliament) from 1996 to 2000. On 12 August 1997, the applicant was apprehended in a hotel lobby by the security intelligence and the prosecuting authorities while accepting an envelope containing USD 15,000. On 14 October 1997, having obtained the prior permission of the Parliament to institute the criminal proceedings against the applicant, the latter was charged with attempting to obtain property by deception. On 28 October 1997, with another prior permission of the Parliament, the applicant was detained on remand. On 18 November 1998 he was found guilty of attempting to obtain property by deception and sentenced to five years and six months imprisonment and fined LTL 50,000, and half of his property was confiscated. On 20 March 2000, the applicant was released on licence. The applicant based his claims to the European Court inter alia on the violation of Article 5(1) (as to the lawfulness of certain periods of detention) and 5(4) (as to inability to appeal against the detention order). The relevant Court findings were similar to those of Stašaitis v. Lithuania (see above). Another allegation, which is worth separate examination, was that of the 303

Michail Cvelich violation of the presumption of innocence protected by Article 6(2) of the Convention. In the period from middle August 1997 to October 1998, i.e. while both pre-trial investigation and trial were still proceeding, several articles appeared in popular national papers quoting the Prosecutor General as being convinced of the applicant’s guilt and the Chairman of the Seimas accusing the applicant of accepting a bribe. Taking into consideration the certain similarity of the present case with Daktaras v. Lithuania (application No. 42095/98), the Court recalled its statements made in the latter.3 It was once again reiterated that whether a statement of a public official is in breach of the presumption of innocence must be determined in the context of the particular circumstances in which the impugned statement was made. As regarded the present case it was first of all noted, that though it differed from that of Daktaras in that ‘the impugned statements were made by the Prosecutor General and the Chairman of the Seimas in a context independent of the criminal proceedings themselves, i.e. by way of an interview to the national press’, and the fact that the applicant was an important political figure required State officials to keep the public informed of the alleged offence and the ensuing criminal proceedings, it could not ‘justify any use of words’ chosen by them. The aggravating circumstance was held to be the fact that the statements at issue, with some exception, were made just a few days following the applicant’s arrest. Nevertheless as regarded the statements of the Prosecutor General (first, the confirmation that ‘he had enough sound evidence of the guilt of A. Butkevičius’, second that he qualified the offence ‘as an attempt to cheat’) the Court held that they may be interpreted as a mere assertion by the latter that there was sufficient evidence to support a finding of guilt by a court and, thus, to justify the application to the Seimas for permission to bring criminal proceedings. In contrary, the Court viewed the statements made by the Chairman of the 3

For the sake of clarity it worth reminding that in Daktaras, the conducting prosecutor dismissed the applicant’s arguments as to the validity of the charges against him pointing out that his guilt had been proven by the evidence collected in the course of pre-trial investigation. The Court then noticed that: ‘the impugned statements were made by a prosecutor not in a context independent of the criminal proceedings themselves, … but in the course of a reasoned decision at a preliminary stage of those proceedings…’. It was nevertheless considered that, having regard to the context in which the word ‘proved’ (guilt had been) was used, both the applicant and the prosecutor were referring not to the question whether the applicant’s guilt had been established by the evidence, but to the question whether the case-file disclosed sufficient evidence of the applicant’s guilt to justify proceedings to trial. Consequently no violation of presumption of innocence was found.

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State Practice − Lithuania Seimas (that he entertained no doubt that the applicant had accepted a bribe, that he had taken money ‘while promising criminal services’, and that he was a ‘bribe-taker’) amounted to a breach of Article 6(2) of the Convention. It was particularly noted that the impugned remarks, as made by a public official of a highest rank, could have served firstly to lift the applicant’s parliamentary immunity from criminal proceedings, and secondly to encourage the public to believe he was guilty and prejudged the assessment of the facts by the competent judicial authority. (3) Sipavičius v. Lithuania In Sipavičius v. Lithuania (application No. 49093/99),4 the European Court had to evaluate the compatibility of the replacement of the original charge with another though less severe one during the trial, with the provisions of Article 6 of the Convention in question. The applicant, a police officer, suspected of involvement in a conspiracy to smuggling was initially charged with obtaining property by deception and abuse of office. Nevertheless in its judgment, pronounced some time after the trial hearing, the court of first instance, without giving a clear prior notice to the defendant, had reclassified the alleged offence and convicted the applicant of official negligence, which was a less serious crime with less severe punishment. In the applicant’s view such court’s behaviour was contrary to Article 6 of the Convention as it had prevented him from exercising his defence rights properly, rendering the criminal proceedings unfair. The European Court stated that despite the fact that until the conviction in the first instance the applicant was indeed not aware of possible reclassification of the offence, which certainly impaired his ability to defend himself in respect of the charge, he was entitled to contest his conviction in respect of all relevant legal and factual aspects before the appellate court, which had the full power to quash the conviction and acquit the applicant. Moreover, as the Court underlined, the case was further reviewed at the level of cassation jurisdiction by the Supreme Court, which also examined the substantive and procedural elements of the reclassification, and was competent to afford the applicant the relief he sought. The fact that at both appeal and cassation levels the applicant’s pleadings against reclassification were unsuccessful did not, according to the Court, indicate that the review procedures were not capable of remedying the shortcomings of the first

4

Judgment 21 February 2002.

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Michail Cvelich instance proceedings. Hence, no violation whatsoever of the Article 6 right was found. (4) Puzinas v. Lithuania In Puzinas v. Lithuania (application No. 44800/98),5 the Court, having referred to the earlier examined case of Valašinas v. Lithuania (application No. 44558/98), had ascertained an obvious violation of Article 8 of the Convention as regarded the censorship of an inmate’s correspondence by prison administration. Despite having admitted the existence of the apparent legal basis for such acts (Article 41 of the Prison Code permitted the censorship of correspondence of convicted persons), and after acknowledging that the acts pursued the legitimate aim of ‘the prevention of disorder or crime’, the Court, upon the failure by the Government to submit any reasons in the case, found no necessity for such interference in a democratic society. Thus the prison administration’s acts in Court’s opinion did not meet all the necessary criteria, revealed by the Court in Valašinas v. Lithuania, to be regarded as compatible with Article 8(2) of the Convention. (5) Birutis and Others v. Lithuania In Birutis and Others v. Lithuania (application No. 47698/99) the applicants, Kęstutis Birutis, Vidmantas Byla and Laimonas Janutėnas, all three Lithuanian nationals, while completing their sentences, were accused and convicted of causing and taking part in a riot together with eighteen other detainees. In establishing the guilt of Birutis and Byla, the court referred inter alia to the statements by numerous anonymous witnesses who were mostly other detainees. As to the grounds for Janutėnas guilt, the court based its conclusions solely on the statements of six anonymous witnesses. All statements had been recorded by the prosecution during the pre-trial investigation. Both the Court of Appeal and the Supreme Court rejected the applicants’ appeals. Pursuant to Article 156-1(1) of the Code of Criminal Procedure of Lithuania, in cases pertaining to serious offences a prosecutor or investigator is entitled to keep the identity of a witness secret with a view to ensuring that person’s safety. Under paragraph 2 of this Article, at the stage of pre-trial investigation no one is entitled to have access to the personal details of the anonymous witness except the prosecutor or the investigator. Paragraph 3 provides that any data on the anonymous witness are a State secret. Only 5

Judgment 14 March 2002.

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State Practice − Lithuania prosecutors, investigators and judges are entitled to have access to the personal details of that person. Pursuant to Article 317-1(1) of the Code, which was in force at the time of conviction, where the identity of a witness is secret, a court could dispense with hearing that person by reading out the anonymous statement at a trial hearing. Paragraphs 2 and 3 provided a possibility for the court, of its own motion, to question the anonymous witness in the absence of the parties. Paragraph 4 of the Article stated that the court may also question the witness in the parties’ presence at a non-public hearing. In such a case, the court must create acoustic and visual obstacles to prevent the parties from establishing the identity of the secret witness. On 19 September 2000, the Constitutional Court held that Article 317-1 of the Code of Criminal Procedure, to the extent that it did not guarantee the right of the defendant to question anonymous witnesses while preserving the secrecy of their identity, unjustifiably limited the defendant’s defence rights in breach of Article 31 of the Constitution. The European Court held that in the present case, it has not been alleged that any use of anonymous evidence must be excluded. Given the nature of the offence alleged against the applicants, i.e. a prison riot, the authorities were justified in protecting anonymous witnesses, which were possibly the applicants’ co-detainees. It was stated however, that this circumstance, as such, could not justify any choice of means by the authorities in handling the anonymous evidence. The Court observed that the third applicant, Janutėnas, was convicted solely on the basis of anonymous evidence and consequently his defence rights and right to a fair trial have been violated in this respect. The Court considered that the first and second applicants’ convictions were not based solely, or to a decisive extent, on the anonymous evidence. However it underlined that despite the allegations that the credibility of the anonymous evidence was open to question, the first and the second applicants or their representatives were not enabled to question the anonymous witnesses. In fact, the statements in question, as recorded by the investigating authorities, were read before the trial court. The trial court then referred to the anonymous statements as the basis for convicting the first and the second applicants. In European Court’s view in such circumstances, the handicaps on the first and the second applicants’ defence rights were not counterbalanced by the procedures followed by the domestic judicial authorities. The courts’ failure to question anonymous witnesses, and to conduct a scrutiny of the manner and circumstances in which the anonymous statements had been obtained, was unacceptable from the point of view of 307

Michail Cvelich the first and the second applicants’ defence rights and their right to a fair trial. Accordingly a violation of Article 6 (1) and 6(3)(d) of the Convention was acknowledged. 2. Implementation of the Judgments of the European Court of Human Rights 2.1. Daktaras v. Lithuania On 29 January 2002, the Criminal Division Board of the Supreme Court of Lithuania (the Supreme Court or the Court) examined the appeal of Henrikas Daktaras (case No. 2H-4) to renew the court proceedings against him pursuant to Article 482 of the Code of Criminal Procedure6 (CCP), which states as follows: ‘Proceedings in criminal cases, examined by Lithuanian courts, may be renewed if the European Court of Human Rights finds the conviction to be in breach of the Convention or its additional protocols, if the character and gravity of the breach raises reasonable doubts about the conviction, or if continuing breach can be repaired only after renewal of proceedings.’

On 18 October 2001, Daktaras lodged an appeal with the Supreme Court alleging the existence of all grounds (specified above) necessary for the renewal of proceedings.7 The applicant stated he was serving a sentence, which couldn’t be regarded as lawful after the judgment of European Court had come into force. He asked for (1) suspension of execution of the Vilnius Regional Court judgment of 13 February 1997, by which he was convicted of blackmail and of inciting the victim to make false statements in court8 and (2) annulment of this judgment as well as of the ruling of the Supreme Court of 2 December 1997, by which this judgment was left unchanged. The Court decided to partly satisfy the applicant’s claim, noting that after the doubts about the impartiality of the court have been stated the question of whether the judgment of that court was lawful naturally arises. However it was held that this question might be answered only after the renewal of the proceedings. It was further noted that since the applicant’s case was already examined by the cassation court, it should be transferred to 6

In force since 15 October 2001. As reported in Volume 2 of the Baltic Yearbook International Law by its judgment of 10 October 2000 in Daktaras v. Lithuania (application No. 42095/98), the European Court found a violation of Article 6(1). 8 For the details of the case, see Volume 2 of the Baltic Yearbook International Law. 7

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State Practice − Lithuania the Plenary Session of the Criminal Division of the Supreme Court after the renewal. The Court held that it lacked competence to decide on the rest of the claim. On 2 April 2002, the Plenary Session of the Criminal Division of the Supreme Court examined the renewed case and the applicant’s claim, quashing the ruling of the Supreme Court of 2 December 1997 and leaving in force the Vilnius Regional Court judgment of 13 February 1997 and the Court of Appeal judgment of 13 February 1997, by which the applicant’s conduct was regarded as that of the secondary party rather than principal offender. The Court then held itself obliged to pronounce on cassation petition, lodged by the President of the Criminal Division of the Supreme Court and to re-examine the applicant’s cassation claims and earlier judgments of lower courts. On the first question the Court noted that from 15 October 2001 the CCP allows the President of the Supreme Court and the President of the Criminal Division of the Supreme Court to submit a cassation petition only on the grounds extenuating the convicted or acquitted person’s position. As cassation petition in the present case was lodged on aggravating grounds, pursuant to the old wording of the CCP rule, the Court decided to leave it unexamined. Though the Court of Appeal judgment (see above) was criticised as unfounded, it was noted that the Plenary Session lacked the competence to change or overrule it thus aggravating the position of the convict. 2.2. Birutis and Others v. Lithuania A quick reaction followed the European Court judgement in Birutis and Others v. Lithuania (see above under 1.2.(5)). On 27 June 2002, the Plenary Session of the Criminal Division of the Supreme Court had re-examined the applicants’ criminal case, which was renewed on 17 May 2002 pursuant to Article 482 of the CCP. All three applicants demanded to quash the judgment of the first instance court as well as the decisions of higher courts and claimed for compensation of moral loss and of procedural expenses they had suffered. The Supreme Court stressed that violations, found by the European Court, were committed by the trial court. However, after lodging of the appeals with the Court of Appeal, the latter was fully competent and obliged to re-examine both legal and factual sides of the judgement. The necessity to question the anonymous witnesses in the renewed proceedings was underlined, stating that only in that way could violations of the convicts’ 309

Michail Cvelich rights be repaired. For this reason it was decided to quash the Court of Appeal decision of 29 April 1998 and the Supreme Court decision of 20 October 1998 and return the case for re-examination to the Court of Appeal recommending to question the anonymous witnesses for the prosecution in Birutis and Byla cases pursuant to the reformulated rule of Article 317-1 of the CCP. However it was noted that such a measure would be insufficient in Janutenas case, as the statements of anonymous witnesses played the key role in his conviction. Regarding the fact that Janutenas, as well as the majority of former anonymous witnesses in his case, were released, the Supreme Court drew the appellate court’s attention to the possibility of disclosure of the personal data of those witnesses. 2.3. Butkevičius v. Lithuania On 30 December 2002, proceedings were renewed in Butkevičius case (see above under 1.2.(2)). The applicant asked to quash the decisions of both appellate and cassation courts and to examine his case de novo. The case was transferred to the Plenary Session of the Criminal Division of the Supreme Court; on 30 January 2003 on application of the applicant’s counsel the hearing was adjourned. 3. Practice of Domestic Courts 3.1. Application of the Convention on Carriage of Goods by Road On 15 June 2001, the Senate of the Supreme Court of Lithuania approved a Survey of Courts’ Practice on Application of the Convention on the Contract for the International Carriage of Goods by Road (CMR; and Survey).9 Some important extracts of the Survey are presented below. It was recalled in the preamble of the Survey that the common transport policy is a part of the policy of the European Community, envisaged in the Treaty Establishing the EC. The scope of Lithuania’s participation in different international treaties and agreements in the field of transport, aiming to unify respective rules on international scale, is of high importance to the process of Lithuania’s European-integration. The Supreme Court observed that regardless the considerably long period – seven years – of being in force with regard to Lithuania, practical application of the CMR is quite problematic. This was conditioned by 9

Supreme Court Senate Resolution No. 31, Bulletin of Supreme Court of Lithuania ‘Teismų praktika’ No. 15, 2001, pp. 325, 342.

