The Continued Validity of the Dernilitarised and Neutralised Status of the Aland Islands Lauri'Hannikainen 1. Introduction The Aland Islands have been demilitarised since 1856 and neutralised since 1921. This archipelago of some 25.000 inhabitants is located in the northern Baltic Sea between Finland and Sweden at the entrance of the Gulf of Bothnia. Until 1809 the Aland Islands were part of Sweden, from 1809 until 1917 they belonged to Russia, and since then have been an autonomous Swedish-speaking region under the sovereignty ofFinland.2 The principal treaties regulating the demilitarisation and neutralisation ofAland have been 1) the 1856 Convention on the Demilitarisation of the Aland Islands, imposed by Britain and France on Russia following the Crimean war and annexed to the 1856 Paris Peace Treaty; 2) the 1921 Convention on the Demilitarisation and Neutralisation of the Aland Is- lands, concluded by ten States; 3) a bilateral treaty of 1940 between Fin- ' LL.D., Senior Researcher at the Northern Institute for Environmental and Minority Law, University of Lapland, Rovaniemi, Finland. I express my gratitude to Dr. Thilo Marauhn, Researcher of the Max-Planck-Institute, for his valuable comments on the manuscript. Abbreviations: CSCE Conference on Security and Co-operation in Europe; EC European Community; EU European Union; FTS Finnish Treaty Series/ Suomen Asetuskokoelman/Said6skokoelman Sopimussarja; FYBIL The Finnish Year- book of International Law; ICJ International Court ofjustice; ICJ Reports Interna- tional Court ofJustice: Reports ofjudgements, Advisory Opinions and Orders; ILC International Law Commission; LNQJ Official journal of the League of Nations; NACC North Atlantic Co-operation Council; NATO North Atlantic Treaty Or- ganization; UN UnitedNations; WEU WesternEuropeanUnion. 2 In SwedishtheAland Islands are calledeither"Aland" or "Alands6arna" and in Finn- ish "Ahvenanmaa". http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht TheDemilitarised andNeutralisedStatusoftheAlandIslands 615 land and the Soviet Union on the demilitarisation of the Aland Islands, concluded on the initiative of the Soviet Union; and 4) the 1947 Paris Peace Treaty, imposed by the victorious Allied States on Finland, a co- belligerent of Nazi Germany. Furthermore, Article 60 of the 1977 Addi- tional Protocol I to the 1949 Geneva Conventions on the protection of war victims obligates States Parties to respect demilitarised zones during international armed conflicts.3 The location of the Aland Islands implies that they may be of military- strategic significance defensive for Sweden and Finland, but otherwise - for greater military powers. A military power in control of Aland and with aggressive intentions can use Aland as a base for military operations, especially in the northern region of the Baltic Sea area.4 Sweden has been the most active proponent of the demilitarised and neutralised status of Aland, because the invader of Aland would be able to threaten Sweden's east coast and Stockholm. Finland has been in favour of the demilitarisa- tion and neutralisation of Aland, but not as whole-heartedly as Sweden. In addition the Soviet Union/Russia has been in favour of the demilitar- isation ofAland but has assumed no obligations with regard to neutralisa- tion.5 Russia has traditionally considered that the Aland Islands in hostile hands can form a threat to the security of St. Petersburg and of Russia's Baltic fleet.6 Even at present Russia considers that the demilitarisation of Aland contributes to its security. The other interested States have con- sented to the demilitarisation and neutralisation ofAland.7 A public discussion has arisen recently in Finland about whether it is advisable for Finland to continue to hold to the demilitarisation and neu- tralisation of the Aland Islands. A number of leading Finnish military 3 By June 1994 Additional Protocol I had been ratified by 133 States. These include Finland, Sweden, Germany, Russia and Poland but not the United Kingdom, France or theUnitedStates. 4 See A. Gardberg, Alands strategiska stillning, Krigshbgskolan, Generalstabsof- ficerkurserna,Forskningsrapporter(3/1992),5ff. 5 The Russian Federation has been recognised as the continuing or successor State to the Soviet Union, having assumed the international rights and obligations of the former SovietUnion. See R. MuIIerson,TheContinuity and SuccessionofStates byReference to the Former USSR and Yugoslavia, 42 International and Comparative Law Quarterly (1993), 473-493; M. Koskennieini/M. Lehto, La Succession d'Etats dans Vex-URSS, en ce qui Concerne Particufi les Relations avec la Finlande, XXXVIII Annuaire FranqaisdeDroitInternational(1992), 179-190. 6 See Gardberg(note4),46-4Z 7 It should be noted, however, that one Baltic Sea coastal State, namely Lithuania, has noconventionalobfigationsinthismatter. 