Demographic Continuity and Constitutional Politics in the Baltic Restorations

Abstract

The idea of making a distinction between token and generic restorations was suggested by a reading of the excellent PhD dissertation (defended at the University of Columbia) by the Estonian political scientist Vello Pettai ‘Framing the Past as Future: The Power of Legal Restorationism in Estonia’, who process-traced the struggle between the two wings of the Estonian independence movement in 1988–1991 (Pettai 2004, 2007). One wing was represented by the Estonian Popular Front, led by the most distinguished Estonian scholars, artists and other public figures, who were part of the establishment of late Soviet Estonia, many of them belonging to the Communist Party. They advocated the restoration of independence using the framework of Soviet institutions.

The idea of making a distinction between token and generic restorations was suggested by a reading of the excellent PhD dissertation (defended at the University of Columbia) by the Estonian political scientist Vello Pettai ‘Framing the Past as Future: The Power of Legal Restorationism in Estonia’, who process-traced the struggle between the two wings of the Estonian independence movement in 1988–1991 (Pettai 2004, 2007). One wing was represented by the Estonian Popular Front, led by the most distinguished Estonian scholars, artists and other public figures, who were part of the establishment of late Soviet Estonia, many of them belonging to the Communist Party. They advocated the restoration of independence using the framework of Soviet institutions.

This would involve winning the election to the Supreme Soviet of the Estonian Soviet Socialist Republic (ESSR), building a government that would then negotiate Estonia’s secession from the Soviet Union, using its constitutional right as a union republic. Uniquely among the communist federations (and federations generally), this kind of right was granted to union republics in the Soviet constitutions of 1936 and 1977. In turn, the independent Estonia, emerging out of a successful secession (Third Republic), would be a new state, the successor to the Estonian Soviet Socialist Republic (Second Republic, since 1940) with no immediate connection to the First Republic of Estonia (1918–1940) (Pettai 2004: 156–160).

Their opponents consisted of anti-Soviet dissidents (many of them former political prisoners), or members of the ‘anti-systemic’ opposition. Their breakthrough came with the establishment of the Estonian Citizens’ Committees (ECC) movement on 24 February 1989. Its aim was to convene the Congress of Estonia as the only legitimate legislative body entitled to restore the independence of Estonia. In their view, the Supreme Soviet of the ESSR was not a legitimate authority entitled to restoring the independence of Estonia because it would have been elected under continuing occupation (marked by the presence of the Soviet Army on Estonian soil), in accordance with the laws of an occupying power (the Soviet Union), and by an electorate that included many persons unauthorised to vote (immigrants from the other Soviet republics after 1940 and members of the Soviet military). The Congress of Estonia had to be elected only by legitimate voters, who included citizens of the Republic of Estonia as of June 1940 and their offspring (Taagepera 1993: 58–60).

The initiative was a huge success, sparking the network of Citizens’ Committees, which registered 845,000 residents of Estonia (including children registered by their parents) out of an estimated 910,000 residents who qualified as citizens of the Republic of Estonia in a total population of 1.569 million (1990). In all, 590,000 qualified voters participated in the election to the Congress of Estonia, held on 24 February 1990, or 98% of all adults who registered and 91% of all adults who qualified (Taagepera 1993: 174). There were 1,164,603 adults in Estonia, who were entitled to participate in the election to the last Supreme Soviet of Estonia on 18 March 1990, of whom 911,903 did actually participate (Nohlen and Stöver 2010: 574).

In neighbouring Latvia, a twin movement of the Citizens’ Committees emerged, achieving only somewhat slightly less success (in terms of numbers of persons registered). At the election to the Latvian Republic Citizens’ Congress on 8–24 April 1990, there were 678,862 citizens and 28,910 applicants who participated (Jundzis 2011: 210), from a total number of 806,974 who were registered by the time of the election (Jundzis 2017b: 275). This equalled 41.2% of the adult population of Latvia (1,960,638 in a total population of 2.668 million; voter turnout—1.593,018) who were entitled to participate in the election to the last Supreme Soviet of Latvia on 18 March 1990 (Nohlen and Stöver 2010: 1122).

I would argue that the key to the success of both movements was the presence of a critical mass of survivors from the interwar period, who already had citizenship rights of the Estonian and Latvian republics. Had the liberalisation and democratisation of the Soviet Union started some 20 or 30 years later (in the 2010s or 2020s), it would have certainly sparked an independence movement in the Baltic countries either way (as can be expected in the Russian Tatarstan or Sakha (Yakutia) republics after Putin’s demise). However, with no survivors from the interwar years, it is difficult to imagine the rise of the utterly vital grass-roots movement needed to register (second and third generation?) descendants of citizens of republics that had been made extinct 60 or 70 years earlier.

However, what would have resembled sheer extravagance or otherworldliness in Soviet Estonia in 2010 or 2020 was not yet so in 1989, with so many survivors from the interwar republics amid their offspring and immigrant population. Time matters, as it has the power to shape perceptions of what is just and what is unjust. As long as the indigenous population of Estonia (the same applies to Latvia and Lithuania) included so many citizens of the interwar republic with living memories of the Soviet invasion and brutal Stalinist repressions, immigrants from the other Soviet republics could only be perceived as illegitimate settlers or colonists.