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State Practice − Lithuania several reasons. First of all the official translation of the CMR was published in ‘Valstybės Žinios’ (the Official Journal) only in 1998, i.e. five years after Lithuania’s accession to it. Before this date domestic courts sometimes refused to apply the CMR. Secondly, there was no clear position regarding those international treaties, which Lithuania had joined without ratification procedure according to national law. Commenting on this issue the Supreme Court noted that pursuant to Article 42(5) the State might join the CMR either by way of ratification or accession. The latter choice does not allow the courts to give preference to the national laws and to refuse to apply the CMR.10 As the accession by a State to the CMR means the agreement (of its Member States) to apply the latter the refusal to do so merely on the ground that it has not been ratified according to national law would constitute a breach of the principles of international law, namely of Articles 26 and 27 of the Vienna Convention on the Law of Treaties. In addition, the Supreme Court drew the attention to the fact that CMR is a document regulating the relations of particular character – arising out of carriage of goods by road on international routes – which is not regulated by any domestic law. For this reason, applying the principle lex specialis generali derogat in case of collision between the CMR and the Civil Code of the Republic of Lithuania, the former should be given a priority. National law could be applied to the international carriage cases only to the extent to which it is compatible with international agreements or to which the latter do not regulate the particular issue in question. It was stressed further that CMR constitutes an integral part of Lithuania’s internal legal system therefore domestic courts deciding the disputes arising out of the relations, regulated by the CMR, must interpret the latter properly and apply directly. For this reason should the necessity arise the foreign courts’ practice of interpretation and application of different articles of the CMR must be taken into consideration. As there are some inaccuracies in the official Lithuanian translation of the CMR text the Supreme Court reminded of the necessity to follow the authentic texts in English or French. The Supreme Court further proceeded to the interpretation of separate articles of the CMR. Regarding the sphere of application of the CMR, described in Article 1, it was pointed out that even if the carriage was 10

Though Article 11(1) of the Law on International Treaties of the Republic of Lithuania obliges to fulfil the obligations arising out of any international treaty in force of which Lithuania is a party, (2) of the same article expressly states the priority over the national laws only of ratified international treaties.

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Michail Cvelich accomplished in accordance with the rules of CMR, national courts would be able to apply the latter only to the extent to which the concrete situation or relationship falls under its sphere of regulation. The CMR does not deal with such issues as carrier’s responsibility for not providing the vehicle, the right of the carrier to put the goods in pledge or to put restraints on them, the particularities of carriage of dangerous goods, customs formalities, implementation of the carrier’s right of recourse against his agents and servants, and the lease of vehicles, etcetera. Hence all disputes that arise out of such and similar relationships are to be resolved applying either national laws or relevant international treaties. If the CMR is applicable to the contract for the carriage of goods, it should be applicable not only to action brought against the carrier but equally to the latter’s actions including claims for payment of agreed reward as the CMR establishes equal rules for both parties to the contract for carriage (the same terms of prescription, penalties, etcetera.) The Supreme Court noted, that national courts often face problems when distinguishing relationships arising out of international carriage, to which the CMR is applicable, on the one hand and those arising out of lease of the vehicle on the other. The latter are beyond the sphere of regulation of the CMR and should be regulated by national laws. Though criteria to distinguish between these relationships vary from one State to another, it is the documents that accompany the carriage and the nature of the reward for the carriage services that are normally taken into consideration. If the contract provides for the reward according to the distance covered by vehicle, its object should be the lease. On the other hand if it was agreed to deliver the specified goods for the specified reward the contract should be classified as the one for carriage. In V.Jomanto IĮ v. E.Udrio transporto firma (case No. 2-475/99), the plaintiff leased a vehicle to the defendant for the purpose of accomplishing of international carriages. It was agreed that besides the rent the defendant would pay an additional fee if he exceeded the specified limit of kilometres per month. Though consignment notes were the main means of proof for counting the covered distance, the national court applied the rules of Lithuanian Civil Code regulating the contract of lease. (1) Parties to the Contract The CMR mentions the sender, the consignee, the carrier and his agents and servants as the participants of international carriage operation, but it does not specify their legal status. As a general rule the sender and the carrier are parties to the contract of carriage. The sender is deemed to be the person 312

State Practice − Lithuania who had concluded the contract with the carrier, however he is not necessarily the vendor of goods. Both natural and legal persons can act as a sender. The consignee is the one, for whose benefit the contract of carriage was concluded and whose name consequently was indicated in the consignment note or in the contract, but not necessarily the purchaser of goods. Pursuant to the Code of Road Transport of the Republic of Lithuania, only companies possessing the necessary licence are eligible to act as international carriers. Along with the person who directly accomplishes the carriage some other persons, for example, expedition companies, factors, and agents might take part in the carriage process. As the CMR states the carrier’s liability not only for his own acts or omissions but also for those of his agents and servants and of any other persons of whose services he makes use for the performance of the carriage, should a dispute concerning the compensation for loss caused during the carriage arise, the action must be brought against the transport company (the carrier) and not against the person whose direct acts resulted in loss. In this case the carrier’s liability towards the sender, consignee of the persons acting on their behalf, would be governed by the rules of the CMR, and liability of the carrier’s employees or agents towards the carrier himself would be established by the national laws. The answer to the question of who should legally be attributed the role of the carrier may vary from case to case. It often happens that the sender addresses the expedition company who itself or with the help of transport enterprises organises the delivery. In case the expedition company acted exclusively as a middleman and entered into agreements both with the sender and the actual carrier it is national laws and not the CMR that are applicable to its relation with the sender. Nevertheless, if the contract concluded by sender with the expedition company actually includes a delivery of goods clause, the latter takes upon itself the responsibility of both carrier and middleman. In this case the expedition company legally acts as the carrier regardless of the fact that it subsequently hired a third person (transport enterprise) to accomplish the delivery. In this ruling the Supreme Court referred to foreign courts’ precedents, namely to Steyn. J.Singer v. Tees & Hartlepool Port Authority (1988). Still, it was noted that according to the international practice the sender shall assume the burden of proof that the expedition company must be treated as a carrier in the sense of the CMR. In case of participation of several companies in the carriage procedure, the court has to figure out which of them is deemed to be the carrier and therefore assumes the relevant responsibility. This is performed according to the criteria listed hereunder: 313

Michail Cvelich 1. The indication of the carrier in the consignment note is important if the action is brought against that person. Still it is necessary to establish all the other circumstances of the agreement to see who actually was understood by the sender to act as the carrier; 2. The fact that the person does not hold the property of the vehicles does not constitute the sufficient ground for not regarding him as the carrier if other evidences confirm his commitment to act in this capacity; 3. An expedition company, which clearly assumed responsibility for all organization of the carriage without separate exception clause, providing that it will only perform expedition services, is liable as the carrier in the sense of the CMR; 4. An expedition company, which receives payment for all the operations related to the carriage and delivery or only for the carriage of goods, is liable as the carrier under the CMR, except when the contract for carriage provides that it performs solely expedition services; 5. The question must be decided according to the circumstances of the case and not just on the basis of the roles that the parties attribute to themselves. Thus an expedition company could be regarded as the carrier though it does not accomplished the carriage directly. (2) The Form of the Contract The Convention does not regulate either the contents or the form of the contract for carriage itself stating only that the consignment note is the prima facie evidence proving the conclusion of such contract and the transfer of goods to the carrier’s disposition. This means that the parties can enter into agreement not necessarily by signing of common document, but equally by exchange of notes, orders, telegrams, phonograms, or telefax messages of other information transmitted by means of telecommunication devices as well as orally. For this reason the courts cannot reject the claim solely on the ground that there was no written contract signed by both parties, if there is a properly made consignment note. On the other hand if the consignment note was lost or improperly filled in, provided the carriage was accomplished, there is still no ground to deny the existence of contract, its validity, or interpretation pursuant to the CMR rules. The carrier cannot be freed from liability just because of absence of consignment note. Here the Supreme Court again referred to international practice emphasising that, should such a question arise, courts must ascertain the true will of the parties on the basis of other available evidence.

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State Practice − Lithuania (3) The Form and Contents of the Consignment Note Though Article 6 of the CMR divides the particulars of the consignment note into compulsory and optional ones, it makes no difference as to the legal consequences of failure to fill in any of them. The main difference is in the origin and type of such particulars, i.e. the former must be filled in any case while the latter – only in case of necessity. Should the question arise what consequences might be inflicted by not incorporating a certain particular, the court must recall that the consignment note is not a contract itself but merely an evidence of the latter. Thus the parties should be allowed to prove the missing particulars by other evidence. The consignment note must be signed by both parties – the sender and the carrier – otherwise it won’t be regarded as prima facie evidence, i.e. it will be necessary to prove the conclusion of the contract for carriage, its contents as well as the transfer of goods to the carrier’s disposition. (4) Rights and Duties of the Parties The textual interpretation of Article 10 of the CMR (‘The sender shall be liable to the carrier for . . .’) might create an impression that the sender is liable exclusively to the carrier. Nevertheless this provision does not prevent third persons from bringing an action for damages. Any action may be brought directly against the sender by the third person in accordance with national laws. Pursuant to Article 13(1) of the CMR, after arrival of the goods at the place designated for delivery, the consignee shall be entitled to require the carrier to deliver to him, against a receipt, the second copy of the consignment note and the goods. If the loss of the goods was established or if the goods have not arrived after the expiration of the period provided for in Article 19, the consignee shall be entitled to enforce in his own name against the carrier any rights arising from the contract of carriage. The right of the consignee under the mentioned provision presupposes the duty of the carrier to deliver to him the goods in proper condition against receipt, which means that until these formalities are accomplished the carrier shall bear responsibility for the storage and care of the goods. Though Article 13(1) mentions only the loss of goods or the late delivery, the interpretation of the carrier’s liability allows extending the consignee’s rights, mentioned in this provision, also to the case of damage to the goods.

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Michail Cvelich (5) The Grounds for the Carrier’s Liability The Supreme Court noticed the divergences that occur in other State courts’ interpretations of the grounds for the carrier’s liability. Nevertheless it was stressed that according to the majority of opinions the carrier’s liability for the loss, damage or late delivery of the goods should be regarded as contractual, not tortious. Pursuant to Article 17(1) the carrier shall be liable between the time when he takes over the goods and the time of delivery. When determining the moment of taking over the goods, it is necessary to ascertain that the carrier has taken them over namely for the purpose of transportation (and not for packing or storage before transportation, etcetera). If it was agreed that the carrier would additionally pack and/or stock the goods before transportation he would be deemed to take over the goods in terms of the CMR only after the mentioned operations are finished. Accordingly if the goods are damaged during packing or storage, it is not the CMR but national laws that will be applicable. The moment of taking over the goods is related to the provision of Article 9(1) of the CMR, that the consignment note shall be prima facie evidence of the receipt of the goods by the carrier. This means that from the moment the carrier had signed the consignment note the presumption of his liability enters into force. On the other hand if the consignment note was not made out or not signed by the carrier it wouldn’t be valid though this does not affect the contract for carriage itself. In this case the plaintiff is not allowed to refer to Article 9(1) and will have to prove the receipt of the goods by the carrier by other evidences. The problem often arises when determining the exact moment of delivery. Here the Supreme Court referred to the concept of ‘control over the goods’ used in other States’ practice. Thus until the carrier exercises control over the goods, they not delivered properly and it’s the carrier who is responsible for their storage; for example, when the goods have arrived at the place but are still being stored or sorted. Another related example is that of the delivery to the wrong consignee, which is not proper delivery in terms of CMR. In one of the cases (case No. 2-3-98), the plaintiff, a Belgian insurance company (the insurer for the sender), brought a recourse action asking the court to order the carrier to compensate for the value of the lost goods. The plaintiff argued that according to the sender’s instructions in the consignment note, the carrier had to unload the goods on having telephoned a specified person after the arrival to the specified destination in Moscow. The driver instead had phoned the specified person before the arrival and let the goods to be unloaded in the place different to that specified in the 316