41 Za6RV54/3 http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 616 Hannikainen officers expressed opinions to the effect that the demilitarisation of Aland prevents Finland from safeguarding the security of Aland against a sur- prise attack and invasion. Aland in the hands of an aggressive invader would form a threat to Finland, most clearly to Finland's foreign trade transportation. The most radical voices in the Finnish military called for Finland's unilateral denunciation of the present demilitarisation and neu- tralisation of Aland. The Finnish Government has not concurred in the views of these military critics, at least not officially. President Mauno Ko1v1sto displayed some understanding of the military critics but the new President, Martti Ahtisaari, has held unequivocally to the present status of Aland. However, discussion of the matter may well continue, especially the of Finnish military critics have been received with as views understanding, sympathy, Swedish military circles.8 even in DemiIitarisat1on means that no fortifications or permanent mili- tary structures may exist within the demilitarised territory. It is the pur- pose of demilitarisation to contribute to the keeping of the demilitarised territory outside the theatre of war of an armed conflict. However, if an armed conflict breaks out, the State exercising sovereignty over the de- militarised territory is not prohibited from deploying armed troops in the demilitarised territory to ensure its inviolability or defence. Neutral- isation means that no war operations may take place within the neutral- ised territory, even during an armed conflict. The purpose is to keep the neutralised territory completely outside of the theatre of war. However, if an attack is made against, or an invasion into, the neutralised territory, or if there is a danger of such an attack or invasion, the State exercising sovereignty over the neutralised territory is permitted to take military measures to defend the territory. If a territory is both demiIitarised and neutraIIsed, the manifest purpose is to keep it completely out- side the armed actions of armed conflicts. However, if an outside State infringes, displays serious indications of infringing the inviolability of or the territory in question, then the State exercising sovereignty over the territory cannot be denied the right to defend the territory by armed within the territory.9 means, even 8 SeeH. Svensson,Aland-enregionunderstress,Nordrevy4-5/1992,47 9 On dernilitarisation and neutralisation in international law, see J.0. S6derh eIrn, D6militarisation et Neutralisation des Iles d'Aland en 1856 et 1921 (1928), 1-19 and 215-239; 0. Br,ng, Nedrustningens folkratt (1987), 26-32; M. Bj6rkholm/ A. Rosas,Alands6arnasdernilitariseringochneutralisering(1990), 16-17 http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht TheDernifitarisedandNeutralisedStatusoftheAlandIslands 617 Figure 1 E-ka, Vq C.L% FFIINNLLAVNNDD C) 1PP N60'30'+11 1 o 19,00, Abo DO 4 CcCOI Nfirket C1 bRy NJ LAV1N,&DDapos;4VAMb IV 0Y%\_, 60. +0 19'00' Sweden Ul'i Z Limitsofthedemilitarised andneutralisedzone 0 2i 50k LimitsofSweden's territorialwaters The Aland Islands neutralised and dernilitarised zone according to the 1921 Treaty takenfromT. WuIff,Handbokifolkritt(1980) During World War I the demilitarisation of the Aland Islands was not respected. Russia fortified Aland and used it as a base for military opera- tions against Germany. Russia's explanation was that it wanted to prevent Germany from occupying Aland and acted altogether defensively against the principal aggressor State of World War 1. In the late phases of World War 1, Aland was first occupied by Sweden (1918) and then by Germany (1918). The fortifications were demolished in 1919 by Finland, the new http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 618 Hannikainen sovereign of Aland following Finland's secession from Russia in late 1917, and by Sweden.'0 During World War 11 the demilitarised and neutralised status of the Aland Islands was better respected in the end, even though both Nazi Germany and the Soviet Union had plans to occupy the Islands. No other State made any attempt to occupy the Islands. Finland resorted to military preparations, including fortifications, to ensure the neutrality of Aland. It informed the parties to the 1921 Convention of its military preparations, and these did not express criticism. However, Finland did not use Aland as a base for military operations. After World War 11 the demilitarisation ofAland restored. was In the decades following World War II the demilitarised and neutral- ised status of Aland has been in existence without any particular difficul- ties (the borders of the demilitarised and neutrallsed zone are shown in Figure 1). At times some legal experts have questioned the remaining in force of the 1921 Convention, because the supervisor and guarantor of the Convention the League ofNations has been dissolved and the UN - - has not become the successor of the League of Nations as the supervisor and guarantor of the Convention. However, no State has questioned the demilitarised and neutralised status ofAland. The purpose of this article is to examine the obligations