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THE CAUCASUS & GLOBALIZATION
Volume 6 Issue 4 2012
Ramil DURSUNOV
Ph.D. Candidate, Chair of International Law, the Yaroslav the Wise Law Academy National University
(Kharkov, Ukraine).
THE INTERNATIONAL LEGAL STATUS OF ABKHAZIA AND SOUTH OSSETIA
Abstract
This article aims to clarify the international legal status of Abkhazia and South Ossetia. It examines the legal doctrines of Georgia, the Russian Federation, Abkhazia, and South Ossetia on this matter and how they correlate to the treaties, resolutions and declarations of international law. This article sets out to examine this problem and define the actual international legal status of these territories,
which is the key to understanding how international law addresses the recognition of states. The deliberations presented in the article are based on official regulatory acts and international legal doctrines and documents, including U.N. resolutions. This study is based exclusively on a juridical approach to the principles of international law and does not address any political deliberations on this matter.
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Introduction
The collapse of the Soviet Union at the beginning of the 1990s was marked by the creation of new states and the appearance of new sovereign territories on the political map of the world. "The sovereignty boom," during which the former Union republics gained their independence, also promoted secessionist movements within these states. Nagorno-Karabakh, Transnistria, Abkhazia, and South Ossetia are just a few examples of territorial disputes that escalated into bloody military conflicts.
However, in addition to the political facts and other factors that led to the establishment of territorial entities with an unclear legal status, there are also the regulations of international law.
The main task of this article is to define the actual international legal status of Abkhazia and South Ossetia. This is particularly relevant since these territories, although considered unrecognized states, have been recognized at this time by several countries. Therefore determining the status of these territories is of immense importance for the further international legal practice of state recognition. The recognition of Abkhazia and South Ossetia is directly related to determination of the international legal status of Kosovo and constitutes the current practice of state recognition in international law. Study of this problem is also of immense theoretical and practical significance because each case of state recognition serves as a precedent and could encourage the development of secessionism in other countries.
The conflicts we are considering have a non-classical complicated structure, since more than two sides are party to them: Abkhazia, South Ossetia, Russia, and Georgia. There came a point when these countries launched the political and international legal mechanisms at their disposal to achieve the set goals. These actions resulted in the secession and then recognition of former administrative-territorial units of Georgia. It was the military conflict of 2008 that triggered the process for Abkhazia and South Ossetia. The situation is complicated by the fact that most countries of the world do not recognize these self-declared state entities, however their recognition by the Russian Federation and several other states is an undeniable fact.
The International Legal Doctrine of Abkhazia and South Ossetia
The Abkhazian and Ossetian international legal doctrine for justifying the legitimacy of the statehood and sovereignty of the secessionist territories is primarily based on the fact that Abkhazia and South Ossetia have been recognized by other U.N. member states.
After the parliament of Abkhazia appealed to the Russian Federation on 20 August, 2008 for official recognition of the republic's independence and Ossetia made the same appeal on 22 August, 2008, Russia responded accordingly and announced that the corresponding decrees would be signed. On 26 August, 2008, the Russian Federation officially declared its recognition of the Republic of Abkhazia and the Republic of South Ossetia. The Republic of Nicaragua was the second state to recognize the self-declared territories: on 5 September, 2008, President Daniel Ortega signed official decrees on the recognition of Abkhazia and South Ossetia. The following year, in 2009, Abkhazia and South Ossetia were recognized by Venezuela, which Hugo Chavez declared verbally and, in confirmation of his intentions, diplomatic relations were established between Abkhazia and Venezuela in 2010. Also in 2009, the Republic of Nauru established diplomatic relations with Abkhazia and South Ossetia, which was an act of recognition of these self-declared territories. In 2011, another two states—the state of Vanuatu and the state of Tuvalu—officially recognized Abkhazia and South
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Ossetia. However, it should be noted that the state of Vanuatu only established diplomatic relations with Abkhazia.1
On the basis of the aforementioned "recognitions," Abkhazian scholars claim that "the significance of the recognition of Abkhazia by four U.N. member states, one of which is one of the world's great powers and a permanent member of the U.N. Security Council, is difficult to overestimate,"2 and that this in itself is confirmation of independence.
The difficulty with this matter is that state recognition has not been codified. Nor are there specific regulations and criteria that must be met for a state to be recognized. At the present time, international law does not specify the number of states that must recognize another state in order for it to gain legitimacy as a newly established entity. Some international lawyers believe that recognition by one state is sufficient, while others insist that more states must declare their recognition. Still others think that state recognition should be carried out within the framework of universal international organizations, such as the U.N. There is also the opinion that there is no need for recognition by other states and that this international legal institution is a veiled form of interference in a state's internal affairs, which, in turn, directly contradicts the principles of international law.
One way or another, however, the fact that only five states have recognized self-declared Abkhazia and South Ossetia at the present time is not sufficient to ensure their normal functioning as states. This is because states cannot fully function without participating in international structures and without interstate cooperation. However, to be objective, we must acknowledge the fact that full-fledged participants of the international community have legally confirmed their recognition.