State Practice − Lithuania consignment note. The defendant carrier pointed out that he had properly delivered the goods to the consignee, who accepted it and signed the consignment note. The consignee together with the carrier had fulfilled all the necessary customs procedures, which was confirmed by relevant stamps on the consignment note. Thus all the facts demonstrated that the goods were lost while being under the consignee’s and not under the carrier’s control. The Vilnius Regional Court dismissed the claim stressing that as the circumstances of the case showed, the goods were properly delivered against the consignee’s receipt. The delivery of goods to the designated place is understood as their arrival to the place specified in the consignment note or other place specified by the sender according to Article 12(1) of the CMR. The carrier shall assume the burden of proof that he had fulfilled all the requirements of Article 13(1) of the Convention. When determining the time of delivery it should be noted that it does not amount merely to arrival at the designated place, but also includes the transfer of control over the goods, except when it was agreed otherwise. The notification of the consignee of the arrival, or arrival to the terminal in order to unload the goods does not constitute the due delivery. It also applies to the leaving the goods at the customs storehouse, if the consignee did not accept the goods. The delivery of goods means that, upon the acceptance of the goods by the consignee, the carrier discontinues to exercise storage and taking care of them. It was noted that there is no consistent court practice in Lithuania as to who has the right to bring an action against a carrier. This question is not clearly resolved by the CMR either. There were cases where national courts recognised that such a right belonged to the person who had the right of disposal of goods (Klaipėda regional court case No. 3-30/1999), or the one who is the party to a contract for carriage though not directly suffered the loss (Vilnius 2nd district court cases No. 2-1786/99, 2-3935/98). The leading practice however is that the right of action should be granted to a person who actually suffered a loss because the goods were lost, damaged or delivered late. This principle fits best the nature and purpose of civil liability. Thus the person entitled to claim damages could be the consignee, the sender, the person which concluded a contract with the carrier and compensated the loss to the sender or the consignee, or the proprietor of goods (which may be neither the sender nor the consignee, but actually suffered a loss of property). In one ruling (case No. 3K-3-703), the Supreme Court stressed that the aim of legal regulation of carriage of goods is to ensure the proper 317

Michail Cvelich organisation of the carriage from one place to another as well as the rights and interests of persons related to this process. In this sense the property of goods is not important and is not regulated by the CMR. The CMR does not define the sender. As the participant of the process of carriage the sender is not associated with the holding of rights of property. The sender’s legal status is regulated as far as it is important to ensure the process of carriage. As the loss of goods infringes upon the rights of the proprietor, the latter should enjoy the protection regardless of the fact of not directly participating in the carriage process. The proprietor’s right of action derives from the nature of the contract for carriage as the contract for the benefit of the third person. The sender that did not directly conclude the contract with the carrier, and, moreover, did not suffer the loss of property, has no right of action against the carrier. In Joint-stock company ‘Antransas’ v. Vertransa ltd. (case No. 2-4945/2000), the plaintiff claimed compensation for carriage expenses and a payment of penalty. The defendant argued that because of late delivery the third person (the consignee) suffered a loss, which was bigger than the payment claimed, and asked the court to dismiss the claim. The court awarded the claim stating that as the defendant is not the consignee, the defendant did not suffer any loss. The consignee is entitled to bring an independent action claiming the compensation. The right of other persons (agents, middlemen, etcetera) to bring an action is recognised in cases where it was transferred to them by the person duly authorised by contract and where applicable national law allows such transfer. (6) Carrier’s Relief of Liability Article 17(2) of the CMR states as follows: ‘The carrier shall … be relieved of liability if the loss, damage or delay was caused by … circumstances which the carrier could not avoid and the consequences of which he was unable to prevent.’

The principle issue that arises is whether the ‘circumstances’ must be interpreted merely as force majeure, or wider. They are not interpreted in the same manner in different states; the same is true for the concept of force majeure. The dominant position is that the carrier could be relieved of liability on this ground if it was proved that the carrier had done everything a bona fide and dutiful carrier would have done in analogous situation in order to escape damages. The carrier shall assume the burden of proof. It was stressed that international practice had formulated some conclusions 318

State Practice − Lithuania concerning the interpretation of the ‘circumstances’ and ‘consequences’, which Lithuanian courts should take into consideration: 1) The mere fact that the damage was caused by fire does not relieve the carrier of liability; all circumstances related to the loss should be established; 2) The theft of goods can’t be regarded as unavoidable if the vehicle was left unattended overnight on the property of some filling-station; 3) The inevitability wouldn’t be recognised if the driver had left the goods unattended, though just for a short time, in the territory of a State known for the large number of thefts, and the goods were stolen; 4) The driver cannot claim the poor condition of the roads in a certain State to be the key reason of late delivery; 5) If the delivery in time is endangered by climate conditions, the carrier must either leave earlier, or postpone his departure for some time, or bypass the unfavourable climate zone; 6) The fact that the driver fell asleep behind the wheel and caused an accident and the loss of goods shall be in no way regarded as ‘unavoidable circumstances’. It is not enough for the carrier to prove just the inevitability of the circumstances. The causal link between those circumstances and the damage, loss or late delivery must be proved as well. It should be noted that both circumstances and consequences must be unavoidable. According to international practice the following circumstances could be recognised as unavoidable: 1) if fire was caused by arson the loss suffered is to be considered as impossible to foresee, for the carrier can’t take any measures against such crime; 2) the burst of a tyre can relieve of liability if it was caused by some external object (broken glass, nail etc.); 3) an armed robbery of the vehicle driven by a single driver during a short stop on the highway is considered as a relief of liability for damage caused to the goods by the assault or by hijack; 4) in case of the road accident that could not be avoided despite the extreme security measures the carrier is relieved of liability for the damage or loss of goods caused by the accident, for example, if the vehicle was parked regularly by the roadside at 319

Michail Cvelich night and illuminated properly and still the other vehicle ran into it, the carrier won’t be liable as the carrier could not avoid such an act of a third person. 3.2. State Immunity Cases Question of foreign State immunity in employment matters was examined in the Supreme Court’s ruling of 25 June 2001 in Cudak (Senkevič) v. Embassy of the Republic of Poland (case No. 3K-3-203/2001). From 1 February 1994 the plaintiff was employed as a secretary in the embassy. Due to the frequent nervous stresses caused by alleged sexual harassment from superior official, she finally decided to leave the job and asked the Ambassador for a dismissal. However she was dismissed on another ground; absence without justifiable reason for the entire working day (she indeed did not appear on the job for some days but according to her explanation that happened because she was not allowed by the security service to enter the premises of the embassy for an uncertain reason), which was a different ground from what she insisted on and thus unacceptable to her. She brought an action seeking that the employer’s decision be annulled and monetary compensation be paid. The Vilnius Regional Court dismissed the applicant’s claim on the ground that the embassy had refused to act as a defendant in the case based its immunity from the court’s jurisdiction under the 1961 Vienna Convention on Diplomatic Relations. The Court of Appeal left the decision unchanged. The Supreme Court firstly drew the lower courts’ attention to the necessity of establishing the character of the relations between the plaintiff and the defendant. The courts had to figure out whether the embassy’s acts should have been regarded as acta jure imperii or acta jure gestionis. There were also additional criteria to be ascertained, which were not less important for helping to decide whether a foreign State enjoys the immunity from another State’s jurisdiction in employment matters. Enumerating these criteria the Supreme Court mentioned inter alia the character of the workplace, the status of the employee, the territorial links between the State where the case is decided and the State where the work had to be performed, and the character of the claim. The lower courts did not take those criteria into consideration. Further the prevalence of the doctrine of limited State immunity in modern international law was recalled and the reference was given to the 1972 European Convention on State Immunity as authoritative evidence about the tendencies of development in this domain. 320

State Practice − Lithuania However, regardless of the aforementioned arguments the decision of the Supreme Court was quite a surprising and, as one might observe, questionable. The Court stated: ‘Regarding that the Ministry of Foreign Affairs of the Republic of Poland decided not to give its consent to act as a defendant in any proceedings related to the applicants claim … the conclusion may be drawn that the nature of relations which existed between the applicant and the embassy of the Republic of Poland was that of State service, regulated by public law, and thus the Republic of Poland has the right to claim the immunity from a foreign court’s jurisdiction.’

Further the Supreme Court tried to justify its conclusion examining the other relevant criteria stated above. Evaluating the workplace criteria it was noted that the embassy’s principal functions were directly related to the exercise of the Poland’s sovereignty, since as part of the diplomatic service the embassy represented its State, maintained interstate relations, implemented the objectives of foreign policy, protected the rights and lawful interests of nationals of Poland. As to the employee’s status criteria, the Court stressed that though the parties based their relations on the employment contract, the available evidence confirms that the position held by the applicant – correspondent-operator – presupposed the existence of State service relations between the parties. Despite the fact that no evidence was submitted revealing the exact scope and details of the duties exercised by the applicant, the Court decided that the title of the position permitted to suppose that she helped in some way to exercise the sovereignty of the Republic of Poland. Considering the criteria of territorial links the Court acknowledged that if the work was to be performed in the same State where the case is decided, the local court undoubtedly was in a better position to resolve the dispute. However it was noted that though the embassy did not constitute the part of foreign State’s territory, the accepting State had a very limited possibility to exercise its powers vis-à-vis the embassy. Having examined the character of the claim – the demand to establish the unfairness of dismissal and to award a monetary compensation – the Court concluded that it could not infringe upon the sovereignty of the foreign State, as it was merely of economic character, since the plaintiff did not claim for reinstatement. Nevertheless this last argument did not in Court’s view constitute a sufficient ground to deny the immunity from jurisdiction and the plaintiff did not submit any

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Michail Cvelich evidence of the contrary, as required by the Code of Civil Procedure of the Republic of Lithuania.11 Finally, having evaluated the totality of aforementioned criteria, respecting the efforts of Lithuania and Poland to maintain good neighbourly relations and regarding the fidelity of Lithuania to the principle of equality of the sovereign powers of all States, and considering the Poland’s refusal to act as a defendant in any proceeding related to the applicant’s claim, the Supreme Court concluded that lower courts had justly ruled that they had no jurisdiction in the case at issue. It was added that the applicant nevertheless had the right to bring an analogous action in Polish courts. 3.3. Human Rights (1) The Right to Strike In SPUAB ‘Vilniaus autobusų parkas’ (private limited liability company ‘Vilnius Bus Depot’) v. Trade union of SPUAB ‘Vilniaus autobusų parkas’ (case No. 3K-3-32/2001), the issue was the lawfulness of a strike. The plaintiff claimed the strike, organised by the defendant, to be in breach of the Law on Regulation of Collective Disputes and the Law on Collective Agreements and Collective Labour Agreements.12 The court of first instance held that the defendant had breached Law on Regulation of Collective Disputes Article 3, requiring the demands of the trade union to be clearly formulated, and Article 10, requiring a certain number of employee votes in favour of a planned strike. The demands of the trade union were held as unfounded and vague, yet certain of them were addressed to the Vilnius municipal executive board, which was not actually an employer but merely the shareholder of the employer. It was held inter alia that the demand for payment of salaries according to the collective labour agreement was unfounded as the latter ceased to be in force yet before the demand was claimed. It was also acknowledged that there was no vote for the strike. The appellate court quashed the decision and dismissed the claim. The appellate decision was upheld by the Supreme Court. Both courts rejected the applicant’s argument that the trade union’s demands were not addressed to the actual employer, as it was ascertained the municipality was the only shareholder of the plaintiff. The Supreme Court recalled that: 11

Pursuant to Article 58 ‘Each party has to prove the facts it claims…’ Essentially the same provision is stated by Article 178 of the new Code of Civil Procedure, in force since 1 January 2003. 12 Both laws are invalid from 1 January 2003 and replaced by Labour Code.

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State Practice − Lithuania ‘any legal person (in the present case it is the employer) acquires rights or takes upon duties and implements them through its management bodies. For this reason any demand addressed to the only shareholder and related to the question of company management, which falls within his competence, should be regarded as addressed directly to the employer.’

Moreover, pursuant to plaintiff’s Articles of Association, the Vilnius municipality was authorised to decide questions attributed not only to the General Meeting but also to other management bodies upon their request. The Law on Regulation of Collective Disputes required informing the employer in writing in advance of the strike, establishing several different time periods (7 or 21 days, or 24 hours). The Supreme Court held those terms to be set both in employer’s and employees’ interests. In the latter’s case such terms, in Court’s view, allowed both the trade union and the employees to legalise the future strike by means of expression of their will. ‘The employees’ will to strike as an ultima is preconditioned by certain factors, existing in the moment of expression of that will and allowing to trust their goals will be reached. It is possible however that employees’ will or the will of their representatives towards strike or towards demands of collective dispute they raised, as well the employer’s will to fulfil those demands, changes fundamentally in the course of time.’

For this reason and regarding that strike is the last shift in the course of collective bargaining, the Court stated that ‘the employees’ approval of the strike may legalise the latter only provided that the conditions, in which the requirements of collective dispute were raised, had not changed after the expression of the will until the day of strike’. Article 10(1) of the Law on Regulation of Collective Disputes required the decision to declare a strike to be approved by a two-thirds majority of the employees. As the Court noted, ‘strike was the means of negotiation, designed to force the employer to seek the compromise, and not the means to harm the employer or the process of negotiations’. The use of different means might vary in the course of negotiations. It was further held: ‘The law did not clarify the negotiation procedure after the strike was announced. However the absence of procedural rules should not hamper that process. This implies the right of the parties to a collective dispute to postpone the exact date of strike upon mutual agreement seeking for peaceful means of conflict solution. Consequently if the organisers are preparing to start the strike on a later date than that initially approved by the majority of

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Michail Cvelich employees, the court, when deciding on the legality of such strike, must evaluate whether the same majority of employees also approved the later date and what reasons caused them to postpone the strike. … If the agreement to postpone the strike is in some way (e.g. by a tacit consent) approved by the majority of employees, the employer may not claim the unlawfulness of such strike merely on the grounds of breach of the formal requirements of Article 10 §1’ (see above).

Paragraph 3 of Article 12 of the Law on Regulation of Collective Disputes stated as follows: If a strike takes place at enterprises indicated in Section 6 of Article 10 of this Law [in railway, city public transport, civil aviation, communications, and power engineering enterprises (with the exception of electric power enterprises), as well as in medical and pharmaceutical institutions, food, water, sewerage and waste disposal, and oil processing enterprises, and in enterprises of uninterrupted production and other types whose stoppage may result in difficult or dangerous consequences to society or the health and lives of humans], the executions of the minimum amount of conditions (services) necessary to satisfy the immediate (vital) needs of society according to the province established by the Government or executive body of the local government shall be ensured by the body leading a strike, as well as by the employer and employees designated by them.’

