The Law on Compensation of Damage Resulting from the USSR Occupation in the Light of the Rules of International Law
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Abstract
This article examines the provisions of the Law of the Republic of Lithuania on Compensation of Damage Resulting from the USSR Occupation (hereinafter – the Law), which was adopted on 13 June 2000, in the light of customary rules of international law on state responsibility, as codified in the 2001 the UN International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter – the ILC Draft Articles). The main aim of the article is to deal with the international legal grounds of the responsibility of the Russian Federation for the Soviet occupation of the Republic of Lithuania and, against this background, to identify the role of the Law.
The ground of Russia’s responsibility is an internationally wrongful act committed as the aggression against the Republic of Lithuania, which was started by the 15 June 1940 incursion by the Soviet armed forces and subsequently continued in the form of the illegal occupation of Lithuania until the restoration of Lithuania’s independence on 11 March 1990, however, the illegal presence of the foreign forces on Lithuania’s soil ended only in 1993. The fact of the 1940 Soviet aggression and illegal occupation of the Baltic States has been widely recognized by the international community, it was even acknowledged by the USSR and Russia in 1989-1991. Therefore there is no doubt that under international law from 1940- 1990 the Republic of Lithuania had been an occupied State. That is why the illegal occupation with its consequences, as the breach of an international obligation not to resort to aggression having a continuing character, constitutes an objective element of an internationally wrongful act being the ground for Russia’s responsibility. That also explains why the title of the Law refers to the occupation.
Meanwhile the specific feature of subjective element is addressed in the preamble of the Law. That is the continuity of the Russian State and the corresponding identity of its international legal personality with the Soviet Union, which was claimed by Russia and generally recognised by the international community. Therefore under international law the Russian Federation is the State continuing the rights and obligations of the former USSR (i. e., it is the same international legal person). Consequently, internationally wrongful acts of the latter, including the Soviet occupation of Lithuania and the other two Baltic States, should be attributable to the Russian Federation.
Apart from the ground for Russia’s responsibility, the issue of reparation is addressed in the article. In accordance with international law (the ILC Draft Articles), the principle of full reparation should be applied to realise responsibility for an internationally wrongful act. The full reparation for the injury can be provided in the form of restitution, compensation and satisfaction, while any financially assessable damage should be covered by compensation when restitution is not practically possible. Responsibility for the Soviet occupation is the latter case. Therefore in this sense the Law concretises the claim of Lithuania as it lays down the obligations of the Government of Lithuania to calculate the damage and seek its compensation from Russia. In conformity with the principle of full reparation, the provisions of the Law require to calculate the damage for all period of the Soviet occupation as well as to cover all types of financially assessable damage.
The third main issue addressed in this article is admissibility of a claim for reparation, i. e. the procedural requirements to be observed by the injured State invoking an international responsibility of other State. The main requirement, as follows from Art. 43 of the ILC Draft Articles, is that the injured State should give a timely and proper notice of its claim to the State responsible for an internationally wrongful act; the claim is not admissible when it is waived by the injured State or it can be inadmissible when it is not maintained. However a mere lapse of time without a claim is being resolved, including delay in its prosecution due to refusal of the respondent State, can not result in loss of the right of the injured State to invoke responsibility. In this regard the Law is a unilateral act of the State of Lithuania which formulates and concretises the claim for Russia’s responsibility. The form of this act was determined by Lithuanian national rather than international law as the former requires that any compulsory rules or instructions for the Government can be laid down by the Seimas (the Parliament) only in the form of (statutory) law. As it is clear from the preamble of the Law, in continuing and consolidating the previous Lithuanian acts invoking Russia’s responsibility the Law demonstrates that the claim for responsibility has been raised without any unreasonable delay a long time ago (the first time Lithuania declared about its claim for reparation in 1991) and Russia is aware of that claim from the very beginning. In such a manner the Law also proves a consistent and unchanging position of Lithuania with regard to Russia’s responsibility.
Therefore the Law evidences that the claim of Lithuania remains admissible although still being unresolved and notwithstanding that Russia is rejecting it. Under international law the injured State has the right to waive its claim for responsibility of another State. National law may, however, restrict that right in setting up appropriate duties for the authorities of the injured State. In this regard it follows from the preamble of the Law that under Lithuanian constitutional law no State organ or official can declare a waiver of the claim for Russia’s responsibility because the Law is based on and aims at implementation of the corresponding decision by the 14 June 1992 national referendum that demanded to seek reparation for the Soviet occupation.
