The Legal Status of the Bukovina and Bessarabia

Two important events—the triumph of Russian arms in evicting the Axis and its satellites from the pre-1939 limits of the USSR and the withdrawal of Romania from the Axis camp on August 23, 1944—focus world-wide attention on the area which, between World War I and World War II made up the Kingdom of Romania. After the ebb and flow of battle, just where does legality stand, and what is the status of these areas? While other areas, such as Transylvania and the Dobrudja, enter into the tangled diplomacy of the resection of Romania, the Bukovina and Bessarabia are the principal touchstones to the situation. They constitute, in 1944, one of the most critical territorial problems bequeathed to the present generation as a direct legacy of the age-old Eastern Question.

Both areas entered the arena of European dynastic diplomacy in that eighth, geopolitically conscious decade of the eighteenth century which witnessed the First Partition of Poland and the consolidation of Imperial Russia's hold on the Black Sea littoral. As a reward for his mediation between Russia and the Porte in effecting the Peace of Kutchuk Kainardji, Emperor Joseph II, without consulting the Prince of Moldavia, prevailed on

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the Ottoman Government to cede to Austria, by the Convention of Pala-mutca, of May 7, 1775, and the Act of Demarcation which followed five days later, confirmed by the Frontier Treaty of February 25, 1777,¹ the beech-covered areas of Northern Moldavia which were thenceforth known, juridi­cally and administratively, as the Bukovina.

Originally inhabited by a largely Moldavian (i.e., Romanian) population, the Bukovina, in almost a century and a half of Austrian rule, underwent radical modification of its ethnic structure and was heavily colonized by German and Ruthene (i.e., Ukrainian) stocks. When, in 1916, Romania was induced by the British, French, Italian and Russian Governments to enter World War I, they promised her, by the secret Treaty of Bucharest and its annexed Military Convention of August 4/17 of that year² not only the annexation of Transylvania at the expense of the Kingdom of Hungary, but also that of the Bukovina at the expense of the moribund Austrian half of the Dual Monarchy. The ultimate occupation of the Bukovina by Romania at the close of the war was followed by its formal cession by Article 59 of the Treaty of Saint Germain ³ and, as in 1777, by the confirmation of the new boundaries by Article 3 of the "Certain Frontiers" Treaty of Sevres on August 10, 1920.⁴ On this juridical foundation title to these parts of the Romanian realm rested down to 1940.⁵

Bessarabia, by contrast, was, between 1774 and 1812 an object of discussion solely between Imperial Russia and the Porte. In the latter year, however, in anticipation of Napoleon's invasion, Russia momentarily abandoned long range ambitions in the Balkans and, by the Treaty of Bucharest of May

¹ Martens, Recueil des principaux traitis, etc., Gottingen, 1795, Tome V, Annex, p. 71. See also Cambridge Modern History, Vol. VI, p. 634, and Nicolas Iorga, A History of Romania, London, 1925, p. 186.

² The texts of the Treaty of Bucharest and its accompaaying Military Convention are given in English translation in Charles Upson Clark's Greater Roumania, New York, 1922, pp. 171-177. The territories ceded are carefully defined in Article IV of the treaty.

³ "Austria renounces, so far as she is concerned, in favour of Romania all rights and title over such portion of the former Duchy of Bukovina as lies within the frontiers of Romania which may ultimately be fixed by the Principal Allied and Associated Powers." For the text see this Joubnal, Vol. 14 (1920), Supplement, p. 22.

⁴ Treaty between the British Empire and Principal Allied and Associated Powers and Poland, Romania, the Serb-Croat-Slovene State and the Czecho-Slovak State relative to certain frontiers of these States, Sevres, August 10, 1920; Great Britain, Treaty Series, No. 20, 1921; British and Foreign State Papers, Vol. CXIII (1920), pp. 866-872; see also this Jouknal, Vol. 16 (1922), Supplement, pp. 148-153.

⁵ Except in the fugitive propagandist literature looking to the creation of an enlarged federative Poland or a "Carpathian Switzerland," partly Hungarian, partly Romanian and partly Ruthene, no other governmentally sponsored claim to the Bukovina appears to have been put forward save by the Governments of the Western Ukrainian Republic, the [Eastern] Ukrainian Democratic Republic and the Ukrainian Soviet Republic. As none of these was actually recognized by the Principal Allied and Associated Powers, their claims were not seriously considered. It does not appear that during 1919 and 1920 the RSFSR put forward any claim of its own to the Bukovina.