However, this kind of perception would not be so obvious after the attrition of survivors and generational change, making the Russian-speaking population consist mainly of persons born in this land and so entitled (by jus solis) to consider this country as their homeland. Had the struggle for independence in the Baltic countries been launched and won some 20–30 years later, it would have succeeded only in promising and granting citizenship rights to all the permanent residents of Estonia, as the Estonian Popular Front had proposed in 1988–1989.

Counterfactual restoration of independent Estonia in 2010 or 2020, based on the principles and promises of the Estonian Popular Front in 1988–1989, would have been a restoration of Estonia’s independence, too. However, this would have been a very different variety of restoration, one that can be described as a ‘type restoration’, involving no establishment of institutional continuity with the historical interwar Baltic states. This means that the struggle between the two wings of the independence movements in the Baltic countries in 1988–1990 can be described as a struggle between proponents of token (Citizens’ Committees movements) and type (popular fronts) restorations, or simply between tokenists and typists.

Alternatively, the very opposition between token and type restorations can be considered simply as a generalisation of the opposition of the ideas fostered by Citizens’ Committees movements and popular fronts regarding restoration of independence. Generalisation makes this opposition applicable to cases of other countries and situations, involving not only the restoration of statehood. Andres Kasekamp (2010: 166) describes the Citizens’ Committees approach to independence restoration as ‘fundamentalist’. Due to the favourable circumstances created by the failure of the August putsch in 1991, the fundamentalist approach triumphed in Estonia and Latvia. The most conspicuous expression of this triumph is citizenship legislation in these two Baltic countries, which excludes Soviet-era immigrants. Of course, they are entitled to apply for citizenship as immigrants who settled here after the restoration of independence. In both countries, the granting of citizenship is conditional on passing language and ‘political literacy’ tests. In Latvia in the 1990s, there were also annual naturalisation quotas, which were later abolished (Agarin 2010).

Another expression of the triumph of the token or fundamentalist approach is the territorial claims made by Estonia and Latvia upon the Russian Federation (see Map 5.1). Defining themselves as identical to interwar Estonia and Latvia, the post-Soviet Baltic states considered as part of this identity those territories that were negotiated with Soviet Russia when entering into the peace treaties of Tartu (2 February 1920; Estonia and Russia) and Riga (11 August 1920; Latvia and Russia). This territorial identity was violated in 1944–1945 when the Jaanilinn/Ivangorod and Petseri/Pechory areas were ripped away from Estonia, and the Abrene/Pytalovo area was taken away from Latvia. Thus, the territory of Estonia contracted from 47,450 to 45,228 km², or by 4.68% (Estonija 2008: 15), and that of Latvia from 65,685 to 64,573 km², or by 1.69% (Nacionālā Enciklopēdija Latvija 2018: 37).

Map 5.1

Border changes of the Baltic countries in 1939–1991. Source: author’s own production, credits to Vaidas Morkevičius for his assistance. Dotted lines denote interwar borders (if they differ from borders since 1991 (solid line)). 1 and 2 are parts of the interwar territory of Estonia and Latvia detached in 1944–1945; 3 is the Vilnius region (under Poland’s control in 1920–1939); 4 is the Klaipėda region (part of Lithuania in 1923–1939 and since 1945)

The size of the share of survivors from the original system depends only on the duration of time that has passed since its extinction and on the demographic situation. Generally, their share decreases under the conditions of high birth rates (which was not the case in Estonia and Latvia) or high immigration, which usually involves a population of a younger age (and this indeed did apply). The increase of life expectancy among advanced-age generations also slows down the attrition of survivors, making demographic continuity last longer. Larger shares of survivors mean a larger number of stakeholders in the restitution of nationalised property or those who perceive it as just. It is they who make ‘the impossible return of the past’ (Démier 2012) practicable via the restitution of ancient property rights, decreasing transaction costs in identifying legitimate claimants and solving their conflicts, which are unavoidable between successors who are not immediate heirs.

However, higher shares of survivors only provide the possibility for enacting a token restoration. Differently from type restorations, which happen because of the generic similarity between original and restored systems, token restorations are enacted by performing a selection of actions from a broad repertoire, which are appropriate to affirm or establish continuity with the claimed original system. Sticking to a token or fundamentalist restoration still left a large menu of different ways of enacting a restoration or building identification with interwar statehood. The choice between these methods depended on the specific domestic and international conditions existing in particular countries.

The idea of excluding the immigrant population from gaining citizenship had strong support among the indigenous populations because they had strong reasons to fear that in the type-restored Estonia and Latvia, political parties representing the Russian-speaking minority (making up 33% of the total population in Estonia and 40% in Latvia as of 1990) would have a decisive political influence. This would force the restored independent state to gravitate in foreign politics towards Russia as the successor state of the Soviet empire, hollowing out their independence.

So while the still strong (by 1989–1991) demographic continuity with the interwar Baltic states accounts for the very possibility of a tokenist approach to the restoration of independent states, the presence of such large shares of an immigrant population explains why the Estonian and Latvian tokenists upheld the exclusion of immigrants from citizenship as a means of constructing continuity between restored states and their interwar antecedents. Exclusionary citizenship legislation and claiming the borders according to the peace treaties of 1920 were sufficient (and thus had substitutes) as a means of constructing continuity. However, they could be perceived necessary only under the specific Estonian and Latvian demographic conditions, making the indigenous population feel as if they were on the brink of becoming minorities in their own countries.