"Recognition is of special importance in those cases where a new State tries to establish itself by breaking off from an existing State in the course of a revolution. And here the question is material whether a new State has really already safely and permanently established itself or only makes efforts to this end without having already succeeded. That in every case of civil war a foreign State can recognize the insurgents as a belligerent Power if they succeed in keeping a part of the country in their hands and set up a Government of their own, there is no doubt. But between this recognition as a belligerent Power and the recognition of these insurgents and their part of the country as a new State, there is a broad and deep gulf. And the question is precisely at what exact time recognition of a new State may be given instead of the recognition as a belligerent Power. For an untimely and precipitate recognition as a new State is a violation of the dignity of the mother State, to which the latter need not patiently submit. It is frequently maintained that such untimely recognition contains an intervention."3
When trying to understand the international legal status of Abkhazia and South Ossetia, Russian politicians and international lawyers point significantly not to the tally of recognitions, but to the fact of such legal acts themselves. Furthermore, for some reason we forget that recognition of Abkhazia and South Ossetia primarily rests on the principle of self-determination and ignores the principle of territorial integrity. We also forget that militarized methods were used to achieve sovereignty. So recognition of the statehood of Abkhazia and South Ossetia jeopardizes all countries of the world with ethnic minorities. This primarily applies to the Russian Federation, which is currently pursuing a policy of double standards. On the one hand, it refers to the principle of territorial integrity preservation in order to eliminate separatist groups in Chechnia and Daghestan, while on the other, it upholds the right of the Abkhazians and Ossetians to self-determination. Nor are the Western countries headed by the U.S. any better—by giving Kosovo its independence, they have paved the way to fragmentation of international law.
1 See: "International Recognition of Abkhazia and South Ossetia," available at [http://en.wikipedia.org/wiki/ International_recognition_of_Abkhazia_and_South_Ossetia].
2 V. Chirikba, "The International Legal Status of the Republic of Abkhazia in the Light of International Law," available at [http://abkhazworld.com/articles/analysis/285-int-legal-status-abkhazia-vchirikba.html].
3 L. Oppenheim, International Law, A Treatise, Vol. 1, Longmans, Green, and Co., New York, Bombay, 1905, p. 112.
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The crux of the problem lies in the fact that the international legal institution of state recognition is not codified—there are no universal documents that define the criteria of statehood required for recognition. So states are guided by international legal practice, international legal doctrines, and their own foreign policy interests.
In international law, there are two main theories relevant to state recognition: the constitutive and the declaratory theory. The constitutive theory asserts that States and governments do not legally exist until recognized as entities of international law. The declaratory theory, on the other hand, claims that the political existence of a state is independent of recognition by other states, while the institution of recognition itself merely declares the existing state of affairs. However, both cases require that a state meet all the international legal criteria for statehood. The Montevideo Convention of 1933 set forth that a state as an entity of international law should possess the following qualifications:
(A) a permanent population;
(B) a defined territory;
(C) a government; and
(D) capacity to enter into relations with other states.4
It should be noted that although this document was of regional scope, it gradually became customarily accepted in international law as a whole.
When the recognition of a state is examined from this viewpoint, it can unequivocally be said that Abkhazia and South Ossetia meet the qualifications of a state. They have a defined territory, population, and government that has entered into diplomatic relations with other entities of international law. However, even though all of these qualifications are met, there are certain aspects that cast aspersions on the legitimacy of the status of these territories.
The international legal doctrine also sets forth other qualifications.
■ First, since the aforementioned state formations were created by military means with the participation of a third party, it cannot be affirmed that these two states are capable of independently exercising efficient power. Consequently, it cannot be said that they correspond to the criterion of an effective government.
■ Second, there has been no legitimate expression of will of the people, since the opinion of the local Georgian population was not taken into account. At the current stage of social development, international law is based on the protection of human rights.
Therefore, any manipulations that lead to a violation of these rights should be regarded as a violation of international law. When Abkhazia and South Ossetia seceded from the Georgian state, not only was the political right to expression of will of all the people violated, but also the fundamental natural right to life. The large number of people killed and forced to move, the seizure of their property, and other such violations of humanitarian law and human rights confirm the aggressive nature of the secession of the said territories.
The EU's International Legal Doctrine on Georgia
The international legal position of the EU is reflected in the report of the Independent International Fact-Finding Mission on the Conflict in Georgia. The Report sets forth instances of violations of the law of war and other violations.
4 See: Montevideo Convention on Rights and Duties of States (1933), available at [http://www.taiwandocuments.org/ montevideo01.htm].
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The report contains contributions from scholars on the international legal status of Abkhazia and South Ossetia. This problem is examined in the first two chapters of Volume II of the Report, which states clearly that recognition is not constitutive.5 This provision on the nonconstitutive nature of the institution of state recognition was also enforced in the Arbitral Commission of the Peace Conference in Yugoslavia, which states that "the existence or disappearance of a State was a question of fact."6
The report begins by listing the three qualifications of a state:
(1) a defined territory;
(2) a permanent population; and
(3) an effective government.