However, as the Supreme Court stressed, the only fact that the employer, the organisers of the strike and the employees failed to agree and guarantee the necessary minimum amount of conditions (services) can’t be regarded as sufficient ground for declaring the strike unlawful, provided there was no evidence of the defendant’s actions impeding the execution of the mentioned decision of Government or municipal body. (2) Irreproachable Character of an Assistant to the Attorney-at-Law Article 7 point 4 of the Law on Bar of the Republic of Lithuania (the Law) sets the requirement of high moral character as one of the conditions for admission to the Bar. Point 6 of Article 9 of the Law states that a person may not be held to be of high moral character and may not be admitted if he has been dismissed from the position of a judge, a prosecutor, a lawyer, a notary, a police officer or an employee of the system of the interior for violation of professional ethics or malfeasance.

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State Practice − Lithuania In Marcinkevičius v. Lithuanian Bar Council (case No. 3K-7-168/2001) the plaintiff asked to annul the decision of the Bar Council of 20 January 2000 whereby his application for admission to the Bar was rejected on the ground of lack of high moral character. Vilnius Regional Court (the court of first instance) dismissed the applicant’s claim and left the decision of the Bar Council unchanged. The court recalled that on 24 April 1997 by the decision of Lithuanian Bar Council the applicant was dismissed from the position of the assistant to the attorney-at-law for the exercising the function of a counsel in a criminal case, which he was not authorised to do. Moreover the applicant indicated false information on his visiting card concerning his position. These facts in court’s view clearly showed the lack of high moral character and fell within the scope of point 6 of Article 9 of the Law. The Court of Appeal quashed this judgment, annulled the decision of Bar Council of 20 January 2000, and ordered the Bar to admit the plaintiff. It was held that textual interpretation of point 6 of Article 9 of the Law (see above) did not cover the post of assistant to the attorney-at-law hence this provision should not have been applicable in applicant’s case. It was also noted that the dismissal from the position of the assistant should have been regarded as a penalty for committed violation of professional ethics, therefore even if point 6 of Article 9 of the Law might be applicable to the plaintiff, the attention should have been paid to the time period, which had passed after the date of imposition of this penalty. In the present case this period was equal to three years hence the new evidence of applicant’s reputation at the time of dispute should have been examined by the court of first instance. The Supreme Court noted that in the present case the establishing of applicant’s high moral character was directly related to the fact whether his application for admission to the Bar had to be regarded as the initiation of reinstatement procedure for the person dismissed from the post of attorneyat-law, or as the completely new application of a person who was never dismissed from that post. ‘This question is of particular importance, for the person dismissed either is deemed to have lost his high moral character forever, or a certain time period is legally established, on the expiration of which he is entitled to apply for reinstatement and may try to prove his rehabilitation. Before the set term expires an irrebuttable presumption of lack of high moral character exists.’

The Supreme Court came to a conclusion that the present case raised the question of reinstatement rather than admission to the bar. It further 325

Michail Cvelich explained that dismissal from the position of the assistant, in the sense of point 6 of Article 9, is equal to the dismissal from the position of the attorney-at-law, for the same rules of professional ethics are applied both to attorneys-at-law and their assistants. Nevertheless it was held that though the mentioned provision of ‘the Law did not expressis verbis set any term of validity of irrebuttable presumption, the person dismissed could be deemed to have lost his reputation forever, as the court of first instance have concluded’. Point 3 of Article 9 stated that a person could not be held to be of high moral character if the Bar Court of Honour has struck him off the list of practicing attorneys and if less than five years have lapsed after the dismissal. In Court’s opinion: ‘the same period of five years should be mutatis mutandis applied to the person dismissed from the position of assistant. On the expiration of this period the person may apply for reinstatement, and though he does not ipso facto regains his irreproachable character, he may at least try to prove his rehabilitation.’

It was noted that modern legal ethics recognises a maxim that no offence is that grave to unreservedly prevent the lawyer from applying for reinstatement. However the lawyer seeking to be reinstated must submit clear and persuasive evidence of his ethical and disciplinary conduct and retained competence. The court, examining his case, should figure out: 1) the nature of the offence for which the lawyer was struck; 2) what personal, familial or other features had influenced the offensive conduct and whether they still persist; 3) how the person behaved during the period of dismissal; 4) whether the person’s rehabilitation as a lawyer has taken place; 5) whether his present professional competence is sufficient. ‘On the other hand if the person was not dismissed from the post of attorney-at-law, though his conduct in the past was inconsistent with the requirement of irreproachable character, his application for the admission to the bar does not constitute the reinstatement procedure, and thus, regarding that the character of offences committed by such person may vary greatly, no precise term of irrebuttable presumption is set. In this situation the person may apply for the admission to the bar and try to prove the rehabilitation of high moral character, and the court has to ex officio establish whether enough time has passed for objective evaluation of person’s rehabilitation. This rule was ratio decidendi in Martin B v. Committee of Bar Examiners of the State Bar of California (1983). However this rule is not applicable in case of crimes as conviction for a felony often constitutes a termless

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State Practice − Lithuania presumption of lost reputation and in case of other crimes the term of validity of previous conviction or the serve time might matter.’

The examples of this are points 1−2 and 6−7 of Article 9 of the Law.6 For instance the persons named in point 6 of Article 9, dismissed from legal posts (except that of attorney-at-law) for malfeasance, are deemed not to be of high moral character. Their applications for admission to the bar wouldn’t be regarded as reinstatement procedure and consequently the term of five years previewed by point 3 of the same article wouldn’t be applied. In this case, as it was mentioned earlier, the court sua sponte evaluates whether enough time has passed to permit the consideration of rehabilitation. However, provided there are no special circumstances, this time period shouldn’t be shorter than three years. Article 11 of the Law states as follows: ‘§1 The Bar Council shall examine the application for admission to the bar and take the decision not later than one month after the submission of application and all necessary documents… §2 The refusal to admit the person to the bar shall be motivated in writing. Within 14 days from the receipt of a written refusal the applicant shall be entitled to lodge an appeal with the Vilnius Regional Court. §3 If on the expiration of the term specified in §1 the Bar Council takes no decision the applicant shall have the right to appeal to the Vilnius Regional Court within 14 days asking to bind over the Council to admit him to the bar.’

In the same case of Marcinkevičius v. Lithuanian Bar Council the defendant contested the decision of appellate court whereby it was bound over to admit the plaintiff to the bar. It was argued that pursuant to Article 11(1) (see above), only the Bar Council has the prerogative to judge on the questions of admission. The Council might be bound over to admit a person to the bar only if it has not taken the decision within the due term (Article 11(3) ). The Supreme Court stressed that reinstatement procedure is regarded by the 6

A person may not be held to be of high moral character if: 1) he has been convicted of a felony regardless of extinction of criminal record; 2) he has been convicted of a non-major crime whether malicious or unintentional until the extinction of criminal record; 6) he has been dismissed from the position of a judge, a prosecutor, a lawyer, a notary, a police officer or an employee of the system of the interior for violation of professional ethics or malfeasance; 7) he has been dismissed from the public service pursuant to the Law on Public Service for misconduct in office.

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Michail Cvelich European Court of Human Rights as a determination of person’s civil rights in the sense of Article 6(1) of the European Convention on Human Rights, therefore the applicant must enjoy all the guarantees provided in this Article. The interpretation of Article 11(3) of the Law, provided by the Bar Council, would infringe the right of a person to have his case heard by an independent and impartial tribunal established by law. Regarding its composition procedure, the Bar Council cannot be considered an impartial institution in the sense of Article 6(1) of the Convention, consequently the person should be granted a right to appeal against its decisions to the court. (3) Best Interests of the Child (a) Šeškas v. Lengvelienė and Lengvelis The following conclusion was reached by the Supreme Court in Šeškas v. Lengvelienė and Lengvelis (case No. 3K-3-105/2001): ‘The circle of persons authorised or aspiring to implement their rights to a child cannot be extended in order to protect the childhood and lawful interests of the latter or to secure person’s inherent rights and freedoms … The concept of interests of the child means, first of all, the latter’s rights established by law and possibilities to implement them in a given situation. The interests of the child cannot be equated to his opinion. Though the latter is important in implementing child’s rights, it is not binding on court, for child’s opinion may sometimes contradict his interests. … There is no gap to be filled in the system of laws regulating the rights and duties of the child and his parents as well as their relations with other relatives, therefore equating by analogy the rights of the relatives to the rights of parents would be inconsistent with the constitutional provision that the family shall be the basis of society and State. In the present case the child’s interests require to clarify his legal status in the family, to implement the right to live and grow in the biological family, and to restore the breached rights of the daughter and her father as well as of the sister and her brothers.’

In 1998 the plaintiff appealed to the court asking to bind the defendants to return his daughter Renata, born in 1991. The plaintiff had two more children. After the death of his wife in 1991 her brother J. Lengvelis, Renata’s uncle, offered to help the plaintiff with upbringing of his children and took the girl to his family to another city where she lived for seven 328

State Practice − Lithuania years. Having remarried, the plaintiff decided to take his daughter back from her uncle. On 18 May 2000, the court of first instance dismissed the applicant’s claim referring to Article 67 of Marriage and Family Code of the Republic of Lithuania (MFC),13 which reads as follows: ‘The domicile of the child, whose parents live separately, shall be established by mutual agreement of the parents. If the parents fail to agree the dispute shall be transferred to the court to decide on the basis of the interests of the child and taking into consideration his opinion.’

The court established that the girl was taken to her uncle’s family at three months old. Presently she regarded the defendant and his wife as her mom and dad. For this reason the court applied Article 67 of MFC by analogy. The court further referred to point 1 of Article 4 of the Law on Fundamentals of Protection of the Rights of the Child,14 which obliges always and everywhere to give priority to the lawful interests of the child. It was noted that it is the parents’ and other legitimate representatives’ duty to ensure the child’s rights. The court drew attention to the fact that the plaintiff decided to raise and educate his daughter himself, only after seven years, therefore, it was obvious that he had not fulfilled his duty as a parent to take care of the child, to provide support and to ensure the necessary conditions for the child’s growth and development. The court rejected as unjustifiable the applicant’s arguments that he had to take care of two other kids and had weak health. The court attached great importance to the fact that the girl expressed her desire to stay with the defendant’s family, where her personality and system of values have been developing, and held that change of domicile and environment could cause psychological harm. The general conclusion reached was that returning the girl to her farther would be contrary to her interests. The appellate court left the judgment unchanged. The Supreme Court quashed the lower courts’ decisions and acknowledged that the applicant’s request to return his daughter to her biological family was regarded as the lawful implementation of his right of parentage. The Court drew the lower courts’ attention that Article 67 of MFC (see above) is applicable exclusively to the parents of the child, for they possess equal rights and duties in the sphere of child’s education and care. Parental rights to educate and care for their children are exclusive, which presupposes the child’s right and duty to live and grow in their 13 14

Invalid from 1 July 2001. Valstybės Žinios, 1996, Nr. 33-807.

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Michail Cvelich parent’s family. Nobody may separate the child from its parents provided there are no lawful reasons for doing so. Only persons who are duly authorised – legitimate representatives – may claim rights to a child. These are parents, foster parents, custodians, guardians and other persons, who in accordance with the law or other legal act must care for, educate, support and represent, and defend the rights and rightful interests of the child (Article 3 of the Law on the Fundamentals of Protection of the Rights of the Child). It was stressed that national law of Lithuania does not provide for factual adoption or factual custody. The rights and duties of the child and parents are based upon a filial relationship. The defendants were not close but sideline relatives of the child and the law does not granted them the right to contest the parents’ rights to a child, provided they were not appointed as legitimate representatives of the latter. In the present case, competent State institutions did not intervene in the care of the child after the death of her mother; the girl was living in her uncle’s family pursuant to the agreement with her father. The necessity to separate the child from her parents was not established according to the law and the father did not refuse his parental rights. (b) J. Barinova v. I. Bobrovskaja and others After the ratification of the Convention on the Rights of the Child and enactment of the Law on the Fundamentals of Protection of the Rights of the Child (the Child Rights Law) the provision that a child is an independent subject of law with respective rights, separate from the rights of his parents, came into force in the Lithuanian legal system. The complete implementation of this provision is fixed in the new Civil Code of the Republic of Lithuania. Pursuant to the old Marriage and Family Code, which remained in force until 1 July 2001, there was no possibility to separate the rights of the child and those of the parents, consequently the parents, being the legitimate representatives of the child, often acted as the only possessors of civil rights thus violating the child’s interests. However, starting from 1996 this gap was filled by the Child Rights Law, thereafter courts were obliged to follow the special rules on the protection of the child when examining the possible violations of children’s rights. Pursuant to point 5 of Article 4 of the Child Rights Law, no child may be left without a home, minimum funds of subsistence and care, or guardianship. Point 6 of the same Article declares as void every transaction, drawn up in violation of the mentioned rights of the child, or other act, limiting or otherwise restricting child’s personal, property or other rights and freedoms. Pursuant 330