Thus, the composition by age of the populations of Estonia and Latvia explains why the tokenist or fundamentalist approach to the restoration of independence received stronger support than the typist alternative represented by popular fronts until the early 1990s, when they (on the eve of the last elections to the last Supreme Soviets of the Baltic Soviet republics in February–March 1990) embraced tokenism as well. Nevertheless, the exclusion of Soviet-era immigrants from citizenship rights or declining to accept the administrative boundaries between the fSU republics as independent state borders was a disponible political option. There were alternative ways (substitute policies) of constructing continuity with interwar statehood.

The comparison of these Estonian and Latvian practices of restoration with how it was performed in Lithuania supports this argument. Unlike its neighbours, Lithuania accepted the administrative boundaries of the Lithuanian Soviet Socialist Republic as its state borders and granted citizenship rights to the entire permanent population of Lithuania at the time (11 March 1990) the restoration of independence was proclaimed. However, this does not mean that the Lithuanian restoration of an independent state was not of the token variety. Influential political forces existed in Lithuania, which advocated exclusion of the Russian-speaking ‘colonists’ from citizenship rights and even repatriation to their homelands.

Their ultimate failure on this front was related to the political expediency calculations of Lithuanian political leaders during the years of ‘extraordinary politics’, based on the very different ethnic composition of Lithuania’s population, marked by the absolute (approximately 80%) dominance of ethnic Lithuanians. Feeling no imminent danger of ‘becoming a minority in their own land’, ethnic Lithuanians (differently from the majority of ethnic Estonians and Latvians) did not support politicians who advocated the exclusion of Soviet-era immigrants from citizenship.

Lithuania’s decision not to perform restoration in the Estonian and Latvian ways, i.e. restricting citizenship only to survivors from interwar Lithuania and their offspring, was intimately related to the restored state’s acceptance of the administrative boundaries of the Lithuanian Soviet Socialist Republic as its state borders. Bluntly put, they were accepted because under Soviet occupation, Lithuania’s territory had expanded from 59,731 km² (as of 15 June 1940) to 65,300 km², or by 9.32%. This is much less than the territory of Lithuania (88,111 km²) according to the peace treaty with Soviet Russia, signed on 12 July 1920 in Moscow, and border agreements with Latvia and Germany, which the interwar Republic of Lithuania claimed as its legitimate territory in 1924 (Pakštas 1968: 461). However, differently from restored Estonia and restored Latvia, restored Lithuania did not claim its borders according to the 1920 Moscow Peace Treaty as a definition of its territorial identity, as during the interwar years it became involved in a conflict with Poland over a large part of its claimed territory.

According to the peace treaty between Poland and Soviet Russia signed in Riga on 18 March 1921, the border between Poland and Soviet Russia was established east of the Soviet–Lithuanian border, making the establishment of Lithuania’s eastern border an issue of Lithuanian–Polish relations. Poland used its military superiority to seize Vilnius and draw the border line on its terms. This border was internationally recognised by the Allied powers on 18 March 1923. Lithuania did not recognise this decision until March 1938, when Poland forced it, by ultimatum, to establish diplomatic relations (Butkus 2019).

Ultimately, Lithuania did become a beneficiary of the Molotov–Ribbentrop Pact, being rewarded for its unyielding position in the conflict over Vilnius, which in 1920–1938 was one of many frozen international conflicts in Eastern Europe, undermining the Versailles rehabilitation of international order. Until the signing of the treaty between Lithuania and Poland on 26 April 1994, confirming the present borders between the two states, the secret protocols of the Molotov–Ribbentrop Pact and the Soviet–Lithuanian Mutual Assistance Treaty of 10 October 1939 were the only international law acts providing grounds for Lithuania’s control over Vilnius. According to this treaty, Lithuania did receive together with Vilnius only a small part of the territory which it had been assigned according to the Moscow Peace Treaty of 12 July 1920. After Lithuania’s annexation in 1940, its territory was augmented, including some additional areas with an ethnically Lithuanian population.

The most valuable addition was the Klaipėda region that had been separated from Germany according to the Treaty of Versailles in 1919. As compensation for the loss of Vilnius, it was attached to Lithuania since 1923 as its autonomous province. Lithuania’s rule was supervised by the signatory powers (Great Britain, France, Italy, Japan) of the Klaipėda Convention, signed on 8 May 1924 in Paris. The signatory powers repeatedly intervened to censure Lithuania’s government, based on complaints of encroachment upon the rights of the German minority and voiced by its political parties and supported by the German government. However, they did not protest when, on 22 March 1939, Germany forced Lithuania to sign a treaty transferring the Klaipėda region back to German rule, and Great Britain even recognised this change de jure on 15 May 1939 (Plieg 1932: 222–223).