To sum it up, it can be concluded that the Law is based on and is consistent with the rules of international law. It also implements the international legal requirements for the proper declaration and maintenance of the claim for reparation.
Therefore both under international law and under Lithuanian constitutional law the Law has been necessary to consolidate and consistently maintain the claim to Russia for the compensation of the damages caused by the Soviet occupation.
The ground of Russia’s responsibility is an internationally wrongful act committed as the aggression against the Republic of Lithuania, which was started by the 15 June 1940 incursion by the Soviet armed forces and subsequently continued in the form of the illegal occupation of Lithuania until the restoration of Lithuania’s independence on 11 March 1990, however, the illegal presence of the foreign forces on Lithuania’s soil ended only in 1993. The fact of the 1940 Soviet aggression and illegal occupation of the Baltic States has been widely recognized by the international community, it was even acknowledged by the USSR and Russia in 1989-1991. Therefore there is no doubt that under international law from 1940- 1990 the Republic of Lithuania had been an occupied State. That is why the illegal occupation with its consequences, as the breach of an international obligation not to resort to aggression having a continuing character, constitutes an objective element of an internationally wrongful act being the ground for Russia’s responsibility. That also explains why the title of the Law refers to the occupation.
Meanwhile the specific feature of subjective element is addressed in the preamble of the Law. That is the continuity of the Russian State and the corresponding identity of its international legal personality with the Soviet Union, which was claimed by Russia and generally recognised by the international community. Therefore under international law the Russian Federation is the State continuing the rights and obligations of the former USSR (i. e., it is the same international legal person). Consequently, internationally wrongful acts of the latter, including the Soviet occupation of Lithuania and the other two Baltic States, should be attributable to the Russian Federation.
Apart from the ground for Russia’s responsibility, the issue of reparation is addressed in the article. In accordance with international law (the ILC Draft Articles), the principle of full reparation should be applied to realise responsibility for an internationally wrongful act. The full reparation for the injury can be provided in the form of restitution, compensation and satisfaction, while any financially assessable damage should be covered by compensation when restitution is not practically possible. Responsibility for the Soviet occupation is the latter case. Therefore in this sense the Law concretises the claim of Lithuania as it lays down the obligations of the Government of Lithuania to calculate the damage and seek its compensation from Russia. In conformity with the principle of full reparation, the provisions of the Law require to calculate the damage for all period of the Soviet occupation as well as to cover all types of financially assessable damage.
The third main issue addressed in this article is admissibility of a claim for reparation, i. e. the procedural requirements to be observed by the injured State invoking an international responsibility of other State. The main requirement, as follows from Art. 43 of the ILC Draft Articles, is that the injured State should give a timely and proper notice of its claim to the State responsible for an internationally wrongful act; the claim is not admissible when it is waived by the injured State or it can be inadmissible when it is not maintained. However a mere lapse of time without a claim is being resolved, including delay in its prosecution due to refusal of the respondent State, can not result in loss of the right of the injured State to invoke responsibility. In this regard the Law is a unilateral act of the State of Lithuania which formulates and concretises the claim for Russia’s responsibility. The form of this act was determined by Lithuanian national rather than international law as the former requires that any compulsory rules or instructions for the Government can be laid down by the Seimas (the Parliament) only in the form of (statutory) law. As it is clear from the preamble of the Law, in continuing and consolidating the previous Lithuanian acts invoking Russia’s responsibility the Law demonstrates that the claim for responsibility has been raised without any unreasonable delay a long time ago (the first time Lithuania declared about its claim for reparation in 1991) and Russia is aware of that claim from the very beginning. In such a manner the Law also proves a consistent and unchanging position of Lithuania with regard to Russia’s responsibility.
Therefore the Law evidences that the claim of Lithuania remains admissible although still being unresolved and notwithstanding that Russia is rejecting it. Under international law the injured State has the right to waive its claim for responsibility of another State. National law may, however, restrict that right in setting up appropriate duties for the authorities of the injured State. In this regard it follows from the preamble of the Law that under Lithuanian constitutional law no State organ or official can declare a waiver of the claim for Russia’s responsibility because the Law is based on and aims at implementation of the corresponding decision by the 14 June 1992 national referendum that demanded to seek reparation for the Soviet occupation.
To sum it up, it can be concluded that the Law is based on and is consistent with the rules of international law. It also implements the international legal requirements for the proper declaration and maintenance of the claim for reparation.
Therefore both under international law and under Lithuanian constitutional law the Law has been necessary to consolidate and consistently maintain the claim to Russia for the compensation of the damages caused by the Soviet occupation.
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