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16/28, 1812,⁶ obtained from the Porte the eastern half of Moldavia, between the Pruth and Dniester rivers (which, for all practical purposes, constitutes the area historically known as Bessarabia). Although there were minor modifications of the southwestern frontiers in 1856 and 1867 the area re­tained its designation throughout the period of Russian domination, down to the fourth year of World War I.

In the course of the general decomposition of the Russian Empire which followed the Bolshevik coup d'etat of November 7, 1917, Bessarabia was caught up in the welter of separatist agitation and successively claimed territorial autonomy, proclaimed itself the Moldavian Democratic Republic and finally voted its annexation to the Kingdom of Romania.⁷ All these acts were "revolutionary" in relation to the constitutional norms of Tsarist Russia, and undoubtedly altered to Romania's advantage and the disad­vantage of the Russian State the territorial status of, and inferentially the legal title to, Bessarabia. Finally, the Principal Allied Powers gave a tinc­ture of legality to the process of acquisition of Bessarabia by the Treaty of Paris of October 28, 1920,⁸ concluded at the very end of Allied intervention in Russia. Its phraseology is redolent of the period and attempted to make legal an ex parte judgment on the merits and validity of Romania's claims. By contrast, the RSFSR, the Ukrainian SSR and, after its formation, the USSR, enunciated, reiterated, and consistently maintained a policy of non-

⁶ See British and Foreign State Papers, Vol. XIII (1826), pp. 908-914.

⁷ For detailed accounts of this internal evolution see Charles Upson Clark, Bessarabia, New York, 1927, Chapters XIII-XXV, as also the excellent bibliography attached to the volume and his Greater Romania Chapter XI, pp. 102-120. Shorter treatments from a non-Romanian standpoint are found in A. L. P. Dennis, Foreign Policies of Soviet Russia, New York, 1924, Chapter VII, "Soviet Russia, Romania and Bessarabia," pp. 165-176 and Hamilton Fish Armstrong, The New Balkans, New York, 1926, Chapter IX, "The Dispute over Bessarabia," pp. 139-160.

⁸ For the text of this treaty see British and Foreign State Papers, Vol. CXII (1921), pp. 647-651; also this Jotjbnai., Vol. 17 (1923), Supplement, pp. 7-11. The Commission entrusted with Jugoslav and Romanian affairs at the Paris Peace Conference apparently reported to the Supreme Council as early as April 6, 1919, a recommendation favoring the incorporation of Bessarabia in Romania; in March, 1920, the Supreme Council notified the Romanian Government that "After taking into full consideration the general aspirations of the populations of Bessarabia and the Moldavian character of that region from the geographical and ethnographical points of view, as well as the historic and economic arguments," the Principal Allied Powers were ready to pronounce themselves in favor of the reunion of Bessarabia with Romania which had by that time been formally declared by the Bessarabian representatives, and were desirous "to conclude a treaty in recognition of this as soon as the conditions stated have been carried out" (Armstrong, work cited, pp. 148-149). In the preamble to the treaty it was declared that "in the interests of general peace in Europe" it was "of importance to assure henceforth a sovereignty over Bessarabia in accordance with the aspirations of the population, and guaranteeing to its racial, religious and linguistic minorities the protection which is due them"; that from geographic, ethnographic, historic and economic points of view the reunion of Bessarabia to Romania was fully justified and that the population of Bessarabia had given proof of its desire to see Bessarabia reunited to Romania.

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recognition of the validity of the territorial change which is almost unique in Soviet annals. The stand of the USSR was tacitly accepted by many other countries such as the United States, which regarded the Bessarabian treaty as involving a res inter alios acta, which lacked the all-essential element of Russian consent.

On this exiguous legal basis Romanian possession of Bessarabia continued down to 1940, notwithstanding various transactional arrangements for a de facto patrol of the Dniester by a mixed commission, and the avowal of the Soviet Government, in inviting Romania to implement through the Litvinov Protocol of February 9, 1929, the General Act for the Renunciation of War, that the Bessarabian question was not closed thereby, the USSR interpreting the Protocol as meaning not a renunciation of title but a renunciation of means. From November 7, 1917 to June 28, 1940, then, Bessarabia was historically cast in the role of a buffer against Bolshevism.⁹

As France capitulated to Germany in June, 1940, the USSR endeavored to fend off the danger of an immediate clash with the Third Reich by occupying completely the broad zone of strategic territory from the Gulf of Finland to the Black Sea. The Polish and Finnish sectors were already in Soviet hands as a result of the Treaty of Mutual Friendship and Convention on the Sub­ject of Frontiers signed at Moscow September 28, 1939, and the Treaty of Peace signed at Moscow on March 13, 1940, at the close of the first Russo-Finnish war. The Baltic sector was secured by a frank and undisguised occupation, the treaties of Mutual Assistance concluded in Moscow with Estonia, Latvia, and Lithuania in September and October 1939 having failed to work as anticipated by the Kremlin.¹⁰ The remaining segment along the long arc of Russo-German contacts in Eastern Europe comprised the Bu-kovina and Bessarabia. To the former the Soviet Union had no historical claim, inasmuch as the several occupations of the Danubian Principalities by Imperial Russia never touched Austrian territory, and the temporary occu­pation of the Bukovina by Russian armies in World War I effected no change in title. The guiding political considerations behind the subsequent Soviet moves were dual—to prevent the formation or existence, between Eastern Galicia and the rest of the Ukrainian-inhabited lands in the Soviet Union, of any Piedmont for the dissemination of fascist ideology by the Ruthenes of Northern Bukovina, and to obtain territorial compensation for the losses suffered by the USSR in being deprived for twenty-two years of possession of

⁹ The very language of Article 9 of the Bessarabian Treaty illustrates this: "The high contracting parties will invite Russia to adhere to the present treaty as soon as a Russian Government recognized by them shall be in existence. They reserve the right to submit to the arbitration of the Council of the League of Nations all questions which the. Russian Government may raise respecting the details of this treaty, it being understood that the frontiers defined in the present treaty, as well as the sovereignty of Romania over the territories therein comprised, cannot be called in question."

¹⁰ Such was the admission of Molotov in his address before the Supreme Soviet of the USSR on August 1, 1940. See Moscow News, 10th year, No. 31, pp. 2-3 (August 2, 1940).

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Bessarabia.¹¹ The basic consideration was, however, strategic: the USSR could not afford to have the Bukovina obtrude, as a threatening military salient, between Western and Eastern Ukraine.

The USSR enforced its demands by ultimatum, and Romania formally acquiesced, in an exchange of notes,¹² before the Soviet military occupation of both areas began. The new status, irrespective of all preceding legality or subsequent constitutional evolution, was therefore, from an international legal standpoint, based on a formal agreement contained in an exchange of notes, consenting to the retrocession of Bessarabia and the cession of the North Bukovina. By July, 1940, Bessarabia and the Bukovina occupied a pivotal role in the geo-strategy of Eastern Europe as the left anchors of Soviet defense against the Axis coalition. In the process of effecting this readjustment of frontiers the unification of the Ukrainian inhabited lands was markedly advanced at Romania's expense.

The third stage in the problem was reached exactly a year later when Romania, under Axis influence, sought to better her fortunes by declaring war on the USSR,¹³ and repossessing the areas reluctantly ceded in 1940. The evidence is overwhelmingly clear that the major partners in the Axis

¹¹ "The Government of the USSR" declared Molotov to Davidescu, the Romanian Minister in Moscow, on June 26, 1940, "considers that the question of the restoration of Bessarabia is organically bound with the question of transfer to the Soviet Union of that part of Bukovina of which the population in its overwhelming majority is bound to the Soviet Ukraine by the unity of historic destinies as well as by unity of language and national com­ position. This act would be all the more just, in that the transfer of Northern Bukovina to the Soviet Union could constitute in only an insignificant degree, it is true, a means of com­ pensation for the tremendous damage inflicted on the Soviet Union and the population of Bessarabia by twenty-two years of Romanian domination in Bessarabia": New York Times, June 29, 1940, p. 8, col. 4.

¹² The Soviet ultimatum of June 26 addressed by Molotov to Davidescu bluntly proposed " (1) to restore Bessarabia to the Soviet Union, (2) to transfer to the Soviet Union Northern Bukovina within the boundaries shown on the accompanying map." "The Government of the USSR hopes," added the ultimatum, "that the Royal Government of Romania will accept these proposals and thus create the possibility of peaceful settlement of the protracted conflict between the USSR and Romania." In its reply of June 28, 1940, the Romanian Government declared through Davidescu to Molotov: "To preserve the possibility of avoid­ ing serious consequences which would result from the application of force and the outbreak of hostilities in this part of Europe, the Romanian Government finds itself obliged to accept the conditions of evacuation contained in the Soviet [note]." For the full texts of the correspondence see New York Times, June 29, 1940, page 8, cols. 4—8.

¹³ According to David J. Dallin, Romania's declaration of war was made on June 22, 1941. "It was accompanied by an order of General Antonescu to the Romanian army stating: 'Free your oppressed brothers from the yoke of Bolshevism; bring all Bessarabia, and the woods of Bukovina, your fields and meadows, back into the fatherland': Soviet Russia's Foreign Policy, 1939-1942, New Haven, 1942, p. 378. According to the Department of State Bulletin, Vol. V, No. 130 (December 20,1941), p. 556, "No record of a formal declaration of war has been found," although the charge d'affaires of the Romanian Legation in Washington declared to the press on June 22,1941, that "the Romanian army is acting today to liberate and recover Romanian national patrimony overrun without justification by the unprovoked aggression of Communist Russia": New York Times, June 23, 1941, p. 7

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offered Bessarabia as a territorial bait, which doubtless loomed larger in Romanian eyes than much of the New Order. Within a month of the out­break of the Romano-Soviet war Bessarabia and the Bukovina were back in Romanian hands.¹⁴ From the Romanian standpoint, war having broken all peacetime juridical ties to the USSR, Bessarabia and Northern Bukovina reverted to the status quo ante June 28, 1940.¹⁵ From the standpoint of the USSR they were merely areas of the Soviet Union under enemy occupation.

From July, 1941, to the spring of 1944 the situation remained unchanged. The geopolitical function of the two areas during this period was, however, a much less exalted one than that which they occupied during the crucial year from June, 1940, to June, 1941. Instead of being anchor points of Soviet strategy, they were reduced to a Dienstknecht role in the German Etappengebiet. With the recovery of Bessarabia and Northern Bukovina in the Spring of 1944, it was Russia's turn to consider the repossessed areas as reverting, alike in fact and in law, to the position which they occupied after June 28, 1940.¹⁶ Any territory occupied thereafter at the expense of Ro­mania remains in indeterminate status pending the formal decision of the general territorial settlement at the close of hostilities. Meanwhile the USSR has taken the juridical standpoint—perfectly tenable by a victor— that the fact of Romania's recent declaration of war¹⁷ on her former Axis associates operates to render null and void the Vienna settlement of 1940.¹⁸ Thus the integral return to Romania of the portions of Transylvania sur­rendered to Hungary restores to the harassed Romanians their Trianon boundaries of 1920, which possess high communications value. Meanwhile, the Soviet Union has given reiterated assurances that it has "no intention of acquiring any part of Romanian territory or changing its social structure,

¹⁴ According to a Bucharest despatch of July 15 to the New York Times the Vice-Premier of Romania announced the liberation of Bessarabia and Northern Bukovina from Soviet rule. New York Times, July 16, 1941, p. 6, col. 2.

¹⁵ According to Dallin (work cited, p. 357), as early as February, 1941, General Antonescu appointed prefects for Soviet-occupied Bessarabia. This was obviously intended to restore not merely the international but the constitutional and administrative status quo ante in the regions ceded in 1940.

¹⁶ In a statement by Charles Davila, formerly Romanian Minister to the United States, carried by the Associated Press, it is asserted that "the terms of Romania's surrender . . . provide that Romania shall cede Bessarabia and Northern Bukovina to Russia, areas claimed by Russia as legally part of its territory for several years": Los Angeles Times, August 26,1944, page 1, col. 4. Despite the loose language used in the despatch the tenacity of the Russian viewpoint is obvious.

¹⁷ "The declaration of war against Germany, fulfilling the Russian prerequisite for acceptance of the Romanian offer to change to the Allies' side" came in a royal proclamation on August 25, 1944, setting forth various German acts of aggression "which occurred simultaneously in various parts of the country" m consequence of which "Germany has placed herself in a state of war with Romania." New York Times, August 26, 1944.

¹⁸ New York Times, August 24, 1944; London United Press despatches of August 25, 1944, in the Los Angeles Times, August 26, 1944, p. 6, col. 4.

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or of infringing by any means on the independence of Romania."¹⁹ In the light of these pledges it appears that Bessarabia and North Bukovina are viewed by the Kremlin as reverting to the anchor position in the strategic plans of the USSR which they occupied in 1940 and 1941.

Malbone W.Graham

¹⁹ In an official statement broadcast by the Moscow Radio on August 25, 1944, Foreign Commissar Molotov re-stated a pledge made by the USSR to Romania when the first moves for armistice were made in April, 1944, substantially in the terms quoted. Los Angeles Times, August 26, 1944, p. 1, col. 4.