In 1945, the Klaipėda region was attached to the Lithuanian SSR, while the neighbouring part of Eastern Prussia became the Kaliningrad (formerly Königsberg) Oblast of the USSR, according to the Allied powers’ Potsdam agreements. However, the status of the Klaipėda region was not explicitly regulated in these agreements. Aside from Germany’s refusal to claim its territories east of the Oder–Neisse line, the Soviet decision to attach the Klaipėda region to occupied Lithuania remains as the sole legal basis of its belonging to today’s restored independent Lithuania. With such a complicated history and shaky international legal foundations for Lithuania’s eastern and western borders, it was simply politically unwise for the government of the restored Lithuanian state to insist on the illegality of all territorial changes under Soviet occupation made after 15 June 1940.

The instability of Lithuanian interwar borders made application of the Estonian and Latvian example of state continuity construction by exclusionary citizenship legislation a difficult (if not impossible) endeavour. Taking under its control Vilnius and the surrounding area in late October 1939, the independent Republic of Lithuania immediately recognised the citizenship rights of those who were then inhabitants (or their offspring) of the new territories under its control before 1920, excluding ‘Polish colonists’—persons who had settled there between October 1920 and September 1939, when these territories were ‘under Polish occupation’. Another category within the population with no rights to Lithuanian citizenship was war refugees who had arrived in the Vilnius area in September–October 1939.

By May 1940, there were 97,893 persons in the Vilnius area without Lithuanian citizenship (Žepkaitė 1990: 54), or 20.3% from the total of 482,500 persons who were living in Lithuania’s newly acquired territory by the end of 1939 (Gaučas 1978: 66). Some ‘Polish colonists’ would have certainly acquired Lithuanian citizenship according to the naturalisation laws of interwar Lithuania, if it would have outlasted June 1940, like so many ‘Russian colonists’ in the restored independent Estonia and Latvia after 1991. However, in 1989–1991 it would have been most definitely politically counterproductive to launch discussions on how to sort out people within the population of Eastern Lithuania based on who is entitled to register as a Lithuanian citizen and who is not. This would have only further fuelled the separatist mood among the Polish minority of Lithuania and complicated relations with Poland, from whom Lithuania expected support for the restoration of its independence.

Finding itself deprived, by lucky circumstance, of options to construct its identity with the interwar Republic of Lithuania through territorial claims or exclusionary citizenship politics, restored independent Lithuania chose another path. Already after the international recognition of its restored independence, Lithuania confronted Russia as the successor of the USSR with demands to compensate damages incurred during occupation. These demands were voiced for the first time in the referendum on 14 June 1992, where it was coupled with the demand to immediately withdraw Russian troops from Lithuania. On 13 June 2000, the Lithuanian Seimas accepted the Law on Compensation of Damage Resulting from the Occupation by the USSR. An expert commission was established to calculate the size of the damages (Žalimas 2003: 153).

This commission could use the conclusions of an earlier commission that functioned in 1996–1997 under the Minister of the Economy Vincas Babilius, which estimated the damage of the Soviet occupation in 1940–1990 to the sum of 667.7 billion US dollars at the current rate. The new commission estimated damages for the 1990–1993 period, including also the few years after restoration of independence, when the Russian military was still on Lithuanian soil. In the new estimate, the experts distinguished between direct (20 billion 2000 US dollars) and indirect (780 billion US dollars) damages (Satkauskas 2003).

Until now (2022), Lithuania remains the only Baltic (and more generally the only post-communist) state to have officially filed for reparation of damages incurred under Soviet occupation. In Latvia, a standing commission of historians was established to estimate the damage of the Soviet occupation, producing a series of reports and conducting an international conference (Prikulis 2012). Important archive discoveries were made producing evidence that Latvia’s contribution to the USSR budget was always larger than transfers therefrom (Krūmiņš 2017: 289–298). However, there was no attempt to promulgate legislation of the Lithuanian type, and Estonia remained completely aloof regarding further work on the estimation of occupation damages after the release of an early initial report (Salo 2005). It seems that the self-assertiveness of the Baltic countries in the reparation issue stands in reverse relation to their occupation-related territorial losses: Estonia, which lost the largest slice of its territory (as a percentage of its territory in June 1940), is the least self-assertive. Lithuania, which made gains and had no losses, is the most assertive. Latvia, which lost a somewhat smaller part of its territory than Estonia, lies in the middle—it is progressing towards an official damage estimate but is not yet voicing its damage reparation claims.

The reason for these differences is the Russian refusal to even consider border corrections in favour of Estonia and Latvia. Given this refusal, the addition of any further claims to this basic restitutive concern is pointless. Yet, for Lithuania, which has no territorial conflict with Russia or permanent altercations with Russia on alleged violations of the rights of its Russian-speaking minority, the case for reparations is a convenient (and optimal) way of perpetually affirming its continuity and identity with the interwar Republic of Lithuania (arguably, Russia could preempt Lithuanian reparation claims by refusing to recognise the legitimacy of Lithuania’s possession of Klaipėda).