under interna- tional law of Finland and other States to respect the demilitarisation and neutralisation of the Aland Islands, and to inquire whether there are legal grounds for denouncing or modifying those obligations. Can Finland -or some other State - unilaterally denounce its international legal obliga- tions? Furthermore, it is interesting to examine whether Finland's mem- bership in the EU or its participation in a joint Western defence policy would call for a modification of the demilitarised and neutralised status of Aland. At the time of completion of this article Finland's accession to the EU seems more than evident. In October 1994 the Finnish people voted in an advisory referendum for Finland's membership in the EU and in November the Finnish Parliament confirmed Finland's intention to join the EU. In November also the Alandic people in their advisory referen- dum voted for Aland's accession to Finland's membership. It seems cer- tain that the Alandic Parliamentwill confirm Aland's accession. 10 On the Aland islands during World War1, see S6derhJeIin, ibid., 121ff.;J. Bar- ros, The Aaland islands Question: Its Settlement by the League ofNations (1968), 20ff., and H. Rotkirch, The Demilitarisation and Neutralisation ofthe Aland Islands: A Re- gime "in European Interests" Withstanding Changing Circumstances, 23journal ofPeace Research(1986),362-366. http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht TheDemilitarised andNeutralisedStatusoftheAlandIslands 619 2. DemilitarisatiOnandNeutralisation oftheAlandIslands underInternatiOnalLaw The 1856 Convention" apparently is still in force, but all three parties to it have later conventional obligations. Thus, we confine ourselves here to the treaties ofthis century. The League ofNations sought a comprehensive settlement of the status of the Aland Islands at the beginning of the 1920s. There was a dispute between Finland and Sweden regarding the status of the Aland Islands. The Swedish-speaking Alanders wanted to make Aland a part of Sweden and Sweden called upon Finland to respect Aland's right to self-determi- nation. Finland disagreed and claimed that Aland fell under the sovereignty of Finland. The two States agreed to submit their dispute to the League Council for a binding decision. The outcome was that the League Council recognised Finland's dejure sovereignty over Aland, but Finland had to consent to guarantees for the development of the auton- omy and for the preservation ofthe Swedish character ofAland.12 The development of the demilitarised status of Aland was especially in the interest of Sweden. The Council recognised this and expressed the hope that a new agreement on the demilitarisation and neutralisation would be accomplished, so "that the Aaland Islands will never become a source of danger from the military point of VieW".13 Sweden, in co-oper- ation with the League of Nations, sought the creation of a new conven- tion; an effort which proved successful in late 1921. During its treatment of the question of the Aland islands the League of Nations appointed a Commission ofjurists to give an expert opinion on certain international legal questions concerning Aland. The Commission commented on the demilitarised status of Aland. In its much-quoted Re- port the highly-esteemed Commission stated that the provisions of the 1856 Convention and Peace Treaty were still in force and that the legal significance of the demilitarised status of Aland went beyond the parties to the 1856 settlement; the demilitarised status was created in European interest and was meant to be part of "European Iaw". The Commis- sion is worth quoting: 11 The original French text of the Convention can be found in Martens, Nouveau Recueil G6n6ral des Trait6s, T. XV, 788, or in FTS 1922, 9-10. On the Convention, see S6derh)elm(note9), 100ff.,and Barros(note 10),3ff. 12 See LNOJ, September 1921, 699-700; Barros, ibid., 216ff.; L. Hannikainen, AhvenanmaanitsehallinnonJaruotsinkielisyydenkansainoikeudellisettakeet(1993),13ff. 13 LNOJ,September 1921,699. http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 620 Hannikainen 'Thus, admitting that the provisions of 1856 relating to the Aaland Islands bear the character of a settlement regulating European interests, it becomes obvious that such a settlement cannot be abolished or modified either by the acts ofone particular Power or by conventions between some few ofthe Pow- ers which signed theprovisions of1856, and are stillparties to theTreaty. These provisions were laid down in European interests. They constituted a special international status relating to military considerations, for the Aaland Islands. It follows that until these provisions are duly replaced by others, ev- ery State interested has the right to insist upon compliance with them. It also follows that any State in possession of the Islands mustconform to the obliga- tions, binding upon it, arising out of the system of demilitarisation established by theseprovisions."14 The 1921 Convention on Demilitarisation and Neutralisation15 