State Practice − Lithuania to point 5 of Article 13, if the parents inadequately perform or fail to perform their duty to ensure the child’s right to suitable living conditions, by opinion of the institution responsible for the protection of the rights of the child, a decision may be taken to confiscate, sell or otherwise give away the home where the child resides. This competent institution will have to confirm that such a transaction will not infringe upon the rights of the child. In the case of J. Barinova v. I. Bobrovskaja and others, the applicant claimed that on 16 June 2000 the Vilnius 1st District court issued an eviction order against her and her mother I. Bobrovskaja. This was the first time the applicant learned about the confiscation of their apartment. On 26 November 1996 her mother guaranteed the repayment of a bank loan received by the applicant’s husband. The applicant’s husband failed to repay the loan and the confiscation property was transferred to the possession of the bank. At the time of conclusion of the mentioned contracts the applicant was still a minor. She argued that the disputed contracts infringed upon her rights as a child, since her mother and she had no other lodging, and after the confiscation without consent of the institution responsible for the protection of the rights of the child, she had lost her home. Both the court of first instance and the appellate court rejected the claim. The courts stated that at the time of conclusion of the disputed transactions there were no grounds to hold that the defendant – the applicant’s mother – had failed to perform her duties vis-à-vis her daughter and to ensure her suitable living conditions. Consequently there was no obligation to obtain the consent of competent State authority for confiscation of the property and thus point 5 of Article 13 of the Child Rights Law was not breached. It was also held that it is the parents’ duty in the first place to ensure the child’s rights established by point 5 of Article 4, (see above). Moreover this provision cannot negate the principles of inviolability of private property and of protection of the proprietor’s rights, on which the disputed transactions were based. The loan was granted to the defendant’s husband for the purchase of another apartment, i.e. it was purposive. The courts had no information that the credit was received having preconceived intention not to repay it or use it for another purpose. Thus the disputed confiscation contract could not be declared void pursuant to point 6 of Article 4 (see above). Quashing the lower courts’ decisions and returning the case for reexamination to the court of first instance, the Supreme Court held that Article 13 of the Child Rights Law unreservedly protects child’s rights to home and restricts parents’ and other legitimate representatives’ freedom to confiscate, sell or donate the home occupied by the child. Before these transactions may be concluded, an authorised State institution must in any 331

Michail Cvelich case ascertain that they won’t infringe upon the child’s interests and deprive the child of home. In the present case, the competent State institution’s opinion was not obtained nor did the applicant give her consent for confiscation though she already possessed partial legal capacity, being 15 years old. The loan was granted not to the applicant’s father but to her mother’s husband. Though the latter pledged to purchase another apartment, however neither the loan contract, nor the hypothecation contract contained a clause obliging him to ensure the minor’s right to her home. Nevertheless regarding the fact that, at the time of the hearing, the applicant already attained majority age, the Supreme Court emphasised that the annulment of transactions as the means of protection and restoration of violated rights of the child is applicable in respect of minors. However, after attainment of majority age, the person is not deprived of the right to legal remedy for the violation of her rights as a child, but in establishing the concrete means of protection such a person is no longer entitled to an exclusive right to restitution to initial status. If the rights to property, which belonged to the applicant as a child, were transferred to some other person, the application for restitution – taking the property from the latter and giving it back to the former − is justified only so far as is permitted by the Law of Property. Sections 2 and 3 of Article 4.96 of the new Civil Code (The exaction of property from a bona fide purchaser) read as follows: 2. An immovable property may not be exacted from a bona fide purchaser except if the original proprietor was deprived of the possession through a criminal act committed by other persons. 3. The property, both movable and immovable, ex gratia acquired from the person not entitled to transfer it may be unreservedly exacted by the original proprietor.’

Thus it was held that if the infringed right may not be protected by means of restitution, the applicant is entitled to monetary compensation.

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Book Reviews Dainius Žalimas, Skirgailė Žaltauskaitė-Žalimienė, Zenonas Petrauskas, Jonas Saladžius, Tarptautinės organizacijos, Vilnius, Justitia, 2001, pp. 1100. (Dainius Žalimas, Skirgailė Žaltauskaitė-Žalimienė, Zenonas Petrauskas, Jonas Saladžius, International Organisations, Vilnius: Justitia, 2001, Lithuanian language edition only). International Organisations is co-authored by scholars from Vilnius University: Dainius Žalimas, Skirgailė Žaltauskaitė-Žalimienė, Zenonas Petrauskas and Jonas Saladžius. This book meets a very urgent need. Unfortunately, the activity of international organisations is not sufficiently considered by the legal science community of Lithuania, or in the other Baltic countries. Meanwhile, the law of international organisations is one of the most important branches of public international law because of the significant role of international organisations in the world integration processes, and the European and transatlantic integration of Lithuania and other Baltic States. Therefore, it is necessary to commend the efforts of Dainius Žalimas, the main author of the book, to unite into one scientific work a complex analysis of the common theory of international organisations and issues of the practical activity of the most important international organisations1. Indeed, because of its wide scope the book fills a gap in the literature concerning international organisations. Moreover, the book will be useful not only to the scholars, and to other persons interested in international law. It is also of great value to the scholars and students of political science and law, politicians as well as to the broad public that is not sufficiently informed about various topics concerning international organisations (e.g., the Council of Europe is often confused with the European Union or its European Council; and the Parliamentary Assembly of the Council of Europe with the European Parliament, etc.). The high level of academic analysis should be noticed in the book. The authors successfully use a many legal science research methods: they do not restrict the work to a formal descriptive analysis, but on the contrary, a comparative analysis of international organisations is presented, and the legal rules governing their activity have been interpreted according to systemic and teleological research methods (for example, the provisions of the UN Charter are explained, having in mind their relations with other norms of international law as well as general purposes and principles of the UN). Also, the authors use many works of the famous scholars of international organisations (e.g., Professor H. Schermers, Professor D. Bowett, 1

Dr. Dainius Žalimas is the author of the Part I ‘Theory of International Organisations’, chapters XII, XIII, XVI, XX and XXII of the Part II (chapter on the UN, the UN system, the main regional organisations, the NATO and the organisations of the Baltic Sea countries) of the book. Dr. Skirgailė Žaltauskaitė-Žalimienė wrote chapters XVIII, XIX and XXI (chapters on the Council of Europe, the EU and the WEU), dr. Zenonas Petrauskas – Chapter XVII (the OSCE), Jonas Saladžius – chapters XIV and XV (the main international financial institutions and the WTO).

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Vilenas Vadapalas Professor, F. Kirgis). The conclusions of the authors have been illustrated by numerous examples from the practice of international organisations, including constitutions of different international organisations, decisions and consultative opinions of the UN International Court of Justice, and rulings of the Court of Justice of the European Communities. The issues concerning international organisations have been analysed in a very scrupulous and detailed manner, while the most urgent and debatable issues in the theory of international organisations have been dealt with, too. It is necessary to stress that the authors often make their own conclusions on different topics related to international organisations which sometimes do not correspond to the prevalent opinions; however, their conclusions seem to be well grounded and convincing because of a comprehensive legal argumentation that reflects possible new trends in the development of public international law (e.g., in the field of the use of force pursuing humanitarian purposes). The authors also present issues that are often criticised in the theory of international organisations because the same legal norms are interpreted differently in analogous situations, according to the needs of the political environment (for example, analysing the issues of accession to the United Nations or powers of state representatives to international organisations). The book is also valuable due to the comparative analysis of different international organisations. For example, we can find a comparison between the American, Commonwealth of Independent State (CIS), Arab and transatlantic systems of collective security and defence that are functioning in the framework of the Organisation of American States, the CIS, the League of Arab States and NATO, respectively. The European, American and African systems for the protection of human rights as well as the specific features of the activity of the Nordic Council and the Baltic Assembly have been compared, too. Besides, often the authors try to evaluate and draw the perspectives on the activity of the main organisations. That stimulates the reader to reflect on the subject and to draw conclusions. The core of the book is the Part I ‘Theory of International Organisations’ (Introduction and chapters I-XI) in which all the main issues of the theory of international organisations have been comprehensively dealt with (the notion of international organisations, the history of their creation, the role and classification of international organisations, the grounds of their international legal personality and legal status in a whole, the internal structure of international organisations as well as other organisational and legal aspects of their activity, representation of states and membership in international organisations, functions of international organisations). A clear distinction between intergovernmental and non-governmental organisations has been made defining their characteristics. Meanwhile, the chapter on the classification of international organisations serves as a good guide to the complicated world of various modern international organisations. The same could be said about the Introduction, which provides the reader with a short review of the political theories on the role of international organisations in the contemporary world as well as knowledge about Lithuania’s membership in international organisations.

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Book Reviews The urgency of the issues dealt with in the Part I of the book could be excellently illustrated by Chapter VI ‘International Organisations as Subjects of International Law’, in which the powers of international organisations have been examined. Here the author presents different doctrines concerning legal personality of international organisations, followed by an explanation of why the doctrine of implied powers is best suited to explain the powers of international organisations. This analysis helps to the reader to find answers to many practical questions (e.g., why the establishment of the International Tribunal for former Yugoslavia by the resolution of the UN Security Council is a lawful act, despite of the fact that such a power of the Security Council is not clearly stipulated in the UN Charter). It is necessary to point out that without the analysis of theoretical issues in Part I it would be impossible to go into details of concrete international organisations because theoretical conclusions are based on the practical examples of activity of different international organisations. Besides, while we can find some literature on different international organisations and the role of Lithuania and other Baltic States in their activity, the theory of international organisations has not been a subject of a comprehensive research in the legal science of Lithuania and other Baltic countries. The Part II of the book ‘The Most Important International Organisations’ is no less important because here we can find the detailed analysis of more than 40 of the most important universal, regional, political, and technical international organisations. The analysis of each organisation usually is carried out according to the same scheme: the author starts from the history and general characteristics of a given organisation (description of its aims, purposes and principles), further the author depicts the institutional structure of the organisation and, finally, deals with the main spheres of activity, achievements and failures of the organisation, including a brief analysis of the main legal instruments adopted in its framework. It is only logical to start Part II of the book from the structure and activity of the United Nations (Chapter XII), which is the centre of international co-operation. It may be debated whether the author has gone into too many details (e.g., dealing with the UN reform). Nevertheless, the reader will find a thorough picture about the history of the UN, its institutions and achievements in various spheres of activity, as well as about the main problems in the activity of the UN. Especially, Part II presents a very detailed and comprehensive analysis of such important fields of the activity of the UN as the maintenance of international peace and security, the promotion and protection of human rights, the promotion of economic and social development, the codification and progressive development of international law, which should be commended. Chapter XIII on the UN system is also important: notably, the analysis of the general issues helps us to perceive all universal international organisations as a harmonious indivisible system rather than a set of separate institutions. By the way, while the issues of UN activity have been sufficiently dealt with in the legal literature, the principles of functioning of the UN system and the UN specialised agencies usually are outside of the scope of scientific research by international lawyers. Therefore, it is very useful to have a book that deals with these issues.

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Vilenas Vadapalas Moreover, the reader can find a sufficiently detailed picture of each specialised international organisation belonging to the UN family. Because of their specific aims, principles and other features, the financial organisations (the International Monetary Fund and the World Bank group) as well as the World Trade Organisation have been dealt with in separate chapters (chapters XIV and XV, respectively). The significant attention is also paid to the most important regional organisations (Chapter XVI) that are not sufficiently known in the Baltic countries. For example, more information should be spread about the Organisation of American States as it unites all states in the Western hemisphere. As the author reveals, American system of regional institutions functioning under the auspices of the OAS has some similarities with the UN family; besides, it possess the collective defence arrangements and a regional system of the protection of human rights similar to the former European system of two conventional institutions. It is also welcome to find exhaustive information about the Organisation of African Unity, especially the future reforms in its framework: the planned creation of the African Economic Community according to the pattern of the former EEC as well as of the African Court on Human and People’s Rights that would transform the regional system of the protection of human rights into a more progressive model similar to the American and former European patterns. From Chapter XVI of the book the reader can also acquire a lot of knowledge about the League of Arab States, the Organisation of Islamic Conference, the Association of the Southeast Asian States, and, what is more important, the Commonwealth of Independent States with its sophisticated system of membership and institutions, as well as the problematic implementation of its decisions and doubtful future of the organisation because of the different levels and geopolitical orientations of its members – 12 former soviet republics. Due to their importance to Lithuania and other Baltic States, the European regional organisations are dealt with in more detail in separate chapters. Chapter XVII starts with the Organisation for Security and Co-operation in Europe. Chapter XVIII is devoted to the Council of Europe; great attention is paid to the reform of the system of the protection of human rights and functioning of the new European Court of Human Rights. The subject of Chapter XIX is the European Union and its legal system, which from a lawyer’s perspective offers a precise analysis of the legal provisions concerning the competence of the EU and European Communities as well as functioning of their institutions. Another subject of the thorough study in this Chapter is sources and principles of the EU law as well as the procedures for adoption of legal acts in the Communities. It is also necessary to notice the untraditional presentation of the NATO in the book (Chapter XX) as more attention has been paid to the legal issues concerning the functioning of the Organisation that as yet have not been sufficiently analysed in Lithuania and other Baltic countries. The Chapter deals with the main international treaties (e.g., agreements on the status of military forces or the protection of classified information) concluded by the NATO Member States, which, together with the North Atlantic Treaty, form the system of NATO legal acts (NATO acquis).

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Book Reviews This topic is very urgent and, at the same time, almost unknown to the lawyers from the Baltic countries. Besides, it should be mentioned that the author gives significant attention to the debatable issue of the legal grounds for the 1999 NATO military operation against Yugoslavia: the author provides a comprehensive argumentation on why the military operation should be treated as a lawful humanitarian intervention that fully corresponds to the purposes and principles of the UN. Chapter XXI of the book is devoted to the Western European Union, the main functions of which have been transferred to the EU. It should be commended that Chapter XXII the pays significant attention to the analysis of the Baltic regional international organisations, which is very rare in the legal literature. The reader will find a sufficiently exhaustive picture of the activity and perspectives of the Council of the Baltic Sea States that unites all the Baltic Sea coast states; there is also a comprehensive analysis of the Nordic Council and the Nordic Council of Ministers, which work closely with Estonia, Latvia and Lithuania, and whose interaction has served as a model for the creation of the co-operation mechanism in the framework of the Baltic Council. Logically, the co-operation between Estonia, Latvia and Lithuania in the framework of the Baltic Council has deserved the greatest attention. The author deals with the development of the Baltic co-operation and its institutions, especially the functioning of the Baltic Assembly. He also presents proposals concerning further developments of the legal rules governing the powers of the Baltic Assembly and the Baltic Council of Ministers as well as their interaction. In conclusion, it should be repeated that the book International Organisations written by D. Žalimas, S. Žaltauskaitė-Žalimienė, Z. Petrauskas and J. Saladžius is the first and the most comprehensive guide to the current world of international organisations ever published in Lithuania. Undoubtedly, it is possible to debate the structure of different chapters of the book or the necessity of the detailed analysis of some organisations, as well as some conclusions made by the authors. However, we should keep in mind the wide scope of the law of international organisation; moreover, the often diverse opinions found in legal literature on this branch of international law. Therefore, I hope that this book, as the first work on the topic written by Lithuanian lawyers, will encourage further research of international organisations in the legal, political and other fields of science of Lithuania and other Baltic countries. I believe, too, that the authors of the book will successfully continue their research on international organisations. It would be welcome to see new editions of the book according to the future changes and reforms in international organisations as well as the full membership of the Baltic States in the EU and NATO.