The most basic acts of continuity construction made by the Baltic states were of course the independence restoration acts of all three states and their constitutions. Being certain of the support of the absolute majority of the Lithuanian population, the Lithuanian Popular Front (called the Lithuanian Reform Movement (LRM); Lietuvos Persitvarkymo Sąjūdis) under the leadership of Vytautas Landsbergis and Romualdas Ozolas pressed ahead first, not making an issue of questions that were so tantalising to activists from the Estonian and Latvian Citizens’ Committees movements: does running as a candidate (or voting) in the election to the supreme soviets (parliaments) of Soviet republics imply recognition of their legitimacy and collaboration with the occupying power? Are such parliaments entitled to restore de jure or de facto interwar states? The leaders of the LRM did not perceive any problems, considering the Soviet institutions merely as a prop that could be abandoned at the moment when the ultimate aim—winning power and proclaiming independence—would be achieved (Laurinavičius and Sirutavičius 2008: 502–540).

The day after (11 March 1990) the first meeting of the newly elected parliament (Seimas) of Lithuania (which was the last legislature of Soviet Lithuania, becoming the first legislature of restored independent Lithuania), it proclaimed restoration of the independence of the Lithuanian state, affirming its continuity with the Lithuanian state that had been established in 1918–1920. Besides these references, legal continuity of the post-Soviet Lithuanian state and the interwar Republic of Lithuania was constructed by reinstating, at the same meeting on 11 March 1990, the last Constitution of interwar Lithuania, promulgated on 12 May 1938. A subsequent act passed on the same day replaced this constitution with a Provisional Constitution, which was ‘a hybrid of that of 1940 and the extant Constitution of the LiSSR’ (Misiunas and Taagepera 1993 (1983): 333). It remained in force until the referendum of 25 October 1992, when the new permanent constitution was accepted. It can in turn be described as another ‘hybrid’ of the super-presidential 1938 and parliamentary 1922 constitutions, establishing a semi-presidential democracy in Lithuania (Norkus 2013), fortunately surviving at the time of publication in 2023.

By reinstating and then immediately abolishing the 1938 Constitution, the deputies of the Lithuanian Supreme Soviet were not concerned whether it was legally possible to reintroduce the 1938 Constitution. They also had no concerns or doubts about their right to replace it with a different constitution in the way this was done. From the legal point of view, once the 1938 Constitution was reinstated, it could be changed only by proceeding according to its regulations. A three fifths majority was necessary to make any such changes, and the President of the Republic of Lithuania had to endorse these changes. However, on 11 March 1990, Lithuania had no (and could not have) a president elected according to the Constitution of 12 May 1938.

The procedures followed by the supreme soviets of Estonia and Latvia, where popular fronts won constitutional majorities (supported also by a significant proportion of Russian-speaking voters), were similar but more guarded and gradual. Instead of proclaiming restoration of Latvian independence outright, the Latvian Declaration on the Restoration of Independence of the Republic of Latvia (Deklarācija par Latvijas Republikas neatkarības atjaunošanu), accepted on 4 May 1990 by the newly elected parliament, only proclaimed the beginning of its restoration. It contains an extensive historical preamble, which relates the main historical facts on how Latvia lost its independence, ending with a summarising statement that ‘according to international law, the incorporation of Latvia into the Soviet Union is invalid. Accordingly, the Republic of Latvia continues to exist de jure as a subject of international law and is recognised as such by more than 50 nations of the word’ (cit. According to Deksnis and Talavs 2015: 226).¹ It also very clearly describes the role of newly elected parliament: ‘to restore de facto the free, democratic and independent Republic of Latvia’ (cit. According to Deksnis and Jundzis 2015: 227), which is the only legally coherent interpretation assuming its continuing existence de jure at the moment when the declaration was issued.

In the same document, the newly elected Latvian Supreme Council declared the annulment of the declaration on the accession of Latvia to the Soviet Union that had been accepted by the puppet legislative in 1940 and reinstated the Constitution of Latvia (Satversme) of 1922. In the next sentence, this constitution was suspended until the adoption of its new edition, except for four articles: ‘Latvia is an independent democratic republic’ (Art. 1); ‘The sovereign power of the State of Latvia is vested in the people of Latvia’ (Art. 3); ‘The territory of the State of Latvia, within the borders established by international agreements, consists of Vidzeme, Latgale, Kurzeme and Zemgale’ (Art. 4); and ‘The Saeima shall be elected in general, equal and direct elections, and by secret ballot based on proportional representation’ (Art. 6) (cit. According to Deksnis and Jundzis 2015: 227).

These articles are singled out because according to the 1922 Constitution, they could be changed only by a national referendum. The declaration closed with the regulation that until the end of the transitional period, constitutional norms of the Latvian SSR and other Soviet legislation may be applied, as far as they do not contradict Articles 1, 2, 3 and 6 of the Constitution of Latvia cited above. The end of the transition period is described as the first session of the new Saeima (parliament). Setting the example for Estonian legislators, the declaration closes by proclaiming the Latvian–Soviet Peace Treaty of 11 August 1920 as the basis for future relations with the Soviet Union, with details to be negotiated by a special government commission (see also Blūzma et al. 1998; Jundzis 2017a, b).

The newly elected parliament of Estonia stated that the interwar Republic of Estonia continues to exist de jure and proclaimed the beginning of its de facto restoration (restitutio ad integrum) on 30 March 1990, postulating that it would continue until fully legitimate authorities (constitutional organs) of the republic could be formed. In order to complete the restoration of independence, during the transitional period the country would be governed according to provisional constitutional rules. The tacit assumption was that completion of the restoration of independence would be possible only after the occupation of Estonia would end after the withdrawal of the Soviet army. This assumption was imposed by the Committee of Estonia, which was the executive body of the Estonian Congress, before the Supreme Council (Graf 2007: 401).