It goes on to state the need to observe additional criteria: the principles of international law, the right to self-determination, and the prohibition of the use of force.
The document defines three categories of entities:
(1) states fulfilling the relevant criteria for statehood and universally recognized;
(2) state-like entities fulfilling the relevant criteria, but which are not, or not universally, recognized; and
(3) entities short of statehood (not fulfilling the relevant criteria, or only some of them, or only in a weak form, but eventually recognized by one or more states).
The Report states that Abkhazia and South Ossetia meet the first two criteria (territory and population). However, it goes on to say that South Ossetia does not meet the principle of efficiency due to the systematic and constant influence imposed by the Russian Federation upon the state's internal affairs. Abkhazia, on the other hand, according to the Report, is regarded as a state that is exercising effective control over its territory. However, the Report does not recommend recognizing Abkhazia, since it does not meet the basic requirements regarding human and minority rights and has never had a right to secession.
The Report goes on to explain the absence of right to secession in compliance with international law: ".. .outside the colonial context, self-determination is basically limited to internal self-determination. A right to external self-determination in form of a secession is not accepted in state practice. The case of Kosovo has not changed the rules."7
So the international legal status of Abkhazia and South Ossetia is extremely problematic. A territorial formation becomes an entity of international law after the establishment of an effective and independent government. And the creation of a state can hardly be directly related to human rights violations and discrimination against national minorities—these matters should be addressed separately.
Conclusion
It stands to reason that defining the international legal status of South Ossetia and Abkhazia is very difficult. The fact that these territorial entities have been internationally recognized by the
5 See: Independent International Fact-Finding Mission on the Conflict in Georgia, Report, Vol. II, available at [http://www.ceiig.ch/pdf/IIFFMCG_Volume_II.pdf].
6 Arbitral Commission of the Peace Conference in Yugoslavia, Opinion No. 1. The International Conference on the Former Yugoslavia Official Papers, Vol. 1, ed. by B.G. Ramcharan, Kluwer Law International.
7 Independent International Fact-Finding Mission on the Conflict in Georgia.
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Russian Federation and five other countries complicates the already confusing situation. It is interesting that the Republic of Vanuatu subsequently withdrew its recognition of Abkhazia, which is something rare in the practice of state recognition. It is traditionally thought that recognition cannot be withdrawn.
However, despite recognition by several states, Abkhazia and South Ossetia continue to be isolated from the international community. The position of the EU countries is based on the territorial integrity of Georgia and the impossibility of recognizing regions that secede from it. The U.S. and the other countries of the world also confirm the territorial integrity of Georgia and state that recognition of Abkhazia and Ossetia is a violation of international law.
Although U.N. Secretary General Ban Ki-moon said that "the question of recognition of svates is a matter for sovereign states to decide,"8 several international organizations—NATO, the OSCE, and PACE—claim that unilateral recognition of Abkhazia and South Ossetia contradicts the letter and intent of international law.
Before the events of August 2008, the U.N. Security Council adopted resolutions containing provisions on the adherence of all member states to the sovereignty, independence, and territorial integrity of Georgia within its internationally recognized borders and clear indications that Abkhazia belonged to Georgia. The last such resolution numbered 1808 (2008) was adopted on 15 April, 2008.9 The situation dramatically changed after Russia recognized Abkhazia and South Ossetia. Whereas resolutions 1839 (2008) and 1866 (2009), adopted after this recognition regarding extension of the mandate of the United Nations Observer Mission in Georgia (UNOMIG), still contained a reference to Resolution 1808 (2008), in June 2009, Russia put an end to the adoption of such resolutions by the Security Council by imposing its veto on the draft text. Instead, Russia proposed that the resolutions include reference to "the Republic of Abkhazia" and its borders, which was unacceptable to other Council members fundamentally attached to the territorial integrity of Georgia within its internationally recognized borders.10 These events led to cessation of the activity of the UNOMIG on 15 June, 2009.11
Therefore, although Abkhazia and South Ossetia have been recognized by several states, their international legal status has still not been clearly defined. Since these territories have not been recognized by most countries of the world, they cannot be considered full-fledged participants in international relations. The practice of state recognition in international law must be codified and universal and generally accepted criteria of statehood drawn up, which will make it possible to avoid similar situations in the future.
8 U.N. Chief Voices Concern about Russian Move on South Ossetia, Abkhazia, available at [http://news.xinhuanet.com/ english/2008-08/27/content_9718891.htm].
9 See: Resolution 1808 (2008) adopted by the Security Council at its 5866th meeting, on 15 April, 2008, available at [http://www.unhcr.org/refworld/country,„RES0LUTI0N,GE0„4808a6582,0.html].
10 See: 15 June, 2009 — Security Council: Georgia — Statement by Mr. Jean-Maurice Ripert, Permanent Representative of France to the United Nations, available at [http://www.franceonu.org/spip.php7article4008].
11 See: United Nations Observer Mission in Georgia (UNOMIG), available at [http://www.un.org/en/peacekeeping/ missions/past/unomig/background.html].
