Date: Wed, 27 Aug 2008
From: Andrei Liakhov <gaffriloff@yahoo.co.uk>
Subject: International Law and SO/Abkhazian independence.
Much is said and written about whether Russian recognition of the independence of Abkhazia and South Ossetija is a breach of public international law. Amidst various references to a plethora of international documents (ranging from the UN Charter to the 1975 Helsinki Act) of various degree of legal force, both the players and the commentators seem to ignore how the modern public international law treats secession of States.
Legally the situation is not so one sided as the US, EU and NATO are trying to potray it. Leaving aside historic, political and emotional spin put on the Abkhazian and South Ossetian secession from the international law point of view is definitely neither unique nor percedent setting. Nor does it differ from the Kosovo scenario.
States generally have shown themselves "allergic" to the concept of secession at all times to the extent that until very recently even the word secession was not used in public international law documents (1978 Vienna Convention On Succession of States is a good example) and preferred to use expressions like "separation of a part of a State". This is because cession is charaterised by the lack of consent of the predecessor State, in this case, Georgia. The lack of consent of the predecessor state in theory and in practice of international law is the key element that characterises a strict notion of secession. At the same time, this factor explains why secession is so controversial in international law. On the one hand, the absence of agreement is a source of dispute between the new and the parent State. On the other hand, for want of consent of the latter, the newly formed entity has to find a legal justification for its creation elsewhere. Conversely, the parent State will presumably attest that this justification does not exist in international law and that, on the contrary, the international legal order protects itself against attempts to dismatle it, such as those processes constituting secession.
The above provides a short summary of a typical secession situationand the legal implications of secession in international law. Abkazian, Kosovo, South Ossetija and Pridnestrovie situations are not particularly different. Again since the early 1920s there is a clear attempt by the existing States not to allow cesession to be goverened by international law. (See for example the early courses of the Hague Academy of International Law, or Lauterpacht's "Recognition in International Law"). However, the prevailing view re-affirmed in 1991 by the arbitration commission of the Peace Conference for Yugoslavia (the "Badinter Commission" insisted unanimously (with both Western and Soviet members voting for that) that "the existence or disappearance of the State is a question of fact". As the result of this view very little legal theory on the creation of States emerged and legal scholarship was concerned with recognition instead.
It follows from here that the only real dispute (on the the significance of which I will dwell later) is whether Abkhazian and South Ossetian independence is a classic secession or it was created, like Namibia, Erithrea, East Timor, Micronesia and Palau on the basis of international law with the latter having played a role of "midwife", providing legal justification for the creation of new States. The other cases of new States which emerged after the end of the Cold War, which represented the larger number of new States, did not benefit from international legal backing. Apparently these States (firstly and foremostly the 15 ex Soviet republics) came into being as a matter of fact, a situation which international law neither sanctions nor prevents.
The traditional view was that secessionist movements, when not under foreign control (something which both South Ossetian and Abkhazian regimes certainly were not), were a purely domesttic affair. Thus modern international law neither encourages nor prohibits secession. It follows from here that if secessionists were successfull in imposition of the existence of a new State, then the international legal system was to record the emergence of a new State. The key in legal consequences of a formation of a new state is the status of the territory in question. Where a state is created under the international law (like Eritrea or, as some would argue, Kosovo) its territory had some international status prior to being proclaimed as a sovereign State. In a classic secessionist situation, the creation of a new state is made to the detriment of an existing independent State. Situations of agreed dissolution (the USSR or the UAR), unification or devolution (Macedonia) do not create major problems with regard to the very fact of the coming into being of the new States. What presents a problem is where the secessionist movement does not reach an agreement with the predecessor State, like South Ossetija and Abkhazia. Although this technically (following the theory that the creation of a state is a matter of fact) does not preclude the secessionist movement from exercising its sovereign rights over the territory it considers to be a new sovereign state, the lack of such agreement could create a number of problems and/or new conflicts ranging from the right of the population to choose between old and new citizenships, to deliniation of borders, property disputes protection of common heritage, etc.
As with Kosovo, both territories held referendums which produced overwhelming support for independence. As with Kosovo, local secessionist movements had effective control over the respective territories sinceat least the end of the 1992 war. Unlike Kosovo, UN involvement in running these territories was minimal and less than 4,000 Russian peacekeepers (1,600 in South Ossetija and some 2,000 in Abhazija) could hardly be classified as an outside controlling force. Thus the secessionist movements have had much fuller control over the territories than the KLA had over Kosovo during approximately the same period.
On the basis of the above it could be argued that the the precious little international law developed primarily to deal with the secessionist movements in the Balkans in the eartly 90s does not preclude Abkhazia and South Ossetia from becoming independent states.
Yours,
AL (an expert of the Badinter Commission 1990-1994).