However, provisional constitutional rules for the transitional period were promulgated only on 8 May 1990, broadly following the Latvian precedent. Namely, it restored the pre-Soviet name of the state (the Republic of Estonia) and reinstated five out of six articles of the first chapter (General dispositions) of Estonia’s 1937 Constitution (enacted on 1 January 1938), starting with Art. 1: ‘Estonia is an independent and sovereign Republic wherein the supreme power of the State is held by the people’ (cit. According to Graf 2007: 482). Most daringly, on 16 May 1990, the Estonian parliament announced that relations between the Republic of Estonia and the USSR should be based on the Tartu Peace Treaty of 2 February 1920, which implied Estonia’s territorial claims upon the USSR or the RSFSR due to changes made to Estonia’s administrative borders during the Soviet times (Graf 2007: 483–484).²

There were three reasons for Estonia’s and Latvia’s preference for taking a gradual approach to state independence restoration. Firstly, counter to what the Lithuanian leaders expected, the restored independent Lithuania was not immediately recognised by the US and other Western states. Their expectation was based on the policy of nonrecognition of the annexation of the Baltic states, which will be discussed in the next chapter. However, in the spring of 1990, the United States was anxious to endanger the position of Gorbachev, and West Germany needed him to be in government until the German reunification was complete (Spohr-Readman 2008).

Secondly, the Soviet government imposed economic sanctions, stopping the delivery of oil and fuel and reducing gas supply to Lithuania by 80%. Understandably, the newly elected leaders of Estonia (Chairman of the Supreme Council Arnold Rüütel, Prime Minister Edgar Savisaar) and Latvia (Chairman of the Supreme Council Anatolijs Gorbunovs, Prime Minister Ivars Godmanis) preferred to avoid sanctions for their republics or even the imposition of direct presidential rule by Gorbachev. This was the main demand of the local ‘interfront’ movements, supported by the directors of enterprises that employed a predominantly Russian-speaking workforce and reported directly to ministries in Moscow. Wisely, the Balts consistently upheld the tactic of staging non-violent resistance, depriving Soviet conservatives in Moscow of pretexts for counter-measures (Misiunas and Taagepera 1993 (1989): 329–336; Taagepera 1993: 177–207; Bleiere et al. 2014: 437–457).

The third and most important reason was the opposition of the citizens’ congresses, which were parallel or shadow legislatures, contesting the right of supreme councils to proclaim complete restoration of independence, as they were elected under the conditions of continuing Soviet military occupation and with the participation of ‘colonists’. Considering themselves as the only legitimate bodies capable of restoring the independence of the Baltic states in a legally ‘clean’ way, the congresses nevertheless abstained from proclaiming restoration of independence themselves. They correctly calculated that Moscow would not enter into negotiations on the issue of de-occupation, and they were barely able to govern. Thus, they reserved for themselves the role of the top or spiritual moral authority, leaving matters of practical politics to the governments appointed by the supreme councils, despite their ‘sinful’ origins.

Inadvertently, the leaders of the citizens’ congresses mimicked the stance of the medieval Catholic Church regarding secular authorities. This parallel may also help us better understand how many leaders of Citizens’ Committees movements (e.g. Mart Laar, the future Prime Minister of Estonia in 1992–1994 and 1999–2002) could run for (and win) seats in the supreme councils, considered by themselves as illegitimate. To recall, the medieval Catholic Church did not self-restrict the extent to which it exercised spiritual power, with many Catholic bishops also exercising secular power in their bishoprics, while the Catholic popes ruled over the Papal States and continue to rule the State of the Vatican City even now.

Meanwhile, the principled standpoint of the citizens’ congresses was that restoration of independence should be preceded by de-occupation, meaning withdrawal of the Soviet Army, and could be completed only by a government elected through the participation of legitimate citizens alone. The popular front governments were considered just as provisional transition governments for negotiating the withdrawal of the Soviet Army and organising (in collaboration with the Citizens’ Committees) truly legitimate elections with participation of only ‘genuine’ citizens (Pettai 2004: 177–195).

The modus vivendi between the self-perceived legitimate, albeit powerless, citizen congresses and governments, appointed by semi-legitimate (legitimate because of the democratic character of election but illegitimate because of the foreign occupation status and the participation of immigrants) supreme councils, was based on the acceptance of the basics of the tokenist approach by popular fronts on the eve of elections to republican legislatures in February–April 1990. This was affirmation of the continuity and identity of the newly restored states with the interwar Baltic states, implying that the Baltic states are sovereign states under foreign occupation, so that Soviet legislation on the secession of union republics does not apply to them.