was part of the new international status of the Aland Islands, co-ordinated by the League of Nations. The Conference which created the Convention was convened by the League. The League was also assigned a very promi- nent role in the supervision ofthe Convention. Ten States participated in the Conference in 1921; they all ratified the Convention and none has denounced it. These States are: Finland, Swe- den, Britain, Germany, France, Denmark, Poland, Italy, Estonia and Latvia. Russia (the Soviet Union) is not a party to the Convention. Certain provisions of the 1921 Convention use unusually strong lan- guage. According to the Preamble, the parties accept the wish expressed by the League Council that the new Convention would guarantee that the Aland Islands become of danger from the military point never a source of view. Articles 2 to 7 specify the demilitarisation and neutralisation of Aland. These provisions permit certain exceptions to Finland, inter alia: Finland is entitled to keep a regular police force within the demilitarised zone to maintain public order and-security in the zone and, if exceptional circumstances demand, to send into the zone and keep there temporarily such other armed forces shall be strictly for the maintenance as necessary of order (Article 4). If war breaks out in the Baltic Sea area, Finland will be entitled temporarily to lay mines in the territorial waters of the de- militarised and neutralised zone and for this purpose to take such 14 The Report of the Commission of jurists in LNOJ, Supplement Special, No. 3 (1920), 18-19. 15 The original French text of the 1921 Convention can be found in S6derhJeIm (note 9), 372-378, and in FTS 1922, 1-8. See also 17 American journal of International Law(1923), SupplementI. http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht TheDernilitarisedandNeutralisedStatusoftheAlandIslands 621 measures of a maritime nature as are strictly necessary (Article 6). If a sudden attack endangers the neutrality of Aland, Finland is entitled to take measures necessary to ward off the aggressor, until the other parties are able to intervene in order to ensure respect for Aland's neutrality (Article 7). Article 8 is of great interest here. It stipulates that the Convention is to remain in force irrespective of whatever changes may occur in the existingstatus quo ofthe Baltic Sea. The supervision of the observance of the Convention was entrusted to the Council of the League of Nations. Under Article 7, it was the League Council which was to decide upon measures to safeguard the observance of the Convention and to prevent violations. Thus, the League was the guarantor ofthe Convention. Article 9 indicates that the Convention was intended to have bearing among the whole membership of the League. In Article 9 the parties re- quested that the Council bring the Convention to the attention of the members of the League, so that for the sake of general peace all would respect the legal status of the Aland Islands under the Convention as a recognised rule guiding the action of governments. In the light of this stipulation it is surprising to note that according to Article 9 accession by States other than the signatory States is possible only if the signatory States unanimously consent to the extension of a request to a given State to become a party to the Convention. The parties have not extended such a request to any State. The Convention creates the impression that it is intended to have last- ing validity and legal bearing in the international community of States. There is no denunciation clause in the Convention. When the League of Nations fell into a political impasse towards the end of the 1930s and the danger of a European war became real, Finland and Sweden became concerned for the evident ineffectiveness of the guarantee system of the 1921 Convention. Together they worked out the so-called Stockholm Plan in 1939 to revise the demilitarisation and neu- tralisation of Aland.16 The Plan contained three main points: 1) The de- militarised and neutralised zone would be reduced permanently by ex- cluding the most southern islands from it. 2) For a period of ten years, Finland would have the right to take certain defensive measures in the 16 On the Plan and reactions to it see LNOJ, May-June 1939, 257-260 and 284-289; E. L6nnroth, Den svenska utrikespolitikens historia, Del V, 1919-1939 (1959), 194ff.; Rotk1rch(note 10),370-371. http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht 622 Hannikainen demilitarised and neutralised zone. 3) During that ten-year period Swe- den would be entitled to strengthen Aland's defence, for example by sending troops to Aland, if so requested by Finland. The Plan was in- tended to revise the Convention, not to abrogate it. The Alanders were opposed to the Plan. The Finnish and Swedish Governments submitted the Plan for ap- proval to their Parliaments, to the other parties to the 1921 Convention and to the League Council. They referred to grounds which could be interpreted as rebus sic