Professor, Dr. iur., Vilenas Vadapalas

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Česlovas Vytautas Stankevičius, Derybos su Rusija dėl kariuomenės išvedimo iš Lietuvos, Leidybos centras prie KAM, Vilnius, 2002, pp. 128. (Česlovas Vytautas Stankevičius, The Negotiations with Russia on the Withdrawal of the Armed Forces from Lithuania, Publishing Center under the auspices of the Ministry of National Defense, Vilnius, 2002, Lithuanian language edition only). It is a great pleasure to review this the book concerning the recent historical events in Lithuania as well as for other Baltic States, including the withdrawal of Russian armed forces, which considerably strengthened their restored independence. The author of this book is well known for his contribution to the Lithuania’s liberation: Ambassador Česlovas Vytautas Stankevičius signed the 11 March 1990 Act on the Re-establishment of the State of Lithuania, he served as the Deputy Chairman of the Supreme Council – the Reconstituent Seimas from 1990−1992, the Head of the State delegations for negotiations with Russia from 1991−1993, the Minister of National Defense from 1996−2000; and in 2001 was appointed the Ambassador of the Republic of Lithuania to the Kingdom of Norway. The book ‘The Negotiations with Russia on the Withdrawal of the Armed Forces from Lithuania’ has been prepared on the basis of the broader study ‘Enhancing Security of Lithuania and Other Baltic States in 1992−1994 and Future Guidelines’, completed in 1996 under the NATO Individual Fellowship Programme, and published in English in the NATO website.1 The book is devoted to negotiations, in the course of which the issues of high importance for the statehood of Lithuania having re-established its independence were solved. The guarantee that the army of the Russian Federation was to be withdrawn from the territory of the Republic of Lithuania as soon as possible first of all meant the achievement that Lithuania fully controls its territory. Full control of the territory of the State is an inseparable element of sovereignty of a State, an important guarantee hereof. Withdrawal of the Russian armed forces was an important step of strengthening the sovereignty of the Republic of Lithuania also because of the fact that Russian presence in Lithuania had no legal basis. At the beginning of 1992, when the negotiations started, the armed forces were no longer the forces of the USSR, it was the army of the Russian Federation subordinate to its new democratic government. Despite that, one should bear in mind that it was these army units, which not long ago, i.e. from 13 January 1991−August 1991, undertook the aggressive acts against the independence of the Republic of Lithuania. As the author states in his Introductory Word, the Russian Federation’s leadership headed by the President Boris Yeltsin, was determined to choose democracy, at the same time, it inherited and understood the obligations to withdraw the armed forces from Lithuania and other Baltic states. It was without any doubt, that the stay of the Russian army in the territory of Lithuania was also a big obstacle to developing a normal good neighbourly relationship between Lithuania and Russia. Therefore, the importance of the result of these negotiations – withdrawal of the troops of the Russian Federation from the Republic of Lithuania in 31 August 1993, a year earlier than withdrawal from Germany – is obvious. One should also not forget the fact that 1

See: http://www.nato.int/acad/fellow/94-96/stankevi/home.htm.

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Vilenas Vadapalas the Russian armed forces were withdrawn from Lithuania a year earlier than from Latvia and Estonia, and this, along with other factors, enabled Lithuania promptly to develop the basis of good relationships with Russia. Ambassador Česlovas Vytautas Stankevičius was the Head of the State Delegation for negotiations with the Russian Federation from 30 January 1992 to 25 March 1992, i.e. at the time of reaching the main purpose of the negotiations – on 8 September 1992 the Schedule of the withdrawal of the armed forces of the Russian Federation from the territory of the Republic of Lithuania, according to which the said forces had to be withdrawn before 31 August 1993, which they were. I was a member of this Delegation and would like to emphasise the clear and unequivocal position of Lithuania was of big importance in reaching the target that the Russian army had to be withdrawn with no delays or postulates. The Head of the State delegation and the whole delegation followed this principal position consistently throughout the course of negotiations. It seams to me that the delegation of the Russian Federation, headed by the Ambassador Viktor Isakov from March 18, 1992, respected this position, as they were not puzzled by any ambiguities or interim tactical considerations from the side of Lithuania. The Head of the Russian delegation started the first presentation of the position of his delegation with the statement that due to economic and everyday problems of relocating the Russian armed forces to Russia, the date of withdrawal could be 1999, but after listening to the arguments of the Head of the Lithuanian delegation, he did not mention this statement again. Important was also the fact that Mr. Stankevičius also did not let the negotiations become an emotional confrontation, even at the most difficult moments of the negotiations. Another principal issue that was a part of our position during negotiations was that these negotiations and the agreements reached could not impede the future of Lithuania. Therefore, Lithuania left these negotiations with no negative consequences – no temporary foreign military bases, or the obligations regarding property, transit of the armed forces, waver of any rights, etcetera. Ambassador Stankevičius depicts in this book not only the course and the positions of the parties of negotiations regarding withdrawal of the Russian armed forces, actually, he shows that the negotiations proceeded in a very broad context and they were influenced by many different factors. The author points out that an important drive in already stuck negotiations regarding withdrawal of the army was the referendum of 14 June 1992, during which 90 per cent of the citizens of the Republic of Lithuania participating in the referendum voted for prompt withdrawal of the former USSR armed forces from Lithuania and for compensation of all damage sustained during the occupation. The book also testifies to the strong support of Western countries for Lithuania, for other Baltic States, and also for Russia with regard to withdrawal of its armed forces (financial aid for building of the apartments for officers in Russia, etcetera.). An important legal argument at the negotiations was provided by the resolutions of international organisations, particularly the Declaration of the Helsinki Summit of Conference for Security and Co-operation in Europe in 1992, in which the demand regarding the conclusion of agreements and schedules in order to rapidly, fully and

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Book Reviews in good order withdraw foreign armed forces from the Baltic States was expressed. This Declaration was also signed by the Russian Federation. The author also points out the political and legal importance of the Resolution On Full Withdrawal of Foreign Armed Forces from the Territory of the Baltic States adopted the General Assembly of the United Nations on 29 October 1992. This Resolution welcomed ‘late agreements regarding the withdrawal of the foreign armed forces from Lithuania’ and invited immediate conclusion of agreements regarding the withdrawal of the Russian armed forces from Latvia and Estonia. This was an additional legal argument grounding Russia’s obligation to follow the Schedule of the withdrawal of its armed forces from the territory of Lithuania concluded on 8 September 1992. Depicting the political and legal context of the negotiations the author indicates the importance of the Treaty on the Fundamentals of Interstate Relations between Russia and Lithuania of 29 July 1991. Indeed, negotiations regarding withdrawal of the Russian army were not the first stage of relationships between Lithuania, which has regained its independence, and Russia, which was in the course of recovering democracy. Theretofore, the preamble of the Treaty on the Basis of Interstate Relations signed by the Republic of Lithuania and the Russian Federation on 29 July 1991 had already fixed the principal provision that ‘after the Union of the SSR liquidates the consequences of the 1940 annexation violating the sovereignty of Lithuania, additional conditions for mutual trust between the High Contracting Parties and their peoples will be created’. This obligation to eliminate the consequences of the annexation of Lithuania was succeeded by Russia, the State, which, in accordance with international law and its official unilateral declarations, was the State continuing legal rights and obligations of the former USSR (a case of international legal continuity without legal identity). I participated at the negotiations regarding the conclusion of the 1991 Treaty on the Basis of Interstate Relations, which during the last meeting of negotiations before the signing of the Treaty, Boris Yeltsin, the President of the Russian Federation, agreed to leave this wording of the preamble of the Treaty, which was inserted at the initiative of the Lithuanian delegation in response to encouragement by Professor Vytautas Landsbergis, the Chairman of the Supreme Council – the Reconstituent Seimas of the Republic of Lithuania, to continue the policy of the President of Russia ‘on the basis of truth’ (in Russian – ‘po pravde’). The fact that the Russian Federation at long last implemented its obligation to withdraw the armed forces before 31 August 1993 meant that the norms of international law and morality were implemented in the relationships between Lithuania and Russia on the principal subject matter – regarding the withdrawal of the Russian armed forces. Could the results of negotiations have been different? Considering the proposals of the Russian delegation, and the fact that the Russian armed forces were withdrawn from Latvia and Estonia a year later than Lithuania, and that some strategic objects of the Russian army remained located in Latvian and Estonian territory for several years, one could suppose that acceptance of Russia’s proposals would have delayed the withdrawal of the armed forces from Lithuania for at least

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Vilenas Vadapalas one year. Even if this was only one year of extra stationing of the foreign armed forces, this seemed to be unacceptable from the viewpoint of the Republic of Lithuania that had recently re-established its independence. On the other hand, thoughts regarding one extra year are only a presumption; Russia’s proposal to withdraw the armed forces in 1994 was the response to the demand of Lithuania to withdraw them before the end of 1992. Just as during other negotiations the positions of the parties determine the final result of the negotiations, which is usually a compromise of positions, and quite often a particular mathematical mean. However, if somebody were to continue suppositions regarding possible different results of the negotiations, he or she might have to admit that if Lithuania, which was the first to finish negotiations, had agreed with the later date of withdrawal of the Russian army, this would have had negative influence on Latvia and Estonia in their negotiations with Russia, which ended later. Ambassador Stankevičius explains that the positions of the parties on the principal issues of negotiations were difficult to mediate during most of the discussion period. He points out that the Russian Federation in the preamble of its suggested agreement sought ‘to create a conventional legal basis for the stay of the armed forces of the former USSR until their withdrawal’. According to this draft, which, by the way, was not specially prepared for negotiations with Lithuania or all the Baltic States, but was designated first of all to the CIS countries, the freedom of activity, jurisdiction of the Russian Federation, property rights of the Russian Federation to military objects, etcetera, had to be ensured to the units of the armed forces of the Russian Federation, and the other party of the agreement had to ensure resources for setting up new bases and relocation to the territory of Russia. Probably, there would be a few matters more unacceptable for Lithuania than a suggestion to create a conventional basis for the stay of the occupational armed forces of the former USSR in the territory of Lithuania. The majority of other proposals of the Russian draft were unacceptable as well. Therefore, it was clear from the beginning of the negotiations that Lithuania had to seek alternative basis for the future agreements regarding the withdrawal of the Russian armed forces. The author emphasises that ‘Lithuania based all of its positions at the negotiations on the principles and norms of international law’. One main principle was the respect of sovereignty. The universally recognised norm that the armed forces of a foreign country can only be in the territory of the another country by consent of the latter had to be applied, and was an important subject of the negotiations. The consent must be voluntary, and clearly expressed. It cannot be presumptive. These principles were confirmed by the UN International Law Commission in its codification work of the norms on State responsibility under international law.2 Considering the facts and their international legal qualification, 2

‘Valid consent by a State to the commission of a given act by another State precludes the wrongfulness of that act in relation to the former State….’ See Draft Article 20, Report of the International Law Commission on the work of its Fifty-third session, State Responsibility, UN doc. (A/56/10).

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Book Reviews the situation was obvious: on 15 June 1940 the armed forces of the USSR invaded the territory of the Republic of Lithuania committing an act of aggression against the Republic of Lithuania, as defined in paragraph 2 of Article II of the 1933 Treaty on the Definition of Aggression.3 Finally, it was not the object of the negotiations with Russia, and the Russian party did not express any contrary arguments. At the same time, Lithuania’s delegation needed to deny other arguments of the Russian delegation: the alleged legality of stationing the Russian armed forces, alleged property rights were deduced from actual stay of the armed forces, including construction of their buildings and objects, and the new legal international status of the Russian Federation. By the way, it has to be emphasised that Lithuanian delegation never identified the Russian Federation as the USSR, neither de jure, nor de facto. Our principal legal position was that the USSR did not acquire any rights in the territory of the Republic of Lithuania, and, therefore, the Russian Federation could not acquire such non-existing rights acting as the continuator of the rights of the USSR under international law. No events or actions since 1940 changed the status of the armed forces of the USSR in Lithuania, or granted the Soviet Union the right to deploy its armed forces in Lithuania. According to international law, the Russian Federation, as a State continuing legal obligations of the former USSR, inherited the obligation to withdraw the armed forces. International law does not acknowledge any ‘acquisitive prescription (limitation)’. On the contrary, international law applies the universally recognised general legal principle ex injuria jus non oritur – a breach of law does not give any rights to the offender. Therefore, the occupation of Lithuania committed by the USSR did not create any rights to the USSR regarding Lithuania. This affected not only with the status of the occupational armed forces, but also a real property, which was possessed or created by this army in the territory of Lithuania. That is why these issues had to be treated as a liquidation of consequences of the occupation and annexation. In bilateral relationships between the Republic of Lithuania and the Russian Federation this was already embodied in the preamble of the Treaty on the Fundamentals of Interstate Relations of 29 July 1991 as ‘elimination of the consequences of annexation of 1940 breaching the sovereignty of Lithuania’. The negotiating countries, while solving the problem of the withdrawal of the armed forces, had to implement this provision resulting from general international law and from the Treaty establishing the basis for their relations. The national delegation for negotiations of the Republic of Lithuania also upheld the view that after the Republic of Lithuania restored its independence on 11 March 1990 as well as after the dissolution of the Soviet Union in 1991, there were no relationships of state succession between Lithuania and the USSR: Lithuania ‘did not inherit’ any rights or obligations of the USSR; it has never been a part of the 3

Relevant parts read as follows: ‘the state aggressor will be such a state, which commits one of the following actions: … 2. Invasion into the territory of the other state even without proclaiming a war…’.

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Vilenas Vadapalas USSR. The international community of States and the Russian Federation itself in 1991 recognised such legal status of Lithuania. Therefore, the stationing of the armed forces of the Russian Federation on Lithuanian territory was not a part of some ‘heritage’ of Lithuania, and relationships between Lithuania and Russia on this matter were not a ‘division of this inheritance’. Considering this, in any case, the rules of state succession could not be applied. Moreover, even if it would be the case, the preference is given to the agreements of the parties concerned. With regard to this, Lithuanian delegation followed two important standpoints. Firstly, the obligation to withdraw the Russian armed forces emerges not from the future agreement regarding the withdrawal, but from the international law in force. Secondly, the property rights of the Republic of Lithuania to the immovable state property in the territory of Lithuania not in dispute and therefore cannot be the object of the negotiations and agreements in question. In any case, even if the model of State succession, which was not acceptable for Lithuania not only from legal, but also from political point of view, was followed, the result would be the same: the immovable state property would be under the State ownership of Lithuania. Even in accordance with the provisions of the 1983 Vienna Convention on Succession of States in respect of States Property, Archives and Debts, ‘immovable State property of the predecessor State situated in the territory to which the succession of States relates shall pass to the successor State’ (Articles 14, 15, etcetera). According to Ambassador Stankevičius, in August 1992 the situation in the negotiations substantially changed, and both parties managed to achieve acceptable compromise and settled on the majority of the articles of the draft agreements. At the beginning of September 1992, the delegation of Lithuania arrived in Moscow, where the critical session of the negotiations took place, when the delegations fully matched and prepared for signing seven bilateral treaties and agreements. This crucial point in the negotiations was influenced not only by the fact, that the Russian delegation received the order of Boris Yeltsin, the President of the Russian Federation, to prepare final agreements regarding the withdrawal of the armed forces, but also the fact, that at this session of negotiations, the initiative of Russian delegation was expressed by the experts of Russian Ministry of Defence, the members of Russian democratic organisation of military officers ‘Shschit’ (Shield). In the early morning of 8 September 1992, we prepared the final drafts of the treaties and agreements, and the Heads of the delegations initialled the texts of these treaties and agreements. These legal instruments had to solve a broad spectrum of issues related to the withdrawal: the final date for withdrawal, 31 August 1993, and the Schedule of the withdrawal was set up, as well as organisational and technical issues of the withdrawal, the order of functioning of military units up until their withdrawal, jurisdiction in respect to the members of Russian armed forces and their family members, the issues of Russian officers’ ownership of their apartments, social guaranties concerning the officers and their families, etcetera, were regulated. Article 1 of the Agreement of the Russian Federation and Lithuania regarding the withdrawal of the armed forces from the territory of the Republic of Lithuania stated, that ‘the Russian Federation acknowledges its international obligations to

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Book Reviews withdraw the armed forces and will implement duly organised and full withdrawal of the armed forces of the Russian Federation from the territory of the Republic of Lithuania not later than 31 August 1993’. In accordance with paragraph 1 of Article 6 of this Agreement ‘all the territories, buildings and equipment having been occupied by the armed forces of the Russian Federation subject to withdrawal, in the course of parts and units leaving the occupied objects, are passed to the Government of the Republic of Lithuania unharmed and preserved in such a state that they could be further used in accordance with they intended usage’. The provisions of paragraph 1 of Article 9 have also to be mentioned, which state the duty of the Russian Federation in accordance with special agreement to pass to Lithuania a necessary quantity of modern armament, military equipment and other ammunition as a compensation for the property of the armed forces of the Republic of Lithuania taken by the USSR in 1940 (‘with the purpose of restitution of defence capacity of the Republic of Lithuania, the Russian Federation will transfer to the Republic of Lithuania a necessary quantity of modern armament, military equipment, ammunition as a compensation for the property of the armed forces of the Republic of Lithuania taken in 1940, following a special agreement, which will be concluded by the parties within one month after the day of signing of the present agreement’). Articles 12 and 13 of the Agreement regulated the issues of compensation for damage caused to Lithuania: ‘the Russian Federation from the moment of its state succession agrees to reimburse material damage, in case it was made or will be made to the Republic of Lithuania, its institutions, legal persons and citizens in the course of official duties, actions or omissions of the armed forces of the Russian Federation or the persons-members’ (Paragraph 1 Article 12); ‘The Republic of Lithuania agrees to reimburse material losses in case it is made by the actions or omissions of the State institutions of the Republic of Lithuania to the property of parts and units of the armed forces of the Russian Federation or persons-members or their families…’ (Paragraph 1 of Article 13). However, it is necessary to emphasise that neither this, nor other agreements solved general issues of reparation and compensation for the damage and losses caused by Soviet occupation. In the evening of 8 September 1992 the signing procedure for the seven treaties and agreements took place in the Kremlin. While both delegations waited in the Vladimir Chamber of the Kremlin, a short meeting to took place between Boris Yeltsin and Vytautas Landsbergis. Then, the Heads of State and later the Ministers of National Defense signed the treaties and agreements. To our surprise, Yeltsin and Landsbergis did not come to the table that had been prepared for the signing procedure. Instead, the ceremony started with the signature of the agreements by the Ministers of Defense, Pavel Gratschov and Audrius Butkevičius, who signed the three agreements that had to be signed by them after the Heads of State had signed: the Schedule of the withdrawal of the Russian armed forces of with the annexes, the Agreement concerning technical and organisational issues of the withdrawal of the Russian armed forces and the Agreement concerning temporary functioning issues of Russian troops until withdrawal. Later, in the same evening we learned from Professor Landsbergis that Boris Yeltsin refused to sign four of the agreements (the

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Vilenas Vadapalas main Agreement concerning the withdrawal of the armed forces, the Agreement concerning the jurisdictional issues with respect to Russian troops and the members of their families, the Agreement on the rules concerning the property and apartments of the officers and the Agreement on social issues concerning the officers), explaining his refusal by ‘the necessity of finishing the drafting these instruments’. At the end of signing ceremony the President of Russia came over to our delegation and offered his hand to each of us saying, ‘Well, we do not have anything with Latvians and Estonians. We will still have to do some work for a month or so’. These wishes never came true. Although the negotiations continued, and in March 1993 the team of Lithuanian delegation was changed, there were no new achievements. Although the main agreement regarding withdrawal of the armed forces of the Russian Federation has not been signed, the agreements signed on 8 September 1992 served as a sufficient legal basis to withdraw the Russian armed forces before 31 August 1993, the date provided in the agreement. The Schedule of the withdrawal estimated specific dates of the withdrawal of every military unit and the final date of the withdrawal, and the other two agreements (the Agreement concerning technical and organisational issues of the withdrawal of the Russian armed forces and the Agreement concerning temporary functioning issues of Russian troops up until their withdrawal) resolved the main practical issues of the withdrawal. All three agreements entered into force on the day of their signing and they were registered in the United Nations Secretariat. There was no legal basis to doubt the obligations of Russia to withdraw its armed forces before 31 August 1993, in accordance with the Schedule of the withdrawal. As a member of a new Lithuanian team continuing the negotiations, I shall emphasise that the Russian delegation never tried to deny the binding nature of the obligations undertaken by Russia under the Schedule, but on at least on two occasions the Russian Federation declared that it was suspending the withdrawal of its armed forces from Lithuania. Ambassador Stankevičius described these tension-awaking events in the book. Regarding subsequent legal arguments, it has to be mentioned that the Russian delegation argued that the Schedule of the withdrawal of the armed forces of the Russian Federation was not binding, since it was concluded in accordance with the unsigned main Agreement on the withdrawal of the armed forces. The Russian delegation appealed to the fact that paragraph 1 of Article 3 of this Agreement referred to the Schedule of the withdrawal of the armed forces (‘Withdrawal of the Russian armed forces from the territory of the Republic of Lithuania started in March 1992 will be carried out as it is planned in the Schedule and its Appendix, which are concluded by the Parties at the same time as they sign the present Agreement’), and the Schedule detailed that it has been developed on the basis of the Agreement. The Lithuanian delegation did not agree with these arguments. The Schedule was an international agreement, which entered into force as provided for in the Schedule itself, i.e. on the day of its signing – 8 September 1992. The provisions of the Schedule were clear enough, and they stipulated the obligations of Russia to withdraw its armed forces in accordance with the concrete dates stated in the Schedule. The Schedule did not provide any special

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Book Reviews additional terms of its entry into force. By the way, the unsigned Agreement on the withdrawal of the Russian armed forces itself also did not establish any special terms of entering into force of the Schedule. It also has to be pointed out that neither general international law, nor the 1969 Vienna Convention on the Law of Treaties does not foresee any such special terms or conditions of entering into force or validity of an international treaty, which could serve as a basis for doubts that the Schedule entered into force on the day of its signing. Thereupon Ambassador Stankevičius indicates, that ‘the General Assembly of the United Nations on 25 November 1992 adopted the Resolution “Full Withdrawal of Foreign Armed Forces from the Territory of the Baltic States”, which was presented by the Baltic States that was actively supported by the members of NATO. The Resolution welcomed ‘the recent agreements regarding full withdrawal of the foreign armed forces from Lithuania’ and encouraged prompt conclusion of the agreements, including schedules, regarding the withdrawal of the Russian armed forces from Latvia and Estonia. The Resolution actually confirmed that the withdrawal of the armed forces from the Baltic States is an international obligation of Russia. The United Nations by this Resolution actually acknowledged that the agreements of Lithuania and Russia of September 1992 regarding the schedule and procedures of the withdrawal were sufficient. On 31 August 1993 the Russian Federation fulfilled its obligations to withdraw the armed forces from Lithuania. The work of the Lithuanian negotiation team was successful. The withdrawal of the Russian armed forces was the end of an important stage of strengthening Lithuanian statehood and at the same time the main obstacle to developing important good neighbourly relationships between Lithuania and Russia was eliminated. To sum it up, Ambassador Česlovas Stankevičius’ book ‘The Negotiations with Russia on the Withdrawal of the Armed Forces from Lithuania’ will engage not only the readers interested in the latest history and policy of Lithuania, but it will also serve as a good source for studies of international law and international relations. This book depicts the essence and dynamics of important international negotiations. The author also provides essential material, especially important in studying the process of conclusion of international treaties. Also of primary importance, I am certain that law students will find significant amounts of information that will be useful for them in their studies of public international public law, the law of treaties, and the history of international relations.

Professor, Dr. iur., Vilenas Vadapalas

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Marc Benitah, The Law of Subsidies under the GATT/WTO System (The Hague, London, New York: Kluwer Law International, 2001, pp. 424.) The aim behind the rules on subsidies and countervailing measures in the GATT and the Uruguay Round Agreement – The Agreement on Subsidies and Countervailing Measures (SCM Agreement) – is to balance potentially conflicting concerns: the concern that domestic industry should not be put at an unfair disadvantage by competition from goods that benefit from government subsidies, and the concern that countervailing measures to offset those subsidies should not themselves be obstacles to fair trade. Because subsidies result from the decisions of governments, the rules established by international agreements not only regulate the unilateral action (countervailing duties) that may be taken against subsidised imports, but also establish multilateral disciplines to control the use of subsidies themselves. Two Articles of the GATT deal with this subject. Article VI, which contains the original rules on antidumping action, also regulates the use of countervailing duties. The injury requirement is stated in a single paragraph that applies to both forms of action. Article XVI is directly concerned with the use of subsidies. The Article has two main elements: Section A, which already applied fully to all GATT contracting parties before the World Trade Organization (WTO) came into existence, is a requirement that each government notify all subsidies it gives that would have the effect of increasing exports or reducing imports, and that it be ready to discuss limiting a subsidy that causes serious prejudice to the interests of another member. Section B, the second element, concerns export subsidies. Added to Article XVI in 1955, it required all GATT signatories not to subsidise exports of a primary product in a way that would give the subsidising country ‘more than an equitable share of world export trade in that product’. In addition, certain countries – mostly developed – accepted a requirement not to give subsidies to exports of non-primary products that would result in their export prices being lower than the domestic price. The 1979 Tokyo Round negotiations resulted in a code – Agreement on Interpretation and Application of Articles VI, XVI and XXIII of the General Agreement on Tariffs and Trade – which build on these provisions but not substantially depart from them. Uruguay Round Agreement on Subsidies and Countervailing Measures represents a radical change of approach from that of Article XVI, and from the Tokyo Round code. In part, the difference consists in its application to all WTO members, developed and developing alike. More fundamentally, the new agreement goes well beyond Article XVI and the code, which imposed disciplines only with respect to export subsidies. Unlike its predecessor, the present agreement contains a definition of subsidy. It also introduces the concept of a ‘specific’ subsidy – i.e. a subsidy available only to an enterprise, industry, group of enterprises, or group of industries in the country (or state, etc.) that gives the subsidy. The disciplines set out in the agreement only apply to specific subsidies. They can be domestic or export subsidies. Under the Agreement, binding disciplines are imposed for the first time on the provisions of subsidies related to the production and other non-trade factors. The Agreement defines three categories of subsidies: prohibited, actionable and non-