According to this legislation, which was passed by the USSR Supreme Council on 3 April 1990, two thirds of the permanent residents of seceding republics should approve secession by referendum. After a 5-year transition period, the referendum had to be repeated, if this was demanded by at least one tenth of the USSR citizens permanently residing in the republic’s territory. The conduct and results of both referendums were subject to ‘examination’ by the union parliament, which was entitled to impose a repeat referendum in case of ‘irregularities’. The territories densely populated by non-titular ethnic groups received the right to secede from the seceding republics themselves (Van Elsuwege 2008: 50). Under the terms of this law, Estonia and Latvia had a realistic chance to secede only if secession would be supported by a large part of the immigrant population, which thus could not be excluded from having citizenship rights.

Clearly, the establishment of independence of the Baltic republics under the Soviet 1990 law could produce only a type restoration of the Baltic states. They would be new independent states, defining themselves as the successor states of these republics but not as continuators of the interwar states. Basing on the thesis of the continuity restored in the Baltic states with their interwar counterparts, the new governments of the Baltic republics insisted that relations between them and the Soviet Union government was not an issue of domestic Soviet law but of international law. The standoff was almost miraculously resolved by the failure of the August putsch in 1991.

The outcome was miraculous from the viewpoint of the pro-independence forces in the Baltic states because they could not influence the outcome of the power struggle between Boris Yeltsin’s supporters in the capital city of the agonising USSR during the 3-day putsch (19–21 August 1991). In addition, restoration of independence could be completed on the best possible terms for the Baltic countries, with no further cost and sacrifices. Meanwhile, ‘as Marju Lauristin would later reveal, many Popular Front leaders in the summer of 1991 believed that the independence process would still take many years and therefore would eventually require additional concessions from Estonia’ (Pettai 2004: 194).

In Estonia’s case, these August days were miraculous also because two competing authorities in Estonia—the moral (represented by the Committee of Estonia) and the actual political (the Supreme Council with its popular front majority)—managed to achieve consensus (through the efforts of Marju Lauristin, who together with Edgar Savisaar led the Estonian Popular Front) on the text of the declaration about the restoration of independence and how the restoration should be completed. Endorsed by the leaders of the Committee of Estonia, the declaration was accepted and proclaimed by the Supreme Soviet on 20 August 1991, which is now celebrated in Estonia as its independence restoration day (Pettai 2004: 196–197; Taagepera 1993: 200–206). Stating that the coup d’etat in the USSR made the restoration of independence of Estonia by negotiation impossible, it ‘reaffirmed’ the independence of Estonia, declared the will to restore Estonia’s diplomatic relations with other countries and ruled the establishment of the Constitutional Assembly to finalise the Constitution of Estonia. This assembly was to include the members of the Supreme Council of Estonia and those of the Congress of Estonia, abiding by the parity principle (Graf 2007: 447).

The next day, on 21 August 1991, the Supreme Council of Latvia adopted a constitutional law, On the Statehood of the Republic of Latvia, proclaiming the end of the transitional period and restoring de facto independence. However, most articles (except those that were enacted by the 4 May 1990 Declaration) remained suspended until the first session of the newly elected fifth Saeima on 6 July 1993. In making its decisions, the Supreme Council of Latvia did not consult with the Committee of Latvia, which was the standing organ of the Latvian Citizens’ Congress elected in April 1990, single-handedly making all decisions of a constitutional character. Even before the August 1991 crisis, it formed a work group of 22 deputies to elaborate a new edition of the 1922 Constitution, following the rulings of the 3 May 1990 Declaration. However, in the end a new edition was not drafted, and the 1922 Constitution was restored unamended (Bleiere et al. 2014: 454–66; Blūzma et al. 1998; Jundzis 2017a, b).

The fifth Saeima, which fully reinstated the Latvian constitution, was elected only by citizens of Latvia as of 1940 and their offspring, so the key demand of fundamentalist tokenism was implemented. Its self-numeration as the fifth Saeima communicates that it is considered as a successor to the fourth Saeima, elected on 3–4 October 1931, and dissolved after the coup of 15 May 1934 by the Prime Minister Karlis Ulmanis. The coup marked the end of the democracy period in the interwar Republic of Latvia, preceding by 5 years the loss of independence. Karlis Ulmanis (who was a qualified agronomist) did not bother to legalise his power by promulgating a new constitution. The ministerial cabinet with Ulmanis as prime minister simply usurped the legislative powers of the Saeima, in blatant violation of the 1922 Constitution. No elections or plebiscites took place during his dictatorship. Thus, full reinstatement of the 1922 Constitution of Latvia marked the completion of the restoration of democracy in Latvia as well.

All three Baltic states were ‘velvet’ authoritarian regimes by June 1940 (Łossowski 1972; Polonsky 1975). Parliamentary democracy collapsed in Lithuania already in 1926, replaced by the dictatorship of Antanas Smetona. Ulmanis’ self-coup in Latvia was preceded by the self-coup of Prime Minister of Estonia Konstantin Päts on 12 March 1934 in Estonia. Smetona and Päts in Lithuania were lawyers, and so their regimes were meticulously implemented, in the legal sense, functioning according to super-presidential constitutions promulgated on 28 January 1937 (in force from 1 January 1938) in Estonia and on 12 May 1938 in Lithuania (Kasekamp 2010; Plakans 2011).

