Suchergebnisse

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 & 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 & illegal occupation of the Baltic States has been widely recognized by the international community, it was even acknowledged by the USSR & 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 & the corresponding identity of its international legal personality with the Soviet Union, which was claimed by Russia & generally recognized by the international community. Therefore under international law the Russian Federation is the State continuing the rights & obligations of the former USSR (ie., it is the same international legal person). Consequently, internationally wrongful acts of the latter, including the Soviet occupation of Lithuania & 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 Article), the principle of full reparation should be applied to realize responsibility for an internationally wrongful act. The full reparation for the injury can be provided in the form of restitution, compensation & 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 concretizes the claim of Lithuania as it lays down the obligations of the Government of Lithuania to calculate the damage & 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, ie., 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 & proper notice of its claim to the State responsible for an internationally wrongful act; the claim is 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, cannot 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 & concretizes 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 & 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) & Russia is aware of that claim from the very beginning. In such a manner the Law also proves a consistent & 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 & 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 & aims at implementation of the corresponding decision by the 14 June 1992 national referendum that demanded to seek reparation for the Soviet occupation. Therefore, the waiver can be declared only by other referendum as well as without a referendum the Seimas cannot abolish the provisions of the Law requiring to seek a compensation (such kind of action could amount to the waiver in the sense of Art. 45(a) of the ILC Draft Articles). To keep the claim for responsibility of another State admissible & valid, when it is being unresolved a long time, the injured State should do everything it can reasonably do to maintain the claim. Otherwise it can be questioned, whether the right to invoke responsibility is lost due to conduct of the injured State in the sense of Art. 45(b) of the ILC Draft Articles. Therefore, to avoid similar doubts the Law obliged the Government to seek constantly the compensation for the damage caused by the Soviet occupation. Since Russia used to reject Lithuania's initiatives to conduct negotiations on the matter & any other way of settlement is not available without Russia's consent, it can be stated that as yet, in particular due to the Law, the conduct of Lithuania has not raised any serious doubts with regard to validity of its claim for compensation. Obviously such doubts would be serious if any kind of moratorium on the claim had been announced. To sum it up, it can be concluded that the Law is based on & is consistent with the rules of international law. It also implements the international legal requirements for the proper declaration & maintenance of the claim for reparation. Therefore both under international law & under Lithuanian constitutional law the Law has been necessary to consolidate & consistently maintain the claim to Russia for the compensation of the damages caused by the Soviet occupation. Lastly, it should be noted that a proper settlement of the problem of Russia's responsibility for the Soviet occupation of Lithuania is not a question of self-interest for Lithuania & it should pursue the claim for compensation not only due to the decision by the 14 June 1992 referendum. Not accidentally Art. 1 of the ILC Draft Articles refers that "every internationally wrongful act of a State entails the international responsibility of that State." It is also not accidentally that the preamble of the 1991 Treaty between Lithuania & Russia states that mutual confidence between the people of both Parties is hard to achieve without elimination of the consequences of the Soviet annexation of Lithuania. Like for national law, rule of law & justice cannot be established without realization & inevitability of responsibility for grave breaches of international law. Therefore the realization of responsibility for the 1940 aggression against the Baltic States & its consequences would undoubtedly contribute to general prevention of such grave breaches as well as would assure that similar tragic events never happen again in the history of Lithuania. Such kind of prevention should be at the focus of attention of the whole international community rather than only Lithuania & the other two Baltic States, since a prohibition of aggression is a long-standing rule of jus cogens character & obligation erga omnes towards international community. Adapted from the source document.

Regardless of the popular wisdom to make predictions in negotiations as if they always reflect the right according to the Bible -- that "to every one who has will more be given" -- this article starts with observation that weaker parties can & do sometimes successfully negotiate with stronger parties. Naturally this provokes questions: "Why can weak parties successfully negotiate with the stronger parties in asymmetric negotiations? How to explain this structural paradox?". The article argues that these questions would be old & answered if not for the long lasting tendency in the international relations discipline to analyze international negotiations from the point of view of the traditional power understanding, as well as systemic international relations theories. On another hand, difficulties objectively arise due to the fact that analysis of the structural paradox is connected to the problem of power -- one of the most complex & difficult to define categories of the social science. And although much has been done recently in the social science to improve our understanding of the concept of power, it is still unclear what is the best way to conceptualize it. Detaching the notion of power from resources, in this article power is associated to the structure of negotiation, comprising of number of parties, interests, resisting points & possible zone of agreements, thus leaving the concept of power open to much more detail & accurate analysis. Having said that the structural analysis does not renounce the importance of resources all in all since every negotiation begins with a certain distribution of actor characteristics that are given. However, important are only the issue related characteristics. Moreover, as the structural model of analysis demonstrates, power is not a constant. The structural characteristics can be "photographed" at the beginning but may change during the process. In addition, the structure may be manipulated that in turn indicates that power is also a matter of perception. Perception mediates objective negotiating structure, although reality imposes certain limits on the implication of perceptions. The structural model of analysis permits to make the following propositions about power. The lower value that a party to a negotiation assigns to its resistance point, the less power it will have, because: The more it will perceive a negotiated agreement primary in terms of the gains it offers over the non-agreement alternative as well as other factors that shape the resistance point; The more risk averse it will be to achieve those gains; The more willing it will be to make concessions. Conversely, the higher value that a party to a negotiation assigns to its resistance point, the more power it will have, because: The more it will perceive a negotiated agreement primary in terms of the loss it entails as compared to the non-agreement alternative and other factors that shape the resistance point; The more risk seeking it will be to avoid those losses; The more it will be to withhold concessions. Adapted from the source document.