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Raimondas Ališauskas actionable. It applies to agricultural goods as well as industrial products, except when the subsidies conform to the Agriculture Agreement. Everybody will probably agree that analysis of subsidies urgently needed a consistent and powerful analytical tool, which now has been offered by Professor Benitah’s book The Law of Subsidies under the GATT/WTO System. A number of books and articles are published on the subject. However, using the innovative approach of ‘attenuation of entitlements’ this book is the first of its kind which provides a comprehensive methodology helping not just to understand what the law is, but also why it is the way it is. The strength of The Law of Subsidies under the GATT/WTO System rests with the new outlook to the subject. Complexity of subsidies law quickly becomes intelligible through the author’s analysis. Professor Benitah organises his book in three parts. He introduces approach of ‘attenuation of entitlements’. By that he suggests to the reader that entitlements granted to a party seeking to defend itself against the ‘adverse effects’ of subsidies must be ‘attenuated’ in order to avoid undesirable economic and social consequences for the subsidising country. He then tests this approach on the substance of the subsidy rules contained, inter alia, in GATT 1947, the Tokyo Round Subsidies Code, the Uruguay Round SCM Agreement, as well as the relevant provisions of the Agreement on Agriculture. The approach of ‘attenuation of entitlements’ runs throughout this book as a kind of explanatory tool which helps the reader to make sense of substantive as well as procedural rules applicable to the subject of subsidies, as well as, it helps to understand how trade negotiators have tried to reconcile competing interests in the area. The beginning of first part, titled ‘Legal Techniques for Attenuating Entitlements Granted to the Party Allegedly Affected by a Subsidy’, starts by the author’s ask to the reader to use the way pollution is treated under domestic law as a model to understand how the issue of subsidies is (and should be) treated under international law. He argues that domestic law does not provide complete protection against pollution because of the social utility of the polluting activity. This same logic guides readers in the analysis of the legal approach to subsidies in the GATT and WTO systems. Through this part the author aims to identify the legal techniques for attenuating entitlements granted to affected country. The author presents a set of explicit techniques of attenuation, such as, attenuations favouring developing countries and countries in economic transition, as well as, implicit techniques of attenuation, such as, ambiguous or poorly defined concept; ambiguous silence as to the link between two legal texts; interpretation techniques; intensification of the burden of proof. He asserts that the implicit character of these techniques comes from the fact that they function as attenuations even if such a role was not consciously envisaged by the negotiators of international agreements. During the analysis of implicit techniques of attenuation no attempt is made to trace the negotiating history of the multilateral disciplines. Therefore, speaking about one of the implicit techniques of attenuation, e.g. poorly defined concept, the author admits that the principal function of this technique is to permit diplomats to agree on words, failing an agreement on their content, especially in the content of extremely delicate

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Book Reviews issues. Since agreements deal generally with various issues, this technique circumvents the delicate ones and facilitates the conclusion of negotiations. Without this technique, it is unlikely that many agreements might come into being. The part two, titled ‘Techniques of Attenuation as a Seed for a Birth of Legal Disputes’, discusses how ambiguity of norms converts a conflict into a legal dispute. This part of the book confirms the author’s assertion by examining how the techniques for attenuation identified in first part were and still are a fertile ground for the legal disputes in the area. The most interesting aspect of this part and book as a whole is that a fundamental feature of the birth of legal disputes does not go unnoticed. The approach in each of the chapters of this part – corresponding to the numerous forms of legal techniques of attenuation – is to describe in detail through the legal disputes. In making his point, Professor Benitah makes a quite comprehensive survey of the available case law in the area of subsidies throughout the lifetime of the multilateral trading system. His analyses includes all the famous subsidy cases involving Australia – Subsidies Provided to Producers and Exporters of Automotive Leather, complaint by the United States (WT/DS126/1), Brazil – Export Financing Programme for Aircraft, complaint by Canada (WT/DS46), Canada – Measures Affecting the Export of Civilian Aircraft, complaint by Brazil (WT/DS70), Canada – Measures Affecting the Importation of Milk and the Exportation of Dairy Products (WT/DS103/1), complaint by the United States, United States – Tax Treatment for ‘Foreign Sales Corporations’ (WT/DS108/1), complaint by the European Communities and many other cases. Additional strength of this part is the author’s re-examination of every legal dispute occurring in the GATT/1947 system from the WTO perspective. In the final and concluding part three, titled ‘Obstacles in the Way of Clarifying Attenuated Norms through the Case Law Process’ the author looks into lost opportunities to clarify the exact meaning of attenuated norms. He brings to the reader’s attention that the case law process met many obstacles in the GATT/1947 system, and, moreover, some of the obstacles are still present in the WTO system. Thus, the reader may find Benetah’s analysis useful not only in the context of subsidies, but in the context of a general study of the GATT/WTO dispute settlement process also. First of all, the author’s criticism was directed at the implicit ‘refusal’ of a Panel to make clear rulings. To this aim he discusses two cases – European Economic Community – Production Aids Granted on Canned Peaches, Canned Pears, Canned Fruit Cocktail and Dried Grapes, complaint by the United States and European Economic Community – Subsidies on Export of Wheat Flour, complaint by the United States, too. For example, the author stresses the waver by the Panel conceding the latter case: ‘It could not rule out the possibility that the application of EC export subsidies had resulted in reduced sales opportunities for the United States’ – paragraph 4.29. The same implicit refusal of the Appellate Body to render a clear ruling the author found in the WTO system also. In the Canada – Certain Measures Affecting the Automotive Industry (WT/DS139/AB/R, WT/DS142/AB/R, paragraph 184), the Appellate Body concluded that it was: ‘unable to come to a conclusion, and hence reserves judgment, on whether or not the

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Raimondas Ališauskas import duty exemption is, as a result of the application of the CVA requirements, contingent ‘in law’ upon the use of domestic over imported goods under Article 3(1)(b) of the SCM Agreement … [and was] unable to come to a conclusion, and hence reserves judgment, on whether or not the measure is contingent ‘in fact’ upon the use of domestic over imported goods under Article 3(1)(b) of the SCM Agreement, as a result of insufficient factual findings and undisputed facts in the Panel record’. Another major obstacle, in the author’s view, was the veto of the losing party during the stage of adoption of the Panel’s Report by the Contracting Parties. The author suggests that often the veto was precisely intended to prevent the creation of a ‘precedent’. However, a radical innovation in the WTO system has terminated such practice. With regard to the adoption of the Panel Report, an innovation appears in the Uruguay Round Dispute Understanding, since Article 16(4) stipulates that within 60 days after the date of circulation of a panel report to the Members, the report shall be adopted at a Dispute Settlement Body (DSB) meeting unless a party to the dispute formally notifies the DSB of its decision to appeal or the DSB decides by consensus not to adopt the report. Notably, this part of the book goes even further, as it provides a deeper insight into the political economy of trade disputes and how the manner of their conclusion often reflects the role of domestic political pressures over sound economic interests, which is well represented by his treatment of the practice of counter-subsidies. The issue of subsidies is arguably the predominant theme, at this moment, in international trade law. The most significant recent contributions to the area are contained in the Declaration adopted at the end of the Ministerial Conference in Doha on 14 November 2001. The ministers agreed to negotiations on the AntiDumping (GATT Article VI) and Subsidies agreements. The aim is to clarify and improve disciplines while preserving the basic, concepts, principles of these agreements, and taking into account the needs of developing and least-developed participants. Ministers also addressed conceptual issues of subsidies in relation to agriculture and implementation-related issues and concerns. No additional arguments about the importance of the issue will be needed if statistics on subsidies and countervailing measures is presented. Absolute leaders in countervailing investigations and adopted measures are the European Union, which maintained 20 measures (definitive duties and price undertakings) in force on 30 June 2002, and the United States, which maintained 53 measures (definitive duties and price undertakings) in force on 30 June 2002. Furthermore, the Report (2002) of the Committee on Subsidies and Countervailing Measures, dated 6 November, 2002 (G/L/585), provides that as of 31 October 2002, 391 WTO Members had notified subsidies pursuant to Article 25 of the SCM Agreement and Article XVI of GATT 1994. In addition, 15 Members had notified that they maintain no subsidies notifiable pursuant to these provisions. To the same date, 8 Members had notified countervailing actions taken during the period 1 January – 30 June 2002, and reports 1

The European Communities is counted as one Member.

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Book Reviews of preliminary and final countervailing actions had been received during the review period from Argentina, Australia, Canada, the European Communities, South Africa and the United States. The accession to the WTO brought the subject to the three Baltic States – Estonia, Latvia and Lithuania. By becoming members on 13 November 1999, 2 October 1999 and 31 May 2001, respectively, the three Baltic States accepted all obligations arising from the international disciplines regulating use of subsidies and countervailing measures. They have undertaken in the Protocols of Accession to the WTO not to invoke this measure until legislation fully conforming to the provisions of the SCM Agreement will be passed by the national Parliaments. Lithuania has fulfilled its obligation by adopting the Law on Countervailing Duties on 23 May 2000; it was followed by Latvia’s adoption of a new version of Law on Protection against Subsidised Imports on 7 December 2000; while Estonia notified the Committee on Subsidies and Countervailing Measures that it has no countervailing duty laws and/or regulations relevant to the SCM Agreement. Note should be taken that both above-mentioned countries have not demonstrated any attempts to use national SCM legislation. Neither country has been involved in the respective investigations initiated by foreign authorities. Entirely opposite situation, ironically, exist in the field of anti-dumping investigations and measures adopted. All three Baltic States confirmed in their Protocols of Accession that they did not maintain subsidies, including export subsidies, which met the definition of a prohibited subsidy within the meaning of Article 3 of the SCM Agreement, and that they would not introduce such prohibited subsidies in the future. It was also confirmed that any subsidy programs would be administered in line with the mentioned Agreement, and that all necessary information on programs to be notified, if such exist, would be provided to the Committee on Subsidies and Countervailing Measures in accordance with Article 25 of the SCM Agreement. Following these obligations Estonia and Latvia have already started subsidy notifications, which consequently led to the questions posed by other WTO Member States. Therefore, the process of questions and replies does not reflect, per se, any infringements of country’s obligations. It provides transparency to the national policies as well as, gives possibility to clarify certain concerns. Notwithstanding, issues of subsidies and their treatment within the international framework are relatively new in the Baltic States. Law of subsidies was introduced into national legislation and administrative practice without further evaluation of its implications. Although the subject is universal as it defined by international rules, detailed analysis of the topic was lacking in the Baltic States. From this perspective, readers to whom subsidies law under the GATT and WTO system is a new field will find this book invaluable, and more knowledgeable readers will find it to be a succinct, well-written and informative overview in the field. In conclusion, The Law of Subsidies under the GATT/WTO System is a must reading for legal practitioners, government officials, and academics concerned with international trade law. All who read this book will be interested in seeing how the international trade

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Raimondas Ališauskas negotiators turn the ‘legal techniques of attenuation’ contained in this book to addressing subsidies issues in coming years. The author of the book, Marc Benitah is Professor of International Law at the University of Quebec, Canada. Last year, he was Visiting Professor at McGill University, Canada. His recent articles appeared in journals such as the Canadian Yearbook of International Law and the Journal of World Trade. Professor Benitah is ‘Docteur en Droit’ from the University Pantheon-Sorbonne in Paris.

Raimondas Ališauskas

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List of Contributors Raimondas Ališauskas

First Secretary of the Foreign Trade Policy Division, Ministry of Foreign Affairs, Lithuania

Laure Amoyel

MA in Modern History University College, London and has recently graduated from the European Master in Human Rights and Democratisation, Venice

Michail Cvelich

Attachè, Law and International Treaties Department, Ministry of Foreign Affairs, Lithuania

H.E. Helle Degn

Commissioner of the Council of the Baltic Sea States

Lauri Mälksoo

Dr.iur.; Counsellor of international and European law of the Legal Chancellor of Estonia, contractual lecturer of international law, University of Tartu

Rein Műllerson

Professor of International Law, King’s College, London; member of the Institut de droit international

Alexander Orakhelashvili

LLM cum laude Leiden; PhD Candidate, Jesus College, Cambridge, United Kingdom

Rytis Satkauskas

Masters of Law, Vilnius University, DEA in Public international law, Université Paris I – PanthéonSorbonne

Sabrina Urbinati

PhD candidate in Public International Law, University of Paris I, Panthéon-Sorbonne

Vilenas Vadapalas

Prof. Dr. iur., Jean Monnet Professor of the European Union Law, Faculty of Law, Vilnius University

Luzius Wildhaber

President of the European Court of Human Rights, Dr.iur., LL.M., J.S.D. (Yale), Dres.h.c., LL.D.h.c., Professor at the University of Basel. 355

Baltic Yearbook of International Law Dainius Žalimas

PhD, Associate Professor of International Law, Law University, Lithuania

Ineta Ziemele

Professor of International Law and Human Rights, Riga Graduate School of Law, Latvia, Visiting Professor, RWI, Lund University

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Information for Authors 1. All contributions are refereed. The editors reserve the right to suggest modifications and/or additions to submitted contributions, and further reserve the right to reject or to revoke acceptance. 2. Languages: Contributions must be submitted in English. Authors should ensure that their contribution is reviewed by a person who is competent in English, and edited as necessary. Contributions accepted for publication may, at the discretion of the editors, be linguistically revised. Contributions in German and French may be considered for publication. 3. Proofs: The authors may receive proofs for correction. Authors are requested to keep corrections to a minimum, with the exception of taking into account important material or references not previously available, or development of notes. Substantial modifications other than those described are permitted at the discretion of the editors. 4. Manuscripts should not exceed 25 pages. They should be typed, doublespaced with wide margins, and presented in Microsoft Word format. The editors are unable to accept non-IBM or MS DOS manuscripts. 5. Manuscripts should be submitted via e-mail attachment (virus scanned) or floppy disc. If the article is submitted on diskette, the latter shall be properly labelled with the title, author, operating system and software used. Always keep a copy of the submission. 6. Authors should check for errors before submitting their work. They are responsible for providing complete and correct references, for accuracy of quotations, and for obtaining any permission necessary for quoting another author’s material. 7. Manuscripts must adhere to guidelines on format, spelling and style available from the editors, especially; U.K. English must be the language selection tool for Microsoft Word. 8. Book reviews: The editor will accept reviews of books published internationally and locally and in another languages than English. Book reviews shall not exceed 5 pages. They should be submitted to Dainius Žalimas, Book Review Editor, at [email protected]. 357

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