The authoritarian features of the Lithuanian (which does not even contain the word ‘democracy’ in its text) and the Estonian constitutions made the Latvian way of constructing continuity between the restored and interwar states impractical, as the reinstatement of these constitutions would have contradicted the aim of not only restoring state independence but also democracy. Therefore, the Constitution of Lithuania of 12 May 1938, reinstated on 11 March 1990, was in force for only 1 hour, replaced by a provisional and then the standing new constitution, adopted by referendum on 25 October 1992.

For similar reasons, the Constitutional Assembly of Estonia decided not to take the Latvian route, reinstating its complete 1937 Constitution, already partly reinstated by the Supreme Council of Estonia on 8 May 1990. Instead, it drafted a new constitution, which was enacted after the referendum of 28 June 1992. However, those drafting this new document made every effort to ascertain that acceptance of the new constitution would correspond to the 1937 Constitution and would therefore be constitutional in itself. For this aim, the preamble of the 1992 Constitution contains reference to Art. 1 of the 1937 Constitution, thus retrospectively recognising it as the only valid legal framework in 1940–1992.³ According to Art. 1 of this constitution, ‘Estonia is an independent and sovereign Republic wherein the supreme power of the State is held by the people’.⁴

With the referendum of 28 June 1992 interpreted as the act of the supreme power of the Estonian people, the acceptance of the new Constitution of 1992 proceeded according to the 1937 Constitution, i.e. in a fully constitutional and legal way. Taking this legal construction of Estonian constitutional lawyers at face value, the deepest foundation of this legality is the continuity between the Estonian people who lived under the 1937 Constitution in 1938–1940 and the people who voted for the new constitution in 1992. The presence of surviving citizens of Estonia in 1940 amid the population of Estonia in 1992 proved to be the most important prop and embodiment of the continuity between both constituencies, making the introduction of the new constitution correspond to the 1937 Constitution. My distinction between a token restoration (based on demographic continuity) and a type restoration is just a sociological language translation of the legal thinking of Estonian constitutional lawyers, also providing an explication and clarification of its tacit assumptions.

Of course, only surviving citizens of Estonia as of June 1940 and their offspring voted in the constitutional referendum on 28 June 1992, followed by the parliamentary elections on 20 September 1992. This election produced a legislature that was completely legal from the viewpoint of activists in the Citizens’ Committees movement. This was indeed the triumph of fundamentalist tokenism. Nevertheless, the fundamentalists had to compromise on at least three points.

Firstly, at the time of the constitutional referendum in Estonia and the elections of the first ‘clean’ legislatures in Estonia and Latvia to replace the transitional supreme councils of 1990–1992, elected according to Soviet legislation, all three Baltic republics were still under foreign occupation (Pettai 2004: 104). Russian troops remained stationed in their territory. Lithuania got rid of them by late summer in 1993. Estonia and Latvia signed agreements for their withdrawal the following year, with the last troops withdrawing from Estonia in September 1995. In Latvia this took place only in 1999, as Russia negotiated the right to operate the Skrunda radar station until its replacement was built in mainland Russia (Simonsen 2001). To recall, the original idea of the Estonian and Latvian fundamentalist tokenists was that de-occupation should precede the election of a government entitled to represent the states de facto extinguished by Soviet occupation in 1940.

Second, the fundamentalist tokenist programme included decolonisation, meaning the removal of ‘civil garrisons’ of the occupier power—Russian-speaking immigrants (Par Latvijas dekolonizāciju 2002; Pettai 2004: 202; Agarin 2010). Their example was the repatriation of French colonists from Algeria in 1961–1962 and the Portuguese from Angola and Mozambique after 1974. The idea was that the Estonian and Latvian restorations should also involve a reversal to the ethnic composition of the population, approximating the interwar situation. This achievement would have placed the Baltic restorations on par with those ecological restorations that succeed to clean degraded ecological systems from ‘invasive species’ (see Chap. 3).

However, this did not happen. Repatriation was not an attractive prospect for immigrants because the economic situation in their homelands was even worse than in the Baltic countries in the 1990s. Later, on account of the relative economic success of the Baltic countries (see Chap. 9), repatriation became even less attractive in comparison with having resident status in the restored Baltic states. At the same time, despite their economic success, the Baltic states still were not rich enough to finance repatriation programmes, involving paying the prospective repatriates compensation for their property, pensions and other entitlements. Instead, Estonia and Latvia strategically opted for integration of their Russian-speaking immigrants instead of repatriation. Naturalisation requirements were not eased, with being able to at least speak the indigenous languages remaining a necessary condition for citizenship. However, the authorities did increase the share of subjects taught in Estonian and Latvian at minority schools to enable the offspring of immigrants to satisfy this condition by default (Agarin 2010).

Thirdly, tokenists had to accommodate Russia’s refusal to restore the 1940 borders. There was no possibility of perennially sticking to territorial demands in the way Lithuania did with its demands of compensation for damages incurred under occupation because the EU and NATO did not accept new member states with open territorial claims upon neighbouring states. Confronted with the difficult choice between holding onto their position in the territorial dispute with Russia and acceding to Western alliances, both countries preferred the second alternative, signing border agreements with Russia that legalised the present border configurations. However, the Estonian-Russian border treaty remained unratified by Russia, protesting against the one-sided amendment (containing reference to the 1920 Tartu Peace Treaty) by the Estonian parliament during its ratification proceedings.