stantibus: In the existing situation the Convention could not secure the attainment of its original purpose - to keep Aland outside of military activities. Sweden stated that the existing situation had changed profoundly from what it had been in 1921. Indeed, the other parties to the Convention gave their assent to the Plan.17 But the Soviet Union was suspicious and blocked the Plan. At that time the Soviet Un- ion was an important actor in the international arena, inter alia, a member of the League Council. In the Council it prevented the adoption of the Plan by its veto. Because of the opposition of the Soviet Union the Swedish Government decided to withdraw the Bill from Parliament. Fin- land was unwilling to pursue thematter alone. When in late 1939 the Soviet Union attacked Finland and the so-called Winter War began, Finland took certain precautionary military measures in Aland, including fortifications which, in the opinion of Rotkirch, Bring and WahIbHck, exceeded its rights under the aforesaid 1921 Convention.18 Finland reported these measures to the parties to the 1921 Convention and to the League of Nations, receiving no replies from them and interpreting this as silent assent. Ultimately the battles of the Winter War did not reach Aland. After the Soviet Union, the aggressor, had imposed a peace treaty on Finland in March 1940, it proposed the adop- tion of a bilateral treaty on the demilitarisation of the Aland Islands. This treaty, concluded in September 1940, obligated Finland to restore the de- militarised status of Aland in terms.which, to a high degree, corre- sponded to those of the 1921 Convention. According to the new treaty, the Soviet Union was entitled to establish a consulate in Mariehamn, the 17 The assent of Great Britain and France was somewhat conditional, but in principle theywerereadytogivetheirassent.SeeLNOJMay-June 1939,286-287. 18 Regarding the events of World War II and its aftermath, see Rotkirch (note 10), 371-372; Bring (note 9), 326-327; K. WahIbHck Alandsfrigan idagochf6rr, Briefing frinutrikesdepartementet(6/1993),24. http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht TheDernilitarised andNeutralisedStatusoftheAlandIslands 623 capital of Aland. This consulate was assigned the right to monitor the observance of the treaty.19 When war broke out again between Finland and the Soviet Union in 1941, Finland, this time as a co-belligerent of Nazi Germany, built for- tifications in Aland anew. As the League of Nations had completely lost its significance, Finland informed only the parties to the 1921 Convention of these measures. None of them reacted. The fortifications were not used for military action during the war of 1941-1944. The armistice agreement of 1944 reactivated in all respects the 1940 treaty on the de- militarisation of Aland.20 Finland and Russia have recently declared that the 1940 treaty remains in force.21 The 1947 Paris Peace Treaty22 between Finland and a number of vic- torious Allied States, inter alia the Soviet Union and Great Britain, im- posed many obligations on Finland, a co-belligerent of Nazi Germany. Article 5 provided that the Aland Islands will remain demilitarised ac- cording to the existing situation. Rotkirch describes the post-war situ- follows: ation as .Considering that both the Soviet Union (as aparty to the 1940 Treaty) and Great Britain (as party to the 1921 Convention) confirmed the continuation of the demilitarisation of the Aland islands according to status quo, the provi- sions of the 1947 Peace Treaty restored the pre-war situation. In addition to this provision the Soviet Union separately informed Finland that the 1940 Treaty regardingtheAland Islands remainedinforce.,,23 As was mentioned above, in the post-World War 11 period some legal experts have expressed doubts as to whether the 1921 Convention con- tinues in force24 but the prevailing view is that it does.25 When Finland submitted its membership application to the EC in 1992, it was the Com- 19 FTS 1940,No. 24. 20 See Rotkirch(note 10),371-372. 21 See P,5ytakirja Suomen Tasavallan Halliruksen ja Venajan Federaation Haflituksen valifla Suomen ja Vena)an kalidenvillsten suhteiden sopiniusolkeudellisen perustan kartoituksesta.ThisProtocolwasdoneinFinnishandinRussianon 11July 1992. 22 FTS 1947,No. 19-20. 23 Rotkirch(note10),372. 24 See E. Castr6n, Die Entmilitarisierung und Neutralisierung der Alandinseln, in: V61kerrecht und rechtliches Weltbild, FestschriftfijrAlfred Verdross (1960), 115-116, and T. Modeen, V61kerrechtliche Problerne der Aland-Inseln, 37 Zeitschrift f5r auslindi- sches bffentliches Recht und V61kerrecht (1977), 606-607, 619. Both ofthese authors were oftheopinionthatthe1940treatybetweenFinlandandtheSovietUnionwasinforce. 25 See Bj*6rkholm/Rosas (note 9), 27ff.; Bring (note 9), 326-327; Han- nikainen (note 12), 110. As regards Germany, Auswartiges Amt, recognised on 23March 1953 thatthe 1921 Conventionisinforce,seeBundesgesetzblatt 1953 11, 117 http://www.zaoerv.de © 1994, Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht